1
Fair Work Act 2009
s.394—Unfair dismissal
Glenn Rogers
v
Chevron Australia Pty Ltd T/A Chevron
(U2014/7791)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 FEBRUARY 2015
Application for relief from unfair dismissal.
[1] Mr Glenn Rogers alleged that the termination of his employment by Chevron Australia
Pty Ltd was unfair.
[2] Mr Rogers had worked on Barrow Island for Chevron or its predecessors or its
contractors from 1987. His last engagement with Chevron commenced in May 2006 in a
production role. Mr Rogers was promoted to the position of acting Permit Coordinator in
September 2012 and it was this position he occupied when his employment was terminated.
[3] The safety incident leading to his termination is not in dispute and neither is his role in
the incident.
[4] Chevron operates a permit to work system which ensures that, when maintenance or
repair work is to be carried out, work does not commence until the necessary controls are in
place to manage work safely. A person seeks a permit to work from the Permit Coordinator
whose job it is to ensure that jobs do not conflict with other jobs and compromise safety. The
Permit Coordinator also closes off permits at the conclusion of the work.
[5] In addition to the Permit Coordinator, there is a Permit Authority who is the Permit
Coordinator’s supervisor. The Permit Coordinator countersigns some but not all permits.
[6] In January 2014, a compressor needed to be repaired, and thus needed to be shut
down. Associated with the compressor is a fire and gas detection system. As the name
suggests this system is a critical safety system. In the event of a fire or a gas leak an alarm is
sounded which automatically causes the compressor to shut down and alerts the workers. If
the fire and gas detection system is not operative no alarm will sound.
[7] While the fire and gas detection system is not required to be turned off to repair the
compressor, a permit was sought to turn it off because the use of a crane during the repair
work would cause false alarms.
[2015] FWC 897 [Note: Appeals pursuant to s.604 (C2015/1884 and
C2015/2483) were lodged against this decision - refer to Full Bench
decision dated 18 August 2015 [[2015] FWCFB 5354] for result of
appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5354.htm
[2015] FWC 897
2
[8] Mr Rogers, as the Permit Coordinator, had responsibility for issuing the initial permits
for this work.
[9] On 21 January 2014, Mr Rogers issued an Electrical Isolation Certificate (5112).
[10] On the same date Mr Rogers issued a Chevron Isolation Certificate for the compressor
(8041). The Chevron Isolation Certificate had a space to record any electrical isolations and
safety device inhibits. On 21 January 2014, Mr Rogers also issued an Equipment Inhibit
Certificate (3012) in relation to the fire and gas detection system. This Certificate was
countersigned at the same time by Mr Mike Cullingford the Permit Authority.
[11] It is not disputed that Mr Rogers did not record on the Chevron Isolation Certificate
the electrical isolations or the safety device inhibit. It was his evidence that he never included
that information on the Isolation Certificate because he had not been shown to do that.1 He did
record them on the whiteboard.
[12] On the same day, Mr Rogers issued a Hot Work Permit (16227) which was also
counter signed by Mr Cullingford. Mr Rogers recorded details of the Electrical Isolation
Certificate and the Chevron Isolation Certificate in the box provided on the form but did not
include in the list the Equipment Inhibit Certificate.
[13] It was not disputed by Mr Rogers that he was required to include this information on
the Hot Work Permit.2
[14] The work on the compressor commenced. It is not in dispute that Mr Rogers left the
site on 22 January 2014 and returned on 5 February 2014.
[15] On 26 January 2014, Mr Stuart Hall, who was the Permit Coordinator, signed off on
the Hot Work Permit that the work had been suspended. On 28 January 2014, Mr Clarke the
Permit Authority signed that all work associated with the permit was complete and the permit
was closed off. The Equipment Inhibit Certificate was not closed off at this time.
[16] On 30 January 2014, Mr Sean Kavanagh the Permit Coordinator authorised the de-
isolation of the compressor and signed the clearance for the electrical isolation. The Electrical
Isolation Certificate was cancelled. Mr Kavanagh did not cancel the Equipment Inhibit
Certificate and it remained on the whiteboard.
