1
Fair Work Act
2009
s.394—Unfair dismissal
Peter Brain
v
Nyrstar Hobart Pty Ltd
(U2017/5484)
DEPUTY PRESIDENT BARCLAY HOBART, 8 FEBRUARY 2018
Application for an unfair dismissal remedy – alleged safety breach – employed for 37 years
with Respondent and predecessors – no relevant prior conduct matters – valid reason but
dismissal harsh
[1] On 24 May 2017, Mr Peter Brian (the Applicant) made an application for a remedy for
his alleged unfair dismissal from his employment with Nyrstar Hobart Pty Ltd (the
Respondent) pursuant to s 394 of the Fair Work Act 2009 (the Act).
[2] Both parties were given permission to be represented by legal practitioners.
[3] The Applicant was employed by the Respondent from 19 March 1980 until his
dismissal which took effect from 8 May 2017, a period of a little over 37 years.
[4] At the time of the dismissal the Applicant was employed as a Plant Operator. During
the course of his employment the Applicant had received two formal written notifications
relating to his employment. The most recent was approximately 14 years prior to the
dismissal. Both incidents occurred within a few weeks of each other.
[5] The dismissal related to a safety breach. In summary, the Respondent submits that
there was a valid reason for the dismissal and the breach was so serious that it outweighed
considerations of length of employment and the absence of recent workplace notifications,
and any other relevant considerations such that the dismissal was not harsh, unjust or
unreasonable.
[6] For his part the Applicant submits that there was no valid reason for the dismissal.
However, even if there was the dismissal was nevertheless harsh, unjust and unreasonable
having regard in particular to the very long period of service the Applicant had with the
Respondent, the absence of recent prior notifications and the effect on him personally having
regard to his potential for future employment and that overall the sanction of dismissal was
disproportionate.
Summary of Outcome
[2018] FWC 846 [Note: An appeal pursuant to s.604 (C2018/1096) was
lodged against this decision.][Note: This decision has been quashed - refer
to Full Bench decision dated 7 June 2018 [[2018] FWCFB 3346]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3346.htm
[2018] FWC 846
2
[7] For the reasons which follow I have found that there was a valid reason for
termination. The Applicant was guilty of a serious safety breach. He proceeded to energise
equipment which was still being worked on by maintenance. He removed tags from the
equipment when he should not have done so, and knew he should not have done so. He
potentially exposed a maintenance worker to the risk of injury. However, I have also found
that the termination was harsh. The Respondent failed to seek submissions from the Applicant
in respect to sanction. Accordingly, he was denied procedural fairness in this regard. The
Applicant had been employed by the Respondent and its predecessors for 37 years. He had no
relevant previous warnings and only had two counselling matters some 14 years prior to
dismissal. He had worked his whole life in employment at the Respondents premises. It is
unlikely he will be able to obtain alternative employment due to his age and skills. A single
safety breach over a 37 year career of the type the Applicant is guilty of does not justify
dismissal.
Preliminary matters
[8] Prior to considering the merit of the matter I am require to have regard to the matters
referred to in s 396 of the Act. In that regard the Application was made within 21 days of the
date of dismissal. The Applicant is protected from unfair dismissal, the Small Business Fair
Dismissal Code does not apply and this was not a case of genuine redundancy. Accordingly it
is in order for me to consider the merits of the Application.
The Incident leading to the dismissal
[9] The facts are not really in dispute. On 21 April 2017 during his shift the Applicant
removed a Live Testing Statement and a Person in Control Tag from the control panel of a
zinc dust elevator and started the equipment. At the time maintenance was being carried out
on the equipment. The Applicant knew that maintenance was being carried out on the
machine. He had been told the day before that maintenance was to be carried out. He saw
workers working on the equipment. He saw tags on the equipment which indicated
maintenance was being carried out on the equipment.
[10] It was an issue whether the Applicant intentionally removed the Person in Control
Tag. The Applicant said he removed it inadvertently. He only knew he was removing the Live
Testing Statement. It was the Respondents case that he removed it intentionally.
[11] At the end of the day I think little turns on the distinction. In any event the evidence of
Mr Moore, who placed the tags on the equipment was that they were attached together with a
plastic keyring clip. The Person in Control Tag is about the size of a credit card. The Live
Testing Statement is about the size a half an A4 sheet of paper. The Person in Control Tag
was behind the larger Live Testing Statement. Both were hung from the equipment by the
plastic keyring.1 I find it was possible that the Applicant could remove the Live Testing
Statement and not be immediately aware he had removed the Person in Control Tag. However
for the reasons I deal with later I think nothing turns on the whether the Applicant knew he
had removed two tags. The point of the Respondent is that the Applicant should not have
removed any tags and should not have started the equipment. For the reasons which follow I
think the point is well made.
1 Transcript PN 1413 to 1420
[2018] FWC 846
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[12] Having removed the statement and tag the Applicant started the equipment. The
Applicant says that he thought that the workers had finished work.
[13] In his statement2 the Applicant outlines his movements leading up to his starting the
equipment3. He says that after lunch he went up to Mr Moore who is employed by the
Respondent as a maintenance worker. Mr Moore was in charge of the work on the equipment.
The Person in Control tag was his. The Applicant alleges that he asked Mr Moore if he would
like a hand. He says that Mr Moore indicated “that would be good”.4 At that stage the
maintenance had reached the stage of putting a back plate back onto the machine. The
Applicant asserts he assisted by handing some tools to the fitters. He confirmed this version of
events under cross examination.5
[14] Mr Moore however does not recall the Applicant offering assistance. He does concede
that the Applicant may have handed some tools to the maintenance workers.6 He does
however recall the Applicant asking how he was getting on and telling the Applicant the work
should be finished in about 10 minutes. This is significant as the Applicant did not thereafter
ask any maintenance worker whether in fact they had finished.
