| [2022] FWC 2291 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Justin Conliffe
v
Hera Resources Pty Ltd
(U2021/7752)
COMMISSIONER P RYAN |
SYDNEY, 29 AUGUST 2022 |
Application for an unfair dismissal remedy
[1] Mr Justin Conliffe (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Hera Resources Pty Ltd (Respondent), which operates the Hera Mine.
[2] The matter was heard before me on 7 December 2021. Following the hearing of the matter, the parties filed written submission in accordance with directions. The Applicant also requested the opportunity to supplement those written submissions with oral submissions. The matter was set down for that purpose on 24 February 2022.
[3] I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2) (a) of the FW Act. The Applicant was represented by Mr J Shaw of the Australian Workers Union NSW Branch. The Respondent was represented by Mr J Wells, solicitor.
[4] Witness statements were tendered from the following persons:
● The Applicant (Exhibits A1 and A2);
● Mr Ronald Cowdrey, Vice President of the Australian Workers Union NSW Branch (AWU) (Exhibit A3); and
● Mr Robert Walker, general manager of the Hera Mine (Exhibit R1).
[5] The Applicant and Mr Walker also gave evidence at hearing.
[6] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[7] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
[8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) 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.
[9] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[10] The factual background is largely undisputed and can be set out as follows.
[11] The Hera Mine is a polymetallic underground mining operation based in Nymagee in New South Wales, which is located approximately 100km from Cobar. 1
[12] The Respondent is a wholly-owned subsidiary of Aurelia Metals Pty Limited (Aurelia), which is also the parent company of Peak Gold Mine Pty Ltd (Peak). Peak operates the Peak Gold Mine, which is located approximately 8km from Cobar. 2
[13] The Hera Mine is a ‘drive-in-drive-out’ mine and the employees usually work a 14 day roster cycle with 7 days on and 7 days off. 3 The employees generally receive an ‘all-up’ salary which compensates the employee for wages and all additional allowances, overtime and loadings which may be payable under the Mining Industry Award 2020 (Mining Award), unless otherwise specified in the employment contract.4 Furthermore, the employees receive accommodation and board for the length of their shift cycle, which includes breakfast, lunch, and dinner each day, and the use of company vehicles to travel to and from the mine.5
[14] By contrast, at the Peak Gold Mine employees are typically residential and live in, or near, Cobar. Employees at the Peak Gold Mine do not receive any board or meals 6, but do receive an on-call allowance in addition to their salary because if an employee is called out, it requires them to return to the Peak Gold Mine from their place of residence, which is distinct from the Hera Mine where employees generally live on-site.7
[15] The Applicant was employed by the Respondent at the Hera Mine from 7 August 2020 until 19 August 2021 as a level one shift electrician. 8
[16] The terms and conditions of the Applicant’s employment were set out in an employment contract dated 19 May 2020 (Employment Contract) 9, which relevantly provides as follows:
6. DUTIES
6.1 General Duties
The Employee will
(a) perform the services required by the Company with due care, diligence and skill in an orderly and workmanlike manner;
(b) comply with all reasonable requirements, policies and procedures and lawful directions of the Company in connection with the performance of the services;
(c) use best endeavours to promote, develop and extend the business of the Company;
(d) work the hours the Company reasonably requires the Employee to work, devoting substantially all of the Employee’s time and attention during business hours to performing the Employee’s duties. These hours may be outside normal business hours and at such places as the Company may require;
(e) comply with any legislation in respect to equal employment, affirmative action and anti-discrimination; and
(f) take reasonable care for the health and safety of themselves and other persons who may be affected by the Employee’s actions or omissions. The Employee also has a duty to co-operate and comply with any statutory duty or requirement concerning health and safety at work. In particular, the Employee must acquaint themselves with and follow all health, safety fire, emergency rescue and PPE policies and procedures at all times.
(g) comply with reasonable requests by the Company to complete required forms and declarations for taxation purposes.
….
6.3 Hours of work
The Employee will be required to work in accordance with the Hours of Work/Roster applicable to their position at their primary work location and as set out in Schedule 1
6.4 The roster and hours of work may be varied from time to time to meet the operational requirements of the Company.
…
7.1 Employee to receive remuneration
The Company will pay to the employee a Total Fixed Remuneration (TFR) as specified in Schedule 1 and is comprised of the Annual Base Salary (Salary) and Employer Superannuation Contributions. Compensation for all overtime, allowances, loadings, public holidays worked and penalty payments has been included in the remuneration. No additional remuneration is payable for additional hours worked.
…
15.1 Termination by the Company
The Company may at its sole discretion terminate the Employment in the following manner:
(a) by giving not less than one month written notice to the Employee
(b) summarily without notice if:
(i) the Employee commits or becomes guilty of any Gross Misconduct; or
(ii) the Employee is convicted with any major criminal offence which brings the Company or any of its Related Bodies Corporate into lasting disrepute; or
(iii) in accordance with clauses 19.3, 20.3 or 21.2.
…
SCHEDULE 1
…
Roster: The roster will be on a rotational work cycle of 28 days, which includes rostered days at work and rostered days off. The roster cycle will be made up of:
● 7 consecutive day shifts rostered at work
● 7 days rostered off
Hours of work: 12 hours per rostered shift
Shift start/End times:
- First Day Shift: 12:00pm – 6:00pm
- Day Shift: 6:00am – 6:00pm
- Last Day Shift: 6:00am – 12:00pm
This means that the normal hours of work for this position will be an average of 48 hours per week.
Remuneration:
Annual Base Salary (Salary) (Full Time Equivalent): $104,142.00
Employer Superannuation Contributions (currently 9.50%) $9,893.49
Total Fixed Remuneration per annum $114,035.49
[17] Shortly after commencing employment, the Applicant was advised by another shift electrician who was mentoring the Applicant, that shift electricians are required to be on-call during their shift cycle and that the Applicant was required to be on-call from the next swing shift. 10 The Applicant states this was the first time he became aware of the on-call requirement and that it was not discussed at his pre-employment interview.11
[18] It is not in dispute that the contract of employment for at least one other shift electrician included the words “call outs may be required if so a mandatory 10 hour break is required before returning to site” in Schedule 1 under the heading Shift start/end times. 12
[19] The on-call requirement was implemented to ensure that any out of hours electrical issues were able to be addressed by a shift electrician and was set up as follows:
● The employee on-call for the evening was assigned the on-call telephone;
● If there was an electrical issue, the employee on-call would be contacted and attend to the issue;
● While on-call the employee is expected to be contactable, able to respond in a reasonable time-frame, and remain fit for work. This means an on-call employee responding to a call out must have a zero blood-alcohol reading, which is tested at the entry to the mine site; and
● An employee responding to an on-call electrical issue is provided with a 10 hour break before beginning their next shift without any loss of pay. 13
[20] Over each 28 day roster cycle, the Applicant was on-call on four out of seven days in the first working week, and five out of seven days in the second working week. 14 During each working week, the Applicant lived on site at the Hera Mine. Upon being advised that it was a requirement to be on-call, the Applicant complied with the on-call requirement until 29 April 2021.15
[21] While the Applicant was ‘not happy’ about being on-call, the Applicant felt he had no choice because he was still within his probation period and there was an informal arrangement whereby those on-call during a particular roster week could finish early on the last day if there was a call out. 16
[22] Approximately three months after the commencement of the Applicant’s employment, the informal arrangement was removed, and employees could no longer finish early. 17 Despite this, the Applicant continued to comply with the on-call requirement.