[17] Further problems with the compressor occurred and on 3 February 2014 a new
Chevron Isolation Certificate (7704) was issued by Mr Kavanagh. That certificate did not
record any electrical isolations or safety inhibit device. On 9 February 2014, Mr Rogers
closed off that certificate. Just above the place for the Permit Coordinator’s signature is
printed the following: “de-isolation cannot commence until all related permits are signed as
complete by their permit holder ” and “where more than two permits are related to the
isolation certificate signed permission can only be given by the permit co-ordinator.” Mr
Rogers signed off on four related work permits and certificates but did not sign off the
Equipment Inhibit Certificate.
1 Transcript PN 277
2 Ibid PN 264
[2015] FWC 897
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[18] It is not in dispute that the fire and gas detection system remained off line until 26
February 2014. In the intervening period the isolation tags on the fire and gas detection
system remained in place and the notice about the Equipment Inhibition Certificate remained
on the whiteboard.
[19] In this period, operators inspected the system daily and did not report that the fire and
gas detection system was inhibited despite the fact that the compressor was back in operation.
Further the person who completed the “integrity critical maintenance work instruction” did
not note until 16 February 2014 that the isolation key was in bypass and no action was taken
by anyone in response to that report.
[20] On 23 February 2014, a gas leak was detected and it was found that the fire and gas
detection system was turned off.
[21] Apart from Mr Rogers, no evidence was given by any person who was involved in this
incident.
[22] It was Mr Rogers’ evidence that it was not his practice nor Mr Kavanagh’s to record
the Equipment Inhibit Certificate on the Hot Work Permit or the Chevron Isolation
Certificate. This much was confirmed by the investigation of the incident conducted by
Chevron. Mr Rogers said that he had been trained by Mr Kavanagh and he had not told him
that this was required.
[23] Mr Rogers had no explanation as to why, given he recorded the Equipment Inhibit
Certificate on the whiteboard, he did not see that the Inhibit Certificate was still active when
he signed off on the Isolation Certificate on 9 February 2014 and why that Inhibit Certificate
remained in place until the gas leak was detected by an operator.
[24] Mr Rogers said that the Permit Authority is presented with the permit and every
certificate that is associated with the permit and the Permit Authority goes through it and
checks that it is correct and signs the permit so that work can commence.3 Any mistake made
by him should have been detected by the Permit Authority.
[25] There is no dispute that the failure to put the fire and gas detection system back into
operation when the compressor was restarted created a serious health and safety risk to people
as well as to the plant and equipment.
[26] There was an investigation of the incident conducted.
[27] That reports sets out the time line of events. The Hot Work Permit was suspended on
26 January 2014 because they were waiting for parts. Mr Hall, the Permit Coordinator at the
time signed off the Hot Work Permit. The Hot Work permit was then closed out on 28
January 2014 by the Permit Authority. It is not clear from the report what happened between
28 January 2014 and 3 February 2014 when a new Isolation Certificate was approved.
3 Ibid PN 505
[2015] FWC 897
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[28] The investigation report noted that on 29 January 2014 spare parts arrived and were
fitted to the compressor and mechanical de-isolation was completed. The next day process de-
isolations and pre-start checks were completed and there was no evidence that the fire and gas
system was checked. When the compressor was started, mechanical knocking was heard and
the compressor was shut to investigate. Despite this, the original Chevron Isolation Certificate
was closed out at 15.35pm.4
[29] The investigation report notes that on 31 January 201 mechanical isolations were
completed again and on 1 February 2014 additional work was performed. On 2 February
2014, an inspection of the fire and gas panel was completed and “no mention that the fire and
gas system was disabled. Inlec inspection indicated that the fire and gas was in operating
mode, placed back in service and informed back to Area Operator as work completed.”5
[30] On 2 February 2014, noise in the compressor was investigated and the work group
completed the permit. That did not note that the fire and gas system was isolated. On 3
February 2014 a new Isolation Certificate was issued (7704). There was no notation on that
certificate that the fire and gas system was isolated despite the notation on the whiteboard.
Work continued on the compressor until 9 February 2014 when the Isolation Certificate 7704
was closed off by Mr Rogers.
[31] Mr Michael Scott, Chevron’s Operation Manager, reviewed the investigation report
and asked for the names of those involved. He then determined what he considered the order
of culpability and made the recommendation to Mr William Bowers to terminate Mr Rogers’
employment.
