1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Zac Mahoney
v
Bechtel Construction (Australia) Pty Ltd
(U2013/2468)
COMMISSIONER BOOTH BRISBANE, 20 MAY 2014
Application for relief from unfair dismissal - arbitration.
Introduction
[1] This is an application by Mr Zac Mahoney (the Applicant) for relief from unfair
dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] The Applicant was employed by Bechtel Construction (Australia) Pty Ltd (Bechtel) as
a labourer, specifically as a crane driver and rigger. He began his employment in March 2012.
He was dismissed on 4 July 2013. The reasons for the dismissal were set out in a termination
letter dated 4 July 2013, citing his participation in unlawful industrial action on 3 July 2013
and a prior “first and final” warning given on 11 October 2012 for an unrelated matter.
[3] The Applicant alleges his dismissal was harsh, unjust and unreasonable because there
was no valid reason, as he was not guilty of the misconduct alleged, and further, that the
termination was procedurally unfair.
[4] Bechtel asserts that the Applicant’s dismissal was justified. It asserts all employees
including the Applicant who participated in the action were disciplined for their involvement
in that action. Six employees including the Applicant were found by Bechtel to have engaged
in industrial action on 3 July 2013, and to be already on a final warning or have significant
disciplinary history. They were dismissed.1
Background
[5] The Applicant worked on the QCLNG project at Curtis Island near Gladstone. He
lived on the mainland outside Gladstone. In order to work he travelled to and from Curtis
Island on a ferry owned by Bechtel.
[6] On 3 July 2013, the Applicant commenced his shift at 6:30am. He went to his smoko
break as scheduled at 10.00am when on his evidence he had a meal and returned to work on
time at 10.30am.
[2014] FWC 2756
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 2756
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[7] The Applicant's union, the Construction, Forestry, Mining and Energy Union
(CFMEU), held a planned meeting pursuant to s.484 of the Fair Work Act 2009 during this
smoko break, conducted by local CFMEU organiser Mr Ben Loakes.
[8] The Applicant’s evidence is that he forgot about the planned meeting and he did not
attend it, and returned to work on time from his smoko break. He was to begin his lunch break
at 1.30pm.
[9] It seems there were unresolved issues at the scheduled time for the smoko meeting to
conclude and the meeting continued until 10.50. Those attending discussed a second meeting
to commence at 1.00pm at cluster 8. Bechtel’s evidence is that the meeting commenced at
1.00pm with approximately 100 workers attending.
[10] The Applicant says he did not know of the afternoon meeting before he arrived at
cluster 8. He admits he was present at this meeting prior to 1.30pm, having arrived at the site
on his account at 1.18pm and joining the meeting after first washing and eating some food.
His evidence is that he was present at the meeting no earlier than 1.28pm, but he says he was
not participating in the meeting but taking his lunch break. Sometime during the meeting the
Applicant became aware that Bechtel considered the meeting to be unlawful industrial action
and that those attending the meeting would be docked 4 hours pay. The Applicant says he
learnt of the pay docking at 1.28pm. Bechtel says it must have been earlier, probably at
1.07pm.
[11] The exact time an employee is permitted to begin their lunch break was the subject of
considerable debate in these proceedings, but there was agreement an employee is able to
arrive and wash ready to begin their lunch, so the Applicant was entitled to arrive before
1.30pm, giving him time to wash and commence his lunch at 1.30pm. The Respondent’s
evidence was that the time was either 1.20pm or 1.25pm.
[12] There was a considerable amount of evidence led as to the exact time the Applicant
would have arrived at the site and been present during the meeting.
[13] The exact time assumed importance because the employer considered the meeting
unauthorised and advised those attending accordingly for the purposes of s.474 of the Fair
Work Act 2009. Bechtel's Mr Ben Fox along with Mr Downham informed those present they
were participating in unlawful industrial action and they would be docked 4 hours pay as
provided for by s.474.
[14] The Applicant admits to arriving early. He submits:
“I arrived at cluster 8 a bit earlier that day than I would have usually gone to lunch.
This was not intentional. This was related to me driving past cluster 8 at that time and
not being able to complete the pump delivery before lunch.”2
[15] In cross-examination, the Applicant's evidence was that he was in the area and was
going there to get lunch. He was not going there for a union meeting.3
[16] Asked when he found out there was a union meeting on he replied:
“When I was walking over there”.
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[17] As to what informed him that there was a meeting going on the Applicant replied:
“other people walking in that vicinity”.
[18] The Applicant says he asked Mr Coleman, his leading hand, what was going on. Both
the Applicant and Mr Coleman said this interaction took place at 1.18pm. In his statement the
Applicant does not indicate what Mr Coleman said and he could not recall during cross
examination.4
[19] However, Mr Coleman in cross examination recalled the following:
Did you tell the Applicant that you were going to the meeting?---The Applicant - yes, I
told the Applicant I was going to the meeting.5
[20] Mr Fox deposes that he made the announcement at approximately 1.07pm6. The
Applicant denies he was present at 1.07pm and so could not have heard that particular
announcement. He deposes in his Statement in Reply that Mr Fox may have made the
announcement at a later time. Bechtel says the announcement was made only once and that
the inference to be drawn is that the Applicant must have been there at 1.07pm.
[21] The Applicant did not return to work after the lunch break at 2pm, leaving the site at
approximately 3pm. He was docked four hours pay.
[22] The next day he was dismissed.
