[2022] FWC 2455
The attached document replaces the document previously issued with the above code on 14 September 2022.
Typographical errors corrected in paragraphs [84], [184], [185].
Associate to Deputy President Anderson.
Dated 16 September 2022.
| [2022] FWC 2455 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Campbell Green
v
Citic Pacific Mining Management Pty Ltd
(U2022/5271)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 14 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – FIFO tradesman – unplanned departure from mining site – family responsibilities – whether absence authorised – failure to apply for leave – failure to nominate return date – whether abandonment of employment – valid reason – procedural fairness – whether mitigating circumstances render dismissal harsh – dismissal not harsh, unjust or unreasonable – application dismissed
[1] On 10 May 2022 Campbell Green (the applicant or Mr Green) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed on 27 April 2022 by Citic Pacific Mining Management Pty Ltd (Citic, the employer or the respondent). At the date of his dismissal, he was employed as a field service technician working on mining sites in the Pilbara region of Western Australia.
[2] Mr Green claims his dismissal was harsh, unjust or unreasonable. He seeks an order for reinstatement and back wages.
[3] Citic oppose the application. It contends that Mr Green’s dismissal was not unfair and that no issue of remedy arises. In the alternative, it submits that re-employment should not be ordered and compensation should be nil.
[4] Conciliation was conducted on 9 June 2022 but the matter did not resolve.
[5] Directions were issued on 22 June 2022.
[6] In advance of the hearing, I received materials from Mr Green and the employer.
[7] On 15 August 2022, I granted permission for Citic to be legally represented notwithstanding Mr Green’s objection. 1
[8] I heard the matter (merits and remedy) by video on 25 August 2022. Mr Green was self-represented. I provided a measure of assistance to Mr Green, consistent with my independent statutory function, to ensure that his case was fully presented and that of the respondent tested.
[9] Mr Green gave oral evidence on a statement filed in his name. 2
[10] Four witnesses were called by the employer:
• Alan Crawford, Superintendent HME (Shovels and Drill); 3
• Mark Evans, HME Manager, Mining Operations; 4
• David Dewar, Superintendent HME (Heavy Mobile Equipment); 5 and
• Terry Turner, Superintendent HME (Truck and Ancillary). 6
[11] As the matter concerned Mr Green’s final six weeks of employment, the evidence was of considerable breadth. Some (but not all) material facts are in dispute. Issues of credit arise.
[12] Mr Green gave evidence in a down to earth and genuine manner. However, under cross examination his recall on key issues was shaky and he conveyed the impression of some reconstruction to suit his narrative rather than an unfiltered statement of past events. Whilst his evidence was not as a whole unreliable, it is to be approached with some caution on disputed facts.
[13] Mr Crawford gave evidence in a straightforward manner. Notes he took of events on 18 April 2022 were produced in evidence 7 and were a contemporaneous record with events. His oral evidence and written notes are a reliable basis for fact-finding.
[14] Mr Evans gave evidence conscientiously but was somewhat defensive in cross examination and somewhat keen to portray Mr Green in a negative light. These subjective opinions detracted from his evidence, but the factual matters he deposed to are a reliable basis for objective fact-finding.
[15] Mr Dewar was an impressive witness. He was the decision-maker on the dismissal. His evidence was straightforward, untarnished by opinion, consistent with the documentary record and a reliable basis for fact-finding.
[16] Mr Turner gave evidence clearly though was unexpansive and brief in responses. Albeit brief, his evidence is a reliable basis for fact-finding.
[17] I take into account that some evidence (oral and written) includes hearsay and opinion. I give limited weight to hearsay where it concerns disputed facts unless otherwise corroborated by direct evidence on which findings can be made to the requisite standard of proof. I regard opinions expressed as akin to submissions, not as an evidentiary narrative.
[18] I make the following findings.
Mr Green’s employment
[19] Citic conducts mining activities in Australia including in the Pilbara region of north-west Western Australia.
[20] On 25 August 2015 Mr Green commenced employment with Citic.
[21] Mr Green is a resident of Bendigo in regional Victoria.
[22] Mr Green was dismissed on 27 April 2022. He had had six years and eight months of service.
[23] At the time of dismissal, Mr Green was employed as a full-time field services technician working on heavy mining equipment.
[24] Mr Green’s employment was governed by an enterprise agreement, the CITIC Pacific Mining Operations Agreement 2018 (Agreement). 8
[25] At the time of his dismissal, Mr Green’s place of employment was mining sites in the Pilbara. Being a resident of Victoria, he was a fly-in-fly-out (FIFO) employee.
[26] Mr Green was a skilled and competent employee. His skills in the maintenance, repair and servicing of heavy equipment were valuable to Citic. From time to time he willingly performed duties beyond his role including as temporary leading-hand, and temporary break-down co-ordinator.
[27] As a FIFO worker, Mr Green was employed on a two week on, one week off roster. He would be rostered to work for two weeks at the mine site, and then rostered off for a week. Whilst rostered on, Mr Green would work and reside at the mine site. When rostered off, Mr Green would return to his home in Bendigo. Each three weeks of a roster period (two on, one off) is described as a ‘swing’.
[28] Mr Green would travel to the mine site by a flight from Melbourne to Perth, and then a flight from Perth to Karratha. He would return via the same route. His flights to and from work were funded by Citic.
Employment during COVID, March 2020 to August 2021
[29] From around March 2020, COVID-19 impacted Australian workplaces and interstate border movement.
[30] Interstate travel between Western Australia and Victoria (and vice versa) became restricted and for long periods border travel was prohibited. FIFO arrangements became compromised.
[31] Continuing employment in the Pilbara was important to Mr Green and his family. He had a wife and two young children. He was, at that time, the sole income earner in his family. The income he earned was material.
[32] In the seventeen months from March 2020 to August 2021 Mr Green decided to remain in the Pilbara, working continuously at the mine and earning income unfettered by the pandemic. Only very occasionally did he return to his home and family in Victoria, when border movement permitted. Over this seventeen-month period, he spent only a few weeks (three or four) back in Victoria. Contact with his family for this lengthy period was otherwise by remote means.
Employment between 20 August 2021 and 14 March 2022
[33] On 20 August 2021 Mr Green sustained a workplace injury to his left hand.
[34] He was treated in Perth and was required to rehabilitate and undertake therapy at home in Victoria. He returned to Victoria. He was placed on workers’ compensation until he could return to work.
[35] On or around 1 December 2021 Mr Green’s injury had healed such that he was cleared to return on light duties.
[36] He ceased being on workers’ compensation.
[37] However, the Western Australian border from Victoria was closed. It remained closed until mid-March 2022. Mr Green was unable to travel back to the workplace.
[38] No longer being on workers’ compensation, Citic, with Mr Green’s approval, placed Mr Green on annual leave until the border reopened and he could return to work.
