Troy Leeder v John Holland Group Pty Ltd

[2015] FWC 3118

[2015] FWC 3118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Leeder
v
John Holland Group Pty Ltd
(U2014/15333)

COMMISSIONER WILLIAMS PERTH, 11 MAY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Troy Leeder (Mr Leeder or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent identified on the application is John Holland Group Pty Ltd (the respondent).

Background

[2] The applicant commenced employment with the respondent in 2011 as a Health, Safety and Environment Advisor. In 2013 he was transferred to the Perth Children’s Hospital Project (the Project).

[3] On 3 November 2014 the applicant was dismissed as a result of his conduct in relation to his investigation of and reporting on an incident which occurred on 14 October 2014.

[4] The respondent’s complaint was that specific information provided to the applicant during the investigation by workers who were on-site at the time was not included in his report of the incident. His actions, the respondent say, downgraded the severity of the incident, created an inaccurate record of the incident, misrepresented the incident to management, meant an incomplete investigation was conducted and lead to the incident not being reported to the authorities as it should have been.

[5] At the hearing of this matter the applicant gave evidence as did his Manager Mr Darren Goergenyi (Mr Goergenyi) who was at the time the respondent’s Health, Safety and Environment Manager on the Project.

The facts

[6] I am satisfied and it is not disputed that the applicant was fully aware of and experienced in the respondent's Health, Safety and Environment policies and procedures.

[7] On 14 October 2014 a safety incident occurred which involved a dropped object of approximately two kilograms in weight. The object was a piece of unistrut. It had been dropped by a contractor’s employee and fell through the safety railings from level five to the basement at one of the towers being constructed on the Project. The unistrut fell down the riser, which is the vertical service void within the tower.

[8] Having been alerted to the incident Mr Goergenyi instructed the applicant to investigate the incident.

[9] I accept the evidence of Mr Goergenyi that he specifically instructed the applicant to determine if there was any person who may have been working in the area at that time, and if that person may have been at risk of the dropped object.

[10] The applicant consequently shortly thereafter attended the site of the incident. The applicant spoke to Mr Barnes and Mr Mitchell who had been working in the area and who were quite animated. They informed him that they had been working on levels two and three respectively. The applicant’s evidence which I accept was that one of them told him that if he had his hand out at the time of the unistrut falling he might have been struck by it. The applicant specifically asked him if his hand was out at the time it fell and the employee replied that it was not. Consequently the applicant’s evidence which I accept was that he at this point formed the opinion that this employee had not been in the direct line of fire of the falling unistrut.

[11] The applicant then proceeded to level five and identified the person who had dropped the unistrut and spoke to him.

[12] The applicant recorded the contact details for all three employees.

[13] At this point Mr Goergenyi joined the applicant on site and he relayed the information he had gathered to him.

[14] Both witnesses are consistent that Mr Goergenyi asked the applicant who was working in the riser at the time of the events and the applicant told him that there were two plumbing employees on level three.

[15] I accept the evidence of Mr Goergenyi that he then asked if either of the employees were in the line of fire at the time of the event and the applicant advised him that one had been working near the edge of the riser but not at the time of the event.

[16] Next having together viewed the site at level five from which the unistrut fell they went downstairs to the basement to view the area where it landed.

[17] Both witnesses are consistent that when they arrived at the basement the basement doors were closed and padlocked shut and there were no personnel working in the area nor any sign that there had been.

[18] I accept the evidence is that Mr Goergenyi asked the applicant if anyone was working in the basement at the time of the incident and the applicant said there was not anybody working in the basement at the time.

[19] The applicant then completed a report of the incident in the John Holland Event Tracker (JHET). Both witnesses agree that the applicant’s JHET report was consistent with what the applicant had told Mr Goergenyi. Consequently the incident was graded as the lowest grade prescribed which indicates that no workers were at risk of injury and consequently there was no need for a further investigation of the incident.

