Taylor Collier v Qube Ports Pty Ltd
[2023] FWC 3040
•20 NOVEMBER 2023
| [2023] FWC 3040 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Taylor Collier
v
Qube Ports Pty Ltd
(U2023/5304)
| DEPUTY PRESIDENT EASTON | SYDNEY, 20 NOVEMBER 2023 |
Application for an unfair dismissal remedy- valid reason found – causing damage while moving a vehicle – unblemished employment history – employee accepted full responsibility –no evidence to establish employee was careless - dismissal was harsh and unreasonable - remedy – reinstatement – payment for lost remuneration - Application for an unfair dismissal remedy
Background
Ms Taylor Collier worked at Qube Ports Pty Ltd’s Port Kembla operation from 2018 until her dismissal on 25 May 2023. Initially Ms Collier was employed through a labour hire company. From 4 February 2020 Ms Collier was employed directly by Qube Ports Pty Ltd.
On 26 March 2023 Ms Collier was moving a Mercedes SUV inside a vessel and hit a stanchion, causing significant damage to the front corner of the vehicle. Qube Ports Pty Ltd (Qube) investigated the matter over the next two months and decided on 25 May 2023 to terminate Ms Collier’s employment.
On 15 June 2023 Ms Collier made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Qube. Ms Collier seeks reinstatement to her former position and compensation.
The evidence
Two witnesses gave evidence in the proceedings: Ms Collier and Mr Bernie Ryan. Mr Ryan is the Operations Manager at Port Kembla.
Save for some photographs, Qube led no direct evidence about the incident. Mr Ryan investigated the matter and interviewed Ms Collier and others. His evidence is at best his recollection and analysis of what others told him.
Ms Collier was employed as a stevedore and she described her job to be ensuring the proper loading, stowage and unloading of ships. In her work as a stevedore Ms Collier worked in a number of different roles including Breakout Team member, Bus Driver, Guide, Parking, Bobcat Driver and Car Team.
Ms Collier had an unblemished employment record.
On 26 March 2023 Ms Collier had an accident inside a Pure Car Carrier (PCC) vessel. On that day Ms Collier was working as a Breakout Team member. Unsurprisingly, cargo and motor vehicles are packed tightly into PCC vessels and the Breakout Team performs the careful task of moving vehicles from the various decks/levels of the vessel to an Intermediate Point of Rest (IPR). The vehicles are then driven off the vessel by others who collect the vehicles from the IPR.
On 26 March 2023 the Breakout Team consisted of the Breakout Foreman, the Breakout Guide, a mechanic and two Breakout Wharfies. Ms Collier was one of the two Breakout Wharfies.
The role of the Breakout Guide is to work across the rows of tightly parked vehicles and direct the breakout wharfies out of the confined area.
In her written evidence in chief Ms Collier described the incident as follows:
“Due to the quick return times of the PCC drivers that day, the Breakout Team was struggling to have cars broken out of stow and ready for them to drive off the ship. So, another wharfie, John Whittington, was taken from the PCC Driving Team and brought into the Breakout Team for the shift.
Roughly 5 to 6 hours into the shift we moved to deck 11 of the vessel to commence breaking out that deck. Cars on that deck consisted of vehicles that were destined for Port Kembla, as well as cars that were originally destined for Port Kembla, but were reclassified as “change of destination” (COD). Once the COD vehicles were identified in stow, we had to move them to a separate location on deck because they were to remain on the vessel.
Three or four runs into breaking out deck 11 we were instructed to go to the starboard side of the deck. The starboard is the right side of the ship when facing the bow. The bow is the part of the ship that is generally most forward when the ship is moving. The stern is the back of the ship or its aft-most part.
When breaking out cars on the starboard side, the cars were facing the opposite direction to the exit ramp, thereby requiring us to make a U-turn in each vehicle so that they would face the exit ramp. While most of the Breakout Team was breaking out cars on the starboard side, the Breakout Foreman and John Whittington were restowing and re-lashing COD vehicles (securing them to the ship), that were previously broken out into their new location.