Submissions
[23] The Applicant submits as follows:-
At about 1.15pm he realised he had a task – to deliver a pump he was carrying on
the crane – that could not be completed prior to the lunch break. He therefore
intended to complete the task after the lunch break.
As he got closer to the cluster 8 he saw workers he knew to be CFMEU members
standing round in what looked like a meeting.
The Applicant states he was interested in what was happening and that as he could
not complete his task prior to lunch break he parked at cluster 8. He said he had
another reason to be at cluster 8: that there were pies in the pie warmer.
As he pulled up the crane to the cluster 8 car park he saw his leading hand Mr
Coleman. He submits that he was still inside the crane and he enquired about what
was going on. On the question of time, he deposes in his statement:
“I have developed a habit of frequently looking at my watch at work. I record job
information such as start and finish times in a diary kept in my pocket. However
while I did not generally record lunch commencement times, I certainly recall
looking at my watch that day at 1.18 pm.”
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He parked his crane, stepped out of it and let his dogman out of the crane. He
estimates he completed these actions at 1.20pm.
He then deposes that at approximately 1.23pm he went to the toilets inside at
cluster 8, washed his hands and waited his turn before picking a pie from the pie
warmer. He then went outside and listened to what was going on.
At approximately 1.28pm he says Mr Fox approached the group and stated to the
group that they would be docked 4 hours because they were at a union meeting in
Bechtel’s time.7
The Applicant's first Statement referred to one announcement at 1.28pm.
The Applicant further explains in his Statement in Reply that he recalled Mr Fox
saying “on more than one occasion” that “this is industrial action go back to work
now or you're getting docked 4 hours pay”.8
He suggests having only arrived at the meeting at 1.28pm he saw Mr Fox:
With arms folded and made statements to the employees about industrial
action that the employees go back to work now or getting docked four hours
pay.9
In contrast, Mr Loakes’ statement in the Federal Court matter is that the
announcement was made at approximately 1.00pm. There is no indication in Mr
Loakes’ statement that this was repeated during the meeting. Mr Loakes provides
some detail about a further communication that did occur following the offer to
return to work in return for a not docking of the employee’s pay, Mr Loakes
submits “I relayed Bechtel's position to the workers”.
In his statement the Applicant recalls that the next day, 4 July 2013 during a
disciplinary meeting conducted by Bechtel’s Ms Child and Mr Scriffignano he said
words to the effect that:
“I was at a smoko meeting at about 1.18pm, and she replied that your smoko
was at 1.30pm he said words to the effect we have 10 minutes to wash our
hands and I arrived at 1.18pm.” 10
[24] Bechtel submits that the Applicant must have arrived at or before 1.07pm for the
following reasons.
Mr Fox and Mr Downham made the industrial action announcement at 1.07pm and
then left the meeting but remained in the car park area until about 1.40pm.
In response to the Applicant's evidence that he arrived at the meeting and he heard
Mr Fox announced to all those present that they would be docked four hours pay
because we are at a union meeting in Bechtel time prior to 1.30 pm, Bechtel
asserts that the only way the Applicant could have heard Mr Fox make this
statement was if he was present for that announcement.
Bechtel submits that the affidavit of information and belief prepared by Mr Luke
Tiley, solicitor for the CFMEU in the Federal Court proceedings, refers to Mr
Fox's announcement being made at around 1.00pm. Mr Loakes according to that
affidavit had a conversation with Mr Fox in which he advised that the workers
were prepared to go back to work at 2.00pm if the employer was prepared to
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withdraw its threat of taking industrial action. Mr Loakes indicates that after this
was not accepted he, Mr Loakes, relayed Bechtel's position to the workers.
Additionally Bechtel submits that none of the initial statements of the Applicant,
Mr Munro or Mr Coleman suggested a second announcement was made.
Ms Child’s evidence refers to contemporaneous notes of the meeting held on 4
July showing that in response to the employer putting to him that he had taken
unlawful industrial action on 3 July that he said “approximately 1.17pm he saw the
union meeting under way”.
[25] There was some evidence that the CFMEU considered the afternoon meeting to be a
safety meeting pursuant to section 117 of the Work Health and Safety Act, and such a meeting
was not required to be held during nonworking time.11 However, it was not submitted that the
Applicant's attendance was lawful on this basis. I note that this was also considered by
Greenwood J in the Federal Court proceedings.
[26] The Applicant's attendance was said to be lawful:
because he had no prior knowledge of the meeting;
he arrived at cluster 8 at a time well after 1.00pm and only then learned the
meeting was underway;
he was not participating in the meeting but taking his smoko and observing
proceedings; or
he joined the meeting after his clean up at a time justifiably recognised as during
his break; or
he made a mistake as to when he started his lunch time, and only joined the
meeting after that mistake was made, out of curiosity and not for the purpose of
taking industrial action.
[27] The next day, the Applicant was directed to attend a disciplinary meeting, conducted
by Ms Child and Mr Scriffignano. Mr Munro attended as the Applicant’s support person. At
the conclusion of the meeting he was handed a pre-prepared and pre-signed letter advising he
was dismissed in the following terms:12
Dear Mr Mahoney
Re: UNLAWFUL INDUSTRIAL ACTION - 3 July 2013 - TERMINATION OF
EMPLOYMENT
You participated in unlawful industrial action on 3 July 2013, by refusing to perform
work.
