| [2019] FWC 1018 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rodney Pridham and Brenton Rose
v
Viterra Operations Pty Ltd T/A Viterra
(U2018/8043 and U2018/8044)
COMMISSIONER PLATT |
ADELAIDE, 15 FEBRUARY 2019 |
Application for an unfair dismissal remedy – Hearing conducted concurrently – various allegations of inappropriate conduct – evidence considered in light of workplace culture, supervisory obligations and relevant policy – held valid reason – dismissals not harsh, unjust or unreasonable – applications dismissed.
[1] On 2 August 2018, Mr Rodney Pridham and Mr Brenton Rose separately lodged applications pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by their former employer Viterra Operations Pty Ltd T/A Viterra (Viterra) which took effect on 23 July 2018.
[2] There was no dispute that Mr Pridham and Mr Rose were protected from unfair dismissal at the relevant time pursuant to s.382 of the Act.
[3] The matters were arbitrated concurrently between 22 – 26 October 2018. Ms Abbey (of Counsel) represented the Applicants and Mr Short represented Viterra. Permission was granted pursuant to s.596(2) of the Act.
[4] Mr Pridham is 52 years of age and lives in Hardwicke Bay. He commenced work with a predecessor of Viterra in 2008 as a casual employee, working his way up to the position of Bulk Loading Plant (BLP) Supervisor in April 2013, the position he held at the time of dismissal. His duties included overseeing BLP shipping, maintenance, repairs, cleaning, some Stevedoring duties, the rostering of staff, assisting in the loading and unloading of ships as required and occasionally acting as Stevedore. Mr Pridham was also the site’s Health and Safety Representative.1
[5] Mr Rose is 63 years of age and lives in Edithburgh and has worked on the Port Giles wharf since 1982. In 2010, he was employed as a casual Stevedore. In 2013, Mr Rose was employed in that role on a full-time basis under the supervision of Mr Pridham. Mr Rose held this role until he was dismissed. As Stevedore, Mr Rose was in charge of the ship-loading process, including liaising with the Captain of the vessel. Mr Rose undertook some of Mr Pridham’s supervisory duties during periods of leave.
[6] The employees of the Port Giles Viterra Bulk Loading Plant live locally and interact socially. The evidence establishes that they are quite familiar with each other and that swearing and “banter” was commonplace on the Port Giles wharf.
[7] Viterra is a significant employer in this community.
[8] Ms Glover had worked as a casual BLP operator at Port Giles for about five and a half years at the time of the dismissals. During that time Mr Pridham was promoted to Supervisor and Mr Rose was promoted to full-time Stevedore.
[9] As a result of an incident at the Port Giles wharf on 25 June 2018, Ms Glover made a complaint which was referred to Ms Alyson Gilbey (HR Manager – Operations). Ms Gilbey interviewed Ms Glover, who made a number of allegations against Mr Pridham and Mr Rose concerning their conduct. These allegations were then formally investigated.
[10] Ms Gilbey interviewed a number of persons and gave an account of the information provided in her statement and attached notes of these conversations to her statement. Some of those persons gave evidence in this matter. The approach taken by Ms Gilbey in the investigation was exploratory and the specific allegations were not initially provided to Mr Pridham and Mr Rose.
[11] Ms Gilbey met with Ms Glover on 26 June 2018.
[12] Ms Gilbey’s account of the allegations made by Ms Glover with respect to Mr Rose are summarised below:
• On 25 June 2018 Mr Rose screamed at Mr Mark Towers “If you don’t fuckin want to get on, you can go home” and shouted at Ms Glover “well you fucking didn’t know what the gangway looked like, you wouldn’t fuckin go onto it” at which time Ms Glover burst into tears and said “she had had enough” and “quit”.
• Ms Glover observed on various occasions Mr Rose yelling or swearing at Mr Steven Curnow or Mr Colin Hiscock or Mr Towers.
• There was an occasion where Mr Rose had complained to Ms Glover about the holidays she was taking, saying words to the effect of “what, more fucking holidays? Why don’t you just write in when you are fucking available. You are never fucking here.”
• On an occasion when Ms Glover was assisting Mr Rose to complete the timesheet records, Ms Glover alerted Mr Rose to an error that recorded Mr Travis Peter’s arrival time approximately two hours earlier than his actual arrival time.
• Mr Curnow had told Ms Glover that on one occasion during his shift, Mr Peter left the workplace for 1.75 hours to go home and make pizzas without objection from Mr Rose.
[13] Ms Gilbey’s account of the allegations made by Ms Glover with respect to Mr Pridham are summarised below:
• Mr Pridham yelled and swore at Ms Glover on an occasion when she asked why some of her shifts had been swapped so that Mr Michael Buckley could work them instead.
• On one occasion Mr Pridham made negative comments and swore in Ms Glover’s presence about work arrangements at Viterra’s Port Adelaide site where Ms Glover’s husband and son worked. Ms Glover believed these comments were unnecessarily critical and offensive.
• On various occasions Mr Pridham stated in Ms Glover’s presence “don’t you fucking women ever shut up” and “fucking women, all they do is whinge. They never shut up”.
• On one occasion, Mr Pridham advised contractors at the Port Giles wharf, in front of Ms Glover, that they could get earplugs if needed, which Ms Glover perceived as a criticism of her chatter.
• On one occasion Ms Glover walked into the amenities hut and saw that each of the BLP operators had a pair of earplugs in front of them and they were laughing, which Ms Glover perceived was directed at her. Ms Glover was embarrassed by this and considered that Mr Pridham should not have tolerated this behaviour.
• On one occasion Mr Pridham asked Ms Glover if she ought to be eating a piece of cake and stated “she might need to go sideways up the gangway”.
• When Ms Glover asked Mr Pridham about payment for a shift where others were not required to attend, Mr Pridham went ballistic and shouted at her “fucking hell, I have to come in when others get paid to stay at home”.
• Mr Pridham was aware that Mr Travis Peter regularly came to work late but did not hold him to account and said “well [Mr Peter] does have a business to run, so fucking leave [the situation alone]”.
• Mr Curnow had told Ms Glover that on one occasion Mr Peter left the shift for 1.75 hours to go home and make pizzas without objection from Mr Pridham.
• Mr Towers and Mr Curnow advised Ms Glover that they did not discuss safety concerns with Mr Pridham as they were “too scared” that Mr Pridham would “go off”.
[14] Ms Gilbey considered that the allegations against Mr Rose and Mr Pridham were inconsistent with the expectations of Viterra (in terms of the Viterra’s Discrimination, Bullying and Sexual Harassment Policy (the Policy) and condoning lateness in the case of Mr Peter) and determined to formalise the investigation. Mr Rose and Mr Pridham had participated in training in relation to the Policy in February 2014.
[15] Ms Gilbey interviewed Mr Hickman and Ms Boult about how timesheets were handled at the Port Giles BLP. Ms Boult advised that the employees were supposed to write their rostered sign-in time and initial each sheet. The Supervisor then adds the scheduled finish time. Ms Glover sought reconciliation for Mr Peter’s attendance at work. Mr Hickman and Ms Boult did not give evidence.
[16] The security gate at the Port Giles wharf is operated by Flinders Port who co-occupies the Port Giles wharf. The gate is the main vehicular entrance to the wharf. Whilst the driver will normally swipe through the gate, passengers do not always do so. Ms Gilbey obtained a copy of the security swipe gate records.
[17] Ms Gilbey interviewed Mr Curnow who observed that there was not a “level playing field” at Port Giles wharf and some workers were favoured.
