Troy Ahern v BM Alliance Coal Operations Pty Ltd T/A BMA

[2013] FWC 659

[2013] FWC 659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Ahern
v
BM Alliance Coal Operations Pty Ltd T/A BMA
(U2012/12150)

COMMISSIONER SPENCER BRISBANE, 29 JANUARY 2013

Unfair dismissal - s.394 - harsh, unjust or unreasonable - absenteeism - notice and evidence requirements

Introduction

[1] This determination relates to an application made by Mr Troy Ahern (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from BM Alliance Coal Operations Pty Ltd T/A BMA (the Respondent/the Employer) was harsh, unjust and or unreasonable.

[2] The matter was conciliated before a Fair Work Australia (FWA) Conciliator, but the matter did not settle. The matter came before the Tribunal, as presently constituted, for Arbitration and final determination.

[3] Directions were issued and the Parties filed their submissions and witness statements in the matter. A Hearing was convened in the Yeppoon Courthouse. The Parties requested to provide their final submissions at a further hearing in Brisbane.

[4] Whilst not all of the evidence and submissions in this matter are referred to in this decision all of such have been considered.

[5] The Applicant was represented by Mr Chris Newman of the Construction, Forestry, Mining and Energy Union (the CFMEU or Union). The Respondent was represented by Mr Michael Coonan of Herbert Smith Freehills.

[6] The Applicant sought that FWA grant an Order for reinstatement along with Orders providing for continuity of service and lost wages. In the alternative, the Applicant sought an Order for compensation.

Background

[7] The Applicant was employed with the Respondent at their Blackwater mine from approximately June of 2006. The Applicant was employed as an Assistant Shotfirer.

[8] The Applicant was diagnosed with a bi-polar disorder in approximately October 2010. The Applicant submitted that this disorder caused him to at times become extremely depressed to the point where he would not be able to work or “even be able to get out of bed.” 1

[9] The Applicant submitted that this disorder lead to “significant absences” 2 from work and that, despite providing information to the company about the disorder, (in accordance with required procedure) the Applicant was issued with a number of disciplinary warnings in late 2011, a “Step 3 - Final Warning” being provided on 16 December 2011. As a part of this disciplinary process, and in accordance with the Respondent’s warning procedure, the Applicant was placed on a performance management plan, regarding his absences from work. This plan required the Applicant to contact his supervisor as soon as possible, if he was unable to attend work. Further to this, he was required to provide a medical certificate or, where that was not reasonably practicable, a statutory declaration was to be provided for every absence.

[10] Throughout 2012 the Applicant continued to be absent from work for single days, which the Respondent agreed to pay as annual leave. 3 Whilst there was no evidence to this effect, the Respondent submitted that prior to the events leading to dismissal, the Applicant had been absent for 22 out of 90 days. The Applicant’s representative did not dispute this figure, but emphasised that the leave arose from a range of factors and was approved.

[11] On 6 July 2012 the Applicant was unwell with influenza and was unable to complete his entire shift. He informed his supervisor of this and left work. On 7 July the Applicant was still unwell and unable to attend for his shift. He contacted his supervisor, Mr Jeff Medlin, to advise that he would not be attending work due to illness.

[12] The Applicant advised that his partner had made attempts to make an appointment for the Applicant to attend at a doctor’s surgery, so that he could obtain a medical certificate. An appointment was not available for the Applicant until Tuesday 10 July. The Applicant advised his partner to make the booking but stated that this was misheard and an appointment was not made. 4 The Applicant alleged that he was not aware that an appointment had not been made until Tuesday 10 July 2012. Accordingly the Applicant stated that he completed a statutory declaration, as he could not get an appointment and as he was no longer sick, he was concerned that the doctor would not backdate the certificate.

[13] The Applicant returned to work on Sunday 8 July and informed his supervisor, Mr Medlin, that he would be attending a Doctor on Tuesday the 10th of July and would provide the required medical certificate for his absences, on his next day of work, being Friday 13 July 2012.