[15] The Applicant then went to move a zinc dust bin closer to the equipment so he could
start work as soon as the maintenance had been completed. He thought that by the time he had
done that the maintenance would have been finished.
[16] When the Applicant moved the zinc dust bin he utilized a forklift. As he drove the
forklift towards the equipment he removed a barrier tape which was across the laneway where
the maintenance workers were working.7
[17] After he parked the forklift the Applicant saw Mr Moore packing up. He assumed that
the work including the live testing had finished. Accordingly he thought it was ok to check if
the equipment was working.
[18] He approached the control panel of the equipment and saw the live testing statement.
While he had not seen one before he knew generally what it meant8. He then took the
statement off the control panel and started it up.
[19] As soon as the equipment was started Mr Moore approached the Applicant to find out
what he was doing. He said words to the effect that he had not signed off the job, that the
Applicant had done the wrong thing and he sent the Applicant away.
[20] The issue of signing off is significant. Until a job is signed off by the person in control
the equipment is not cleared to be used. The Applicant knew this9. He said the following
under cross examination:
2 Exhibit A1
3 Exhibit A1 at paragraphs 46 to 78
4 Exhibit A1 paragraph 49
5 Transcript PN 131
6 Exhibit R6 paragraph 22
7 Exhibit A1 paragraph 58
8 A1 paragraph 71
[2018] FWC 846
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“When the maintainers are working on a piece of equipment, its usual practice, isn’t it
that they hand it back to operations at the end of the job? They do, yes.
At that point, they’re signing off that they’ve finished their work on that piece of
equipment? That’s correct.”10
[21] He also said:11
“What did you do then?
Well, I went – because the actual zinc dust bin was – there’s two. There’s a long lane
that’s part of the purification then a shorter lane that goes up to where the elevator [the
equipment in question] is, so I went – I parked earlier in the morning, that morning at
7 o’clock, I’d left a bin in the lane so I went and moved it closer to where I would
have started the job but they had a barrier tape across so I moved it closer to where the
tape was so that it’d be – so when they finished the work I could put it on the stand
from there.
That barrier tape’s a sign that there’s work being done on the machine, isn’t it?
Yes, yes.
What did you do then? You went back to the control panel?
I did, yes.
You didn’t approach Scott at all?
No, I didn’t, no.
You walked across to the panel and what did you do then?
Well, I thought they were – because they were packing the tools up, I thought they’d
finished the work so then I was – yes, I removed the tag from the – the live testing tag
and the – his person in control tag.
You didn’t approach Scott and ask him if he’d finished?
Well, no, I naturally thought, because he was packing the tools away, that he had
finished the work.
You said in your statement that – sorry, I’ll withdraw that. Is it common practice for
you to walk up and take tags off a machine?
No.
9 A1 paragraphs 76, 89(d)
10 Transcript PN 126-127
11 Transcript PN 133 - 146
[2018] FWC 846
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You know, don’t you, that if something is tagged out there’s a safety reason why it
would be tagged out?
Yes.
You said in your statement that you’d never seen a live testing statement before?
No. I can’t recall, no.
No. You thought you could just pull it off and start the machine did you?
Well, I’ve never actually been trained with - in a live testing.
You see a - - -? This is the first time I’ve ever seen one. You see a live testing
statement that you say you’ve never seen before on a machine on top of the start
button and you don’t make any inquiry about what it’s doing there?
No.
Didn’t call out to Mr Moore and say “Can I take this off?” did you?
No.
You didn’t read it did you?
I did read it, yes.”
[22] The final piece of transcript I refer to in relation to what happened is lengthy but bears
setting out in full12:
“MS ZEITZ: Yes. As I understand it, your evidence is that you pulled this live testing
statement off the machine, off the control panel?
Yes.
You didn’t check underneath it to see if there’s anything else there?
No, I didn’t because I didn’t expect something to be under it.
You hadn’t been told by Mr Moore that the job was being handed back, had you?
No.
You hadn’t been told by Mr Moore that he’d removed his tags, had you?
No.
12 Transcript PN 217 - 296
[2018] FWC 846
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You hadn’t asked Mr Moore if he’d removed his tags, had you?
No.
You hadn’t asked him if the machine was ready to be started up, had you?
Well, he said it would be finished in about 10 minutes.
You went off for 10 minutes and decided he must have finished the job, is that your
evidence?
Well, I - between the time of him saying it would be 10 minutes, I went and moved the
bin closer to where I needed to be. That was the time.
Yes, and you came back - and your evidence is that you came back and decided that
10 minutes had passed so you’d start the machine?
Well, he was packing his tools away so I naturally thought he’d finished the job.
Your earlier evidence is you understand safety’s an important part of the job?
Yes, I do.
Yet you didn’t think it was important enough to ask Mr Moore whether it was safe to
start the machine?
I didn’t ask him, no, that time.
Did you ask him where his co-worker was?
Well, I didn’t know where his co-worker was at the time.
Didn’t look for him, did you?
Well, he could have been anywhere. He could have wandered off and done another
job.
That’s right, or he could have been up in the top of the tower with his clothes tangled
up in a conveyor that you’d just started, couldn’t he?
He could have been, yes.
Seriously injured, couldn’t he?
There could have been an injury, yes.
You didn’t think that might be a risk that you might have been running by starting the
machine up?
Well, I’ve - it could have been a risk, yes.
[2018] FWC 846
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But you decided to do it anyway, is that your evidence?