[18] Mr Curnow made the following allegations with respect to Mr Rose:
• There was an occasion when Mr Rose had yelled at him for allegedly hitting a vessel hatch with a boom and damaging the boom. Mr Curnow denied the allegation and got into a heated argument with Mr Rose. Mr Curnow alleged that Mr Rose had overlooked a similar incident where Mr Peter had operated a boom.
[19] Mr Curnow made the following allegations with respect to Mr Pridham:
• Mr Curnow contended that Mr Pridham had asked him to work a 12 hour shift and then reduced it to 6 hours allocating the 12 hour shift to a friend of Mr Pridham’s.
• It was also alleged that Mr Pridham had wrongly accused him of calling someone a “fat cunt” when it was Mr Rose that had used that language.
• When Mr Curnow spoke to Mr Pridham about getting extra hours he was told he could go somewhere else.
[20] Ms Gilbey met with Mr Towers on 4 and 17 July 2018. Mr Towers had reported that:
• On 25 June 2018 there was an issue with the gangway positioning. Mr Rose was under stress. Mr Rose said to Ms Glover “If you don’t fucking like it, go home”.
• At 4:15am on 25 June 2018 Ms Glover rang him crying and said Mr Rose had had a go at her and she could not take it anymore. This was the first time Ms Glover had advised Mr Towers of Mr Rose “having a go” at her.
• Mr Towers advised that Ms Glover had complained to him about her treatment by Mr Rose and Mr Pridham.
• Mr Towers said there was lots of banter about Ms Glover being the only female on the BLP.
• Mr Towers had been told by someone else that it had been said that Ms Glover would be the last and only female on the BLP.
• Mr Towers had experienced the “banter” and gave as good as he got. Sometimes people got upset.
• Mr Towers could not recall any comments made about the need for earplugs, but reported that a lot of people say Ms Glover is loud.
• Timesheets were a tick and flick exercise.
• There were a number of BBQ’s at Coobowie and he had been to nearly all of them. He had heard reports of Ms Glover and Mr Doyle having words.
• Mr Towers reported that Mr Rose can be a bit gruff.
[21] Ms Gilbey interviewed Mr Peter on 4 and 17 July 2018. Mr Peter told Ms Gilbey that:
• There was an issue with the gangway on 25 June 2018, it was resolved by BLP operators wearing personal floatation devices.
• Mr Peter saw Mr Rose say something, and then Ms Glover “let loose” and threw the radio on table, and said words to effect of “sick of this shit. I quit.” Ms Glover was upset and had just returned from holidays.
• Mr Pridham treats all equally.
• Ms Glover speaks her mind and is a “pain in the arse” as she talks too much and “she says everything going on in her brain”.
• The timesheets come prepopulated with start/finish times and the operators do not enter the times themselves.
• Mr Rose had spoken to him about people complaining that he (Mr Peter) came late, and he advised he was not able to get to work by 8.00am.
[22] Mr Peter did not give evidence
[23] Ms Gilbey interviewed Mr Paul Doyle on 4 July 2018. Mr Doyle reported that:
• On 25 June 2018 the vessel needed to be fleeted (moved) on the wharf, which required the gangway to be moved. There was an issue with how the gangway was positioned. One of the Flinders Port leaders said it needed to be repositioned before use. Mr Doyle heard Mr Towers say he wasn’t getting on it. Mr Rose was doing paperwork and Ms Glover was yelling at him, telling him off, she then threw the radio on the table and stormed off. Mr Doyle could not hear the actual words used.
• Mr Doyle had been told that Ms Glover had done this before over the years.
• Mr Pridham is approachable and bends over backwards to assist.
• The timesheets were printed by Mr Pridham and were pre-populated and that the BLP operator signs next to their name and enters the start time of their shift but not the end of their shift.
[24] Ms Gilbey interviewed Mr Mumford on 4 and 24 July 2018. Mr Mumford reported:
• He started in September 2017.
• The employees were a close group who live in a small community and engage in light hearted banter.
• Ms Glover had told him that he wasn’t supposed to walk around a hatch, even though he felt capable/comfortable doing so.
• Mr Rose advised Mr Mumford to tell him if he did not feel safe.
• Mr Doyle and Ms Glover do not work together well. Mr Doyle acts like he is higher, Ms Glover snaps back, and there is lot of head butting.
• Ms Glover is a nice lady and does not lie but can be stubborn and blunt.
• He thought safety on the BLP was pretty good.
• He did not recall any comments being made at a BBQ in Coobowie about Ms Glover being the last women on the BLP.
• There are light hearted comments made about Ms Glover and she gives it back. Ms Glover was adamant that she gets the rough end but he did not see it that way.
• Mr Rose and Mr Pridham were quite approachable, they do their best to keep it fair and accommodate people.
[25] Mr Mumford did not give evidence
[26] Mr Rose and Mr Pridham were given stand down letters on 2 July 2018 which advised them about the investigation and that they would be suspended on pay whilst the investigation took place and that they would have an opportunity to respond and have a support person present.2
[27] As a result of the information obtained in Ms Gilbey’s continued investigations, the safety concerns around the gangway incident which occurred on 25 June 2018 were alleviated. Her investigation focussed on the conduct of Mr Rose and Mr Pridham that was inconsistent with Viterra’s Discrimination, Bullying and Sexual Harassment Policy3 (‘the Policy’).
[28] On 5 July 2018 Ms Gilbey interviewed Mr Rose in the presence of Mr Duignan from the Union and the following was discussed:
• Ms Gilbey asked Mr Rose a number of questions about the incident on 25 June 2018. Mr Rose advised there was an issue with the gangway, it was too steep and the Captain directed it be repositioned. Someone said it was not safe. Mr Rose said “if it’s not safe, might as well go home”. Mr Rose went to the room at which time Ms Glover “went off” at him saying, “I didn’t say that it was fucking Mark Towers”. Mr Rose states he did not do anything to provoke her. Mr Rose denied swearing at Mr Towers on the night of the incident.
• Mr Rose denied making any comment to Ms Glover to the effect that she would be the last woman working on the BLP.
• Mr Rose denied threatening Mr Curnow’s job as a result of the alleged damage to the vessel from hitting the hatch with the boom.
• Mr Rose said that Mr Doyle and Ms Glover are renowned for calling each other names but they did not have any arguments.
• Mr Rose said he would write the start time and the end time on the timesheets for the BLP operators, who would then sign it at the start of their shift.
• Mr Rose accepted that as Stevedore, in Mr Pridham’s absence, he was responsible for dealing with issues where someone had “done the wrong thing”.
• Mr Rose conceded that he may have made mistakes on the timesheets (which appeared to relate to the hot seat changeover issue which was not pursued).
[29] On 16 July 2018 Ms Gilbey interviewed Mr Rose again (in the presence of Mr Duignan). The interview notes were submitted4. There was much debate between Ms Gilbey and Mr Duignan about the fairness of the approach to the investigation during the meeting and the failure to provide detailed allegations. The interview with Mr Rose was exploratory with little put to him in the form of detailed allegations.
[30] According to the notes of the meeting, Mr Rose advised:
• He “did not say boo” to Ms Glover when she came into the hut during the 25 June 2018 incident.
• He could not remember stating that Ms Glover would be the last female BLP operator at Port Giles, or hearing anyone else saying that.
• He recalled an incident where earplugs had been placed on a table in Ms Glover’s presence and that the incident had been a joke and Ms Glover had laughed. Mr Rose went along with it. Mr Rose later stated that whilst he said it was him in relation to the earplugs, this was due to the pressure, Mr Rose later said that Mr Pridham made a comment about the earplugs as Ms Glover talks too much, that it was a joke and she laughed at it.
