1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Pearse
v
Viva Energy Refining Pty Ltd
(U2017/1941)
DEPUTY PRESIDENT ANDERSON MELBOURNE, 20 JULY 2017
Application for an unfair dismissal remedy
[1] On 22 February 2017 Andrew Pearse (Mr Pearse) applied to the Fair Work
Commission (Commission) under section 394 of the Fair Work Act 2009 (FW Act) for a
remedy in respect of his dismissal on 21 February 2017 by Viva Energy Refining Pty Ltd
(Viva Energy). Mr Pearse claims that his dismissal was harsh, unjust or unreasonable, and
seeks orders for reinstatement and financial compensation.
[2] On 6 March 2017 Viva Energy filed a response to the application. It opposes the
claim. It contends that its decision to dismiss was proportionate and appropriate taking into
account Mr Pearse’s conduct, past conduct and performance, and all of the circumstances.
[3] The Commission made attempts to conciliate, but the matter remained unresolved.
[4] A hearing was conducted in Melbourne on 20 and 21 June 2017.
[5] Prior to the hearing, both Mr Pearse and Viva Energy sought permission under section
596 of the FW Act to be legally represented. Having regard to the volume of projected oral
evidence and the extensive documentary material to be relied upon (including material
discovered through a Notice to Produce), I concluded that legal representation by both parties
would assist the efficient conduct of proceedings, and granted permission on that basis.
[6] No jurisdictional or threshold issues arose in determining this matter. It was common
ground between the parties that Mr Pearse was an employee protected from unfair dismissal
within the meaning of section 382 of the FW Act.
[7] It was also common ground that Mr Pearse was dismissed; that the dismissal was not
governed by the Small Business Fair Dismissal Code; and that the dismissal did not concern a
claim of genuine redundancy. On each of these points I am satisfied this is the correct
position. In these circumstances, Mr Pearse’s dismissal can only be an unfair dismissal within
the meaning of section 385 of the FW Act if it is found to have been harsh, unjust or
unreasonable.
[2017] FWC 3817 [Note: An appeal pursuant to s.604 (C2017/4409) was
lodged against this decision - refer to Full Bench decision dated 20
September 2017 [[2017] FWCFB 4701] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB4701.htm
[2017] FWC 3817
2
Mr Pearse’s Case
[8] Viva Energy operates oil refining facilities in Geelong with storage, distribution
centres and service stations across Australia. Until his dismissal, Mr Pearse had been
continuously employed at the Geelong refinery for almost 27 years, initially by Shell Refining
Pty Ltd (Shell) and since 2014 by Viva Energy following its purchase of the business from
Shell.
[9] Mr Pearse’s evidence was that prior to the events giving rise to his dismissal, he was
employed as an operator in the Crude Distillation Unit on D shift. He worked both day and
night shifts. His employment was governed by the Viva Energy Refining Enterprise
Agreement 2014 (Enterprise Agreement), an agreement negotiated between the Company and
the Australian Workers Union (AWU) and approved by the Commission in December 2014.
He worked 35 hours per week on 12 hour shifts, plus overtime as required.
[10] At the time of dismissal, Mr Pearse was President of the four-member AWU
Executive at the Geelong Refinery. He had held this position since 2005. He had been elected
a site delegate for the AWU every two years since 1994. As such, he was the senior AWU
officer amongst delegates and members employed at the Geelong Refinery.
[11] Mr Pearse was dismissed on 21 February for conduct that Viva Energy considered
breached Company policies and the duties of an employee under the Enterprise Agreement.
The conduct concerned Mr Pearse sending an email to approximately 170 other operators
whilst working night shift on 25 November 2016. The email related to an industrial issue at
the Geelong Refinery, namely that certain operators had undertaken advanced fire training.
[12] Mr Pearse’s case was that his email informed operators of his disapproval that some
operators had undertaken this training, that the training had not been approved by the AWU
and that those participating were helping the Company with, what he asserted, was proposed
de-manning contrary to AWU resolutions.
[13] Mr Pearse’s evidence was that he drafted the email after being told by a fellow
employee that training had been undertaken. He said that he (Mr Pearse) had a suspicion from
what he had been told of the identity of one if not two of the employees involved. He said he
did not name names in the email because he was not absolutely certain of the identity of the
persons involved.1
[14] Mr Pearse said in evidence that he drafted and sent the email with a combination of
anger and disappointment. He claimed2 that while he was upset with a small number of
employees who had, in his opinion, acted against the interests of union members, he did not
make threats against those employees nor did he identify them. His submission was that
whilst the tone of the email was emotive, it ended on a conciliatory note with a request that
those employees contact him to discuss the issue.
[15] Mr Pearse further claimed that although he sent and signed off the email in his
capacity as “just another operator”, the employer dismissed him because of his union
activities. However, on account of his desire to seek reinstatement as a primary remedy, he
elected to pursue an unfair dismissal claim rather than seek a general protections order under
Part 3-1 of the FW Act.3
[2017] FWC 3817
3
[16] Mr Pearse claims that his dismissal was harsh, unjust or unreasonable on the ground
that his conduct did not constitute a valid reason for dismissal, that the employer’s decision
was disproportionate to any misconduct, that the decision to dismiss included unlawful
discrimination on account of his union activities, and that the Company’s investigation into
the incident and in deciding to dismiss had failed to provide procedural fairness. He also
claims that it was harsh given the consequences on him as an individual.
[17] Mr Pearse was stood down by Viva Energy once the Company decided to formally
investigate his conduct. Mr Pearse’s evidence was that he subsequently reflected on his
conduct and considered that the email had been a “lapse of judgment”4, at least in the terms in
which it had been drafted and sent.5 He said, in his 17 February meeting with the Company
and in his evidence, that if he had his time again he would not have sent the email and would
not have used emotive language or language which could be interpreted as personally
insulting to those who were participating in the advanced fire training.6
[18] On 17 February he sought to apologise to the Company and to affected employees but
claims he was barred from doing so.7 His case is that while the email was, in hindsight, an
error on his part, it was not of sufficient seriousness to constitute a valid reason for dismissal.
[19] Mr Pearse seeks reinstatement to his former position with payment for lost
entitlements and with continuity of service. In evidence to the Commission he said that if re-
employed as an operator he would not actively involve himself in union activities or stand for
an elected position on behalf of the AWU.8 He undertook to adhere to Company policies. In
correspondence provided to the Company on 17 February9, he also offered to conduct a
training session for operators on the risks associated with email communication.
[20] He considers that these undertakings, together with his contrition and apology, are
sufficient to re-establish a viable employment relationship with Viva Energy that would allow
an effective return to work at the Geelong Refinery.
