The Australian Workers' Union v Alcoa World Alumina Australia Limited

[2014] FWC 8874

[2014] FWC 8874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Alcoa World Alumina Australia Limited
(C2014/1466)

COMMISSIONER WILLIAMS PERTH, 9 DECEMBER 2014

Application to deal with a dispute.

Introduction

[1] This decision concerns an application made by The Australian Workers’ Union (the AWU or the applicant) under section 739 of the Fair Work Act 2009 (the Act). The respondent is Alcoa World Alumina Australia Limited (Alcoa or the respondent).

[2] The application involves a dispute which has been referred to the Commission pursuant to clause 18−Disciplinary Procedures and clause 19−Dispute Resolution Procedure of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 [AE407184] (the Agreement).

[3] Clause 18−Disciplinary Procedures of the Agreement is set out below:

“18. DISCIPLINARY PROCEDURES

(a) The Company shall apply and implement all disciplinary action in a fair and reasonable manner.

(b) The Company may apply disciplinary action up to and including suspension without pay (as an alternative to dismissal for a maximum of 2 weeks on each occasion) or termination. Prior to the application of the discipline, where the employee elects to have a representative, the form and level of discipline will be discussed with their Representative (e.g. Shop Steward or Site Convenor).

(c) If it is deemed appropriate by the Company that the employee be stood aside, the AWU Senior Site Employee Representative will be notified prior to the employee being stood aside. Any such standing aside will be without loss of pay or entitlement until the Company makes its decision on the disciplinary action, if any, to apply. It is expressly agreed that the standing aside of employees will not be prevented as a result of such standing aside being placed in dispute (i.e. the status quo provisions of clause 19 will not apply in circumstances where the standing aside of an employee is put into dispute).

(d) Supervision will conduct an inquiry into the incident, which will involve the employee, relevant Shop Steward and any other appropriate personnel.

(e) If the Company takes a decision to terminate an employee, the Site Convenor or Deputy Convenor, or if required, Union Organiser shall be notified immediately and notified in writing (email acceptable) prior to the termination taking effect. The employee or the Site Convenor (or their nominee) may at that point, put the matter in dispute within a 24 hour period of the formal notification to terminate the employee. This will be based on business hours (Monday to Friday).

(f) If, prior to the termination being activated, the employee or the Site Convenor (or their nominee) has chosen to put the matter in dispute via the dispute resolution procedure in this Agreement (which is agreed to be the only time the employee, the Site Convenor (or their nominee) can do so under this Agreement), the case will be referred to Stage 4 of clause 19 in the dispute resolution procedure, bypassing other levels of the disputes procedure. The continuation of pay and entitlements will be on the condition that no industrial action is taken over the matter.

(g) The provisions of sub-clause (f) above will apply only to employees who have completed the minimum employment period as defined by the Act.

(h) The parties agree to accept any decision and abide by the decision-making processes of the Fair Work Commission.

(i) Nothing affects the right of the Company to dismiss any employee without notice for serious misconduct and in such cases payment will be made up to the time of dismissal only.”

[4] For the purposes of this application subclause (e) and (f) of clause 18−Disciplinary Procedures provides that where Alcoa decides to dismiss an employee they are obliged to notify the AWU prior to the dismissal taking effect. If the AWU disputes the matter prior to the termination being effected and puts the matter in dispute the case will be referred to the Commission for arbitration via clause 19−Disputes Resolution Procedure of the Agreement.

[5] Ms Gallop, the employee in this instance, has not yet been dismissed however Alcoa have written to her advising they consider the termination of her employment is justified. The AWU has been notified and the intention to terminate Ms Gallop’s employment has been disputed.

[6] In summary the Commission’s role in resolving this dispute is to decide whether in all the circumstances the intended dismissal of Ms Gallop would be unfair. In doing so it is my intention to apply the same principles the Commission does when dealing with applications made under section 394 of the Act by persons seeking a remedy for alleged unfair dismissal and specifically I will apply the criteria for considering whether a dismissal was harsh, unjust or unreasonable that are prescribed in section 387 of the Act.

Background

[7] Ms Gallop has been employed at the Huntly Mine as a Production Operator since 17 September 2012.

[8] Production Operators at Huntly are engaged in a continuous shift operation which involves employees working 12 hour shifts on a four panel roster which typically involves two days, two nights and four days off.