• Mr Rose agreed that he spoke (raising his voice and swearing) at Mr Curnow about hitting the hatch of the vessel with the boom but denied threatening his job.
• At various times during the interview he denied swearing at persons, however he accepted that at times he swore at work.
• On 12 June 2018 he was aware that Mr Peter attended work at 10:44am and not at 8:00am and had intended to correct the timesheet, but forgot about it.
[31] On 17 July 2018 Mr Rose was issued with a letter formally advising him of the allegations he was to respond to the following day.5 Those allegations were:
1. On the morning of Monday 25 June 2018 you spoke harshly, including excessive swearing directed at specific employees about the safety of the gangway. Further inappropriate comments were directed to Wendy Glover in regards to the safety of the ship’s gangway.
2. Over an extended period of time (at least 12 months) you have made derogatory comments to Wendy Glover in regards to her being the last female to be working at the BLP at Port Giles. This includes stating that she will hold the record. You have witnessed further derogatory comments being made to her (for example in relation to earplugs being placed on the table to block her talking) and you have indirectly encouraged these comments.
3. You have made direct comments to Steven Curnow in relation to him having three strikes for his work performance, and that he would be losing his casual position. You also told Steven that no other employee wishes to work with him.
4. You have, over an extended period of time (at least the last 12 months), acted in an abusive manner, with an inappropriate tone and swearing directly towards several PPT and casual employees. You have had discussion with your Supervisor, Rod Pridham, in regards to your behaviour, however this behaviour has continued.
5. You have knowingly falsified timesheets for some employees. This includes on 12 June 2018 when Travis Peter arrived on site to commence his shift at 10:44am. You recorded an 8:00am start for him. This error was brought to your attention by another employee, you chose to ignore this.
6. You have authorised timesheets when employees have not completed the time reported on the timesheets.
7. Throughout the investigation you have been inconsistent with your responses to some questions.
[32] On 18 July 2018 Mr Rose attended a further meeting conducted by Ms Gilbey with Mr Duignan as his support person. The notes of the meeting were not taken verbatim but in a shorthand form. A review of the notes6 indicates that there was some debate about the role of Mr Duignan as a support person or a representative. Mr Duignan was seeking to determine if the investigation had concluded. Ms Gilbey advised that the matter continued to be investigated, and Mr Duignan repeatedly contended that the process was unfair as the allegation letter had used the term final allegations. Mr Duignan sought further detail as to the allegations in a number of the matters identified in the final allegations letter. Ms Gilbey advised she was not able to provide the additional detail.
[33] Ms Gilbey contended that excessive swearing means more than the occasional “F-bomb”. Mr Rose responded that he “did not swear, never swore”.
[34] Mr Rose said he did not talk to Ms Glover before she quit and that Ms Glover was agitated and he did not want to argue with her.
[35] Mr Rose denied making any comment about Ms Glover being the last female to work on the BLP.
[36] Mr Rose recalled the incident where earplugs were on the table and contractors were present a couple of years prior and heard Mr Pridham say that Ms Glover talks too much.
[37] Mr Rose recalled that he spoke to Mr Curnow over the hatch incident, and said both he and Mr Curnow were swearing but did not threaten his employment.
[38] Mr Rose accepted that he had incorrectly filled out Mr Peter’s timesheet indicating that he arrived at 8:00am instead of 10:44am on 12 June 2018, Mr Rose had intended to alter the timesheet that day but got busy and forgot.
[39] Ms Gilbey considered that Mr Rose’s responses were inconsistent and evasive over the course of the meetings conducted on 5, 16 and 18 July 2018, and further that Mr Rose did not answer the questions honestly in light of the frequent breaks he took with his support person.
[40] Viterra’s Management Team conferred regarding the disciplinary outcome for Mr Rose. Ms Gilbey and Mr Norman formed the view that they believed Ms Glover’s account over that of Mr Rose (and Mr Pridham). They believed that Mr Rose did not acknowledge that his behaviour was inappropriate, did not accept responsibility for the correct payment of BLP workers and that this was a breach of trust and confidence. Mr Rose was not remorseful for the conduct towards Ms Glover, and they did not have confidence as to his future capacity to meet the requirements of the role.
[41] On 23 July 2018 Mr Rose attended a meeting with Ms Gilbey. Mr Hickman accompanied Mr Rose as his support person. Mr Rose was issued a letter advising that he would be dismissed on the grounds of serious and wilful misconduct without notice.
[42] A number of the allegations that were contained in the evidence in the Hearing were not put to Mr Rose during the interview process:
• Mr Rose complained to Ms Glover about the amount of annual leave she was taking stating, “what, more fucking holidays? Why don’t you just write in when you are fucking available? You are never fucking here”.
• Negative comments made about Viterra’s Port Adelaide employees.
• Criticising Mr Hiscock about his ship loading skills.
• A conversation where Mr Rose allegedly said Mr Curnow had not been taking his medication.
• A conversation about contibutions towards a present for Mr Pridham’s 50th birthday.
• A statement to Mr Curnow that “I’m the fucking Stevedore”.
• Poor behaviour towards Mr Doyle.
• Behaviour concerning loading productivity.
• Allegation regarding Mr Mumford leaving early.
[43] On 5 July 2018 Ms Gilbey interviewed Mr Pridham in the presence of Mr Duignan. Notes were taken of the interview.7
[44] During the interview Mr Pridham was asked the following:
• What he knew of the gangway incident that occurred on the night prior to his return from leave, the applicable safety procedures, and his response to the incident. Mr Pridham advised that Mr Rose told him of an argument involving Ms Glover, that she quit and left the site. Mr Pridham advised what he understood had occurred in relation to the positioning of the gangway and that the JSEA was amended to require the use of life vests.
• Had he received complaints about inappropriate behaviour exhibited by Mr Rose - Mr Pridham denied receiving complaints, but reported it was a boisterous environment.
• If he was aware the Mr Rose had threatened Mr Curnow’s employment - Mr Pridham then advised that Mr Rose and Mr Curnow had had an argument in relation to the boom hitting a vessel’s hatch. Mr Pridham recalled a dispute between Mr Rose and Curnow regarding the boom hitting a hatch and he had a discussion with both. The matter was resolved after a discussion. Mr Pridham did not have a concern about the way Mr Rose had spoken. Mr Pridham understood that Mr Rose spoke to Mr Curnow about being too close [to the hatch] and not about “3 strikes”.
• What he knew of Ms Glover’s interaction with Mr Rose on 25 June 2018 and if it was unusual - Mr Pridham stated Ms Glover presented the most issues and that she said that she was doing all of the cleaning work, that she didn’t like Mr Doyle and spoke of him in derogatory terms (e.g. fat lazy bastard).
• Whether he had made or witnessed comments made about women and the need to wear earplugs around them - The notes recorded Mr Pridham’s response as “yeah – boisterous”. Mr Pridham was asked to have a think about the question and appears to have sought further information about the allegation. Ms Gilbey then said “throwing earplugs on the table saying “working with Wendy Glover’” in front of anyone else”. The notes record Mr Pridham’s response as “not specifically”.
• Mr Pridham did not recall Mr Rose stating that Ms Glover would be the last woman to work on the BLP at a BBQ in Coobowie.
• Mr Pridham responded to questions about timesheets and shift handovers (the majority of the allegations concerning this were withdrawn during the Hearing) and stated that no one leaves until their opposite arrives and no-one was ever late for the hot seat change over.
• Mr Pridham denied favouritism in the recruitment processes.