Viva Energy’s Case
[21] Viva Energy dismissed Mr Pearse on 21 February for conduct in breach of the
Company’s policies and his duties as an employee. The policies relied upon by the Company
were the Viva Energy Business Principles and Code of Conduct (Code of Conduct), and the
Viva Energy Guide to Standards of Behaviour (Standards of Behaviour). The conduct
concerned Mr Pearse drafting and sending an email on 25 November 2016. After conducting a
formal investigation, Viva Energy concluded that the email targeted the employees who
attended the advanced fire training, and “had the effect of intimidating and/or isolating and/or
humiliating and/or bullying those employees.”10
[22] Viva Energy claimed that Mr Pearse committed a serious breach of Company policy.11
It considered that Mr Pearse interfered in the Company’s right to give lawful and reasonable
directions to employees to undertake additional training to develop job competency.12 It said
the dismissal was consistent with its obligation to eliminate workplace bullying, intimidation
and harassment and with the business imperative of maintaining a harmonious and respectful
workplace.13
[23] It submits this constituted a valid reason for dismissal.
[2017] FWC 3817
4
[24] The Company further submits that Mr Pearse was afforded procedural fairness before
a decision to dismiss was made. It said that it stood Mr Pearse down on full pay, conducted a
detailed investigation and provided Mr Pearse a full opportunity to put his version of events to
the investigator and to the decision-makers. It said that at all stages of this process Mr Pearse
was put on notice that his employment was at risk. It said he was informed of his right to be
accompanied by a support person, and availed himself of that right through an AWU State
branch organiser, Mr Wood.
[25] In deciding to dismiss Mr Pearse, the Company said that it accepted the findings of the
investigator concerning the intent of the email and its effect on certain employees. It said that
it also considered views expressed by Mr Pearse during the investigation defending his
conduct and what it claimed was a lack of genuine contrition. It said that it took into account
Mr Pearse’s work history which included a number of prior disciplinary incidents including a
dismissal in 2008 for a safety breach (and reinstatement on recommendation of the Australian
Industrial Relations Commission albeit with no back pay and to a more junior position14) and
an extant warning for misconduct issued in August 2016.15
[26] The Company considered that Mr Pearse’s length of employment did not constitute a
sufficient mitigating factor. Nor did the Company consider Mr Pearse’s expressed contrition
and letters of apology to be mitigating factors. Rather, it considered they lacked candour.
[27] The Company contests the proposition that Mr Pearse’s role as a union officer and
delegate, or his role in exercising workplace rights afforded to a union officer had any bearing
on its decision to dismiss.
[28] Viva Energy opposes an order for reinstatement should the dismissal be found to be
harsh, unjust or unreasonable. It says that Mr Pearse’s conduct has irrevocably damaged trust
the Company considers inherent in an employment relationship. In making this submission,
the Company relies on the factors it took account in deciding to dismiss including Mr Pearse’s
conduct in sending the email, his work history (including warnings) and his conduct during
the investigation, including a claim made that Viva Energy were a “pack of bastards”16. On
the issue of reinstatement, it also relies on the content and tone of certain other emails sent by
Mr Pearse from the Company’s email system whilst he was employed but which were not
known to it at the time of the investigation or the decision to dismiss.17
The Evidence
[29] Mr Pearse gave evidence. He called no other witness. In addition to his oral evidence,
he relied on documentary material attached to his witness statement, and to material
discovered in the course of proceedings.
[30] In support of its case, the Company called five witnesses: Refinery Area South
Manager Paul Lewis, Industrial Relations Consultant and Acting Viva Energy Human
Resources Manager John McKenzie, Operations Manager Glenn Lyons, General Manager
Refining Thys Heyns and General Manager of Human Resources Jodie Lee-Ann Haydon.
[31] It relied on material attached to the statements of each witness, including an
Investigation Report conducted into Mr Pearse’s conduct.
[2017] FWC 3817
5
[32] Given the volume of oral evidence, there are surprisingly few areas where versions of
critical events differ. Most differences concern matters of opinion or inferences witnesses
drew from otherwise agreed facts, such as the intent or effect of the email. However, given
that some factual differences emerged, it is appropriate to express a view on the witnesses.
[33] Mr Pearse was a conversational witness, lengthy and talkative in many of his answers.
While he had strong recall of the key events and stood his ground in cross examination, his
evidence was prone to generalisation and, in some instances, speculation.
[34] I found Mr Lewis to be a poor witness, not in relation to credit but largely because he
struggled to recall his witness statement and appeared detached from involvement in the
proceedings. He had a better recall of actual events that led to the dismissal than formalities
associated with his statement and its preparation. Mr McKenzie was a reliable witness. He
was extensively cross examined on the conduct and findings of his Investigation Report. He
was clear and detailed, albeit somewhat defensive when it came to cross examination on his
findings. Being the author of the report, that is not surprising. Both Mr Lyons and Mr Heyns
were impressive witnesses. Mr Lyons had clear recollection and was confident in both
conceding ground and standing ground in cross examination. Mr Heyns was also a strong and
considered witness with good verifiable recall. Ms Heydon’s evidence was concise and
believable. It was largely corroborated by documentation and the evidence of Mr Heyns.
[35] Where there is an inconsistency between the evidence of Mr Pearse or Mr Lewis, I
prefer the evidence of Mr Lyons, Mr Heyns and Ms Heydon.
The Email of 25 November
[36] It is not in dispute that Mr Pearse sent an email in the following terms to
approximately 170 operators at the Geelong Refinery at 3.49am whist working on night shift
on 25 November:
“Dear Fellow Operators/ERG,
It is with a heavy heart that I am writing this email, mixed with a dose of anger. I am
writing this as just another operator. I am not writing this on behalf of the delegates.
It has come to my attention that some of our own members are helping the company
with their proposed de-manning.
Apparently, the company have invited 'select' operators to take part in advanced fire
training. These members are alleged to have agreed to undertake this training. It is
alleged that the training has been organised by one of our own. At no stage has this
proposed training been approved by the AWU, the site Executive, nor a majority of the
members. This is a follow on from the company's earlier push to get fire auxiliaries to
do this training. We stood firm then, and should stand firm now. There are enough
motions on the books relating to not assisting the company in any way, that I would
have thought that this training would have been seen as flying in the face of the rank
and file.
The alleged reason why this training has to be done is to fill 'an identified gap' in these
operators training for future Shift Controller role. We are kidding ourselves if we think
that this latest push is just to help the 'future leaders' get to a staff role. These people
[2017] FWC 3817
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could be seen as naïve, deluded, stupid, or selfish. Some of the operators know that
this wouldn't pass the 'sniff test', and have kept the training secret. No-one is even sure
how many are identified to do the training; it is rumoured that there are at least 4.
No matter how the company tries to dress this training up, ultimately the only reason
for it is to get their foot in the door to being able to get the ERG out the same door!!
To think otherwise is to be naive, deluded, stupid, or selfish. Never, ever before in the
history of the refinery have operators been given advanced fire training. This is only
ever provided to you ONCE you go to staff; or after you are appointed as an ERG
member.
It is my humble opinion that no AWU member should knowingly undertake training
that will lead to another member losing their job. I find it a bit insulting that anyone
could do this to a fellow worker. I do believe in all operators having the ability to
move up through the ranks into staff positions; just not at the expense of our own.