[39] Mr Green utilised his annual leave accruals during December 2021 and January, February and the first half of March 2022 to maintain income.
[40] In this period (and during the earlier workers’ compensation period), Mr Green was home with his family. He was a family man. He took a considerable role in looking after his young children. As Mr Green was home and able to undertake caring responsibilities, his wife took up employment locally in Bendigo from about January 2022.
[41] When the Western Australian border reopened in mid-March 2022, Mr Green was rostered by Citic to return to the mine site and resume work as a FIFO employee.
[42] Before attending the mine site, Mr Green was required to secure a medical clearance from a doctor in Perth on 15 March 2022, and then fly to the Pilbara and commence work on a two week roster from 16 March 2022.
[43] Mr Green was flown to Perth and secured medical clearance on 15 March 2022.
[44] Mr Green was then flown to the Pilbara and commenced work at the mine site on Wednesday 16 March 2022.
[45] Mr Green worked on 17 March 2022.
Events 18 March 2022
[46] On either the evening of 17 March or the early morning of 18 March, Mr Green had a discussion with his wife. His wife informed him that neither she nor their young children were coping with his absence and that if he did not return home immediately he may not have a marriage or family to return to.
[47] Mr Green was distressed by this news. He recognised that he had only returned to work for two days after a seven month absence, but did not want to put his marriage and family at risk. He did not believe that he could complete his two week roster. He formed the view that he had to return to Victoria immediately for family reasons.
[48] The supervisor to whom Mr Green ordinarily reported and with whom Mr Green would ordinarily discuss these matters was not at work that day.
[49] In any event, Mr Green knew that only a superintendent or the mine manager could authorise an employee leaving the site and approve early return flights and leaves of absence.
[50] Mr Green approached a superintendent, Mr Crawford. He told Mr Crawford that he needed to return to Victoria for family reasons. Mr Crawford reacted with surprise given that Mr Green had been back on site for only two days. Mr Crawford considered that in the circumstances the matter would need to be considered by the mine manager (Mr Evans). Mr Crawford told Mr Green that he (Mr Green) needed to discuss the matter with Mr Evans.
[51] I do not find that during this discussion Mr Crawford approved Mr Green’s return to Victoria, or approved a return flight to Victoria or approved leave. To the extent Mr Green’s evidence was that this occurred, I do not accept that evidence.
[52] Nor do I accept Mr Green’s evidence that his discussion with Mr Crawford occurred after he had spoken to Mr Evans. I find it occurred before. I accept Mr Crawford’s evidence that Mr Green made no reference to any such discussion. If Mr Green had already discussed the matter with Mr Evans it is implausible that he would not have told Mr Crawford of that fact.
[53] Mid-morning on 18 March, after his brief conversation with Mr Crawford, Mr Green spoke to Mr Evans. Some elements of the conversation are in dispute, and to the extent of the dispute, I prefer the evidence of Mr Evans. 9 I take into account that the handwritten notes by Mr Evans about this conversation in evidence10 were not contemporaneous and only written at the end of April 2022 after dismissal and once Mr Green told him that he was intending to take the matter to the Commission.
[54] That notwithstanding, Mr Evans’ oral evidence was plausible and recall sound. I find that Mr Green told Mr Evans on 18 March 2022 that despite being back on site for only two days, he had to return to Victoria to deal with family matters. Mr Green stated that his wife was now working, that she was having difficulty managing caring responsibilities in his absence, and that his children were not coping with his absence.
[55] Mr Evans told Mr Green:
• that the business needed him as it was “trying to get back on top of the workload” after COVID;
• that Citic could not stop him taking leave that he was entitled to if that is what he needed to do, such as annual leave;
• that Citic would not approve a period of unpaid leave; and
• that he (Mr Green) would need to fulfil his two week on one week off FIFO roster obligations unless on approved leave and could not “come and go as you please”.
[56] Mr Green replied with words to the effect:
“Look, I get all of that but my wife has said that I have to be home by Monday. If I could stay I would, but I can’t.”
[57] The discussion ended with Mr Evans telling Mr Green words to the effect that “if you still feel you need to leave you should complete a leave form and get your supervisor’s approval. But again, I need you to understand that the company is not in a position to approve leave without pay.”
[58] Mr Green left the office, intending to leave the site that day and return home.
[59] Mr Green did not subsequently on that day speak to a supervisor or superintendent for the purposes of getting approval to leave the site. Nor did he, before leaving, secure a form of approved leave to which he was entitled.
[60] Instead, Mr Green took what had been said by Mr Evans as approval to leave the site. Mr Green then administratively arranged for a return flight. In doing so, he gave the impression that this had been approved.
[61] Mr Green’s evidence was that before leaving the site he started to complete a hard copy leave form with the intention of applying for annual leave, but was interrupted mid-stream by heavy equipment arriving on site that he was required to work on. He says that he placed the part completed form in a pigeon-hole intending to return to it, but did not return to it due to the work commitments and the rush to get off-site to the airport.
[62] I do not accept this evidence. It is self-serving and implausible. If Mr Green had part completed a leave form before leaving, it is likely that in the weeks that followed he would have advised the employer of this. He did not do so, even when advised his employment was at risk. His evidence that he did so is inconsistent with other aspects of Mr Green’s evidence. He said to the Commission that he did not know what form of leave he was entitled to (annual or carers). He said to the Commission that he had assumed his employer (supervisors or superintendents) would apply for leave on his behalf. Completing a leave form is inconsistent with a belief that others would do so on his behalf.
[63] Mr Green was flown off the site on 18 March 2022 and returned to Bendigo, Victoria via Perth.
[64] Mr Green did not, in the days and weeks that followed, apply for leave.
[65] Citic did not, in the days or weeks that followed, approve leave.
Events from 23 March 2022 to 18 April 2022
Conversations 29 March: Dewar/Green
[66] On 23 March 2022 a superintendent, Mr Dewar, inquired of Mr Green’s acting supervisor (Mr Hodges) about Mr Green’s whereabouts and whether he had applied for leave and when he would be returning.
[67] Mr Dewar was told that the acting supervisor had not been advised of a return date and did not believe that leave had been formally applied for, but believed that Mr Green had spoken to Mr Evans.
[68] Mr Dewar decided to speak to Mr Evans to clarify the situation.
[69] Mr Dewar spoke to Mr Evans. Mr Evans advised that he had required Mr Green to apply for a form of available leave and secure approval from a supervisor or superintendent before leaving the site. Mr Evans was surprised when told by Mr Dewar that it did not appear Mr Green had done so. Mr Evans asked Mr Dewar to follow the issue up, including with Mr Green.