[45] On 16 July 2018 Ms Gilbey again interviewed Mr Pridham in the presence of Mr Duignan. Notes were taken of the interview.8
• Mr Pridham was again asked about the placing of earplugs on the table in the presence of Ms Glover, Mr Pridham initially stated he could not be specific, but then advised he was certainly involved, then he did not know if he could recall the matter, then stated that that jokes were directed to all and it was part of a general laugh or banter and what was said was not directed at Ms Glover. A short time later when the topics was addressed for a second time Mr Pridham admitted that he made a comment to the effect that someone might need these if working with Ms Glover and no one else said anything.
• Mr Pridham did not recall hearing derogatory comments being made about Ms Glover including being the last female to work at the BLP at Port Giles.
• Mr Pridham said that Ms Glover had made comments about his weight, that here was ‘banter’ between team members and any issues about the ‘banter’ should have been escalated.
• Mr Pridham had not received any complaints about Mr Rose’s conduct, including raising his voice and swearing, and defended Mr Rose’s performance in his role.
• Mr Pridham could not recall making any comments about Ms Glover talking too much, but inferred that it may have occurred as banter.
[46] On 17 July 2018 Mr Pridham was issued with a letter formally advising him of the allegations he was to respond to the following day.9 Those allegations are summarised as follows:
• Over an extended period of time you have made or heard others in your team make derogatory comments to Ms Glover in relation to being the last female to work on the BLP, and stating that she will hold the record, and conduct in relation to earplugs being placed on a table and that he had indirectly encouraged those comments.
• There have been several incidents over the last 12 months where Mr Rose acted inappropriately towards team members and you have not appropriately addressed this with him. This included a threat to Mr Curnow’s employment.
• Discrepancies in timesheets that he had authorised as BLP Supervisor.
[47] On 18 July 2018 Ms Gilbey, Ms Farr and Mr Abell met with Mr Pridham and Mr Duignan. Mr Pridham provided his responses to the allegation which Ms Gilbey summarised as a denial that he had engaged in bullying or discriminatory behaviour.
[48] Viterra’s Management Team conferred regarding the disciplinary outcome for Mr Pridham. Ms Gilbey and Mr Norman formed the view that they believed Ms Glover’s account over that of Mr Pridham (and Mr Rose). They believed that Mr Pridham did not acknowledge that his behaviour was inappropriate, did not accept responsibility for the correct payment of BLP workers and that this was a breach of trust and confidence. Mr Pridham was not remorseful for the conduct towards Ms Glover, and they did not have confidence as to his future capacity to meet the requirements of the role.
[49] At 9:30am on Monday 23 July 2018, Mr Pridham attended a meeting with Ms Gilbey and Mr Jack Tansley (Operations Manager Central Region). Mr Pridham was handed a letter of termination by Mr Tansley. Mr Pridham was advised that he was dismissed on the basis that he:
• Breached the Company Discrimination, Bullying and Sexual Harassment Policy;
• Authorised and submitted fraudulent timesheets; and
• That he was untruthful in responding to the allegations.
[50] In addition, the following allegations were obtained during the Hearing when oral evidence was received. These allegations were not put to Mr Pridham during the interview process:
• Mr Pridham yelled and swore at Ms Glover when she asked why some of her shifts had been given to Mr Buckley.
• Mr Pridham made negative comments and swore in Ms Glover’s presence about work arrangements at the Viterra Port Adelaide site.
• On one occasion, when Ms Glover was eating a cake, Mr Pridham said she “might need to walk sideways up the gangway”.
• On an occasion when Ms Glover questioned payment about a shift, where others had received a “walk up payment”, whilst Ms Glover was required to perform cleaning duties, Mr Pridham stated “fucking hell, I have to come in when others get paid to stay at home” reducing Ms Glover to tears.
• On one occasion Mr Pridham allowed Mr Towers to go home for one and three quarter hours during a shift to make pizzas.
[51] Witness statements and/or evidence was received from:
• Leslie Anderson (BLP Supervisor)10;
• Brenton Rose (BLP Stevedore)11;
• Rodney Pridham (BLP Supervisor)12;
• Michael Sigston13 who is employed by Flinders Port at Port Giles who was not required to be cross-examined and is incorrectly referred to in the transcript as Mr Sexton;
• Paul Doyle (BLP Operator)14;
• Campbell Duignan (MUA Organiser)15;
• Steven Curnow (Casual BLP Operator)16;
• Mark Towers (Part Time BLP Operator)17;
• Anthony (Tony) Glover (Part Time BLP Operator at Port Adelaide and spouse of Ms Glover)18;
• Wendy Glover (Casual BLP Operator and spouse of Anthony Glover)19;
• Alyson Gilbey (Senior HR Business Partner) 20; and
• Ben Norman (Director – Human Resources)21.
[52] There was a great volume of evidence in this matter, a large number of witnesses, inconsistencies both in individual evidence and competing accounts, hearsay evidence and a wealth of documentary evidence. The impact of this matter on the persons involved is significant and these factors have contributed to a lengthy consideration process post-Hearing. I apologise to the parties for the delay in publishing this decision.
[53] I have reviewed all the statements, supplementary statements, exhibits, submissions and the transcript. I have not repeated the entirety of the evidence of each witness. I have had regard to the written and oral submissions.
[54] Mr Anderson’s evidence and Mr Pridham’s photographs of the Port Giles wharf and video of the loading process provided useful context.
[55] The working relationships between employees at the Port Giles workplace have been impacted by private and work interactions. As would be expected, some employees got along very well, others interacted on a purely professional basis and some expressed dislike or distrust of each other. I note that the persons who reported inappropriate conduct did not appear to have considered the allegations (except for Ms Glover’s report of the incident in June 2018) so serious as to warrant a contemporaneous complaint, and that the concerns only became visible to Viterra after June 2018. Some of the allegations relate to events that occurred up to five years ago, this has no doubt had an impact on the capacity of the witnesses to accurately recall or respond to questions about the events. This might explain inconsistencies in the evidence, for example why Ms Glover gave evidence that Mr Paul Doyle was constantly “put down” by Mr Pridham; a claim Mr Doyle denied in his evidence.22 As a result of all of these factors I have treated the evidence of the witnesses with caution and sought corroboration where possible.
[56] In my introductory paragraphs I identified that swearing is common place at this workplace. It appears that all of the team members participated to some extent. That is not to condone such behaviour. The workplace culture is relevant when evaluating the exchanges which form the basis of allegations of inappropriate conduct against the Policy requirements.
[57] Some of the allegations arose from hearsay evidence. Unless corroborated by direct evidence, I have not relied upon hearsay evidence in reaching my findings of fact.
[58] Some of the allegations made against Mr Rose and Mr Pridham were imprecise; e.g. excessive swearing, making unspecified derogatory comments, acting in an (unspecified) abusive manner. The absence of any detail as to the alleged improper conduct and clear evidence establishing same, will not support the finding of a sound, defensible or well-founded reason for dismissal.
[59] The information received during the investigation was summarised in Ms Gilbey’s witness statement.23 Some of the summaries contained in Ms Gilbey’s statement appear to differ from the contemporaneous notes of the conversation. When determining what was said in response to questions (which is particularly important to the allegation that Mr Pridham and Mr Rose were not truthful during the investigation process) I have preferred the contents of the notes and the relevant witness evidence, rather than Ms Gilbey’s summaries. I have also exercised a degree of caution when interpreting the notes in light of the fact they are not verbatim but in a shorthand form which may result in a misunderstanding of questions and/or responses.