[9] On or about 11 March 2013, Ms Gallop reported that she was suffering from a non-work related psychological issue which prevented her from performing her duties.

[10] Ms Gallop applied for Extended Sick Leave (ESL) pursuant to the respondent’s ESL Policy, which provides for up to two years paid sick leave.

[11] Ms Gallop’s application for ESL was approved on 14 April 2013 and Ms Gallop’s absence on ESL commenced on 11 March 2013.

[12] On 25 November 2013, the respondent received advice from Ms Gallop’s treating psychiatrist, Dr Sekhon, which stated that Ms Gallop would not be able to return to her substantive role as a Production Operator and would require rehabilitation to an alternate role.

[13] The entitlement to ESL under the ESL Policy is conditional on an employee being capable of returning to their substantive role.

[14] Ms Gallop was advised that, based on the medical opinion of her psychiatrist, she was, in accordance with the ESL Policy, being given 6 weeks’ notice of Alcoa’s decision to cease ESL.

[15] On 23 December 2013, the respondent received a further letter from Ms Gallop’s psychiatrist which contrary to his previous advice stated that she should be well enough to return to her position as a Production Operator around March/April 2014. That letter confirmed Ms Gallop’s capacity to return to an alternative role, in a graduated fashion around January 2014.

[16] Notwithstanding Dr Sekhon’s contradictory advice, the respondent proceeded with a rehabilitation program that involved graduated return to work for Ms Gallop and payments under the ESL Policy resumed.

[17] Ms Gallop’s return to work was managed through a process involving medical reviews by the respondent’s Occupational Physician Dr Rostin and rehabilitation review meetings chaired by a Rehabilitation Coordinator and attended by Ms Gallop, her line Supervisor, Dr Rostin and a Human Resources representative.

[18] As a result of Ms Gallop’s failure to attend a scheduled medical review with Dr Rostin on 16 January 2014 without prior notification, the respondent wrote to Ms Gallop on 23 January 2014 reminding of her obligations to comply with the requirements of the ESL Policy.

[19] An initial Return to Work Plan (RTW Plan) was developed by 21 February 2014. That RTW Plan commenced on 5 March 2014 and provided for three, four hour shifts per week of office duties to be performed at Huntly Central, which is about 12km from Ms Gallop’s usual place of employment at McCoy.

[20] After three shifts, Ms Gallop advised she was unable to perform the required shifts and refused to attend for the performance of work until she was reviewed by Dr Sekhon.

[21] The respondent wrote to Ms Gallop regarding her non-compliance with the requirements of the ESL Policy and her failure to notify it of her absences from work arising from her refusal to attend for work until reviewed by Dr Sekhon.

[22] On 16 April 2014, the respondent wrote to Ms Gallop advising that as a result of her failures to adhere to the requirements of its ESL Policy, her entitlements under that policy were being terminated.

[23] On 25 March 2014, a second RTW Plan was agreed with Ms Gallop which provided for a gradual escalation of her work hours from 12 hours per week to 20 hours per week.

[24] The second RTW Plan required Ms Gallop to comply with specific obligations in relation to any instance which she could not attend for work or needed to leave early. This required Ms Gallop to notify her Supervisor and attend the respondent’s Medical Centre if she needed to leave work early.

[25] Between 25 March 2014 and 27 June 2014, Ms Gallop continued to attend medical reviews and rehabilitation meetings which resulted in ongoing review and amendment of the RTW Plans as her capacity to perform work changed. Consequently a second, third, fourth, fifth, sixth and seventh RTW Plan were developed and implemented each of which was signed off by Ms Gallop.

[26] With the exception of the third RTW Plan, which temporarily reduced the number of hours Ms Gallop was working, the medical reviews and rehabilitation meetings reflected Ms Gallop’s increasing capacity to perform work.

Findings

[27] Considering the evidence I find that Ms Gallop like other Alcoa employees was required to attend work and notify their direct Supervisor as soon as practicable of any necessary absence from work. Failure to do so can result in disciplinary action up to and including the termination of their employment.

