1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bradley Auberson
v
Clough Downer Joint Venture Construction Pty Ltd
(U2014/1079)
DEPUTY PRESIDENT ASBURY BRISBANE, 9 APRIL 2015
Application for relief from unfair dismissal.
BACKGROUND
[1] Bradley Auberson applies for an unfair dismissal remedy with respect to his dismissal
by Clough Downer Joint Venture Construction Pty Ltd (CDJV). Mr Auberson was employed
by CDJV as a Rigger under the CDJV Construction Pty Ltd Upstream Project Enterprise
Agreement 2011 from 4 June 2013 until his dismissal on 17 March 2014.
[2] CDJV, at the time of the Applicant’s employment, was engaged on a Project involving
the construction of over 400 km of gas and water transmission pipelines, compression
facilities, camp and associated infrastructure for the upstream phase of the Santos Gladstone
LNG Project. CDJV’s client was Fluor Australia. Mr Auberson was dismissed for engaging
in an unsafe act while working at height and for engaging in the same act again after being
directed by his supervisor not to do so.
[3] Mr Auberson asserts that his dismissal was unfair on the grounds that there was no
valid reason for his dismissal and that he was not given a proper opportunity to respond to the
allegations made against him. Mr Auberson contends that the direction said to have been
given to him was not given and that he did not engage in an unsafe act.
[4] The application was made on 2 April 2014, within the time required in s. 394(2) of the
Act. Mr Auberson is a person protected from unfair dismissal as defined in s.382 of the Act.
CDJV is not a small business and the dismissal was not a case of genuine redundancy. The
matter was dealt with by way of a hearing, as it was considered that this was the appropriate
course, having taken into account the matters set out in s.399 of the Act and the views of the
parties.
EVIDENCE
[5] Evidence was given by Mr Auberson on his own behalf.1 Evidence for CDJV was
given by:
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E AUSTRALIA FairWork Commission
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Daniel Wallace Wisnesky, Rigger Supervisor;2
Christopher Russell Ireland, Health and Safety Advisor;3 and
Neville Backer, Construction Manager.4
[6] It is not in dispute that CDJV has Safety Golden Rules (the Rules) which are
promulgated at the site, including being displayed at various locations, read out each day and
discussed at pre-start or toolbox meetings. The Golden Rules stipulate that breaches will be
investigated and may result in disciplinary action and dismissal.
[7] Golden Rule number 2 is “NEVER work at height without fall protection.” That
Golden Rule is supplemented by a procedure (the Procedure) explaining what the Rule means.
That Procedure states:
“Working at Height – Shall be defined as any activity being performed in a workplace
where a person may fall from, through or into a place or thing.
Fall – means a fall by a person from one level to another.
Risk of a fall – means circumstances that exposes a worker while at work, or other
person while at or in the vicinity of a workplace, to a risk of a fall that is reasonably
likely to cause injury to the worker or other person.
This includes circumstances in which the worker or other person is:
In or on plant or a structure that is at an elevated level
In or on plant that is being used to gain access to an elevated level
In the vicinity of an opening through which a person could fall
In or in the vicinity of an edge over which a person could fall
On or in the vicinity of a surface through which a person could fall
On or in the vicinity of a slippery, sloping or unstable surface.”
[8] The safety incident that led to Mr Auberson’s dismissal related to working at height.
It occurred on 12 March 2014. Mr Wisnesky said that Mr Auberson attended a toolbox
meeting on 11 March 2014 at which this subject was discussed. Appended to Mr Wisnesky’s
statement was a sign on sheet, which included Mr Auberson’s signature, and an agenda for the
meeting, setting out the following statement. Mr Wisnesky said this statement was read aloud
at the meeting on 11 March 2014:
“Working at heights: A harness MUST be worn when working above 1.8 metres and
when no other fall protection such as handrails exists. Any potential for a fall from
one level to another must also be controlled and there must be a safe system of work to
prevent falls from any height. This project will accept national accredit (sic) working
at height training completed with the last 4 years. CDJV can assist with a working at
height refresher training if required. Remember if in doubt ask the question WTF?
Stop take 5!”
[9] On 12 March 2014, Mr Auberson was working as a rigger in a crew with a crane
operator, a pipe fitter and another rigger, Mr Cronin. CDJV has a practice whereby before a
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crew commences work, a document termed a “Safety Task Assignment” (STA) is prepared.
A Supervisor is required to sign off on the STA. It was Mr Wisnesky’s evidence that the
practice is that supervisors sign off on such documentation after the task is completed. The
STA is required to be consistent with a broader Job Hazard Analysis; referred to as a JHA.
Crews performing tasks on the Project sign on daily, to a STA before commencing work.
[10] Mr Auberson said that at the commencement of the task on 12 March 2014, he and his
crew checked the STA, and determined that the job was to be performed “under the workable
height”. It is probable that the STA had been prepared on the previous day and was utilised
again by Mr Auberson and the crew with which he was working. Mr Auberson believed that
the “workable height” was a height of 1.8 metres. According to Mr Auberson the crew took
all of the necessary safety precautions, including maintaining three points of contact, at all
times.
[11] After the incident and during the investigation, Mr Auberson returned to the area with
his colleagues and measured the height they were working at. Mr Auberson said that
although they were accused of working over 1.8 metres in height, they were working at a
height of 1.4 metres. According to Mr Auberson, this meant that the crew was not required to
take any additional precautions.
[12] Mr Auberson said he had not seen any empirical data to suggest that the height he was
working at was not safe at the time. Mr Auberson pointed to the fact that he was not breath
tested or drug tested after the incident. Mr Auberson also said that he has never been
investigated for a safety/policy breach or misconduct and has never been issued with a written
or verbal warning during his employment with CDJV.
[13] A statement provided by Mr Auberson during the investigation of the incident was
appended to Mr Backer’s witness statement.5 Mr Backer said that this document set out Mr
Auberson’s response to the allegations about the manner in which he had worked on 12
March 2014. The statement is hand written and appears to be signed by Mr Auberson. It
indicates that it was prepared at 2.40 pm on 12 March 2014. In that statement, it is asserted
that there was radio contact between Mr Auberson and the Crane Operator and that a tag line
was controlling the load swing. It is further asserted that Mr Auberson was standing at a
height of less than 1.8 metres and had three points of contact. Mr Auberson gave no evidence
about this statement and was not cross-examined in relation to it.
[14] Under cross-examination, Mr Auberson agreed that the Golden Rules are distributed
on site and discussed at tool box meetings. In relation to the Golden Rule 2 and/or the
procedure, Mr Auberson said that there was an older version which stated that it applied when
the height was 1.8 metres. It was not clear whether this was a reference to the Golden Rule or
the Procedure. Mr Auberson agreed that he had undertaken a general site induction when he
commenced employment with CDJV in June 2013 including an induction into the
CDJV/Fluor/Santos safety regime. Mr Auberson also agreed that he had undertaken training
with respect to working safely at height as a member of the emergency response team at the
site and as part of his training for his qualification as a Workplace Trainer Assessor and a
Certificate IV in occupational health and safety.
[15] In relation to the tool box meeting on 11 March 2014, Mr Auberson maintained that
the Agenda in evidence in these proceedings had been fabricated and that the discussion on
that date had been about confined space rather than working at heights. Mr Auberson said
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that the discussion about working at heights had occurred at the toolbox meeting a week
earlier and he had not attended that meeting. According to Mr Auberson, CDJV had take the
minutes of an earlier meeting and “jointed them together” to appear as though he had been
present at a meeting where working at height was discussed when he had actually been at a
meeting where confined space was discussed. Mr Auberson also said that he had pointed out
this error to Mr Backer at the time.
