| [2021] FWC 794 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Linton
v
Altrad Services Pty Ltd
(U2020/6405)
DEPUTY PRESIDENT BINET |
PERTH, 15 FEBRUARY 2021 |
Application for an unfair dismissal remedy.
Introduction
[1] On 9 May 2020, Mr Robert Linton (Mr Linton) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Altrad Services Pty Ltd (Altrad), formerly Cape Australia Onshore Pty Ltd.
[2] On 20 May 2020, Altrad filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[3] On 24 May 2020 and 8 July 2020, the parties participated in conciliation however the Application could not be resolved. The Application was therefore listed for determination.
[4] Taking into account the parties’ wishes and circumstances, it was determined that a Determinative Conference rather than a Hearing would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Determinative Conference in Perth on 15 September 2020.
[5] Directions for the filing of materials in advance of the Determinative Conference were issued to the parties on 15 July 2020 (Directions).
[6] At the Determinative Conference Mr Linton represented himself. He gave written and oral evidence on his own behalf.
[7] In advance of the Determinative Conference, Mr Linton sought and obtained Orders that the following witnesses attend the Determinative Conference:
a. Mr Daniel Levesque – BHP Scaffold Supervisor at Mount Whaleback (Mr Levesque).
b. Mr Luke Daly – Prior to June 2020 BHP Workshop, Repairable and Scaffolding Supervisor at Mount Whaleback (Mr Daly).
c. Mr Eion Marurai – Altrad Leading Hand (Mr Marurai).
d. Mr Anthony De Brouwer – Altrad Leading Hand (Mr De Brouwer).
[8] Each of these witnesses, with the assistance of their employer, subsequently prepared and filed witness statements setting out their evidence in relation to questions posed by Mr Linton. As neither party required the witnesses for cross examination, the Orders to Attend were revoked and the statements of the witnesses were admitted as evidence. The FWC acknowledges the assistance of BHP and Altrad in facilitating the provision of these witness statements.
[9] At the Determinative Conference, Altrad was represented by Mr John Lord, Altrad’s Employment Relations Manager. The following witnesses provided written and oral evidence on behalf of Altrad:
a. Mr Scott Hunter – Operations Manager (Mr Hunter).
b. Mr John David Hall – Regional Manager – Western Australia (Mr Hall).
c. Mr David Paul Rankin – Leading Hand Advanced Scaffolder (Mr Rankin).
d. Mr Sonney Lee Wyatt – Scaffold Supervisor (Mr Wyatt).
e. Mr Nicholas Buncle – Scaffold Supervisor (Mr Buncle).
[10] Final written submissions were filed on behalf of Mr Linton on 6 November 2020. Final written submissions were filed by Altrad on 20 November 2020.
[11] In reaching my decision, I have considered all the submissions made, and the evidence tendered, by the parties even if not expressly referred to in these reasons for decision.
[12] Altrad is part of a privately owned French group of companies which has become one of the largest contractors in Western Australia after merging and rebranding its Cape Australia and Hertel businesses.
[13] Altrad performs scaffolding services for shut down and maintenance work at seven BHP Billiton sites pursuant to Altrad’s BHP Billiton Western Australian Iron Ore Contract (BHP WAIO Contract). 1
[14] The nature of work on the BHP WAIO Contract often requires an influx of workers on short-term engagements. Altrad engages a labour pool of approximately 365 employees who are engaged casually on an ‘as and when required’ basis. Altrad does so to ensure that at all times it can meet its operational requirements. Contracts of employment issued to the labour pool have been set up so that each employee can work on any one of the seven sites covered by the BHP WAIO Contract. 2
[15] The number of positions Altrad need to fill on the BHP WAIO Contract varies widely. In January 2020, a busy month, Altrad made 476 placements across the seven sites. In April 2020, a quieter month, Altrad made 287 placements across the seven sites. The number of placements is sometimes higher than the number of employees in its labour pool because employees can undertake multiple engagements in a month. Western Australian based employees make up approximately 96% of its workforce. 3
[16] Altrad obtains the work under purchase orders for periods of three months at a time. Altrad’s operational and safety performance is reviewed on each occasion before BHP issues a new purchase order. There is no guarantee of Altrad retaining the BHP work from one purchase order to the next. 4
[17] Mr Linton commenced employment as an intermediate scaffolder with Altrad on 8 March 2019 pursuant to a casual contract of employment signed on 7 March 2019 (Employment Contract). 5 His employment is covered by the Cape Australia Northern Australia Enterprise Agreement 2018 (Agreement).
[18] The Employment Contract states that he is employed on a casual basis at Item 7 of the Schedule. At clause 2.2.1, casual is defined as being engaged on an as and when required basis. The Employment Contract does not guarantee Mr Linton any minimum hours of work or continuing employment. 6
[19] On the same day that he signed the Employment Contract, Mr Linton also signed an acknowledgement that he had read, understood and agreed to be bound by the BHPIO Project Rules (BHP Site Rules). 7
[20] At the time of the events which are the subject of this Application occurred Mr Linton was performing work at BHP’s Mount Whaleback Mine site.
[21] Mr Hall is employed by Altrad as the Regional Manager – Western Australia responsible for leading and managing all maintenance contracts performed by Altrad in Western Australia. Mr Hunter is employed by Altrad as the Senior Leader responsible for the management of the BHP WAIO Contract. 8
[22] Mr Leveseque and Mr Daly are the BHP contact points for the supervisors of the scaffolding contractors on the Mount Whaleback site. These duties form a small part of their roles which primarily involve the supervision of BHP employees. 9
[23] Mr Leveseque and Mr Daly liaise primarily with Altrad supervisors Mr Buncle and Mr Wyatt and with step-up supervisor Mr Rankin. 10 Mr Buncle, Mr Wyatt and Mr Rankin are directly responsible for the day-to-day supervision of the Altrad scaffolding employees, including Mr Linton.
[24] A prestart meeting is conducted daily by Mr Levesque or Mr Daly which is attended by the Altrad scaffolding crew and the BHP workshop and stores personnel. The purpose of the prestart meetings is to review work performed during the previous shift, scope the work to be performed by the incoming shift, discuss safety issues and provide an opportunity for workers to raise any issues. 11
[25] The evidence of Mr Levesque and Mr Daly is that Altrad hold an end of shift briefing with the outgoing and incoming scaffolding crew. Mr Levesque says that this has occurred the whole time he has been employed with BHP but that his involvement is limited to listening in on the meeting if he is in the area when it occurs. 12 The evidence of Mr Marurai, Mr Wyatt and Mr De Brower is that the Altrad crew would debrief after every shift and that Mr Linton would attend if he was rostered to work. Topics discussed would include reporting injuries and incidents and reviewing the task list. Mr Marurai says that employees were required to sign out before leaving.13 This is corroborated by the Daily Prestart and Debrief Meeting Documents tendered as evidence.14
[26] On 18 March 2020, Mr Linton was mobilised to the Mount Whaleback Mine site to commence a swing starting on 19 March 2020. 15
[27] Sometime between 9.00am and 9.30am on 21 March 2020, Mr Linton banged his head on a scaffold tube while inspecting the scaffold on the north elevation of the beneficiation plant at the Mount Whaleback Mine site. 16 Mr Linton was wearing a hard hat at the time and says that he did not feel any pain or discomfort, nor did he feel concussed.17 Mr Linton did not report the incident to anyone at the time.18 On completing the task he rang his supervisor Mr Wyatt to request an inspection number. He says he did not take the opportunity to report the incident to Mr Wyatt because Mr Wyatt was stressed because he had recently received a warning for failing to report a workplace injury of a co-worker.19
[28] Mr Linton completed the remainder of his work without issue and returned to camp. On returning to camp he says that he felt some slight stiffness in his neck. 20
[29] On Sunday 22 March 2020, when Mr Linton woke to get ready for work, he noticed some tingling in his hands. He says that he often experiences ‘pins and needles’ and given that the sensation passed he gave no further thought to it. 21
[30] On Monday 23 March 2020, as Mr Linton was getting ready for work, he felt some soreness in his hands around the knuckle area. 22
[31] Mr Linton says at around 6pm on Monday 23 March 2020, Mr Linton’s work crew met for a handover briefing with the BHP Supervisor, Mr Daly, and Altrad supervisor, Mr Wyatt, who had just completed day shift. Mr Linton says that Mr Daly asked the assembled group whether everyone was feeling ok. Mr Linton says he told Mr Daly that he had sore hands but he was not sure what it was. 23
[32] Mr Linton says that the crew agreed that he would be tasked with passing material and the rest of the crew would undertake the fixing. Mr Linton says that during the shift there was no change in his hands and he had no issues with his neck. 24
[33] Altrad subsequently conducted an investigation into, inter alia, the soreness in Mr Linton’s hands. This investigation proceeded on the basis that Mr Linton first reported the soreness on Monday 23 March 2020. This presumption was based on a version of events reported to Altrad by Mr Linton. In the course of preparing for these proceedings, Altrad determined that Mr Linton did not report the soreness until 25 March 2020.