As I said earlier, this training has not been openly advertised, or endorsed by the
membership; more the opposite!! I am more than happy to discuss this with the
'identified' operators, if only I knew who they were.
Yours in unity,
Andy 'just another operator' Pearse.”
[37] It is also not in dispute that Mr Pearse drafted this email and intended it to be received
by the 170 named recipients.
[38] What is in dispute is Mr Pearse’s intent in drafting and sending the email, the effect of
the email on other operators and the extent (if any) to which sending the email breached
Company policies or his duties as an employee.
[39] I consider these matters when assessing whether a valid reason for dismissal existed.
The Investigation
[40] Viva Energy management were alerted to the email on 7 December, more than a week
after it was sent, when an employee who had attended the training approached the Area South
Operations Manager Mr Lewis. Mr Lewis said that the employee expressed concern at the
email’s contents and its impact on him doing his job18. I accept the evidence of Mr Lewis on
this point. However, that employee was not identified by Mr Lewis in his evidence, nor was
the person called to give evidence.
[41] Mr Lewis formed a view that the email was likely to intimidate and marginalise
employees who attended the training. He alerted the Refinery Operations Manager Mr Lyons
who formed a similar view and who in turn alerted the Refinery General Manager Mr Heyns,
and the corporate General Manager of Human Resources Ms Haydon.
[42] On 8 December Ms Heydon discussed the email with Mr Heyns. She formed a view
that the email did not appear to be consistent with employee obligations under the Code of
Conduct. Mr Heyns was concerned at its apparent threatening and intimidating intent and
tone. Together, they decided a formal investigation would be instigated.
[2017] FWC 3817
7
[43] John McKenzie was engaged as the investigator. Mr McKenzie had been an
independent industrial relations consultant since 2015 but earlier in November 2016 had been
engaged by Viva Energy as its Acting Refinery Human Resources Manager when a temporary
vacancy arose. While Mr McKenzie conducted the investigation using skills and knowledge
acquired during his career and as an independent industrial relations consultant, he had been,
in the preceding month and remained during the investigation, the Acting Refinery Human
Resources Manager reporting to Ms Haydon.
[44] Mr McKenzie’s investigation commenced in December 2016. His report was delivered
to Mr Heyns and Ms Haydon on 2 February 2017.
[45] Mr Pearse and his support person Mr Wood met the investigator Mr McKenzie in the
presence of Mr Lewis on 20 December. He had been stood down since 13 December. Mr
Lewis handed Mr Pearse a letter19 informing him of the allegations and of the fact that Mr
McKenzie would be conducting a formal investigation. The letter attached policies the
Company considered relevant to the investigation. The letter also advised Mr Pearse that he
would remain stood down on full pay for the duration of the investigation.
[46] Mr McKenzie then made contact with persons he considered relevant to the
investigation, and sought signed statements from each. In addition to interviews and
statements from Mr Lewis and Mr Lyons, statements were obtained from an Operations
Maintenance Co-ordinator, a Production Excellence Manager and two Plant Controllers. Mr
McKenzie also sought to interview three other persons, two of whom were Shift Team
Leaders and one who was an Emergency Response Officer. While each of these met or spoke
briefly with Mr McKenzie, each separately declined to make a formal statement on the
grounds that either they could not add anything to the investigation or were concerned about
their relationship with co-workers.20
[47] Faced with this impasse, Mr McKenzie decided to interview a random sample of
operators. Contact was made with approximately fourteen persons. Due to a combination of
sick leave absences and operational reasons, only a handful of these operators were
interviewed.
[48] Mr McKenzie interviewed Mr Pearse on 25 January in the presence of his support
person Mr Wood. A written record of interview was prepared.21
[49] Mr McKenzie provided the report of his investigation to Viva Energy on 2 February. It
was extensive; some 38 pages plus 200 pages of appendices. Its principal findings were
adverse to Mr Pearse. Mr McKenzie found that Mr Pearse had breached the Standards of
Behaviour and Code of Conduct. In all, Mr McKenzie made the following ten findings:
1. Mr Pearse sent the email on 25 November 2016, and intended to send it out to all Viva
Energy Operators. The email highlights employees that were attending Fire Training
in Brisbane, and an employee that organised this training.
2. The email from Mr Pearse links the purpose of the Fire Training in Brisbane to the
Emergency Response Operations Area (EROPs) changes. The email was designed to
draw the attention of the general Operator workforce to the employees organising and
attending the Fire Training in Brisbane.
[2017] FWC 3817
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3. It was generally known by the Area South Operators who was attending the Fire
training in Brisbane. It was reasonable to conclude that Mr Pearse knew who was
attending the training when he sent the email.
4. It was generally known by the Area South Operators who organised the Fire Training
in Brisbane. Mr Pearse made his own assessment who organised the Fire Training
when drafting and sending the email. The email was designed to highlight this to the
broader Operator Group.
5. The three employees that were the subject of the email were Messrs LoRicco, Cone
and Tomkins. The email from Mr Pearse was designed to target these employees
attending and organising the Fire Training in Brisbane and to intimidate, and/or
isolate, and/or humiliate and/or bully these employees and discourage other employees
from attending or organising such training.
6. The email from Mr Pearse had an impact on the three employees concerned. This
impact is due to the fact that the intent of the email was to target the employees
concerned, and intimidate, humiliate, harass, bully and/or isolate these employees. In
addition, the email was calculated to have an effect on people that were perceived to
have acted contrary to union resolutions.
7. The email was designed to actively discourage employees from undertaking safety
training as required by the Company, where this was perceived to have an impact on
employment.
8. The type of Fire Training that was provided in Brisbane has been provided to
Operators in the past.
9. Mr Pearse would have been aware of Viva Energy Policies such as Code of Conduct
and Guide to Standards of Behaviour through online training.
10. Mr Pearse intended to send the email in his role as an operator, and not a union
delegate.22
[50] Mr McKenzie reached the following “Conclusion”:
“Mr Pearse would have been aware of Viva Energy Policies such as Code of Conduct
and Guide to Standards of Behaviour through online training. The email from Mr
Pearse breaches the Viva Energy policies of the Guide to Standards of Behaviour and
the Business Principles and Code of Conduct. The email was designed to target
employees that attended and organised the Fire Training in Brisbane. It also had the
effect of intimidating, and/or isolating, and/or humiliating and/or bullying these
employees and discouraging other employees from attending or organising such
training. The email was designed to actively discourage employees from undertaking
safety training as required by the Company, where this was perceived to have an
impact on employment.”23
[51] Mr McKenzie’s report did not recommend a form of sanction for the breaches of
policy. This, he left, to other Company officers. The covering letter which accompanied his
report24 recommended that “the decision-makers must base the decision about any sanction
against Mr Pearse solely on the matters set out in the Investigation Report taking into account
the nature of Mr Pearse’s conduct, his service record and other matters personal to Mr
Pearse”. It cautioned the decision-makers to not have any regard to Mr Pearse’s status as a
union member or delegate or his participation or pursuit of workplace rights.