[16] In relation to the incident of 12 March 2014, Mr Auberson said that he was standing
on a beam at the pipe rack. In response to a question about how he was controlling the risk of
a fall, Mr Auberson said:
“I had three points of contact all the way. There was a pipe that was standing above me
where I had held onto it, because I needed to be in that position to - it was at 1.35 or
1.4 metres and I held on all the time. I had my vision there to look for the pipe as I
landed the pipe. I was in view of the crane operator for signalling. I could see the
other guys that were controlling the end of the pipes with the tag lines and I controlled
the pipe movement by placing the pipe within a pipe rack. There were about pipes in a
row and this one had to be landed in the middle and all I did was hang onto the pipe at
all times and with the other hand made signals and occasionally touched the pipe just
to lower it to its rightful position.”6
[17] The proposition was put to Mr Auberson that Mr Wisnesky observed him standing
with one foot on the pipe rack and one foot on the beam, holding the tag line with one hand
and an adjacent pipe with the other, while guiding the spool into position and at the same time
signalling to the crane driver by hand or with a radio. Mr Auberson said that he was not
actually holding the tag line but was pushing the pipe. Mr Auberson also said that he did not
think he had a radio and did not need to because he was signalling by hand and had full eye
contact with the crane operator.
[18] Mr Auberson agreed that Mr Wisnesky called him off the pipe because a Fluor
Manager, Ms Hempstead, had been concerned about the height at which Mr Auberson and the
crew were working. Mr Auberson said that he was not working in an unsafe manner and if
Ms Hempstead was genuinely concerned about the way he was working, she could have
stopped the job and had a duty of care to do so. In relation to the proposition that he could
have fallen from the beam Mr Auberson said that if he did fall it would have been onto a
platform, and agreed that it would be unpleasant to fall onto a steel platform: “if you fell”.
[19] Mr Auberson maintained that he stood on the beams and not the pipes. Mr Auberson
said that he did not stand on a purpose built scaffold platform because that platform was built
for welders and you could not stand on that platform and direct a load into place. In response
to a question about how he could have maintained three points of contact, Mr Auberson said
that he had two feet on the beam and one hand on a pipe above his head.
[20] Mr Auberson said that when Mr Wisnesky called the crew down from the pipe rack
Mr Wisnesky said:
“I’m not going to tell you how to suck eggs or do your job, but we’ve got a complaint
from [Ms Hempstead, Fluor HSE Manager] about you walking on pipes.”
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[21] Mr Auberson also said that Mr Wisnesky said that they were not supposed to be
standing on the pipes and that Mr Wisnesky knew full well that work had been performed in
that way for a long period without anything being said previously. Mr Auberson said he
responded by saying that he was not walking on pipes, but had his feet on beams. Mr
Auberson disagreed with the assertion that during the discussion with Mr Wisnesky he had
argued about the height at which the work was being performed and said that he had not
argued with Mr Wisnesky. In relation to the lawful direction said to have been given to him,
Mr Auberson had the following exchange with the Commission:
“THE DEPUTY PRESIDENT: Yes, so just to be clear, Mr Auberson, the proposition is
put to you that Mr Wisnesky said, “Do not stand on the pipes and do not stand on the
beams.” Do you agree or disagree with that proposition?---Do not stand on the pipes,
I agree with, because we don’t - there’s a rule that we’re not supposed to put on our
feet on the pipes because it could mark them and paint could come off, blah, blah,
blah, and then the painters get upset and everybody gets upset. At the same time, like I
said, there’s enough space there where my foot was either side - - -
I’m not asking you how much space was there?---Okay.
I’m asking you - - -?---What he said.
- - - to respond to the proposition that Mr Wisnesky said to you, “Do not stand on the
beam and do not stand on the pipes. There’s been a complaint. Do not do it”?---He
- - -
Do you agree or disagree with that?---I disagree.
What do you say that Mr Wisnesky said?---He just said, “I’m not going to tell you how
to do your job, suck eggs.” He said, more or less, “Just wait until things cool a bit
and then we’ll finish it,” more or less. That’s what he said, and he stood by and still
watched me do the whole job, because the pipe was still hanging off the hook of the
crane and it had to be landed. So we just waited for everybody to go away and I was
still safe, because it’s a safe position. There was nothing wrong with it. We’ve been
doing this all along, the whole project, and landed the pipe safely, no incident, no
fanfare.”7
[22] In response to the proposition that he had climbed back on to the pipe rack in defiance
of a direction not to do so, Mr Auberson agreed that he did climb back on to the pipe rack but
denied that he had been told not to do so. Mr Auberson maintained that Mr Wisnesky knew
that he was standing on the beams and simply told him not to stand on the pipes and that Mr
Wisnesky “more or less” said that the crew should just wait around until the safety personnel
had gone and then just finish the job. Mr Auberson also maintained that all members of the
crew went back up on the pipe rack to the same places they had been before, including Mr
Cronin, and that no other member was dismissed.
[23] In relation to the STA, Mr Auberson agreed that he had signed it that morning along
with the rest of the crew and pointed out that Mr Wisnesky had also signed the first and
second versions of the STA indicating that he believed that the way in which the work was to
be performed was safe. Mr Auberson said that the first STA did not deal specifically with
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working at heights because the crew knew that they were not working at a height requiring
additional precautions and it was up to the crew to manage controls.
[24] In relation to the meeting on 16 March 2014, Mr Auberson agreed that he got an
opportunity to respond to the allegations, and was told about them prior to the meeting.
However, Mr Auberson also said that he did not get the letter setting out the allegations until
1.5 hours before the meeting. Further, Mr Auberson said that he was advised that he could
bring a support person to the meeting, but due to the short notice, was required to meet his
support person at the meeting and did not have time to discuss the allegations with his support
person prior to the meeting.
[25] In relation to the events of 12 March 2014, Mr Wisnesky said that at or around 8.53
am he received a telephone call from Ms Hempstead, the Fluor HSE Manager at Hub 5, about
employees working at height on a pipe rack with the potential to fall. Mr Wisnesky attended
the work area and observed that the crew were using a 55 tonne crane to land a 12 metre spool
to the HCS pipe rack. The crew comprised a crane driver and two riggers, Mr Auberson and
Mr Cronin.
[26] Mr Wisnesky observed that the crane driver was lowering the spool (a specific length
of pipe) onto the pipe rack and that Mr Auberson was standing with one foot on the pipe and
the other on an “I” beam. Mr Wisnesky observed that Mr Cronin was holding onto an adjacent
piece of pipe with one hand and the tag line with the other hand while guiding the spool into
position. At the same time Mr Auberson was in charge of directing the crane driver using
either hand signal or radio.
[27] Mr Wisnesky said that Mr Auberson was at a height of approximately 1.5 metres
above the scaffold deck termed the “dance floor” which was itself approximately 1.5 metres
off the ground. If Mr Auberson had fallen, depending on the direction of the fall, he may
have fallen onto the steel scaffold deck, onto the pipework or other steel structures below.
According to Mr Wisnesky it was not possible for Mr Auberson to be maintaining three
points of contact while also doing his job of directing the crane and controlling the pipe at the
same time. Mr Wisnesky could not see Mr Cronin.
