PR960826

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.45 Appeal against decision [PR956377] and order [PR957909] issued by
Commissioner Foggo on 14 April and 10 May 2005 respectively

A Gasz
(C2005/2695)

s.170CE application for relief in respect of termination of employment

A Gasz

and

Mobil Refinery Australia Pty Ltd
(U2004/5562)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER LEWIN	MELBOURNE, 1 AUGUST 2005

Appeal against decision and order.

DECISION

[1] This is an appeal by Andrew Gasz (Mr Gasz) against a decision in PR956377 and an order of Commissioner Foggo in PR957909 in which she dismissed an application by him, made under s.170CE of the Workplace Relations Act 1996 (the Act), in respect of the termination of his employment by Mobil Refinery Australia Pty Ltd (Mobil).

[2] The appeal by Mr Gasz was made on 5 May 2005, in respect of the decision by Commissioner Foggo on 14 April 2005, in which she found that their was a valid reason for the termination of the employment of Mr Gasz. The appeal was amended, with leave of the Commission, to extend to the order made by the Commissioner on 10 May 2005.

[3] On transcript, on 20 July 2005, we announced that we have decided to grant leave to appeal, uphold the appeal and quash the decision and order of Commissioner Foggo. Having done so, we announced that we would ourselves determine the application of Mr Gasz on the materials and evidence before the Commissioner. We further announced that we had found for ourselves that the termination of Mr Gasz’s employment was not harsh, unjust or unreasonable and dismissed the application of Mr Gasz. Our reasons follow.

The Appeal

[4] In the appeal grounds raised, Mr Gasz contended that Commissioner Foggo had erred in a number of respects, primarily on the basis that the Commissioner had failed to exercise jurisdiction in that she gave no consideration to the statutory matters to which she was required to have regard in s.170CG(3)(b)-(e) of the Act.

[5] In this regard, s.170CG(3) states:

“(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and

(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(e) any other matters that the Commission considers relevant.”

[6] It is well established that the words ‘have regard to’ indicate that each must be treated as a matter of significance in the decision making process. Each of paragraphs (a) to (e) also requires the Commission to have regard to ‘whether’ a circumstance existed. Whether it existed must then be taken into account, considered and given due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. As a result, the Commission is obliged to make a finding in respect of each of the circumstances specified in s.170CG(3)(a) to (e) in so far as each of these paragraphs is relevant to the factual circumstances of a particular case.¹

[7] In her order, the Commissioner dismissed the application by Mr Gasz “in accordance with the Decision issued on 14 April 2005 [PR956377]”. Notwithstanding the fact that the Commissioner set out the terms of s.170CG(3) in her decision,² it is not evident from her decision that she did consider the matters in s.170CG(3)(b)-(e) of the Act. The Commissioner’s ultimate conclusion that “On the basis of the evidence and the submissions I find that there was a valid reason for the termination of Mr Gasz employment”.³

[8] Whilst we think it probable that Commissioner Foggo did consider the other statutory matters, having regard to the review of the evidence in her decision, as noted by Mobil in the appeal, and in light of our conclusion upon rehearing the matter, the ultimate conclusion within her decision does not support a finding to that effect.

[9] Accordingly, we find that the Commissioner erred in that she failed to have regard to s.170CG(3)(b)-(e) of the Act and failed to expressly determine whether or not the termination was harsh, unjust or unreasonable. Accordingly, we grant leave to appeal, uphold the appeal and quash the decision and order of the Commissioner. We will determine the matter ourselves, consistent with the submissions⁴ on behalf of Mr Gasz, on the evidence before Commissioner Foggo and having regard to the submissions put to the Commissioner and the submissions put on appeal.

Determination by us of the Application by Mr Gasz

Was there a valid reason for the termination related to the capacity or conduct of Mr Gasz or to the operational requirements of the employer’s undertaking, establishment or service?

[10] We find that the conduct of Mr Gasz in having other employees perform his rostered shifts for payment was fundamentally inconsistent with Mr Gasz’s contract of employment and constitutes a valid reason for the termination by Mobil of Mr Gasz’s employment. The conduct of Mr Gasz was in breach of his obligations under his personal employment contract. Mr Gasz never informed Mobil of his actions of having other employees perform his rostered shifts for payment⁵ until he became aware that the Zone Team Leader (ZTL) was aware of and disapproved of the conduct. The conduct created significant exposure of Mobil in relation to its obligations in respect of occupational health and safety, award/agreement requirements, taxation and superannuation matters.