[28] Alcoa’s Organisational Standards applied to Ms Gallop and these provide that:

(i) Employees will attend work as described in their assigned work roster. Start, finish and break times will be within tolerance of the assigned roster;

(ii) All leave will be properly applied for and appropriately recorded using the standard Alcoa systems;

(iii) Employees will, with limited direct supervision, complete all work required of the position and meet the employment contract;

(iv) Deliberate falsification of time keeping records and fraudulently obtaining payment of wages for time not worked is considered in the same light as stealing and would be treated accordingly, i.e. could result in summary dismissal;

(v) Employees are required to seek their Supervisor’s prior approval to be absent from work on any normal rostered day of shift;

(vi) For unplanned leave (sick leave), employees must notify the Group Leader unless other arrangements have been made with management approval;

(vii) Each instance of an unplanned absence must be explained by the individual and approved by supervision. This may be in the form of a doctor’s certificate;

(viii) Employees who are absent without approved leave will lose pay for the actual time they are not at work.

[29] The Agreement provides at subclause 13.2(e);

“An employee must in the first instance notify his or her supervisor, or if unsuccessful in doing so, notify security, or if not practical, other contacts as defined by site management that they will be absent from work because of personal illness or injury or because of the need to provide care or support to an immediate family or household member for one of the purposes set out in this clause. This notification must be given as soon as is reasonably practicable and must advise the period, or expected period, of the leave”;

and also at subclause 13.2(f)(i)

“Where an employee, who, in the relevant sick leave year period, has already been allowed leave in respect of two single day absences, claims paid sick leave in respect of any other day, the employee will not be entitled to payment for the day claimed unless he or she produces to the Company a medical certificate certifying that he or she was not fit for work because of a personal illness, or personal injury, affecting the employee on that day.”

[30] In addition the specific requirements for Ms Gallop to notify Alcoa of any absence from work were specified in each of the second through to the seventh RTW Plans. Further I find this was reinforced in a letter from the HR Manager Ms Schraven on 16 April 2014 which reminded Ms Gallop of the need to apply for leave.

[31] Finally a letter from her direct Supervisor Mr Smith was sent to Ms Gallop on 9 May 2014 which stated:

“Going forward any notifications of absences, including Sick Leave or applications for Annual Leave must be directed to me. This requirement is in addition to providing medical certificates to Jye McCaffrey at the Huntly Medical Centre, as per your return to work plan obligations.”

[32] This letter was sent as a response to Ms Gallop’s ongoing non-compliance with her notification obligations specified in the RTW Plans.

[33] The letter also advised her that she was required to attend for work as required by the RTW Plan and failure to cooperate with the RTW Plan could lead to termination 1.

[34] In June 2014 the respondent met with Ms Gallop to resolve outstanding issues in relation to her pay arising from the fact that Ms Gallop had apparently not been entering leave into the respondent’s Oracle database to cover the difference between the hours which Ms Gallop was working and her usual full time hours.

[35] This raised concerns in relation to Ms Gallop’s compliance with her RTW Plan. Alcoa then undertook an audit of Ms Gallop’s compliance with her RTW Plan.

[36] Swipe card data for Ms Gallop, which records each employees’ entry and exit date and times at the various Mine gates was reviewed. This data was taken by Alcoa as an indicator of Ms Gallop’s attendance at work on each day she was rostered to work.

[37] A number of discrepancies were identified which suggested Ms Gallop was not at work for all the hours she was rostered on.

[38] On 7 July 2014, the respondent wrote to Ms Gallop setting out the details of her apparent non-attendance in a spreadsheet, expressing the view that if correct, her conduct would warrant the termination of her employment and requesting that she explain the identified absences prior to the respondent making a decision on her employment. The spreadsheet relied on the Oracle database records of leave and Ms Gallop’s swipe card data.

[39] Ms Gallop provided a response to Alcoa’s letter which addressed some of Alcoa’s concerns. This included assertions that the respondent’s records in relation to both Oracle and the swipe card data were incorrect. The respondent wrote to Ms Gallop requesting her to provide phone records on which she had purported to rely to prove that she was at work. On 14 July 2014, Ms Gallop provided another response and some partial mobile phone records.

[40] Ms Gallop was unable to address all of the concerns relating to her non-attendance at work so Alcoa undertook further investigations utilising other IT systems which were available to it, including reviewing Ms Gallop’s use of email and her computer log on and log off data for the days she was rostered to work.

[41] From this the respondent identified that Ms Gallop had been rostered to work on 10 days in June 2014, for a total of 93 hours but that she had apparently failed to attend at all for her rostered shift on 12 June 2014 and had not been at work for approximately 44 of the rostered hours of work over those other shifts.