[34] During an interview with Mr Hunter on 30 March 2020, Mr Linton stated that the assembled group present when he first reported that his hands were sore included BHP night supervisor, Mr Levesque, and Altrad night supervisor, Mr Rankin. 25
[35] Consistent with Mr Linton’s evidence, Mr Daly says he remembers Mr Linton first mentioned his hands were sore at a prestart meeting that both he and Mr Levesque were present. As Mr Daly and Mr Levesque are back-to-back supervisors they do not usually attend the mine site on the same days. Mr Daly was rostered to work between 20 March 2020 and 24 March 2020. Mr Levesque was on ‘R&R’ on 23 March 2020 and not on-site but was rostered to work from 25 March 2020 to 29 March 2020. On 25 March 2020, Mr Daly worked overtime so that he could discuss some operational matters before he commenced R&R. According to BHP security data the only time at which Mr Daly and Mr Levesque crossed over for a prestart meeting was 25 March 2020. 26
[36] On the balance of the evidence including:
a. the consistency of evidence with respect to the events which subsequently occurred on 25 March 2020;
b. the proactive manner in which Mr Daly and Mr Rankin responded to a report on 25 March 2020 by Mr Linton that his hands were sore;
c. the BHP security data;
d. an interview of Mr Linton on 30 March 2020 conducted by Mr Hunter; and
e. an email dated 27 March 2020 from Mr Rankin to Mr Hunter stating that Mr Linton had first reported his sore hands on 25 March 2020. 27
as well as an assessment of all the witnesses in the witness box and the relative consistency of written and oral evidence, I find that Mr Linton first reported the soreness in his hands to Mr Daly on 25 March 2020 not 23 March 2020 as claimed by Mr Linton.
[37] Mr Linton says that on Tuesday 24 March 2020, the soreness in his hands was the same as the previous night, so on the way to work, he purchased a packet of aspirin from the work camp shop. Mr Linton says that at the prestart briefing none of the supervisors asked how his hands were and as they were not any worse from the day before he did not mention them. 28 That the supervisors did not ask Mr Linton about his hands and him not mentioning it is consistent with Mr Linton not reporting the soreness to his supervisors until 25 March 2020.
[38] Mr Linton says that he took two aspirin at his first break and another two after work back at camp before he went to bed. 29 I note that in an interview with Mr Hunter on 30 March 2020 Mr Linton says his hands were so sore that he raised it with his crew.30 This, and his decision to purchase pain killers suggest that the pain was of some notable severity.
[39] On Wednesday 25 March 2020, Mr Linton says that his hands were the same as Tuesday and at prestart, again none of the supervisors enquired about his hands. 31 That the supervisors did not ask Mr Linton about his hands is consistent with Mr Linton not reporting the soreness to his supervisors until 25 March 2020.
[40] Mr Daly says that at the prestart on 25 March 2020, it was the first time that Mr Linton mentioned to him that his hands were sore. 32 Mr Daly says that Mr Linton claimed that it was ‘normal’ pain and swelling caused by carpal tunnel syndrome and that he did not need or want to visit the BHP site medic, the Emergency Services Officer (ESO).33
[41] As a result, Mr Daly told Mr Rankin not to allocate Mr Linton scaffold erecting duties, to monitor his condition and if Mr Linton needed to see the ESO, to take him there. 34
[42] Mr Linton says that he had a brief discussion with Mr Rankin and they agreed that Mr Linton would monitor his hands and that if the soreness did not clear up Mr Rankin would take him to see the ESO. 35
[43] At around 10pm, breaktime, Mr Linton says that he felt a slight increase in the soreness around his knuckles and thought he could see some swelling around them. He says he said to Mr Rankin words to the effect: 36
“I better go visit the ESO to look at my hands and get an opinion on what it is”
[44] Mr Rankin says that this is the first time that Mr Linton mentioned to him that his hands were sore. He says that Mr Linton also complained of cramping in his knees. He says that Mr Linton asked if he could return to camp and sleep. Mr Rankin says that he told Mr Linton that he must follow procedure and inform Mr Grant O’Reilly, the BHP Night Manager (Mr O’Reilly). 37
[45] Mr Rankin immediately took Mr Linton to see Mr O’Reilly and it was agreed that Mr Linton should see the BHP site medic the ESO. 38
[46] Mr Rankin and Mr Greg Wilson accompanied Mr Linton to the ESO. 39 Mr Linton says he explained that he had soreness in his hands and that the back of his legs and knees were becoming sore. He says the ESO was unable to determine the cause of the soreness. Mr Linton says he mentioned to her that he had previously been diagnosed with carpel tunnel syndrome. He says that the ESO said that carpel tunnel syndrome was beyond her expertise. Mr Linton says that ESO suggested that he either carry on night work and keep monitoring his hands or swap for day shift and book an appointment to see a Newman-based work physio.
[47] While he waited for Mr Linton, Mr Rankin called Mr Hunter to inform him of the injury reported by Mr Linton. 40 Mr Rankin subsequently confirmed the report in writing by way of email to Mr Hunter on Friday 27 March 2020.41
[48] Mr Rankin says that that at the conclusion of the consultation, the ESO discussed their findings with himself and Mr Wilson. He says that the ESO confirmed she had queried with Mr Linton whether he had hit any part of his body that could have caused these symptoms to which Mr Linton reported that he had not. Mr Rankin says that the ESO advised that the symptoms were non-work related and that Mr Linton’s condition should be monitored. 42
[49] Mr Linton was given the option to return to camp and rest or stay on-site and do light duties. Mr Linton opted to stay on-site as the duties were not strenuous. Mr Rankin says that it was agreed Mr Linton would monitor his symptoms and notify Mr Rankin if his symptoms worsened. 43
[50] Mr Rankin says that he checked in with Mr Linton several times throughout the remainder of the nightshift and each time Mr Linton informed him that he was fine and that there had been no change in his symptoms. 44 This is corroborated by way of an email sent by Mr Rankin to Mr Hunter on 27 March 2020,45 and by Mr Linton during an interview with Mr Hunter held on 30 March 2020.46
[51] Mr Linton worked his normal rostered shift on 26 March 2020. He says that his hands were the same as the previous night. In accordance with the advice of the ESO he changed from taking aspirin to nurofen. He took the nurofen on break times and before going to bed. 47
[52] In his witness statement Mr Linton says that none of the supervisors enquired about his hands at the prestart briefing. However, the evidence of Mr Rankin is that he did in fact check, both during the prestart briefing and during the shift. This is corroborated by Mr Wyatt. 48 I note that the notes of an interview of Mr Linton by Mr Hunter which occurred several days later recorded that Mr Linton indicated that Mr Rankin had asked him how his hands were and that he had told Mr Hunter that the nurofen was working and the soreness in his hands and backs of his legs was ‘ok’ and in fact improved the more he moved around.49 This is consistent with the evidence of Mr Rankin and contemporaneous email correspondence between Mr Hunter and Mr Rankin, in which Mr Rankin reports that on 26 March 2020 Mr Linton had informed Mr Rankin that his joint pain had gone.50
[53] In his witness statement Mr Linton says that during the shift an incident occurred where a three metre long scaffold tube fell on his head and shoulder. As he was wearing his hard hat Mr Linton says the incident did not concern him. However, he says he said to Mr Rankin that they should report the incident. Mr Linton says that Mr Rankin replied that: 51
“If we report this as an incident Eion will get the sack and I probably will too plus there will be a full-on investigation for you guys and loads of paperwork.”