[70] On 29 March 2022 Mr Dewar telephoned Mr Green. He spoke to Mr Green. Mr Green explained that he had returned to Victoria for family reasons after speaking to Mr Evans. Mr Dewar told Mr Green that no leave form had been submitted or approved and that he (Mr Green) needed to apply for leave and could apply for annual leave. Mr Green indicated that he preferred to take carers leave. Mr Dewar said that this was fine, but carers leave was only for five days and he had been absent for twelve days already. Mr Green then suggested applying for compassionate leave. Mr Dewar indicated that this was only available in certain circumstances.
[71] The conversation concluded by Mr Dewar agreeing to further advise Mr Green of his (Mr Green’s) leave options under the Agreement.
[72] Later that day (29 March) Mr Dewar telephoned Mr Green back. He again advised Mr Green of his leave options and that Mr Green needed to formally apply for one of the options.
[73] In this conversation Mr Dewar also told Mr Green that he (Mr Green) was next rostered on 5 April 2022 and was required to be at work unless absence on leave had been approved.
[74] Mr Green said that whilst he wanted to be back at work, his wife needed him at home and that if the company could not allow him to be at home, he may have to give notice of resignation. Whilst indecisive, to Mr Dewar Mr Green seemed more inclined to apply for carers leave rather than further use his annual leave.
[75] The second conversation ended with Mr Green being told that he needed to apply for leave and have it approved, or return to work, and that Mr Dewar would send Mr Green (by email) written details of his leave options.
[76] Later that day (29 March) Mr Dewar sent Mr Green an email setting out his leave options. It read: 11
“HI Campbell,
As discussed today, I require you to provide supporting evidence for your application for carer’s leave for your recent absence from site from 18-28/03/2022. If you wish to book further time off after these dates please indicate the type of leave and duration for approval.
Conditions for leave under current operational agreement.
Employees are entitled to take personal leave for rostered working days without loss of
salary when they are unable to attend work:
(1) on account of personal illness or injury (sick leave); or
(2) because they are required to provide care for a member of their immediate family or household who is ill or injured or due to an unexpected emergency (carer’s leave).
Attached is a copy of the CITIC Pacific Mining Operations Agreement 2018 for your reference. Can you please respond before the COB 30/03/2022.
Regards
David Dewar”
[77] Mr Green did not respond. A week went by.
[78] Mr Green did not return to the mine site on 5 April 2022. Mr Green made no contact with Citic to advise of his attendance or non-attendance.
Attempted contact 7 April: Dewar/Green
[79] On Thursday 7 April 2022 Mr Dewar (who shared superintendent duties with Mr Turner) asked Mr Turner if any contact had been made by Mr Green. None had. Mr Dewar decided to telephone Mr Green to find out what was going on.
[80] Mr Green did not answer his phone. Mr Dewar left a text message requesting a return call. Mr Dewar followed up with a text message to Mr Green (sent at 12.42pm): 12
“Hi Campbell, I sent through follow up email to your home email [email address redacted] last week with a copy of Operational agreement. Can you please call to discuss you (sic) current absence from work this week.
David Dewar”
[81] Mr Green did not return the call, despite Mr Dewar’s request.
[82] Unknown to Citic, Mr Green had gone on a camping holiday with friends and did not have phone service during this time.
[83] Two days went by. Mr Dewar then asked Mr Green’s supervisor (Mr Youd) to call Mr Green to see if he could get a response.
Conversation 9 April: Youd/Green
[84] On Saturday 9 April 2022 the supervisor (Mr Youd) phoned Mr Green. Mr Green told the supervisor that he thought Mr Dewar was being difficult but that he (Mr Green) would submit a leave form the following Monday (11 April).
Conversation 10 April: Green/Dewar
[85] On 10 April 2022 Mr Green returned Mr Dewar’s call and text message of 7 April. Mr Dewar made a contemporaneous diary entry of this call which is in evidence. 13 I accept Mr Dewar’s evidence of this conversation,14 which is consistent with his diary entry, and do so in preference to any difference with the evidence of Mr Green. In this conversation:
• Mr Green told Mr Dewar that he had not been reading his emails and had not read Mr Dewar’s email of 29 March;
• Mr Dewar told Mr Green that he was currently absent without any approved leave;
• Mr Dewar told Mr Green that he was required to return to work and that “his failure to do so could affect his future employment”; 15
• Mr Green became verbally aggressive, telling Mr Dewar “you cunts are only fucking worried about KPIs”;
• Mr Green said he would apply for carers leave but when told by Mr Dewar that this required evidence that a family member was sick or needed caring, Mr Green said that there were delays in getting to see a doctor; and
• Mr Green was told to reflect on his situation and make a leave application with supporting evidence after reading the email of 29 March. Mr Green agreed to do so.
[86] On 10 April 2022 the supervisor advised Mr Dewar by email: 16
“David,
I have spoken to Campbell yesterday and he has given me his word there will be evidence to support his leave on Monday
If this wasn’t to happen I am happy for you to proceed with any disciplinary action you see fit as his absence from crew is becoming frustrating
…
Regards
Scott Youd”
[87] In and around this time, Mr Dewar spoke informally to Mr Evans about the situation. Mr Evans advised that “the matter needs to be brought to closure and that, if leave had not been granted, Mr Green was to return to work as soon as practically possible.” 17
[88] On 10 April, following receipt of this email, Mr Dewar referred the matter of Mr Green’s ongoing absence without approved leave to Citic’s human resources department.
Conversation 11 April: Green/Dewar
[89] On around 11 April 2022, as Mr Green was not at work nor absent on approved leave, Citic sent Mr Green an email advising that he would not be paid until back at work or absent on approved paid leave.
[90] On 11 April 2022 Mr Green telephoned Mr Dewar and complained of his pay being stopped. Mr Green said words to the effect “if it is intended to scare me, I am shaking in my boots”.
[91] Mr Dewar told Mr Green that he could not be paid unless at work or on approved paid leave, and repeated that he needed to apply for leave. Mr Green said that he could not get in to see a doctor for another week.
Conversation 18 April: Crawford/Green
[92] On or around 18 April Mr Crawford and Mr Turner (both superintendents) reviewed the circumstances of a list of employees who were needed but not on site. Mr Green was on that list.
[93] Mr Crawford telephoned Mr Green. I accept Mr Crawford’s evidence of this conversation, 18 which is consistent with his diary entry,19 and do so in preference to any difference with the evidence of Mr Green. In this conversation:
• Mr Green said that he was still sorting out his family issues;
• Mr Crawford firmly told Mr Green that the company needed him to return to work and that the company needed “a definitive date as to when that would occur”; 20
• After being vague and then pressed, Mr Green said that he was “hopeful of being back in June but there was no guarantee” or words to that effect;
• Mr Crawford said this was not fair to the company and that he hoped Mr Green could be back sooner given the backlog of work and his absences in the past year;
• Mr Green said that was the best indication he could give;
• Mr Green was aggressive and abusive, saying (in reference to Mr Dewar) words to the effect “David is a Rio Tinto fucktard” and “David is a Rio Tinto wanker”, and (in reference to Mr Evans) “fuck Mark Evans”;
• Mr Crawford told Mr Green this language was inappropriate and he should keep such views to himself; and
• Mr Crawford advised Mr Green that the matter, including their conversation, would be referred to human resources.