The Dismissal
[2017] FWC 3817
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[52] The persons who decided the sanction imposed on Mr Pearse were the Refinery
General Manager Mr Heyns and the General Manager of Human Resources Ms Haydon. On 8
February, they formed an in-principle view that Mr Pearse should be dismissed, subject to
providing him an opportunity to respond to the Investigation Report and the proposed course
of action.25 Internal authority was obtained from Viva Energy’s Acting Chief Executive
Officer (Mr Ridgeway) for Mr Heyns to dismiss Mr Pearse should that course be decided.
[53] On 15 February Mr Pearse, accompanied by Mr Wood, met Mr McKenzie and Mr
Lyons. He was provided a letter from Mr Heyns which advised him of the outcome of the
investigation. It further advised him that Mr Heyns was intending to terminate his
employment and the matters Mr Heyns proposed to take into account. It sought a response by
17 February.
[54] On 17 February the attendees at the 15 February meeting reconvened to hear Mr
Pearse’s response. Mr Heyns also attended. Mr Pearse responded to the Investigation Report
in the following terms:
“I’ve read the findings and generally I can’t dispute them.”26
[55] Mr Pearse then tabled a letter.27 It included the following:
“I did not intentionally or knowingly break any policies or procedures when sending the
email. However, I understand why Viva are concerned about the email. If I could have
my time again I would not have sent the email I sent.”28
[56] During the course of the meeting Mr Pearse stated his defence in the following terms:
“I’ve never sent an email like that before – it was a lapse of judgment and I was tired.
That’s still no excuse but that’s the time I sent it. If it was 3.49pm I would not have
sent it. The reason it wasn’t sent as the union was that I couldn’t contact other
delegates. It’s out of character for me to send an email like that. Generally my peers
find I’m quite respectful and easy to deal with – I’m not a confrontational type of
person. It was a total lack of judgment and I unreservedly apologise to the Company
and to the people.”29
[57] On the evidence before me, this was the first occasion Mr Pearse had used tiredness
and the time of day as an explanation for his conduct. He did not raise this in his meeting with
Mr McKenzie on 25 January.
[58] He also tabled proposed apology letters to the three employees which the investigator
had found were targeted by the email. The Company did not distribute them. It considered
them insincere.
[59] Over the following three days Mr Heyns and Ms Haydon considered their position in
light of Mr Pearse’s response. They both independently and then jointly came to a view that
in all the circumstances Mr Pearse’s employment should be terminated. Mr Heyns in
particular considered that:
“Mr Pearse’s expressions of contrition appeared to me to be calculated solely to avoid
the prospect of dismissal. He had given no earlier indication that he regretted his
[2017] FWC 3817
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actions or appreciated their seriousness. For these reasons, the notes of the meeting and
Mr Pearse’s letters did not alter my view that termination was appropriate.”30
[60] Ms Heydon formed a similar view.31 Neither Ms Haydon nor Mr Heyns considered Mr
Pearse’s employment history to be a mitigating factor.32 In the termination letter signed by Mr
Heyns he expressed the following view:
“Taking all these factors into account, including a recent warning and your past
performance, I am satisfied that your termination of employment is warranted and
must now be carried into effect. I am not satisfied that your written and verbal
response, including the admissions made and apology proffered, presents
circumstances sufficient to require a different outcome.”33
[61] On 21 February Mr Heyns, Mr Lyons and Mr McKenzie met with Mr Pearse, again
accompanied by Mr Wood, to advise him of the Company’s decision. It was a short meeting.
Mr Heyns informed Mr Pearse and Mr Wood that his employment would be terminated on the
ground of breach of Company policy in sending the email. He was handed a termination letter
signed by Mr Heyns and dated 21 February.
[62] Although dismissed for misconduct in breach of Company policies, Mr Pearse was not
summarily dismissed. He was given five weeks in lieu of notice under clause 14.5.2 of the
Enterprise Agreement.
Consideration
[63] In considering whether Mr Pearse’s dismissal was harsh, unjust or unreasonable, the
Commission must take into account the criteria set out in section 387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(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
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(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.”
[64] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd 34 as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[65] I am under a duty to consider each of the criteria in section 387 of the FW Act,35 and
now do so.
Valid reason – section 387(a)
[66] An employer must have a valid reason for the dismissal of an employee. It is the
Commission’s task to determine if a valid reason existed. The reason(s) should be “sound,
defensible and well founded”36 and should not be “capricious, fanciful, spiteful or
prejudiced.”37 Where a dismissal is for misconduct, the test is whether the conduct occurred
on the balance of probabilities.38 Except where the Small Business Fair Dismissal Code
applies, the test is not whether the employer believed on reasonable grounds, after sufficient
inquiry, that the employee was guilty of the conduct. The Commission must make a finding as
to whether the conduct occurred based on the evidence before it.39
[67] Viva Energy considered Mr Pearse’s conduct to be in breach of Company policies and
his obligations as an employee under the Enterprise Agreement.
[68] It is not in dispute that the conduct (sending the email) occurred. The question is, was
this a valid reason for dismissal?
[69] The Enterprise Agreement provides as follows:
“14.4 Employer and employee duties
(i) Employees shall be ready, willing and available to perform all duties as
directed;
(iv) It is a term and condition of employment and of the obligations and rights
accruing under this Agreement that an employee will:
(e) Comply with the Company’s direction to carry out work required for the safety
of personnel and plant, or for the emergency prevention of pollution.”
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[70] The Investigation Report found that whilst Mr Pearse’s email did not directly
encourage employees not to comply, it was “designed to actively discourage employees from
undertaking safety training as required by the Company, where this was perceived to have an
impact on employment.”40 This was the basis for Mr McKenzie concluding that the duties of
an employee under clause 14.4 of the Enterprise Agreement had been breached. The
Company decision-makers adopted Mr McKenzie’s conclusion.
[71] I find that Mr Pearse breached duties owed under the Enterprise Agreement. The
advanced fire training was “training required for the safety of personnel and plant” within the
meaning of clause 14.4 of the Agreement. In sending the email, Mr Pearse was seeking to
actively frustrate its organisation and participation by negatively portraying those who
organised and participated in it.
[72] The Viva Energy Code of Conduct and Standards of Behaviour include the following:
6. “OUR VALUES
Viva Energy employees share a set of core values – honesty, integrity and respect for
people.
Our core values are the foundation of our Business Principles. (Page 5)
7. PROVIDING A SAFE AND INCLUSIVE WORKPLACE
Viva Energy is founded on strong values and promotes a culture based on honesty,
integrity and respect. We are committed to ensuring all employees have the capability
and right to a fair, safe and productive environment where they can develop to their
full potential. (Page 7)
8. HARASSMENT AND BULLYING
Viva Energy will not tolerate harassment, nor any action, conduct or behaviour which
is humiliating, intimidating or hostile. (Page 8)
9. YOUR RESPONSIBILITY
You should understand and comply with the Viva Energy Guide to Standards of
Behaviour. Treat others with respect and avoid situations that may be perceived as
inappropriate. (Page 8)
10. HOW YOU CAN DO THE RIGHT THING
Do not physically or verbally intimidate or humiliate others.