Your refusal to follow work instructions on 3 July 2013 amounted to a breach of your
contract of employment, and unlawful industrial action under the Fair Work Act 2009
(Cth). You should be aware that committing unlawful industrial action straight
exposes you to a number of potential consequences including:
being fined up to $6600;
being ordered by a court to compensate Bechtel or anybody else who suffers
loss as a result of your unlawful industrial action;
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being ordered by Fair Work Australia [sic] or a court to return to work;
being prosecuted by Fair Work Building and Construction; and
disciplinary action by Bechtel up to and including dismissal.
Further, attempting to resolve disputes by taking industrial action, rather than
appropriately using the disputes procedure in the Bechtel Queensland LNG Project
Union Greenfields Agreement, can also be a breach of that agreement, and expose
you to fines of up to $6000 per breach.
Bechtel is committed to dealing with matters validly raised by employees under the
disputes procedure. The taking of unlawful industrial action is not acceptable and will
not be tolerated.
As a result of previously being issued with written warnings in relation to your
behaviour, the project has made the decision to terminate their employment with
immediate effect.
Your final payments will be deposited into your nominated bank account. Any other
documentation will be sent to your usual place of residence.
Yours sincerely,
[signed]
Chris McCarthy
Deputy Site Manager CQLNG
[28] The Applicant raises a number of procedural issues about this meeting, asserting the
dismissal was thereby harsh, unjust or unreasonable. Bechtel asserts that the dismissal was
procedurally fair.
Unfair dismissal under the Fair Work Act
[29] It is uncontested that the Applicant was protected from unfair dismissal by the Act,
and that he was dismissed. The criteria for determining whether the Applicant was unfairly
dismissed are stated in s.387 of the Act:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC 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
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(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.
Was there a valid reason for the dismissal?
[30] Rode v Burwood Mitsubishi13 held under the equivalent provision of the Workplace
Relations Act 1996 that:
.... in order to constitute a valid reason within the meaning of s.170CG(3)(a) the
reason for termination must be defensible or justifiable on an objective analysis of the
relevant facts. It is not sufficient for an employer to simply show that he or she acted
in the belief that the termination was for a valid reason.
[31] In Miller v University of New South Wales14 (Miller) a Full Court of the Federal Court
of Australia considered the same provision. Gray J said at [13]:
If the “valid reason” contemplated by s 170CG(3)(a) of the WR Act involved no more
than an inquiry into the legal rights of the parties, in most cases it would be a short
inquiry. It would be answered by saying that the employer had a right to dismiss the
employee on notice and had exercised that right. The provision refers to a “valid
reason” in another sense altogether. The reason must be related to the capacity or
conduct of the employee, or to the employer’s operational requirements. What is
sought is not the existence of a legal entitlement to terminate the employment, but the
existence of a reason for the exercise of that right that is related to the factual
situation. The validity is not to be judged by reference to legal entitlements, but to the
Commission’s assessment of the factual circumstances as to what the employee is
capable of doing or has or has done, or as to what the employer requires in order to
continue its activities. (Underlining added)
[32] Gray J indicates that it is open to the Fair Work Commission (the Commission) to
determine that there was no valid reason for the termination of employment, even if the
employer had a legal right to terminate the employment.15
[33] That is, in this matter, what is required is an assessment of the factual circumstances as
to what the Applicant actually did. Even the existence of a legal right to terminate
employment is not sufficient to lead to the conclusion that there is a valid reason for the
termination.
[34] In final submissions, Bechtel suggests that the decision to terminate is valid because it
is sound, defensible and well founded. This is because the Applicant:
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had been issued with a first and final warning in October 2012; and
engaged in unlawful industrial action on 3 July 2013 by attending the afternoon
meeting, albeit sometime after the meeting commenced, and did not return to work
for the rest of the day at 2pm.
[35] Bechtel also submits that in deciding if there was a valid reason:
the entire factual matrix should be considered in determining whether there is a
valid reason for the termination; and
the Commission is not limited to the reasons given by Bechtel at the time of
dismissal.
[36] The Applicant does not dispute the October 2012 “first and final warning”. He does
dispute that he engaged in unlawful industrial action but asserts that if he did, the entire
factual matrix around the events should lead to a conclusion that there was no valid reason for
the dismissal.
The evidence about unlawful industrial action
Smoko meeting
[37] The Applicant’s undisputed evidence is that he forgot about and did not attend the
smoko meeting held on 3 July 3013 between 10.00 and 10.50am. He returned to his usual
duties at the conclusion of his smoko break at 10.30pm.
[38] Mr Fox deposes to a discussion both leading up to the meeting at 10.00am and then
after the meeting. Mr Loakes reported that the employees did not resolve all the issues by
10.30am.
[39] Initially Mr Fox thought that some further work could be done and then reporting back
to another meeting of the workers at 1.30pm in their lunch break. He deposes:
“Shortly thereafter I overheard Ben Loakes radio Josh Munro communicating to
workers that there would be a meeting at 1 pm to discuss a response to the issues. At
the time I did not think anything of it and did not raise this with Ben Loakes.”16
[40] It is clear that those attending the smoko meeting knew from 10.50am or earlier that
the further meeting was planned for 1.00pm.17 It is a reasonable inference that those in
attendance at the smoko meeting had decided to meet again from 1.00pm even though the
lunch break did not begin until 1.30pm.
Afternoon meeting
[41] It is not in dispute that:
the meeting from 1.00pm until the regular lunch time at 1.30pm was not
authorised by Bechtel and was therefore unlawful industrial action;
the Applicant did not know that the meeting was planned for 1.00pm, nor what it
was about;
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the Applicant arrived at the meeting at some time after 1.06pm but no later than
1.28pm;
sometime during the meeting, while the Applicant was there, he became aware
because of a statement from Mr Fox that Bechtel considered the attendees to be
participating in unlawful industrial action and would be docked 4 hours pay;
those present were told that their pay would be docked; and
they were not told they might be dismissed.