[94] I do not accept Mr Green’s evidence that during this conversation Mr Crawford authorised his absence or agreed that he could return sometime in June 2022. This evidence is self-serving, inconsistent with the contemporaneous diary note made by Mr Crawford and implausible given that the employer was seeking to get all available employees back on site as it was increasing production following the COVID-19 period.
[95] For similar reasons, I do not accept Mr Green’s evidence that he told Mr Crawford that he had accrued leave until 7 June and had nominated 7 June as a return date.
[96] Mr Turner was in earshot of Mr Crawford during this conversation.
[97] Following the conversation, Mr Crawford and Mr Turner agreed that an indefinite date “hopefully in June” was not good enough.
Abandonment Letter of Advice
[98] Mr Turner, assisted by the human resources department, prepared a letter to Mr Green dated 18 April 2022. The letter was sent to Mr Green by Mr Turner by email on 20 April 2022.
[99] The covering email read: 21
“Good morning Campbell,
Please see letter attached, we require a definitive date of return to site.
Regards
Terry Turner | HME Superintendent”
[100] The letter read: 22
“18 April 2022
…
Dear Campbell
ABANDONMENT OF EMPLOYMENT – ADVICE
I refer to your current absence from work and the subsequent lack of communication with your supervisors providing an update of your current family situation and a definitive date of return to work.
On the 16th of March 2022, you returned to work as per your rostered working shift. You had a discussion with your Manager regarding a family issue you were going through and need to have some time off. Prior to that, you had had considerable time off work. When you left the manager’s office, you went on to have a word with your supervisor giving them an impression that you have been approved to take some time off. You were booked on the next flight home on the 18th of March 2022 without having any leave form approved. A follow up call was made to you by your supervisor where you explained your situation. An option of leave application was presented to you for submission and you were requested to provide supporting documentation for any intended leave taken with an expected date of return to work as the 5th of April 2022 as per roster. You failed to communicate with your supervisor advising them of your inability to come back to work as previously agreed upon. This continued absence has further put on pressure to the department and your work colleagues. On the 10th of April you made contact with your supervisor and told them you have not read any of the correspondence that was sent to your email as you are still dealing with family issues and you had no idea of what your supervisor was asking for. Your last communication to your Supervisor was on Monday 11th of April 2022 after receiving an email from Payroll.
Since the beginning of the year, you have only worked for three days. Your continued absence is having an impact on your team and is affecting the business.
While the Company has been supportive of your leave to sort out your family issues for the past four months, you have now failed to provide your Supervisors with a definitive date of return to work.
Unless CPM receives notification from you by 5pm on 26 April 2022 that you intend to return to your employment, CPM will accept your resignation effective 26 April 2022. Any unauthorised absence after this date will be treated as unpaid leave.
Yours sincerely,
Terry Turner
Superintendent – HME Truck and Ancillary” (emphasis in original)
Termination of employment 26 April
[101] Mr Green did not respond in writing or by phone or text to the letter of 18 April 2022.
[102] Mr Dewar decided, after consulting the human resources department, that the lack of response by Mr Green to the letter of 18 April and his failure to provide a definitive date of return, together with prior opportunity to do so and his failure to apply for leave, were grounds for termination. Mr Dewar did not consult Mr Evans, who was on leave.
[103] By letter dated 26 April 2022 (sent subsequently by email), Citic terminated Mr Green’s employment. The letter read: 23
“Dear Campbell
TERMINATION OF EMPLOYMENT – ABANDONMENT
I refer to our letter to you dated 18 April 2022 sent to your personal email address.
To date we have not received a confirmed date of your planned return to work. The Company has made numerous attempts to contact you to get a definitive return date, which have been unsuccessful.
You have now failed to attend work since 18 March 2022. Your failure to provide your supervisors with a definitive date of your return to work is a breach of your contract of employment with CITIC Pacific Mining (CPM), specifically clause 23(b) – Unauthorised Absence, which provides that:
If an employee is absent from work for three (3) consecutive working days without authorisation, and without notifying the Company, their employment will be deemed to have been abandoned.
The Company is now exercising its right to terminate your employment effective as of the date of this letter. Any unauthorised absence prior to this date will be treated as unpaid leave.
An amount made up of your payment in lieu of notice along with any accrued but as yet untaken annual leave which may be owing to you as at the termination date will be paid to you.
Yours sincerely,
David Dewar
Superintendent – HME Truck & Ancillary” (emphasis in original)
[104] Citic provided Mr Green payment in lieu of notice.
[105] On 27 April 2022, one day after termination, Mr Green wrote to Mr Turner (copied to the other superintendents and Mr Evans) 24 protesting the termination, claiming that his employment had been terminated “due to a severe lack of communication between leadership”, that he was under the impression that Mr Evans had approved his leave, that his direct supervisor would complete an annual leave form on his behalf, that he informed Mr Crawford that he “would return to site on 7th June as I thought I was on annual leave until this point”, and that he was under the impression that “my phone call with Alan Crawford was sufficient”. Mr Green concluded:
“I will be seeking legal advice on this matter and regret that it all came to this, I considered myself a very dedicated employee of CPM and I believe my dedication was particularly highlighted during the past few years.”
[106] Mr Evans, who had been on leave at the time Mr Dewar made the decision to dismiss Mr Green, and who retained regard for Mr Green’s value as an employee notwithstanding his dismissal, exchanged text messages with Mr Green on 27 April 2022 following his termination. 25
[107] Mr Evans texted:
“Hey Campbell, I just returned from leave and saw an email this morning from HR terminating your employment for not providing a return date. It’s a shame it ended this way because you have been a very good contributor to HME and CPM. I would like to thank you for all you (sic) efforts and honesty for the period you were employed and wish you all the best with your future. Hope your house build goes well. Take care mate. Mark Evans”.
[108] Mr Green replied:
“It is what it is”; and then
“It’s good to know you cunts only think about numbers not employees as it goes to show no good workers stay. This is clearly is (sic) not a family friendly company, i (sic) had some dramas at home I had to deal with and I thought this company given how long I’ve been there and all I did during covid you guys would have backed me. And by the way Alan Crawford put me on leave with return to work in June…”
[109] Concerned at the way Mr Green had taken the termination, Mr Evans then telephoned Mr Green. He asked Mr Green why he had not given Mr Dewar a definitive date. Mr Green told Mr Evans that he (Mr Green) had told Mr Crawford “June”. Mr Evans said why then did he not give a definitive date when Mr Dewar asked. Mr Green then said “fine, my first roster in June” and then said “7th June”. Mr Evans said words to the effect “mate, it’s too late, the termination stands as its already been processed and you were provided plenty of opportunity”.
