The Australian Workers' Union v Alcoa World Alumina Australia Limited

[2013] FWC 9215

[2013] FWC 9215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Alcoa World Alumina Australia Limited
(C2013/1632)

COMMISSIONER WILLIAMS PERTH, 5 DECEMBER 2013

Application to deal with a dispute.

[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 2011 [AE883477] (the Agreement).

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

“18. DISCIPLINARY PROCEDURES

(a) Disciplinary action up to and including suspension without pay or termination may be applied at times at the discretion of the Company. Prior to the application of the discipline, where the employee elects to have a representative, the form of discipline will be discussed with their Representative (e.g. Shop Steward or Site Convenor).

(b) 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).

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

(d) If the Company takes a decision to dismiss an employee, the Union shall be notified prior to the dismissal taking effect and may put the matter in dispute. If, prior to the termination being activated, the Union has chosen to put the matter in dispute (which is agreed to be the only time the Union can do so under this Agreement), the case will be referred for immediate arbitration under 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.

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

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

(g) 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 (d) 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] The employee in this instance Mr Baker has not yet been dismissed however Alcoa have written to him advising they consider the termination of his employment is justified.

[6] In summary the Commission’s role in resolving this dispute is to decide whether in all the circumstances the imminent dismissal of Mr Baker 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] The employee Alcoa intends to dismiss is Mr Baker.

[8] Mr Baker is employed by Alcoa in its mining operations at its Huntley mine site.

[9] Mr Baker is a Senior Equipment Operator who operates a variety of mobile equipment including large dozers, graders, excavators and dump trucks.

[10] His roster involves 12 hour day and 12 hour night shifts.

[11] On the evening of 8 September 2013 at around 6.45 p.m. Mr Baker rang his Supervisor to advise he was sick and unable to work that night shift beginning at 7.00 p.m.

[12] Alcoa subsequently investigated the circumstances of Mr Baker’s not working this night shift and as part of this investigation reviewed another occasion in July 2013 when Mr Baker did not work a rostered night shift due to illness or injury. Following this investigation Alcoa concluded that Mr Baker should be terminated.

Factual findings

[13] Having considered the evidence of all the witnesses in this matter I make the factual findings set out below.

[14] Mr Baker was employed by Alcoa in February 2007. Mr Baker is engaged as a Senior Equipment Operator and operates mobile equipment including dozers, graders, excavators and dump trucks at Alcoa’s Huntley mine site.

[15] On 25 July 2013 Mr Baker experienced lower back pain whilst at work. He was assessed by Alcoa’s on-site doctors and advised he was fit to return to his normal duties without treatment.

[16] On the following morning Friday, 26 July 2013 the applicant had an appointment with a chiropractor because he was sore in his lower back and neck and was getting headaches. The applicant regularly receives chiropractic adjustments and has done so for a number of years.

[17] The chiropractor gave the applicant a certificate that he would be unfit for normal duties until 29 July 2013.

[18] Mr Baker advised the respondent that he was unfit to attend work for his rostered night shift beginning at 7.00 p.m. that Friday, 26 July 2013 and subsequently provided the respondent with the chiropractor’s certificate. The applicant was paid sick leave for the shift.

[19] When the applicant awoke the following day, Saturday, 27 July 2013, his back was feeling much better. The applicant that afternoon played a game of Australian Rules Football for the Boddington Football Club. The start time of the game was less than eight hours after the end of the night shift which he had advised the respondent he was unfit to work.

[20] Mr Baker attended the chiropractor again on Monday, 29 July 2013 and Wednesday, 31 July 2013 before returning to work for his next rostered shift which was on Friday, 2 August 2013.

[21] The respondent did not raise any concerns with Mr Baker regarding these events until after 8 September 2013.

[22] On Saturday, 7 September 2013 Mr Baker worked a 12 hour night shift which ended at 7.00 a.m. on Sunday, 8 September 2013.

[23] That Sunday the Boddington Football Club was to play a finals game in the town of Wagin which is approximately 200 kilometres by road from the Huntley mine site.