[23] In March 2021, the Applicant had a discussion with Ms Tanya Fenton, the Respondent’s human resources manager, during which he advised Ms Fenton that it was unfair to be on-call for 24 hours per day, four days per week. Ms Fenton advised the Applicant to put his concern in writing to his immediate manager, Mr Andrew Crawford. 18
[24] On 22 March 2021, the Applicant sent correspondence to Mr Crawford, Mr Steve Neale, the Respondent’s process superintendent, and Ms Fenton. The correspondence requested the implementation of a policy or procedure in relation to employees required to be on-call. The Applicant attached a copy of the maintenance call out policy from the Peak Gold Mine and suggested it be used as a guide to work off. 19
[25] On 7 April 2021, having not received a response to his email dated 22 March 2021, the Applicant sent correspondence advising that as there has not been a resolution, he will no longer hold the call out phone after hours as of 29 April 2021. 20
[26] Later that day, the Applicant attended a meeting with Ms Fenton and Mr Neale during which he was advised that he was required to be on-call and have the on-call telephone with him after hours. The Applicant requested the implementation of an ‘on-call allowance’ similar to the Peak Gold Mine. The Applicant was advised that the Hera Mine is drive-in-drive-out and the Peak Gold Mine is residential. Further, the Applicant was shown a copy of the Employment Contract with reference to clause 7.1 and Schedule 1. The Applicant was advised that disciplinary action will be taken if the Applicant refuses to comply with the on-call requirement. 21
[27] On 22 April 2021, the Applicant sent correspondence to Mr Crawford, Mr Neale and Ms Fenton. The correspondence repeated the request for the implementation of an on-call coverage arrangement to commence from 29 April 2021. The Applicant restated that from 29 April 2021 he will not be answering the on-call telephone after his rostered shift is complete. 22
[28] On 29 April 2021, the Applicant attended a meeting with Mr Crawford, Mr Neale and Mr Jeff Smith, a shift electrician. During this meeting, Mr Crawford confirmed the requirement that the Applicant have the on-call telephone after hours for his allocated days and that no additional payment will be made for being on-call, again referencing clause 7.1 of the Employment Contract. The Applicant requested the implementation of a policy like the Peak Gold Mine and that he would comply with the direction if he were compensated. Mr Crawford confirmed that there would not be any additional payment and that if the Applicant refused to be available on-call, formal disciplinary action would be taken. 23
[29] The Applicant refused to take the on-call telephone for the period between 29 April 2021 and 2 May 2021. 24
[30] On 3 May 2021, Mr Neale issued a written warning to the Applicant. In relation to the conduct considered unacceptable, the written warning states:
“After several discussions with Justin, advising that clause 7.1 of the employment contract states:
‘The Company will pay to employee a Total Fixed Remuneration (TFR) as specified in schedule 1 and is comprised of the annual base salary (Salary) and Employer Superannuation Contributions. Compensation for all overtime, allowances, loadings, public holidays worked and penalty payments has been included in the remuneration. No additional remuneration is payable for additional hours worked’.
Justin was rostered to address a breakdown or any electrical fault requiring an electrician after hours. Justin did not take the on-call phone, therefore not fulfilling the requirement of the role, leaving the company short of the necessary trade qualified persons to address after hours breakdowns or electrical faults.
Justin did not follow reasonable directives from senior management.” 25
[31] In the section of the written warning titled, employee explanation for conduct, it states:
“Justin advised that the on-call requirement should be stated in the position description and schedule 1 of the employment contract.
Justin also states on-call should be additionally compensated.” 26
[32] The written warning contemplates further disciplinary action in accordance with the Respondent’s disciplinary procedure. 27 The written warning was signed by Mr Neale and the Applicant.28
[33] On 13 May 2021, the Applicant returned to Hera Mine for his rostered shift. During that shift, the Applicant had a discussion with Mr Crawford during which the Applicant was directed to take the on-call telephone that evening. The Applicant refused. 29
[34] On 14 May 2021, Mr Neale issued a written warning to the Applicant. In the section of the document titled, conduct considered unacceptable, it states:
“Justin was rostered to address a breakdown or any electrical fault requiring an electrician after hours. Justin did not take the on-call phone, therefore not filling the requirement of the role, leaving the company short of the necessary trade qualified persons to address after hours breakdowns or electrical faults.
Justin did not follow a reasonable directive from senior management requesting that he be ‘on call’ that night.” 30
[35] In the section of the written warning titled, employee explanation for conduct, the following is recorded:
“Justin advised that the on-call requirement should be stated in the position description and Schedule 1 of the employment contract.
Justin also states that he considers on-call should be additionally compensated.” 31
[36] In the section of the written warning titled, potential further action and consequences of unacceptable conduct, it states:
“This warning is provided as a final warning regarding Justin’s refusal to fulfil the on-call requirement of the electrician’s role at Hera.