[32] Mr Scott seems to accept that when the Hot Work Permit was closed out, the Inhibit
Certificate should have been closed out but said that “the machine was not fully started
because it had mechanical issues so the Inhibit Certificate remained live until they remedied
the mechanical issues.”6 He went on to say that “I’m not sure .. it was ever operating. They
pressed the green button and it had a knock and they switched it off again.”7 It is clear from
Mr Scott’s witness statement he was of the view that Mr Rogers was responsible for closing
out the permit on or around 30 January 2014.8 However this was not correct, as he was not on
site.
[33] It was Mr Scott’s view that on 9 February 2014 Mr Rogers should have known that the
Inhibit Certificate was still in place and he should have said to the operators “that it cannot be
started until this is closed.”9
[34] He acknowledged that there were a number of people who could have stopped the
breach but he focused on how the incident started. He identified the critical reason for
recommending the termination of Mr Rogers’ employment was that Mr Rogers permitted the
compressor to run after 9 February 2014 and he did not either tell the operators to turn it off or
4 Exhibit R1, tab13 at page 15
5 Ibid
6 Transcript PN 864
7 Ibid PN 933
8 Exhibit R6 at [38]
9 Transcript PN 879
[2015] FWC 897
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turn on the fire and gas detection system.10 It was this that swayed Mr Scott to make the
recommendation that Mr Rogers’ employment be terminated, not the error in recording the
existence of the Inhibit Certificate on the Hot Work Permit or the Isolation Certificate.11
[35] Disciplinary action was taken against others who were involved in the incident. Two
supervisors, another permit co-ordinator, five operators and two technicians were
disciplined.12 The all lost their incentive pay and had warning letters placed on their files. In
addition, they received negative performance reviews which impacted on their salary and
promotion.13
[36] Mr Bowers, who made the decision to terminate Mr Rogers’ employment, accepted
that Mr Rogers’ actions were not intentional however it was his view that Mr Rogers made a
conscious decision not to follow the procedure.14
[37] Mr Bowers accepted that it was the role of the Permit Authority to check the Permit
Coordinator’s work and if the Permit Coordinator knew the documentation was incomplete,
he should not have signed off on the permit.15
[38] Mr Bowers accepted that the operators, when doing their daily checks of the fire and
gas detection system, should have noted and reported that the fire and gas detection system
was tagged out.16 He further accepted that the weekly inspection, which required the fire and
gas detection system to be tested, should have noted that the fire and gas detection system was
tagged out.17
Policies and procedures
[39] It was not contested that Chevron has in place safety policies and procedures. In its
Tenets for Operational Excellence18 Chevron notes that mistakes are inevitable but incidents
are not.19 It advises that for an incident to occur there is a series of mistakes and that an
incident can be prevented if the chain of events is interrupted. Mr Scott gave evidence that he
presented this to all employees in January 2014 and Mr Rogers would most likely have
attended one of the presentations.20 While Mr Scott did not know if Mr Rogers did in fact
attend, Mr Rogers did not give evidence that he was unfamiliar with these principles. Further
Chevron has Tenets of Operation which set out ten clear obligations on employees.21 It was
Mr Scott’s evidence that at each prestart meeting which occurred daily, that Mr Rogers
10 Ibid PN 843
11 Ibid PN 838
12 Ibid PN 566
13 Ibid PN 571
14 Ibid PN 592-604
15 Ibid PN 636-640
16 Ibid PN 689
17 Ibid PN 694-697
18 Exhibit R6 at MTS1
19 Ibid page 9
20 Exhibit R6 at [16]
21 MTS1 op cit at page 11
[2015] FWC 897
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attended, one of the Tenets would be addressed. Mr Scott was not cross examined on this
evidence.
[40] The Chevron Just Culture Procedure which applies to all employees, contractors and
visitors “is a facilitation tool applied when behaviours or decisions are indentified during an
incident investigation or other means in order to assist in the determination of a fair and just
outcome.”22 The Just Culture policy sets out a decision tree which guides decisions makers. It
provides that if the conduct was intentional or there was a conscious decision to not follow
procedures then severe sanctions would result.23 In the latter case it is possible that sanctions
may be limited to warnings/negative performance appraisals. In other cases the sanctions may
be warnings/negative performance appraisals or coaching or structural review.