As we moved to the starboard side of the vessel, I was required to break out the second car of the first row. When the first driver moved the first car of that row, I proceeded to the back of the second vehicle of the first row to check if the lashings were removed from the back of the car as required by procedure. After observing that the lashings had been properly removed, I moved around to enter the driver’s door of the car as the first car was being guided out of stow...
To drive the cars to the exit ramp, it was necessary to go past a stanchion (a support column) before completing the U-turn. The stanchion is painted white, the ceiling is painted white, the floor is painted white, the walls are painted white, and the stanchion had non-reflective tiger tape only on its bottom half. I am only 5 foot tall, and the vehicle was a large Mercedes SUV.
I performed the startup procedures and then waited to be guided out. The Breakout Guide, Vince Velletri, was standing on the left side of the car between my vehicle and the third vehicle in stow, which meant my line of sight had to be facing left, opposite to the stanchion, to watch Vince’s hand signals.
Vince initiated the breakout, gave a hand signal to move forward, then gestured for me to start making the right-hand turn. I followed his direction. I kept my eyes locked on Vince as I was moving right until the car passed him, at which point he moved on to the next car that was immediately behind me.
I trusted that Vince had deemed it safe for me to proceed with my right U-turn. As I turned my head to the right, my view of the stanchion was obstructed by the vehicle’s pillar (the uprights that support the windscreen), as well as the barcode identification labels which were placed on the top right corner of the driver’s side window. I had only just initiated the right turn when I felt the impact. I didn’t see the stanchion until after the impact, which was on the front right side of the car. The accident caused damage to the front right (driver’s) side of the bonnet. I took a photo of the scene of the accident immediately afterward…”
Only a small number of workers were in the vicinity of the incident at the time. One other employee, Mr Velletri, was very close to the incident. Mr Velletri was the Breakout Guide and had just cleared Ms Collier to move her vehicle away but was not looking towards Ms Collier at the time the car hit the stanchion.
Qube argued that Ms Collier’s explanations over time reveal her failure to properly take responsibility for the incident. Qube submitted that Ms Collier’s responses and explanations were evasive and “from the moment that the incident occurred, the applicant immediately attempted to shift blame away from her own careless conduct.”
On the day of the incident Ms Collier handwrote an “initial incident report.” This brief account said, amongst other things, “I went to turn and didn’t see the pole past the pillar in the car and hit it.” The “pillar” referred to is obviously the A-pillar of the car.
On 29 March 2023 Ms Collier was interviewed by Mr Ryan. In that interview Ms Collier’s explanation included the following:
“… I didn’t see the pole in front of me because the A pillar in the car was blocking my vision. It was a complete blindspot…
I didn’t take notice [of the A Pillar layout of that vehicle], but I have since. Just that positioning, it was right in the blindspot.
…
I don’t remember what car I broke out in the first row. We were in a bit of a rush. I didn’t see it and it was in the blindspot and I collided with it.
…. We were not keeping up and the extra breakout wasn’t there. We had a [change of destination] and we were rushed. I wasn’t paying much attention to what was around me, so.
Just the blindspot [contributed to the incident occurring].
… I just want to say I am sorry, and I didn’t mean for this to happen…”
On 19 April 2023 Qube sent a show cause letter raising the following concerns:
“• You have put yourself, other workers and Company and Client assets at imminent risk of serious injury, incident or loss through disregard for safe work practices and Company Policy and Directions;
· You have caused loss of reputation for Qube with our client WWO;
· You have breached the Qube standards in relation to safe working;
· You have breached the Zero Harm values and spirit of safety excellence; and
· Resulting from the above, you have broken the mutual trust and confidence between you and the Company.”