[28] Ms Hempstead expressed her concern about the manner in which the work was being
performed and Mr Wisnesky was obliged to act on that concern. Mr Wisnesky said that Ms
Hempstead’s concern was the potential for Mr Auberson and another employee Mr Cronin, to
fall from one level to another. Mr Wisnesky was told by Fluor safety personnel to speak to
the crew. Mr Wisnesky said that he spoke to Mr Auberson and Mr Cronin and told them that
Ms Hempstead had alerted him to the fact that they could fall from one level to another. Mr
Wisnesky also said that he told Mr Auberson and Mr Cronin that they were not working in a
normal work area such as a scaffold deck or something designed specifically to work from,
and that their work method was not acceptable. Mr Wisnesky said that he clearly directed Mr
Auberson and Mr Cronin that they were not to stand on the “I” beams or the pipe again.
[29] According to Mr Wisnesky, Mr Auberson and Mr Cronin argued with him about what
they considered was “the 1.8 metre rule”. Mr Wisknesky maintained that he told both
employees that their work method was not acceptable on the site and that there was potential
to fall from one level to another. Mr Wisnesky said he did not shout but was very firm. Mr
Wisnesky also said that he appreciated that Mr Auberson and Mr Cronin were doing high risk
work and he did not want to make them angry. It is clear from Mr Wisnesky’s evidence that
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he climbed on to the scaffold to have this discussion with Mr Auberson and Mr Cronin. Mr
Wisnesky also said that during the discussion, one end of the pipe was still suspended so that
the crane driver had to stay in the crane for safety reasons.
[30] Mr Ireland and another Fluor Health and Safety Advisor, Mr Fettell, arrived at the
scene while Mr Wisnesky was still on the scaffold talking to Mr Auberson and Mr Cronin.
Mr Wisnesky then got down from the scaffold where and had a discussion with Mr Ireland
and Mr Fettell about what had been observed and the inadequacies of the STA completed by
the crew earlier on that day.
[31] Mr Wisnesky said that he was told by the Fluor representatives that the STA prepared
by the crew was inadequate because it did not mention working at heights or the risk of falling
from one level to another. Mr Wisnesky said that he agreed with this view and believed that
Mr Auberson and the other employees had failed to prepare an adequate STA for the task.
[32] Mr Wisnesky’s evidence was that at the point he started the discussion with Mr Ireland
and Mr Fettell, Mr Auberson and Mr Cronin were waiting for a scaffolder to come and
perform a task. Mr Wisnesky had his back to the pipe rack and did not expect that Mr
Auberson and Mr Cronin would start work again immediately. When Mr Wisnesky turned
around he saw that Mr Auberson and Mr Cronin had climbed back onto the pipework to
complete the task. Mr Cronin was working from a position inside the scaffold. Mr Auberson
returned to the exact same position he had been working in when Mr Wisnesky stopped the
job. Mr Ireland or Mr Fettell drew Mr Wisnesky’s attention to the fact that Mr Auberson was
back where he had just been.
[33] Mr Wisnesky said that he “went cold” and thought “what the hell is he doing” because
Mr Auberson had just been directly instructed not to clamber on the pipes or stand on the
pipes or the “I” beam. Mr Wisnesky did not stop the job at this point because the pipe was
being landed, and there was more risk associated with leaving the pipe suspended. As soon as
the pipe was landed, Mr Wisnesky called the crew down and discussed with them the work
method they had just used and what was wrong with it.
[34] Mr Wisnesky said he was not happy because Mr Auberson had disobeyed a reasonable
and lawful instruction, in circumstances where Mr Wisnesky had just told the safety advisors
that he had directed the crew not to stand on the pipes or the “I” beam. Mr Wisnesky worked
with the crew and asked them to prepare another STA. A verbal warning was issued to all of
the crew and they were advised that any other breaches like this would most likely end their
employment.
[35] The two STAs that were prepared in relation to the work being performed by Mr
Auberson’s crew on 12 March 2014 were in evidence, appended to Mr Wisnesky’s statement.
The first STA indicates that it was prepared at 6.30 am by the crew performing the work -
including Mr Auberson - and that the task dealt with in that STA is “Crane Operation”.8 The
first STA states that safe work practices pertinent to hazards are [with illegible writing
omitted]:
Gloves
Water/shade breaks
Test gear for validity...
Housekeeping
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Competent persons
Exclusion zone/barricaded
Positive communication
Watch footing and load...
Tag line/control load.
[36] Mr Wisnesky added a comment to that STA at 4.15 pm indicating that an unplanned
incident in relation to health, safety and environment occurred, which he describes as: “person
working at height under 1.8 no fall restraint”.
[37] The second STA was prepared at 11.15 am and is stated to cover a task described as
“Pipe Lifting and Installing”.9 The safe work practices pertinent to hazards set out on the
second STA are:
PPE/Check rigging gear
Water/shade breaks
Housekeeping watch footing
Work safely slowly and control load watch out for each other
Good communication visually
Three points of contact and firm secure footing - Access and egress is suitable
All work to proceed with due diligence.
[38] As previously noted, Mr Wisnesky said that he worked with the crew and asked them
to complete the second STA. Mr Wisnesky signed off on the second STA at 4.20 pm and
does not make any notes about the earlier incident on that STA. After the second STA was
completed, Mr Wisnesky was required to explain the incident to Fluor health and safety
representatives and was subsequently directed by the Fluor Project Manager to stand down the
crew so that a full investigation could take place. Mr Wisnesky complied with this direction
and the investigation was handed over to HSE staff.
[39] During the investigation, Mr Auberson provided a statement about the incident in
which he said that an exclusion zone had been put into place; he had been in radio contact
with the crane operator; tag lines were in place on the load; he was standing at a height of less
than 1.8 metres; and he was maintaining three points of contact.
[40] In relation to Mr Auberson’s responses to the safety breach, Mr Wisnesky said that:
Mr Auberson attended a toolbox meeting on 11 March 2014 at which working at
heights was discussed;
The Rules are read out every day and prominently displayed on the site;
Mr Auberson’s claim that he was working under 1.8 metres is irrelevant because
the procedure for working at heights is about the risk of falling from one level to
another and the only relevance of 1.8 metres is whether a harness is required to be
worn;
The crew that day was experienced and should have been able to prepare an
appropriate STA;
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Mr Auberson and Mr Cronin did not use the scaffold that had been built on the
pipe rack;
After Mr Wisnesky directed them how not to do the job, Mr Cronin showed that he
understood by only working from the scaffold thereafter, while Mr Auberson
disregarded his lawful direction and did not work in a safe manner and did not
work from the scaffold;
Mr Auberson’s assertion that the job was at workable height demonstrates his lack
of understanding of the risk as does his assertion that the crew was accused of
working at a height of over 1.8 metres;
Mr Auberson had undertaken working at heights training, is a member of the
emergency response team, is a Certificate IV Trainer/Assessor and holds a
Certificate IV in Occupational Health and Safety.
[41] Mr Wisnesky maintained that it was possible for Mr Auberson and Mr Cronin to work
safely and land the pipes whilst standing within the scaffold and the hand rails. Mr Wisnesky
also stated that Mr Auberson was wrong to assert that he was working in a manner that was
normal at the site and if Mr Auberson had worked in this way in the past, he should not have
done so.
[42] Under cross-examination Mr Wisnesky agreed that it is his job to make sure that
employees are working safely and that he had signed off on both the original STA prepared
by Mr Auberson and the crew on 12 March 2014 and the replacement version. Mr Wisnesky
also agreed that he reviewed such documents at the end of the day and that he had to sign
them off regardless of whether or not they were correct, but made a notation as to where he
had an issue with the STA. With respect to the first STA, Mr Wisnesky recorded the incident
on the STA by indicating that a person was working at a height under 1.8 metres with no fall
restraint. Mr Wisnesky said that at the point the second version of the STA was drafted, the
crew had not been stood down and he had assumed that the work would proceed and a
stronger STA would be required.