Well, when you see guys packing their tools up and saying they’re nearly finished, 70
percent of the time means that job was finished so that - - -
The other 30 percent of the time it’s okay to start a machine when it’s dangerous, is
that your evidence?
No, it’s not.
Well your evidence – in answer to the question I just asked you, you said 70 percent of
the time it means they’ve finished the job when you see them packing?
Well, usually they say “We’ve finished the job” and that’s - - -
Mr Moore hadn’t said that to you, had he?
No.
You hadn’t asked him the question?
No.
When you see something that says “live testing” on the piece of paper, what do you
think that means?
Means they’re doing live testing.
Why do you think when it says live testing that means you can start the machine up?
Well, this is the first time in my whole life that I’ve actually had anything to do with
live testing so I wasn’t totally – I’d been trained but this was the first example that I’d
ever had of being involved in it.
If you’ve not done something before and not seen it before, you think its okay to start
a machine?
No, I don’t.
Well your evidence is you’d never seen a live testing form before so you thought - - -?
I have actually seen one but this is the first time I’d actually been involved in my job
where it was - live testing was an issue.
You weren’t involved in the job though were you, Mr Brain?
No, I wasn’t involved in it, no.
[2018] FWC 846
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You’ve interfered in the job by going up to a machine that has a document on it that
you say you don’t know what it means, is that right?
Well, I’d been trained for – to read a live testing tag but I’ve never actually been
involved with work involving live testing. I’d been shown a tag before but I’ve never –
this is the first time – it’s like starting a car the first time. In a similar – whatever you
do the first time, it’s – the second time it’s a lot easier. You’ve done it once before.
Your evidence is, Mr Brain that you didn’t know what the live testing certificate was
for. That’s correct, isn’t it?
Yes.
Your evidence now is that you’ve never had anything to do with a live testing process
before?
No, I haven’t.
Right. Why did you think that you could go and remove something like that from the
machine, from the control panel, when, on your own evidence, you didn’t know why it
was there?
That would be right, yes.
Why did you do it?
Well, I naturally thought he’d finished the work. He was packing up and getting ready
to leave the job.
Is your evidence that if you think it’s safe to start something, it’s okay to go right
ahead no matter what’s on the machine?
No, it’s not.
Scott called out to you, didn’t he?
He did, yes.
That was after he’d hit the emergency stop button, wasn’t it?
It could have – I wasn’t - - -
You didn’t stop the machine, did you?
No, he had a stop button near where he was, yes.
Yes, and that was because Jordan was up on the top, wasn’t it, where the elevator was
starting?
Well, I didn’t know where Jordan was at the time when it happened, no.
[2018] FWC 846
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THE DEPUTY PRESIDENT: But did you later find out that that’s where he was?
Well - - -
That he was up the top?
I found out later that he was at the top, not at that particular time I didn’t know where
he was. He could have been anywhere.
Did you know that it was more likely than not that Scott would be working with
somebody?
Well, he was working with someone.
You knew - - -?
He was working with a contractor, yes. There was two guys at the bottom and Jordan
was up – I found out later was at the top.
But you knew there would be two around somewhere?
Yes.
Thanks.
MS ZEITZ: Scott then asked you to leave the area, didn’t he?
He did, yes.
He was pretty cross, wasn’t he?
He was, yes.
Did you say anything to him at that time?
Well, I was concerned myself because I knew I’d done something wrong. I didn’t
know how – at the time, I didn’t know how serious it was. I knew it was quite serious
but I – not totally how serious it was going to be.
You’ve said in your evidence that when you’ve assisted fitters in the past, they’ve
taken any tags off the machine and said words to the effect “It’s good to go”. That’s
right, isn’t it?
They have done, yes, they have done.
That’s not what happened here though, is it?
No, it’s not.
[2018] FWC 846
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When you approached the machine, knowing that Scott was still there and he hadn’t
handed over to you, why didn’t you check to see where his tag was?
Well, I just naturally thought there was only one. Because I couldn’t see his tag, I just
thought the live testing statement was the one. I
Your evidence is that when you’ve assisted fitters in the past or been around fitters,
which is what you were doing on this occasion, and they’ve concluded their
maintenance work on machinery, “They have taken any tags off the machine and said
to me words to the effect “It’s good to go”?
That’s correct.
On this occasion, none of that happened so why didn’t you look for the tag, for Scott’s
tag? He was still there?
Because sometimes they put live testing tag or whatever without putting their own tag
on so I naturally thought he’d – I did not see his tag until I removed until I’ve removed
both the tags, I didn’t know his tag was on there. Because the live testings tag was
bigger than his own personal tag.
You realised his tag was on there when you took the tag when you took the live testing
off, is that your evidence?
When I’ve removed – I removed – but they both came off at the same time and once
I’ve removed both at the same – I found his tag behind it but at the time I didn’t know
because – yes.
You’ve just said you’ve removed them both at the same time and you’ve seen his tag
there?
Mm.
Why did you proceed to turn the machine back on? Because I wanted to check that it
was okay so when I went - - -
That wasn’t your job though, was it, Mr Brain? That was Scott’s job to check the
machine was operational, wasn’t it?
Yes, it was.
Then you were called into a meeting?
Yes. My immediate supervisor rang and said there was a meeting.
Yes, and you were called into that meeting and I think Mr Archer was there?
Mr Archer was there, yes.
Mr Black was there?
[2018] FWC 846
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Yes, Mr Black was there.
Mr Black’s one of the safety people on the site?
He’s safety – he’s the chief or head safety training.
Mr Mudge was there?
No, not at that initial meeting, no.
No. I think Mr Moore came in during that meeting or was there for a short time, is that
right?