[42] The Applicant’s evidence is that he heard Mr Fox make the announcement about
unlawful industrial activity and recalled Mr Fox’s posture at the time. Bechtel’s evidence, and
material adduced in the Federal Court proceedings indicate that Mr Fox’s announcement was
made only once, and earlier than 1.28pm (when the Applicant says he heard the
announcement) and earlier than 1.18pm (when he says he arrived at cluster 8). Bechtel says it
was made at 1.07pm.
[43] Importance was attached to these times because the employer, having asserted that the
Applicant and others were in attendance at the meeting prior to the lunch break, concluded
that he and all those attending were participating in unlawful industrial action and would be
sanctioned. Most were docked 4 hours pay. Six, including the Applicant, were subject to prior
final warnings and were dismissed.
[44] While generally vague about times in cross examination, the Applicant, is unequivocal
in his Statement that on 3 July 2013 he looked at his watch while still in the crane and
mentally noted the time as 1.18pm. Mr Coleman’s statement speaks of a discussion with the
Applicant at 1.18pm. Despite that exactitude, Ms Child’s notes indicate that he told her he
arrived at the meeting site at 1.17pm. Mr Scriffignano’s statement refers to the Applicant’s
response as “approximately 1.17pm”18 the Applicant gives slightly different times in different
accounts and slightly different versions of when he arrived at the meeting. I find that his
evidence as to the exact time is not reliable.
[45] If the Applicant heard Mr Fox make the announcement it follows he was at the
meeting when an announcement was made. The weight of the evidence, outlined above,
supports a conclusion that Mr Fox made only one announcement, at or about 1.07pm. In
particular, I rely on consistencies between the statement of Mr Fox and the affidavit of
information and belief of Mr Tilley, recounting the events as described by Mr Loakes. I
conclude that the Applicant was present at the meeting when Mr Fox made the announcement.
It is therefore likely he was at the site by about 1.07pm. I note however that there is no direct
evidence of when he was in attendance, and that Ms Child under cross-examination
admitted:19
“… we had no way to know that he was there earlier than 1.30, other than he had told
us that he was.”
Was the Applicant participating in unlawful industrial action?
[46] Unlawful industrial action includes failure or refusal by an employee to perform
work.20 The Applicant failed to perform work before his scheduled lunch break and prior to
clean-up time. He did not return to work that day.
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[47] The Applicant’s submissions referred to Automotive Food Metals Engineering
Printing and Kindred Industries Union and The Age Company Ltd21 which deals, among other
things, with the breadth of the definition of unlawful industrial action. It was submitted on
behalf of the Applicant that he was not taking industrial action because:
“It seems to us likely that the legislature did not intend to include conduct which
stands completely outside the area of disputation and bargaining and that accordingly
the definition should be read giving some weight to the word industrial. But precisely
how far this qualification might extend is a question of degree. We do not think it is
desirable that we go further than is necessary to decide this case. As is clear, we have
not found it necessary to go beyond the words of the definition.”22
[48] It was submitted that if the Applicant had made a mistake and gone to lunch early it
cannot be said he was taking industrial action, lawful or unlawful. He was making no demand.
He was not involved in enterprise bargaining of any kind.23 Under cross-examination the
Applicant confirmed that was his view:
All right. You say that you had a grievance that you were just there for lunch. You
weren't like the others who'd had an unauthorised stoppage but you were going to be
penalised with the others?---That's correct.24
[49] Bechtel says the “question of degree” referred to in The Age case is important. Those
attending the meeting were represented by Mr Loakes who went to Mr Fox and delivered
what Bechtel says was ultimatum: withdraw the employer’s industrial action declaration and
the employees will go back to work at 2.00pm. Bechtel says this is a clear industrial demand.
The employer declined to give in to that demand and industrial consequences flowed.25
[50] That is, Bechtel submits the fact that no work was done on the afternoon resulted
directly from the actions of the Applicant and the others who participated in a stoppage of
work between 1.00pm and 1.30pm without authority.26 Bechtel in oral submissions relied on
both attendance at the afternoon meeting and the failure to return to work at 2.00pm to sustain
its argument that the Applicant was participating in unlawful industrial action.27
[51] The Applicant knew about the meeting from his own observation or from Mr
Coleman. His explanation that he just arrived early at cluster 8 because of insufficient time to
complete another task before his scheduled lunch break is irrelevant. His obligation was to
work until his lunch break, with an allowance for clean-up beforehand. The Applicant at some
point knew there was a union meeting on, that it was not in his lunch break, and he attended
the meeting prior to his lunch break, even if only for a short time. On his evidence it was as
little as two minutes. However the weight of the evidence indicates on the balance of
probabilities it was more likely to be 1.07pm. He participated in the meeting by presenting
himself at the meeting, observing, and discussing with others there the proceedings. I
conclude that the Applicant was participating in unlawful industrial action because:
he failed to perform duties before his permitted clean up and break time;
he knew by observation or from Mr Coleman that a CFMEU organised meeting
was in progress;
he joined those participating in the meeting, standing near the CFMEU organiser;28
and
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he observed the business of the meeting including hearing the announcement made
by Mr Fox at 1.07pm.
Other relevant factors - factual matrix leading to termination
[52] That conclusion is but the start of the matter. As both parties pressed, the entire factual
matrix is relevant to deciding if there is a valid reason to the termination. There are a number
of factual matters that should be taken into account.