[54] Mr Marurai had recently been given a warning about a safety breach. Mr Linton says that this incident was typical of the workplace culture, whereby Altrad scaffolders were afraid of losing their jobs if they reported incidents and where supervisors did not encourage the reporting of what they viewed as ‘minor incidents’. 52
[55] Mr Rankin, Mr Marurai and Mr De Brouwer all recall undertaking this shift but do not recall the incident described by Mr Linton occurring. 53 Mr Rankin denies making the comments that Mr Linton attributes to him.54 I also note that Mr Linton made no reference to this alleged incident in an interview with Mr Hunter which occurred a few days later.55 On the balance of the evidence before me, I find that this alleged incident did not occur and was created by Mr Linton in an attempt to further his own case. This impacts on the weight to which I have given contested evidence given by Mr Linton.
[56] Mr Linton commenced his normal rostered shift on 27 March 2020. He conceded that the soreness in his hands had not improved. 56
[57] Mr Linton says that none of the supervisors enquired about his hands at the prestart briefing. 57 The supervisors not asking about Mr Linton’s hands is consistent with Mr Rankin’s evidence that Mr Linton had informed him on 26 March 2020 that the pain was gone.58 At breaktime Mr Linton decided that as his hands were not getting better, that he should go and see the physiotherapist as suggested by the ESO. Mr Rankin and Mr Wyatt agreed to this request and transferred Mr Linton from the night shift on 28 March 2020 to day shift commencing 29 March 2020.59
[58] On 29 March 2020, Mr Linton attended work and informed Mr Wyatt that he needed to see a physio. Mr Wyatt spoke to Mr Levesque who agreed to take Mr Linton to the ESO to obtain a referral to a physiotherapist. 60
[59] The ESO repeated the tests conducted by the previous ESO and again could not find a cause for Mr Linton’s symptoms. The ESO asked Mr Linton whether he had done anything at work that could have caused the symptoms. Mr Linton says he said he had not done anything that could make his hands or legs sore but mentioned that he had walked into a scaffold tube over a week ago. The ESO inspected Mr Linton’s neck and said, words to the effect of, “You need some heat treatment on your neck to help with the stiffness”. The ESO applied a ‘heat pad’ to Mr Linton’s neck and made an appointment for him to see the physiotherapist at 2.30pm the same day. 61
[60] At around 2pm Mr Levesque accompanied Mr Linton to the physiotherapist for treatment of his neck who conducted a series of tests.
[61] The physiotherapist indicated to Mr Levesque that she was concerned that Mr Linton had suffered a serious neck injury. She advised that Mr Linton should go immediately to the Mount Newman Hospital. The physiotherapist initially wanted to arrange an ambulance to transfer Mr Linton but at Mr Linton’s insistence agreed that Mr Levesque could drive him there. 62
[62] Mr Levesque drove Mr Linton to Mount Newman Hospital where he was examined by a doctor upon arrival. Mr Linton explained to the doctor how he had walked into a scaffold tube. The doctor diagnosed Mr Linton as having ‘neck hyperextension’ and prescribed rest. 63
[63] Mr Levesque says that Mr Linton explained that he had struck his head on 21 March 2020 when inspecting low scaffolding. Mr Levesque says that because it is an expectation on-site that all injuries and illnesses get reported, took a statement from Mr Linton about the incident. According to Mr Levesque reporting of incidents is a regular topic of discussion in training and prestart briefings. He particularly recalls that this topic was regularly discussed at prestart briefings in and around March 2020 because of other incidents which had happened on-site. 64
[64] Mr Levesque and Mr Linton drove back to Mount Whaleback Mine site. 65 Mr Levesque said that he spoke to Mr Wyatt about arranging for Mr Linton to leave site because he was unfit for work.66 Mr Rankin and Mr Levesque both informed Mr Hunter that Mr Linton had told the ESO that he had banged his head a week earlier. Mr Hunter consequently decided to meet with Mr Linton the following day to obtain further information about the incident.67
[65] On 30 March 2020 Mr Linton awoke feeling tired and informed Mr Wyatt by text around 5:30am that he proposed to take the day off. 68
[66] At around 10.30am, on the same day, he received a call from Mr Hunter who requested Mr Linton meet with him to make a statement. Mr Linton met Mr Hunter around 11.15am in the mess hall at the work camp which was not in use at the time for the meeting (Safety Investigation Interview). 69
[67] Mr Hunter says that, at first, they discussed the timeline relating to the pain that he had been feeling in his hands. Then they discussed the events surrounding his bang to the head. When discussing the bang to the head, Mr Hunter wanted to get an indication from Mr Linton as to the severity of the contact between his hard hat and the scaffolding tube. He recalls Mr Linton telling him that the bang to the head caused him to take a couple of steps back immediately after it occurred. Mr Hunter recalls getting up and simulating the incident for Mr Linton pretending to make head contact with a scaffolding tube and then being jolted back a few steps. Mr Hunter says that Mr Linton appeared to agree with the accuracy of his simulation. 70
[68] Mr Linton says that Mr Hunter was distracted during this meeting. Mr Hunter denies this. 71
[69] Mr Linton says that Mr Hunter initially informed him that he would be on light duties for the balance of his swing which was due to finish on 1 April 2020 and then later in the afternoon told him that BHP did not want Mr Linton on-site or in-camp while the incident was investigated, and that Altrad wanted him to see their doctor in Perth the next day. 72 Mr Hunter denies this. He says that at the end of the interview he informed Mr Linton that he would be flown off-site while the investigation was conducted to enable him to access medical care.73
[70] As he was waiting for a lift back to camp, Mr Linton says that he overheard Mr Hunter say to a person over the phone, words to the effect, 'Bob Linton has back-tracked on his story about who he was working with on nights'. 74 Mr Hunter denies that he says this.75
[71] Mr Hunter forwarded a summary of his discussion with Mr Linton to Mr Hall later the same day. Mr Hunter and Mr Hall discussed the content of the email and Mr Hunter expressed his concern that it appeared that an incident had not been reported when it should have. He also informed Mr Hall that BHP wanted the incident investigated. 76
[72] Once Mr Linton was off-site, Mr Hunter was kept up to date with the progress of Mr Linton’s condition by Ms Renae Snashall, Altrad’s Injury Management Co-ordinator (Ms Snashall), who also liaised with BHP Health and Safety staff on the issue. 77
[73] On 1 April 2020, Mr Linton was examined by Altrad’s doctor, Dr Cullen, who diagnosed Mr Linton as having arthritis in his hands. Dr Cullen proscribed Ibuprofen, heat/ice and physiotherapy and certified Mr Linton fit for work from 1/04/2020 on restricted duties. 78
[74] On 2 April 2020, Mr Linton was examined by his own doctor who diagnosed him with Hepatitis, which had caused extremely high iron counts in his liver, which in turn caused swelling in his hands and legs. Mr Linton has since completely recovered from the Hepatitis without any further treatment. 79
[75] On 15 April 2020, Mr Linton was certified fully fit for work by Dr Cullen from the OSH Group via a telephone conversation and by Dr Stieler from St Francis Medical via an in-person check-up at his surgery. Mr Linton contacted Ms Snashall and requested that he return to work as soon as possible. Mr Linton also emailed, and called, Mr Hunter regarding his return to work but his email and calls went unanswered. 80
[76] On 16 April 2020, Mr Linton received a phone call from a co-worker, Mr Paul Grimshaw (Mr Grimshaw). According to Mr Linton, Mr Grimshaw informed Mr Linton that Mr Wyatt had mentioned in a text conversation that Mr Linton had got the 'flick'. 81 Mr Wyatt admitted at the Determinative Conference that he was not involved in the decision to dismiss Mr Linton and that he was not made aware of the status of Mr Linton’s employment.82 He says his comments were mere speculation because of Mr Linton’s absence on-site. Mr Buncle says that he exchanged a number of text messages with Mr Linton the same day and that he consistently told him that Altrad’s Human Resource Department were managing his return to work once he was fit for work.83
[77] Concerned that Mr Linton’s failure to report a bang to the head was in breach of the BHP Site Rules, Mr Hunter recommended to Mr Hall that Mr Linton should be put through a disciplinary process.