Ongoing refusal by Justin to make himself available on-call as per the electrical callout roster will result in further disciplinary action as per the disciplinary procedure, up to and including termination of employment.” 32
[37] The written warning was signed by Mr Crawford and the Applicant. 33
[38] On 17 May 2021, Mr Cowdrey sent correspondence to Mr Mathew Best, the Respondent’s human resources superintendent, posing a series of questions to the Respondent relating to the Applicant’s contractual requirement to comply with the on-call arrangement, and why there is no additional allowance or payment for a call-out. Mr Cowdrey stated that the AWU expects no further disciplinary action will be taken until the on-call issue is resolved. 34
[39] On 26 May 2021, Mr Best provided a response to Mr Cowdrey’s correspondence in which Mr Best:
● referred Mr Cowdrey to clauses 6.1 (a), (b) and (d) of the Employment Contract;
● stated that the on-call requirement was taken into consideration in finalising the Applicant’s remuneration package;
● observed that there was no on-call allowance in the Mining Award; and
● confirmed that the on-call requirement is a reasonable requirement and a lawful direction which the Respondent expects the Applicant to comply with. 35
[40] On 31 May 2021, and in response to a request from Mr Neale, the Applicant sent correspondence to Mr Best setting out the reasoning for his objection to the on-call requirement, which, in summary, stated:
● The on-call arrangement was not mentioned in his pre-employment interview;
● The Employment Contract and position description do not expressly refer to the requirement to be on-call;
● The on-call requirement should be set out in the hours of work or shift start/end times section of Schedule 1 of the Employment Contract;
● That it seems unusual that it is not specified in writing, along with the Respondent’s expectations in terms of fit for duty, remaining on-site, and how fatigue will be managed once called out;
● That Aurelia should adopt a consistent approach across all of its sites; and
● That he was concerned that if an incident or injury occurs during a callout he may not be ‘covered’ as it is not mentioned in the Employment Contract or his position description, and callouts are not initiated or directed by his immediate supervisor. 36
[41] On 1 June 2021, Mr Best sent correspondence in response to the Applicant, which in summary, stated:
● The requirement that the Applicant fulfils the on-call expectations is outlined in section 6.1 (a), (b), and (d) of the Employment Contract;
● The Respondent’s fatigue management procedures are outlined in the Working Hours, Shifts and Rosters Procedure, and in the event of a call out, a minimum 10 hour break will apply before an employee is required to attend work after a call out event;
● The Respondent and Peak operate site specific policies;
● The requirement to attend to a call out is a reasonable and lawful direction from your Supervisor, even though a particular call out may be initiated by a Processing Supervisor;
● An employee responding to a call out is fully covered by the Respondent in the event of an incident or injury;
● That while there does not appear to be any evidence of the Applicant being treated unfairly, the Applicant is invited to provide any examples of unfair treatment so that they can be properly investigated;
● The on-call requirement applies to both Electrical and Mechanical personnel and has been an expectation of the Applicant’s employment since commencement;
● The Respondent has addressed where the on-call requirements are written in the Employment Contract, with reference to clause 6.1; and
● That refusing to comply with the on-call requirement, may result in further disciplinary action. 37
[42] On 4 June 2021, the AWU filed an application to deal with a dispute in the Commission (Dispute Application) in relation to the Respondent’s direction that the Applicant be on-call. 38
[43] On 10 June 2021, the Respondent sent correspondence to the AWU and the Applicant confirming receipt of the Dispute Application and that a response was being prepared. 39 That correspondence also stated:
“… I want to clarify our position regarding Justin’s on call arrangements while his dispute is before the Fair Work Commission.
Clause 30 of the [Mining Award] confirms that:
● work must continue while the dispute progresses; and
● an employee must not unreasonably fail to comply with any direction about performing work that is safe and appropriate.
We expect that Justin will comply with our expectations in relation to on call arrangements. He has been subject to disciplinary action already in relation to the issue, and nothing changes as a result of the Fair Work application.”
[44] On 11 June 2021, at the commencement of the Applicant’s next rostered cycle, Mr Neale asked the Applicant to take the on-call telephone for that evening. The Applicant refused and was given written notice that he was suspended from duties on full pay. 40 The notice of suspension relevantly stated:
“This letter is to advise you of your suspension from the workplace on full pay, effective Friday 11th June 2021, due to your refusal to comply with reasonable requirements and lawful directions from Senior Management to fulfill the on-call requirement of your position as Shift Electrician.
As per section 6.1 of your employment contract, you are required to follow reasonable requirements and lawful directions:
6.1 General Duties
The Employee will:
(a) perform the services required by the Company with due care, diligence and skill in an orderly and workmanlike manner;
(b) comply with all reasonable requirements, policies and procedures and lawful directions of the Company in connection with the performance of the services;
(d) work the hours the Company reasonably requires the Employee to work, devoting substantially all of the Employee’s time and attention during business hours to performing the Employee’s duties. These hours may be outside normal business hours and at such places as the Company may require
After several meetings, you have continued not to follow reasonable requirements and lawful directions from senior management. Due to these actions, the company has been left short of the necessary trade qualified persons to address after hours breakdowns and/or electrical faults and you have failed to fulfill the requirements of your position as Shift Electrician.
You will be provided with further information in writing of a meeting for you to respond. Please be aware that if substantiated, the allegations may amount to breaches of your contractual obligations and Hera Mines policies and procedures.”
[45] On 24 June 2021, the Commission conducted a conference in relation to the Dispute Application and while the conference did not result in the resolution of the dispute, the parties agreed to give the matter further consideration. 41
[46] Later in the day, there was an exchange of correspondence by email between the AWU on behalf of the Applicant and the Respondent’s legal representatives (KWM). 42 The relevant parts of that exchange are:
At 4:04pm, the AWU sent the following correspondence to KWM:
“… Specifically we refer to your statement that Mr Conliffe’s suspension will come to an end if he undertakes to comply with your ‘on-call’ direction.
I will receive directions from him on this matter on Monday. I will be in contact on that day. We ask that you take no further action on this matter until COB.”
At 5:11pm, KWM sent the following reply:
“… Aurelia confirms its position that, if Justin is prepared to commit to the on-call arrangement while this dispute remains pending, the disciplinary action would be taken no further. It seems the most practical way of preserving the status quo while the dispute gets resolved; and it asks of Justin nothing more than he has been doing. If the dispute is resolved in Justin’s favour (or otherwise resolved), he will have the benefit of that outcome from a position of guaranteed and ongoing employment.
The other thing which might assist is clarity about what alternative arrangement you consider to be reasonable. As we understand your position, you do not object to an on-call arrangement in principle; your issue is with the terms.”
At 5:15pm, the AWU responded:
“… I understand your proposal. However I am seeking an agreement that no further disciplinary action be taken against Justin Conliffe prior to COB on Monday.”
[47] On 28 June 2021, the AWU sent correspondence confirming the Applicant’s position as follows:
“If Aurelia Mine is prepared to have the same arrangements as you do in the Peak Gold Mines for all employees who are on-call, Justin Conliffe will work as per that arrangement.” 43
[48] On 2 July 2021, KWM responded as follows:
“…We understand from your email that Mr Conliffe is confirming his preparedness to be on call (as he has been since he was employed), but with the caveat that he requires to be paid (on the same basis as on call is paid at Peak). It is not clear specifically which of the on call provisions at Peak Mr Conliffe is requesting.
It is not clear whether this is put by Mr Conliffe:
● as recommended by the FWC, so as to clearly identify what Mr Conliffe says is a reasonable on call arrangement to resolve the dispute; or
● to confirm that he will not revert to the status quo, even while the dispute remains unresolved.
As you will appreciate, these are two different things.
If it is put on the first basis, then that can be considered as Mr Conliffe’s position in the dispute. It is unclear what you anticipate as the next step in that dispute process, and we would welcome your views about that.