Attendance at the smoko meeting
[53] The earlier smoko meeting where employees did not return to work until 10.50am was
a factor in Bechtel deciding that participation in the 1.00pm lunch meeting would be dealt
with as unlawful industrial action with serious consequences for participants.
[54] The evidence about this appears in a statement Mr Fox prepared for the Federal Court
proceedings. He deposes that after the meeting concluded at 1.40pm, Mr Loakes approached
Mr Alex Gardner and Mr Fox and advised that the employees were prepared to return to work
at 2.00pm if you are “prepared to cop it on the chin that you f--ckd us around” and then stated
“they will go back to work if you don't dock them pay”.
[55] Mr Fox replied that he would make a phone call but it doesn't look good because, “we
copped it on the chin this morning. I'll make the call”. Mr Fox explains that copping it on the
chin meant Bechtel did not take any action in respect of the smoko meeting that morning that
went beyond 10.30am.
[56] Mr Fox’s consultation with Bechtel supervisors confirmed the decision to dock pay.
Mr Fox advised Mr Loakes:
“Then I have just got the call the guys have committed (unlawful) industrial action and
will be docked.”
[57] It is clear that Bechtel, in deciding that the afternoon meeting was unlawful industrial
action, had consideration of the morning’s action when Mr Fox said “we copped it on the chin
this morning”.
[58] It is not unreasonable that an employer would take into consideration that twice in one
day employees had not worked the requisite hours. But that was not the case with the
Applicant. He did not attend the smoko meeting, and he was not present at the afternoon
meeting from its commencement, joining the group only after it started.
Employees who were taking industrial action were docked 4 hours pay
[59] The Applicant submits that in circumstances where Bechtel had determined that it
would not pay the Applicant for 4 hours work, he was not obligated to perform his
“dependent obligation”, namely to perform work.29 Even if the Applicant had engaged in
unlawful industrial action and even if by reason of that, Bechtel was prohibited from making
any payment in respect of the period of unlawful industrial action, there is no consequential
obligation arising out of the proposition on Bechtel for the Applicant to work for no pay.30
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[60] Bechtel submits that if the Applicant was unsure about being docked unfairly then he
could have raised with his supervisor whether he was considered to be part of the
unauthorised meeting. The Applicant submits he is entitled to accept the word of his superior
that he would be docked, notwithstanding that he considered it unfair.
[61] It seems neither party was clear about the consequences flowing from Bechtel’s
declaration.
[62] Ms Child states in cross-examination:-
If Mr Fox had told people at a meeting or told people at cluster 8 at about quarter
past to half past 1 that they weren't going to be paid, you say it didn't make sense that
Mr Mahoney believed what Mr Fox has said?---Correct, because if he hadn't have
been there since 1 o'clock why would he assume he was in the same boat as everybody
else that was there.
Perhaps because Mr Fox, in his role, employee relations role, was entitled to be relied
for his word?---I disagree. I think that if he didn't think he was in the wrong he should
have asked the question.31
[63] It is clear that the Applicant was not in the ‘same boat as everybody else.’ He had not
attended the smoko meeting, had no knowledge of what was discussed at that meeting, was
not aware of the plans for the afternoon meeting or the agenda, and was not at the afternoon
meeting until after it had started.
[64] It is an error of logic to assume that it was for the Applicant to challenge Bechtel on
whether their actions were fair or not. Bechtel dismissed the Applicant not because he failed
to challenge an unfair determination, but because it treated him the same as others whose
circumstances were in fact different. It was Bechtel that put the Applicant “in the same boat”
when in fact he was not.
[65] This goes also to the question of procedural fairness discussed below.
[66] There is no doubt that employees have rights under the dispute resolution clause in the
enterprise agreement. It may well be that the Applicant might have used it to good effect. But
should the consequences of not having done so result in his dismissal the next day?
[67] In cross-examination when told he had been participating in an unlawful stoppage the
Applicant says “I have to say I didn't think” and when asked why he did not talk to Mr Loakes
about it, the Applicant said that on being told he was to be docked 4 hours pay “I saw red.”32 I
note also that Mr Fox also did not think much of the radioed news of a planned 1.00pm
meeting at the time.33
[68] What is clear is that the decision to dismiss certain employees who were present at
cluster 8 between 1.00pm and 1.30pm involved no particular attempt by Bechtel to
differentiate the factual circumstances of different individuals. There are various permutations
possible: attendance at the two meetings; in whole or in part; and whether or not the worker
signed back on at 2pm. But Bechtel concerned itself with only two questions: Did the
employee attend at the meeting prior to 1.30pm? And did he fail to return to work at 2.00pm?
[2014] FWC 2756
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[69] A positive answer to either or both questions might prove participation in unlawful
industrial action as a matter of law, but as established by Miller, the test is more than
ascertaining if there is a power to dismiss. Bechtel’s decision to dismiss the Applicant failed
to take into account the factual circumstances applying to him. That decision was made on the
basis that he attended the meeting prior to 1.30pm, did not return to work at 2.00pm, and had
a prior warning. The decision was not well founded in his case: it did not consider the full
factual circumstances, but was a blanket approach to all participants. 34
Bechtel's practice and position regarding unlawful industrial action
[70] Bechtel asserts that the decision to dismiss the Applicant was because it was consistent
with its recent practice and position about what it considers to be unlawful industrial action.