[43] Mr Wisnesky was asked in cross-examination what Mr Auberson and the crew could
have done to make the job safe. In response, he said that a strong STA could have been put
into place; tag lines or a different method of doing the job used; or the crew could have
worked off the scaffold or used some form of restraint. Mr Wisnesky said that he did not
know what sort of restraint could have been used and conceded that a static line would not
have been practical.
[44] Mr Wisnesky disagreed with the proposition that it was not practical for the crew to
work off a scaffold, and said that it was not appropriate for Mr Auberson to clamber over “I”
beams and pipe in order to perform his work. Mr Wisnesky said that while Mr Auberson may
have thought about the risk of falling he had failed to include it in the STA. In response to a
question about what Mr Wisnesky actually told Mr Auberson on 12 March 2014, Mr
Wisnesky had the following exchange with Mr Cousner:
“What did you actually say to him?---There was discussion backwards and forwards
with Mr Auberson and Mick Cronin about what the problems were with the job and
that. Basically we started by discussing the concerns that Tracey-Lee had about them
working at height with the potential to fall and that. Both Mr Auberson and Mick
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Cronin said, “We’re not working over 1.8 metres. We’re right to work there,” but as I
explained to them, it had been brought to my attention about there being a risk of
falling from one height to another.
I see?---Sorry, one level to another.
That’s it. That’s what you said to them?---Actually, there was quite a bit of backwards
and forwards. This wasn’t just a one sentence thing and that. We discussed that
probably four or five minutes, yes, but there is a potential to fall and the guys kept
going back to the 1.8 metres and as I explained to them, in this case there was concern
about it, that we could not continue to work that way. There was nothing in place to
lower the risk.
I see, and you offered what examples to tell them how they could lower the risk?
---As a matter of fact I wasn’t asked for an example and I didn’t actually give one, to
be quite frank. These guys, particularly with Mick Cronin and the crane driver and
that, are a pretty experienced crew. Unless they ask me, they’ve got a problem they
can’t solve, usually you will leave them to sort it out themselves. These guys are all
trained to do these jobs.”10
[45] In response to a question about why he had not proposed examples to mitigate the risk,
Mr Wisnesky said that he discussed with the crew what they could not do. In response to the
proposition that he had said nothing when the crew returned to the pipe rack after he had the
first discussion with them, Mr Wisnesky said that if he had seen them start work and head
back up to the job, he would have had something to say about it such as “stop what you are
doing”. Mr Wisnesky then said that he told the crew that they were not to go back to where
they were and not work on the pipe outside the handrails.
[46] Mr Wisnesky denied the proposition that he stated to the crew that he did not want to
tell them how to do their job, but that what they were doing was “probably unsafe”. He said
that when he turned around and saw Mr Auberson back in the same position, he knew “how
much grief it was going to cause”. In response to a question as to whether he told the crew
not to work outside the handrail, Mr Wisnesky said: “yes that was plain.” Mr Wisnesky also
said that Mr Cronin followed this direction and used the scaffold rather than getting back up
on the pipe rack. Mr Wisnesky agreed that:
two very experienced riggers were doing a job in a way that they thought was safe;
he thought that the way they were doing the job was unsafe and told them so;
he offered no alternative to the unsafe work method; and
he turned his back to have a conversation with other persons who were also present.
[47] Mr Wisnesky was asked why he thought that two people who had determined that the
job was safe would come up with an alternative and what was going to change after he had
the conversation with Mr Auberson and Mr Cronin and offered them no alternative
suggestion. In response, Mr Wisnesky said that he had intended to go back and have a
discussion with them before work started again and did not expect the job to start again
without that discussion.
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[48] The proposition was put to Mr Wisnesky that he had a discussion with the Fluor
Safety personnel while the pipe was still suspended from the crane hook and that the
conversation could have waited until the safety issue was resolved. Mr Wisnesky agreed that
the conversation was not urgent but said nothing was happening and he did not think it was
unreasonable that he speak to the Fluor personnel. Mr Wisnesky also agreed that the
conversation did not have to happen straight away, and that it would be fair to say that it was
within his duty of care to ensure that the job resumed safely before having the conversation
with Fluor personnel.
[49] Mr Wisnesky said that he did not tell Mr Auberson straight away that he had breached
the Rules but the normal process of stopping the job and referring the matter to the safety
department was followed. Thereafter Mr Wisnesky had no knowledge of the process. He was
aware that Mr Cronin received a first and final warning and that another employee, Mr Spear,
may also have received such a warning. Mr Wisnesky said that he did his best to maintain Mr
Auberson in employment because it is not in his interests to get rid of employees. However,
Mr Wisnesky could not guarantee that Mr Auberson would not repeat the unsafe behaviour
and this was a factor in the decision to dismiss Mr Auberson.
[50] In response to a question from the Commission about exactly what he said to Mr
Auberson, Mr Wisnesky said that he told Mr Auberson that he was not to get back on the pipe
rack and that this covered the “I” beams. Mr Wisnesky denied that he told Mr Auberson that
he was not supposed to stand on the pipes but should wait until things cooled down and they
would finish the job. Further, Mr Wisnesky disagreed with the proposition that Mr Auberson
could not have worked from the scaffold deck and said that Mr Auberson had even stated that
he was holding on to the ladder for that scaffold at one stage and that meant he was pretty
close to the scaffold deck and could have worked from it. Mr Wisnesky also disagreed with
Mr Auberson’s evidence that the way work was done that day was the same way it was
always done.
[51] Mr Ireland arrived on the scene after the direction was issued to the crew by Mr
Wisnesky. Mr Ireland said that he observed Mr Auberson standing on a beam approximately
1570 mm above a scaffold deck, dogging a 10 – 12 metre pipe, and failing to mitigate the
potential for a fall. Two other employees were also in precarious positions. Mr Wisnesky
told Mr Ireland that he had instructed Mr Auberson and Mr Cronin not to stand on the “I”
beam but that the third employee had not heard that direction. That employee was
subsequently directed to cease working on the pipe rack and complied with the direction.
[52] Mr Ireland did not stop the job immediately because he deemed it unsafe to take the
employees’ concentration away from the high risk task they had almost completed. As soon
as it was safe to do so, Mr Ireland and Mr Fettell called a meeting to advise the team of the
unsafe acts and conditions they had identified. They also assessed the JHA and STA and
noticed that there was a lack of information and that both should be reviewed. In particular,
the STA did not identify the potential hazard of falling from one level to another and no
controls were in place in relation to that risk.
[53] Mr Ireland said that the Rules are ingrained at site, and whenever there is a risk of an
employee falling from one level to another, employees are deemed to be working at height,
and must control the risk. Notwithstanding his safety qualifications and training, Mr
Auberson did not identify the risk.
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[54] Under cross-examination, Mr Ireland said that if a Rule is breached a “Just Culture”
process is applied, but that nine times out of ten the employment of an employee who
breached a Rule would be terminated. Mr Ireland was asked what Mr Auberson and other
employees could have done to mitigate the risk associated with the manner in which they
were working and said that they should have stopped the job, looked at the STA and the JHA.
The job was not set up correctly and Mr Auberson did not need to be standing in the position
he was in to bring the load in safely.
[55] Mr Ireland agreed that Mr Wisnesky told him that he had directed the employees to
stop working in the manner in which they were working and that while he was having a
conversation with Mr Wisnesky (during which Mr Wisnesky’s back was turned to the
employees) they climbed back on to the pipe rack and resumed working in an unsafe manner.
In response to a question about whether Mr Wisnesky should have ensured that work resumed
safely, Mr Ireland said that Mr Wisnesky was looking after grown men, not children, and it
was up to the employees to assess risk as they were trained to do. Mr Ireland also said that
the focus should be on employees putting themselves at risk and not on Mr Wisnesky.