[41] The disciplinary policy sets out the procedures to be followed if there is misconduct or
serious misconduct.24
[42] The Permit to Work system sets out the responsibilities for the Permit Coordinator and
the competencies required of the job.
[43] There was no dispute that the Permit Coordinator was required to be aware of all the
works being conducted or proposed to be conducted so that any potential conflict could be
avoided.25
[44] Mr Rogers accepted that it was his job to ensure the proper permits were in place and
if he was unsure he could refer to the Permit to Work manual or check with the Permit
Authority. Mr Scott described the position of permit Coordinator as a senior and supervisory
role.
[45] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the Fair Work Commission must take into account the following:
s387(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);
[46] Chevron dismissed Mr Rogers for misconduct. There is no dispute that Mr Rogers did
not comply with the requirement to include the details of the Inhibition Certificate on the Hot
Work Permit. It is not disputed that the Permit Authority countersigned the Hot Work Permit.
It is also not disputed that it is the role of the Permit Authority to check that the documents he
or she is signing are accurate. In this case the Permit Authority was aware of the Equipment
Inhibit Certificate because he had signed it on the same day. Further Mr Rogers gave evidence
that the certificates relevant to the permit were attached to the permit when the Permit
Authority signed the permit. The Permit Authority did not notice that the Inhibit Certificate
was not noted on the permit.
22 Exhibit R1, tab 18 at page 3
23 Exhibit R7 at JYL6 at page 5
24 Ibid at JYL7 at page 5
25 Exhibit R6 at [24]
[2015] FWC 897
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[47] I accept that the Permit Authority had the ultimate responsibility for ensuring that all
documentation is completed in accordance with the process outlined in the manual.26 Signing
the permits is not simply a formality. The Permit Authority’s role is one of the checks and
balances to ensure a safe system of work. In this case the Permit Authority along with Mr
Rogers failed to ensure that the forms were correctly completed.
[48] Mr Rogers did comply with the requirement to place the information about the
certificate on the whiteboard. Mr Rogers did not close off on that Hot Work Permit, Mr Hall
did as the Permit Coordinator on 26 January 2014 and the Permit Authority closed the permit
on 28 January 2014. Neither Mr Hall nor the Permit Authority addressed the outstanding
inhibit certificate.
[49] While I do not accept that the failure to include the reference to the permits on the
appropriate forms was a relatively trivial clerical error, I do not consider that Mr Rogers’
failure to record the information on the Hot Work Permit or the Isolation Certificate was a
valid reason for the termination of Mr Rogers’ employment. The failure to record the
information on the Hot Work Permit was a mistake but it was one that the Permit Coordinator
made as well. I accept Mr Rogers’ uncontested evidence that he had not been trained to
record the Inhibit Certificate on the Isolation Certificate.
[50] Mr Scott stressed that it was Mr Rogers’ conduct in permitting the compressor to be
turned on and to operate when there was an Inhibit Certificate in place that resulted in his
dismissal.
[51] It is worth noting that Mr Hall signed off on the Hot Work Permit on 26 January 2014
and Mr Clarke the Permit Authority closed of the permit. There is no evidence on which I
could conclude that they were aware of the Isolation Certificate. There was no evidence that
Mr Hall used the whiteboard system to record these permits. Given there was no record of the
Inhibit Certificate on the Hot Work Permit Mr Hall could be excused from not ensuring that
permit was closed off.
[52] On 30 January 2014, Mr Kavanagh another Permit Coordinator signed off the
Electrical Isolation Certificate and the Chevron Isolation Certificate. In signing off Mr
Kavanagh was agreeing that all related permits had been signed off as completed by the
permit holder. Mr Kavanagh like Mr Rogers placed information about the existing permits on
the whiteboard. Contrary to the safety requirements Mr Kavanagh did not at this time ensure
that all permits were signed off. It also appears that contrary to policy, work continued on the
compressor between 30 January 2014 and 3 February 2014 without a permit.