[20] The following day, 15 October 2014 Mr Goergenyi amended the JHET report as he did not believe it accurately reflected the facts of the incident as he had been told them by the applicant. He included further details he thought were relevant and had been omitted.

[21] The applicant’s original report relevantly stated:

“No one was injured or was working in the basement at the time of the incident and it was locked.”

[22] Mr Goergenyi amended the report so that it stated:

“There were personnel working on level 3 however they were working underneath an overhead platform and not in the vicinity of the dropped object at the time of the event. Access to the basement level was also locked.” (Underlining added)

[23] In response to this amendment the applicant emailed Mr Goergenyi and referred to his statement that “...working on level 3 however they were working underneath an overhead platform and not in the vicinity of the dropped object at the time of the event. Access to the basement level was also locked.” and said to him that;

“I wouldn’t have put that...someone was working below and therefore in the vicinity.” (Underlining added)

[24] Three minutes later Mr Goergenyi replied to the applicant’s email as follows:

“At the time of the event there was someone below. They were however under a platform. We can’t put no one was there as that is not the truth. If no one was there we would be going through this process as having no one there wouldn’t mean that the procedure worked.”

[25] It is apparent from this that Mr Goergenyi had misunderstood the point the applicant was making. The applicant was objecting to the amendment to the JHET by Mr Goergenyi to include the words that indicated workers were “...not in the vicinity of the dropped object...”. The applicant was pointing out that someone was indeed working below and was “...therefore in the vicinity.” 1The applicant wouldn’t have put in the report a statement that workers were “...not in the vicinity...” as Mr Goergenyi had phrased it.

[26] Unfortunately Mr Goergenyi seems to have not noticed the break in the sentence the applicant wrote between the word “that” and the word “someone”.

[27] With different syntax but the same words what the applicant was trying to communicate was:

“I wouldn’t have put that.

Someone was working below and therefore in the vicinity.”

[28] Mr Goergenyi incorrectly interpreted the applicant’s email as suggesting the applicant wanted the JHET report to say that there was no one below when there was someone below. Whilst Mr Goergenyi’s interpretation was understandable this was not what the applicant was saying at all.

[29] In any event two days later on 17 October 2014 a Supervisor spoke to Mr Goergenyi and told him that employees of one of the plumbing contractors were unhappy about the incident description of these events which had been read out to employees at the morning pre-start meeting that day.

[30] Mr Goergenyi shortly thereafter spoke to Mr Barnes and Mr Mitchell, the employees who had been working on level three of the riser and whom the applicant had spoken to shortly after the incident.

[31] I accept the evidence of Mr Goergenyi that the employees told him that they were annoyed that the JHET report had omitted information they had given to the applicant at the time. The employees told him that one of them was in the direct line of the fall of the unistrut and had narrowly avoided being injured by it and that at the time of the incident there were other workers in the basement. The employees told Mr Goergenyi that this information had been relayed to the applicant when he spoke to them on the day of the incident.

[32] Mr Goergenyi then obtained written statements from each of the employees.

[33] These written statements were provided to the Commission however neither Mr Barnes nor Mr Mitchell were called as witnesses. I have accepted these written statements into evidence but little weight can be given to them given they were not made under oath and the witnesses were not subject to cross-examination on their evidence.

[34] The statement of Mr Mitchell says that he had his arms outside the scaffold tightening a bolt with a ratchet and when he heard a bang and then a second bang he pulled his arms in quickly and the piece of unistrut went straight past and missed him by inches and was only a split second from hitting him. He also mentions his Apprentice was with him at the time.

[35] He says there were another two workers from Chris Contracting on level two and another two workers from Axis Contracting (Axis) in the basement.

[36] Mr Mitchell statement says that he told the applicant that he had gone down to the basement seen the unistrut there and that there was two workers down there from Axis.

[37] Mr Barnes statement similarly says that they told the applicant that there were people in the basement and that Mr Mitchell had explained how close the object had come to hitting him.