[78] At around 10.40am on 20 April 2020, Mr Hunter contacted Mr Linton and informed him that a disciplinary meeting would be conducted over the phone at 4:30pm that same day, regarding Mr Linton failing to report incidents or injuries. 84
[79] Because of the short notice and without anyone to take notes for him, Mr Linton requested that Altrad allow him to record the disciplinary meeting. Mr Linton also requested copies of any documents or statements made by any person involved in the investigation, along with any documents Altrad were relying on, to support their disciplinary case. 85
[80] Mr Linton was sent a copy of the BHP Site Rules. 86
[81] At 10:42am, Mr Hunter sent Mr Linton a copy of the notes Mr Hunter made during his meeting with Mr Linton on 30 March 2020 with an invitation to read the notes and make any necessary corrections. 87
[82] Mr Linton identified a few minor changes that he wanted made and stated that: 88
“Other than that, I would say that the statement is correct to my recollection of the incident.”
[83] At 4.32pm, Mr Hunter sent an email to Mr Linton explaining that because the disciplinary meeting could not be undertaken 'face-to-face' and Altrad would not allow Mr Linton to record it, then it would instead be held in the form of a ‘show cause’ letter. 89
[84] On 22 April 2020, Mr Hall wrote to Mr Linton (Show Cause Letter) asking him to show cause as to why his employment should not be terminated for failing to report the following incidents and injuries: 90
“…
On the 22nd March 2020 you woke with ‘tingling’ to your right hand to which you put to ‘sleeping on it’. You attended and worked your scheduled shift with the tingling sensation in your right hand and failed to report this to your Supervisor during prestart or at any point throughout the shift.
The following day you attended your scheduled nightshift and at the prestart (circa 6pm) you reported to both Supervisors Sonny Wyatt & David Rankin that you had some ‘pain’ in your hand and ‘tingling’. Your injury was subsequently escalated to two (2) BHP Supervisors who suggested you go to the Emergency Services Officer (ESO), to which you declined as you believed it was a 'temporary thing'.
On the 24th March 2020 you attended your scheduled nightshift and did not report any on-going symptoms during prestart. Your statement confirms you continued to experience symptoms similar to those experienced the previous day and you had in fact commenced taking “two aspirin at start of shift” and two thereafter every four hours.
On the 25th of March 2020 you confirm your hands were “slightly worse”, “swelling had appeared”, “soreness around the knuckles had gone up” and the “aspirin wasn't so effective”. You commenced your scheduled nightshift and did not report any change in symptoms to your Supervisor during prestart and it wasn't until circa 2230, some four and a half (4.5) hours later that you reported to your Supervisor Dave Rankin that you had “better go and get this checked” by the ESO.
On the 29th March 2020 you requested your Supervisor take you to see the ESO as you “hadn't gotten any better”. It was during this consult that you reported to the ESO that you had “banged” your head on the 21st March 2020, however you had not reported it to your Supervisor or colleagues at the time. You confirm in your statement that the impact of the incident had caused you to go “back a couple of paces” and stand there “for a couple of seconds”. You confirm that you then contacted your Supervisor, Sonny Wyatt, after the incident and before tagging the scaffold to get the scaff-tag number, however failed to report the incident that had just occurred.”
[85] The Show Cause Letter goes on to state that: 91
“It is alleged that the behaviours above which occurred between 21st March 2020 and 29th March 2020 consistently breach the BHP Project Rules (attached for your reference). You agreed and signed up to these well-established project rules prior to the commencement of your employment.
You are advised that the Company considers these incidents' to be a serious breach of your contract of employment.”
[86] On 22 April 2020, Mr Linton requested that Altrad identify which particular rule/rules they alleged he had broken. 92
[87] Altrad provided further clarity regarding the allegations by way of email on 23 April 2020 (Allegation Email). In the Allegation Email the allegations are summarised as follows: 93
“• Failure to report the incident that occurred on the 21st of March 2020 whereby you “banged” your head. The incident was not reported until the 29th March 2020 during a visit to the ESO;
• Failure to report symptoms of “tingling” to your right hand on the 22nd March 2020 during pre-start;
• After reporting symptoms on the 23rd March 2020 and advising that you did not wish to see an ESO as you felt it was “temporary”, you again failed to report during prestart the following day that your symptoms had not cleared and you had commenced taking aspirin. “two at the start of shift” and "two every four hours” thereafter to assist in pain relief;
• Failure to report during prestart on the 25th March 2020 that your symptoms had gotten “slightly worse”, “swelling had appeared”, “soreness around the knuckles had gone up” and the “aspirin wasn't so effective” until approx. 2230, some four and a half hours after you commenced your scheduled shift.”
[88] On 24 April 2020 Mr Linton provided a written response to the Show Cause Letter (Show Cause Response). 94
[89] Mr Linton says that on the 27 April 2020, Mr Buncle, Altrad's other site supervisor, informed him that he had been given instructions by Mr Hunter to clear out Mr Linton’s camp site permanent room on 24 April 2020. 95 Mr Hunter denies he gave such an instruction and says that it was his understanding that, at that time, a decision had not been made in relation to Mr Linton’s on-going employment. Mr Buncle denies telling Mr Linton that he had been instructed to clear out his room. Mr Buncle says that it was routine practice to clear rooms if a person was absent from site for more than one swing. In fact, in the text exchange, Mr Linton asked Mr Buncle directly if he had been told he had been sacked and Mr Buncle responded:96
“Nah Scott said they will allocate you on other jobs. …”
[90] On 28 April 2020 Mr Linton requested that the Altrad HR department provide him with a separation letter. He was informed that as Monday was a public holiday, Altrad were still in the process of reviewing its response and would advise him of the outcome by close of business the next day. 97
[91] On 30 April 2020, Mr Hall wrote to Mr Linton setting out his reasons for terminating Mr Linton’s employment, effective 1 May 2020 (Dismissal Letter). 98 Those reasons were described as follows:
“…
• You are in breach of the Company Golden Safety Rules which were covered off in the online induction you completed on 22 March 2019, whereby it clearly states that all employees are required to report any accidents or incidents to their Line Manager without delay;
• A subsequent opportunity was provided to you on 21 March 2020 during the end of day debrief to report the banged head incident that had occurred earlier that day. You signed off on the debrief at the completion of your shift at 1740 and did not report the incident that occurred earlier on in the day;
• Your response to the show cause states that you reported the tingling to your hands on the very day it came on. This response is inconsistent with the original statement you provided which confirms that you did not report it on 22 March 2020 at your daily prestart and worked the entire shift without reporting it. The tingling was not reported until 23 March 2020;
• You confirm that after reporting the tingling to your right hand on 23March 2020 you had advised your Supervisor/s that you did not feel the need to see an ESO as you felt the symptoms were temporary. The following day you commence taking aspirin to manage the pain, taking two at the commencement of the shift and two every four hours thereafter. This would indicate that the symptoms had not resolved and thus not temporary and should have been reported to your Line Manager/ Supervisor; and
• Your actions had the potential to put yourself and other employees at risk.”
[92] Following his dismissal, Mr Linton decided to participate in a business course scheme offered by the Federal Government rather than pursue alternative employment immediately. Participation in the course entitled him to Job Seekers Allowance of $1264.10 per fortnight plus the COVID-19 top up payment of $550 per fortnight for a period of 24-weeks. 99
[93] Mr Linton seeks an order for compensation.
[94] An order for reinstatement or compensation may only be issued if Mr Linton was unfairly dismissed and Mr Linton was protected from unfair dismissal at the time of his dismissal.
[95] Section 382 of the FW Act provides: that a person is protected from unfair dismissal if, at the time of being dismissedthe person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period and one or more of the following apply:
a. a modern award covers the person;
b. an enterprise agreement applies to the person in relation to the employment; and
c. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[96] There is no dispute, and I am satisfied, that Altrad is a national system employer with more than 15 employees. Altrad is therefore not a small business for the purposes of the FW Act. The minimum employment period if an employer is not a small business is six-months. It is not in dispute, and I find, that Mr Linton was a national system employee who commenced employment with Altrad on 7 March 2019 and was dismissed on 30 March 2020. There is no dispute, and I am satisfied, Mr Linton has completed the minimum employment period.
[97] There is no dispute, and I am satisfied, that the Cape Australia Northern Australia Enterprise Agreement 2018 applied to Mr Linton’s employment. Consequently, I am satisfied that Mr Linton was protected from unfair dismissal.
[98] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d. the dismissal was not a case of genuine redundancy.
Was Mr Linton dismissed?
[99] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment, but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[100] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[101] There was no dispute, and I find, that Mr Linton’s employment with Altrad was terminated at the initiative of Altrad. I am therefore satisfied that Mr Linton has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Linton’s dismissal a case of genuine redundancy?