[71] Ms Child deposed it is not always been the case that Bechtel would take disciplinary
action against those employees engaging in unlawful industrial action. She said:
“I understand from Ms Wane... that Bechtel did not take disciplinary action against
the employees (including Mr Mahoney) that engaged in unlawful industrial action on
5 July 2012 because it predated Bechtel's practice of taking disciplinary action for
unlawful industrial action and Bechtel considered there to be extenuating
circumstances in the case of that industrial action.”35
[72] While Mr Fox advised employees attending the afternoon meeting they were
participating in unlawful industrial action, he did not raise potential consequences such as
dismissal, only the docking of pay.
“Did you, … you tell anyone at the time that one of the potential consequences of what
they were doing would be that they would be dismissed? ...No, I don't believe I
announced that to the group at the time.”36
Should the Applicant have known that participating in unlawful industrial action would lead
to dismissal because he was on a first and final warning?
[73] The Commission does not stand in the shoes of the employer but must be satisfied that
the termination of the employee was for a valid reason.
[74] There was no evidence before the Commission of clear communication to employees
of a policy change that unlawful industrial action would lead to termination, such as toolbox
meetings or notices. There was evidence of a change of corporate policy. Mr McCarthy, the
Deputy Site Manager at the QCLNG project said in his statement:
“Like many construction projects, the QCLNG project has had issues with incidences of
unlawful industrial action over the life of the project. Unlawful industrial action is illegal and
causes significant losses and delays. In addition, in my view and experience, industrial action
tends to lead to more industrial action, unless the employees involved are personally held
accountable for their actions.”
[75] It appears that Bechtel relies on the following for the decision to dismiss the
Applicant:
[2014] FWC 2756
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the Applicant had participated in unlawful industrial action by his presence at part
of the afternoon meeting and possibly for failing to resume duties at 2.00pm;
employees present at that meeting had been warned that they were participating in
unlawful industrial action; and
the Applicant had received a prior “first and final” warning.
[76] Mr McCarthy in his statement says that this approach is consistent with Bechtel's most
recent approach. It was instanced that on 23 November 2012 a number of QCLNG project
employees took industrial action leading to written warnings or where there was already a
final warning, dismissal. Further these had been highly publicised on the site resulting in a
picket on the mainland on 28 November 2012.37
[77] Mr McCarthy says in weighing up the decision to dismiss he was cognisant that he had
been informed by Workforce Services that employees had been told at the time of
participation in the industrial action that it was unlawful and that they should return to work
but had failed to do so.38
[78] Ms Child deposed that the decision to dismiss the Applicant was justified because it
was consistent with Bechtel's treatment of workers who had taken the most recent unlawful
industrial action on the QCLNG project on 23 November 2012.
[79] She indicates that those dismissals resulted in the picket in the QCLNG ferry car park
on 28 November 2012. She says she checked attendance records and noted that the Applicant
attended work on 28 November. In her view, he would have seen the picket. Additionally she
deposed that people on the QCLNG project talk a lot but that the dismissals were well-known
particularly because it resulted in legal action by the CFMEU against Bechtel.
[80] Bechtel submits that the Applicant admitted under cross-examination he knew
Bechtel’s practice of disciplining and potentially dismissing employees who took on the
unlawful industrial action. The exchange was as follows.
Do you remember that there had been a previous episode on the site where people had
taken unauthorised action and they had been disciplined--- that's correct people have
been yes.
So when it came to 3 July, you are well aware from what had happened on the site
previously that unauthorised stoppages of work attracted discipline?--- I was aware of
that but everyone's case is different and I wasn't doing that. I was on my smoko.
[81] The Applicant admitted awareness of discipline flowing from unauthorised stoppages.
He added that “everyone's case is different”.
[82] It takes it too far to make this into an admission that he knew he might be dismissed or
that he knew about the current or changed practice of disciplining employees or that his
attendance at the afternoon meeting exposed him to dismissal because of his previous
warning.
[2014] FWC 2756
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Was there a valid reason to dismiss?
[83] The Applicant’s participation in unlawful industrial action alone does not constitute a
valid reason for the dismissal, independently of the factual circumstances surrounding his
case. It may give rise to a legal right to terminate but that is different from establishing,
through proper inquiry into the factual circumstances, whether there was a valid reason for the
termination. See Miller; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (FCA)
and the detailed analysis of the majority of that case B, C and D v Australian Postal
Corporation T/A Australia Post [2013] FWCFB 6191, affd DP World Sydney Limited v
Lambley [2013] FWCFB 9230.
[84] The reason for each of the 6 terminations was the same:
the employee was present for some greater or lesser time during the afternoon
meeting;
that was taken to mean they participated in unlawful industrial action; and
each was on a final warning or had previous disciplinary history.
[85] Bechtel made much of the fact that the Applicant did not further pursue a grievance.
As explained above, the logic inherent in that statement is faulty, and in no way relieves the
employer of its obligations. It is equally true Bechtel failed on 4 July 2013 to pursue proper
enquiry into the Applicant's circumstances.
[86] There were assumptions that he must have been at the meeting at or immediately after
1.00pm. He was not. I have found he was there around 1.07pm. On his evidence he arrived as
late as 1.28pm. It seems no proper inquiry was made until the dismissal was challenged in the
Court and in these proceedings.
[87] No consideration was given to the fact he did not attend the smoko meeting and
returned to his duties while others met past the appointed time to return to work.
[88] It is clear on the evidence that participation in the smoko meeting in the morning was a
factor in Bechtel’s less compromising approach towards the afternoon meeting.