[110] Mr Green filed unfair dismissal proceedings under his own hand on 10 May 2022.
[111] Since dismissal, Mr Green has not applied for any other work although he believes that he could readily find work if needed. To date, he has preferred to remain with his family and caring for his children.
Mr Green
[112] Mr Green submits that his dismissal was harsh, unjust or unreasonable. He seeks an order for reinstatement with back wages.
[113] He claims his dismissal was unfair on three grounds:
• there was no valid reason for his dismissal;
• in the event of a valid reason, he was not treated fairly from a process point of view because there was communication from him to Citic but miscommunication amongst Citic managers; and
• in the event of a valid reason, his dismissal was harsh because it was a disproportionate response given the overall circumstances.
[114] On valid reason, Mr Green submits:
• he did not abandon his employment because the employer knew where he was, knew why he could not return to site and he had multiple conversations with representatives of the employer about these matters in the weeks preceding termination;
• he did give the employer a definitive date of return. He told Mr Crawford on 18 April 2022 that he would return on 7 June 2022;
• he had a reasonable belief when leaving the worksite on 18 March that Mr Evans had approved his departure and had approved him taking annual leave; and
• he had a reasonable belief when leaving the worksite on 18 March that, based on past company practice (including when he was moved from workers’ compensation to annual leave in December 2021), that a supervisor would complete the paperwork (leave application form) and submit it on his behalf.
[115] On procedural fairness, Mr Green submits:
• he was as responsive as he reasonably could have been to the employer after returning to Victoria, given his family responsibilities; and
• he was given different and confusing information by management about what his obligations were.
[116] On harshness, Mr Green submits:
• dismissal was a disproportionate response because he had genuine family reasons for leaving the site on 18 March and not being able to return until June 2022 and that it was unreasonable for Citic to force him to choose between his work and his family; and
• Mr Green had supported the company during the COVID period by continuing to work and not returning interstate to his family and, given that, Citic should have provided a greater degree of flexibility to accommodate his family responsibilities.
[117] On remedy, Mr Green submits:
• he should be reinstated with back pay because he needs the job and was a dedicated and valuable employee who genuinely can return to work without holding grudges and be productive and put this experience behind him, as he is respected by the mine manager as evidenced by the text he received from Mr Evans on 27 April.
Citic
[118] Citic submit that dismissal was not harsh, unjust or unreasonable and no issue of remedy arises.
[119] In respect to valid reason, it submits:
• there was a valid reason for dismissal having regard to Mr Green’s unauthorised absence from work for a prolonged (five week) period;
• Mr Green abandoned his employment by leaving the workplace on 18 March 2022 without approval; by not applying for leave or securing approval for leave on 18 March 2022 or at any time between 18 March and the dismissal on 26 April; by not returning to the workplace from at least 5 April 2022 when required on his next swing roster after 18 March; and by not advising the employer of when he would return to work; and
• in the alternative, even if Mr Green did not abandon his employment, his absence without leave and his failure to provide a definitive date for his return were valid reasons.
[120] In respect to procedural fairness, it submits:
• Mr Green was put on notice orally and in writing that he was required to apply for leave but failed to do so and had the opportunity but provided no reasonable excuse for not doing so;
• Mr Green was put on notice that he was required to return to work, but failed to do so and had the opportunity but provided no reasonable excuse for not doing so;
• Mr Green was put on notice orally and in writing that he was required to provide a definitive date for a return to work, but failed to do so and had the opportunity but provided no reasonable excuse for not doing so;
• Mr Green was warned orally and in writing that failure to meet these obligations could result in the termination of his employment; and
• Mr Green was provided multiple opportunities to respond and meet his obligations through multiple different managers and supervisors but failed to do so despite promising to do so.
[121] In respect to harshness, it submits:
• dismissal was a proportionate response to the conduct particularly in light of the steps taken to assist Mr Green to meet his obligations;
• no business could reasonably operate with a full-time employee determining when and if it is convenient to make themselves available for work; and
• Mr Green was not required by Citic to choose between his work and his family responsibilities. He was required to meet his employment obligations to attend for work when rostered or to seek authorised leave if unable or unwilling to work. The employer did not display a lack of empathy for his family responsibilities.
[122] On remedy, it submits:
• the employer reasonably lost trust and confidence in Mr Green despite the fact that he was otherwise a capable employee, evidenced by Mr Green’s lack of responsiveness to its requirement that he advise a definitive date of return;
• trust and confidence could not be reasonably restored given the vulgar and unsolicited views expressed by Mr Green prior to his termination about Mr Dewar and Mr Evans; and
• compensation should be nil because Mr Green has not sought to mitigate his loss. He was paid in lieu of notice. Mr Green said in evidence that he has not applied for a single job since dismissal preferring to remain at home with his family.
[123] There are no jurisdictional or preliminary issues arising.
[124] I am satisfied that Mr Green was a person protected from unfair dismissal within the meaning of s 382 of the FW Act. He served the required minimum employment period (s 382(a)). His annual rate of earnings did not exceed the high income threshold (s 382(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of the FW Act. His application was filed within the required 21-days after dismissal.
[125] The employer is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.
[126] I now consider whether Mr Green’s dismissal was unfair.
[127] I take into account all evidence and submissions before me. Given the breadth of evidence, I specifically deal with matters most material to arriving at a decision. Some evidence and submissions are not referenced, not because I have not considered them, but because doing so would add excessive length to these reasons.
[128] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason
[129] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. 26 In considering whether a reason is valid, the requirement is to be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.
[130] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
[131] The reason for termination must be defensible on an objective analysis of the relevant facts. Other than in cases of summary dismissal by a small business,27 it is not enough for an employer to establish that it had a reasonable belief that termination was for a valid reason.28 In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. The employer bears the evidentiary onus of proving conduct on which it relies.
[132] Facts justifying dismissal which existed at the time of the termination can be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.29
[133] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.30
[134] In this matter, the reason for dismissal advanced by the employer in the letter of termination was “abandonment of employment” within the meaning of cl 23(b) ‘Unauthorised Absence’ of the Agreement.
[135] According to the letter, the particulars relied upon was “your failure to provide your supervisors with a definitive date of your return to work”.
[136] The employer asserts that this failure was a breach of contractual obligations.