[14] The Applicant contended that as he was no longer suffering from “the flu” on Tuesday 10, he did not think it was appropriate or necessary for a doctor to certify that he was ill on Saturday 7 July. The Applicant decided to provide a statutory declaration in the circumstances, instead. The Applicant contacted Mr Mark McKenzie, another supervisor with the company, regarding this issue.

[15] On 13 July the Applicant attended for his shift and provided the statutory declaration to his supervisor, Mr Medlin. Later on that day, the Applicant was asked in writing to show cause, why his employment should not be terminated.

[16] The Respondent’s show cause letter in part stated:

“On the 16 December 2011 you were issued with a final written warning which stipulated you were required to improve your reliability and attend work for rostered shifts and would be required to provide a medical certificate where reasonably practicable should an unplanned absence occur. This was reinforced during meetings with your Supervisor on 19 June 2012 and 6 July 2012.”

[17] The Applicant responded to this letter advising that he did not believe he had committed misconduct and should not be terminated. The Applicant’s response in part states:

“As I have stated above, I am aware of the conversation I have had with my supervisors in November and December 2011 in which it was stated that for all future absences I was to provide a certificate medical practitioner or, where not practicable, a statutory declaration.

I honestly state that on 7 July I could not practicably attend a medical practitioner and that, in lieu of providing a certified, I provided a statutory declaration explaining my absence on the next Friday.

I believe that at all times I was complying with the instructions given to me by BMA. If I have not complied with these instructions, I sincerely apologise and I state that my attempts to comply were genuine and I did what I thought was correct.

I realise that as I am currently on a final warning and that if my actions were not correct, BMA could seek to terminate my employment. However, I hope that you take into consideration the fact that I did make an attempt to comply with what I thought was the correct procedure. I also state that if BMA decided not to terminate my employment, you can be assured that I shall follow the correct procedure regarding supplying the correct documentation for all future absences and I am aware that if I fail to follow procedure again BMA would have little option but to terminate by employment.

I have been employed with BMA for over 6 years and I have worked at the Blackwater mine for nearly 10 years. During this time I have not had any significant disciplinary history or issues with failing to follow directions. I enjoy my work at the Blackwater mine and wish to continue working for BMA for many years to come.

Finally I wish to state that a termination would have serious effects on myself and my family. I currently have 5 children under 14 years of age and my partner is pregnant. If my employment was to be terminated for misconduct I believe it would be difficult for me to find similar work in the mining industry and I would struggle to support my family.

I thank you for the time you have taken to read this letter and for taking what I have submitted into consideration and I hope to resume my reemployment with BMA ASAP.”

[18] The Applicant’s further submissions state “[O]n 26 July 2012 the Applicant met with the Respondent to discuss the show cause letter and his employment was subsequently terminated”.

[19] The Respondent’s letter of termination stated:  5

“Re: Termination of Employment

Further to our recent discussions, 13 July 2012, and our previous investigation and discussions, I wish to confirm the following:

● Your employment with BHP Coal Pty Ltd is to be terminated effective immediately by giving four weeks pay in lieu of notice.

● The reason for the termination of your employment is your consistent unreliability and lack of demonstrated commitment to improve your reliability which has been addressed by BMA Blackwater Mine since 2007 and more recently in your final written warning dated 16 December 2011...”

Relevant Provisions of the Legislation

[20] The relevant sections of the Act are sections 394, 387 and 391. They are set out as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

...

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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 FWA considers relevant.

[21] In respect of remedy, s.391 of the Act is relevant and reproduced below:

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

...

Order to restore lost pay

Summary of the Applicant’s Submissions and Evidence

[22] The Applicant submitted that his employment had been terminated, within the meaning of the Act, on 26 July 2012. The Applicant further submitted that the dismissal was harsh, unjust or unreasonable.