On 21 April 2023 Ms Collier provided a written response to the show cause letter. The response included the following:
Background
I would like to take this opportunity to explain a few things about the incident, I understand an investigation has already taken place and I have already explained the events in my previous meeting, however there are a few things I would like to add that I never had the chance to add or was aware of at the time due to being in shock and looking back on this incident these things were not put in place and safety precautions could have changed the outcome.
· The safety strip attached to the stanchion is at bonnet height and non-reflective, I am quite a short person.
· The stanchion was the same colour as the floor, deck ceiling and deck walls (white).
· Reflecting on the incident and looking back on what could have been different, I strongly believe now that tape and cones would have helped in identifying a hazard.
· The Grade 5 Foreman was at the opposite end of the deck in the direction of where the car was facing, only having guidance from the breakout guide, there was no other direction or supervision.
· The guide had guided me out of stow using hand signals, at the point in which the guide had left me the angle of view to the stanchion was in line with the A pillar on the driver’s side of the car which created a blind spot causing me to not see the stanchion when I went to make the U turn.
Photos of the car immediately after the incident show all of the above points I have put forward, I fully understand I was the operator of the vehicle and I take full responsibility for the damage I have caused; this was not intentional and there are other factors I believe could be considered.
Company Concerns
· Yes, I have put myself at risk in this situation and understand the seriousness of a workplace injury for an employee and for QUBE.
· I understand that this has damaged QUBE’S reputation with its client which I am very sorry for that.
· I understand the concerns that QUBE has.
· I understand the obligations that I have to QUBE.
· I understand QUBE’s standards in relation to safe work and always strive to meet them.
· I understand that I should be able to attend my workplace knowing that I am working under the instruction of my superiors to also ensure my safety.
· With regards to the issue of trust that QUBE may have with me post incident, I want to assure you that this is not the case. I would like to point out that I am very confident QUBE can trust me in the workplace and my integrity is beyond reproach. In the years I have worked for QUBE I have done many shifts as PCC breakout, I have broken out hundreds of cars on vessels and thousands in my career, without any incidents.
I am confident that I have not broken any procedures. I am also confident that I will not do so in the future. I respect the Zero Harm policy in which QUBE aligns with and I would never deviate from this.”
Mr Ryan investigated the matter for Qube. He said he spoke to Dion Olive (Shift Manager), John Brannelley (PCC Foreman) and Vince Velletri (Breakout Guide).
Mr Olive was not in the vicinity when the incident occurred but completed a “Initial Damage Incident Report” on 26 March 2023 that included the following:
“The Breakout Team were in the process of discharging Deck 11, Breakout Guide Vince Velletri was guiding the Breakout Drivers out of the stow and Foreman John Brannelley was directing them into the IPR. At approximately 13:26 Breakout Driver Taylor Collier had just been guided out of the stow and Breakout Guide Vince had moved to his right to guide out the next car out. Taylor then proceeded forward approx 5-8m turning slightly to her right and struck a ships staunchion.
Foreman and the Guide then turned and saw what had happened and rushed over to check on the welfare of the Driver and fortunately Taylor was not physically hurt but was extremely shaken and upset, so she was assisted from the vehicle and taken to the Foreman vehicle to sit and settle her nerves while Foreman informed the Shift Manager who was on the main deck that there had been an incident.
Shift Manager arrived and assessed the situation with the Port Capt Aurea who was on the Deck at the time of the incident. Shift Manager then spoke with Taylor and asked how this accident happened, Taylor advised after she had been guided out of stow and had begun to turn her vehicle to the right towards the IPR and due to the cars, A Pillar blocking the view of the staunchion she simply did not see it and ran into it.”