[24] Mr Baker made arrangements in advance with his family with the intention that he would play football for his team in this game. Mr Baker at the time was fully aware that he was rostered to work the night shift that same day, commencing at 7.00 p.m.

[25] I find that by 6.45 p.m. that Sunday evening the most sleep Mr Baker would have had was four hours. Approximately half of this would have been in the car driven by his father during the morning drive from the Huntley mine site and the balance at his grandmother’s house.

[26] When he woke from sleeping at his grandmother’s house Mr Baker prepared himself to go to the football ground and at this stage felt unwell.

[27] I prefer the evidence of Mr Williams the President of the Boddington Football Club over the evidence of Mr Baker as to when he arrived at the football ground and find that Mr Baker arrived at the ground at no later than 1.00 p.m.

[28] Having arrived at the football ground Mr Baker felt quite ill. Mr Baker vomited before the game commenced. Mr Baker chose to play the game notwithstanding he was feeling quite ill. He vomited a number of times during the game and after the game and was having difficulty holding down water during the game. Mr Baker was sufficiently unwell that he was unable to eat any food after the football game.

[29] I find that Mr Baker was sick and had been vomiting before, during and after the football game on Sunday, 8 September 2013.

[30] Mr Baker’s evidence to this effect was confirmed by the evidence of Mr Williams during the hearing of this application and by the unsworn statement of Ros, a Trainer for the Boddington Football Club both of whom, at the request of the applicant, had provided written statements to that effect to the respondent during its investigation.

[31] Notwithstanding his illness Mr Baker played for a significant part of the football game however he was playing well below his normal standard.

[32] At 6.45 p.m. on Sunday, 8 September 2013 Mr Baker rang the Group Leader responsible for his shift Mr Hulme. Mr Baker had not called earlier because he had difficulties with his mobile phone.

[33] Prior to Mr Baker speaking to Mr Hulme he had been advised by another of Alcoa’s staff that a radio broadcast of the football game that afternoon mentioned Mr Baker was playing. The staff member told Mr Hulme that the game had finished about 5.00 p.m. and that he doubted Mr Baker would get back to work on time.

[34] The phone conversation at 6.45 p.m. between Mr Baker and Mr Hulme was reported 1 by Mr Hulme to have been as follows (note Mr Baker is “Dan”):

“Dan said “I have been up since about 1pm vomiting and would not be in tonight.”

I said “You had a good game though hey”

Dan said “No I have been sick”

I replied and said “Dan how hard is it going to be looking on Sporting Pulse for the truth.”

Dan said “No he has been sick”.

I said “OK Dan I will catch you later”.”

[35] Mr Hulme at the time of this conversation did not believe that Mr Baker was telling the truth. Mr Hulme believed that the reason Mr Baker was not going to work the night shift was because he had played football that afternoon and Mr Hulme did not believe Mr Baker was sick.

[36] The next day Monday, 9 September 2013 Mr Baker saw a doctor who on Mr Baker’s self-reported symptoms suggested he may have had food poisoning the previous day and provided him with a certificate stating he was unfit to work that Monday.

[37] The applicant’s next rostered shift was Saturday, 14 September 2013 and the respondent attended and worked as rostered.

[38] A meeting was arranged that day by Mr Milward Alcoa’s Development and Rehabilitation Supervisor. In attendance was Mr Baker accompanied by Mr Ellar, the AWU Shop Steward, and Mr Milward accompanied by Mr Thompson another of Alcoa’s Group Leaders. Mr Thompson took notes of the meeting.

[39] The first part of the meeting dealt with a concern Mr Milward had about how Mr Baker had been raising safety issues on site. This was not a disciplinary or counselling session and as an informal discussion notes were not made of this part of the meeting.

[40] The second part of the meeting dealt with the events of 8 September 2013. The notes of that meeting, which I accept are not a verbatim record, were made by Mr Thompson 2.

[41] It is Alcoa’s view that during its investigation Mr Baker did not readily and openly disclose he had played football on 8 September 2013.

[42] Relevantly the notes of that meeting are as follows:

“Craig Milward opened discussion that Daniel Baker gave a doctor's note to Rob Thomson before morning crew meeting on the 14/9/13 and that Daniel rang in at 6.45 pm complaining of vomiting and such late notice impacted on the business needs.