[53] Mr Kavanagh did not include on the Chevron Isolation Certificate issued on 3
February 2014 information about the equipment inhibit despite that information being
recorded on the whiteboard.
[54] Mr Scott gave evidence that he understood that work continued on the compressor.
However he did not explain under what permit the work performed on the compressor was
done between 30 January and 3 February. He also gave no evidence about why the Inhibit
Certificate was not closed out by Mr Kavanagh.
26 Exhibit R1, tab 21 at page 29
[2015] FWC 897
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[55] Mr Rogers signed off on the second Isolation Certificate on 9 February 2014 and he
did not ensure that all permits associated with the work had been signed off. Just like Mr
Kavanagh he should have checked the whiteboard for other permits and he did not. He had no
explanation for this oversight. I do not accept the submissions of Mr Rogers that no risk arose
until the operator turned on the compressor. By closing the Isolation Certificate Mr Rogers
was representing to the operators that the compressor could be de-isolated. This was not a
clerical error. It was a breach of the procedures. I do not accept the failure to cancel the inhibit
notice resulted from a system failure. Mr Rogers knew that Inhibit Certificates were recorded
on the whiteboard. It was therefore incumbent on him to check the whiteboard on each
occasion he closed off a permit to ensure that all relevant permits associated with a job were
closed off.
[56] Mr Rogers’ conduct in authorising the de-isolation of the compressor without ensuring
that the Inhibit Certificate was closed off and his continued failure to notice that the Inhibit
Certificate was not closed off was a breach of a significant safety procedure. There was a
valid reason for the termination of his employment.
[57] To the extent that Chevron relied upon the running of the compressor without the fire
and gas system being operational to justify his termination, I do not accept this submission.
While I accept that Mr Rogers should have been alert to the existence of the outstanding
permit, Chevron’s safety systems did not work. There were a string of employees who did not
comply with the tenets. That the fire and gas system was tagged out was obvious. That no
operator noticed this is to say the least surprising. On 16 February 2014, an apprentice
recorded the fact that it was tagged out and nothing was done about it by anyone.
s387(b) whether Mr Rogers was notified of that reason;
[58] In his written submissions Mr Rogers submitted that he was notified of the reasons for
his dismissal.
[59] In oral submissions it was put that Mr Rogers was only notified of part of the reasons.
It was submitted that Mr Rogers was not advised that his failure to record the Inhibit
Certificate on the Isolation Certificate or that he had the responsibility for allowing the
compressor to continue to run were relevant to his termination.
[60] On 6 May 2014, Chevron advised Mr Rogers that the investigation had determined
that he had failed to place the Inhibit Certificate on the initial permit on 21 January 2014 and
he did not remove the inhibit on 9 February. Mr Rogers was told that Chevron was
considering the status of his employment and he was given an opportunity to respond by 9
May 2014. Mr Rogers responded and a further meeting was held on 20 May 2014. At that
meeting Mr Scott read the letter of termination to Mr Rogers. That letter reiterated the
findings of the investigation. Mr Scott gave evidence that he told Mr Rogers at that meeting
that “you failed to fill the permit in and you allowed the machine to run on defeat. This is a
serious breach.” Mr Scott was not cross examined on this evidence. Mr Rogers says he was
given the letter of termination at the conclusion of the meeting.
[61] I find that Mr Rogers was given notice of the reasons for the termination of his
employment before the decision to terminate his employment was made.
[2015] FWC 897
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s387(c) whether Mr Rogers was given an opportunity to respond to any reason related to
the capacity or conduct of the person;
[62] Mr Rogers was given an opportunity to respond to the reasons.
s387(d) any unreasonable refusal by the employer to allow Mr Rogers to have a support
person present to assist at any discussions relating to dismissal;
[63] Mr Rogers was given the opportunity to have a support person.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether
Mr Rogers had been warned about that unsatisfactory performance before the
dismissal;
[64] The termination was not related to unsatisfactory performance hence this criterion is
neutral.
s387(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;
[65] Chevron is a large corporation. Mr Rogers submitted that Chevron had failed to follow
its own discipline guidelines - ASBU -Just Culture Procedure. It was clear that the relevant
decision makers did not accept that these procedures applied. Given that procedure is said to
apply to all employees it is difficult to understand the evidence of the decision makers.