[137] Noting that for the purposes of s 387(a) the relevant issue is whether there was a valid reason for dismissal and not necessarily the reason as notified by the employer, I turn firstly to the reason relied upon – abandonment of employment.
[138] The legal principles associated with abandonment of employment are well established. The test is an objective one: whether the employee’s conduct is such to convey to a reasonable person in the position of the employer, and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment. 31
[139] In this matter, the concept is more specifically defined by cl 23(b) ‘Unauthorised Absence’ of the Agreement, which provides:
“If an employee is absent from work for three (3) consecutive working days without authorisation, and without notifying the company, their employment will be deemed to have been abandoned.”
[140] Was Mr Green’s absence between 19 March 2022 and 26 April 2022 authorised by Citic?
[141] This period encompassed two full swings. 32
[142] Two days into the first swing (which commenced 15 March) Mr Green returned to Victoria despite his roster requiring him to work until 28 March.
[143] I have found that on 18 March 2022 Mr Evans agreed to Mr Green returning to Victoria and not completing the swing but on the condition that his absence be taken as a form of leave to which he was entitled and that he apply for leave and secure that agreement before leaving the mine site.
[144] Mr Green did not meet these conditions. He did not apply for leave before leaving the site. He did not obtain the approval of a supervisor or superintendent to take leave before leaving the site. Further, at no time after having returned to Victoria and during the remainder of the swing did Mr Green apply for leave or obtain approval for leave.
[145] As Mr Green did not meet the conditions advised by Mr Evans to leave the site, his absence during the swing was not authorised.
[146] The second swing was scheduled from 5 April to 25 April. Mr Green’s roster was to work two weeks from 5 to 18 April (inclusive), and be off from 19 to 25 April (inclusive).
[147] I have found that Mr Green was told by Mr Dewar on 29 March 2022 that he (Mr Green) was next rostered on 5 April 2022 and was required to be at work unless his absence on leave had been approved.
[148] I have also found that Mr Green did not return to the mine site on 5 April 2022, made no contact with Citic prior to 5 April 2022 (despite being asked to do so), and did not apply for leave or obtain approval for leave either prior to or during the period of this second swing.
[149] As Mr Green did not meet the conditions advised by Mr Dewar to be absent from the site, his absence during the second swing was not authorised.
[150] Did Mr Green notify Citic of his absences?
[151] Leaving aside that his absences were not authorised, Mr Green had notified Mr Evans on 18 March that he would be absent for the remainder of the first swing.
[152] During the period of the second swing Mr Green was unresponsive for significant periods of time, but not for the entire period.
[153] He spoke to Mr Dewar on 29 March, 10 April and 11 April, Mr Youd on 10 April and Mr Crawford on 18 April, though only once (11 April) on his initiative.
[154] In broad terms, Citic were not unaware of Mr Green’s whereabouts or the reason why he was choosing to remain at home. To that extent the employer was aware of his absence, but had not authorised it.
[155] However, the promises Mr Green made to apply for leave never materialised.
[156] Further, the request made orally by Mr Crawford on 18 April 2022 and then in writing by Mr Turner on 20 April 2022 that he provide a “definitive date of return to site” was not complied with. I have found that Mr Green, when pressed by Mr Crawford on 18 April, said words to the effect “hopefully June”. This fell short of a definitive date. I have found that the first mention of a specific date by Mr Green was following dismissal, when Mr Green belatedly proffered to Mr Evans (when pressed) “7 June” but was told that it was all too late.
[157] Whilst it is open on the facts to find that Mr Green abandoned his employment by failing to attend work without approval or prior notice, I need simply to determine whether a valid reason for dismissal existed.
[158] The employer’s direction to not be absent from work unless on authorised leave was lawful and reasonable.
[159] The employer’s direction that he attend work for the roster commencing on 5 April 2022 unless leave had been applied for and authorised was lawful and reasonable.
[160] The employer’s direction that he provide a “definitive date of return to site” was lawful and reasonable.
[161] Mr Green was sent emails, text messages, voice messages and he missed calls. Despite being absent from work and on specific notice that he needed to regularise his absence, he largely left it to Citic managers to initiate communication to ascertain his intention. He only responded when he wanted to and on his terms. He belatedly called Mr Dewar back on 10 April, and then quickly on 11 April when he realised he would no longer be paid for not being at work. He chose not to look at his emails for almost two weeks from 29 March to 10 April despite being told on 29 March that Mr Dewar was emailing him important information about the types of leave he could apply for and his obligation to apply for leave if absent from work.
[162] I do not accept Mr Green’s submission that he reasonably expected his supervisor or manager to apply for leave on his behalf. Irrespective of whether this had occurred when he was moved from a workers’ compensation absence to an annual leave absence in December 2021, it was specifically not what he was directed to do in March and April 2022. Both in writing and orally, by the mine manager, superintendents and his supervisor, he was told that he needed to apply for leave and have leave authorised, and that he would not be granted unpaid leave of absence.
[163] Mr Green was not ignorant of this obligation. In his evidence he readily conceded: 33
“you can’t leave the site unless you are under some type of leave”
[164] To the extent Mr Green advanced reasons for not doing so, they are not convincing. In evidence he claimed that he was limited with technology and didn’t have access to a hard copy leave form. There is no evidence he asked for one. Inconsistently, he claimed that he had a half completed leave form on 18 March (evidence which I have not accepted). He did not apply for leave electronically or by email. His claim that he was waiting for a doctor’s appointment to sustain a carer’s leave application does not explain why he did not apply for annual leave and was a claim proffered a month after he had already left the workplace without authorisation.
[165] The overall conclusion I draw from the evidence is that Mr Green displayed an indifference to his employment obligations, including to the specific and repeated directions to not be absent without authorisation, to attend work on 5 April unless leave had been approved and to provide a definitive date of return.
[166] Having left the workplace (and the State) to attend to his domestic circumstances, Mr Green then allowed his personal circumstances to override his obligations to Citic and cloud his judgement. He saw contact from Citic as being pushy and unwelcome when in fact it was reasonable management action taken in a reasonable manner.
[167] In material ways, Mr Green was torn. Understandably, he wanted the income earned from working in the mining industry but his family circumstances had changed and absence from family was now less tolerable with his wife working. He also wanted Citic to give him permission to be back in Victoria but was reluctant to draw down further on his annual leave accrual to do so. This in part explains his failure to apply for annual leave. In evidence he described annual leave accruals as “like money in the bank…it’s a buffer”. 34
[168] Aside from the fact that he did not apply for leave, Mr Green nonetheless assumed that he had leave entitlements to take him through to June 2022, and would remain home for as long as he thought he would be paid. He had 195 hours of annual leave accrued. 35 Even including five days carers leave it is not clear that this would have been sufficient to cover absence until June. However, as Mr Green stated in evidence:36
“I was trying to…stay at home as long as I can with my family.”
