Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Rudy Burkhardt
v
Qube Ports Pty Limited
(U2021/9115)

Mr Adrian Pedder
v
Qube Ports Pty Limited
(U2021/9181)

Mr Craig Miller
v
Qube Ports Pty Limited
(U2021/9183)

Mr Igor Butsenko
v
Qube Ports Pty Limited
(U2021/9185)

Mr Richard Iki
v
Qube Ports Pty Limited
(U2021/9190)

Mr Tym Brazel
v
Qube Ports Pty Limited
(U2021/9192)

Applications for an unfair dismissal remedy.

[1] On 21 September 2021, Mr Rudy Burkhardt was notified by his former employer Qube Ports Pty Limited (Qube/the Respondent) that his employment was terminated. Mr Adrian Pedder, Mr Craig Miller, Mr Igor Butsenko, Mr Richard Iki and Mr Tym Brazel were notified by the Respondent that their employment was terminated on 24 September 2021. The applicants are jointly referred to throughout this decision as the Applicants. Prior to their termination, the Applicants worked as Shift Managers at Qube’s Fremantle Terminal.

[2] On 12 October 2021, Mr Burkhardt filed his application with the Fair Work Commission (the Commission) for an Unfair Dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Pedder, Mr Miller, Mr Butsenko, Mr Iki and Mr Brazel filed their applications pursuant to s.394 on 15 October 2021. The applications are jointly referred to throughout this decision as the Applications.

Background

[3] The Applications arise from the same set of circumstances at Qube’s Fremantle Terminal in July, August and September 2021. The Applicants were Shift Managers who were asked to perform stevedoring work at the terminal during a period when the stevedoring employees were taking protected industrial action. The Shift Managers declined the request and were dismissed for allegedly not following a lawful and reasonable direction.

[4] The Applicants’ individual circumstances are outlined as below.

[5] Mr Burkhardt is 49 years old. He commenced employment with Qube as a Shift Manager at its Fremantle Port on 11 September 2019. He commenced work as a stevedore in New Zealand in 1989 and worked there as a Shift Manager in 2002. He moved to Australia and worked for Patrick Stevedores Ltd from 2012 to 2016. He returned to New Zealand in 2016 and worked as a tutor in health and safety until 2019. In 2019 he moved back to Australia and in September 2019 commenced work with Qube. He was dismissed by Qube on 21 September 2021.

[6] Mr Pedder is 47 years old. He commenced employment with Qube as a Shift Manager at its Fremantle Port on 2 February 2021. He relocated from Brisbane to take the role. He commenced working in the stevedoring industry in 1992 when he commenced as a stevedore for Patrick Stevedores in Brisbane. He worked there for 17 years. In 2010 he took up a Shift Manager role at Bulk Cargo Services in Brisbane. He worked in that role for 11 years before relocating to take up the Shift Manager role with Qube. He was dismissed by Qube on 24 September 2021.

[7] Mr Miller is 45 years old. He commenced employment with Qube as a stevedore on 23 February 2000. He took voluntary redundancy in December 2009. He was asked to return to Qube to take the role of Shift Manager from September 2011. He was dismissed by Qube on 24 September 2021.

[8] Mr Butsenko is 35 years old. He was employed by Qube at the Fremantle port on 25 August 2014, initially as a Logistics Coordinator and then as a Shift Manager from 2017. Prior to that he worked at various logistics companies in the Ukraine as an office worker. He immigrated from the Ukraine in August 2014. He was dismissed by Qube on 24 September 2021.

[9] Mr Iki is 57 years old. He was employed by Qube as a Shift Manager from 12 February 2018. He worked for Patrick Stevedores as a Shift Manager from 2010 to 2016. He was dismissed by Qube on 24 September 2021.

[10] Mr Brazel is 36 years old. He was employed by Qube as a Shift Manager from 22 March 2021. Prior to Qube, he was a stevedore at DP World at Port Botany. He has a partner and twin sons aged 2.5 years old. He relocated his family from Sydney to take the role at Qube in Fremantle. He was dismissed by Qube on 24 September 2021.

[11] The Applicants were dismissed by letter. Mr Burkhardt’s letter of termination is dated 21 September 2021. The other 5 Applicants’ termination letters are dated 24 September 2021. The letters were signed by Michael Kranendonk, Manager – Western Australia. All of the letters provided the same reason for dismissal, with the operative words being:

“… Qube is now satisfied that you failed to follow a lawful and reasonable direction on 29 July 2021 and 2 August 2021 and that your conduct constituted serious misconduct in this regard. Your unsatisfactory responses and lack of contrition have failed to show cause as to why your employment should not be terminated and have caused a further diminution in Qube’s trust and confidence in your ability to perform your duties in the important role as a Shift Manager. Qube is now of the view that the requisite trust and confidence cannot be restored.”