If it is put on the second basis, we have offered our view that this is not the appropriate course. That approach involves a refusal to comply with the direction, unless Aurelia introduces a payment arrangement in favour of Mr Conliffe. Mr Conliffe may argue whether that direction is reasonable; but it is a refusal and Aurelia takes a different view as to reasonableness. Bear in mind that Mr Conliffe is being required to do this only until the dispute is determined. That dispute may be resolved in a variety of ways – but at the most binary level, either Mr Conliffe will be successful or he will not. If he is not successful, he will find it exceedingly difficult to argue that the direction is unreasonable. It is likely to be difficult to argue the direction is unreasonable, even if he is successful, given that it represents the status quo.
Regardless, if this is the way it is being put, Aurelia is entitled to proceed with the disciplinary process, to whatever conclusion, with the next step timetabling a show cause meeting.
To be clear, Aurelia’s position is that:
● Mr Conliffe has notified a dispute, and that dispute remains pending;
● The dispute process should determine any variation from the status quo; not a unilateral decision by Mr Conliffe;
● Pending resolution of the dispute, Mr Conliffe should affirm the status quo, and continue to be on call when rostered;
● If Mr Conliffe agrees to do that, Aurelia will not proceed further with the disciplinary process; and
● If Mr Conliffe is unable to agree to that, then Aurelia will timetable the next step in that disciplinary process.” 44
[49] On 9 August 2021, Mr Walker had a telephone discussion with the Applicant during which Mr Walker asked the Applicant if he would return to the Hera Mine and comply with the on-call arrangement while the matter was reviewed. The Applicant confirmed that he would not be taking the on-call telephone unless there was on-call compensation in place on the day of his return. Mr Walker explained that the issue would be reviewed through the formation of an Employee Working Group and invited the Applicant to return to work. The Applicant refused to return to work. 45
[50] After the telephone call, Mr Walker sent the following correspondence by email to other relevant senior employees of the Respondent summarising the discussion:
“…I have given Justin Conliffe a call this afternoon and discussed the possibility of him returning to site with the discussed parameters (being on call, carrying the phone until we work through “on call” compensation).
Justin informed me that he is unwilling to return to site unless “On Call Compensation” is in place and effected on the day of his return.
I explained to Justin that we as an organization would be looking into this “issue” however, this will not be until an EWG is formed in the coming weeks and discussions on this “if” tabled take place, he indicated that he had given the business 5 weeks’ notice prior to refusing to except the on call phone without any form of reply and did not trust the process unless it was active upon his return.
I indicated this was entirely his decision however, this was very disappointing from my point of view. He indicated he would return if we could guarantee him in writing that we have a resolution and a date that this would commence, I stated this was not possible as the EWG had not been formed and the discussions have not taken place as yet however, will commence in the coming weeks.
He stood by his decision to not return to site and stated, “the business can now make a decision towards him either way” however, he continued to state throughout the call, he would like for the decision to be made on the on call compensation and if this was to be done in the coming weeks he would return without issue as he likes the site and has been speaking with his colleagues and likes the sound of the change that’s happening.
As per our previous discussions, I suggest we move Mr. Conliffe on from Aurelia Metals as he is continuing to be unwilling to work with us in good faith irrespective of his view of what has happened previously. 46
(emphasis in original)
[51] On 12 August 2021, Mr Walker sent correspondence to the Applicant inviting the Applicant to show cause as to why his employment should not be terminated (Show Cause Letter). 47 The opening paragraph of the Show Cause Letter stated:
After several meetings and discussions, you have maintained that you will not carry out on-call duties at Hera Mine in accordance with the current operational requirements and your employment terms. This includes the most recent phone conversation between you and I on Monday 9 August 2021, when I requested you return to work while the on-call issue is discussed with Hera’s new Employee Working Group, on the proviso that you would carry out on-call duties. Over the past seven (7) weeks, the company has been left short of the necessary trade qualified persons to address after hours breakdowns and/or electrical faults and you have failed to fulfill the requirements of your position as Shift Electrician.
[52] The Show Cause Letter put the Applicant on notice that the Respondent was considering terminating his employment and would provide him with an opportunity to show cause as to why his employment should not be terminated at a meeting to be held on 13 August 2021.
[53] On 16 August 2021, the Applicant attended the show cause meeting with Mr Cowdrey as his support person. 48 In response to the matters set out in the Show Cause Letter, the Applicant maintained his position that the requirement to be on-call was neither in the Employment Contract or his position description and wanted a more reasonable approach to be implemented.49
[54] While the evidence of all witnesses in relation to the show cause meeting is limited, there was no evidence that the Applicant indicated a willingness to return to the Hera Mine and comply with the direction to be on-call while the issue (or dispute) was resolved.
[55] On 19 August 2021 and following the Applicant’s non-attendance at a meeting to advise him of the outcome, the Respondent sent correspondence to the Applicant advising him that his employment was terminated effective immediately for repeatedly failing to follow reasonable and lawful directions to carry out the duties of a shift electrician in accordance with the Employment Contract. The Applicant was paid four weeks in lieu of notice as well as accrued entitlements. 50
[56] At the time the Applicant’s employment was terminated, the Applicant had not taken any further action to progress the Dispute Application before the Commission beyond the conference conducted on 24 June 2021.
Number of call outs
[57] There was a dispute as to the number of times the Applicant responded to a call out between the commencement of his employment and 29 April 2021. The Applicant’s evidence was that he responded to a call out on 11 occasions, totaling 11 hours. 51 The Respondent’s evidence identified four occasions, totaling 5.5 hours.52
[58] In cross examination, the Applicant stated that the source for his record of callouts was the electrician’s work diary and that he extracted the data at, or around, the time the Dispute Application was before the Commission. 53
[59] While I consider very little turns on whether the Applicant responded to a call out four times or 11 times over a period of nine months, I accept the Applicant’s evidence and so find, that he responded to a call out on 11 occasions.
[60] In his witness statement, the Applicant refers to a financial offer that was put to the Respondent on a without prejudice basis to resolve the matter on 13 July 2021. 54 In doing so, the Applicant included one of the terms of the offer.
[61] The Respondent then sought to admit into evidence a full copy of the without prejudice communication as Annexure RW18 to Exhibit R1 on the basis that the Applicant had referred to the financial offer in his statement and that to the extent that the Applicant relies on the making of the offer as part of his case, the Commission should receive a full copy of the financial offer to ensure the full context is understood.
[62] The Applicant objected to the tender of Annexure RW18, on the basis that the specific details of the financial offer were without prejudice.
[63] The parties sought to address this issue further in their final submissions and on that basis, I indicated that I would issue my decision on the admissibility of Annexure RW18 with this decision.