[169] In the face of express advice to the contrary, Mr Green thought that his supervisors and managers would regularise his absence and allow him to stay in Victoria and keep paying him until his financial situation, and not his employment obligations or the calming of family circumstances, forced him back to the Pilbara.
Conclusion on valid reason
[170] To fairly assess whether a valid reason existed, Mr Green’s conduct needs to be objectively assessed against his contractual obligations as a whole and considered in the context of surrounding circumstances applicable at the time of relevant conduct.
[171] There was a valid reason for dismissal.
[172] Objectively considered, there was a sound, defensible and well-founded reason. The employer did not manufacture or mislead Mr Green nor act capriciously or for prejudicial reasons.
[173] The failures by Mr Green to comply with lawful and reasonable directions to apply for leave, to attend for work unless absence was authorised and to provide a definitive date of return to work were breaches of his employment obligations which, individually and collectively provided a valid reason for dismissal.
[174] A valid reason weighs against a finding of unfair dismissal. 37
Notification of reason for dismissal
[175] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment38 and in plain and clear terms.39
[176] Mr Green was advised by letter dated 26 April 2022 that he was dismissed and the reason.
[177] He was also advised his dismissal was on notice with payment in lieu.
[178] Whilst Mr Green considered the reason for dismissal unjustified, he was informed in those terms.
[179] This is a neutral consideration.
Opportunity to respond
[180] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.40
[181] The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.41 Where an 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, that is enough to satisfy this consideration.42
[182] The evidence clearly established that Mr Green had multiple opportunities, orally and in writing and formal and informal, to respond to the obligations he had to regularise his absence by applying for and being granted leave, to attend work unless leave had been approved and to advise of a definitive date of return.
[183] These opportunities arose at least across a four week period from 29 March 2022. Even if Mr Green was operating under a misunderstanding when he left the workplace on 18 March 2022, his obligations beyond 28 March 2022 were made patently clear at the time of the discussion with Mr Dewar on 29 March 2022.
[184] Mr Dewar invited Mr Green to respond to his email sent late that day and Mr Green chose to ignore it until followed up by Mr Youd and then Mr Dewar on 9 and 10 April. That email stated:
“If you wish to book further time off after these dates please indicate the type of leave and duration for approval.”
[185] The discussions with Mr Dewar on 29 March (twice), 10 April and 11 April, with Mr Youd (9 April) and with Mr Crawford (18 April) were all opportunities to respond. Promises (to apply for leave) were made and not followed through.
[186] Mr Green was given two further opportunities in the final week of his employment. Even in the face of a stark warning in the letter of 18 April 2022 (albeit not emailed until 20 April) that he needed to make contact and advise his position by 5pm on 26 April, Mr Green made no contact with any company officer in that final week.
[187] Mr Green was also put on notice of the consequences of failing to meet his obligations.
[188] He was advised by Mr Dewar (on 10 April) that his stance could affect his future employment, and then by Mr Crawford (on 18 April) that the matter had been escalated to the human resources department.
[189] Mr Turner’s letter of 18 April 2022 served as a formal written notice that his employment would be at risk if he did not comply with the employer’s requirements, and Mr Turner’s accompanying email made it clear that a “definitive date” of return was required.
[190] Mr Green was not bullied. Management took reasonable steps to assist Mr Green to comply with his obligations and was professional in communication. Management displayed appropriate sensitivity to his family circumstances but it was not unreasonable for the managers to be increasingly firm in their communication about his obligations as Mr Green allowed the weeks to slip by without applying for leave.
[191] Considered overall, I do not conclude that Mr Green was denied procedural fairness.
[192] This consideration does not weigh in favour of a finding of unfairness.
Opportunity for support person
[193] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
[194] Mr Green did not request a support person. The employer did not unreasonably refuse Mr Green a support person.
[195] This is a neutral consideration.
Warnings concerning performance
[196] Mr Green was a competent employee. No issue of previous conduct or previous unauthorised absences from work arise or were relied on by Citic.
[197] The written notice of 18 April 2022 did not concern prior events but was part of the sequence of events that formed the reason for termination.
[198] In the circumstances this is a neutral consideration.
Size of enterprise and human resource capability
[199] The employer is a large business with a dedicated human resource capacity. It is not a small business within the meaning of the FW Act.
[200] There is no sense in which the size of the employer or its internal human resources capacity mitigate any shortcomings in managing workplace or disciplinary matters.
[201] This is a neutral consideration.
Other matters
[202] Mr Green submits that the dismissal, even if for a valid reason, was unfair because it was harsh. The grounds on which harshness is asserted are considered below.
Harsh because it was a disproportionate response given his family responsibilities
[203] Mr Green submits that his dismissal was a disproportionate response because he had genuine family reasons for leaving the site on 18 March and not being able to return until June 2022 and that it was unreasonable for Citic to force him to choose between his work and his family.
[204] I do not accept this submission.
[205] An obligation to attend work when rostered and lawfully required is fundamental to a functioning employment relationship.
[206] An obligation to apply for leave and ensure that each period of absence from work is authorised by leave is equally fundamental.
[207] An obligation to advise a definitive return date so far as is reasonably possible after a period of absence, particularly a period of unauthorised absence, is central to the employer being able to meet its operational needs in an orderly way. This is especially so in the case of a FIFO employee working on the other side of the continent from where they live.
[208] These were obligations held by Mr Green. They were not trivial nor capable of being put to one side. Breach was serious and had material consequences for the business and its management of labour. No business can reasonably operate with a full time employee determining when and if it is convenient to make themselves available to work or being indifferent to regularising their absences or advising future availability.
[209] Reconciling tensions between work and family is a significant contemporary workplace issue and involves mutual responsibility of both employers and employees.
[210] No doubt Mr Green was torn by the tension between domestic demands on one side of the country and work obligations on the other. He put it succinctly in his evidence: 43
“I don’t want to lose a family over a job, but I want to keep a family and a job.”
[211] However, Citic did not display a lack of empathy for his family responsibilities. After being back on site for only two days, Mr Evans permitted him to leave if he secured approved leave. He was not stopped from leaving; he was permitted to leave but on conditions. Mr Dewar was empathetic especially in his 29 March discussion. Mr Green was given reasonable time to regularise his absence. More than a week passed after his return to Victoria before being contacted by Mr Dewar. After that, four further weeks was provided, including absence during a full swing shift, before he was dismissed.
[212] Mr Green was not required by Citic to choose between his work and his family responsibilities. He was simply required to meet basic and fundamental employment obligations to attend for work when rostered or to seek authorised leave if unable or unwilling to work.
[213] The responsibilities Mr Green was attending to were not unusual or inherently indeterminate. His wife and children wanted him home. He wanted to care for his children, including whilst his wife was at work. He did not want his marriage to fail. He wanted to be a dad known to his children.