DB: my phone was playing up and deleted my contacts it took a while to locate my numbers

GE: said early phone in cant always guarantee work coverage

CM: you realise you have no sick days left when did you go to the doctor

DB: Monday morning

GE: supposed to go to emergency on day of illness but not always treatable

CM: explained to DB to be completely honest to what transpired that day

DB: I had a lift organised to take me to my Grandparents house where I had my work gear and would be sleeping before I played footy. Started vomiting about when I woke up (1 -1.30) didn't want to play footy. Did warm up to late to pull out of game

CM: You lied to Paul in phone conversation

DB: I didn’t lie I was sick and I didn't want to argue the point as I was not feeling well

CM: Discussed record of phone conversation Daniel had with Paul

CM: pointed out Wagin was at least 2 hours from work and that Daniel had no intentions of turning up for work (Footy finishing at 5pm at earliest)

DB: I have never been late for work...”(Underlining added)

[43] Having considered the evidence about this meeting which includes the evidence of Mr Baker, Mr Ellar and Mr Milward I am satisfied that this record of the meeting taken by Mr Thompson does record what was said.

[44] I therefore find that the two preliminary questions Mr Milward asked at this meeting had nothing to do with whether or not Mr Baker had played football and were reasonably answered by Mr Baker.

[45] After this when Mr Milward asked Mr Baker to be completely honest as to what transpired that day and Mr Baker then replied with his explanation which included the fact that he had played football that day.

[46] I find that during this meeting Mr Baker did explain that he had played football on Sunday, 8 September 2013 and did not conceal this fact. Mr Baker during that meeting, consistent with what he told Mr Hulme on the day in question, explained that the reason he did not come to work for his night shift on 8 September 2013 was because he was sick. The fact he had played football that afternoon was not the reason he was ringing to say he could not work.

[47] It is apparent from this meeting that the respondent’s staff strongly suspected that Mr Baker had never intended to work his night shift after playing football.

[48] A formal disciplinary interview was held with Mr Baker on 18 September 2013. I accept the evidence of Mr Milward 3 that Mr Baker repeated substantially the same information he had in the meeting held on 14 September 2013. However Mr Baker did acknowledge that he had an obligation to properly prepare himself in terms of being fit for work and that in hindsight his decision to play football on 8 September 2013 was probably not the correct decision.

[49] The written statements of Mr Williams the Boddington Football Club President and Ros the Boddington Football Club Trainer stating that Mr Baker had been vomiting and unwell on 8 September 2013 were provided to the respondent’s staff on 19 September 2013.

[50] The respondent’s next action was to send Mr Baker a show cause letter on 27 September 2013 which reads:

“We write further to your non-attendance at work on Friday 26 July 2013 and Sunday 8 September 2013.

As you are aware, Alcoa has conducted an inquiry into concerns regarding the reasons for your absence from work for those 2 shifts. Alcoa has now completed its inquiry and has reached the conclusions, based on the information obtained during the inquiry, that you:

1. Failed to attend your rostered night shift on Friday 26 July 2013 notwithstanding that you were fit enough to perform your duties. This conclusion has been reached given that you were able to play a game of a football less than 8 hours after the scheduled end of your rostered shift of work,

2. Failed to attend your rostered night shift on Sunday 8 September 2013 in circumstances where you should have been fit enough to perform your duties. This conclusion has been reached given that you were elected to play and completed a game of a football, which concluded only 2 hours before the scheduled start of your rostered shift of work,

3. You misled your Group Leader and initially also your Supervisor regarding your alleged illness on 8 September 2013

4. You sought to mislead your Group Leader and Supervisor about the fact that you had played football on 8 September 2013,

Alcoa considers that your conduct, in terms of the regard that you have for the performance of your duties, in comparison to playing football, is entirely inappropriate and inconsistent with the following:

● Alcoa’s Value of Integrity “being open, honest and trustworthy” — which you weren't with your Group Leader and Supervisor;

● Alcoa’s Value of Excellence “relentlessly pursue excellence in everything we do, every day” — which your conduct generally failed to meet;

● Alcoa’s clear expectations in relation to the reporting of any absence, namely that it be undertaken as soon as is reasonably practicable and explained — which you failed to do;

● Alcoa’s Organisational Standard which requires employees to make every effort to achieve the expected levels of performance - which you failed to do by electing to play football on 8 September 2013, instead of properly preparing for your next shift;

● Alcoa’s Fatigue Management Policy which requires employees to.