[60] The investigation included the review of access records and timesheets concerning the start and finishing times. During the Hearing, Viterra advised that no misconduct was alleged in relation to the commencement and finishing times (and recording of same) for “hot seat changeovers” where the discrepancy was a matter of minutes.24 The access records and timesheets are however relevant to a complaint of favouritism towards Mr Travis Peter which is based on Mr Pridham and Mr Rose condoning his continued lateness and not making any deductions in respect of the occasions upon which he was significantly late.
[61] Both Mr Pridham and Mr Rose were dismissed as a result of serious and wilful misconduct. Accordingly, I have applied the Briginshaw v Briginshaw25 standard when assessing the evidence.
[62] I have reviewed the evidence for the conduct relied upon to support the existence of a valid reason for dismissal. Some of these incidents involve Mr Pridham and Mr Rose jointly, and others only apply to one of the Applicants. After discussing the evidence I have made findings about the conduct which occurred. For the sake of simplicity I have grouped related allegations together.
[63] It was alleged that on 25 June 2018 Mr Rose spoke harshly (including the use of swear words) at Mr Towers about the use of the gangway and directed inappropriate comments to Ms Glover.
[64] Mr Rose was rostered to work night shift on 24/25 June 2018 with Ms Glover, Mr Glover (who was part of the Flinders Port tie up gang), Mr Peter (who was not called to give evidence), Mr Towers, Mr Doyle and Mr Sigston. Mr Pridham returned to work from leave at about 5:00am on 25 June 2018 as he was aware there had been some plant breakdowns.
[65] During the shift, the employees were loading a Panamax ship with grain. The Panamax ship was required to be fleeted (moved) by the tie up gang during this process. As a result the gangway needed to be moved. This delayed the filling.
[66] There was an issue about the appropriate placement of the gangway. The Captain of the vessel became involved. All of the persons present gave evidence about the issues with respect to the placement of the gangway. Ms Glover and Mr Curnow heard Mr Towers say words to the effect that he wasn’t going to use the gangway because it was unsafe in Mr Rose’s presence. Ms Glover states that Mr Rose then said words to the effect of “You fucking get on it, you fucking haven’t seen it. If you don’t want to get on it, you can fucking go home.” Mr Towers accepts he said words to the effect of “he wasn’t getting on it, it’s not safe” and then contends that Mr Rose said to him words to the effect “that if you don’t like it go home” (no swearing mentioned). The evidence on this interaction is relatively consistent except for the use of swear words
[67] Sometime later Mr Doyle entered the lunchroom and saw Ms Glover yelling and swearing at Mr Rose. Ms Glover contends that when Mr Rose entered the amenities hut she said “What was that all about”, Mr Rose said “About you” and then yelled at her “well you said you wouldn’t fucking get on the gangway and you hadn’t even fucking seen it”. Ms Glover said “I didn’t even know which gangway we were going to use, fucking didn’t say a thing, I never fucking said anything Brenton.” Mr Rose yelled “Fucking didn’t say a thing, I’ve got four witnesses” three times over. Ms Glover thought that Mr Rose was blaming her for not getting on the gangway, Ms Glover said “I never said anything! It was Mark, he said it as a joke.” Ms Glover said this was the first time Mr Rose had directed his swearing at her before, and that she got the radio threw it on the table and quit. 26
[68] Mr Towers got a phone call afterwards from Ms Glover, he described her state as hysterical. Mr Glover also got a call from Ms Glover who was in tears and beside herself.
[69] It appears the Mr Tower’s refusal to go up the gangway was meant as joke. It appears Mr Rose did not take the joke very well. I accept that Mr Rose said to Mr Towers words to the effect of “if you can’t get on the gangway you might as well go home”, and considering the workplace environment, I suspect some expletives were added. Whilst it may well appear that Mr Rose overreacted, I accept he was the subject of a joke and thus provoked.
[70] Mr Rose denies swearing at Ms Glover in the amenities hut. The only first-hand direct evidence appears to that of Ms Glover, Mr Curnow and Mr Rose.
[71] A short time later Mr Pridham entered the room and asked what happened with Ms Glover and said “did [Mr Rose] swear at her or do anything to upset her”. Mr Rose said “no”.
[72] I am not persuaded that the interaction in the amenities hut was as described by Ms Glover; it is contradicted by Mr Rose and Mr Curnow. I accept that there was some interaction between Mr Rose and Ms Glover and Ms Glover walked off the job. I am not satisfied that Mr Rose acted inappropriately in the amenities hut.
[73] I do not take issue with Mr Pridham’s conduct in respect of this incident.
[74] Most witnesses (including Ms Glover) gave evidence that conversational swearing on the Port Giles wharf was the norm, that it was accepted, and that it formed part of the banter used amongst the team that worked and lived in a small community. The wharf appears to be a robust environment.
[75] There was general agreement amongst the witnesses of a line between “banter” and bullying or harassment. 27 It appears that the witnesses (and the Viterra Policy) drew that line at conduct that was either directed at an individual or made at their expense. I accept that characterisation.
[76] A large number of the allegations about swearing were vague in terms of description and timing. Many of these interactions appear to fall within the realm of robust “banter”. There appears to have been little specific monitoring of the workplace environment culture by Viterra, and prior to the incident on 25 June 2018, Viterra appears to have been taking a minimalist approach to workplace culture with no positive action other than rolling out the Policy. Viterra must accept some responsibility for the culture at the Port Giles wharf.
[77] It appears that some of the alleged comments ran very close to the line, for example “when was the last time you saw your old fella” or “if you keep on eating cake you will have to walk sideways up the gangway” or “what, more fucking holidays? Why don’t you just write in when you are available”. If these comments were made (and there is dispute about that), I accept that at the Port Giles wharf these comments would have been regarded as banter and not have fallen foul of the Policy.
[78] I will now look at the allegations concerning conduct which was clearly directed at a person or made at their expense.
[79] Ms Glover alleged that there were two occasions when earplugs were discussed about 18 to 24 months prior to the dismissal. Mr Pridham was conducting introductions with some Flinders Port employees who worked on the site, and when introducing Ms Glover said, “and this is Wendy and if you want, the earplugs are just around the corner”.
[80] It appears that Ms Glover alleges there was a separate occasion when Ms Glover walked into the amenities hut, she found there were earplugs in front of everyone else sitting at the table. Everyone looked at her and then laughed. Mr Pridham and Mr Rose were present, but did not say or do anything.
[81] Ms Glover alleged that during the investigation Mr Rose said he placed earplugs on a table to embarrass her. During the investigation Mr Rose told Ms Gilbey he put earplugs on the table. In examination in chief, Mr Rose agreed that he had made that statement but that it was not correct and that he was confused by Ms Gilbey’s questions during the investigation and/or had told Ms Gilbey that he put the earplugs on the table as he “just wanted to get out of there and stop all the questions”. Mr Rose states he later corrected this statement.28
[82] During cross-examination, Mr Rose recalled that he came in one morning and saw that earplugs were on the table, that Mr Pridham had put them there and that it was intended to make fun of Ms Glover in front of some contractors and other employees. Mr Rose said Ms Glover laughed at the time. Mr Rose thought it was funny because Ms Glover never stopped talking. The earplugs were not out in front of anyone else.29 Mr Rose and other employees used to joke about the fact Ms Glover used to talk a lot (presumably behind her back).30 Mr Rose accepted that as a senior employee he should not behave in a manner that causes people to be upset.31
[83] Mr Rose took no action in respect of this incident, his silence effectively condoning it. It appears that when first spoken to about the incident by Ms Gilbey, Mr Rose was not forthcoming about Mr Pridham’s involvement.