In Mr Ryan’s witness statement he offered a number of opinions about what happened. Mr Ryan’s opinions are relevant to understanding the reasons why Ms Collier was dismissed, but I have not taken his opinions to be direct evidence regarding the incident. Mr Ryan said:
“I then considered what disciplinary outcome was appropriate in the circumstances. I recommended that dismissal was warranted. This is because:
(a) the Incident was, in my view, caused by a high level of carelessness by Ms Collier. Whilst it would been preferrable for the PCC Foreman to have used tiger tape to clearly mark the discharge route, I do not believe that this would have actually prevented the Incident from occurring. Ms Collier drove into a stanchion that was basically directly in front of her, on the driver’s side. The stanchion was clearly marked with reflective hazard tape. Ms Collier had already broken a number of other cars out via the same route, and therefore would have been aware of the location of the stanchions. She also had ample opportunity to familiarise herself with the vehicle and its surroundings before commencing her drive;
(b) as for the new matters she raised, on review of the photos I did not accept that the hazard tape was only bonnet height and would have been visible over the steering wheel. Even if the hazard tape was low when compared to the bonnet, it would have been clearly visible in the 5-8 metres she drove the Vehicle before colliding with it. As for her suggestion that tapes and cones should have been used, I did not understand how Ms Collier thought she would have seen these on the ground if she said she could not even see the hazard tape on the stanchion because it was too low.
(c) the Incident had caused extensive vehicle damage. Qube had been advised that it would be required to pay $70,000 in repairs. This would also be factored into the KPIs in the contract with the customer, WWO, and potentially put Qube at a commercial disadvantage when seeking to renegotiate that customer contract when it expires. I regarded the reputational damage caused by the Incident to be significant;
(d) as significant as the Incident was, it had the potential to be much worse. If Ms Collier had collided with another vehicle, or even worse – a person – instead of a stanchion the outcome could have been catastrophic; and
(e) Ms Collier had disappointed me throughout the investigation process by failing to truly accept responsibility for her significant mistake. I did not accept her excuse that the Incident was caused by a ‘blind spot’, particularly given that the damage was caused to the front of the car. Even if Ms Collier’s visibility had been impaired (which I did not accept), it would be of even greater concern that she continued to drive rather than stopping and seeking assistance from the Breakout Guide, or simply repositioning the driver’s seat to ensure a clearer view. To me, this demonstrated a high level of carelessness, a lack of accountability, and an attempt to abrogate responsibility. Because of this, I could not trust her to continue in her employment.”
For all intents and purposes Mr Ryan was the decision-maker for Qube. Mr Ryan investigated the incident and ultimately made a recommendation to the General Manager Australian Ports that Ms Collier be dismissed.
Although some people that Mr Ryan spoke to suggested that Ms Collier drove 5 to 8 metres before hitting the stanchion, it is clear to me that Ms Collier drove the car a much shorter distance. Ms Collier took a photo straight after the incident and it is clear in her photo that the rear of the vehicle is only slightly forward of the front of the vehicle parked next to it. The vehicle Ms Collier drove was parked in the line of vehicles, Ms Collier entered her vehicle and drove it forward, under the direction of the Breakout Guide, to move her vehicle away from the vehicle it was parked next to. Ms Collier was then cleared to drive the vehicle away from that position. Ms Collier then drove forward and turned the vehicle to the right (further away from the vehicle parked next to it) but hit the stanchion almost immediately. The total distance travelled in the vehicle was only slightly longer than the length of the vehicle itself because the rear of the vehicle only slightly cleared the front line of the vehicles it had been parked next to.
Consideration: General
The two central matters considered by Qube when it dismissed Ms Collier were:
(a) the incident itself; and
(b) the degree to which Ms Collier accepted responsibility for the incident.
Accepting responsibility for the incident was inescapable for Ms Collier. There was only her, a car and a stanchion involved, and she made an error.
Qube accepts that the incident was an accident. Sort of.
Qube did not allege that Ms Collier deliberately drove the vehicle into the stanchion. Rather, Qube said that Ms Collier failed to check her surrounds, and failed to ensure that the route was cleared of obstacles. Qube did not identify any other factor, beyond the fact that the incident occurred, to show that Ms Collier had been careless.
In this matter many terms have been used to describe Ms Collier’s mistake: trivial, accidental, careless, negligent, deliberate, endangering, and each term carries nuance and colour.