○ arrive at work sufficiently rested;

○ ensure adequate sleep is obtained between shifts; and

○ ensure out of hours activities do not cause fatigue or impair performance.

Employees are further required to report any failures related to their supervisor/manager.

● The duties of mutual trust and confidence, as well as fidelity and good faith — as both instances represented a failure by you to correctly appraise your employer of the true circumstances of your situation, leading to a break down in the trust which the Company is able to place in you with respect to your employment.

At its worst, your conduct could be considered to have also involved the falsification of time keeping records, by claiming sick leave to which you were not entitled, conduct which is considered to be serious misconduct under Alcoa's Organisational Standard.

Given the travel time associated with driving from Wagin to the Huntly mine, Alcoa doubts that you had any intention of attending for your rostered shift on the night of 8 September 2013, given that the distance and on-line travel time estimates indicate it would not have been possible for you to have been ready to commence work at the commencement of that shift.

Having considered all of the circumstances of your conduct, including your concession that you had a duty to conduct yourself in a manner that maximised your chances of being ready and able to attend work, but instead made the decision to play football on Sunday afternoon without (as you described it) even thinking about work, Alcoa believes that your conduct warrants the termination of your employment.

However, prior to making a final decision on your employment, you are being provided with an opportunity to provide any reasons, including any mitigating circumstances, as to why your employment should not be terminated. Your response should address the areas of non-compliance with Alcoa policy and expectation set out above. If you require any assistance with understanding or obtaining those expectations, please contact me immediately.

You are required to provide any such reasons. in writing, by not later than Wednesday 2nd October 2013, ahead of a meeting which has been scheduled for Friday 4th October 2013 at midday. The meeting will be held at McCoy. We confirm that you are entitled to attend the meeting with a support person, including a representative of the union.

Any reasons which you provide in response to this letter, or at the meeting, will be taken into account by Alcoa prior to making a final decision on your employment...”

[51] Mr Baker replied on 1 October as follows:

“As requested, I write in response to Alcoa’s letter dated September 27th 2013.

In this letter I will respond to the best of my ability in an open and truthful manner. I will address the areas where Alcoa believe I have been non-compliant with Company policy and the exceptions contained within your letter.

I will provide key reasons, supporting information and particular facts that might be currently unknown to the Company.

I understand that prior to Alcoa making a final decision on my employment that this letter is an important opportunity for myself to demonstrate and clearly explain why my employment should not be terminated.

1.

I was unable to attend work on Friday the 26th of July as I had an extremely sore back and neck. I took the action to attend a chiropractor for treatment and received a required re-adjustment. The chiropractor advised that I should rest and let my back settle, which I did for the rest of that day and evening.

2.

In regards to my September 8th absence, it was my complete intention to attend work. It certainly was my intent to attend work on time and without incident.

However, on this occasion due to becoming unwell (food poisoning) I was unfortunately unable to attend my shift. Clearly, my sickness was not related to football in any way.

The following day at around 10.30am I had a Doctors appointment, where the Doctor confirmed my food poisoning and provided me with a sickness certificate.

I have attached 2 documents supporting in writing my level of sickness on the day in question.

3.

I believe I made no attempt to mislead my Group Leader. I simply phoned the Group Leader before my shift at 6.45pm to advise him that I was unwell and was unable to attend my shift. I was in no position to answer any other questions due to the level of my sickness at the time.

4.

Regarding fatigue management. I often wake up in-between night shifts at between 1 – 1.30pm and usually swim a few laps at the pool. Physical activity after my sleep is not uncommon and has never before been an issue impacting my readiness to attend work. In fact, physical activity helps me prevent fatigue.

5.