However as I have not found that Mr Rogers was denied procedural fairness, it cannot be said
that the size of the business impacted on the procedures followed. This criterion is neutral.
s387(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;
[66] Given that Chevron is a well resourced multinational employer this criterion is neutral.
s387(h) any other matters that the Fair Work Commission considers relevant.
[67] Mr Rogers was filling the position of Permit Coordinator in an acting capacity. It was
not disputed that the specific training he received for this position had been on the job training
by the other permit Coordinator. It was also not disputed that Mr Rogers had not been trained
properly to complete the isolation certificates. It is also clear that this defect in his training
was not detected in the 18 months he had filled the position.
[68] There was no evidence of any issues with Mr Rogers’ performance in this time and his
most recent performance review had rated him highly. Mr Rogers had been employed by
Chevron at Barrow Island or for Chevron and its predecessors for 27 years. There was no
evidence produced that he had ever been involved in a breach of a safety procedure or that
there were any other disciplinary or performance issues.
[69] I have also had regard to Mr Rogers’ response to the investigation. It is concerning
that when asked to respond to the findings that he described his error as a “clerical error” and
a “relatively minor one.”
[2015] FWC 897
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[70] This overlooked the fact that when Mr Rogers signed off on the Isolation Certificate
on 9 February 2014 he was representing to the other employees that all related permits had
been completed. This was not a mere clerical error. So much was accepted by Mr Rogers in
cross examination.27 However Mr Rogers took the view that as his work was checked by the
Permit Authority he should not “cop the full blame.”28
[71] There was no suggestion that this error was a malevolent act or that there was a
conscious decision to not follow procedure.
[72] Mr Rogers gave evidence that he had not been able to find ongoing work since his
dismissal.
[73] Mr Rogers submitted that given his age and personal circumstances a dismissal in
these circumstances imposed a very heavy punishment on him. I accept that submission. The
consequences for Mr Rogers are serious. He has lost his job and given the reasons for that loss
he will have difficulty finding work in his field.
Consideration
[74] It is uncontroversial that a dismissal may be harsh, unjust or unreasonable
notwithstanding there was a valid reason for the termination of employment.29
[75] Further a breach of safety procedures does not automatically lead to a finding that the
termination was not harsh, unjust or unreasonable.
[76] As the majority said in Lawrence v Coal & Allied Mining Services Pty Ltd30:
“[38] We regard the unqualified dismissal of an exemplary employee with 28 years
of service, an impeccable disciplinary record and an otherwise impeccable safety
record for a policy breach the sort that occurred in this case - particularly when the
policy itself contemplates that breaches will not necessarily lead to disciplinary action
let alone dismissal and having regard to the personal consequences for the employee
and his family - as manifestly harsh. We accept that the misconduct reasonably called
for a disciplinary sanction and that a period - even an extended period - of suspension
without pay may still have been within the acceptable range. But in all the
circumstances, unqualified dismissal was, in our view, manifestly harsh. On the
rehearing we find that Mr Lawrence was unfairly dismissed within the meaning of
s.385.”31
27 Transcript PN 422
28 Ibid PN 427
29 B, C and D v Australian Postal Corporation [2013] FWCFB 6191 at [41]
30 [2010] FWAFB 10089
31 Ibid at [38]
[2015] FWC 897
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[77] This approach was endorsed by Vice President Hatcher in Zhou v Weir Minerals
Australia Ltd32 thought in that case the Vice President did not find that the decision to dismiss
was harsh.
[78] As the Full Bench said in Parmalat Food Products Pty Ltd v Wililo33:
“[24] We do not consider that the decision discloses a clear line of reasoning leading
to the decision reached. The existence of a valid reason is a very important
consideration in any unfair dismissal case. The absence of a valid reason will almost
invariably render the termination unfair. The finding of a valid reason is a very
important consideration in establishing the fairness of a termination. Having found a
valid reason for termination amounting to serious misconduct and compliance with the
statutory requirements for procedural fairness it would only be if significant mitigating
factors are present that a conclusion of harshness is open. We do not believe that any
of the circumstances involved in this matter amount to such factors.”
[79] In this case I consider that there are significant mitigating factors.