[23] The Applicant submitted that there was not a valid reason for the termination and that FWA must be satisfied that, in relation to a claim involving misconduct that the alleged conduct took place. 6 It was submitted on behalf of the Applicant that a reasonably held belief, on the part of a Respondent to a claim for unfair dismissal, is not sufficient in terms of a valid reason.7 Further, where the Respondent relies upon allegations of serious misconduct, the onus of proving such, shifts to the Respondent.8

[24] The Applicant contended that the Respondent was simply “going through the motions” 9 in proceeding to ask the Applicant to show cause. The Applicant submitted that the Employer should have taken the Applicant’s responses to the show cause into account and that if they had they done this, they should not have reached the conclusion that his employment should be terminated.

[25] The evidence of the Applicant was that at the time he was diagnosed with a bi-polar disorder, he was also going through a separation from his partner. It was his evidence, that his disorder would intensify matters to the point, where he would have trouble attending work or remembering to provide appropriate certification for days off. 10

[26] A meeting was held between the Applicant, his supervisor Mr Trevor Richards, Ms Sue Bartlam, the OH&S therapist, Ms Joyann Hudson, a HR representative and the acting Drill & Blast coordinator Mr Peter Naumann. It is not clear when this meeting took place, but it was sometime before December 2011. The Applicant’s evidence was that he believed that, Mr Naumann was not accepting of his illness, but that everyone else seemed “happy to assist...in...rehabilitation.” 11

[27] Not long after this meeting the Applicant received a “Step Three: Final Warning” for absenteeism, and for failing to provide certification of absences. During the first part of 2011, the Applicant was taking medications, which it was stated, needed to be ‘tweaked’ to suit the Applicant. It was submitted that this medication caused the Applicant, to have significant mood swings and this required the Applicant to take time off work.

[28] During the first 6 months of 2012, the Applicant had a number of “minor non-work related injuries”. These injuries caused the Applicant to be absent from work. As an example, the Applicant had 5 days off in late March 2012.

Summary of the Respondent’s Submissions and Evidence

[29] The Respondent submitted that clause 23.4.2 of the BHP Coal Pty Ltd Workplace Agreement 2007 (the Agreement), being the relevant Agreement at the time, applied in this situation. This clause provides:

“In the event that the Company is concerned that an employee is developing an apparent pattern of absences over a reasonable period of time, the Company may require the employee to provide a medical certificate from a registered health practitioner or where not reasonable practicable, a statutory declaration, on all future occasions where sick leave is claimed, which will be reviewed at least annually.”

[30] Further the Respondent pointed to clause 4 of Schedule G of the Agreement which provides:

‘Any absence without good and sufficient reason will result in the following:

Step 1 Discussion with supervisor and employee to go through actions required and outcomes noted.

Step 2 Discussion with supervisor and employee (with employee representative if requested). Outcome: Written Warning.

Step 3 Discussion with Department Manager, supervisor and employee (with employee representative if requested). Outcome: Final Written Warning.

Step 4 Discussion with Department Manager, supervisor and employee (with employee representative if requested). Outcome: Contract of Employment may be terminated.

12 months after being placed on a step of this procedure, the supervisor will have a discussion with the employee. If the employee’s attendance has been satisfactory over the 12 month period, the supervisor will move the employee back one step in the procedure, which will be recorded in the employees file.’

[31] The Respondent submitted a chronology of events. 12 This chronology corresponds with the outline of events provided by the Applicant in this matter, but submitted there are key differences, that are discussed later in this decision.

[32] The Respondent submitted that the Applicant had already been involved in “Step 2” and “Step 3” discussions in accordance with the disciplinary procedure in the Agreement set out above. The Respondent submitted that during the process it was drawn to the Applicant’s attention, that continued unacceptable absences may lead to the possible termination of employment.