[84] Mr Pridham admitted his involvement in incident where earplugs were on a table, in the presence of Ms Glover and others. Mr Pridham advised that he said words to the effect of “you might need these if you are working with Wendy Glover”. Mr Pridham states he did not intend the comment to be derogatory. I do not accept this conversation was a joke or banter. It is clearly conduct that would belittle or embarrass Ms Glover. Having observed Mr Pridham give his evidence, I do not accept that he would not have been alive to that. As a Supervisor Mr Pridham’s obligation was to lead by example and he should have known better than to be belittle or embarrass a team member. The fact that Ms Glover may have laughed does not mean that she took it as a joke.
[85] Mr Pridham and Mr Rose participated in training on the Viterra Policy in 2014. The assessment included a questionnaire concerning inappropriate conduct. Mr Pridham and Mr Rose’s responses indicate that they were aware of the Policy’s intent and the obligations of supervisors, participants and observers of inappropriate conduct.
[86] Mr Pridham (as the instigator and Supervisor) acted in a grossly inappropriate manner as did Mr Rose (in condoning the conduct). Their conduct was inconsistent with their supervisory responsibilities and the Policy.
[87] It was alleged by Ms Glover that Mr Rose would say “fucking women don’t they ever shut up”. Mr Rose denied the allegation or saying anything like it.
[88] Having had the benefit of observing Ms Glover give her evidence, it appears to me that Ms Glover would at times talk at length on topics (or issues) she was passionate about, to the point of repetition.
[89] When I consider Mr Rose’s evidence that he used to joke about the fact that Ms Glover used to talk a lot, and his conduct in the earplug incident (which related to Ms Glover talking a lot) I believe that Mr Rose did utter these words. I suspect that Mr Rose thought of it as banter, but these words cross the line and the Viterra Policy.
[90] During the investigation Ms Gilbey also advised Mr Pridham that it was alleged that he had said to Ms Glover words to the effect, “Don’t you women ever fucking shut up.” Mr Pridham denied that he ever said this to Ms Glover.
[91] When I take into account Mr Pridham’s admission in relation to earplug incident, I believe that Mr Pridham said the words alleged by Ms Glover. This was inappropriate conduct for a Supervisor and that a breach of the Policy.
[92] The Port Giles BLP team participated in regular BBQ’s at Coobowie.
[93] It was alleged by Ms Glover during the meeting with Ms Gilbey on 26 June 2018, that in February 2018 at a BBQ attended by Mr Duignan, Mr Rose, Mr Peter, Mr Doyle and Mr Pridham, Mr Rose said to words the effect that Ms Glover would be the last woman working on the Port Giles BLP.
[94] Mr Rose says he did not attend that BBQ, and denied ever making a comment, or hearing anyone else make such a comment about Ms Glover “holding the record” or “being the last fucking woman that Rodney employs down there”.32
[95] None of the other persons present gave evidence that they heard the statement (or similar) being made.
[96] On the evidence I am not persuaded that this statement was made by Mr Rose.
[97] BLP operators fill vessel with grain through a hatch using a filling device which is attached to a boom. The operators move the boom to ensure an appropriate distribution of the grain on the vessel. Near the end of the filling process the hatches are “topped out”.
[98] Ms Glover was concerned that Mr Rose and Mr Pridham were pushing employees too hard when seeking to fill each hatch to capacity, and that Mr Rose spoke inappropriately to Mr Hiscock over loading practices. Ms Hiscock did not give evidence.
[99] Mr Pridham and Mr Rose were seeking to improve productivity. Ms Glover appears to have been was resistant to the change.33 Ms Glover objected to changes in operating practices imposed by Mr Rose and/or Mr Pridham.34
[100] It does not appear to me that the process adopted in seeking to achieve the increased efficiencies compromised safety or exceeded the capacity of the loading equipment. Mr Pridham and Mr Rose’s conduct in this regard appears to be appropriate
[101] There is no dispute that there was a level of animosity between Mr Rose and Mr Curnow. Mr Rose gave evidence that he did not like Mr Curnow as he was hard to get on with and he did not trust him and he was argumentative. 35 Mr Curnow said he had never got along with Mr Rose and could not explain why.
[102] No complaint was ever made by Mr Curnow in respect to Mr Rose’s supervision, nor does it appear that Mr Rose had formally disciplined Mr Curnow.
[103] On one occasion around 2018, Mr Curnow was alleged to have hit the hatch with the boom during the loading process. Depending on the severity of the hit, there is a potential to damage the boom or the vessel’s hatch. There was a robust discussion between Mr Rose and Mr Curnow about the incident. Taking into account the relationship between Mr Curnow and Mr Rose and the workplace culture, the discussion reported by Mr Curnow does not seem out of place.
[104] Mr Curnow also contends that Mr Rose threatened his future employment. Mr Rose recalled the incident and his concern about Mr Curnow damaging the hatch, but denied threatening Mr Curnow’s employment.
[105] I accept the evidence of Mr Curnow in respect of the conversation that took place and that Mr Rose vented his displeasure. I accept that Mr Rose may have made a comment about Mr Curnow’s future casual engagements, but I am not convinced that Mr Rose directly threatened Mr Curnow with dismissal.
[106] After the incident, Mr Curnow raised the issue with Mr Pridham and it appears it was resolved on the basis that both Mr Rose and Mr Curnow would not pursue the matter and attempt to improve their working relationship.
[107] It appears to me that this interaction was just part the robust environment on the Port Giles wharf and does not represent a breach of the Policy.
[108] Mr Rose and Mr Pridham were responsible for (albeit at different levels) the direction and supervision of the team. Allowing favouritism is inconsistent with a positive team dynamic.
[109] The allegations of favouritism include allocating shifts from Ms Glover to Mr Buckley, requiring Ms Glover to work when other shifts were cancelled, and allowing Mr Peter to regularly attend work late and to leave the site for extended periods during the day.
[110] Ms Glover alleged that Mr Pridham favoured other employees in the rostering process. Mr Glover gave an example that in 2013 Mr Pridham rostered her to work a night shift and instead of rostering her for two nights in a row, he rostered Mr Buckley to work instead. Ms Glover complained to Mr Pridham about the rostering, and Ms Glover alleged she was rebuffed. Ms Glover later found out that Mr Buckley was on a pension and the occasions where he was rostered were the only occasions that he could work. Ms Glover had the view that Mr Buckley was receiving preferential treatment. Ms Glover suggested similar events had occurred with other persons.
[111] I accept that Mr Glover did not work consecutive shifts on two occasions as a result of Mr Buckley being rostered. However Ms Glover was a casual employee and there was a plausible reason given for the roster change at the time. It appears that after Ms Glover raised the issue with Mr Pridham in 2013, the issue did not reoccur. I do not accept that the evidence supports the characterisation of this event that Mr Pridham displayed favouritism towards Mr Buckley (or against Ms Glover) when determining the roster.
[112] Ms Glover also suggested that Mr Pridham recruited employees from persons he had a personal relationship with. There is insufficient evidence to support this allegation.
[113] In mid-2016 Ms Glover was allocated a loading shift by Mr Rose, which was subsequently cancelled. Despite the cancellation Ms Glover and another were required to attend for work and perform cleaning duties - other employees who did not attend work got a cancelled shift payment. Ms Glover approached Mr Rose about why she had to work when others received a cancelled shift payment. Ms Glover contends that Mr Rose said “well I’ve had to fucking work when everyone’s been at home”.