Qube settled on the term “careless”, submitting that Ms Collier had been careless about the presence of obstacles on the route she was to drive.
I did not understand Qube to be using the word “careless” in a literal sense (having or taking no care) but to suggest conduct that was worse than a mere mistake but not deliberate. Qube did not submit, for example, that Ms Collier drove off in the vehicle without any care or concern as to whether there were any obstacles in her path.
Rather, I have understood Qube’s submission to be that Ms Collier was careless when she drove the vehicle, meaning that she had very little care (as opposed to no care) that the vehicle might strike another object.
If Ms Collier had been more careful the accident would not have occurred. But that doesn’t mean that Ms Collier was careless in driving the vehicle.
I am satisfied that the incident occurred because Ms Collier did not see the stanchion at the time she moved the vehicle forward and out of its position. With 20:20 hindsight Ms Collier’s mistake was pretty basic. She must have walked near the stanchion to enter the vehicle. The ship’s deck has many stanchions and each one has high visibility markings. The particular stanchion was approximately five or 6 metres from Ms Collier as she sat in the driver seat of the vehicle.
Irrespective of the terminology used, Qube has not established any element of the incident that takes the event beyond an accident. There was no act or omission by Ms Collier that showed or even suggested anything more than a mistake.
Qube did not demand perfect performance from Ms Collier or any of her colleagues. There was evidence of other incidents at around the same time involving other workers where vehicles were damaged and those who caused the damage were not dismissed.
Qube submitted that Ms Collier was more culpable because “she drove into the blindspot.” When tested on this proposition, Counsel for Qube properly acknowledged that Qube was not submitting that Ms Collier had consciously drove into an area of the vessel in which she had no visibility. I do note in this regard that another employee drove a vehicle on Qube’s site when the windows were so fogged that he literally could not see where the vehicle was travelling. That employee received a final warning when his vehicle struck a stationary object.
However, Mr Ryan formed the view that Ms Collier’s acceptance of her responsibility did not measure up against what he thought was her true responsibility.
In cross-examination Mr Ryan agreed that Ms Collier had used the words “I was the operator of the vehicle and I take full responsibility for the damage I caused” but he said that he did not accept that Ms Collier “had taken responsibility for the behaviour that caused the incident.” Mr Ryan explained in re-examination that he thought that the incident was “an act of negligence” and that Ms Collier had “failed in her attempt to take into consideration the risk.” He also said, “what led to that, I don’t know.”
Mr Ryan’s reference to an alleged “high level of carelessness by Ms Collier” is perhaps the clearest articulation of Mr Ryan’s concern.
However Ms Collier did not at any stage attempt to divert responsibility for the incident away from herself.
Qube submitted that the incident and Ms Collier’s response to the incident “broke the mutual trust and confidence between her and the respondent.” Qube submitted that Ms Collier provided “evasive responses throughout the disciplinary procedure” and submitted that “from the moment that the incident occurred, the applicant immediately attempted to shift blame away from her own careless conduct.”
I do not accept this submission.
Mr Ryan interviewed Ms Collier three days after the event and then did not speak to her again. If he was concerned about her remorse or her supposed evasiveness, he did not raise his concerns with her at all.
Ms Collier’s references to the A-pillar of the vehicle partially blocking her line of sight to the stanchion, was an explanation for her mistake, not an excuse or any kind of blame-shifting.
In her response to the show cause letter (see [17] above) Ms Collier referred to safety precautions that could have changed the outcome. This response seems consistent with standard WHS practices after an accident. Unfortunately, Mr Ryan wrongly regarded this response as blame-shifting.
Consideration: s.387
Section 387 of the FW Act requires me to take into account the following matters in determining whether Ms Collier’s dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (s.387(a))?
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
I am satisfied that causing damage to a vehicle inside the vessel was a valid reason for dismissal connected with the employee’s capacity or conduct.
I am not satisfied that Ms Collier’s alleged failure to accept responsibility for her conduct was a valid reason for dismissal because I am not satisfied that this allegation has been made out.