Never make inappropriate jokes or comments. If you are unsure whether
something is inappropriate assume that it is.
Never distribute or display offensive or derogatory material, including pictures.
(Page 8)”
[73] The Investigation Report found that “the email was designed to target these employees
attending and organising the fire training in Brisbane and to intimidate and/or humiliate
and/or isolate and/or bully these employees and thereby warn off or discourage other
employees from attending or organising such training.”41 This was the basis for Mr McKenzie
concluding that the Code of Conduct policy and the Standards of Behaviour Policy had been
breached. The Company decision-makers also adopted this conclusion.
[2017] FWC 3817
13
[74] In making this finding Mr McKenzie was expressing a view on the intent of the email.
[75] This was a matter of contention at the hearing. To both the investigator and in his
evidence to the Commission, Mr Pearse said that his intention was only to provide
information to other operators. He stated that his purpose was to inform them that certain
employees were participating in the advanced fire training, and to inform them of his
opposition to that participation and of his reasons. He said he simply wanted them to “think”,
not act.42
[76] He strenuously denied that his intent was to elicit any reaction from the other operators
against those participating or to flush out those who had or were participating. He said the
only action he was seeking to trigger was his offer to discuss their participation with those
involved if they chose to identify themselves to him.43
[77] Mr Pearse also denied that the effect of the email had been to create disharmony
amongst the workforce or an environment in which employees felt intimidated, harassed or
belittled.44 He said that his record as an employee and as a union official stood against a
workplace culture of that type.45
[78] Based on their reading of the email when it was first brought to their attention, both
Mr Lewis and Mr Lyons formed a different view. They considered that it was unfair on those
who had attended the training and those who may consider doing the training in the future.46
Ms Heydon and Mr Heyns formed a similar and even firmer view on their first impressions.
These individual and collective concerns of management are what gave rise to the
investigation. They were confirmed by the findings and conclusion of the investigator.
[79] To make findings on the question of intent, the Commission must consider the email
objectively and in context. Intent, objectively assessed, is not a finding to be made based
solely on the stated intention of the author of a document or the subjective perceptions of its
readers.
[80] I find that the email was intended to negatively portray the employees who had
attended the advanced fire training and to disrespect their lawful decision to do so. Nor did the
email show respect for persons who may have contemplated undertaking the training in the
future. It expressly insulted the attendees in derogatory terms by saying that they “could be
seen as naïve, deluded, stupid of selfish.” This was not just an expression of opinion by Mr
Pearse. It was a form of words designed to encourage other operators to hold a similar view.
As such, I find it was a breach of Viva Energy values and policies requiring employees to
foster respect for people and contribute to a respectful workplace environment. It also
contravened policies requiring employees to refrain from distributing offensive or derogatory
material. My finding accords with Mr McKenzie’s conclusion in these respects.
[81] I also find on an ordinary construction of the language of the email and its tone, that it
was divisive. It described the operators who had attended the training as ‘select’ (in inverted
commas) operators, with the inference that somehow they were in a different or special
relationship with the Company in contrast to the other operators.
[82] Mr Pearse did not identify the operators which his email described as ‘select’. To the
investigator and in his primary evidence to the Commission he said that he suspected but did
not know with certainty who they were.47 He had been told the name of a person (Mr Cone)
[2017] FWC 3817
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by his work colleague Mr Grimes the day or the day prior to sending the email. He considered
Mr Cone’s involvement possible, if not probable. Under cross examination he conceded that
at the time of drafting the email he had grounds to believe the identity of two of the persons
but had not had this confirmed.48
[83] Whether Mr Pearse knew the identity of all or some of the operators who undertook
the training, it is reasonable to conclude that the email was designed to flush out the identity
of those who had done so. The author would have considered it to be a reasonable response of
an operator interested in the subject, when reading the email, to ask themselves or other
operators ‘who was involved?’.
[84] I do not find the evidence of Mr Pearse that he did not intend anyone to react to his
email to be convincing. An objective reading of its content, particularly in context, suggests
otherwise. Mr Pearse was a longstanding employee who was known by his work colleagues to
have provided many years of leadership on collective industrial and workplace issues. It is not
credible to conclude that an experienced operator holding a senior industrial position sending
an email on an industrial issue to 170 work colleagues would have thought that the operators
who received it would just passively internalise that knowledge (“think” but “do nothing”), as
Mr Pearse claimed was his intent.49 Based on the email’s construction and tone as well as his
role in collective workplace advocacy, I find that Mr Pearse intended at least some of the
operators who had not undertaken the training to ask questions in the workplace about who
had done so, and for at least some of the operators who had undertaken the training to either
reveal that fact to their colleagues under the pressure of the moment or feel uncomfortable at
the risk of being ‘found out’.
[85] Mr Pearse’s concluding message in the email was to invite the operators who had
undertaken the training to identify themselves to him and state their case. Given the tone and
content of earlier parts of the email and the fact that it had been sent in writing to so many
operators, this was not a neutral act of conciliation, as Mr Pearse sought to portray in his
evidence. I find that it was intimidatory.
[86] In the email Mr Pease claimed the training had been “secret”, with the inference that
the participants were going behind the back of the other operators or undermining them in
some way. Mr McKenzie found that while it had not been widely publicised, the training had
not been secret at least amongst certain groups of operators50. Mr McKenzie also considered
that the training had a legitimate purpose for the individuals concerned (to enable them to
meet a requirement for promotion). This was also the evidence of Mr Lyons.51 In his
interview with Mr McKenzie on 25 January, Mr Pearse agreed that he had since discovered
that some training of this type occurred in Sale a few years earlier.52 I find that the email
“targeted” the individuals who attended the training, even though it did not name them.
[87] For these reasons, I am satisfied that the email constituted behaviour that was
humiliating, intimidating or hostile and contrary to Viva Energy policies. I find that Mr Pearse
was dismissed by Viva Energy on account of sending the email of 25 November 2016 in
breach of Company policies and his duties as an employee. In doing so, the decision-makers
had regard solely to Mr Pearse’s conduct as it related to Company policies and his duties as
an employee, and his employment record. Mr Heyns and Ms Heydon had particular regard to
the caution expressed to them by Mr McKenzie that no decision should be made on account
of Mr Pearse’s lawful and legitimate role as a union delegate. I find that Viva Energy did not
dismiss Mr Pearse for an unlawful reason under the FW Act associated with the exercise of
[2017] FWC 3817
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workplace rights or industrial activity. This ground of his unfair dismissal claim is not made
out.
[88] However, not all breaches of policy constitute a valid reason for dismissal. All
relevant circumstances must be considered including the nature of the breach (or breaches),
the extent to which an employee knew or could reasonably have known of the policy (or
policies), and any extenuating or mitigating circumstances.