[33] The Respondent identified that on 7 July 2012, the Applicant did call his supervisor Mr Medlin to advise of his absence, but that upon returning to work on 8 July 2012, the Applicant neither presented a medical certificate nor a statutory declaration. It was submitted however that on 8 July 2012, the Applicant did advise the Respondent that he had an appointment on 10 July 2012 with the doctor. It was noted however, that at this time the Applicant was reminded of the obligations of the final written warning, and the need to provide a medical certificate.

[34] The Respondent submitted that on 10 July 2012, the Applicant did not attend a medical appointment. At this time he called Mr Mark McKenzie (the Drill and Blast Scheduler), to inform him that he did not attend at the doctors, but had a statutory declaration. This statutory declaration was signed and provided to the Respondent on 13 July 2012.

[35] The Respondent primarily submitted that the response of the Applicant to the show cause notice was not accepted because of non-compliance with the Final Warning directions and because of the inconsistencies given in the Applicant’s reasons for not complying with his obligations arising from the warning procedure.

Consideration

[36] The following sets out the relevant considerations with respect to s387 of the Act.

S.387(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)

[37] The Applicant submitted that his actions were compliant with the requirements of the performance management plan. On the issue of contacting Mr McKenzie instead of Mr Medlin the Applicant submitted that this was not contrary to the Respondent’s instructions. The Applicant contended that he was only required to contact his immediate supervisor in relation to “times when the Applicant was unable to work”. 13 Further the Applicant submitted that the purpose of the call to Mr McKenzie was not to inform the Respondent he was unable to work, but to inform them that he was unable to supply a certificate and that he intended to supply a statutory declaration.

[38] The Applicant submitted that the instructions provided in the performance management plan were “broad” instructions that were not related to every matter concerning his illness. Rather, in the Applicant’s submission, they directed the employee only to who he was to contact if he was ill and could not attend work. Further the Applicant submitted that he was not required to contact the Employer at all, as he did, in advising that he could not provide a medical certificate. He stated however that he did so as he was reassuring the Respondent, that he took his employment seriously, as he was on a final warning.

[39] The Applicant also submitted that he did not contact Mr Medlin, being his immediate supervisor, on this occasion because Mr Medlin was not rostered to work. The Applicant submitted that it is BHP policy that if an Employee cannot contact their immediate supervisor they were to contact the supervisor above that.

[40] The Respondent submitted that the Applicant failed to provide a medical certificate in circumstances where it was reasonably practicable to do so and where he had undertaken (in accordance with the Agreement) specifically to do so. The explanations proffered by the Applicant to explain this failure to provide the medical certificate are in the Respondent’s submission, inconsistent and lacking in credibility.

[41] In contrast the Applicant’s representative pointed to the consistency of the Applicant’s reasoning regarding the provision of the statutory declaration and in his inability to obtain the medical certificate. The Reasons the Applicant provided were recorded in the notes of Mr Lynham from the meeting held with the Applicant.

[42] It was submitted by the Respondent that even if the Applicant did or did not have a medical appointment on 10 July 2012, he decided unilaterally not to make any further attempts to see a doctor. This made it clear to the Respondent that he had not made any further attempts to see a doctor and obtain the medical certificate. Further that when making this decision, the Applicant did not contact Mr Medlin (being the Applicant’s direct supervisor) or Mr Lynham (Mr Medlin’s supervisor) to advise of such. This decision was taken in circumstances where the Applicant was aware that his absenteeism was being managed in line with the provisions of the Agreement. It was reasonably open to the Application to obtain a medical certificate. He was under an onus to ensure one was provided when he took sick leave on 6 July. His approach was cavalier when viewed against his significant number of absences and the tolerance of the Employer to such.

[43] I find that there was a valid reason for the dismissal in that the Respondent had made significant attempts to outline their expectations to the Applicant regarding absenteeism and reliability particularly in relation to the circumstances of his duties and employment. There were alternatives open to the Applicant to obtain a medical certificate. These were explored in cross-examination with the Applicant and his approach to any of these alternatives was indifferent.