Yes, he came and explained and left.
Yes, and in that meeting, you accepted that you had removed the tags and started the
machine, didn’t you?
Yes.
You didn’t, at any time, say that you didn’t know that his tag, that Scott’s own tag,
was there, did you?
No.
At that time, the explanation you gave was that you wanted to make sure the machine
was working for the following day?
That is correct, yes.
It was after that meeting that you were – sorry, I withdraw that. During that meeting,
Mr Moore indicated that he was quite upset by what had happened, didn’t he?
He was, yes.
Because he was concerned about what could have happened to Jordan?
Yes.
Did you offer any apology or anything else in that meeting?
Well, I was – yes, concerned I was – I knew it was – yes, I was concerned about what
happened, yes, I was.
You, at no stage, said – sorry, I withdraw that. You, at no stage, acknowledged that
you could have caused Jordan to have a serious injury, did you?
Well, I didn’t because at the time I didn’t know where he was. I – when it happened, I
didn’t know – when the incident happened, I didn’t know where he was so that’s why
[2018] FWC 846
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– because I didn’t know where he was – if I’d have known what had happened, like –
then I would have been concerned but I thought he’d gone back to the workshop.
Mr Brain, do you understand – sorry, I withdraw that. Mr Brain, I want you to think
about that answer because what I’m hearing you say, and I’d like you to comment on
it, is that you didn’t feel you needed to make any inquiry about where Jordan was at
all?
Well, I didn’t know until Scott Moore had told me that he was up on – above the
elevator, so - - -
You’ve come back – sorry, you’ve come back into the area, you’ve walked up to a
machine that’s got, at least on your evidence, most recent, the tag and the live testing
certificate, or statement, and you haven’t thought that you should make any inquiry of
anybody about where Jordan was?
Well, I didn’t know where he was so I should’ve done, I suppose, but because I didn’t
think he was around the area, I didn’t ask.
THE DEPUTY PRESIDENT: What made you think he wasn’t in the area?
Well, sometimes there’s two fitters that work together and one stays on the job and
one goes off to get some tools or to do another job or whatever so I didn’t know that
he was still in the area so that’s – until I was told.
But you didn’t ask anybody?
No, not at that - - -
You didn’t look?
What’s that?
You didn’t look for anybody else either?
No, no.
But you knew they weren’t in pairs? Well at least you knew they were working in
pairs that day?
Yes, yes.
Thanks, Ms Zeitz.
MS ZEITZ: Thank you. You knew that it was pretty serious when you met with Mr
Archer and Mr Black, didn’t you?
Yes, yes.
Then Mr Mudge approached you and said you were being stood down?
[2018] FWC 846
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That was later. That was after the initial meeting, yes.
He explained to you why you were being stood down, didn’t he?
He did, yes.
That they were going to conduct an investigation?
That’s true.
Because it was a serious safety breach from their perspective?
Yes.
[23] I should also refer to evidence relating to the availability of maintenance workers on
the weekend. The Applicant sought to justify his actions by saying that he acted as he did to
ensure work could start straight away. He also sought to point to the fact that maintenance
workers were harder to get over the weekend. In combination the explanation was to the
effect that the Applicant acted as he did solely for the benefit of the Respondent.
Valid Reason (s 387(a))
[24] A valid reason is one which is sound, defensible or well founded. A reason which is
capricious, fanciful, spiteful or prejudiced will not be a valid reason. The reason must be valid
in the context of the employee’s conduct.13
[25] The reason relied on by the Respondent for terminating the employment which arises
out of the factual matrix I have set out above is:14
21.1 The Applicant engaged in a serious safety breach in circumstances where:
21.1.1 He had not been involved in the planning for or performance of the
maintenance tasks that were being done.
21.1.2 He mad no inquiry of a maintenance employee in the vicinity at the time
prior to starting up the machinery.
21.1.3 He removed a Personal Identification Tag and Live Testing Statement
and by his actions was indifferent to their purpose and presence.
21.1.4 He had no basis upon which to conclude that the maintenance task had
finished and that all persons engaged in that task had finished and left
their work area.
21.1.5 He offered no reason for his conduct other than that he wished to ensure
that the machinery was working as it was in his interests to do so.
13 Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371
14 Respondents submissions.
[2018] FWC 846
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21.1.6 His assertion that he acted for the benefit of the Respondent was and
remains without basis in fact.
[26] The Applicant however submits that: 15
30. Based on the above principles, it is submitted that, for the reasons that follow,
there is no valid reason for dismissal:
(a) The two formal notifications the Applicant received in 2003, even when
considered together, amount to two minor errors of judgment in some 37
years of employment. Given their age, those two incidents ought to be
given little if any weight by the Commission. They amount to isolated
lapses of concentration in a period of service of extraordinary length.
(b) In Applicants period of employment, the Applicant had worked and
operated thousands of trucks, machinery and equipment. Prior to the
relevant incident, the Applicant consistently followed procedure and there
is no evidence to suggest the Applicant disregarded his or others safety
during his employment
(c) In the context of the behaviour occurring, the interaction of persons, the
circumstances and the events which lead up to the Applicant removing the
Tags, the Applicants actions should be considered as a momentary error of
judgement on his behalf. There was no predetermination to his conduct and
nor did he wilfully flour procedure. As soon as he realised his mistake, he
took appropriate corrective action.
(d) Notwithstanding the above, the Applicant accepted responsibility for
incident and recognised his mistake. There is no suggestion of any
dishonesty or evasiveness s in this matter.
(e) There has been no suggestion that any applicable policy of the Respondent
mandated termination in the circumstances of this case. The Respondent
thereby maintained a discretion in relation to its decision, which would
properly exercised by taking into account the surrounding circumstances.