[214] These were all laudable and creditworthy objectives. They are held by most working parents.
[215] I take into account that the unique circumstances of a FIFO worker may magnify the challenge of reconciling work and family, especially a FIFO worker such as Mr Green living and working on polar sides of the continent. Full time presence at home for a week followed by full time absence for a fortnight may come with benefits and negatives. The remuneration of a FIFO worker may entice, but the consequence to family may be a draw-back.
[216] I pass no general view on what standard of flexibility an employer of FIFO workers should meet to reasonably assist or accommodate employees to reconcile work and family. I decide this matter simply by reference to Citic’s dealings with Mr Green, and Mr Green’s dealings with Citic.
[217] The demands made of Mr Green were reasonable, capable of being met, and represented basic minimum requirements.
[218] Given that Mr Green had chosen to be employed as a FIFO worker, his obligations were to at least meet the minimum requirements of working when rostered and to seek and secure authorised leave of absence. Mr Green was provided a pathway to regularise his absences (by applying for and obtaining leave) if he considered family priorities to be paramount. This he did not do.
[219] In the overall circumstances, dismissal was a proportionate response particularly in light of the steps taken by Citic to assist Mr Green to meet his obligations
Harsh because Mr Green had continued working at the mine site during COVID and not returned to his family
[220] Mr Green submits that he had supported the company during the COVID period by continuing to work in Western Australia and not returning interstate to his family and given that, Citic should have provided a greater degree of flexibility to accommodate his family responsibilities.
[221] I have found that during the pandemic, Mr Green chose to remain at the mine site for long periods and work and earn an income, rather than return home to Victoria, risk not getting back over the border and risk consequent stand down or loss of income.
[222] In so doing, Mr Green demonstrated loyalty to the company. He was away from his family for the best part of eighteen months, returning for only a handful of weeks. No doubt he dreadfully missed his wife and children, and they he.
[223] Mr Green’s decision was not entirely altruistic. It was in his interests and that of his family for him to keep earning a full wage in the Pilbara and not risk being stood down and left on government-funded support, as many thousands of other Australian employees were at that time.
[224] The quid pro quo Mr Green seeks is that Citic ought to have made special allowance for him in March to June 2022 in return for the decision he made to keep working in the Pilbara during 2020 and 2021.
[225] I have noted that it is not the Commission’s role to assess the fairness of a dismissal by putting itself in the shoes of the employer and deciding what the employer could have or ought to have done. Rather, it is the Commission’s role to objectively assess whether what was done was fair in all of the circumstances irrespective of whether other or different decisions could have been made.
[226] I do not consider that Mr Green’s past commitment to his job (altruistic or not) offset or discounted his obligation to meet ongoing and fundamental employment obligations.
[227] Dismissal was not harsh on this ground.
[228] There are no other relevant matters that arise or were advanced.
[229] Unfair dismissal matters are multifactorial.44
[230] In considering whether Mr Green’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in s 387 of the FW Act to the extent relevant.45 Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in s 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
[231] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.46
[232] I have found a valid reason for dismissal.
[233] I have found that the dismissal was not procedurally unfair.
[234] I have not found that the dismissal was harsh having regard to Mr Green’s family responsibilities when assessed against his employment obligations, or by reference to his past work and commitment to the company.
[235] This matter is ultimately about Mr Green’s conduct and obligations as an employee. The circumstances in which he found himself highlight the challenge of a FIFO worker trying to reconcile work on one side of the country with family on the other. They also highlight the challenge of a company in a significant export industry trying to manage operational needs and labour supply with employees scattered across the nation.
[236] Ultimately though, Mr Green was not required by the employer to choose between work and family. If that was to be a choice, it was Mr Green’s alone as to whether ongoing FIFO work was compatible with his then or changed family circumstances. Mr Green was given time and options to find a pathway through his dilemma. Through indifference to his employment responsibilities he failed to meet fundamental obligations such as seeking authorised leave of absence or advising his specific intentions. Those failures then exposed him to the risk of dismissal. Even in the face of a stark warning the week prior to advise a definitive position by 26 April, he failed to make contact. Dismissal was ultimately the consequence. When, in the shadow of having been dismissed, he sought to do what he should have done weeks earlier, it was too late.
[237] Mr Green’s dismissal was not in an objective sense unfair.
[238] Although dismissal was ultimately of Mr Green’s making and avoidable on his part, it was nonetheless a regrettable end to a relationship that had been productive and beneficial. No-one won from dismissal. Mr Green lost a job on the other side of the country that earned he and his family good money. Citic lost a skilled technician with five years of experience in and around heavy mining equipment and whose work the mine manager valued.
[239] Regrettable as it was, these were the consequences of choices and decisions made.
[240] Having not found the dismissal harsh, unjust or unreasonable, no issue of remedy arises.
[241] Mr Green’s application is dismissed. An order 47 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Mr C Green with Ms J Pula, on his own behalf
Mr R Wade, with permission, with Mr P Stillman on behalf of Citic Pacific Mining Management Pty Ltd
Hearing details:
2022
Adelaide (by video)
25 August
Printed by authority of the Commonwealth Government Printer
<PR745834>
1 Reasons for Decision via email ‘Chambers - Anderson DP’ 15 August 2022 2.42pm
2 CG1
3 CPM12
4 CPM2
5 CPM3
6 CPM4
7 AC1
8 [2019] FWCA 2055; Digital Court Book pages 100 - 141
9 CPM2 paragraphs 16 to 22
10 MJE2
11 DSD5
12 DSD6
13 DSD4
14 CPM3 paragraph 33
15 Ibid paragraph 33(b)
16 DSD7
17 CPM2 paragraph 26
18 CPM1 paragraphs 14 to 19
19 AC1
20 CPM1 paragraph 14
21 CG4 page 3
22 CG2
23 CG3
24 CG4
25 MJE1
26 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]
27 Small Business Fair Dismissal Code: section 388(2) FW Act
28 see Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 and Rode v Burwood Mitsubishi AIRCFB Print R4471
29 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468
30 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)
31 Shamrock Consultancy Pty Ltd v Ah San [2021] FWCFB 274 at [17] citing Re Manufacturing and Associated Industries and Occupations Award 2010 [2018] FWCFB 139 at [21], [24]
32 CG5
33 Audio 25.8.22 12.33pm
34 Audio 25.8.22 12.56pm
35 CG6
36 Audio 25.8.22 1.23pm
37 Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at [24]
38 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]
39 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
40 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]
41 RMIT v Asher (2010) 194 IR 1 at 14-15
42 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
43 Audio 25.8.22 1.18pm
44 Jones v Brite Services [2013] FWC 4280 at [24]
45 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
46 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]