Section 387(b): whether the person was notified of that reason

[44] The Applicant conceded that he was notified of the show cause reasons prior to termination and was given sufficient time to respond to such, and that he was notified of the termination in writing.

[45] The Respondent submitted that the Applicant, was provided with a written warning on 30 June 2011 and a final written warning on 16 December 2011. Further it was submitted that discussions were also held with the Applicant prior to the issuing of these warnings which set out the concerns and expectations of the Respondent. However, whilst the Applicant conceded that he received written notification and an opportunity to respond, he submitted that the Respondent was simply ‘going through the motions’ and not genuinely considering the matters he raised.

[46] The Respondent’s approach demonstrates that they had accommodated a series of personal and health difficulties that the Applicant had experienced. These matters resulted in a significant degree of absenteeism, that the Respondent was endeavouring to fairly manage with the Applicant. The Applicant was clearly notified of his requirements under the disciplinary procedure, the Final Warning, the Show Cause and then the reasons for termination.

Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[47] The Applicant repeatedly contended that the Respondent was simply “going through the motions” in effecting the show cause process. The Applicant submitted that he provided responses to the Respondent that addressed their concerns.

[48] The Respondent referred to the procedure in the Agreement and in particular the step 4 discussions held with the Applicant and his representative Mr Borg, CFMEU delegate for the Drill and Blast crew, on 13 July 2012. The outcome of this meeting was the show cause letter being issued. This show cause letter provided the Applicant with 7 days within which to respond. This timeframe was eventually extended to 12 days.

[49] The Respondent rejected the submission that they were simply “going through the motions”. The Respondent identified that two meetings were held with the Applicant on 13 July 2012, firstly to gather information and secondly to commence the Step 4 discussion.

[50] The Applicant was able to respond at these meetings and to the Show Cause documentation. Further the evidence does not support a finding that the Respondent was simply giving cursory consideration or “going through the motions”. Discussions had been held with him that evidence that the Employer was genuinely trying to assist the Applicant and had considered the responses that he’d provided.

Section 387(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

[51] There was no refusal by the employer to allow the Applicant to have a support person present. The Applicant conceded that he was provided with the opportunity to have a support person present at the show cause meeting and the termination meeting. The Respondent confirmed that Mr Borg of the Union was present at both meetings.

Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[52] The Applicant submitted that he was terminated for unsatisfactory performance in that he was absent from work on an excessive number of occassions and failed to provide appropriate medical certification for his absence.

[53] The Applicant submitted that he had received his last warning for this conduct, 6 months prior to the termination and had made attempts to change his behaviour and improve his performance. The Applicant denied the allegation that he had continued to exhibit similar unsatisfactory performance.

[54] The Respondent submitted that the Applicant was aware that he was being managed regarding his absenteeism. The Respondent pointed to evidence that the Applicant was reminded on 19 June, 6, 7 and 8 July 2012 regarding the requirements of his final written warning letter and specifically the requirement to provide a medical certificate.

[55] The Respondent also submitted that there was no evidence of any change in behaviour by the Applicant or that he had complied with the requirements of the final written warning. The Respondent submitted that the failure to provide a medical certificate in this instance was not done because it was not reasonably practical to attend at a doctor. The Applicant’s conduct was contrary to the undertaking that the Applicant, had provided to Mr Medlin.

[56] The Respondent was frustrated with the Applicant’s absenteeism but also his unreliability. His failure to provide a medical certificate or to have early discussions with his supervisor about such, again, evidenced his unreliability and casual approach.

Sections 387(f) and 387(g): 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 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

[57] The Respondent is a significant corporate entity, employing a large workforce, and has recourse to dedicated in-house human resource personnel and access to expert industrial relations expertise. Accordingly, given the size of the Employer and the resources available, there is a greater expectation of the procedurally fair process that would be afforded by the Respondent to the Applicant. The process afforded to the Applicant was clear and fair. This was not a complicated matter. The Applicant was aware of his requirements and that his employment was in jeopardy if the obligations of the Final warning were not met.