[102] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[103] It was not in dispute, and I find, that Mr Linton’s dismissal was not due to Altrad no longer requiring his job to be performed by anyone because of changes in Altrad’s operational requirements.
[104] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Was Mr Linton’s dismissal consistent with the Small Business Fair Dismissal Code?
[105] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (SBFD Code) if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b. the employer complied with the SBFD Code in relation to the dismissal.
[106] It was not in dispute, and I find, that Altrad was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of 14 employees.
[107] As Altrad is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Linton’s dismissal.
[108] Section 394(2) of the FW Act requires that the Application be made within 21 days after the dismissal took effect.
[109] It is not disputed, and I find, that Mr Linton was dismissed from his employment on 1 May 2020 and made the application on 9 May 2020. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
[110] Section 387 of the FW Act provides that in determining whether 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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.
[111] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[112] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.100
[113] An employer must have a valid reason for the dismissal of an employee, although it need not be the reason given to the employee at the time of the dismissal. 101 The reasons should be “sound, defensible and well founded”102 and should not be “capricious, fanciful, spiteful or prejudiced.”103 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.104
[114] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.105 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.106
[115] Altrad says that it dismissed Mr Linton because he failed to report two incidents/injuries in accordance with the site and project rules. Those incidents were:
a. banging his head on low hanging scaffolding between 9am and 9.30am on 21 March 2020; and
b. not reporting the pain and swelling in his hands and worsening symptoms.
[116] Mr Linton has admitted that on 21 March 2020 between 9.00am and 9.30am, he banged his helmeted head on a scaffold tube whilst performing a scaffold check in the northern corner of the beneficiation plant on the BHP Mount Whaleback site.
[117] Mr Linton denies that the incident in which he banged his head was of sufficient severity for it to constitute a reportable incident. In any event, he says that he reported the incident in which he banged his head on 29 March 2020 to the ESO.
[118] Mr Linton admits that he first noticed tingling in his hands on Sunday 22 March 2020 when he woke to get ready for work. 107 He admits that on Monday 23 March 2020 he felt some soreness in his hands around the knuckle area, such that it was necessary to modify the work he was performing.108
[119] Mr Linton says that he reported his sore hands on 23 March 2020, on the day his hands first became sore, to four supervisors and his crew. He says that no one subsequently inquired about the condition of his hands however he sought further medical attention as he considered necessary and appropriate.
[120] Ultimately, it became apparent that the soreness in his hands was unrelated to the incident in which he banged his head but instead was a side effect of hepatitis.
[121] Mr Linton submits that neither the site or project rules set a timeline for reporting incidents, nor define what a reportable incident is. He says that his reporting actions were consistent with the relevant rules and with custom and practise, and that therefore there is no valid reason for his dismissal.
[122] Altrad relies upon two documents to establish that there is a requirement to report all incidents and injuries.
[123] The first of these documents is the BHP Sites Rules. 109 The BHP Site Rules clearly state that a failure to report an incident/injury constitutes misconduct and that proven misconduct may result in termination of employment.110
[124] The reporting of incidents and injuries is also required by the Altrad’s golden safety rules (Altrad’s Golden Safety Rules). Mr Linton completed an induction in March 2019 which included a video presentation about the Golden Rules. In the presentation employees are advised: 111
“Never ignore an unsafe situation. Accidents and incidents can occur in the blink of an eye, so there can be no delay in stopping the activity and reporting it to your Supervisor.”
[125] And that: 112
“Cape Golden Rules
Safety is our no.1 priority. Here are some Golden Rules you must follow to ensure no one is injured. These form the basis of our safety philosophy. If you work for Cape, you must always follow these without exception.
Failure to do so will be regarded as a serious safety violation and will normally lead to termination of your employment.”
[126] Altrad submits that the requirement for an employee to report any incident is a deliberate feature of both the BHP Site Rules and the Altrad Golden Safety Rules. Altrad says that reporting is mandatory, so as to remove any discretion as to ‘what is’ or ‘what isn’t’ an incident.
[127] Altrad submits that Mr Linton’s failure to report the two incidents/injuries and the worsening symptoms in a timely manner denied Altrad the opportunity to exercise its duty of care for employee health and safety. Altrad further submits that the failure to report clearly breaches the BHP Rules and the Altrad Safety Golden Rules and demonstrates a failure on Mr Linton’s part to meet important safety obligations giving rise to a valid reason for his termination.
[128] Even without the site and company rules Mr Linton had a statutory obligation pursuant to occupational health and safety legislation to ensure his own and others health and safety. This includes an obligation to report safety hazards and injuries. I am satisfied that Mr Linton had both a contractual and statutory obligation to report safety hazards, incidents and injuries.
[129] On the same day that he signed the Employment Contract Mr Linton also signed an acknowledgement that he had read, understood and agreed to be bound by the BHP Site rules. 113
[130] Mr Linton completed an induction in March 2019 which included a video presentation about the Altrad Golden Safety Rules.
[131] The evidence of other Altrad and BHP employees is that they are familiar with the BHP Site Rules and the Altrad Golden Safety Rules and that the content of these documents is regularly reinforced at tool box and prestart meetings.
[132] On the evidence before me I am satisfied that Mr Linton should have been aware of the BHP Site Rules and the Altrad Golden Safety Rules specifically, and more generally, that he had an obligation to report safety hazards, incidents and injuries.
[133] Altrad disputes Mr Linton’s contention that banging his head was not a reportable incident. The following factors support Altrad’s position:
a. the incident was significant enough for Mr Linton to be able to recall it eight days after it occurred;
b. the incident appears to have caused an injury, that being a hyperextension of his neck;
c. by his own admission Mr Linton experienced stiffness in his neck later that afternoon;114
d. Mr Hunter’s recollection of Mr Linton describing the incident to him was that the bang was forceful enough to cause Mr Linton to take a couple of steps backwards; and
e. in correspondence with Altrad, Mr Linton acknowledged that he suffered a ‘suspected work-related neck injury’. 115
[134] I am satisfied that the bang to Mr Linton’s head, which occurred on 21 March 2020, was a reportable incident.
Do the BHP Site Rules or the Altrad Golden Safety Rules require that incidents and injuries be reported in a timely manner?
[135] The induction presentation of the Altrad Golden Safety Rules expressly states that accidents and incidents must be reported immediately:
“Never ignore an unsafe situation. Accidents and incidents can occur in the blink of an eye, so there can be no delay in stopping the activity and reporting it to your Supervisor.”
[136] While the BHP Site Rules and the Altrad Golden Safety Rules don’t expressly provide a timeline for reporting injuries and incidents, a reasonable person would presume from the nature of the obligation and its purpose, that injuries and incidents are reported in a timely manner.
[137] Mr Linton concedes that he did not report the incident until eight days after it occurred.
[138] The Dismissal Letter asserted that an opportunity was provided to Mr Linton on 21 March 2020 to report the bang to his head at the prestart debrief at the end of his shift. Much of the evidence focused on whether or not prestart debriefs were held at the end of each shift. Mr Linton denies that shift debriefs ever occurred. In support of this assertion he tendered evidence of a text exchange with Mr Jake Fife (Mr Fife), in which Mr Fife indicates that a requirement to sign off was introduced in response to, and following, Mr Linton’s dismissal. 116
[139] The evidence reveals that sign offs did occur, 117 and that a sign off sheet was provided on the reverse side of the Prestart/Debrief template form. A review of the Prestart/Debrief Forms for 21 March 2020 reveals that Mr Linton signed on at 5.40am and signed off that day at 5:40pm. The Prestart/Debrief template form prompts the supervisor to review incidents and accidents from the previous day and confirm that all team members are fit for work. The evidence indicates that this is in fact what the supervisors did.118
[140] Even if a prestart debrief did not occur there were numerous opportunities for Mr Linton to report the bump to his head and the symptoms in his hands, far earlier than he did.
[141] Altrad submits that reportable symptoms first appeared when Mr Linton awoke on the morning of 22 March 2020 with tingling in his hands. Although, I note, that Mr De Brower’s evidence is that Mr Linton had been complaining of sore hands in the two or three weeks prior to the shutdown. 119
[142] Mr Linton contends that he reported that his hands were sore at his first opportunity; at the start of shift on 23 March 2020.