[42] Consequently on 23 July 2014, the respondent wrote to Ms Gallop directing her to attend a meeting to discuss these apparent absences prior to the respondent making a decision on whether to terminate her employment.

[43] Ms Gallop attended that meeting on 25 July 2014 with the AWU Site Convenor, Mr Simon Price, and was given the opportunity to explain her apparent failures to attend work for her full rostered hours on the 10 days in June.

[44] Alcoa’s view was that Ms Gallop did not give any satisfactory explanation for the numerous absences from work nor had she demonstrated that as required she had notified the respondent of her intention to leave work.

[45] Consequently on 25 July 2014 the decision was taken to terminate Ms Gallop’s employment.

[46] I accept the respondent’s evidence of the electronic records including swipe card data which record the dates and times Ms Gallop entered and exited the respondent’s sites and of the dates and times she sent emails using the respondent’s computers and the records of the dates and times Ms Gallop logged on and logged off the respondent’s computers. There is no challenge to the accuracy of these various records.

[47] In isolation these records are highly suggestive of a finding that for the specific 10 days the respondent has relied upon Ms Gallop either did not attend work at all or did not complete all of her rostered hours. For a number of days there is no record that Ms Gallop entered or exited any site gate nor that she logged on or logged off a computer nor that she sent any emails. On other days the time of the last email sent by Ms Gallop was before the time the swipe card data shows Ms Gallop exited the site gate and there is no record of her re-entering any gate or later using the email system.

[48] Consequently in the absence of other positive evidence which is indicative of Ms Gallop being at work when these records suggest she was not, I would on the balance of probability find that on a number of these days Ms Gallop did not attend for work at all and on the balance of the 10 days had not worked all of her rostered hours as was required of her.

[49] Ms Gallop’s evidence with respect to these 10 specific days in June 2014 is made up of the original explanations she provided to Alcoa in mid-July 2014 2 and her oral evidence given during hearing particular under cross examination.

[50] Her response in writing to Alcoa included a number of occasions where she agrees she left the site early but stated that this was not without authorisation because she had notified supervising personnel and dispatch. Having considered these statements and the evidence of the respondent’s witnesses I do not accept that on any of these occasions Ms Gallop was authorised to leave site early. Neither Mr Soord, who was overseeing her day to day work, nor dispatch whomever that may be, were authorised to give her permission to leave early and any suggestions by Ms Gallop to this effect is inconsistent with her evidence that she understood the specific requirements in the various RTW Plans for her to notify Mr Smith or the respondent’s Medical Centre if she was unable to continue working.

[51] A number of other occasions where Ms Gallop acknowledges she did not appear to work her full hours are explained variously by her as being because she was at another part of the respondent’s operations and/or travelling between sites. However even if her evidence is accepted in full this does not account for all of the rostered hours the electronic records suggest were not worked on these days.

[52] For other particular days her evidence was that she has no memory of the day.

[53] On occasions in her evidence Ms Gallop concedes she sometimes left early but simply says that there was probably a reason for this.

[54] In response to a series of questions as to whether on those occasions when she felt the need to leave work early she had notified Mr Smith or the respondent’s Medical Centre as required by her RTW Plans her response was that she either could not comment or did not recall.

[55] In summary the evidence of Ms Gallop generally to the effect that the electronic records do not accurately reflect the fact that she had worked her rostered hours in full and attended on all days she was rostered to and that otherwise she was only ever absent with the permission of the respondent is not believable on the face of other specific evidence to the contrary.

[56] On balance considering Ms Gallop’s evidence regarding the 10 days in question, the evidence of the electronic records for these days and the evidence of the respondent’s witnesses my conclusion is that Ms Gallop on 11 and 12 June 2014, days she was rostered to work, did not attend for work at all and on the other eight days did not work her full rostered hours.

[57] Further considering the evidence of the respondent’s witnesses I find that on none of these occasions was Ms Gallop authorised to be absent. The weight of evidence is that Ms Gallop had not contacted Mr Smith on any of the above occasions when she had not attended for work or had not worked her full rostered hours nor had she advised the respondent’s Medical Centre on these occasions that she was unable to work as she was required to by the RTW Plan. Further I am satisfied that Ms Gallop was fully aware of her obligations to seek authorisation from Mr Smith if she was to be absent and of the notification requirements set out in the return to work plans.