[11] We have considered the issues raised in mitigation on behalf of Mr Gasz, but are not dissuaded by them from finding that a valid reason for the termination exists. Specifically:

• The fact that the termination followed an investigation by Mobil which arose out of Mr Gasz’s complaint of discrimination against Zone Team Leader Ferrie does not diminish the conduct of Mr Gasz. Mr Gasz did not disclose the conduct to Mobil until after he became aware, through a conversation with Mr Pham, that Mr Ferrie was aware of and disapproved of the conduct.
• Whilst there is evidence of shift swapping between operators, it is necessary to distinguish between swapping of shifts on a time-for-time basis and having other employees perform rostered shifts for payment. There is no evidence of the latter occurring beyond those instances involving Mr Gasz, other than the notes of a meeting between Mr Pham and Mr Kingshott⁶ which are, in our view, open to competing interpretations.
• Any view held by Mr Gasz that his conduct was appropriate was not properly founded and is inconsistent with his failure to advise ZTL’s of the basis of his shift ‘swaps’.
• Mr Gasz’s offer to repay shifts worked for him, time-for-time, does not diminish the conduct.
• The advice to operators by Mobil after the termination that shift swaps were only permissible on a time-for-time basis does not diminish the conduct of Mr Gasz. In our view, the characterisation of the performance of shifts for other employees for payment as a shift ‘swap’ was never reasonably open to Mr Gasz.
• The proposition that the operation of an ‘annualised salary’ justified or permitted Mr Gasz having other employees perform his rostered shifts for payment is untenable.

(b) Was Mr Gasz notified of that reason and given an opportunity to respond to any reason related to his capacity or conduct?

[12] Prior to the investigation by Mobil Security Officer Signorotto, Mr Gasz was advised that the investigation involved a potential violation of his employment contract⁷ and that he could postpone the meeting with Mr Signorotto if he wished.⁸ In the meeting with Mr Signorotto, Mr Gasz was given an opportunity to respond to matters raised or to take time to prepare a response.⁹ During a meeting with Mr Signorotto, Mr Gasz was plainly aware of the possibility that the investigation might lead to an outcome involving the termination of his employment.¹⁰ Mr Gasz was advised in the meeting of 30 July 2004 of the reasons for his termination.¹¹ Mr Gasz was advised that termination was being considered and he was afforded an opportunity to address mitigating circumstances. Mr Gatz was afforded a break in the meeting to consider his position and to consider whether he wished to have representation.¹² Mr Gasz did respond upon the resumption of the meeting.

[13] We find that Mr Gasz was notified of the reason for his termination and was afforded an opportunity to respond.

If the termination related to unsatisfactory performance by him, had Mr Gasz been warned about that unsatisfactory performance before the termination?

[14] There is no suggestion that the termination related to Mr Gatz’s performance of his work.

Did the size of the employer’s undertaking, establishment or service impact on the procedures followed in effecting the termination?

[15] Mobil did not suggest that this statutory consideration was relevant in the circumstances of this matter. In our view, there was no impact on the procedures followed as a result of the size of the business, establishment or undertaking in which Mr Gasz was employed by Mobil.

Did the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service impact on the procedures followed in effecting the termination?

[16] Mobil did not suggest that this statutory consideration was relevant in the circumstances of this matter. In our view, there was no relevant absence of specialists or expertise which impacted on Mobil’s procedures.

Are there other relevant matters?

[17] Mr Gasz raised as relevant considerations his age, 51 years, his extensive service of 20 years, his otherwise unblemished employment record, his lowly position and his willingness to rectify his error. We accept that after a very long period of employment in his particular position at Mobil and given his age, the relative difficulty in obtaining alternate employment is a relevant consideration, although the evidence is that Mr Gasz was seeking to end his employment at Mobil in any case. The fact of an unblemished employment record, other than in respect of the conduct which led to the termination of his employment, is also a relevant consideration. As noted above, we do not believe that Mr Gasz’s offer to repay shifts worked for him, time-for-time, diminishes the conduct. We will take these matters into account for the purposes of our determination of the application.

Conclusion

[18] Having regard to all of the above matters, in all the circumstances of the matter, we find that the termination of Mr Gasz was not harsh, unjust or unreasonable. The application of Mr Gasz is dismissed.

[19] Our decision to quash the decision under appeal, and then to come to what can be seen as the same conclusion, could be argued to be a decision based on form but not substance. We are alert to this interpretation. However, the Commission is required by the Act to have regard to all the factors in s.170CG(3) in deciding Mr Gasz’s application. It is, as Ms Bingham correctly pointed out, Mr Gasz’s right under the statute. Having done so, we are unable to come to a different conclusion than that which was reached at first instance.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

S Bingham, of counsel, for the appellant.

J Bourke, of counsel, for the respondent.

Hearing details:

2005.
Melbourne:
July 20.

¹ Moore J in Edwards v Giudice & Ors, 169 ALR 89; McIntyre VP, Marsh SDP and Larkin C in Chubb Security Australia Pty Ltd v Thomas, Print S2679, 2 February 2000, at paras 36-41; Ross VP, Williams SDP and Hingley C in King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000, at paras 18-20; Ross VP, Polites SDP and Smith C in Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000; Giudice J, Williams SDP and Cribb C, Annetta v Ansett Australia Ltd, Print S6824, 7 June 2000.

² Para 152.

³ Para 179.

⁴ Written submissions, at para 32.

⁵ Exhibit G1, at para 35, and transcript before Foggo C, at para 665. On the evidence, advice by Mr Gasz of shift ‘swaps’ never disclosed that his shifts were being undertaken by other employees for payment.

⁶ Exhibit M4, Tab 9.

⁷ Exhibit M1, at Tabs 23 and 24.

⁸ Exhibit M4, at para 12.

⁹ Exhibit M5, at Tab 11.

¹⁰ Exhibit M5, at Tab 12.

¹¹ Exhibit M1, at para 28 and Tab 26.

¹² Exhibit M1, at para 29.

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