Applicant’s Submissions
[64] The Applicant submitted that Annexure RW18 was an offer of compromise made on a without prejudice basis to resolve the matter. The Applicant relied on s.131(1) of the Evidence Act 1995 (Cth) which provides that evidence of settlement negotiations is not to be adduced.
[65] The Applicant noted the exception in s.131(2)(c) of the Evidence Act (Cth) and submitted that although there has been partial disclosure, full disclosure of Annexure RW18 is not reasonably necessary to enable a proper understanding of other evidence before the Commission.
Respondent’s Submissions
[66] The Respondent submitted that the reference of the financial offer and one of the terms of the offer in Exhibit A1 amounted to a waiver of the privilege attached Annexure RW18.
[67] The Respondent cited the decisions in Quad Consulting Pty Limited v David R Bleakley and Associates Pty Limited 55 and Chang v Legal Profession Complaints Committee56 in support of its submission that once a party was waived privilege to part of a document, the party has waived privilege to the whole document, and that a party cannot decide which parts of a without prejudice communication it wishes to reveal and then object to the tender of the whole document.
[68] The Respondent submitted the waiver point, and by that I understand the content of Annexure RW18, is not irrelevant to substantive questions before the Commission.
Consideration
[69] Annexure RW18 is a financial offer that was sent by the AWU to KWM. It was marked without prejudice and was not an open offer to settle the matter.
[70] There are sound underlying public policy reasons for not taking into account without prejudice negotiations which is to encourage, so far as possible, parties to resolve their disputes without resorting to litigation. 57
[71] Although there may have been a partial waiver of the privilege attached to the without prejudice communication through its reference in the Applicant’s statement, I am not satisfied that the full details of the financial offer are relevant to the issues for determination before the Commission.
[72] Accordingly, Annexure RW18 is not admissible and any submissions in relation to Annexure RW18 and what I should draw from it have not been considered in this decision.
Applicant’s Written Submissions
[73] The Applicant’s primary submission was that the direction to comply with the on-call requirement was inconsistent with the Applicant’s contractual obligations and was therefore, unlawful and unreasonable. 58
[74] In support of this submission, the Applicant submits that the Employment Contract does not contain any express term requiring him to comply with the on-call requirement, nor is there any implied term that requires his compliance with the directions. 59
[75] The Applicant submitted that the lack of an express term in his contract is telling, given that other employees have a specific term in their contracts of employment, and in the absence of an express term, the only way that the Respondent could legitimately direct the Applicant to comply with the on-call requirement was if it was an implied term of the Employment Contract. 60
[76] The Applicant submitted with reference to the decision in BP Refinery (Westernport) Pty Ltd v Shire of Hastings 61,that for a term to be implied, it must, inter alia, be necessary to give business efficacy so that no term will be implied if the contract is effective without it.62
[77] In this respect, it was submitted that the direction to comply with the on-call requirement contradicted the terms of the Employment Contract. 63
[78] The Applicant submitted that it was not his position that he outright refused to comply with the on-call requirement. 64 Rather, the duration of time that he was on-call was unreasonable as it effectively required the Applicant to be on-call 24 hours per day, four days in one week of his roster cycle and five days in the next.65 It was submitted that this had a significant impost on the Applicant and his capacity to socialise and have a drink at the pub with friends and colleagues and that it also affected his sleep and caused him anxiety.66
[79] The Applicant referred to the decision in Bradley Sheldrick Hazeldene’s Chicken Farm Pty Ltd 67, as authority for the proposition that an employee can refuse a direction to be on-call, particularly where the requirement to be on-call is not a term of the contract.68
[80] The Applicant also submitted that the direction to comply with the on-call requirement was a safety hazard that was inconsistent with the Respondent’s obligations under s.19 of the Work, Health and Safety Act 2011 (NSW), and therefore was neither lawful or reasonable. 69 The Applicant further submitted that it is lawful to refuse to follow a direction from an employer which is unsafe, with reference to the decision in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales and Department of Juvenile Justice and Another.70
[81] The Applicant submitted there was no complete refusal to be on-call. Rather, and with reference to the decision in Brown v Premier Pet 71, the Applicant was attempting to have the Respondent implement a more reasonable on-call arrangement.72
[82] The Applicant submitted in closing that there was not a valid reason for the termination of his employment and the Respondent’s decision to terminate his employment was harsh and unjust. 73
Applicant’s Oral Submissions
[83] In oral submissions, the Applicant reiterated the impost that the on-call requirement was having on his ability to socialise, consume alcohol, and that it was causing anxiety. 74
[84] The Applicant submitted that the on-call requirement should have been set out in the Employment Contract as it was with other employees, and that the failure to include the on-call requirement as a term of the Employment Contract combined with the impact of being on-call, had the effect that it was not a lawful and reasonable direction, and the Applicant was not obliged to abide by such direction. 75
[85] With reference to the Applicant’s written submissions, the Applicant submitted that an implied term will be subject to, or must be consistent with, the express terms of the contract. 76
[86] It was submitted that the Applicant never agreed to undertake the on-call duties for the entirety of his employment and to the extent that it was required on an ongoing basis, there should have been additional remuneration. 77
[87] The Applicant submitted, with reference to authorities 78 that the terms of employment must be specified or necessarily implied concurrently with the employment contract and agreed by variation thereafter, where any variation is the product of mutual intent determined objectively.79
[88] In closing, it was submitted that the Respondent cannot direct the Applicant to undertake tasks beyond the Employment Contract on an ongoing basis and that to terminate his employment in the circumstances that the Respondent did was harsh, unjust and unreasonable. 80
Respondent’s Written Submissions
[89] The Respondent submitted that the Applicant’s refusal to comply with the on-call requirement arises in two separate and distinct contexts – first, whether the Respondent’s standing direction to comply with the on-call requirement was lawful and reasonable (Standing Direction), and second, the more limited expectation that he comply with the on-call requirement while the matter proceeded through the dispute resolution process (Temporal Direction). 81
[90] The Respondent submits that the Applicant’s employment was terminated only after he refused to comply with the Temporal Direction to be available on-call pending the resolution of the Dispute Application. 82
[91] The Temporal Direction was clearly set out in the correspondence sent to the Applicant on 10 June, 24 June and 2 July 2021. 83
[92] The Respondent accepts that the obligation to be available on-call is not addressed by an express term of the Employment Contract, in the sense of a term requiring the Applicant to be available for on-call duty 84, but submits the requirement to comply with the on-call requirement was subject to a lawful and reasonable direction.