I have lived in Wagin and travelled the distance many times. I am aware of how long it takes for me to perform this drive. If I had been well on September 8th, I expected to drive from Wagin to work and arrive for my shift on time.

In hindsight the situation I placed myself in may not have been ideal. I recognise that I have commitments to the company that I need to be mindful and respectful of.

I am committed to being more appropriately conscientious and proactive in future regarding my physical readiness to attend shift.”

[52] Alcoa replied as follows on 2 October 2013:

“We write further to your response, dated 1 October 2013, to our letter of 27 September 2013 which was issued to you in relation to your recent conduct.

We have read your response and are concerned that you have failed to adequately address the following concerns, which were set out in our letter as follows:

1. You have not explained how it was, given that you had been declared unfit for work for 3 days on 26 July 2013, that you were able to play a game of a football on 27 July 2013 less than 8 hours after the scheduled end of your rostered shift of work.

2. You have not explained how it is that your decision to play football did not or could not exacerbate your illness, so as to cause you to not be fit enough to perform your duties.

3. You have only disagreed with the conclusions reached by the Company about misleading conduct on your part, following the inquiry, but you have not provided any explanation as to why those conclusions are incorrect.

4. You have not addressed how your conduct could be regarded as consistent with any of Alcoa's Values or other expectations, as set out in the letter.

5. Specifically you have not addressed how it is that your conduct, in playing a full game of football — as opposed to your hypothetica1 example of swimming a few laps - represented compliance with your obligations to prepare properly for work and ensure compliance with fatigue management requirements.

If you believe that your initial response may warrant greater explanation, we are prepared to provide you until 2pm on Friday, 4 October 2013 to provide any further response. However, if you feel that you have already addressed these matters to your satisfaction, then no further response is required.

In light of this, please be advised that we have decided to reschedule the meeting, which had been arranged for Friday 4 October 2013. This meeting will now be held at 10.30am on Monday 7 October 2013 at McCoy.

Any further information which you provide in response to this letter, or at the meeting, will be taken into account by Alcoa prior to making a final decision on your employment. If you have any queries, or difficulties related to the above timeframes, please do not hesitate to contact me...”

[53] Mr Baker did not provide anything further in writing to Alcoa. Mr Robinson the Operations Manager met with Mr Baker and his AWU representative on 7 October 2013. Mr Baker was given the opportunity to add anything further to what he had previously said and written but did not provide any additional information. Mr Robinson then advised him that as foreshadowed he was to be dismissed and handed him a letter notifying him of his future termination. This letter reads as follows:

“7 October 2013

PRIVATE & CONFIDENTIAL

Mr Daniel Baker

To be delivered by hand

Dear Daniel,

TERMINATION OF EMPLOYMENT WITH ALCOA WORLD ALUMINA AUSTRALIA

We write further to our recent inquiry into allegations of inappropriate conduct related to the interaction of your commitments to work and your desire to play football.

Further to our correspondence of 27 September and 2 October 2013, in which you were given opportunities to provide justification as to why (based on the conclusions which had been reached about your conduct) your employment with Alcoa should not be terminated, we confirm that you provided a single response, dated 1 October 2013, which you were advised did not address a number of the Company’s concerns.

We have taken the opportunity to review all of the information obtained as a result of the inquiry, including your response. Having considered your conduct, and your employment history, Alcoa has concluded that your ongoing employment as a Mobile Equipment Operator is untenable because your conduct demonstrates that you consider your commitment to football to be more important than your employment. Whilst there are a number of employers, where such a commitment may co-exist without adversely affecting your employment, your role with Alcoa is not one of the.

Given the structure of your roster, on a 12 hour rotating shift and the relatively independent nature of the role which you perform, trust, confidence and compliance with appropriate safety protocols are essential elements of the employment relationship.

Your conduct, in:

● Electing to play football in circumstances where you were already unwell was clearly inconsistent with:

○ Alcoa’s Organisational Standard which requires employees to make every effort to achieve the expected levels of performance: and

○ Alcoa’s Fatigue Management Policy which require you to:

n arrive at work sufficiently rested;

n ensure adequate sleep is obtained between shifts; and

n ensure out of hours activities do not cause fatigue or impair performance;

n report any failures to your supervisor/manager.