[89] Did Mr Pearse know or could he have reasonably known about Viva Energy policies
he was found to have breached?
[90] Mr McKenzie found that Mr Pearse “would have been aware of the Viva Energy
Policies such as the Code of Conduct and Guide to Standards of Behaviour through on-line
training.”53 Ms Heydon gave evidence to similar effect.54 Mr Pearse, however gave evidence
that he was not familiar with the specific policies.55 He said that while he completed the on-
line training modules,56 they could be short-circuited to the final assessment, thus avoiding
the need to read the specific policy. He said that this had been the practice of operators,
although he could not recall if that was the case with these specific policies.57 He also said
that he had been trained in the Shell Code of Conduct and not the Viva Energy Code. He
acknowledged, however that he had completed the on-line training on Viva Energy’s anti-
bullying and harassment policies.58
[91] Ms Heydon gave evidence that operators were expected to apply themselves diligently
to the on-line training modules.59 Her evidence, supported by documentation, was that Mr
Pearse had completed the on-line training to a competent level.60 While it was technically
possible on some modules to skip content to short circuit the learning, her evidence was that it
was the responsibility of each employee to be aware of the content of the module they were
certified to have competently completed. Her evidence, which I accept, also indicates that the
Viva Energy Code of Conduct was sent to all employees when Viva Energy acquired the
business, and that the former Shell Policy, in relevant respects, reflected the Viva Energy
Code.61
[92] I find that Mr Pearse had completed on-line training on the relevant Viva Energy
policies and their Shell equivalent to a standard of competency. I find that he knew or ought
to reasonably have known of Company policies concerning respect in the workplace, and
prohibitions on harassing, insulting or bullying workplace behaviour or communication. My
findings accord with the conclusions reached by Ms Heydon’s and Mr McKenzie.
[93] Were the policy breaches by Mr Pearse sufficiently serious to warrant dismissal?
[94] For different reasons, counsel for Mr Pearse and for Viva Energy each expressed the
view that I should have regard to both the context and the content of Mr Pearse’s email and
conduct in deciding whether it was sufficiently serious to warrant dismissal on notice. I agree.
I now consider particular factors bearing on this question. In doing so, I have assessed the
email objectively in both language and tone, and in the context of the prevailing
circumstances.
Was it made less serious by virtue of Mr Pearse being a union official?
[2017] FWC 3817
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[95] I have found that Mr Pearse was not dismissed on account of his union activities.
However, his purpose in drafting the email and deciding to send it, as well as its likely effect
on the operators cannot be divorced from the fact that he was, and was known to be, a union
delegate holding elected office. In assessing the seriousness of his conduct I consider it
relevant to take into account the fact that he was seeking to defend a union policy opposing
de-manning which (correctly or incorrectly) the union linked to advanced fire training
amongst operators. He sent the email as “Andy ‘just another operator’ Pearse” and said in the
email that he was “not writing this on behalf of the delegates”. In his evidence he explained
that he expressed this caveat because the email had not been cleared by other AWU delegates,
not because it was inconsistent with union policy.
[96] Allowance needs to be made for the fact that an elected union official seeking to
uphold a union policy would be likely to express himself to operators in a more robust and
divisive manner than an ordinary exchange amongst employees. However, Mr Pearse was not
communicating to his fellow union members at a mass meeting or in a private union forum.
He was communicating to employees, notwithstanding he believed that they were mostly or
all current union members. He was using a Company email system, doing so in Company
time, broadcast it to a large number of Company employees including, in all likelihood, those
he was seeking to denigrate. I do not consider that his background in union activities
sufficiently mitigates the seriousness of the breaches.
Was it made less serious having regard to its effect on the workplace?
[97] Considerable attention in the investigation and in proceedings before the Commission
was given to the effect of the email, in contrast to its intent.
[98] Mr Pearse claimed to the investigator, and in his evidence that the email did not have
any adverse effect on workplace attitudes or relationships. He said that those who spoke to
him generally supported the email’s contents. However he did receive communication from at
least one operator (Mr Noble) seeking to assure Mr Pearse that he had not undertaken the
training.62 By email reply, Mr Pearse assured Mr Noble that he was not meant to be
implicated.63
[99] Mr McKenzie formed a different view about the email’s effect. His investigation
found that “the email from Mr Pearse had an impact on the three employees concerned.” Mr
McKenzie went on to conclude, based on the only limited degree of co-operation from
operators during his investigation and based on the evidence that the email represented a
majority view of the operators, that the concern of the three targeted employees was
understandable and “is a reasonable explanation for their reluctance to provide a statement.”64
[100] I find that the email did not have a significant negative effect across the operator
workforce as a whole. However, this does not diminish the seriousness of the breach. It was
broadcast to the many in order to set them against the few who undertook the training or may
consider doing so in the future. It was targeted at unsettling them by making their goings-on
broadcast to the many. Amongst those that had undertaken the training at least, it had the
desired effect. It made some concerned about their relationship with their work colleagues,
and uneasy about co-operating with the investigator. One employee was sufficiently
concerned to trigger the initial alert to Mr Lewis. I find that the email had an adverse effect on
a small number of employees. My finding accords with that of Mr McKenzie.
[2017] FWC 3817
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Was it made less serious by virtue of the apologies proffered?
[101] Counsel for Mr Pearse urged me to conclude that the seriousness of Mr Pearse’s
conduct was mitigated by his willingness to acknowledge his error and apologise to the
Company and to the targeted employees.
[102] In certain contexts, acknowledgement of error and an apology can mitigate the
seriousness of misconduct. However, the nature of the conduct as well as context matter. Mr
Pearse did not express contrition or acknowledge error in the days that followed the email
being sent. He did not seek to recall the email. He did not seek to reissue it in a less emotive
or derogatory form. Throughout Mr McKenzie’s investigation he did not apologise to the
Company or to the individuals he targeted.65 Rather, he defended his actions. Mr Heyns
formed the view on 17 February that Mr Pearse apologised at an advanced stage in order to
try to save his job. He also considered that the apology to the Company focussed on sending
the email and not the substance of what he saw as a serious policy breach. On this basis he
concluded that the apologies lacked candour and would not be accepted or distributed by the
Company.66
[103] Mr Pearse gave evidence that, in the week prior to giving evidence at the hearing and
after reading witness statements lodged with the Commission, he sent a further letter of
apology to Mr Heyns.67 In it he apologised for having called Viva Energy “a pack of bastards”
in his investigation interview with Mr McKenzie. He explained this as a reaction to having
been stood down, and said it did not represent his view of the Company as a whole. This was
also his evidence to the Commission.68
[104] I find that it was not until the final sequence of meetings with management, when
dismissal was a very real possibility, and in some cases only in the wake of these Commission
proceedings, that Mr Pearse expressed contrition. By then, consequences had arisen.
Employees who had attended the training had refused to co-operate with the investigator, and
at least some were concerned about their workplace relationships. The basis for mutual
respect and trust between the Company and Mr Pearse had been eroded.