[89] While I have found that the Applicant did engage in unlawful industrial action I cannot
conclude there was a valid reason for his dismissal under s.387(a) when looking at the totality
of the evidence surrounding that industrial action, the most important being:
his non-attendance at the smoko meeting;
his consequent lack of prior knowledge that the afternoon meeting had been
scheduled until some time after 1.00pm;
his lack of knowledge of the purpose of the afternoon meeting;
the relevance of the smoko meeting in Bechtel’s decision to sanction attendance at
the afternoon meeting;
the fact he did not attend the afternoon meeting until some time after 1.00pm;
Bechtel’s lack of independent evidence at the time of dismissal that the Applicant
was in attendance when they say he must have been, namely 1.07pm.
[2014] FWC 2756
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[90] Bechtel also argued that its change in policy was a relevant factor for the validity of its
decision to dismiss Mr Mahoney. While this goes more to procedural fairness, I note there
was no evidence of an active approach to ensuring employees were aware of the policy.
Compare eg Queensland Rail v Wake (2006) 156 IR 393. I place no particular weight on this
factor.
Was the person notified of the reason?
[91] The Applicant submits that the decision to dismiss the Applicant was made early in the
disciplinary process, and not in explicit terms. It is certainly the case that the termination letter
was in the same terms for all other employees. It did not specify the unlawful industrial action
that gave rise to the sanction nor did it differentiate the smoko meeting from the afternoon
meeting. It appears that a formula had been adopted. This is confirmed by Ms Child’s
evidence that prompt sheets were read faithfully.
[92] Bechtel submits that the reasons for dismissal were stated both at the disciplinary
meeting and in its letter of dismissal.
[93] But specificity is important.39 In my view the notification was not sufficiently specific
because it lacked the details around the industrial action, and it failed to take into account the
factual circumstances of the individual employee including the matters stated above.
[94] It should be noted that Ms Child and Mr Scriffignano’s evidence differed on whether
attendance at the meeting alone or in conjunction with failure to return to work at 2.00pm
constituted the unlawful industrial action. Counsel submitted that Bechtel relied on both. As I
have found that the Applicant did attend the meeting, and therefore participated in unlawful
industrial action, albeit briefly, nothing turns on this difference, but it is indicative of the
uncertainty that pervaded the process used in his dismissal.
Was the Applicant given an opportunity to respond?
[95] The practical effect of being given an opportunity to respond was considered in
Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport40 where a
Full Bench of the Australian Industrial Relations Commission stated that:
[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to
terminate their employment in order to provide them with an opportunity to respond to
the reason identified. Section 170CG(3)(b) and (c) would have very little (if any)
practical effect if it was sufficient to notify employees and give them an opportunity to
respond after a decision had been taken to terminate their employment.
[96] The Applicant asserts that the decision to dismiss him was made prior to the meeting
of 4 July 2013. Bechtel denies that a decision was made prior to the meeting.
[97] The statement of Mr McCarthy indicates that a letter of dismissal was signed prior to
the meeting. However he deposes that dismissal was warranted subject to the Applicant being
able to give a satisfactory explanation of his behaviour. To be meaningful, this must include
the Applicant being given an opportunity to respond and perhaps justify his apparent refusal
to work, or otherwise raise any mitigating circumstances.
[2014] FWC 2756
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[98] The Applicant may have had his participation in unlawful industrial action put to him.
He may have been given an opportunity to respond, albeit a scant opportunity. But the
employer did not attend properly to the Applicant's responses.
[99] An “opportunity to respond” is meaningless unless the employer gives proper
contemplation to and consideration of the responses. It is not just whether the Applicant
participated in unlawful industrial action that should have been considered, but whether there
were any unique circumstances applying to the Applicant. There were. They were not
adequately considered.
A support person
[100] The Applicant requested and was able to have Mr Munro as his support person and it
seems Bechtel changed the meeting time to accommodate Mr Munro.
Access to human resources expertise
[101] An employer the size of Bechtel has a range of advisors and sophisticated procedures.
Failure of proper procedure, as occurred in this case, cannot be excused by a lack of capacity
or resources due to Bechtel’s size and access to resources.
Any other matters
[102] Mr Andrew Peters, the Applicant’s supervisor stated in cross-examination that the
Applicant was well organised, planned his work, had a good memory, was good at estimating
how long a job would take, and was efficient.
[103] The Applicant submits that the dismissal was harsh and he has experienced some
financial and personal difficulties since termination. He was unable to find work in Gladstone.
Alternative employment was made more difficult as a result of a work injury in June 2013. He
was married with a family while working for Bechtel in Gladstone, but after his dismissal he
and his wife were estranged. He has been suffering from sleeping problems and distress and
has been advised to see a psychologist.
Conclusion
[104] In considering whether the Commission is satisfied that the dismissal was harsh,
unjust or unreasonable I am required to take into account both whether there was a valid
reason and the processes around the dismissal.
[105] I find there was no valid reason, notwithstanding unlawful industrial action, because of
Bechtel’s failure to consider adequately the factual circumstances of the Applicant’s case.
[106] I have also concluded that while the Applicant was notified of the reasons for his
termination it was not specific enough and lacked sufficient detail. While he was given an
opportunity to respond to any allegations, the approach taken was formulaic, the decision to
dismiss was taken beforehand, and his responses were not taken properly into consideration.
[2014] FWC 2756
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[107] I have therefore concluded that the dismissal was unreasonable because firstly, there
was no valid reason; and secondly it was procedurally inadequate in that there was a failure to
adequately consider the Applicant’s particular circumstances. Therefore the dismissal is
unfair.