[143] The evidence of Mr Rankin and Mr Wyatt is that Mr Linton’s symptoms were not reported until the prestart briefing on 25 March 2020. This is consistent with the evidence of the two BHP supervisors, Mr Daly and Mr Levesque, which is further corroborated by the BHP security data.
[144] It is Mr Rankin’s evidence that he was not made aware of an arrangement between Mr Linton and his co-workers under which Mr Linton modified his work so that he would only perform labouring duties on 23 March 2020 and 24 March 2020. I note that Mr De Brower has no recollections of this occurring. If in fact it was necessary to modify his work duties this would suggest that Mr Linton’s symptoms were worsening on 23 March 2020 and 24 March 2020, and that he failed to report this.
[145] The evidence also suggests that Mr Linton’s symptoms worsened, given the need for him to take medication.
[146] The evidence of both sides is consistent in relation to the steps taken by Altrad supervisors to seek medical assistance for Mr Linton on 25 March 2020, 27 March 2020 and 29 March 2020. It is agreed that on each of these dates the Altrad supervisors promptly took steps the same day to facilitate Mr Linton receiving appropriate medical care, and even on two of these dates personally accompanying him to see health professionals. That his supervisors would not inquire about, or that they would ignore reports of worsening symptoms, on other days between 21 March 2020 and 29 March 2020 seems highly implausible. It appears most likely to me that Mr Linton decided to ‘soldier on’, despite his symptoms worsening, requiring him to modify his duties and take pain medication.
[147] Mr Linton asserts that the site supervisors never encouraged the reporting of minor physical contact with parts of the plant or equipment and it was not part of the workplace culture to report such incidents.
[148] The evidence of Mr Daly is that it is expected that all injuries that are sustained at the mine-site are reported to line leaders. His evidence is also that near miss events in which no injury was sustained, must also be reported. 120
[149] The evidence of Mr Levesque is that it is BHP’s expectation that all injuries and illnesses get reported, including any pre-existing injuries, and that the following process is observed: 121
“The process that is followed if someone is injured on site will usually be that the manager is called in the first instance, and the injured person is taken to the ESO on site. The relevant superintendent will be informed of everything. The incident will then be assessed as to whether it is recordable - but the expectation is that everything is reported in the first instance.”
[150] Mr Levesque says that: 122
“Reporting of incidents are a regular topic of discussion in training and prestart meeting. I recall that this had been quite regularly discussed in our prestarts in and around March 2020 because of other incidents that had happened on site around the time.” 123
[151] When asked at the Determinative Conference whether he reports bumps in the workplace Mr Wyatt said: 124
“But we’ve had a report culture out at Whaleback which we have had things reported. We have hazard reports given to us on a daily basis from the maintenance crew and the signage crew that we had where me and Nick wherever supervising report hazards on a daily basis. So yes we report hazards.”
[152] In response to questioning from Mr Linton at the Determinative Conference Mr Buncle said:
“PN917 Look, direct question. Scaffolders. Do they bump their heads? Yes.
PN918 Or hit their arms and don't report it? I wouldn't say they don't report it, but if you do hit your head or your arms, it's normal practice to report it.
PN919 Normal practice, okay? Yes, to report it.”
[153] Mr Marurai and Mr De Brower both say that they have never hit any part of their body while working at the mine site and have not sustained an injury. They say they have never failed to report an injury. They also say that if an injury or incident occurred then they would report it. 125
[154] In an email to Mr Hunter on 20 April 2020, Mr Linton himself acknowledged that: 126
“BHP continually request us to report any work-related injuries”
[155] Mr Wyatt’s evidence is that the requirement to report all incidents and injuries is embedded in prestart briefings.
[156] Mr Linton submits that the list of BHP incidents reported between 1 January 2019 and the 19 of April 2020 supports his submission that the types of incidents and injuries he was involved in, simply were not reported.
[157] A review of the Whaleback Mine Site Incident and Accident Report reveals that minor injuries and near miss events were reported. 127
[158] Under cross-examination, Mr Hunter was able to identify several incidents similar in nature to those in which Mr Linton was involved: 128
a. 9 May 2019 – Scaffolder woke up with back discomfort;
b. 12 May 2019 – Scaffolder struck leg on opening door of truck whilst performing dynamic leg stretches (pendulums); and
c. 24 May 2019 – Contractor has bumped his forehead into fixed ledger hard rail whilst entering scaffold.
[159] The record shows that the above incidents were reported on the same day, unlike any of the incidents that Altrad says Mr Linton was obliged to report.
[160] The evidence is that Mr Linton banged his head between 9.00am and 9.30am on 21 March 2020 and that he experienced neck stiffness that afternoon. He concedes that he did not report the incident or the neck stiffness to an Altrad supervisor. In fact, his evidence is that he took a conscious decision not to do so because his supervisor had recently been disciplined for his handling of an OHS matter. Altrad only discovered that the incident occurred when Mr Linton reported the incident to a BHP medic some eight days later.
[161] The evidence is that Mr Linton woke up with tingling in his hands on 22 March 2020, and that he experienced pain and swelling in his hands on 23 March 2020 and 24 March 2020, such that it was necessary to modify his work. I am satisfied that he did not report the symptoms until 25 March 2020.
[162] The evidence supports the conclusion that the pain and swelling to Mr Linton’s hands was not reported as soon as it appeared, as he has contended. Nor am I satisfied that he reported the worsening of his symptoms in a timely manner.
[163] The BHP Site Rules and the Altrad Safety Golden Rules clearly require the reporting of incidents and injuries, in a timely manner, and make clear the disciplinary outcomes for a failure to do so.
[164] It is well settled that a substantial and wilful breach of a policy will “often, and if not usually” constitute a “valid reason” for a dismissal. 129 Whether a breach of a policy constitutes a valid reason will depend on the character of the policy, the nature of the breach and the importance of the policy to the employer.130
[165] In addition to any statutory obligation to do so, I am satisfied that the requirement to report incidents and injuries in the BHP Site Rules and Golden Rules is lawful and reasonable.
[166] The present case involves identified breaches of rules and procedures which have the potential to affect the health, safety and welfare of Mr Linton and his co-workers. The ability of an employer to enforce its safety procedures is well settled. It is also accepted that “it is not necessary for someone to be injured or for there to be a near miss because of an employee’s failure to follow a safety procedure, for that failure to be viewed as a serious breach of the employee’s obligations”. 131
[167] The health, safety and welfare of employees are of particular importance to Altrad as a provider of services in the heavy industrial environment where reporting of incidents is paramount and key to the prevention of harm for employees. Reporting such incidents provides a proper opportunity for Altrad to exercise due care and satisfy its work health and safety obligations to its employees. Mr Linton’s failure to report the incidents and injuries denied Altrad this opportunity. Any failure by Altrad to properly discharge its health and safety obligations has the ability to significantly impact the profitability and viability of Altrad’s business.
[168] Having regard to the reasons I have referred to above, I find that there was a valid reason for Mr Linton’s dismissal, which was related to his conduct.
[169] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,132 and in explicit,133 and plain and clear terms.134
[170] In Crozier v Palazzo Corporation Pty Ltd135 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:136
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[171] Altrad say that the reasons for Mr Linton’s dismissal were clearly put to him in the Show Cause Letter.
[172] Mr Linton points out that the Dismissal Letter says the reason for his dismissal was that he breached the Altrad Golden Safety Rules, however he says that he was never provided with a copy of this document and notes that it was not mentioned in the Show Cause Letter. He also says that the Dismissal Letter says that the allegation that ‘A subsequent opportunity was provided to you on the 21 March 2020 during the end of day debrief to report the banged head incident that had occurred earlier that day’, was also not put to him in the Show Case Letter.
[173] The reasons for dismissal relied on by Altrad at the Determinative Conference are framed slightly differently in the Show Cause Letter, Allegation Email and the Dismissal Letter.
[174] That Mr Linton failed to report banging his head on low hanging scaffolding on 21 March 2020 until 29 March 2020 was plainly and clearly put to Mr Linton in the Show Cause Letter, Allegation Email and Dismissal Letter. The Show Cause Letter and the Allegation Email identify this conduct as a breach of the BHP Site Rules. The Dismissal Letter identifies it as a breach of Altrad Golden Safety Rules.
[175] I therefore find that Mr Linton was notified that failing to report banging his head on low hanging scaffolding on 21 March 2020, in breach of the BHP Site Rules, was a reason for his dismissal before the decision was made to terminate his employment.