Section 387(h): any other matters that FWA considers relevant

[58] The Applicant submitted that whilst there may have been a valid reason for the Applicant’s termination, in terms of the final warning put to the Applicant, nonetheless the termination was harsh, unjust or unreasonable as the dismissal was disproportionate to the level of the Applicant’s conduct. In this regard the Applicant submitted that while he had experienced issues with absenteeism in the past, he was making efforts to improve his performance in this regard. The Applicant further submitted that his absences in 2012, were recorded as annual leave and not personal leave.

[59] In relation to the Applicant’s conduct on and following 7 July 2012, regarding the lack of provision of a medical certificate, the Applicant submitted that if it was found that this provided a valid reason for termination, the conduct should nonetheless be considered as a minor technical breach and that the Applicant’s actions, substantially complied with the instructions of the Respondent.

[60] The Respondent submitted that the Applicant did not provide a medical certificate and that the circumstances were that it was more than reasonably practicable for him to do so. This was not a minor breach, in the Respondents submission, but rather it was a clear and blatant failure to comply with the requirements of the warning letter.

[61] I have considered in this matter, the Applicant’s length of service, family responsibilities and the evidence regarding alternative employment. In addition the Employees need for the Applicant’s reliability and attendance record to improve. The assistance provided by the Respondent to the Applicant has also been considered.

[62] It was also confirmed that the Applicant’s earlier diagnosis with a bi-polar condition was not pursued as a relevant issue for the continuing absenteeism in these proceedings.

[63] The Respondent considered that a clear direction relating to the Applicant’s reliability and attendance (with the reasons for such) had been given on multiple occasions.

[64] In addition the Applicant’s strong submission that he considered he had reasonably responded to the Respondent’s Final Warning direction was also considered.

Conclusion

[65] The Applicant had been employed for more than 7 years. He had experienced a range of issues that the Respondent had assisted him with in his employment.

[66] It was not disputed between the parties that he had taken 22 days of leave for sickness and personal issues across the last 90 days. The Respondent has agreed to the Applicant using his annual leave where his other leave had been exhausted.

[67] The Respondent had assisted the Applicant with his employment, whilst he was managing his bipolar condition. He also voluntarily sought assistance from the Respondent with alcoholism and it was agreed that the Employer would undertake alcohol testing of him at work to assist his recovery and maintenance of his employment. In addition in terms of the issues the Respondent accommodated, was when the Respondent discovered that the Applicant had lost his driver’s licence, they provided assistance to him in order that he could be authorised to drive the on-site vehicles required with his employment.

[68] The Applicant had received two warnings; he was aware that his employment was in jeopardy as the Respondent was managing his absenteeism. Given the Applicant’s level of absenteeism, the Respondent had communicated to the Applicant in a firm and concise manner, that they required a medical certificate for any further absences. The statutory declaration, completed by the Applicant was not considered acceptable after the discussion the Respondent had held with the Applicant regarding his lack of attendance and unreliability.

[69] The Applicant had been employed as an Assistant Shotfirer. The Superintendent’s evidence was that the Applicant’s repeated absenteeism, impacted on the blasting team. He stated that due to the required breaks between shifts, it was often difficult to replace the Applicant when he was absent, therefore leaving the work team short. It also needs to be taken into account that these duties with explosives on mine sites have inherent potential safety risks. Given his duties and the nature of the workplace, the reliability of attendance of the Applicant had become an issue of concern for the Respondent that the Applicant was clearly aware of this. The Applicant was aware that his reliability and attendance was under scrutiny and management by the Respondent. Accordingly the final events that lead to the dismissal, must be viewed against the context of the accommodations the Respondent had afforded the Applicant, the working environment and whether the request by the Respondent for a medical certificate in lieu of a statutory declaration was reasonable in the circumstances.