[56] In relation to the other employees working with Mr Auberson on the day of the
incident, Mr Ireland said that Mr Cronin was in a safe position on the deck after the direction
issued by Mr Wisnesky and that another employee was not in a safe position. That employee
had not had not previously been told by Mr Wisnesky to cease working in an unsafe manner
but did so immediately on being instructed by Mr Ireland to get down from his position. Mr
Ireland agreed that this employee was probably breaching a Golden Rule but said that he was
not privy to the investigation of the incident because he was off site on leave.
[57] Mr Backer said that on 12 March 2014 he was approached by Mr Wisnesky who told
him that two riggers had been observed by the Health and Safety Manager of Fluor working
in an unsafe manner on the pipe rack. Mr Wisnesky further reported that he had directed the
riggers not to climb on the pipes or the “I” beams and that Mr Auberson had disobeyed that
direction and immediately did what he had been told not to do.
[58] An investigation was conducted and Mr Backer met with Mr Byrom, CDJV
Employee Relations Advisor, to discuss the two incidents and Mr Auberson disobeying the
instruction from Mr Wisnesky. Mr Backer and Mr Byrom undertook a “Just Culture” process
and determined that the outcome of the first incident, where Mr Auberson stood on the pipes
and beams while rigging for the crane crew was an incident that warranted a
“Warning/Negative Performance Appraisal” and the outcome for the second incident, where
Mr Auberson disregarded a lawful direction and again stood on the pipes and beams, was
“Severe Sanctions.”
[59] On the morning of 16 March 2014 Mr Auberson was stood down on full pay and
given a letter setting out the allegations to which he was required to respond. Mr Auberson
was told that Mr Backer would meet with him at 2.30 pm that day for the purpose of Mr
Auberson providing a response to the allegations and that he could have a support person
present for that meeting. The Allegations as set out in the letter given to Mr Auberson on 16
March 2014 were as follows:
“1. On 12th March in the period between 0900 and 0930 you engaged in an unsafe act
in standing on steel beams/pipework outside of scaffold protection and at a height of
[2015] FWC 1179
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1570mm above steel scaffold decking and you did this without regard to protecting
against the possible consequences of a fall.
2. That you engaged in the unsafe activity described in 1 (above) on two occasions
that morning. The second such occasion was shortly after your supervisor had
directed that you (and others in the crew) not engage in such activity i.e. to clamber
about on beams and pipework.
3. Your act on the second occasion was in defiance or disregard of your supervisor’s
instruction.
4. You failed to prepare an appropriate STA for the task being performed at the
location. In addition you did not review the STA that you and others in your crew had
prepared at commencement of the day before undertaking the work being completed
when the unsafe acts were engaged in. The STA that was completed described the task
generically as ‘crane operation’. This is not fitting of the work that you were involved
in.
5. You failed to meet your duty of care obligation. As provided in the applicable
legislation the duty of workers, while at work, is that they must take reasonable care
for their own health and safety and that of others who may be affected by their actions
or omissions (see Work Health and Safety Act, Qld). The unsafe act in which you
engaged had the possibility of significant injury. As a worker you must comply with
any reasonable instruction given by a supervisor.
6. You failed to observe the notice which was presented to you and other employees at
toolbox meeting on 11th March 2014 stating:
Working at heights: a harness MUST be worn when working above 1.8 metres and
when no other fall protection such as handrails exists.
Any potential for a fall from 1 level to another must also be controlled, so we need to
make sure we have a safe system of work to prevent falls from any height...”11
[60] Mr Auberson attended a meeting, with Mr Backer and Mr Byrom and brought a
Rigger, Mr Glowaski, as his support person. The meeting went from 2.35 pm to 3.00 pm.
According to Mr Backer, Mr Auberson agreed at the meeting that:
He stood on beams outside the scaffold protection area; and
After being directed not to do so, again stood on beams and pipework.
[61] Mr Backer said that Mr Auberson maintained that on the first occasion that he stood
on the beams he had three points of contact and felt safe and there was less danger on the
second occasion, because he was holding on to a ladder. Mr Auberson also claimed that no
accident happened and that even though he was operating a radio, the situation was no
different than if he had been climbing a ladder.
[62] In response to the allegation that he had failed to observe the notice about working at
heights given to him and other employees at a toolbox meeting on 11 March 2014, Mr
Auberson maintained that nothing was said at the toolbox meeting he attended and he had no
[2015] FWC 1179
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recollection of the issue of working at heights having been raised. In response to the
allegation that he had engaged in unsafe activity on two occasions and that the second
occasion was shortly after being directed by his supervisor not to do so, and in defiance of
that instruction, Mr Auberson stated that the supervisor did not speak to the crew. Mr
Auberson said that the supervisor stated that he had been told to “give them a pineapple” and
also said that he was not going to tell them how to do their work. Mr Auberson also said that
the supervisor was not assertive and that he would not disobey an instruction. Further, Mr
Auberson disputed that he had been given an instruction.
[63] The meeting was adjourned and resumed at 3.35 pm at which Mr Auberson was
shown a sign on sheet for the toolbox meeting on 11 March indicating that he had been in
attendance. It was also established that Mr Auberson had attended an induction on 3 June
2013 which has a section on working at heights. Mr Auberson had also attended a nationally
accredited course, paid for by CDJV, in relation to identification of and control of risk and
working safely at heights.
[64] The second meeting concluded at 3.50 pm. Mr Auberson’s responses to the
allegations were considered. According to Mr Backer’s evidence, CDJV did not accept that
Mr Auberson’s responses mitigated against the fact that he had:
engaged in an unsafe act by standing at height outside protective scaffolding despite
being present at a toolbox meeting the day before about the issue of working at
heights;
been warned by his supervisor that he was working in an unsafe manner and should
not clamber on or stand on the pipes;
immediately engaged in an unsafe act and worked at a height outside the protective
scaffolding; and
deliberately disregarded or disobeyed a lawful direction that he not stand on the pipes
or the beams.
[65] After considering the matter further and reviewing the HSE investigation, Mr Backer
discussed the matter with the Project Manager, Mr Scott, and it was concluded that Mr
Auberson could not be trusted to exercise good judgment and engage in safe leadership
behaviours proportionate to the risks involved with the work he was performing on the pipe
racks. It was decided that Mr Auberson should be dismissed.
[66] Mr Backer met with Mr Auberson at 12.55 pm on 17 March and informed him that his
employment was to be terminated with immediate effect and provided him with a letter
confirming this. Mr Auberson was paid until 17 March 2014 and his accrued entitlements
were paid in addition. Mr Backer said that Mr Auberson was dismissed because he disobeyed
a direct and lawful instruction from his supervisor not to engage in an unsafe act without
regard to protecting against the possible consequences of a fall.
[67] Under cross-examination, Mr Backer agreed that the incident occurred on 12 March
2014 and that Mr Auberson continued to work until 16 March when he was stood down. Mr
Backer said that this was because the investigation of the matter was not completed until 16
March 2014. Mr Backer also said that Mr Wisnesky reported the incident involving Mr
Auberson to him on 12 March 2014. Further Mr Backer agreed that the investigation was
about employees working in an unsafe manner and disobeying a direct order issued by a
supervisor. Mr Backer maintained that it was not unusual that Mr Auberson would be
[2015] FWC 1179
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allowed to continue to work for a four day period because at that point it was only alleged that
Mr Auberson had breached policy.