[176] It was not until after his dismissal that Altrad clearly put to Mr Linton that a reason for his dismissal was that failing to report banging his head breached the Altrad Golden Rules. I therefore find that Mr Linton was not notified of this reason for his dismissal before the decision was made to terminate his employment.
[177] That Mr Linton failed to report pain and swelling in his hands and worsening symptoms in breach of the BHP Site Rules was plainly and clearly put to Mr Linton in the Show Cause Letter, Allegation Email and the Dismissal Letter. The Show Cause Letter and the Allegation Email identify this conduct as a breach of the BHP Site Rules. The Dismissal Letter identifies it as a breach of the Altrad Golden Safety Rules.
[178] I therefore find that Mr Linton was notified that failing to report pain and swelling in his hands and worsening symptoms, in breach of the BHP Site Rules was a reason for his dismissal before the decision was made to terminate his employment.
[179] It was not until after his dismissal that Altrad clearly put to Mr Linton that a reason for his dismissal was that failing to report banging his head breached the Altrad Golden Safety Rules. I therefore find that Mr Linton was not notified of this reason for his dismissal before the decision was made to terminate his employment.
[180] Although he was not expressly informed that his conduct was considered to be in breach of the Altrad Golden Safety Rules, the BHP Site Rules and the Altrad Golden Safety Rules contain equivalent obligations. Namely that, injuries and incidents must be reported. I note that Mr Linton also has a separate statutory obligation to report hazards in the workplace even without a common law obligation to do so, by way of company policy.
[181] I am satisfied that Mr Linton was notified of some of the reasons for his dismissal prior to the decision to dismiss being made in explicit and plain and clear terms. To the extent that he was not made aware of all of the reasons, I am not satisfied that this makes his dismissal otherwise unfair.
[182] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.137
[183] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.138 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.139
[184] Altrad submit that Mr Linton was given an opportunity to respond to any reason related to his capacity or conduct and that he accepted that opportunity by providing two separate responses on 22 April 2020 140 and on 24 April 2020.141
[185] Mr Linton submits that the Dismissal Letter was the first occasion that Altrad put to him that a reason for his dismissal was that he breached the Altrad Golden Safety Rules and that therefore he did not have an opportunity to respond to this reason prior to the decision to dismiss him being made. Further, Mr Linton submits that the decision to dismiss him was made in advance of him providing his Show Cause Response and/or before Altrad had properly considered it.
[186] It was not until after his dismissal that Altrad clearly put to Mr Linton that a reason for his dismissal was that he breached the Altrad Golden Safety Rules. He, therefore, did not have an opportunity to respond to this reason prior to the decision to dismiss him being made. He did however make submissions with respect to this ground of reason at the Determinative Conference. For the reasons outlined earlier in this decision, I am satisfied that he did breach the Altrad Golden Safety Rules. There is nothing in the submissions which he has made which appear likely to have led to a different result if he was provided with the opportunity to respond to this reason for his dismissal. I am therefore satisfied that the failure to provide him was an opportunity to respond to this reason does not, of itself, make his dismissal unfair.
[187] To support the assertion that the decision to dismiss him was made as early 12 April 2020 Mr Linton points to the information that Mr Grimshaw had given him on 16 April 2020 that Mr Wyatt had mentioned in a text conversation that Mr Linton had got the 'flick'. 142
[188] However, in Mr Wyatt’s witness statement he confirms that the last involvement he had with Mr Linton in a work capacity was on or around 29 March 2020 and that he did not have any involvement in the decision to terminate Mr Linton’s employment. There appears to be no basis on which Mr Wyatt could have known on 16 April 2020 whether or not Mr Linton had in fact been dismissed.
[189] Mr Linton also says that on the 27 April 2020, Mr Buncle informed him that he had been given instructions by HR to clear out Mr Linton’s camp site permanent room on 24 April 2020. 143
[190] However, in the text exchange between Mr Linton and Mr Buncle, on 27 April 2020, when directly asked whether Mr Buncle had been told that Mr Linton had been sacked, Mr Buncle replied that: 144
“Nah Scott said they will allocate you on other jobs”.
[191] Mr Buncle’s evidence is that clearing out a room of an employee when they had been absent for more than a full swing was not unusual, or necessarily indicative that the employee has been dismissed.
[192] Furthermore, the evidence is that Mr Hunter did not recommend that Mr Hall put Mr Linton through a disciplinary process until 17 April 2020, after Mr Linton was declared fully fit on 15 April 2020. The evidence is also that Altrad were still considering Mr Linton’s Show Cause Response on 29 April 2020. A separation certificate was issued on 29 April 2020 only at Mr Linton’s repeated request. 145
[193] Based on the evidence before me I am satisfied that the decision to dismiss Mr Linton did not occur before he had the opportunity to provide a response to the Show Cause Letter and Altrad had considered that response.
[194] In all the circumstances, I find that Mr Linton was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made and to the extent that he did not, that of itself does not make his dismissal unfair.
[195] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[196] Mr Linton submits that he should have been offered a support person by Mr Hunter when he was interviewed on 30 March 2020.
[197] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:146
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
[198] In any event, I am not satisfied that a discussion with Mr Hunter is properly characterised as a discussion relating to ‘Mr Linton’s dismissal’. Rather the meeting was a preliminary step to the formulation of allegations which were ultimately put to Mr Linton at a later date.
[199] Ultimately, no disciplinary discussion occurred because of concerns about the unfolding COVID-19 pandemic and because Mr Linton wished to record the meeting. Instead the disciplinary discussion took place by way of a written show cause process.
[200] Mr Linton had the ability to seek out support or assistance when responding to the Show Cause Letter.
[201] As such, I find that Altrad did not unreasonably refuse to allow Mr Linton to have a support person present at discussions relating to his dismissal.
[202] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
[203] Where an employer is of a substantial size, has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.147
[204] Altrad is a large employer with access to dedicated human resource personnel with employment law expertise.
[205] I am satisfied that the procedures followed by Altrad were appropriate having regard to the size of its enterprise.
[206] This factor is therefore neutral.
[207] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”148
[208] Altrad’s enterprise did not lack dedicated human resource management specialists and expertise.
[209] This factor is therefore neutral.
[210] Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant.
[211] Mr Linton submits that the FWC should take into account that he was not afforded natural justice or a fair go because he says Altrad made the decision to terminate his employment on or before 12 April 2020 which was before Altrad had the opportunity to consider the Show Cause Response he provided on 24 April 2020. For the reasons set out earlier in this decision I do not accept that the decision to dismiss him was made before Altrad considered his Show Cause Response.
[212] Mr Linton also submits that Mr Hunter engaged in a fishing expedition to create evidence to dismiss him when Mr Hunter conducted the safety investigation interview on 30 March 2020. In addition, Mr Linton submits that the investigation conducted by Mr Hunter was not best practise and therefore was invalid and therefore, the notes from that meeting should be inadmissible as evidence because:
a. Mr Hunter did not give his full attention to the task of preparing the notes and consequently the notes are incoherent, non-sequential and not an accurate reflection of the matters which were discussed;
b. Mr Linton was not given the opportunity to read and amend the notes at the time;
c. Mr Linton was only given access to the notes 21-days after they were made and only four hours before his scheduled disciplinary hearing;
d. Mr Linton did not have a witness present or the opportunity to take notes at the time the interview occurred; and
e. Mr Linton was not informed that the interview might result in disciplinary action.
[213] While businesses should aim for best practise in the conduct of workplace investigations the reality is that those conducting investigations in the workplace are not necessarily always trained investigators or lawyers, often have limited resources available to them and typically have other tasks and duties to concurrently perform. The investigation conducted by Altrad was typical of workplace investigations. It was not so inadequate to make it procedurally unfair. There was not crucial evidence revealed at the Determinative Conference that was overlooked in the investigation that would have been likely to change the outcome of the investigation.
[214] I accept Altrad’s explanation that the reason for the delay in providing the notes of the meeting was to allow Mr Linton the opportunity to recover and be declared fit for work, before Altrad proceeded with the disciplinary investigation.
[215] When he was given the opportunity to make amendments to the notes of the meeting Mr Linton made only minor amendments which did not fundamentally change the substance of the statement. The notes are relatively short and therefore should not have required a lengthy period of review. Mr Linton’s own document which purports to be an accurate reflection of the discussion, does little to change the substance of the discussion as recorded in the notes prepared by Mr Hunter.