[105] I find that the apologies proffered were belated and expressed in the shadow of an
advanced disciplinary process when dismissal was understood by Mr Pearse and his support
person to be a real possibility. Even if they were sincere, by that time almost three months had
elapsed and they had become self-serving. I consider they are insufficient to mitigate the
seriousness of the misconduct.
Was it made less serious by virtue of the fact that it was a single act of misconduct?
[106] Relevant to the question of whether there was a valid reason is whether dismissal was
a disproportionate response by the employer to a single act of misconduct by a longstanding
employee.
[107] Having considered the evidence, I do not reach that conclusion. The fact that an
employee is longstanding does not insulate that person from dismissal if, in all the
circumstances and having regard to the factors in section 387 of the FW Act, the conduct
complained of is sufficiently serious to justify dismissal and fair disciplinary procedures are
followed.69
[2017] FWC 3817
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[108] The email was not inadvertent. Nor was it provoked. Whilst written in disappointment
and some anger it was not part of a heat of the moment exchange. It was unsolicited and
widely broadcast. The misconduct was serious in intent and was not remediated when it could
have been. Even as a single act, it involved judgement albeit what in hindsight was said by Mr
Pearse to be a lapse of judgement. Even as a single act, it had ripple effects and was designed
to have those effects.
[109] In these circumstances, I find that dismissal for sending the email contrary to policy,
even if seen as a single act, was not a disproportionate response.
[110] Having regard to all of the above considerations, I conclude that Viva Energy had a
valid reason for dismissal within the meaning of section 387(a) of the FW Act.
[111] In reaching this conclusion I have also had regard to the fact that section 387(a) makes
specific reference to the effect of conduct on “the safety and welfare of other employees”. For
reasons outlined, I have concluded that Mr Pearse’s conduct compromised the welfare of the
targeted employees and their right to work in a safe environment free of intimidation or
harassment.
Notification of the valid reason – section 387(b)
[112] Notification of a valid reason for termination should be given to an employee
protected from unfair dismissal before the decision is made.70 In Crozier v Palazzo
Corporation Pty Ltd71 a Full Bench of the Australian Industrial Relations Commission dealing
with a similar provision of the Workplace Relations Act 1996 stated the following:
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for their termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it
was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment. Much like shutting the stable
door after the horse has bolted.”72
[113] Mr Pearse was notified of the allegations being made against him on the day he was
informed of Mr McKenzie’s investigation. When informed of the findings of the investigation
on 15 February, he was advised those findings were the basis on which disciplinary sanction
was being considered. When he was advised on 17 February that an in-principle decision had
been made to terminate his employment, he was advised of the specific reasons and the
allegations to which he was asked to respond. At the 21 February meeting when Mr Pearse
was dismissed, he was formally informed of the reasons for dismissal.
[114] I am satisfied that Mr Pearse was notified of a valid reason for dismissal.
Opportunity to respond – section 387(c)
[115] An employee protected from unfair dismissal must be provided with an opportunity to
respond to a reason for dismissal if it relates to their conduct or capacity. This criterion is to
be applied in a common-sense way to ensure the employee is treated fairly and should not be
burdened with formality.73
[2017] FWC 3817
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[116] Mr Pearse was given a full opportunity to respond to the allegations throughout the
course of the investigation, and during the sequence of meetings which led to the decision to
dismiss. Mr Pearse availed himself of those opportunities.
[117] While it was common ground that Mr Pearse was given an opportunity to respond,
counsel for Mr Pearse submitted that the decision to dismiss lacked procedural fairness in that
Viva Energy failed to properly apply its disciplinary policies. Those policies are the
Disciplinary Procedure and the Guidelines of Fair Play.74
[118] On legal advice, at the conclusion of the termination meeting on 21 February the AWU
organiser Mr Wood asserted that the Guidelines for Fair Play had not been adhered to.75 He
had earlier, again on legal advice, unsuccessfully sought copies of all documents Mr
McKenzie had accumulated during the investigation.76 The contention was that the Guidelines
for Fair Play provide for a ‘peer test’ in which conduct is discussed with up to five peers who
are representative of the employee’s workgroup for the purpose of assessing if the conduct
complained of was what others would do or was a normal operating practice.77
[119] A formal peer test was not applied to assess Mr Pearse’s conduct. However, Mr
McKenzie’s investigation sought to actively involve other operators including a random
sample. Despite varying degrees of cooperation and availability, he did so. I find that the
intent if not the methodology of the peer test, to the extent to which it is relevant to a non-
operational incident (such as an email on an industrial issue), was met.
[120] I find that the Disciplinary Procedure and the Guidelines for Fair Play were, in
substance, adhered to by Mr McKenzie in setting out the methodology of his investigation78
and in conducting the investigation. Mr McKenzie and then the Company decision-makers
provided Mr Pearse with natural justice, as required by the Guidelines for Fair Play. This
principle was referred to by Mr McKenzie at the outset of his report.79 I also find that the
Guidelines for Fair Play were complied with by Ms Heydon and Mr Heyns in reaching and
communicating a decision to dismiss. I do not consider that they provide a basis for finding
procedural error in the dismissal.
Unreasonable refusal by the employer to allow a support person – section 387(d)
[121] Viva Energy did not unreasonably refuse to allow Mr Pearse to have a support person
present at discussions relating to his conduct and dismissal. At all stages of the process Mr
Pearse availed himself of that opportunity, through the assistance of Mr Smith.
Warnings regarding unsatisfactory performance – section 387(e)
[122] Mr Pearse was not dismissed for unsatisfactory work performance. His dismissal was
conduct related, not capacity related. Nonetheless, in considering whether to dismiss Mr
Pearse the evidence of Mr Heyns and Ms Heydon, which I accept, is that they had regard to
Mr Pearse’s work history including his record of past counselling and warnings.
[123] Ms Haydon said that she took into account that sending the email had occurred “only
four months after he had received a written warning which expressly advised him that further
disciplinary action, up to and including termination of employment, could be taken if his
conduct did not improve.”80 That warning concerned unauthorised distribution of a safety
pamphlet. Ms Heydon considered that warnings in 2005, 2007 and a dismissal (with a
[2017] FWC 3817
20
Commission recommended reinstatement to a lesser position) in 2008 did not provide a basis
for mitigation.
[124] While length of service is a factor in Mr Pearse’s favour, the nature of the misconduct
and his disciplinary record have to be taken into account. I find that Mr Pearse’s record was
not unblemished. Not long prior to dismissal, Mr Pearse received a warning for
communication of material in the workplace contrary to policy.
[125] I find that Viva Energy considered Mr Pearse’s work history including past conduct
and warnings in considering whether that history mitigated the seriousness of the breaches. I
also find that those past warnings, including the extant warning, had put Mr Pearse on notice
that misconduct in breach of policies could lead to termination of employment. I find that
apart from long service, no factors in mitigation based on past conduct existed. His long
service does not outweigh the conduct in breach.