[27] These submissions are made in the background of a submission that I must find that
because the conduct amounts to misconduct the behaviour involves more than mere
negligence, error of judgment or innocent mistake. Alternatively the Applicant submits that
the conduct did not justify termination and in that way the reason is not valid.
[28] I find that the Applicant, for his own reasons – so he could start work the next day and
because he believed maintenance workers were hard to get over the weekend – determined
that he would test the machine in circumstances where:
a He knew that the area in which the equipment was located was marked off by
barrier tape;
15 Applicants submissions
[2018] FWC 846
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b He knew that there was at least the Live Testing Statement still on the
equipment. Contrary to counsel for the Applicants submissions the Applicant
had in fact been trained in live testing.16 I should here mention the issue of the
Applicants knowledge of the Person in Control tag. It seems to have been
assumed that had the Applicant been aware of that tag he would have acted
differently. The difficulty I have is that the Applicant has given no evidence
about that. While the Applicants counsel submitted that the Applicant would
have known he had to contact the person in charge (Mr Moore) had he seen
that tag there is simply no evidence that the Applicant would have done any
such thing. Indeed the burden of the evidence is that the Applicant had already
seen the person in charge who told him they would be finished in 10 minutes. I
have no evidence that the Applicant would have revisited the issue with Mr
Moore even had he seen a Person in Control tag. I am not prepared to draw an
inference he would have. It is a very large issue and had the Applicant given
that evidence then he would no doubt have been cross examined about it.
Indeed if I were to draw any inferences it may be that the failure of the
applicant to give evidence about what he would have done had he seen the tag
is significant. I also consider significant that the training the Applicant accepts
he had in Live Testing17 specifies that the Live Testing Statement is used in
conjunction with a Person in Control tag. Arguably therefore he should have
been aware there would be a Person in Control tag with the Live Testing
Statement.
c That he knew that if a piece of equipment was tagged out it was for a safety
reason;
d He knew the equipment had not been handed back by the maintenance
workers;
e He did not in fact know that the maintenance workers had finished;
f He did not ask Mr Moore who was only 4 to 6 meters away from the Applicant
at the time18 if the work had finished;
g He had no role to play in the maintenance of the machine and had no authority
to touch the machine;
h He thought that the work had finished based on the indication that Mr Moore
had given him that work would be completed in 10 minutes but did not check
that it had in fact been completed;
i There was in fact no imperative for the Applicant to test the machine before it
was handed back. I accept the evidence of Mr Mudge that maintenance
workers would be available if necessary to carry out any work required over
16 Transcript PN 238
17 In this regard there was something sought to be made by the fact an assessor’s signature did not appear on the relevant
assessment booklet. I find that the Applicant, as he says, had the relevant training.
18 A1 paragraph 72
[2018] FWC 846
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the weekend.19 Indeed it transpired that if the equipment was not operational
over the weekend then repair of it would not be regarded as a priority by the
Respondent. This in my view is relevant to the reasonableness of the
explanation that the Applicant wanted to start work as soon as he could and
that it was for the benefit of the Respondent.
j He failed to make any enquires as the whereabouts of the other maintenance
workers. It transpired that one of the maintenance workers was in fact
potentially in harm’s way. The worker was working on the conveyor. He was
shortening belts. The cover over the belts had been removed.20 There was the
potential that the worker could have become trapped in the belts.
[29] In essence the Applicant took it upon himself to ignore tags on the equipment, to rely
on a time estimate as to when the work would be finished, failed to enquire whether work had
in fact finished and to energise the equipment when he had no authority to do so. His conduct
created a potentially dangerous situation, especially for the person working on the conveyor
belts. In my opinion there was a valid reason for termination.
[30] I should say something about a submission the Applicant made to the effect that it was
incumbent upon Mr Moore to ensure that the Applicant was not in the area whilst work was
continuing. The Applicant relied on the Isolation Policy which provides that the area should
be clear of people.21 He argued that this applied even when live testing was not actually
occurring. That is, at all times that the maintenance was carried out the area was to remain
clear of all people not carrying out the maintenance work. In this way it is submitted, because
Mr Moore did not send the Applicant away the Respondent permitted the incident to occur.
[31] I do not accept that the procedure applied where live testing is not in fact occurring.
The protocol in my view applies when the equipment is to be energised. Otherwise a
potentially large area of a workplace may be off limits because the machine being worked on
happens to be in the corner of a larger area and the whole area is to be clear of workers. More
importantly the safety issue arises when live testing is being carried out. It is in respect to the
energising of the machine that the protocol applies.
[32] Accordingly, I do not accept the submission that Mr Moore was obliged to ensure the
Applicant was away from the general area when no live testing was to be carried out.
[33] In light of the foregoing I find there was a valid reason for termination.
[34] I am however obliged to consider the other matters set out in s 387 of the Act.
Was the Applicant notified of the reasons for dismissal (s 387 (b))
[35] The Applicant submits that the precise reasons for the decision to terminate his
employment were not properly put to him and accordingly he has been denied procedural
fairness.
19 Transcript PN 1649 - 1653
20 Transcript PN 1398 - 1399
21 R3 statement of Rebecca Wade p 73
[2018] FWC 846
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[36] The gravamen of the Applicants submission was that he was not given adequate
material before a meeting which occurred on 2 May 2017 to discuss the matter.
[37] The background to this is that on the day of the incident there was a meeting in the
purification workshop. Mr Archer and Mr Black (who did not give evidence) were present.