[80] There is no evidence that Mr Rogers had at any time in his 27 year work history any
performance or conduct issues. His most recent performance appraisal was positive.
[81] I have had regard to the importance of employees complying with safety procedures.
[82] I accept that there was a failure in Chevron’s safety systems. Given the fly in fly out
nature of the work, a system which ensures that all relevant information is recorded on the
permits is vital. Chevron’s checks and balances did not pick up that Mr Rogers and other
employees were not completing permit applications in accordance with those procedures.
Had this been done earlier this incident may have been prevented. This was a serious failure. I
have already commented on the failure of the operators to notice the tags on fire and gas
inhibitor. That Chevron received a report that the fire and gas detection system was off, and
did nothing about it, is of concern.
[83] I don’t accept that Mr Rogers was a scapegoat for the systems failure as I accept that it
was his conduct that started this litany of errors. I accept that his breach was serious. I accept
that other employees who were involved in this incident were not dismissed because they
were assessed as less culpable. It is not clear to me why the persons who signed off on the
first Hot Work Permit were treated differently. Mr Scott gave evidence that at that time the
Inhibit Certificate should have been closed off at this time. That another Permit Coordinator
who was not dismissed equally failed to have regard to the existence of the Inhibit Certificate
on the whiteboard, supports a finding that Mr Rogers’ dismissal was harsh.
32 [2014] FWC 1531 at [40]-[41]
33 [2011] FWAFB 1166
[2015] FWC 897
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[84] I have also considered whether the termination of his employment was harsh given his
long service with Chevron and his work history. The loss of employment for a long standing
employee will always have a severe impact on the employee. However I accept that long
service does not make an employee immune from dismissal.
[85] Mr Rogers made a mistake. While it was a serious mistake it was not deliberate. As
the Tenets note, mistakes happen and incidents result from a series of mistakes.
[86] I accept that Mr Rogers’ conduct warranted disciplinary action. As he was only acting
in the role he could have been returned to his substantive position. He could have been given
a first and final warning. In addition he could have been given the same sanctions as the other
employees.
[87] On balance I consider that the termination of Mr Rogers’ employment was harsh.
Remedy
[88] Mr Rogers is seeking reinstatement of his employment.34 This was opposed by
Chevron. It was submitted by Chevron that Mr Rogers had fundamentally misunderstood his
role as Permit Coordinator.35 It relied on Mr Scott’s evidence to support this submission.36 It
was submitted that Chevron did not have confidence in him and his colleagues would not trust
him.37
[89] When employment is terminated, particularly for misconduct, it is inevitable that some
damage to the relationship of employment will occur. However there is nothing to suggest
that this relationship cannot be restored.
[90] I do not consider that Chevron’s evidence is sufficient to support a finding that
reinstatement is inappropriate. I accept that Mr Rogers’ characterisation of his mistakes was a
matter of concern. However in his evidence to the Commission he clearly accepted that this
was not a minor mistake.
[91] Further Mr Rogers is not required to be returned to a position that he occupied on a
temporary basis. His substantive position was not that of a Permit Coordinator. Further, if he
is reinstated Chevron is still entitled to take disciplinary action against Mr Rogers for his
conduct.
[92] I will therefore order that Mr Rogers be reinstated to the position in which Mr Rogers
was employed immediately before the dismissal. This order will come into effect 21 days
from the date of this decision.
34 Transcript PN 495
35 Ibid PN 1378
36 Ibid PN 1381-1385
37 Ibid
[2015] FWC 897
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[93] The parties did not address me on any consequential orders that should be made in
relation to sections 391(3) and (4) of the Fair Work Act 2009. I will provide the parties with
an opportunity to provide written submissions about any consequential orders that should be
made. The parties are required to file and serve any submissions in relation to any
consequential orders within 10 days of the date of this decision. The matter will then be listed
for a short hearing if required.
DEPUTY PRESIDENT
Appearances:
S. Heathcote for the Applicant.
J. Ley for the Respondent.
Hearing details:
2014.
Perth:
27 and 28 November.
Printed by authority of the Commonwealth Government Printer
Price code C, PR560799
FAIR WORK COMMISSION AUSTRALIA THESEAL OF