[216] The scheduled show cause meeting did not proceed and was replaced with a written show cause process, therefore Mr Linton had longer than four hours to consider the content of the notes of the meeting and compare them to his own recollections of the discussion.
[217] Whether or not Mr Linton was informed that the safety investigation meeting might result in disciplinary action, he had an obligation to tell his employer the truth. It is unclear how such a warning might have changed the outcome of the investigation and make it unfair for that reason.
[218] Mr Linton also alleges that he was denied procedural fairness because he was given only two days to provide his Show Cause Response. The Show Case Letter issued on 22 April 2020 required a response by close of business on 27 April 2020. I am satisfied that this timeframe did not deny Mr Linton any procedural fairness.
[219] Mr Linton also submits that his dismissal is unfair because the medical evidence establishes that the soreness in his hands was caused by hepatitis and not the bang to his head. Altrad only became aware of the incident in which he bumped his head because of the symptoms in his hand, however that these symptoms were not caused by the bump to the head is irrelevant and does not of itself make his dismissal unfair. Mr Linton was dismissed for failing to report incidents and injuries. Mr Linton was involved in an incident at work in which he bumped his head. The evidence is that he was diagnosed by health professionals as having suffered injuries, as a consequence of bumping his head. Even if he did not suffer a neck injury, for his own and others safety he is obliged to report workplace hazards regardless of whether a hazard has yet caused any injury. That the scaffolding was at a height that he hit his head might suggest that it posed a hazard which required some safety action, for example a hazard sign. Whether or not the symptoms in his hands were work related or not to the extent that the symptoms were so severe that they required the modification of his work duties, it was important that they were reported to his employer so that they could assess his fitness for work.
[220] Mr Linton also submits that Altrad has been inconsistent in the disciplinary action it has taken against him as compared to Mr Wyatt, who received a written warning for delaying 12 hours in reporting a safety incident. I am satisfied that Mr Wyatt’s situation can be distinguished from Mr Linton’s. The evidence is that Mr Wyatt intended to report the incident and the 12-hour delay arose because a client representative was not on-site. Mr Linton took eight days to report the incident where he hit his head and the subsequent neck stiffness, and several days to report worsening symptoms in his hands.
[221] Altrad submits that a matter that the FWC should take into account is that Mr Linton was engaged on a casual basis ‘as and when required’ and for a relatively short length of time. The evidence is that Mr Linton’s contract was deliberately set up so that Mr Linton could perform a mixture of shutdown work and maintenance work as and when required and that he had no reasonable expectation of permanent continuous work.
[222] The evidence is that a number of positions Altrad have to fill on the BHP WAIO Contract varies widely. In January 2020, a busy month, Altrad made 476 placements across the seven sites. In April 2020, a quieter month, Altrad made 287 placements across the seven sites. In these circumstances, with the added impact of the COVID-19 pandemic, the likelihood of permanent continuous work for Mr Linton was quite uncertain. 149
[223] Furthermore, Altrad obtains the work under purchase orders for periods of three months at a time. Altrad’s operational and safety performance is reviewed on each occasion before BHP issues a new purchase order. There is no guarantee of Altrad retaining the BHP work from one purchase order to the next. 150 There is considerable pressure on Altrad to ensure that it meets the highest possible standards of health and safety, and this can only occur if reporting injuries and incidents is proactively enforced, if necessary by the imposition of disciplinary action.
[224] I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.
[225] I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
[226] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Linton was not harsh, unjust or unreasonable.
[227] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Linton was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.
[228] An Order 151 to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
R. Linton for the Applicant.
J. Lord for the Respondent.
Determinative Conference details:
2020.
Perth:
September 15, October 8.
Final written submissions:
Applicant, 6 November 2020.
Respondent, 20 November 2020.
Printed by authority of the Commonwealth Government Printer
<PR726992>
1 Digital Court Book, 242 – 248 (‘DCB’).
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid 4.
6 Ibid 61 – 74.
7 Ibid 75 – 82.
8 Ibid 242.
9 Ibid 43 - 51.
10 Ibid.
11 Ibid 43 – 47.
12 Ibid 44, 49.
13 Ibid 54, 59.
14 Ibid 362.
15 Ibid 83 – 91.
16 Ibid 4.
17 Ibid 28.
18 Ibid 4.
19 Ibid 28.
20 Ibid.
21 Ibid 29.
22 Ibid.
23 Ibid.
24 Ibid 30.
25 Ibid 90.
26 Ibid 48 – 51.
27 Ibid 300.
28 Ibid.
29 Ibid.
30 Ibid 301.
31 Ibid 31.
32 Ibid 48 – 51.
33 Ibid 50.
34 Ibid 29, 48 – 51.
35 Ibid 30.
36 Ibid 31.
37 Ibid 249 – 250.
38 Ibid 31.
39 Ibid 4, 250.
40 Ibid 250.
41 Ibid 300.
42 Ibid 250.
43 Ibid.
44 Ibid.
45 Ibid 300.
46 Ibid 302.
47 Ibid 31.
48 Ibid 252.
49 Ibid 87.
50 Ibid 244, 300.
51 Ibid 32.
52 Ibid 32 – 33.
53 Ibid 52 – 55, 57.
54 Ibid 251.
55 Ibid 91.
56 Ibid 33.
57 Ibid.
58 Ibid 300.
59 Ibid 33.
60 Ibid.
61 Ibid 34.
62 Ibid 34, 45.
63 Ibid 34.
64 Ibid 46.
65 Ibid 34.
66 Ibid 43 – 47.
67 Ibid 244.
68 Ibid 91.
69 Ibid 34 – 35.
70 Ibid 35, 245.
71 Ibid 245.
72 Ibid 35.
73 Ibid 245.
74 Ibid 35.
75 Ibid 246.
76 Ibid.
77 Ibid.
78 Ibid 36.
79 Ibid.
80 Ibid 306.
81 Ibid 36.
82 Ibid 253.
83 Ibid 110, 254.
84 Ibid 4.
85 Ibid 37, 127.
86 Ibid 37.
87 Ibid 121.
88 Ibid.
89 Ibid 37, 129.
90 Ibid 5, 138 – 139.
91 Ibid 138 – 139.
92 Ibid 38.
93 Ibid 135.
94 Ibid 5.
95 Ibid 40.
96 Ibid 254.
97 Ibid 330.
98 Ibid 5.
99 Ibid 185.
100 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd (Unreported PR915674 AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
101 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359,373 (Starke J), 377 – 378 (Dixon J).
102 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
103 Ibid.
104 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
105 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
106 King v Freshmore (Vic) Pty Ltd (Unreported Print S4213 AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].
107 DCB (n 1), 29.
108 Ibid 30.
109 Ibid 313 – 319.
110 Ibid 317.
111 Ibid 334.
112 Ibid 334.
113 Ibid 75 – 82.
114 Ibid 89.
115 Ibid 115.
116 Ibid 156.
117 Transcript of 15 September 2020 at PN 484, PN 983.
118 Ibid 362.
119 Ibid 58.
120 Ibid 50 – 51.
121 Ibid 46.
122 Ibid.
123 Ibid 43 – 47.
124 Transcript of 15 September 2020 at PN 460.
125 Ibid PN 457 - 459, PN 917 – 919.
126 DCB (n 1), 118.
127 Ibid 350.
128 Ibid 352.
129 B, C and D v Australian Postal Corporation [2013] FWAFB 6191, [36].
130 Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258, [54].
131 Scoffern v The Griffin Coal Mining Company [2020] FWC 3201, [210].
132 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [71].
133 Previsic v Australian Quarantine Inspection Services (Unreported Print Q3730 AIRC, Holmes C, 6 October 1998).
134 Ibid.
135 (2000) 98 IR 137.
136 Ibid 151.
137 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [75].
138 RMIT v Asher (2010) 194 IR 1, 14-15.
139 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
140 DCB (n 1), 337.
141 Ibid 340.
142 Ibid 36.
143 Ibid 40.
144 Ibid 161.
145 Ibid 168 – 172.
146 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
147 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
148 Sykes v Heatly Pty Ltd t/a Heatly Sports (Unreported PR914149 AIRC, Grainger C, 6 February 2002), [21].
149 DCB (n 1), 242 – 248.
150 Ibid.