Was the Applicant notified of the valid reason (s.387(b))?
Section 387(b) requires me to take into account whether Ms Collier “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms (per Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60]).
One of the two active reasons for dismissal was put to Ms Collier prior to her dismissal, being of course the damage to the vehicle. The other active reason, Ms Collier’s alleged failure to accept responsibility for her actions, was not put to her before she was dismissed.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
Ms Collier was given a proper opportunity to respond to the primary allegation against her. Ms Collier was not given any opportunity to respond to Mr Ryan’s concern that she had not taken responsibility for her actions.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?
This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?
As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(f))?
Neither party submitted that the size of Qube’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Qube’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(g))?
Qube’s enterprise does not lack dedicated human resource management specialists.
What other matters are relevant (s.387(h))?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
The degree of seriousness of the misconduct and mitigating factors are relevant matters to consider under s 387(h) (see Sydney Trains v Gary Hilder[2020] FWCFB 1373 at [28], [32] and [38]).
Whilst there was a valid reason for dismissal, in my view it was harsh and reasonable to dismiss Ms Collier in all the circumstances.
Ms Collier had worked at the site for 4 years without any kind of blemish on her record. The incident on 26 March 2023 was an accident and a mistake. It would have been appropriate to issue a warning to Ms Collier.
Qube was entitled to expect Ms Collier to take great care in performing her work – particularly when the work involved manoeuvring expensive vehicles in confined spaces. As observed above, Qube did not demand perfect performance from Ms Collier or other employees performing the same work. There was evidence of other vehicles suffering damage and those responsible for the damage remaining in employment.
Damaging a vehicle is a valid reason for dismissal and could form the basis of a legitimate and fair dismissal. If the circumstances had been different, for example if Ms Collier had been skylarking in the vehicle or had been wilfully reckless of the potential damage/consequences of her driving, then a warning might not have been appropriate, and that summary dismissal might have been reasonable.
Ms Collier was cooperative in Qube’s investigation, showed genuine and appropriate remorse and Mr Ryan’s “disappointment” that Ms Collier had failed to truly accept responsibility for her significant mistake was unreasonable.
Overall Qube’s decision to dismiss Ms Collier was disproportionate to the conduct.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I find that the dismissal of Ms Collier was harsh and unreasonable. Qube had other reasonable actions available to it to address Ms Collier’s mistake and it was unreasonable for Qube to take the course that it did.
The consequences for Ms Collier were significant and the decision to dismiss her was disproportionate to her conduct and was harsh.
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms Collier was unfair.
Remedy - reinstatement
Being satisfied that Ms Collier made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act, I may order Ms Collier’s reinstatement, or the payment of compensation to Ms Collier, subject to the FW Act.
The Commission must perform its functions and exercise its power in a manner that is fair and just and promotes harmonious and co-operative workplace relations (per s.577 of the FW Act) and must take into account the objects of the FW Act, and equity, good conscience and the merits of the matter. The power to order reinstatement is “a very drastic one” (per Slonim v Fellows (1984) 154 CLR 505 at 515, [1984] HCA 51, cited in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 548, [2005] HCA 22 at [28]). As the High Court observed in Blackadder, such an order is an intrusion into the personal relationship of employer and employee, and an intrusion that is “deliberate and envisioned by the Act” (at [28]).
As the Full Court in Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 at 190, [1997] IRCA 15 observed, the employment relationship is capable of withstanding some friction and doubts:
“Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example, the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.”
Qube referred to Ms Collier’s actions and her alleged failure to truly accept responsibility for her actions breaking “the mutual trust and confidence between her and the respondent.” I have rejected the proposition that Ms Collier’s response was inadequate and was a valid reason for dismissal. In the context of considering reinstatement, and reviewing the evidence objectively, I reject the proposition that Ms Collier’s response to Qube’s investigation, or even her evidence in the Commission proceedings, could compromise the necessary trust and confidence between her and Qube.