[70] The Applicant’s sick leave during the day on 6 July 2012 was approved, he reported as still being ill on 7 July 2012 and this further day was approved. He had clearly been directed prior to this leave (when given the Final Warning) to provide a medical certificate. He was also clearly directed to provide a medical certificate on his return to work. It is acknowledged that when he returned to work on 8 July 2012, he was seen by the Respondent as being well. It is recognised that he stated he had not attended the doctor on the prior day, due to illness. He stated, he was of the understanding that his partner had made an appointment for 10 July 2012. However this turned out to be a misunderstanding. Accordingly he considered his options, not being able to get an appointment until later at his treating General Practitioner. He stated he was concerned, that given he was not well, the doctor would not provide a back dated medical certificate. Therefore the Applicant completed and had declared a statutory declaration. The Applicant considered this was in accordance with the requirements of the procedure.

[71] There had been some consideration by both Parties in this matter as to what is reasonably practicable in relation to the provision of the medical certificate. In relation to the circumstances of the Applicant’s employment and the events leading to his termination, the Applicant had been given a clear direction to provide a medical certificate where reasonably practicable to do so. The matters in contention were not simply a focus by the Employer on the Applicant’s health issues. The Applicant had a profile of absenteeism related to a range of issues. The Employer had allowed for such absences, but had clearly set out to the Applicant that there was a need for him to be reliable and to have reliable attendance. The reasons for the Employer’s requirements were set out to the Applicant. A diary note of this discussion was in evidence. 14

[72] Mr McKenzie stated he had a formal discussions with the Applicant in the presence of Mr Jeff Medlin in regard to the Applicant’s absenteeism and performance. 15 This discussion was held on 19 June 2012. The meeting centred on the requirements of the Final Warning letter on 16 December 2011. This letter had stated:

“This letter serves as formal notification of the final warning issued to you during the counselling discussion held on 23 November 2011 in the presence of Almeroe De Nysschen (Manager Production Mining), Mark Edwards (Previous Superintendent Drill and Blast) and Paul Donnelly (Support Person) regarding your absenteeism.

During the discussion we referred to your attendance record and previous discussions with your Supervisor Peter Naumann in relation to your poor absenteeism and fitness for work.

On 18 October 2011 you left work sick and were absent from work again on 20 October 2011. During previous discussions on 10 June 2011 and 29 June 2011 you were made aware that the Company is concerned that you are developing an apparent pattern of absence. It was made clear in these discussions that you are developing an apparent pattenr of absence. It was made clear in these discussions that the Company required you to provide a medical certificated from a registered health practitioner or where not reasonably practicable a statutory declaration, on all future occasions where sick leave is claimed as per clause 23.4.2 of BHP Coal Pty Ltd Workplace Agreement 2007.

You were provided with blank statutory declarations on a number of occasions including 29 October 2011 by Peter Naumann (Supervisor). Peter Naumann continually requested from you a medical certificate from a registered health practitioner or where not reasonably practicable a statutory declaration regarding 20 October 2011. Peter Naumann spoke to you and advised you that a formal discussion was to be held with you regarding your absenteeism as you had not provided the required and expected supporting document.

Following Peter Naumann telling you that you were required to participate in a formal discussion regarding your absenteeism. (sic) 24 days after this absence occurred you provided a statutory declaration in regards to your absence from work on 20th October 2011. This is unacceptable.

As stated in the counselling discussion held on 23 November 2011, all of your future leave requests are to be requested through the Drill and Blast Superintendent.

Continued unacceptable absences are likely to lead to further and more severe disciplinary actions and possibly the Contract of your Employment being terminated.”

[73] The Applicant was aware of his clear obligations in relation to any future non-attendance. Mr McKenzie documented in his diary note of the 19 June 2012 meeting, that the Applicant had argued that he had acceptable attendance.