Mr Moore was called in. the following exchange occurred22
(a) Scott Moore: ‘Peter started the elevator without checking with me about removing
the tags’
(b) SM: ‘I’m upset about what Peter did’
(c) Peter Brain: ‘I thought the job had finished and it was ok to start up the elevator’
(d) SA: ‘Why did you do it’
(e) PB: ‘I wanted to make sure it was ok to use and was working properly.
(f) PB: ‘On Saturday there would be the only a few shift fitters and I didn’t want it not
to start’
(g) SA: ‘You have to go see Adrian Mudge (Superintendent of Roast Acid and Wharf)
after this.’
[38] Immediately afterwards the Applicant went to see Mr Mudge. He was then stood down
from work.
[39] A more formal meeting was held on 2 May 2017. It is this meeting about which the
Applicant complains in the sense that he says he had insufficient information about the
allegations to properly defend himself.
[40] From the evidence I find that:
a. On 21 April 2017 the Applicant knew he had been stood down because he had
started the equipment in circumstances where it was alleged he should not have
done so in that he had removed the tags without permission of Mr Moore;
b. On 27 April 2017 the Applicant was given a letter dated 21 April 201723 by Mr
Archer.24 The letter confirms that the Applicant was stood down for removing a
Person in Control tag from the equipment, that an investigation would be carried
out and that he would have an opportunity to put his case. He was also told of his
right to have representation. I should mention that the Applicants counsel asked
me to draw an inference that the Applicant was not given the letter at all. I said at
the hearing I was not prepared to draw the inference in the circumstances. Those
circumstances are that the Applicant did not give evidence he had not received the
letter, either in his statement or in evidence at the hearing, and that it was not put
to Mr Archer that he had not given the Applicant the letter. The former aspect of
the matter is far more significant. In circumstances where a witness is called who
is able to give evidence on an issue such as this and does not do so no such
inference such as is sought here should be drawn;
22 Exhibit A1 Statement of Applicant paragraph 80
23 The latter is annexure to R3 Statement of Rebecca Wade RAW 4
24 Transcript PN 1126 - 1131
[2018] FWC 846
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c. On 1 May 2017 Mr Archer spoke to the Applicant about the meeting to be held on
2 May 2017.25 Whilst is was put to Mr Archer that he did not speak about the
forthcoming meeting I have no reason not to accept Mr Archers evidence. He had
received an email26 asking that, when he contacted the Applicant he should
confirm he meeting for the next day, offer the opportunity of a support person,
advise where the meeting was to be held, who would be at the meeting, advise the
reason for the meeting and the nature of the meeting. Mr Archer rang the
Applicant (it was not put to him that he had not) on 1 May 2017 as the email noted
he would. It makes sense that part (at least) of the reason for the call was to relate
the matters in the email to the Applicant.
[41] In light of the above I find the Applicant was informed of the reasons which led to the
termination. The factual matrix (removing the tags and starting the equipment) was not
complicated. There is no reason to suspect that what he was told and what was in the letter
was not sufficient to put the Applicant on notice about what was to be discussed and what the
employer was considering. However there was, in my view a failure to give the Applicant an
opportunity to make proper representations about sanction. I consider this further below.
Was the Applicant given an opportunity to respond – s 387 (c)
[42] This section relates to responding to issues regarding the capacity and conduct of the
Applicant. It is submitted that the Applicant was not provided with specific allegations. In my
view he was provided with sufficient information. As set out above the issue in question was
simple – why did he remove the tags and start the machine. He was well aware of the
allegation. He made much about not being aware he had removed the Person in Control tag as
well as the Live Testing Statement. However he had accepted that he should not have started
the equipment and that he had done the wrong thing27. I reiterate that his training was such
that he should have been aware that the Person in Control tag would accompany the Live
Testing Statement.
[43] In so far as what had occurred is concerned I find that there was a sufficient
opportunity to respond. While it may be (as the Applicant submitted) he did not have specific
policies or procedures before him, given that he accepted he knew what he had done was
wrong and given his evidence set out above28 he said all he could really say about what
happened.
[44] The Applicants counsel in closing on this issue said:29
MR GUNADASA: If Mr Brain had a proper opportunity to respond, perhaps in
writing, Mr Brain would have been able to identify that he did not individually remove
both tags. He would have had time to go through that isolation standard and identify
that he has not actually been trained in it, and those are only in response to the fact that
he wasn’t provided with that material towards the actual conduct on the day.
25 Transcript PN 1132 - 1141
26 Exhibit R3 attachment RAW 2
27 A1 Applicants statement at paragraph 89 (c)
28 Paragraph 21 above
29 Transcript PN 1909
[2018] FWC 846
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[45] Setting aside that the submission appears to be hypothetical, in my view it is clear that
his training included the fact that a Person in Control tag is used with a Live Testing
Statement30 and so he would not in fact have been able to add anything of significance
relating to his conduct as affected by training. He also knew that the practice is that the
maintenance crew hand back equipment after maintenance and he knew that had not occurred.
This is not a case of complicated facts about which there may be significant dispute. Indeed
the facts relating to what the Applicant did are not really in dispute.
Support person s 387 (d)
[46] The Applicant makes no submissions in respect to this matter.
Warning about unsatisfactory performance
[47] The Applicant submits that there are no relevant prior warnings. I agree.
[48] At its highest the Respondent says that the while the Applicant “had not been formally
warned with respect to work performance or breach of safety procedures, he had been
informally counselled previously regarding his behaviour and in relation (sic) incidents
regarding the safe operation of machinery”.31
[49] These matters occurred in 2003, some 14 years prior to these events. There were no
warnings. They related to conduct materially different to the present conduct under
consideration. In my opinion the previous counselling is irrelevant.