[68] On receiving the report Mr Backer considered Mr Auberson’s assessment that he had
not worked in an unsafe manner. The stand down letter inviting Mr Auberson to attend a
meeting to discuss the allegations was drafted by a HR person. Mr Backer did not disagree
with Mr Auberson’s evidence to the effect that he did not get the letter until an hour and a-
half before the meeting commenced, but maintained that Mr Auberson had time to consider
his response to the allegations because the investigation had gone on for four days.
[69] With respect to the events that lead to Mr Auberson’s dismissal, Mr Backer said that
his understanding was that there were two incidents. The first incident involved Mr Auberson
and others working at height without taking appropriate steps to manage risk. With respect to
the first incident, it was determined by using the “Just Culture” process that the actions were
not intended and that Mr Auberson had not made a conscious decision not to follow
procedure. As a result, it was determined that Mr Auberson had engaged in unacceptable
negligent behaviour and should be subject to a warning or negative performance appraisal for
that behaviour.
[70] In contrast, the second incident was viewed as being deliberate because Mr Auberson
continued to work unsafely at height after being directed by his supervisor not to do so. The
Just Culture process in relation to the second incident determined that the actions were
intended on the basis that Mr Auberson had been directed by his supervisor not to stand on
the steel. In relation to the exact direction given by Mr Wisnesky, Mr Backer said that it was
either that Mr Auberson was not to stand on the pipes or the beam or that Mr Auberson should
not work in an unsafe manner. Later, Mr Backer said that both directions were given to Mr
Auberson.
[71] Mr Backer said that both “Just Culture” analyses were done at the same time, but the
warning arising from the first one was not given because as a result of the second process it
had been determined that Mr Auberson should be dismissed.
[72] In relation to the STA that was signed off by Mr Wisnesky, Mr Backer said that it
related to crane operation rather than working at heights. Mr Backer said that the other
employees working with Mr Auberson on 12 March 2014 were not dismissed but were given
warnings. In response to the proposition that those employees had also breached a Rule, and
according to policy were liable to be dismissed, Mr Backer said: “You’ve got me on that one,
I’m afraid”12. Mr Backer also said that the other employees received a warning because it
was concluded that they had not intentionally broken the rule. It was determined that Mr
Auberson had intentionally broken the Rule because he was instructed not to do something
and did it.
[73] In relation to remedy, Mr Auberson said in his first statement that he earned $3000 per
week while employed by CDJV and has obtained other employment in which he earns the
same amount within three months of his dismissal by CDJV. After the Decision in this matter
was reserved, further Directions were issued to require Mr Auberson to provide further details
in relation to his earnings at the point of his dismissal and subsequently. Those Directions
also required information about Mr Auberson’s earnings during his employment to be
provided by CDJV.
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[74] In response to those Directions, Mr Auberson filed a Statutory Declaration in which he
declared that he no longer had pay slips in his possession demonstrating his base wage rate at
the point of his dismissal. Mr Auberson further declared that on the basis of his perusal of the
relevant enterprise agreement and payslips provided by CDJV, his base wage rate at the time
of his dismissal, including all purpose allowances and excluding overtime and penalty
payments, was $45.2463 per hour. Neither CDJV nor Mr Auberson gave any evidence about
his work patterns including overtime during the period of his employment. Mr Auberson’s
evidence that he earned $3000 per week was not contested. Mr Auberson said that he
commenced alternative employment on 14 July 2014. Mr Auberson did not seek
reinstatement and sought an order for compensation in the amount of 12 weeks wages for the
period between his dismissal from CDJV and commencing his current employment.13
RELEVANT LEGISLATION
[75] In considering whether the Commission is satisfied that a dismissal was harsh, unjust
or unreasonable the Commission must take into account those matters specified by s.387 of
the Act, as follows:
“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
(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.”
[76] A valid reason for dismissal is one that is “sound, defensible or well founded” and not
“capricious, fanciful, spiteful or prejudiced.”14 The reason for termination must also be
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defensible or justifiable on an objective analysis of the relevant facts,15 and the validity is
judged by reference to the Tribunal’s assessment of the factual circumstances as to what the
employee is capable of doing or has done.16 The matters in s.387 go to both substantive and
procedural fairness and it is necessary to weigh each of those matters in any given case, and
decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the
employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the
employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have
been drawn from the material before the employer.17
CONSIDERATION
Was there a valid reason for Mr Auberson’s dismissal?
[77] The reason for Mr Auberson’s dismissal was a compound reason, essentially
comprising two limbs - breach of a Golden Rule and deliberate failure to follow a lawful and
reasonable direction from his supervisor in relation to a safety matter. Separate “Just Culture”
processes were conducted for the breach of the Golden Rule in relation to working at height
and the failure to comply with the direction of a supervisor resulting in a further breach of the
same Golden Rule. The sanction for the breach of the Golden Rule was determined to be a
warning or negative performance appraisal and for disregarding a lawful direction, severe
sanctions – including dismissal - were to apply. It is also the case that other employees who
breached the Golden Rule in relation to working at height were not dismissed, on the basis
that they did not fail to follow a supervisor’s direction.
[78] CDJV contends in its written submissions that there was a valid reason for Mr
Auberson’s dismissal - he breached a Golden Rule, engaged in unsafe work conduct that
amounted to serious misconduct and then disobeyed a lawful direction not to engage in the
unsafe work conduct again.
[79] I accept that on 12 March 2014, Mr Auberson was performing work in an unsafe way
and that in doing so he was breaching the Golden Rule in relation to working at heights.
However Mr Backer said that his reasons for dismissing Mr Auberson were that he had
engaged in an unsafe act by working outside a scaffold area and had disobeyed a lawful and
reasonable direction that he was not to clamber on pipes and beams. It is clear from Mr
Backer’s evidence that the consideration that Mr Auberson had not worked in the scaffold
area was a significant factor in his decision to dismiss Mr Auberson.
[80] The evidence of Mr Wisnesky about the terms of the direction that was given to Mr
Auberson was inconsistent and unclear. In his witness statement, Mr Wisnesky said that he
told employees not to walk on or clamber on the pipes and the “I” beam. Mr Wisnesky also
said that it was possible for Mr Auberson and Mr Cronin to work safely and land the pipes
while standing within the scaffold and hand rails. In his oral evidence in chief and under
cross-examination, Mr Wisnesky was unable to give clear and cogent evidence about the
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actual direction that he gave and conceded that he did not give the crew any examples of how
they might perform the work safely.
[81] Under cross-examination, when asked about how the crew could have landed the pipe
safely, Mr Wisnesky said that they could have used tag lines or worked off the scaffold. This
is inconsistent with Mr Wisnesky’s evidence in chief when he said that one of the issues he
was concerned about was that Mr Auberson was holding a tag line with one hand and an
adjacent piece of pipe with the other hand, while guiding the spool into position. How Mr
Auberson could have used a tag line to perform the job safely, when he was already using a
tag line, was not explained.
[82] Significantly, Mr Wisnesky did not say in his evidence in chief that he directed Mr
Auberson to work within a scaffold protected area. Mr Wisnesky said that he pointed out to
Mr Auberson and Mr Cronin that there was a potential for a fall from one level to another and
that they were not working in an area such as a scaffold deck. Mr Wisnesky did not claim to
have directed Mr Auberson and Mr Cronin to work in a scaffold area until he was under
cross-examination. This was Mr Wisnesky’s fourth version of the direction.
[83] It is more probable that Mr Wisnesky’s earlier evidence to the effect that he did not
give a direction in positive terms about how the job should be completed is more likely. On
balance I am unable to accept Mr Wisnesky’s evidence that he gave a clear direction to Mr
Auberson to the effect that he should work within the scaffold and hand rails. If Mr Wisnesky
gave such a direction, it should have been clearly stated in his evidence in chief and not
extracted from him under cross-examination after he had given evidence of at least three other
versions of the alleged direction. I am also not satisfied that Mr Wisnesky gave a direction
that Mr Auberson was not to stand on the pipes or beams.