[74] However Mr McKenzie stated:

“I told Troy, how many years have you worked for BMA. He said 7 therefore there is over 60 sick day accrued to you. You have used them all and bought into you’re (sic) A/L. For any reasonable person that is not acceptable attendance.

I also stated I require a certificate/stat dec for Saturday 9/6/12 as per the letter.

Jeff asked Troy “do you want a job here” which Troy replied yes. Jeff said well we need you at work.

I told Troy the Blast Crew is sitting on 85% of budget and to turn that around new FY we need people focused, willing and at work. I told Troy “you need to change your attendance behaviour”.

Troy committed to follow the letter and his attendance will improve.”

[75] The Applicant submitted he was consistent in his reasons as to why he had not provided a medical certificate and that these reasons were known to the Respondent and had been recorded in the diary note of the discussion with the Applicant.

[76] In response, Mr Mark McKenzie, the Drill and Blast Scheduler at Blackwater Mine, had recorded that he emphasised to the Applicant his “poor reliability even after being issued with a ‘final warning’ on the 16/11/2011. 16

[77] Mr McKenzie stated that the Applicant left a voice message which indicated his relaxed approach to his obligations in the Final Warning. The message was transcribed as follows:

“Yeah hey Macca it’s Troy Ahern mate. I just need to ring you up about...talk to you about a couple of things, well one thing mate. Um I had Sunday off a...not Sunday, Saturday off because I was crook. Couldn’t get into a doctor until today. Um...yeah i didn’t end up going today either but I mean I’ve got a stat dec. Do you want me to bring it out or...are you right to leave it until first day shift? My number is (omitted). Give us a ring back. Bye.”

[78] The Applicant’s message was indicative of his approach to the Respondent’s direction.

[79] A reasonable person having regard to all the circumstances, and having particular knowledge of the seriousness of the Final Warning as the Applicant did, would not have taken such a relaxed approach to complying with the requirements of the Final Warning. Greater steps should and could have been taken by the Applicant to comply with these requirements or to at least demonstrate reasonable attempts at such compliance.

[80] In all of the circumstances of this matter, I do not consider that the termination of the Applicant’s employment was harsh, unjust or unreasonable. The Respondent had a valid reason for the termination, the Applicant had been afforded procedural fairness and the process by which the decision was taken to dismiss the Applicant was fair.

[81] The termination of the Applicant’s employment for all of the aforementioned reasons was not unfair.

[82] Accordingly the application is dismissed.

COMMISSIONER

Appearances:

C Newman of Construction, Forestry, Mining and Energy Union for the Applicant.

M Coonan of Herbert Smith Freehills for the Respondent.

 1   Statement of Troy Ahern, dated 4 October 2012, at paragraph 5.

 2   Applicant outline of submissions, filed on 4 October 2012, at paragraph 4(b).

 3   Applicant outline of submissions, filed on 4 October 2012, at paragraph 4(e).

 4   Applicant outline of submissions, filed on 4 October 2012, at paragraph 4(i).

 5   Annexure TA1 to statement of Troy Ahern, sworn 4 October 2012.

 6   King v Freshmore (Vic) Pty Ltd Print S4213 at para 23.

 7   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.

 8   Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 458.

 9   Fowler v the Australia Red Cross ACT Print N7898.

 10   Statement of Troy Ahern, dated 4 October 2012, at paragraph 6.

 11   Statement of Troy Ahern, dated 4 October 2012, at paragraph 9.

 12   Respondent outline of submissions, dated 18 October 2012, Table 1.

 13   Applicant outline of submissions, filed on 4 October 2012, at paragraph 20.

 14   Attachment MM2 to statement of Mark McKenzie, sworn 19 October 2012.

 15   Statement of Mark McKenzie, sworn 19 October 2012.

 16   Exhibit 6, attachment MM4.

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