[93] The Respondent submits that the obligation to comply with a lawful and reasonable direction arises under the Employment Contract and by implication under the general law. 85
[94] The Respondent referred to the decision in Butterfly Systems v Sergeev 86 where the Full Bench stated that in refusing to comply with a lawful reasonable direction or almost always provide a valid reason for dismissal in the sense of being well founded sound indefensible
[95] The Respondent submitted that whether one employee might have a contractual obligation to do something specific, while another does not, does not inform whether a direction is lawful and reasonable and that each of the obligations set out at clause 6.1 of the Employment Contract are capable of a lawful reasonable direction. 87
[96] The Respondent submitted that notwithstanding the express terms set out in clause 6 of the Employment Contract, the power to give lawful and reasonable directions is implied into all employment contracts. As such, the power to give lawful and reasonable directions in the matter before the Commission is both an express term and an implied term of the Employment Contract. 88
[97] The Respondent submitted that the Applicant’s submissions dealing with the implication of terms to give business efficacy was misconceived. 89
[98] The Respondent submitted the Temporal Direction required only that the Applicant maintain the existing work practices while the Dispute Application was pursued and that the lawfulness or reasonableness of the Standing Direction would be confirmed or otherwise by the Commission. 90 The Respondent submitted that in essence, it was seeking to maintain the status quo, which is a well understood concept in the industrial context, the sentiment of which is captured in clause 30 of the Mining Award.91
[99] The Respondent made submissions rebutting the Applicant’s submissions on the reasonableness of the on-call requirement 92, as well as the issues of safety93, anxiety, stress and sleep94, and the impost on social amenity95, noting the Applicant’s evidence that those issues or inconveniences fall away if additional compensation was paid by the Respondent.96
[100] The Respondent submitted that the requirement to comply with the Temporal Direction and protect the status quo was clearly reasonable and the Applicant’s refusal to comply with the Temporal Direction was valid reason for the termination of his employment, noting the Applicant was aware of the consequences. 97 The Applicant submitted that the application should be dismissed.
Respondent’s Oral Submissions
[101] In oral submissions, the Respondent reiterated the distinction between the Standing Direction and the Temporal Direction and submitted the Applicant’s employment was terminated because he refused to comply with the on-call requirement while the Dispute application was on foot. 98
[102] The Respondent submitted that the Temporal Direction required only that the Applicant comply with the on-call requirement while the dispute was resolved. The Respondent submitted that not only did the Applicant refuse to do that, the Applicant also did not advance the Dispute Application before the Commission. 99
[103] The Respondent submitted that it was a reasonable requirement to continue the status quo and the Applicant’s refusal to work the status quo gave the Respondent a valid reason for the termination of the Applicant’s employment. 100
[104] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[105] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[106] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[107] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
[108] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
[109] Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.
[110] There is no dispute between the parties, and I am satisfied on the evidence that:
(a) the application was made within the period required in s.394(2);
(b) the Applicant is a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) the Applicant’s dismissal was not a case of genuine redundancy.
[111] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[112] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 101
[113] I set out my consideration of each below.
[114] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 102 and should not be “capricious, fanciful, spiteful or prejudiced.”103 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.104
[115] Where a dismissal relates to an employee’s conduct, the Commission 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 Commission 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
[116] There can be no dispute, and I so find, that the Applicant refused to comply with the Temporal Direction following the filing of the Dispute Application in the Commission.
[117] The issue is whether the Temporal Direction constituted a lawful and reasonable direction, and if so, whether the Applicant’s refusal to comply with the Temporal Direction was a valid reason for the termination of the Applicant’s employment.
[118] In Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal 107 (Mt Arthur Coal), a Full Bench of the Commission considered the common law duty to obey lawful and reasonable directions.108
[119] It is clear from Mt Arthur Coal that the duty to follow a lawful and reasonable direction is a term implied in all contracts of employment, subject to a contrary intention of the parties.
[120] Clause 6.1 of the Employment Contract provides express terms that the Applicant will perform the services required; comply with reasonable requirements and lawful directions; and work reasonable hours which may be outside of normal business hours. There was no exclusion of the implied term. Therefore, I accept the Respondent’s submission that the source of power to give a lawful and reasonable direction to the Applicant was both an express and implied term of the Employment Contract.
[121] Furthermore, the Temporal Direction was not a direction that went beyond the nature of the work that the Applicant was contracted to perform.
[122] Accordingly, I do not accept the Applicant’s contention that the direction to comply with the Temporal Direction was inconsistent with the terms of the Employment Contract or that a variation to the Employment Contract was required. That there is no express term specifically dealing with the on-call requirement is of no consequence.
[123] I also do not accept the Applicant’s submission that the Temporal Direction was unlawful on the grounds that it was a safety hazard. I deal with this further below.
[124] Accordingly, I am satisfied, and so find, that the Temporal Direction was within the scope of the Employment Contract and was a lawful direction.
[125] Notwithstanding that a direction may be lawful, it must also be reasonable. Employees are only obliged to comply with employer directions which are lawful and reasonable. 109
[126] While I accept the evidence of Mr Walker as to the need for shift electricians to be generally on-call to attend to any out of hours electrical issues that may arise, the reasonableness of the Temporal Direction is to be considered in the context that it was issued at the time the Dispute Application was on foot, and that the Respondent was seeking only that the Applicant comply with it while the Dispute Application took its course.
[127] The Dispute Application was initiated pursuant to clause 30.4 of the Mining Award. Clause 30.8 of the Mining Award requires that work must continue whilst the dispute resolution procedures are being followed, and that an employee must not unreasonably fail to comply with any direction given by the employer about performing work that is safe and appropriate for the employee to perform.
[128] The Applicant submitted the following reasons as to why the direction to comply with the on-call requirement was not reasonable:
● it was not an express term of the Employment Contract;
● there was no additional remuneration;
● it was a safety hazard;
● it was adversely affecting his sleep and causing anxiety; and
● it was restricting his ability to socialise and consume alcohol.
[129] The Applicant’s submissions do not distinguish whether the reasons are relevant to the Standing Direction, the Temporal Direction, or both. On the evidence before me, I find that the reasons the Applicant refused to comply with the Temporal Direction were limited to it not being an express term of the Employment Contract or his position description, that the Respondent would not provide additional remuneration in the form of an allowance similar to the Peak Gold Mine from the time he returned from suspension 110, and that if he returned to the Hera Mine prior to the implementation of a resolution that was satisfactory to him, he would lose industrial leverage.111
[130] As stated above, that there was no express term specifically dealing with the on-call requirement is of no consequence. I have found that the Temporal Direction was a lawful direction and that the source of power to give a lawful and reasonable direction to the Applicant was both an express and implied term of the Employment Contract.