[84] The proposition that the direction given to Mr Auberson by Mr Wisnesky was unclear
is made more probable by the terms of the two STAs that were prepared in relation to the
work that was being performed on the day in question. The second STA was prepared after
the incident, and in the context of Mr Wisnesky’s expectation that the work would continue.
Mr Wisnesky said that he worked with the crew and told them to complete the second
“stronger” STA. Mr Wisnesky made no alteration to that second STA and signed off on it.
Significantly the second STA makes no reference to any requirement to work from the
scaffold protected area, or that the crew not stand on the “I” beams or the pipe.
[85] On the evidence of Mr Backer and Mr Wisnesky, it was not possible for the crew to
have three point contact while working on the pipe rack and the most effective way to manage
the risks associated with that work was for the riggers to work within the scaffold protected
area. If Mr Wisnesky gave such a direction, it is highly improbable that he would not have
ensured that it was included in the second STA. Further, the second STA does not state that
employees should not climb on the pipes or the beams. To the contrary, it states that they
should have three points of contact and secure footing. This was exactly the precaution that
Mr Auberson asserted that he had taken prior to issue being taken with the way in which he
was performing the work.
[86] If Mr Wisnesky directed that the work in question not continue as it had been or that it
be performed from within the scaffold protection area, then the STA should have stated this.
The fact that it does not, makes it more probable that the directions Mr Wisnesky asserts that
he gave were not given. It is also the case that - on Mr Wisnesky’s evidence – Mr Auberson
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was arguing that he was working safely and had three point contact. The second STA would
have done nothing to disabuse Mr Auberson of that belief.
[87] At best, Mr Wisnesky told Mr Auberson and Mr Cronin that Fluor management was
concerned about the way that they were working and that he gave a direction that they should
stop. I do not accept that Mr Wisnesky told Mr Auberson to stop work while things “cooled
down”. In any event if that direction was given, Mr Auberson did not comply with it and in
fact acted to the contrary by immediately continuing to work in a way that he had just been
told was causing concern to Fluor managers. However, for the reasons set out above, I do not
accept that Mr Auberson was told to get off the pipe rack altogether and work from the
scaffold protected area.
[88] CDJV has not established that the direction Mr Baker believed Mr Wisnesky gave Mr
Auberson was in fact given. The extent of the inconsistencies in the evidence of Mr
Wisnesky is so significant that I am unable to be satisfied about the terms of the direction that
was given to Mr Auberson or that he deliberately disregarded it. In those circumstances Mr
Auberson’s failure to follow a supervisor’s direction was not a valid reason for his dismissal.
[89] I accept that Mr Auberson was not working safely on 12 March 2015. In this regard I
accept the evidence of CDJV’s witnesses that when Mr Auberson was first observed, he was
standing on a pipe rack at a height of 1570 mm above a scaffold onto which he could have
fallen. The scaffold was 1500 mm above the ground. Mr Auberson was not using any form
of restraint and had one foot on an “I” beam and another on a pipe. Mr Auberson was also
holding on to a pipe above his head to obtain what he asserts was three point contact. Mr
Auberson was holding a radio and was using hand signals to signal to the crane driver,
presumably with the hand that was not holding on to the pipe above his head. It is also
probable that Mr Auberson was holding a tag line.
[90] Mr Auberson’s assertion that he was not holding a radio or a tag line when he was
standing on the “I” beam is at odds with his hand written statement in the investigation of the
incident where he stated that he was in radio contact with the crane operator and that a tag line
was used to control the load swing. I can only wonder at how Mr Auberson could have had
three point contact while standing on an “I” beam holding on to a pipe over his head and in
addition holding at least a radio and probably a tag line, while at the same time signalling to a
crane driver. I also wonder at how a rigger with Mr Auberson’s experience could seriously
assert that he had secure footing and three point contact in such circumstances.
[91] Mr Auberson’s conduct in relation to the way that he was working is not what would
be expected from an experienced rigger, regardless of any deficiencies in the instructions he
received from a supervisor. It is not to the point that Mr Auberson felt safe. It is also not to
the point that he was working at a height below 1.8 metres from the next level. Mr
Auberson’s response during the investigation of the incident, to what is a significant safety
breach and a breach of a Golden Rule, failed to adequately address the risks in the way that he
was working. His persistence with this response at the point this application was heard
indicates that he does not, and will not accept any responsibility for a serious safety breach.
[92] Golden Rule Number 2 is that employees should never work at height without fall
protection. The procedure supplementing that Golden Rule makes it clear that “working at
height” is defined as every activity being performed in a workplace where a person may fall
from, through or into a place or thing. The statement disseminated by CDJV in relation to
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working at height also makes it clear that it applies to both work above 1.8 metres and work at
any height where there is a risk of a worker falling from one level to another and that there
must be a safe system of work to prevent falls from any height.
[93] I do not accept Mr Auberson’s assertion that CDJV managers altered documentation
relating to the tool box talk on 11 March 2014. This is a serious allegation to make and it was
not supported by any evidence from others who attended the tool box talk on 11 March 2014.
Even if Mr Auberson did not attend a tool box meeting the day before the incident at which
the statement about working at height was read out, his training and experience are such that
there is no excuse for the unsafe manner in which he was working.
[94] However, the conduct of Mr Wisnesky and other managers of CDJV and Fluor left
much to be desired, and is at odds with the seriousness of a breach of a Golden Rule. Golden
Rules deal with life-saving matters. Ms Hempstead – the Fluor Health and Safety Manager
who first observed Mr Wisnesky – provided a witness statement but was not available to give
evidence. It is surprising that Ms Hempstead did not react to an apparently life threatening
situation of riggers working at height without fall protection, by immediately stopping the job,
instead Ms Hempstead telephoned CDJV Managers. I accept that Fluor was not the
employer. However, it is clearly that Fluor had some control over the matter given that Ms
Hempstead could direct Mr Wisnesky to deal with the situation and its management
subsequently directed CDJV to stand the employees down and investigate the matter further.
It is also clear from Mr Wisnesky’s evidence that the views of the Fluor management
personnel who observed the incident was of great significance.
[95] It was also the case that while Mr Wisnesky was having the discussion with Mr
Auberson and Mr Cronin, one end of a pipe was suspended above the pipe rack requiring the
crane driver to stay in the crane. Mr Wisnesky did not adequately explain why he got down
from the scaffold deck to hold a discussion with Fluor safety representatives - which he
agreed was not urgent - in circumstances where: a pipe was partly suspended from a crane: he
had told two riggers to stop working in the way that they were working; and had offered no
alternative to them about how the partly completed task of landing the pipe was to be safely
completed. This is not conduct that would be expected from a supervisor and it undoubtedly
contributed to the scenario that unfolded.
[96] It is also the case that Mr Auberson was not stood down until 16 March 2014 – four
days after the incident occurred. The stand down appears to have been instigated at the
direction of Fluor and not CDJV. If Mr Auberson breached a Golden Rule and then
disobeyed Mr Wisnesky’s clear direction and immediately repeated the breach, then Mr
Wisnesky knew that this was the case at the point the conduct occurred. It is to be expected
that he would have stood Mr Auberson down at that point or at least taken steps to cause Mr
Auberson to be stood down. Instead, Mr Wisnesky gave Mr Auberson a warning, in the same
terms as he gave the other members of the crew. Mr Wisnesky also facilitated a STA that
apparently did not address the conduct for which Mr Auberson was later dismissed and Mr
Auberson was allowed to continue to work for a further four days. None of these actions is
consistent with a belief that Mr Auberson had engaged in serious misconduct.