Impact of the size of the Respondent on procedures followed – section 387(f)
[126] Viva Energy is a significant employer with capability to investigate conduct and apply
Company policies with rigour. I am satisfied that the Company did so in its investigation into
Mr Pearse’s conduct and in reaching and communicating its decision to dismiss.
Absence of dedicated human resources management specialist/expertise on procedures
followed – section 387(g)
[127] As a sizable employer, Viva Energy has a dedicated and specialist human resources
management capability. That resource was used to conduct the investigation into Mr Pearse’s
conduct, and to work with refinery management in making its decision to dismiss.
Other relevant matters – section 387(h)
[128] Section 387(h) provides the Commission with a broad scope to consider any other
matters it considers relevant.
[129] Mr Pearse claims that his dismissal will have a harsh impact on him financially and
prejudice his financial planning towards retirement. He points to his age (56 years), the fact
that he has worked at the refinery for a generation, and that he lives in a regional area
(Geelong district) which is undergoing industry change and the loss of some of its traditional
industrial base. He says that work for which he is qualified and skilled is difficult to secure
and that his prospects for comparable secure employment are limited.
[130] He has not actively been seeking alternative employment because, he says, for the
time being and since his termination he is being paid the equivalent of his former wage
through an AWU fund. This, he says, is an arrangement that operates at the goodwill of the
AWU and only whilst his legal rights are being settled.
[131] He also says that he has had difficulty adjusting to the reality of being stood down and
then dismissed, and is seeing a psychologist to assist him.
[132] There is no doubt that the impact of dismissal on Mr Pearse is significant both
personally and for future financial planning. He was provided a small amount of pay in lieu of
[2017] FWC 3817
21
notice (five weeks), given that the Company chose not to summarily dismiss him. He has
accumulated a reasonable quantum of superannuation (to which he is entitled given his length
of service) and has an investment property in addition to his residence which he says he may
need to sell. Despite these impacts being very real, they are not unique amongst other
dismissed employees of his age and work history. They do not outweigh the conduct in breach
of policy or act to sufficiently transform his dismissal for a valid reason into one that can be
characterised, at law, as harsh.
Conclusion
[133] Mr Pearse’s dismissal was not harsh, unjust or unreasonable. As there was no unfair
dismissal, I am not required to consider the question of remedy.
[134] I dismiss the application. An order to this end is being issued in conjunction with this
decision.
DEPUTY PRESIDENT
Appearances:
S. Fitzgerald and J. Dawson-Field, for the Applicant
J. Forbes and T. Kavanagh, for the Respondent.
Hearing details:
2017.
Melbourne:
June, 20 and 21.
Final written submissions:
July, 2017.
Printed by authority of the Commonwealth Government Printer
Price code C, PR594701
1 PN 516-520
2 Pearse Submission paragraph 10
WORK COMMISSION THE SEA
[2017] FWC 3817
22
3 PN 61-65
4 Pearse Statement paragraph 60 and AP-8
5 PN 590
6 Pearse Statement paragraph 60 AP-8 and PN 592, PN 595; Heydon Statement paragraph 35 and JH-9
7 Pearse Statement paragraph 60 and PN 693
8 PN 206 and Exhibit A4
9 Pearse Statement paragraph 60 and AP-8
10 Letter of termination 21 February 2017
11 Heydon Statement paragraph 32(i); Heyns Statement paragraph 22
12 Heydon Statement paragraph 24
13 Viva Energy Submission paragraph 37
14 Recommendation of Commissioner Bacon, 13th March 2009; Pearse Statement paragraph 18 and AP-1
15 Viva Energy Submission paragraph 63
16 Investigation Report JM -5 Appendix 26 paragraph 123; Heyns Statement paragraph 38; Pearse PN 205
17 Ibid paragraphs 78-79
18 Lewis Statement paragraphs 3-6 and PN 102-103, PN 107
19 Ibid Attachment PL-1
20 Investigation Report JM-5 page 7 and Appendices 11-15
21 Ibid page 9 and Appendix 26
22 Ibid page 6
23 Ibid
24 Ibid pages 1-2
25 Heydon Statement paragraph 33; Heyns Statement paragraph 25
26 Heydon Statement paragraph 35 and JH-9
27 Heyns Statement paragraph 29 and TH-6
28 Pearse Statement paragraph 60 and AP-8
29 Heyns Statement paragraph 28 and TH-5
30 Heyns Statement paragraph 36
31 Heydon Statement paragraph 36
32 Heydon Statement paragraph 37; Heyns Statement paragraph 32(v)
33 Heyns Statement paragraph 34 and TH-7
34 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
35 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]
36 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
37 Ibid
38 Edwards v Guidice (1999) 94 FCR 561 [6]-[7]
39 King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
40 Investigation Report JM-5 finding 7 and page 40
41 Ibid finding 5
42 PN 234
43 PN 552-554, PN 560
44 PN 551, 562
45 PN 245
46 Lyons Statement paragraph 18
47 PN 227
48 PN 434, PN 458, PN 497, PN 544
49 PN 522-526, PN 598
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281995%29%20185%20CLR%20410
http://www.austlii.edu.au/au/cases/cth/HCA/1995/24.html
[2017] FWC 3817
23
50 Investigation Report JM-5 page 21
51 Ibid page 16; Lyons Statement paragraphs 3-6
52 Investigation Report JM-5 Appendix 26 paragraphs 73, 74 and PN 224, PN 370-376
53 Investigation Report JM-5 page 33
54 Heydon Statement paragraphs 17-19
55 Pearse Statement paragraph 63
56 PN 212
57 PN 220-222
58 PN 212
59 Heydon Statement paragraphs 17-19 and PN 1883-1888
60 Ibid paragraphs 18-19 and JH-4, JH-5
61 PN 2027-2030 and Exhibits R5, R7 and R8
62 PN 460-461
63 McKenzie Statement paragraph 24 and JM-11
64 Investigation Report JM-5 page 33 and PN 1355, PN 1376 and PN 1386-1389
65 PN 666-667, PN 698
66 Heyns Statement paragraph 30
67 Exhibit A4
68 PN 205
69 Dawson v Qantas Airways Limited (2017) FWCFB 1712 at [48] “We note the Applicant has been a long serving employee
of the Respondent for 28 years and that, at 50 years of age, it may be difficult to gain employment as a flight attendant.
Further, we empathise with the personal, family and financial circumstances of the Applicant. However, we are not
satisfied that those circumstances outweigh the prohibited conduct the Applicant engaged in when employed by the
Respondent.”
70 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
71 (2000) 98 IR 137.
72 Ibid at [73]
73 RMIT v Asher (2010) 194 IR 1, 14-15.
74 McKenzie Statement paragraph 10 and Investigation Report JM-5 pages 68-83
75 Ibid JM-10
76 Ibid JM-8
77 Ibid JM-5 page 74
78 Ibid JM-5 pages 7-9
79 Ibid JM-5 page 7
80 Heydon Statement paragraph 32(ii)