Remedy
[108] The Applicant originally sought reinstatement. He has now obtained other
employment and no longer wished to be reinstated. Accordingly the remedy available to him
is compensation in lieu of reinstatement under s.392. I have decided that his case is a proper
one for compensation to be ordered.
[109] While some economic loss material was handed up, this matter was not sufficiently
argued in a way that allows me to determine an appropriate sum. I will invite the parties to
make submissions on the question of compensation, taking into account the conclusions
detailed below.
[110] In considering compensation, I make the following observations about the Applicant’s
misconduct. Section 392(3) provides as follows:
If the Fair Work Commission is satisfied that misconduct of a person contributed to
the decision to dismiss, it must reduce the amount it would otherwise order by an
appropriate amount.
[111] Bechtel says that, even on the most favourable version of events the Applicant was at a
meeting without authority in work time and that this should be taken into account to any
award of compensation. Additionally Bechtel argues I should take into account the
misconduct that led to the final warning.41
[112] The Applicant suggests that the Commission can only take into account the unlawful
industrial action because of the use of the definite article in specifying ‘the misconduct’ can
only refer to the unlawful industrial action not to earlier warnings about the performance.
[113] Having found that the Applicant did participate in unlawful industrial action I am
therefore satisfied that the Applicant’s misconduct on the day contributed to the decision to
dismiss.
[114] As to his earlier misconduct, the parties did not point me to any authority that assists,
arguing only from principle.
[115] It seems reasonable to me the prior misconduct, resulting as it did in a “first and final”
warning is relevant but not as significant a factor as the unlawful industrial activity.
[116] Parties should in framing submissions to me in terms of Order 3 below be mindful that
the Applicant’s misconduct on 3 July 2013 would reduce the compensation payable to the
Applicant, and that the prior misconduct, while relevant, is a lesser consideration.
[2014] FWC 2756
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Orders
1. The application for unfair dismissal relief is granted.
2. Bechtel pay compensation to the Applicant in lieu of reinstatement.
3. The Parties provide submissions on the question of compensation if they cannot come
to agreement. Separate directions will issue accordingly.
COMMISSIONER
Appearances:
Mr R Reitano of counsel for the Applicant.
Mr J Murdoch of counsel for Bechtel Constructions (Australia) Pty Ltd.
Hearing details:
2014.
Brisbane:
10 and 11 March.
Printed by authority of the Commonwealth Government Printer
Price code C, PR550018
1 This and other the other dismissals were the subject of Federal Court proceedings: CFMEU v Bechtel Constructions
(Australia) Pty Ltd [2013] FCA 667, in which Greenwood J reinstated one applicant. This matter was removed by the
Applicant to the Fair Work Commission. Evidence from that case was adduced in these proceedings.
2 Statement of Zac Mahoney at paragraph 36.
3 Transcript dated 10 March 2014 at PN303.
4 Transcript dated 10 March 2014 at PN309.
5 Transcript dated 10 March 2014 at PN131.
6 Statement of Benjamin Fox, at paragraph 15(i).
7 Statement of Zac Mahoney at paragraphs36-40.
8 Reply Statement of Zac Mahoney at paragraph 9.
9 Reply Statement of Zac Mahoney at paragraph 6.
A
RK
71 0
AUSTRALIA HE
[2014] FWC 2756
20
10 Statement of Zac Mahoney at paragraphs 66-68.
11 Statement of Benjamin Fox - Attachment BF - 1A Affidavit of Luke Michael Tiley at paragraph 2.aa.
12 Exhibit R7 - Attachment KC - 1A at annexure KAC-1.
13 Rode v Burwood Mitsubishi ( unreported, AIRCFB) Print R4471 at paragraph 19.
14 [2003] FCAFC 180.
15 Ibid at paragraph 15.
16 Exhibit R3 - Attachment BF - 2A Affidavit of Ben Fox at paragraph 23.
17 Exhibit R3 - Attachment BF - 2A Affidavit of Ben Fox paragraph 22.
18 Statement of Scott Scriffignano at paragraph 22(c).
19 Transcript dated 10 March 2014 at PN1017.
20 Section 19 of the Fair Work Act 2009.
21 PR946290.
22 Ibid paragraph 46.
23 Transcript dated 11 March 2014 at PN1492.
24 Transcript dated 10 March 2014 at PN351.
25 Transcript dated 11 March 2014 at PN1692.
26 Transcript dated 11 March 2014 at PN1693.
27 Transcript dated 11 March 2014 at PN1495.
28 Transcript dated 10 March 2014 at PN326 and PN327.
29 Applicant’s outline of submissions at paragraph 18
30 Ibid paragraph 19.
31 Transcript dated 10 March 2014 at PN1039.
32 Transcript dated 10 March 2014 at PN341 and PN342.
33 Statement of Benjamin Fox at paragraph 23 and Transcript dated 10 March 2014 at PN937.
34 see Greenwood J in the Federal Court proceedings at [37]-[38].
35 Statement of Kara Child at paragraph 20(g)(iii).
36 Transcript dated 10 March 2014 at PN853.
37 Statement of Christopher McCarthy at paragraphs 11-12.
38 Exhibit R9 - Attachment CM - 1 Affidavit of Christopher McCarthy at paragraph 15.
39 Previsic v Australian Quarantine Inspection Services Print Q3730.
40 (2000) 98 IR 137.
41 Transcript dated 11 March 2014 at PN1689.