[38] From this new information Mr Goergenyi had received from Mr Mitchell and Mr Barnes he determined that there were employees working in the basement at the time of the incident and that there was an employee working on one of the levels of the building that was directly in the “line of fire” and narrowly missed being injured. He also formed the view that all this information was known to the applicant at the time of the applicant’s investigation but this had not been communicated to him and was omitted from the original JHET report by the applicant.

[39] The applicant was required to attend a meeting on 21 October 2014 with the respondent’s HR/IR Manager and Mr Goergenyi to explain the allegations surrounding his conduct in investigating and reporting the incident. A letter detailing these was given to him proposing another meeting the next day.

[40] The meeting proposed for 22 October 2014 did not occur until 27 October 2014 where the applicant denied any wrongdoing. The applicant had provided written responses to the respondent’s allegations.

[41] The applicant in his responses stated he had no recollection that he was advised by the two workers on the day of the incident that there were other workers in the basement when the object was falling.

[42] On 28 October 2014 the applicant was provided with a letter to give him an opportunity to demonstrate why he should not be dismissed from his employment and detailing why the respondent proposed to terminate him.

[43] Following a meeting on 30 October 2014, based on the information known to the respondent the decision to terminate the applicant’s employment was made and conveyed to him in writing on 3 November 2014 providing him with four weeks wages in lieu of notice.

[44] The applicant in giving evidence in this hearing presented as an honest and forthright witness. Under cross-examination the applicant denied that Mr Mitchell told him the unistrut had almost hit him. He also denied that Mr Mitchell told him he heard the object clattering down the riser, withdrew his head from the void but had his arms still outstretched and that the unistrut only missed him by inches. The applicant also denied that Mr Mitchell or Mr Barnes mentioned at any time that there were employees in the basement at the time the unistrut fell. His evidence on these issues directly contradicts the written statement of Mr Mitchell and Mr Barnes that were given to Mr Goergenyi.

[45] I have no reason to disbelieve the evidence the applicant gave under oath and accept his evidence on these issues.

Consideration

[46] The respondent submits the facts disclose that the applicant during his investigation was advised by two workers that there were people working in the basement of the riser at the time of the safety incident and also that one of the workers he interviewed was in the direct line of fire of the falling object and moved out of the way so as not to be struck by it. The respondent submits that the applicant failed to capture these facts in his report of the incident. This conduct the respondent submits is a valid reason for dismissal.

[47] The facts are that a few days after the incident and after the applicant had made his report into the incident Mr Goergenyi was advised by two workers, who provided him with written statements, that they had told the applicant at the time he investigated the incident that one of them had nearly been struck by the falling unistrut and that there were other workers in the basement of the riser at the time the unistrut fell. These ‘facts’ were not included in the applicant’s report. The respondent with this information decided, after hearing from the applicant, not to believe the applicant’s denials that these employees had told him these important ‘facts’ at the time he investigated the incident.

[48] The Commission’s role under the legislation is not to decide whether the respondent’s belief held at the time of dismissal on the evidence it knew of then was reasonable or not.

[49] Rather Full Bench decisions of the Commission have long held that in matters such as this the Commission is to determine whether particular conduct occurred based on the evidence presented by the parties in the hearing of the matter. This was recently reinforced in the case of Mr Darrin Grant v BHP Coal Pty Ltd 2 where the Full bench explained that:

“[161] The Commissioner was obliged to reach her own conclusions as to the nature of the Appellant's conduct, irrespective of the subjective views of either the Appellant himself or the Respondent. Where an employee is dismissed for conduct, the Tribunal must determine for itself whether the alleged conduct occurred (see King v Freshmore Victoria Pty Ltd and Edwards v Giudice):

“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.” (References omitted)

[50] Difficulties will consequently arise for employers where the facts on which they relied when making a decision to dismiss an employee cannot all be proven at an unfair dismissal remedy hearing such as this.

[51] The difficulty in this case is that some of the critical facts on which the employer relied when making its decision to dismiss the applicant have not been proven at this hearing.