Size of Employer and impact on following procedures in effecting dismissal s 387 (f)
[50] In my view the size of the employer is such that it can be expected that it will follow
its procedures meticulously. The size of the employer should therefore weigh in favour of the
Applicant in that the Respondent should be able to carry out its workplace relations
obligations in a correct way. The Applicant points out procedural deficiencies including the
failure of the Respondent to apprehend that the Applicant was having problems understanding
some of the questions at the 2 May 2017 meeting. It transpires that the difficulty the
Applicant had was in respect to understanding questions related to mitigating circumstances.32
No other particular aspects of the questioning were identified as significant and in any event
Mr Reeves who attended with the Applicant at the meeting rephrased questions as
appropriate.
[51] For reasons I deal with below the issue of mitigation factors and the Respondents
failure to properly deal with the matter of sanction is significant.
Any other relevant matters s 387 (h)
[52] A very significant matter is that of the Applicant having an opportunity to make
submissions in relation to sanction.
30 Exhibit R3 attachment RAW 13
31 Respondents submissions paragraph 29
32 Exhibit A2 Statement of Marshall Reeves paragraph 16 (f) and A1 at paragraph (f) and (g).
[2018] FWC 846
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[53] It is first necessary to point out that the reference to mitigating circumstances at the 2
May meeting was not in relation to sanction but conduct. Under cross examination Ms Wade,
a Human Resources Officer of the Respondent who was responsible for running the 2 May
2017 meeting had the following exchange33:
Well, the question put to Mr Brain about mitigating circumstances?
I don’t know if I’d say he found the question difficult to answer. My interpretation was
he didn’t know what mitigating circumstances meant.
Okay. Now, providing a response to a mitigating circumstances question, is that an
important question in a disciplinary-type meeting?
It is, which is why when we interpreted Mr Brain to not understand what, “mitigating
circumstances”, meant, we then followed on with explaining to him that it meant the
reasons why this incident occurred and that they could be anything ranging from work
or personal - I think Adrian also gave an example of a mitigating circumstance for a
reason why, being time pressure, and we also confirmed with Mr Brain at the time as
to whether he then understood what mitigating circumstances or reasons why meant
and he did and I believe Mr Reeves also assisted him in understanding what that
meant.
After you explained that to him, did Mr Brain provide any mitigating circumstances?
I believe Mr Brain - if I go back to my notes - the mitigating circumstances that were
provided were around the equipment not being locked out or isolated and at the time
when we spoke around reasons why I think Mr Reeves mentioned that Mr Brain was
on medication, to which Mr Brain responded, “That has nothing to do with this.”
That’s all I can recall around mitigating circumstances.
Now, the mitigating circumstances question, that was only in relation to the incident,
is that right?
Into the incident and the actions that Mr Brain took.
Was there anything put to Mr Brain about any mitigating circumstances about why his
employment should not be terminated?
I’m not sure, exactly. I don’t recall.
Do your notes say anything about a question like that or an answer like that? Around
why he shouldn’t be terminated?
No.
[54] Later in an exchange I had with Ms Wade she said34:
33 Transcript PN 839 - 844
34 Transcript PN 944 - 954
[2018] FWC 846
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You didn’t send the applicant a show-cause letter in respect of section [this should be
sanction], did you?
We didn’t send a show-cause letter, no.
At all?
No.
At any stage?
No.
So the applicant didn’t get a chance to make a submission to you about the sanction it
was proposed to impose on him?
As we thought we were clear in the first meeting around the fact that we were
considering termination and - - -
Yes, but (indistinct) was considering that. You were considering it?
I agree, at that point we were considering termination.
You didn’t ask him about any mitigating factors in respect of sanction. You only asked
him about any mitigating factors in respect of the incident?
Correct.
So you would agree, would you that he never had a chance to make any submissions
about the particular sanction that was imposed upon him? Being termination of
employment?
I can’t recall in that meeting if we actually specifically asked him that.
Well - - -?
But I understand what you’re saying - it would have been the potential of it at that
point anyway.
But you didn’t at any time - that’s what I’m trying to get at?
Yes, okay.
Is that right?
No.
It isn’t right?
Sorry, yes - that is right.
[2018] FWC 846
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[55] What then occurred is that the Respondent considered the information they had from
the Applicant arising out of the 2 May 2017 meeting and proceeded to terminate the
Applicants employment. It is clear that the Applicant was never given a chance to put
anything in mitigation of sanction. In my view this is a significant flaw.
[56] The Respondent submitted that notwithstanding this failure the conduct was so serious
as to justify termination whatever the Applicant might have said.35 It is to be noted that Mr
Reeves took part in some discussions about sanction.36 However, I do not know what Mr
Reeves said about the Applicants current situation.
[57] I do not regard the Applicants conduct as so serious at to justify termination without
specifically hearing from the Applicant about sanction. I agree the conduct was serious.
However, I do not regard it as misconduct justifying termination of itself. The better
description of the matter is perhaps operational negligence.
[58] In BlueScope Steel Limited v Sirijovski37 the Full Bench was dealing with an employee
of some 35 years standing who had been in the same employment his entire working life. He
had been guilty of a serious breach which resulted in significant loss to the company. He had
also been given a first and final warning in relation to a safety breach within 6 months of the
subject incident. The Full Bench said this:
‘[68] In all the circumstances, we recognise that the Company had good and adequate
reasons to terminate the employment of the applicant. The incident on 21 May 2013
amounted to a serious performance failure on the part of the applicant which resulted
in significant loss to the Company. The incident was the subject of a full investigation
by the Company and no satisfactory explanation was provided for the applicant’s poor
performance. The incident occurred within six months of the applicant being given a
first and final warning by the Company in relation to a serious safety breach.