● Deliberately seeking to downplay your activities on Sunday 8 September 2013 during the conversation with your Group Leader, was inconsistent with Alcoa’s Value of Integrity “being open, honest and trustworthy”;

● Failing to ensure that you were in a position to and did meet Alcoa's clear expectations in relation to the reporting of any absence, by doing so as soon as is reasonably practicable;

was inconsistent with Alcoa's reasonable expectations.

Overall your conduct has been inconsistent with:

● Alcoa’s Value of Excellence which required you to “relentlessly pursue excellence in everything we do, every day”;

● The duties of mutual trust and confidence, as well as fidelity and good faith — by seeking to misrepresent the true circumstances of your situation in relation to both the July and September incidents

and has led to a break down in the trust which the Company is able to place in you with respect to your employment and therefore permanently damaged the relationship.

As a result, Alcoa considers that the termination of your employment is justified.”

[54] Mr Robinson was the decision maker whom decided that Mr Baker should be dismissed. Mr Robinson’s views of the matter are explained in his statement as follows 4:

“On 1 October 2013 I received a written response from Mr Baker in relation to the show cause letter (Attachment 3). After giving careful consideration to Mr Baker’s response, I formed the view that Mr Baker had failed to adequately respond to the questions put to him in the show cause letter. I formed this view because Mr Baker had:

a) failed to adequately explain the circumstances of 26 and 27 July 2013 given that;

– he had not mentioned that he had been cleared by Alcoa’s medical staff on the day of the alleged injury;

– he had apparently been told to rest for 3 days but only chose to rest during his rostered night shift on 26 July 2013 and not the following day when he decided to play a game of football, which was less than 8 hours after the scheduled end of that night shift;

b) failed to explain how despite being unwell and vomiting on 8 September 2013 he had been well enough to play a game of football in Wagin but yet was not well enough to attend his rostered night shift commencing at 7.00pm that night;

c) failed to explain how he was ever going to be in a position to attend work on time based on his claim that he had always intended to attend for work given the time his football match apparently finished and the time it would take to drive from Wagin to the mine;

d) failed to explain how his comments during the discussions with his Supervisor or his Group Leader regarding his alleged illness on 8 September 2013 did not amount to him lying or being untruthful;

e) failed to explain how his conduct was compliant with Alcoa’s expectations regarding his behaviour, including most relevantly the Fatigue Management Policy, on which he had been trained less than 2 years ago.”

[55] Mr Baker has attended a one-day training session on fatigue management. That training was to supplement Alcoa’s Fatigue Management Policy and Mr Baker completed this session in November 2011.

[56] Mr Baker was familiar with a range of the fatigue management issues that the training dealt with 5.

[57] Mr Baker’s own evidence which has not been challenged and I accept is that on previous occasions he has played games of football in between two night shifts however this was at locations significantly closer to the Huntly mine site and so involved less time travelling in both directions. On these occasions he has worked the second night shift as rostered.

Applicable principles

[58] An employee has been unfairly dismissed if their dismissal is harsh, unjust or unreasonable.

[59] The matters to be taken into account when considering whether an employee’s dismissal is harsh, unjust or unreasonable 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

[60] In Michael King v Freshmore (Vic) Pty Ltd 6 a Full Bench of the Commission considered the task the Commission is required by the legislation to undertake in matters such as this and determined it to be as follows:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” (Underlining added)

[61] Given this I am required to myself decide on the evidence adduced in the hearing whether particular conduct occurred.

[62] In terms of Mr Baker’s actions on 26 and 27 July 2013 the fact that Mr Baker did not work his rostered night shift on 26 July 2013 is fully explained by the fact that he was not fit to do so. This fact was confirmed by the chiropractor’s certificate.

[63] Whilst I understand why Alcoa had doubts as to how sick Mr Baker really was, given he played football the next day, that suspicion is not a sufficient basis on which to conclude that contrary to the chiropractor’s certificate he was actually fit to work his shift the previous evening.