[131] In relation to additional remuneration, the Applicant was paid a base salary of $104,142.00 plus superannuation of 9.5%. Clause 7.1 of the Employment Contract states that the salary was compensation for all overtime, allowances, loadings, public holidays worked and penalty payments and provides that no additional remuneration is payable for additional hours worked.
[132] The additional hours referred to in clause 7.1 can only be ‘additional’ to the hours otherwise set out in the Employment Contract, that is the hours of work set out at clause 6.3. Accordingly, the Employment Contract contemplated that the Applicant may be required to work additional hours and payment for those additional hours was factored into the Total Fixed Remuneration.
[133] That the Applicant may have been dissatisfied with the level of remuneration, does not lead to a conclusion that the Temporal Direction was not reasonable.
[134] To the extent that the Applicant relies on the other matters set out at paragraph [128] in support of his contention that the Temporal Direction was not reasonable, I do not accept the Applicant genuinely held views that the on-call requirement was a safety hazard, that it significantly affected his sleep and caused anxiety, or that it was a significant impost on his ability to socialise and consume alcohol.
[135] While I accept that any on-call arrangement will inevitably impose some degree of inconvenience or restriction on an employee, in my view the Applicant was agitating the issue the purpose of seeking additional remuneration. This is borne out in the evidence as follows:
● The Applicant’s correspondence dated 22 March 2021, seeking the Peak Gold Mine arrangement;
● The Applicant’s responses to the written warnings that it is an Employment Contract and compensation issue;
● The Applicant’s correspondence dated 31 May 2021 that it is an Employment Contract issue, although I accept in this correspondence he raised the issue of an incident occurring during a call out and whether he would be covered;
● The AWU correspondence dated 28 June 2021, seeking the Peak Gold Mine arrangement;
● The Applicant’s response in the show cause meeting, that it was an Employment Contract issue;
● The Applicant’s evidence that he was prepared to be on-call, but a more reasonable approach was needed; 112
● Mr Cowdrey’s evidence that the Applicant was prepared to be on-call, but merely wanted a fair arrangement; 113
● The Applicant’s response in cross examination that the issue is the terms of the on-call requirement and that he was seeking terms similar to the Peak Gold Mine arrangement; 114
● There was no medical evidence that the on-call requirement was adversely affecting the Applicant’s sleep or causing anxiety;
● The Applicant’s response to a question from the Commission that the sleep and anxiety issues are resolved if there was adequate remuneration; 115
● The Applicant did not raise any safety concerns in relation to the on-call requirement in the period of August 2020 to April 2021; 116
● At no stage did the Applicant raise a complaint or report with SafeWork NSW; 117
● The Respondent had implemented a Fatigue Management Plan and Working Hours, Shifts and Rosters Procedure address the issue of fatigue, call-outs and breaks minimum breaks before returning to duty; 118 and
● The Applicant’s submissions that he wasn’t refusing to be on-call, but rather was seeking a more reasonable arrangement. 119
[136] Taking into account all of the evidence and submissions before me, I consider the Temporal Direction was a lawful and reasonable direction.
[137] As stated above, there can be no dispute that the Applicant refused the comply with the Temporal Direction. The Applicant’s submission that there was not a ‘complete refusal’ is simply unacceptable. The effect of the Applicant refusing to comply with the Temporal Direction over a two month period unless a resolution to his satisfaction was immediately implemented was a refusal to comply with the Temporal Direction.
[138] Furthermore, in the context of the Dispute Application, clause 30 of the Mining Award, and that the Respondent was seeking only that the Temporal Direction be complied with while the Dispute Application took its course through the Commission, there was no justification for the Applicant to refuse to comply with the Temporal Direction. 120
[139] Having regard to all of the circumstances, I am satisfied, and so find, that there was a valid reason for the Applicant’s dismissal.
[140] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a). 121
[141] 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, 122 and in explicit123 and plain and clear terms.124
[142] It is not in dispute, and I find that the Applicant was notified of the reason for the termination of his employment prior to the decision to dismiss being made, and in explicit and plain and clear terms in the Show Cause Letter and the show cause meeting on 16 August 2021.
[143] 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. 125
[144] 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. 126 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.127
[145] It is not in dispute that the Applicant was given an opportunity to respond to the reason for the dismissal at the show cause meeting on 16 August 2021.
[146] In all of the circumstances, I find that the Applicant was aware of the precise nature of the Respondent’s concerns and was given an opportunity to respond to the reasons for his dismissal prior to the decision to dismiss being made.
[147] 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.
[148] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“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.”128
[149] The Applicant was represented by the AWU in meetings relating to his dismissal. Accordingly, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. In the circumstances, I regard this factor as a neutral consideration.
[150] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
[151] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This factor weights neutrally in my consideration.
[152] It is not in dispute, and I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. This factor weights neutrally in my consideration.
[153] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[154] The Applicant gave evidence that following his dismissal, he has only obtained casual employment which requires him to be away from home for ‘long periods’ and this employment is not suitable to managing his family responsibilities on an ongoing basis. 129 It was submitted that in these circumstances the termination of his employment was harsh.130
[155] In determining whether the Applicant’s dismissal was harsh, unjust or unreasonable, I have taken into account the matters raised by the Applicant, and in particular the impact of the dismissal upon his family responsibilities. Notwithstanding this, I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable in the circumstances.
[156] For a period of over two months and while stood down on full pay, the Applicant demonstrated an unwillingness to comply with the Temporal Direction. The Respondent made it clear to the Applicant that while the Dispute Application took its course, it expected the Applicant to comply with the on-call requirement. This expectation was not unreasonable.
[157] The Applicant chose not to comply for reasons that included maintaining ‘industrial leverage’. The Applicant’s position left the Respondent with little choice other than to proceed to dismissal.
[158] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 131
[159] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.
[160] In coming to this decision, I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
[161] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
[162] The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR745269>
Appearances:
Mr J Shaw, of the Australian Workers Union NSW Branch for Applicant.
Mr J Wells, solicitor, for the Respondent.
Hearing details:
Sydney (via Microsoft Teams video-link):
2022.
24 February
2021.