[114] Ms Glover also alleged she discussed this incident with Mr Pridham. Ms Glover states that Mr Pridham shouted “for fuck’s sake. You are a PPT, you are supposed to come in for cleaning”. Ms Glover replied “I knew you would arc up about this. Do you think it’s fair?” Mr Pridham shouted, “well you are a fucking PPT, do the fucking cleaning, if you are not happy doing the cleaning, you can fucking go back to being a casual”. Ms Glover stood up and left.
[115] Mr Rose and Mr Pridham deny the allegations. Mr Pridham submitted that he spoke to Ms Glover and reminded her that at the interview he had expressly advised that cleaning was a part of her duties.
[116] That Ms Glover was required to clean or that cleaning is part of her duties is not in dispute. The allegation against Mr Rose and Pridham is the manner in which they spoke to Ms Glover. If the swear words are removed, the conversation is unremarkable, it appears Ms Glover was not happy performing the responsibilities allocated to her, I can understand why Mr Rose or Mr Pridham would be annoyed having to respond to this complaint. I believe that that Mr Rose and Mr Pridham swore in their response to Ms Glover. As a result of this finding I must find that their responses in the investigation were not truthful.
[117] However, when I take into account the prevalence of swearing at the wharf I do not believe this conduct is a breach of the Viterra Policy or of Mr Rose of Mr Pridham’s supervisory responsibilities.
[118] A number of allegations raised were in respect of timekeeping with boom gate records, timesheets and a reconciliation being tendered.36
[119] This evidence established circumstances which could have occurred which would undermine the accuracy of the gate records to determine the movement of individuals. This included multiple passengers in a vehicle, tailgating, and the ability to leave the wharf without travelling through the gate. I have treated the gate records with caution.
[120] Ms Glover asserted that Mr Peter was permitted to leave the workplace for a lengthy period and make pizza during the shift on two occasions. Ms Glover accepted this allegation was based on hearsay and not of her own knowledge.37 There was one occasion on 6 March 2018 where Mr Peter clocked out for a period of about an hour and half. Mr Pridham and Mr Rose recall Mr Peter bringing pizza to work but do not recall him leaving during a shift to prepare same. Mr Towers recalls Mr Peter leaving the site to cook pizzas but could not be specific as to dates or duration of the absence or if Mr Peter made or collected the pizzas.38 No evidence was received from Mr Peter.
[121] I am not satisfied that Mr Rose or Mr Pridham permitted or were aware that Mr Peter left the workplace for a lengthy period to make pizzas. This allegation has not been proved.
[122] Ms Glover also alleged that Mr Peter was regularly allowed to come late and that the duties were reallocated to accommodate his lateness. Mr Curnow supported this assessment.
[123] Mr Rose indicated that employees needed to arrive at work 15 minutes before the swap over and that Mr Peter did not do that. In cross-examination, Mr Rose accepted that Mr Peter regularly did not attend early enough to attend pre-start meetings and be at his station on time and that he did not do anything about it, other than to rearrange work duties to accommodate Mr Peter.39 Mr Rose indicated Mr Pridham accepted this conduct.
[124] It appears to me that Mr Rose allowed Mr Peter to regularly attend work late and he condoned this conduct by failing to take corrective action. The condoning of Mr Peter’s late attendance by rearranging work duties to suit was inappropriate and had the potential to undermine the cohesiveness of the team. Mr Pridham and Mr Rose failed to meet their supervisory responsibilities in this regard.
[125] It was alleged that Mr Rose falsely completed a timesheet for Mr Peter where it recorded him starting at 8:00am instead of his arrival time of 10:44am on 12 June 2018. As a result Mr Peter was overpaid.
[126] Mr Rose’s evidence as to when the timesheet times where filled out and signed was conflicting and confusing40. At first, Mr Rose said he used to fill out the scheduled starting time of persons before they attended work, then he said that Ms Glover filled it out on the day as Mr Peter’s arrived late, then he reverted to the position that the timesheet was prefilled.
[127] Mr Rose said he was aware that Mr Peter arrived late and recalled that Ms Glover pointed out Mr Peter’s absence. Mr Rose said to Ms Glover words to the effect of “Leave it, I will fix it later”41. Mr Rose said he had intended to complete a new timesheet with the correct time, but forgot as a result of the number of things he had to do on the day.42 The next time Mr Rose was aware of this was when Ms Gilbey raised it with him as part of the investigation.
[128] Mr Rose accepted that he had a duty to use company resources effectively and that people should only be paid for time worked.43 Mr Rose did not recall having a discussion with Mr Peter as to his lack of punctuality despite Mr Peter advising Viterra of same.44
[129] Mr Rose could not recall or explain why Mr Peter was (according to the gate records) absent from site from 10:28am – 12:52pm on 14 June 2018, two days after the prior incident.45
[130] Mr Rose could not explain why Mr Mumford (according to the gate records) left his shift 1 hour and 37 minutes early on 15 June 2018.46
[131] Whilst Mr Rose could not remember these two instances, he accepted it would be seriously wrong if he authorised such actions.47
[132] Mr Rose accepted the he was not meeting his responsibilities to ensure that people worked the hours that they were being paid for.48
[133] It is clear that Mr Rose failed in his duty to ensure that the timesheets were completed accurately in the significant occasions detailed above.
[134] I do not accept Mr Rose’s explanation that he subsequently forgot Mr Peter’s absence on 12 June 2018.
[135] When I take into account Mr Rose’s lack of action in respect to Mr Peter’s repeated late attendance in the mornings and rearranging the allocation of duties to suit, it appears to me that Mr Rose exhibited a level of favouritism towards Mr Peter inconsistent with his responsibilities as a Stevedore and/or relief Supervisor.
[136] I do not accept the interactions of Mr Rose and/or Mr Pridham with Mr Duignan during the interviews can be relied upon to support an allegation that they were untruthful.
[137] It appears to me that Mr Rose and Mr Pridham were not candid in their description of the verbal exchange in respect of the cancelled shift incident
[138] In respect of the earplug incident, Mr Rose’s version of the events concerning the placing of earplugs on the table changed, though I accept his explanation. I observed Mr Rose become flustered and confused a number of times during cross-examination. I accept that this may have occurred during Ms Gilbey’s investigation process. In addition, the early stages of the investigation were conducted in a way that the allegations lacked precision – this may explain inconsistencies in Mr Rose’s answers. The variances may also have been compounded by the abbreviated notetaking style. I have given Mr Rose the benefit of the doubt in respect of the allegation of being untruthful in his responses about the earplug incident.
[139] I find that Mr Pridham responses about his involvement in the earplug incident were untruthful. This can be seen from a comparison of Mr Pridham’s responses on the topic between the meeting on 5 July and 16 July 2018 and then with his oral testimony. I do not accept that Mr Pridham had forgotten what occurred. It appears that Mr Pridham was seeking to reduce his responsibility for this behaviour. This lack of honesty undermines the trust and confidence of the employment relationship, particularly in light of Mr Pridham’s Supervisory position.
[140] Having made my factual findings in relation to the allegations, I turn now to the consideration of whether the dismissal of Mr Rose and Mr Pridham was harsh, unjust or unreasonable. I deal with Mr Rose first.
[141] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[142] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd49 which requires the reason for termination to be “sound, defensible or well founded.”
[143] Mr Rose allowed Mr Peter to regularly attend work late and failed to take appropriate action. It appears to me that Mr Rose exhibited a level of favouritism towards Mr Peter and that this was inconsistent with his responsibilities as a Stevedore and/or a relief Supervisor.
[144] The failure by Mr Rose to ensure that Mr Peter’s timesheets accurately reflected that he arrived for work over two hours late, particularly in light of the issue being specifically raised at the time is a significant failure in his responsibilities. Mr Rose knowingly allowed Mr Peter to be overpaid by failing to ensure that the timesheets were correct when Mr Peter was significantly late. I do not accept his explanation that he subsequently forgot. This is a valid reason for dismissal.