[64] Mr Baker’s decision to play football that Saturday, accepting that he woke feeling better than he had been the previous day, may not have been consistent with his chiropractor’s advice however this decision had no impact on Alcoa because he was not rostered to work again until 2 August 2013 and he did in any event attend for work for this shift as rostered.

[65] These events on 26 and 27 July 2013 do not provide a valid reason for Mr Baker’s dismissal.

[66] With regard to the phone discussion with Mr Hulme his Group Leader at 6.45 p.m. on Sunday, 8 September 2013 Mr Baker rang and told Mr Hulme he was sick and so would not be in to work. The evidence demonstrates that Mr Baker had indeed been unwell that day and so what he had told Mr Hulme was the truth.

[67] Mr Hulme however was already aware that Mr Baker had been playing football at Wagin and because of this quite reasonably doubted that Mr Baker would be able to start his shift on time. As a result of this background knowledge Mr Hulme did not readily accept what Mr Baker was saying to him was true. Mr Hulme questioned Mr Baker about playing football, implying that this was the real reason he was not going to attend for work. Mr Baker’s response was to reject this and repeat that he was not going to be able to come into work because he was sick.

[68] Consequently the evidence does not support the conclusion that Mr Baker was lying or being untruthful. Mr Baker’s conversation with Mr Hulme does not involve any valid reason for dismissal.

[69] Similarly I do not accept that Mr Baker’s responses during the investigation meetings amounted to him failing to be open or to readily disclose the fact that he had played football that Sunday.

[70] The situation was that Mr Baker was fully aware because of his phone discussion with Mr Hulme that Mr Hulme knew he had played football that day. When he was asked by Mr Milward during the first investigation meeting to give his account of the day he freely explained that he had played football. Again there is nothing in Mr Baker’s responses during the investigation that amounts to a valid reason for his dismissal.

[71] Implicit I think in Alcoa’s decision to dismiss Mr Baker is that it has concluded that he never intended returning to work for his night shift after he played football on 8 September 2013.

[72] Alcoa’s suspicion about this is in my view is quite understandable.

[73] Mr Baker had gone to considerable lengths to make arrangements so that he could play this football game having finished his night shift at 7.00 a.m. on the Sunday. Ignoring for the moment the fact that he became unwell during the day, it is apparent that he had made no provision in those arrangements to ensure he would be able to return to the Huntly mine site in time for the 7.00 p.m. start of his night shift. Quite obviously achieving this was made difficult by the fact that he remained at the football ground until the game had ended around 5.00 p.m.

[74] The distance by road from the football ground to his workplace is approximately 200km. A prudent employee fully intending to return to work at 7.00 p.m. that night would have ensured that he left the football ground before the game finished to ensure that there was more than sufficient time to drive the distance back to the workplace. Mr Baker did not do this indeed he also stopped for some time enroute at the town of Boddington which inevitably would have further delayed his arrival at the Huntly mine site.

[75] Alcoa in the circumstances had good reason to have doubts about Mr Baker’s intention to work as rostered at all. If Mr Baker had not been sick the obvious likely consequences of his actions on the Sunday were that that he simply would not have got back to the Huntly mine site in time to commence his night shift at 7.00 p.m. Mr Baker would have been late for work.

[76] Whilst Alcoa understandably was highly suspicious of Mr Baker’s intentions there is no evidence which demonstrates that Mr Baker never intended to work his night shift on Sunday, 8 September 2013. This suspicion about Mr Baker’s intention is also not a valid reason for his dismissal.

[77] Mr Baker made a conscious decision to play football between two rostered night shifts and made plans so that he would be able to do this. Between the end of the Saturday night shift and the start of the Sunday night shift 12 hours later Mr Baker had at most four hours sleep, half of which was as a passenger in a car and he had played a game of Australian Rules Football.

[78] Mr Baker accepts that perhaps he made a poor decision in choosing to do this.

[79] Mr Baker knowingly created circumstances where he would have resumed work not sufficiently rested and this potentially would have adversely affected the health and safety of himself and others in the workplace. I am satisfied that Mr Baker’s actions in this regard were absolutely contrary to his obligations as an employee under the respondent’s Fatigue Management Policy. I agree with Alcoa’s assessment that Mr Baker clearly put his interest in playing football above his obligations to his employer.