7 December
1 Exhibit R1 at [6].
2 Ibid at [7].
3 Ibid at [9].
4 Ibid at [10].
5 Ibid at [11].
6 Ibid at [12].
7 Ibid.
8 Exhibit A1 at [2]; Exhibit R1 at [13], [17], [64].
9 Exhibit A1, Annexure JC-1.
10 Exhibit A1 at [8].
11 Exhibit A1 at [4].
12 Exhibit A1 at [12], Annexure JC2; Transcript at PN550-PN551.
13 Exhibit R1 at [20]-[28].
14 Exhibit A1at [11]; Exhibit R1 at [20].
15 Exhibit A1 at [10], [19], Exhibit R1 at [32]-[34].
16 Exhibit A1 at [10].
17 Exhibit A1 at [10].
18 Exhibit A1 at [15].
19 Exhibit A1 at [16]; Exhibit R1 at [29].
20 Exhibit A1 at [17]; Exhibit R1 at [30].
21 Exhibit A1 at [18], Annexure JC6; Exhibit R1 at [31], Annexure RW6.
22 Exhibit A1 at [19]; Exhibit R1 at [32].
23 Exhibit A1 at [20], Annexure JC6; Exhibit R1 at [33], Annexure RW6.
24 Exhibit R1 at [34].
25 Exhibit A1, Annexure JC6; Exhibit R1, Annexure RW6.
26 Exhibit A1, Annexure JC6; Exhibit R1, Annexure RW6; Transcript at PN208-PN213.
27 Exhibit A1, Annexure JC6; Exhibit R1, Annexure RW6.
28 Exhibit A1, Annexure JC6; Exhibit R1, Annexure RW6; Transcript at PN190, PN214.
29 Exhibit R1 at [36]; Exhibit A1 at [23].
30 Exhibit A1, Annexure JC7; Exhibit R1, at [37], Annexure RW7.
31 Exhibit A1, Annexure JC7; Exhibit R1, Annexure RW7; Transcript at PN218-PN225.
32 Exhibit A1, Annexure JC7; Exhibit R1, Annexure RW7.
33 Exhibit A1, Annexure JC7; Exhibit R1, Annexure RW7.
34 Exhibit A3 at [7]; Exhibit R1 at [38], Annexure RW8.
35 Exhibit A3 at [7], Annexure RC1; Exhibit R1 at [39], Annexure RW9.
36 Exhibit A1 at [24]; Exhibit R1 at [40], Annexure RW10; Transcript at PN235.
37 Exhibit A1 at [24], Annexure JC8; Exhibit R1 at [41], Annexure RW11.
38 Exhibit A1 at [25], Exhibit A3 at [8], Annexure RC2; Exhibit R1 at [42].
39 Exhibit R1 at [43], Annexure RW12.
40 Exhibit A1 at [26], Annexure JC9; Exhibit R1 at [44]-[45], Annexure RW13.
41 Exhibit A3 at [9]; Exhibit R1 at [49].
42 Exhibit R1 at [50]-[51], Annexures RW14 and RW15.
43 Exhibit A1 at [27], Annexure JC10; Exhibit A3 at [10], Annexure RC3; Exhibit R1 at [52], Annexure RW16.
44 Exhibit R1 at [53], Annexure RW17 (at Digital Hearing book p.330-331).
45 Exhibit A1 at [30]; Exhibit R1 at [57].
46 Exhibit R1 at [57], Annexure RW19.
47 Exhibit A1 at [31], Annexure JC11; Exhibit A3 at [12]; Exhibit R1 at [58], Annexure RW20
48 Exhibit A1 at [31]; Exhibit A3 at [14]; Exhibit R1 at [60].
49 Exhibit A1 at [31]; Exhibit A3 at [14]; Exhibit R1 at [61].
50 Exhibit R1 at [62]-[65], Annexure RW22; Exhibit A2 at [10].
51 Exhibit A2 at [11].
52 Exhibit R1 at [67]; Exhibit RW23.
53 Transcript at PN132-PN143.
54 Exhibit A1 at [29]; Exhibit A3 at [11].
55 [1990] FCA 455;
56 [2020] WASCA 208;
57 Brown v Commissioner of Taxation [2002] FCAFC 75 at [57].
58 Applicant’s Written Submissions at [4].
59 Applicant’s Written Submissions at [5].
60 Applicant’s Written Submissions at [9].
61 [1977] HCA 40.
62 Applicant’s Written Submissions at [11]-[13].
63 Applicant’s Written Submissions at [15]-[16].
64 Applicant’s Written Submissions at [17].
65 Applicant’s Written Submissions at [17], [24].
66 Applicant’s Written Submissions at [28].
68 Applicant’s Written Submissions at [27].
69 Applicant’s Written Submissions at [29]-[30].
70 [2005] NSWIRComm 288.
71 [2012] FMCA 1089 at [46]
72 Applicant’s Written Submissions at [39], [44]-[45], [51].
73 Applicant’s Written Submissions at [60].
74 Transcript at PN677-PN678.
75 Transcript at PN687-PN691.
76 Honeyman v Nhill Hospital [1994] 1 VR 138; Transcript at PN695.
77 Transcript PN703-PN717.
78 Bell v State of Queensland (Queensland Police Service) [2019] QIRC 177 at [50]; Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 at [70] per Buchanan J.
79 Transcript PN729-PN728.
80 Transcript at PN729.
81 Respondent’s Outline of Submissions at [5].
82 Respondent’s Written Submissions at [16].
83 Respondent’s Written Submissions at [31]-[34].
84 Respondent’s Outline of Submissions at [6].
85 Respondent’s Outline of Submissions at [6].
87 Respondent’s Outline of Submissions at [6].
88 Respondent’s Written Submissions at [20]-[22].
89 Respondent’s Written Submissions at [18]-[19].
90 Respondent’s Written Submissions at [40].
91 Respondent’s Written Submissions at [42]-[43].
92 Respondent’s Written Submissions at [57]-[67].
93 Respondent’s Written Submissions at [68]-[93].
94 Respondent’s Written Submissions at [94]-[99].
95 Respondent’s Written Submissions at [100]-[107].
96 Respondent’s Written Submissions at [108]-[120].
97 Respondent’s Written Submissions at [53]-[56], [171], [175].
98 Transcript at PN735-PN736.
99 Transcript at PN744-PN749.
100 Transcript at PN754.
101 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
102 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
103 Ibid.
104 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
105 Edwards v Justice Giudice [1999] FCA 1836 at [7].
106 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].
108 Mt Arthur Coal at [64]-[81].
109 Mt Arthur Coal at [71].
110 See paragraphs [44], [46]-[47], [49]-[50] and [53] above.
111 Exhibit A1 at [30]; Transcript at PN445-446.
112 Exhibit A1 at [31].
113 Exhibit A3 at [16].
114 Transcript at PN314-PN316.
115 Transcript at PN479.
116 Transcript at PN301.
117 Transcript at PN302.
118 Exhibit R1, Annexures RW1 and RW2.
119 Applicant’s Written Submissions at [39].
120 Commonwealth of Australia (Australian Taxation Office) v Shamir [2016] FWCFB 4185 at [50]-[52].
121 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].
122 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.
123 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
124 Ibid.
125 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75].
126 RMIT v Asher (2010) 194 IR 1 at 14-15.
127 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7.
128 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
129 Exhibit A1 at [32].
130 Applicant’s Outline of Submissions at p.4 (Digital Hearing book at p.90).
131 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].