Taking all these matters into account I find that it would be appropriate to order that Ms Collier be reinstated to her former position pursuant to s.391 of the FW Act.
Further, it is appropriate to make an order that maintains the continuity of Ms Collier’s employment (per s.391(2)(a)) and to make an order that Qube pay to Ms Collier an amount for the remuneration lost by her because of the dismissal (per s.391(3)).
In making an order under s.391(3) I am required by s.391(4) to consider:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
An order to restore lost pay pursuant to s.391(3) is a discretionary one and the Commission may take into account all of the circumstances of the case, including the conduct of the employee that led to the dismissal (see Humphries v Buslink Vivo Pty Ltd[2015] FWC 6278 citing Kenley v JB Hi Fi, Print S7235 at [36]).
Any pay in lieu of notice of termination must be considered in the calculation of lost earnings (per Nyrstar Hobart Pty Ltd v Cannan [2015] FWCFB 888 at [105] and [110]).
Examples of reductions in back pay because of the employee’s conduct include:
(a) Hilder v Sydney Trains [2019] FWC 8412 – a 50% reduction in lost earnings where the dismissal was because of serious misconduct in the form of contravention of policies which expressed a “zero tolerance” of drug use and a “serious lapse of judgment (at [142]);
(b) Dyson v Centennial Myuna Pty Ltd [2020] FWC 5486 – six months backpay was reduced by three months because it was considered appropriate that the Applicant bear a substantial degree of responsibility for the financial consequences of his dismissal;
(c) Johnson v Chelgrave Contracting Australia Pty Ltd [2020] FWC 5784 – backpay was reduced by 15% because the employee had not done everything he could have done in order to avoid a safety breach;
(d) Morcos v Serco Australia Pty Ltd [2019] FWC 7675 – no backpay was ordered because the applicant had “had made a mistake by attending work after having consumed alcohol”; and
(e) Wakefield v Sunraysia Institute of TAFE [2019] FWC 4979 – backpay was reduced by 25% to take into account the Applicant’s misconduct in sending the email to his former employer, and to “reinforce to the Applicant the importance of not repeating this behaviour in the future” (at [123]).
I have decided to reduce the amount Qube is required to pay as compensation by 15% in recognition of Ms Collier’s mistake on 26 March 2023.
As such I will make an order in due course requiring Qube to pay an amount compensating Ms Collier for lost pay as a result of the dismissal, calculated as follows:
(a) the amount Ms Collier would have received as ordinary time earnings but for the dismissal; MINUS
(b) any amount paid by Qube in lieu of notice; MINUS
(c) any amounts received by Ms Collier as income from employment or other work since her dismissal; MINUS
(d) a further 15%.
I will make an order[1] that within 21 days Ms Collier be reinstated to the position in which she was employed immediately before her dismissal (per s.391(1)), an order that maintains Ms Collier’s continuity of employment (per s.391(2)(a)) and also the following directions for the filing of material by the parties in order to facilitate the making of an order to restore lost pay (per s.391(3)):
(a) Parties must confer on the calculation of the lost pay as per paragraph [82] above;
(b) If the amount payable is agreed between the Parties by 29 November 2023, Ms Collier must advise the Commission by no later than 4pm on that day;
(c) If the amount payable is not agreed between the Parties by 29 November 2023, each party must file and serve submissions and any supporting evidence by no later than 4 December 2023 in relation to (1) the amount each party submits to be the correct amount the Commission should order; (2) the amount of remuneration earned by Ms Collier from employment or other work during the period between the dismissal and the making of the Order for reinstatement; and (3) the amount of any remuneration reasonably likely to be earned by Ms Collier during the period between the making of the Order for reinstatement and the actual reinstatement.
DEPUTY PRESIDENT
Appearances:
Mr K Bond, Representative for the Applicant
Mr A Lambert of Counsel for the Respondent
Hearing details:
2023
Sydney (By Video)
16 October 2023
[1] PR768445
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