[58] Whilst it is not clear why Ms Gallop did not work the hours she was rostered to if indeed this was because of her medical condition then she had both the duty and the opportunity to advise the respondent of this. I find there is no evidence that having not attended to work as rostered or having left early, that on the next day she worked or indeed at anytime thereafter that Ms Gallop notified anybody in authority that she had not worked her rostered hours on the previous day or days.

[59] I find that Ms Gallop consequently was paid for the hours rostered on these 10 particular days as if she worked all these hours which was not the case. I also find that Ms Gallop having been paid by the respondent for her rostered hours did not advise the respondent that this payment was incorrect because she had not worked all of these hours.

Consideration

[60] As mentioned previously the applicable criteria to be applied in this matter are those set out in the Act out to determine whether a dismissal of an employee is harsh, unjust or unreasonable. These are,

(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.

Valid reason

[61] Ms Gallop on 11 and 12 June 2014, days she was rostered to work, did not attend for work at all and on another eight days in June 2014 did not work her full rostered hours.

[62] Ms Gallop was not authorised to be absent on any of these occasions and did not on any of these days comply with the obligations to notify her employer generally nor comply with the obligations on her to notify Alcoa specified in her RTW Plan.

[63] Ms Gallop having been paid for hours she did not work at no time thereafter advised the respondent of this overpayment.

Notification of the reason

[64] Ms Gallop was notified of the proposed reason for her dismissal in writing and in a meeting on 25 July 2014.

Opportunity to respond

[65] Ms Gallop had an opportunity to respond to the reasons for which she was likely to be dismissed and gave written responses on 11 and 14 June 2014 and had a further opportunity to do so at the meeting on 25 July 2014.

Support person

[66] There was no refusal to allow Ms Gallop to have a support person present during discussions that related to her likely dismissal.

Performance warnings

[67] This is not applicable in this case.

Size of the enterprise

[68] The respondent is a large enterprise and the procedure adopted in this case was as would be expected in an enterprise of this size.

Human resource specialists

[69] The respondent does have dedicated human resource specialists and these were involved in this matter and consequently the procedure adopted is also as would be expected.

Other relevant matters

[70] At the time of these events Ms Gallop had been cleared by all of the relevant medical practitioners, including her own specialist, Alcoa’s Occupational Physician and an independent medical expert, to return to work. However it is clear that Ms Gallop had throughout this period not fully recovered from her medical problems and this return to work was to be a very gradual process.

[71] The RTW Plans involved a highly supportive approach, were developed in consultation with Ms Gallop and involved significant concession by her employer to assist her return to full time work.

[72] The notification requirements in the RTW Plans were to ensure that if her medical condition was preventing her from attending for work Alcoa would be aware of this and so could modify the plan to accommodate this. Notification of such difficulties would also ensure that the work required of Ms Gallop was not exacerbating her condition.

[73] Alcoa had been accommodating of Ms Gallop’s health problems and the RTW Plans were for Ms Gallop’s benefit.

[74] In these circumstances Ms Gallop’s medical condition is not a matter that excuses her conduct and does not weigh in favour of finding the dismissal was harsh, unjust or unreasonable.

[75] The letter to Ms Gallop dated 9 May 2014 from Mr Smith was sent following Ms Gallop’s poor compliance with her then RTW Plan. The letter reinforced the notification requirements in the RTW Plans and the need to have absences or leave approved by Mr Smith. Importantly the letter warned Ms Gallop that she was expected to meet her obligation in the RTW Plan to attend work and that not cooperating with the RTW Plan could lead to termination of her employment. Clearly Ms Gallop was on notice as to the consequence of not attending as required and of ignoring the requirements to seek approval for absences or ignoring her notification obligations.

[76] Ms Gallop has been employed since September 2012.

Conclusion

[77] Considering the relevant criteria in the circumstances of this case I find the decision to dismiss Ms Gallop is not harsh, unjust or unreasonable and so will not be unfair.

COMMISSIONER

Appearances:

E Douglas from the applicant.

W Milward of Heelan & Co. Industrial Relations and Management for the respondent.

Hearing details:

2014.

Perth:

November 19, 20.

 1   Exhibit R1, Annexure 8.

 2   Exhibit A1, Annexure SG8.

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