[69] However we also recognise that, having regard in particular to the applicant’s
long and satisfactory period of service and the impact of the dismissal upon him, the
dismissal might be considered to be harsh. The applicant had been employed by the
Company or its predecessors for 35 years with no prior warnings in relation to his
operational competency. He was 53 years old and had spent his entire working life at
the Steelworks. The impact of the termination on the applicant and his family has been
severe and there may be few prospects for him to find alternative employment in the
Wollongong area. It is also relevant that as a result of the dismissal the applicant
missed the opportunity to be selected for retrenchment and receive a redundancy
package from the Company. In this regard we note and adopt the Commissioner’s
finding that the dismissal was not motivated by any purpose on the part of the
Company to avoid redundancy obligations or payments. We also note that there is no
certainty that the applicant would have been retrenched and provided with a
redundancy package by the Company
.
35 Transcript PN 2057 – 2059; 2065 - 2076
36 A2 paragraph 18
37 [2014] FWCFB 2593
[2018] FWC 846
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[70] On balance, and having regard to all the relevant factors referred to in s.387, we
have come to the conclusion that the termination of the applicant’s employment was
harsh, unjust or unreasonable.’
[59] In the present case had the Applicant been given an opportunity he would have been
able to give further information in respect to, and emphasise that:
a. He had worked with the Respondent and its predecessors for 37 years;
b. He had no formal warnings for safety issues, and nothing of note in
performance save for the two incidents which occurred within a few weeks of
each other 14 years before;
c. He would in all likelihood find it impossible to obtain alternative work in
Hobart given his skill set;
d. He has significant financial obligations;
e. The issue of trust and confidence.
[60] I have decided that the termination of the employment was harsh. It was incumbent on
the Respondent to hear from the Applicant before imposing sanction. The conduct of itself is
not sufficiently serious to justify dismissal without more.
Remedy
[61] Re-instatement is the primary remedy. The Respondent submitted however that
reinstatement was inappropriate because it had lost trust and confidence in the Applicant. This
is on the basis that, as asserted by Ms Wade38:
The reasons around why we determined we had lost confidence in Mr Brain’s ability
to operate safely is because I guess in this instance his behaviour knowingly
endangered others. He allowed others to be put into potentially life-threatening
situation. He deliberately breached a critical safety procedure on site, a life-saving rule
and they’ve in place to protect lives. He didn’t acknowledge, I guess, the seriousness
of the position he had put the maintainers in. The mitigating circumstances that he
provided to us I don’t think explained the seriousness of his behaviour and his actions.
We have a duty of care to provide a safe workplace for others and because of those
reasons we had lost confidence in his ability to be able to operate safely.
[62] In my view the explanation rather overstates the situation. Firstly I do not accept that
the Applicant knowingly endangered others. In fact the effect of his evidence is that he did not
know where Mr Moore’s offsider was. He knew where Mr Moore was and he was not in
danger. Secondly there is insufficient acknowledgement of the very long service the Applicant
had provided to the Respondent. Thirdly there is no acknowledgment of the essentially very
good record while the Applicant had been working for the Respondent and its predecessors.
[63] I also note the evidence of Mr Mudge in this regard. He said:
Yes, okay. It’s to do with possibly a number of factors, trust and confidence?
38 Transcript PN 868
[2018] FWC 846
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Yes. Of course it is, yes.
What would those factors be?
It’s the way someone conducts themselves at work. You know, it’s the work ethic. It’s
the way they conduct themselves. It’s their behaviours. There are a myriad of things
that we look at.
How has Mr Brain conducted himself at the workplace?
Peter has been a solid worker. He turns up, does what’s required.
You said previously that he is a hard worker, so wouldn’t he have a good work ethic?
Yes, his work ethic is fine.
So based on that criteria, wouldn’t you have substantial trust and confidence in Mr
Brain?
Yes, in the role that he did.39
[64] I do not accept that the relationship between the Applicant and the respondent has
broken down to such an extent that reinstatement is not appropriate. In reality the Applicant
was a good worker. He has, over the course of 37 years committed one serious disciplinary
breach of policy and protocol. He was terminated because of the seriousness with which the
Respondent regarded the breach. The evidence of the deliberations in reaching a decision on
sanction is scant. It is set out in an email to the ultimate decision maker Mr Curtis dated 5
May 201740. The decision to terminate was on the basis that the Respondent did not think the
Applicant could work safely in any position within the business. But they never asked the
Applicant about that. I am asked to accept that the trust and confidence built up over a very
long time has been destroyed by one incident of a safety breach. I do not. No submissions
were made by the Respondent that, other than the trust and confidence issue, the Applicant
could not be reinstated.
[65] Because of the matters I have set out above I propose to order reinstatement.
39 Transcript PN 1672 - 1676
40 Exhibit R3 attachment RAW 10
[2018] FWC 846
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Compensation/Back pay
[66] I am required to consider the issue of lost pay while the Applicant has not been at
work. The Applicant submits that he should be paid for the whole of the time he was off
work. Notwithstanding the order for reinstatement the conduct of the Applicant is such that it
may be he should not have the benefit of an order to repay the full amount of lost pay. He was
guilty of a relatively serious breach of safety procedures. His conduct was intentional.
[67] However I wish to hear from the parties before deciding this issue.
DEPUTY PRESIDENT
Appearances:
Mr I Gunadasa for the Applicant
Ms S Zeitz for the Respondent
Hearing details:
Hobart
11 and 12
October
2017
Printed by authority of the Commonwealth Government Printer
PR600245
FAIR WORK COMMISSION A THE SEAL OF THE