[52] In this case neither of the two workers, who say they told the applicant about other workers being in the basement and about one of them being nearly hit by the unistrut, gave evidence at this hearing. Whilst I have accepted their written statements into evidence little weight can be given to them because this is not evidence given under oath and these witnesses were not subject to cross-examination. This latter point is most important in this case because there is a direct conflict on the central issue of what these workers told the applicant between the evidence of the applicant and the statement of these workers. The applicant’s representative has not had the opportunity to explore in cross-examination with these witnesses any possible explanations for that conflict of evidence nor to challenge the truthfulness of their statements.

[53] Mr Goergenyi was not present during the discussion between these two workers and the applicant on the day of the incident. His belief of what was said between them and the applicant on that day is based on what these two workers have told him and so is hearsay. The applicant is the only person who was a party to these discussions who gave evidence. He was cross-examined on this issue. His evidence contradicts the statement of the two workers. As I have found above he was an entirely believable witness. I am obliged to accept his version of what was said on the day of the incident between him and Mr Mitchell and Mr Barnes.

[54] Consequently I find that at the time the applicant was investigating this incident he was not told by the workers he spoke to that the falling unistrut had nearly hit one of them and he was not told that at the time the unistrut fell there were other workers in the basement. Consequently the applicant’s JHET was an accurate report of the incident to the best of the applicant’s knowledge. There is no evidence before the Commission to support any criticism of the applicant’s investigation or reporting of the incident.

Conclusion

[55] In this case there was not a valid reason for the dismissal of the applicant related to his capacity or conduct.

[56] The applicant has not challenged the dismissal on the basis of any of the matters set out in section 387(b) to (h) of the Act. For completeness in the context that in this case there was not a valid reason for the dismissal notwithstanding this the dismissal was otherwise effected in a manner which was procedurally fair.

[57] In all the circumstances then I am satisfied that the dismissal of the applicant was unjust and unreasonable and so he was unfairly dismissed.

Remedy

[58] I am satisfied in this case that reinstatement would not be appropriate and neither the applicant nor the respondent suggests that it would be.

[59] There is no suggestion that an order of compensation would negatively impact on the viability of the respondent’s enterprise.

[60] The applicant was employed for just less than three years.

[61] If the events that led up to the dismissal had not occurred it is reasonable to conclude that the applicant would have remained in employment with the respondent for a good period which allowing for the vagaries of the construction industry I determine to be nine months.

[62] The applicant was paid four weeks in lieu of notice at the time of his dismissal. After his dismissal the applicant did gain employment however this ended almost as soon as it started when his new employer became aware of the circumstances in which he was dismissed by the respondent. This employment was terminated with notice and resulted in him receiving six weeks pay.

[63] Since that time the applicant has consciously chosen not to seek employment because he is of the view that the circumstances surrounding his dismissal have tarnished his professional standing in the industry. Consequently the applicant has not made any further efforts to mitigate his loss at all.

[64] There is no reason why the applicant could not have pursued other employment, not based on his professional experience, in order to mitigate his economic loss but he has not done so. This choice by the applicant must result in a significant discount to the amount of compensation awarded. A reduction of 65% of the amount of compensation that would otherwise be awarded is appropriate for this lack of mitigation efforts.

[65] The figure of nine months compensation is reduced to 6.5 months taking into account pay in lieu of notice received from the respondent and also from the second employment. This amount is reduced by 65% leaving a compensation amount of 2.28 months.

[66] An order will be issued requiring the respondent to pay to the applicant an amount of 2.28 months’ salary less tax within 21 days of the date of the order.

COMMISSIONER

Appearances:

N Morrissey of Counsel on behalf of the applicant.

D Jones of the Chamber of Commerce and Industry of Western Australia on behalf of the respondent.

Hearing details:

2015.

Perth:

March 30

 1   Transcript at PN180 - PN194.

 2   [2014] FWCFB 3027.

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