[97] Mr Backer did not have a sound, defensible or well founded basis for concluding that
Mr Auberson had disobeyed a direction from his supervisor. This was not a valid reason for
dismissal.
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Was Mr Auberson notified of the reason for his dismissal?
[98] I am satisfied that Mr Auberson was notified of the reasons for his dismissal. The
letter provided to him on 16 March 2014 set out in detail the allegations against him. The
termination letter informed Mr Auberson that the allegations had been substantiated and that
this was the reason for his dismissal.
Was Mr Auberson given an opportunity to respond to the reasons for his dismissal?
[99] I do not accept that Mr Auberson was given an opportunity to respond to the reasons
for his dismissal. Mr Auberson was provided with a letter detailing a number of serious
allegations, 1.5 hours before he was required to attend a meeting to respond to those
allegations and in circumstances where dismissal was a likely outcome if he could not provide
a satisfactory response. Mr Auberson did not have an opportunity to have a discussion with
his support person before the meeting.
Was there an unreasonable refusal by CDJV to allow Mr Auberson to have a support
person present to assist at any discussions relating to the dismissal?
[100] Mr Auberson was allowed to have a support person present to assist at discussions
relating to his dismissal.
If the dismissal related to unsatisfactory performance—whether Mr Auberson had been
warned about that unsatisfactory performance before the dismissal?
[101] The dismissal did not relate to unsatisfactory performance in the sense that it was for
ongoing issues such as timekeeping or similar, about which it would be expected that an
employee would be warned. However, it is relevant that regardless of the lack of clarity about
the direction given to Mr Auberson, he was told that there was a concern about the manner in
which he was working before the incident that lead to his dismissal.
Did the size of the employer’s enterprise and the absence of dedicated human resource
management specialists or expertise impact on the procedures followed in effecting the
dismissal?
[102] CDJV is a large employer with dedicated human resource management specialists.
There is no evidence that these matters had any impact on the procedures followed in
effecting the dismissal.
Any other matters that the FWC considers relevant
[103] I consider that it is relevant that Mr Auberson is an experienced rigger with a high
level of training. Mr Auberson performed work on 12 March 2014 in a way that was patently
unsafe and in breach of a Golden Rule which has as its purpose, preventing injury and death.
CDJV would have been justified in dismissing Mr Auberson for that breach.
[104] Mr Auberson has consistently refused to accept that he was working in a manner that
was not safe and continued to do so in his evidence to the Commission. Having observed Mr
Auberson while giving his evidence, I share Mr Wisnesky’s view that it could not be
guaranteed that Mr Auberson would commit the same breach again.
[2015] FWC 1179
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CONCLUSION IN RELATION TO WHETHER THE DISMISSAL WAS UNFAIR
[105] On balance, I am satisfied that Mr Auberson’s dismissal was unfair on the basis that it
was unjust and unreasonable. Mr Auberson was dismissed for breach of a Golden Rule and
failing to comply with a lawful and reasonable direction of his supervisor in relation to a
safety matter. CDJV has not established that Mr Auberson did fail to comply with such a
direction or that it had a reasonable basis for concluding that this was the case. For the
reasons set out above, this was not a valid reason for dismissal.
[106] I am also of the view that there were procedural deficiencies in the manner in which
Mr Auberson’s dismissal was affected. In particular, he was provided with details of the
allegations he was required to respond to only 1.5 hours before the meeting at which it was
decided to dismiss him. This was not a sufficient period for him to properly prepare his
response to the allegations. While Mr Auberson was given an opportunity to have a support
person present at the meeting, the efficacy of that assistance was negated by the fact that he
had no opportunity to meet with his support person prior to the meeting to discuss the
allegations.
REMEDY
[107] Given that I have found that Mr Auberson’s dismissal was unfair, it is necessary to
consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr
Auberson was protected from unfair dismissal and that he has been unfairly dismissed. I am
also of the view that Mr Auberson should have a remedy for his unfair dismissal. Mr
Auberson seeks compensation in the amount of 12 weeks wages. It is the case that the project
upon which Mr Auberson was working has been completed and reinstatement is not
practicable.
[108] I am satisfied that an order for the payment of compensation is appropriate in all of the
circumstances of the case. Section 392 of the Act provides as follows in relation to the remedy
of compensation:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu
of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
[2015] FWC 1179
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(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or humiliation, or
other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
[2015] FWC 1179
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(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[109] The approach to the calculation of compensation is set out in a decision of a Full
Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival
Supermarket18. In accordance with that approach, and s.392 of the Act, I calculate
compensation as follows.
[110] Mr Auberson states that his earnings were $3000 per week at the point of his
dismissal. On the basis of the material provided by CDJV in response to the further
Directions, it would appear that Mr Auberson would have earned this amount at least, given
the amount of overtime he was working.
[111] At the point he was dismissed, Mr Auberson had been employed for some ten months.
Given that Mr Anderson breached a Golden Rule and has consistently refused to accept that
he did so, and absent any evidence to the contrary, I am unable to conclude that his
employment would have continued for any lengthy period of time. I think it unlikely that Mr
Auberson’s employment would have continued for more than the twelve week period for
which he seeks compensation.
[112] Had Mr Auberson remained in employment for the 12 week period he would have
earned the gross amount of $36,000. In relation to discounting for contingencies, I have
concluded that the level of discount should be 50% in this case. Mr Auberson’s employment
could have ended for any number of reasons. Given Mr Auberson’s attitude to his breach of a
Golden Rule there is some likelihood that he would have reoffended. Mr Auberson may also
have ceased employment for some other reason. Applying an amount of 50% for
contingencies, reduces the amount of $36,000 to $18,000.
[113] For the reasons set out above, I am also satisfied and find that Mr Auberson’s conduct
made a significant contribution to the situation that lead to his dismissal and I have concluded
that the amount of compensation awarded to him should be adjusted by a further 40% for that
reason. Making that adjustment results in an amount of $10,800. Mr Auberson was paid an
amount in lieu of notice on termination.19 I deduct an amount of $1968.22 in respect of this
payment, which reduces the amount to $8,831.78. That amount, less taxation deductions
required by law, is to be paid to Mr Auberson within 21 days of the date of this decision. An
Order to that effect will issue with this decision.
DEPUTY PRESIDENT
WORK COMA SION AUSTRALIA THE SEAS OF FAIR
[2015] FWC 1179
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Printed by authority of the Commonwealth Government Printer
Price code C, PR561191
1 Witness Statement of Bradley Auberson - Exhibit 1.
2 Witness Statement of Daniel Wallace Wisnesky - Exhibit 2.
3 Witness Statement of Christopher Russell Ireland - Exhibit 3.
4 Witness Statement of Neville Backer - Exhibit 4.
5 Witness Statement of Neville Backer - Exhibit 4 Annexure “NB-H”.
6 PN154.
7 PN241 to PN246.
8 Exhibit 2 Statement of Daniel Wisnesky - Annexure “DW-C”.
9 Exhibit 2 Statement of Daniel Wisnesky - Annexure “DW-D”.
10 PN665 to PN668.
11 Exhibit 4, Annexure D.
12 PN1113.
13 Applicant’s written submissions, filed 3 September 2014, at paragraphs 50 and 51.
14 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
15 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
16 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
17 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines
(1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
18 (1998) 88 IR 21.
19 PN455 and Statutory Declaration of Judith Alice Himstedt declared on 12 December 2014 at 1.