[145] Mr Rose participated in conduct that belittled and/or embarrassed Ms Glover – the earplug incident being the most obvious example. Despite the fact the Mr Pridham was the Supervisor and instigator, Mr Rose as Stevedore could have showed some leadership but failed to do so. Mr Rose could have reported the matter but failed to do so. Mr Rose’s lack of action had the effect of condoning this conduct towards Ms Glover. This is breach of Viterra’s Policy, a breach of Mr Rose’s employment obligations and a valid reason for dismissal.
[146] Mr Rose’s role as Stevedore carries with it Supervisory responsibilities (albeit not at the level of Mr Pridham) and a commensurate level of trust. Mr Rose’s failure to counsel Mr Peter for his late attendance, submit incorrect payroll documentation represents a breach of trust which is a valid reason to dismiss. This is compounded by Mr Rose’s lack of candour during the investigation.
[147] The allegations in respect of the matters which I have found form a valid reason were advised to Mr Rose.
[148] The allegation of the breach of trust was not specifically put to Mr Rose, however, Mr Rose had an opportunity to respond to the allegations which formed the basis of the valid reasons. Mr Rose was not given an opportunity to respond on the proposed sanction.
[149] Mr Rose had a support person and/or representative during the disciplinary process.
[150] There were no formal warnings.
[151] Viterra is a large employer with dedicated HR support.
[152] The delay between the occurrence of the events and the investigation appears to have adversely impacted on Mr Rose’s capacity to respond to the allegation.
[153] I have taken into account the style of the investigation, in that the precise allegations were not made clear at the outset.
[154] Mr Rose had not been the subject of any prior disciplinary action.
[155] Mr Rose’s age, limited skills, place of residence and the fact that Viterra is a most significant waterfront employer in the area makes the impact of the dismissal more significant. I accept Mr Rose will find it difficult to secure employment in the future, particularly on the waterfront.
[156] It is clear that the workplace culture at Port Giles was suboptimal.
[157] Whilst Mr Rose was subordinate to Mr Pridham, his evidence indicated that he knew what his responsibilities were and when the line was crossed. He does not appear to have recognised that he and others crossed the line, and he did nothing about it at the time. Had the issues concerning team dynamic and the conduct of Mr Rose been made promptly, intervention by Viterra may have been able to “reset” the culture and Supervision processes.
[158] But for the favouritism displayed towards Mr Peter, the failure to ensure the timesheets were accurate (particularly in light of Ms Glover’s warning), and Mr Rose’s lack of candour during the investigation, I may have found that dismissal was a disproportionate response.
[159] The Explanatory Memorandum to the Act50 explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[160] In Byrne and Frew v Australian Airlines Pty Ltd,51 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not 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.”
[161] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Rose’s employment was not harsh, unjust or unreasonable and the application will accordingly be dismissed, and an Order52 reflecting this will be issued.
[162] The factors detailed in s.387 of the Act (as detailed above with respect to Mr Rose) apply.
[163] The incident involving earplugs on a table, in the presence of Ms Glover and others where Mr Pridham said words to the effect of “you might need these if you are working with Wendy Glover” is a substantial breach of the Viterra Policy and Mr Pridham’s duty as a Supervisor. It is a valid reason for dismissal.
[164] Even when making an allowance for the style in which the investigation was conducted, Mr Pridham was not honest in his account of the earplug incident to Viterra. This is also a valid reason for the dismissal.
[165] Mr Pridham’s role of Supervisor is accompanied by a level of trust particularly in respect of his behaviour, leading by example and a need for honesty. Mr Pridham’s conduct has fatally wounded the level of trust held by Viterra. This is also a valid reason to dismiss.
[166] The allegation of the breach of trust was not specifically put to Mr Pridham; however, Mr Pridham had an opportunity to respond to the allegations which formed the basis of the valid reasons. Mr Pridham was not given an opportunity to respond on the proposed sanction.
[167] Mr Pridham had a support person and/or representative during the disciplinary process.
[168] There were no formal warnings.
[169] Viterra is a large employer with dedicated HR support.
[170] The delay between the occurrence of the events and the investigation adversely impacted on Mr Pridham’s capacity to respond to the allegation.
[171] I have taken into account the style of the investigation where the precise allegations were not made clear at the outset.
[172] Mr Pridham had not been the subject of any prior disciplinary action.
[173] Mr Pridham did not show contrition or remorse for the earplug incident indicating it was “banter”.
[174] Mr Pridham’s place of residence and the fact that Viterra is a most significant waterfront employer in the area made the impact of the dismissal more significant. Mr Pridham has been fortunate in finding alternative employment but this requires him to commute from the Yorke Peninsula to Adelaide.
[175] It is clear that the workplace culture at Port Giles wharf was suboptimal. Mr Pridham does not appear to have recognised this at the time. Had the issues concerning team dynamic and the conduct of Mr Pridham been raised in a timely manner, intervention by Viterra may have been able to “reset” the culture and Supervision processes.
[176] But for the earplug incident and Mr Pridham’s untruthful conduct during the investigation I may have found that dismissal was a disproportionate response.
[177] The Explanatory Memorandum to the Act53 explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[178] In Byrne and Frew v Australian Airlines Pty Ltd,54 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not 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.”
[179] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Pridham’s dismissal was not harsh, unjust or unreasonable.
[180] As a result, Mr Pridham’s application is dismissed, and an Order55 reflecting this will be issued.
COMMISSIONER
Appearances:
J Abbey (of Counsel) on behalf of the Applicants.
A Short (of Counsel) on behalf of the Respondent.
Hearing details:
2018.
Adelaide.
22 – 26 October 2018.
Printed by authority of the Commonwealth Government Printer
<PR705013>
1 Exhibit A4
2 Exhibit R9 attachments AG19 and AG20
3 Exhibit R9 attachment AG18
4 Exhibit R9 attachment AG37
5 Exhibit R9 attachment AG29
6 Exhibit R9 attachment AG31
7 Exhibit R9 attachment AG32
8 Exhibit R9 attachment AG34
9 Exhibit R9 attachment AG35. During the hearing I was advised that the date of 19 October 2018 contained in was incorrect – PN5644
10 Exhibit A1
11 Exhibits A3 and A3
12 Exhibits A4, A5 and A6 (Photos)
13 Exhibit A7 and A8
14 Exhibit A11
15 Exhibit A13
16 Exhibit R4
17 Exhibit R5
18 Exhibit R6
19 Exhibit R7
20 Exhibit R9
21 Exhibit R8
22 PN4423-4426
23 Exhibit R9
24 PN1440-1457
25 (1938) 60 CLR 336 (Briginshaw)
26 PN4519
27 PN306-308
28 PN752-PN760
29 PN1289-1303
30 PN1305-1312
31 PN913
32 PN1316-1327
33 PN4132-4168
34 PN4167
35 PN777-PN778
36 Exhibit R1, R2 and R9 attachment AG10
37 PN4370-4748
38 PN3618-3622, PN3627-3628
39 PN1373-105
40 See PN1052-1091
41 PN1027-1035
42 PN723-728, 985-998, 1016-1024
43 PN908-912
44 PN1121
45 PN1123-1127
46 PN1135
47 PN1177-1178
48 PN1203-1214
49 (1995) 62 IR 371 at 373
50 Explanatory Memorandum to the Fair Work Bill 2008
51 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24
52 PR705015
53 Explanatory Memorandum to the Fair Work Bill 2008
54 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24