[80] If in these circumstances Mr Baker had worked the night shift as he says he planned this would have posed a risk to the safety and welfare of him and other employees. Mr Baker’s conduct in planning to play football between two rostered night shifts in the particular circumstances of this case clearly was a valid reason for his dismissal.

Procedural matters

[81] Mr Baker was notified of the reason the employer was considering dismissing him before he was dismissed and he was given more than one opportunity to respond to those reasons and in fact did so.

[82] There was no refusal by the employer to allow Mr Baker to have a support person present to assist in the discussions relating to dismissal. In fact Mr Baker was assisted by union representatives throughout Alcoa’s investigation and in all meetings regarding this matter.

[83] The dismissal did not relate to unsatisfactory performance.

[84] The fact that Mr Robinson had at the final termination meeting already drafted and signed a letter of termination does not in the circumstances of this matter amount to any procedural deficiency. Mr Baker was advised in advance that there would be this final meeting and attended that meeting with his union representative. He was asked whether he had anything further he wished to put to his employer but he had nothing further to say. Mr Robinson then immediately provided him with the pre-prepared letter of termination.

[85] In my view there is nothing wrong with an employer being properly prepared, as was the case here, to provide the employee with a letter of termination if that does become the outcome of the meeting. If Mr Baker had said something that warranted the respondent reconsidering its foreshadowed decision then Mr Robinson could have done exactly that and chosen not to give given Mr Baker the letter of termination.

[86] There were no procedural deficiencies in Alcoa’s actions.

[87] The procedures followed in effecting the dismissal were consistent with the size of the respondent’s enterprise and the fact that they do have access to dedicated human resource management specialists and expertise.

Other relevant matters

[88] Mr Baker has been employed for over six and a half years with the respondent. There is no evidence that Mr Baker has been the subject of previous complaint by the respondent of any significance and in particular nothing of a similar nature to the concerns raised by Alcoa in this instance.

Conclusion

[89] Mr Baker chose to play football between two rostered night shifts. Whilst he had done this previously in this case in the 12 hours between the finish and start of the two night shifts Mr Baker had not only played football but had only been able to sleep for at the most four hours; half of which was as a passenger in a car.

[90] In choosing to do this he deliberately placed himself in a situation where he would have resumed work not sufficiently rested and this potentially would have adversely affected the health and safety of himself and others in the workplace.

[91] As I have previously decided Mr Baker’s conduct in this regard is a valid reason for his dismissal.

[92] However it is well established that the existence of a valid reason for dismissal of itself does not determine that a dismissal would be fair 7.

[93] The other criteria specified in section 387 (b) to (h) of the Act must be taken into consideration. Those under (b) to (g) have been considered above.

[94] In terms of (h), other matters the Commission considers relevant, the facts are that Mr Baker accepts that perhaps he made a poor decision in choosing to play football in these circumstances and to this extent appreciates his actions were wrong and contrary to his obligations under Alcoa’s Fatigue Management Policy. In addition Mr Baker has also been employed for over six and a half years and his work record is only blemished by a note of one formal counselling. These relevant matters are to be considered in this case and favour finding the dismissal was unfair.

[95] In addition in this case it seems that the outcome of dismissal would be disproportionate to Mr Baker’s misconduct which I have concluded on the evidence before the Commission is limited to not ensuring he would be sufficiently rested before starting his night shift as required by the Fatigue Management Policy.

[96] In my view then to dismiss Mr Baker in all the circumstances of this case would be harsh and so such a dismissal would be unfair.

COMMISSIONER

Appearances:

E Douglas on behalf of the applicant.

W Milward of Heelan and Co for the respondent.

Hearing details:

2013.

Perth:

November 14 and 15.

 1   Exhibit R2, Attachment 2.

 2   Exhibit A3, Attachment GE-1.

 3   Exhibit R2 at paragraph 38.

 4   Exhibit R3 at paragraph 22.

 5   Transcript at PN613 - PN621.

 6   17 March 2000, Print S4123.

 7   I.W. McLauchlan v Australia Meat Holdings,5 June 1998, 84 IR 1.

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