[12] These words occur in all of the termination letters save that Mr Burkhardt’s letter refers to a lawful and reasonable direction on 9 August 2021 not 29 July 2021 and 2 August 2021, whilst Mr Miller’s letter refers to a lawful and reasonable direction on 17 August 2021 not 29 July 2021 and 2 August 2021.

[13] The Applicants seek an order for reinstatement, an order that Qube pay any remuneration lost because of the dismissal, and an order that Qube maintain their continuity of employment.

Relevant legislative provisions

[14] The relevant provisions of the Act in relation to an unfair dismissal application are:

“381  Object of this Part

             (1)  The object of this Part is:
                     (a)  to establish a framework for dealing with unfair dismissal that balances:
                              (i)  the needs of business (including small business); and
                             (ii)  the needs of employees; and
                     (b)  to establish procedures for dealing with unfair dismissal that:
                              (i)  are quick, flexible and informal; and
                             (ii)  address the needs of employers and employees; and
                     (c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
             (2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and 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 employee concerned.

Note:          The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“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.”

Applicants’ Submissions

[15] The Applicants submit that the reason for their dismissals was confined to a limited series of events, being the alleged refusal of duty by the Applicants. The Applicants submitted that further to the issuing of the show cause letters by the Respondent, their representative, Slater and Gordon, provided responses to those letters. The Applicants submitted that there was a lengthy exchange of correspondence, in which the Respondent repeated the same allegations ‘in various ways’ and which the Applicants consistently denied.

[16] To assist in contextualising their unfair dismissal cases, the Applicants provided a chronological background, which is set out in full below. It is accepted that the Respondent does not agree with all of the assertions contained in this summary.

“In late July 2021 Qube’s stevedoring workforce took protected industrial action.

In the afternoon of Thursday 29 July 2021 Messrs Pedder, Iki and Brazel were required to attend a meeting at the Qube’s Fremantle Office. Also present at the meeting was Mr Kranendonk, Paul Scallan, Maintenance Manager and Jonathon Roberts another Shift Manager. The meeting was unscheduled and there was no agenda and no minutes taken.

Once all participants were in the office Mr Kranendonk locked the door of the office. Mr Kranendonk then referred to a document that he had that he wished all of them to sign if they wanted to be “involved”. By involved those present understood him to mean the company’s response to the protected industrial action of the stevedores.

When pressed for details of what he was referring to Mr Kranendonk was evasive. When asked if he would provide a copy of the document he wished signed he refused. He also refused to explain what was in the document. Messrs Pedder, Iki and Brazel declined to sign the document and were told that they were free to leave the meetings and that there were “no hard feelings”.

No direction, lawful, reasonable or otherwise, was given to Messrs Pedder, Iki or Brazel on 29 July 2021. The reference to a lawful and reasonable direction being given on 29 July 2021 in the termination letters is wrong.

Mr Butsenko was not at work on 29 July 2021. He could not have been given a direction, lawful, reasonable or otherwise. The reference to a lawful and reasonable direction being given to him on 29 July 2021 in his termination letter is also wrong.

In the afternoon of 30 July 2021 Mr Kranendonk met with Mr Miller in Mr Kranendonk’s office. At that meeting Mr Kranendonk asked Mr Miller if he would part of the part (sic) of the industrial action. Mr Miller understood that to mean would he cross the picket line and perform stevedoring work. Mr Miller said that he would not. Mr Miller asked if he could take some annual leave instead and Mr Kranendonk agreed. Mr Miller had no shifts on 31 July 2021and 1 August 2021. He commenced two weeks’ leave on 2 August 2021.

On the morning of 2 August 2021 Messrs Butsenko, Pedder, Iki, Brazel were performing their usual work in the office at Qube at Fremantle when Mr Kranendonk approached them. He asked others to leave so that he could speak with Messrs Butsenko, Pedder, Iki, Brazel.

Mr Kranendonk addressed the four men saying that he wanted them to go to the yard and consolidate the yard in preparation for an incoming vessel. The four men made it clear that they believed the work they were being requested to do was Stevedoring work and that they could not perform it. The reasons given for being unable to perform the work was that they were not trained to perform the work and did not have the requisite tickets including Verifications of Competency. They told Mr Kranendonk that they were willing to continue to do the Shift Managers work that they usually performed.

Mr Kranendonk responded by telling the Shift Managers that they were stood down without pay and they were to leave their phones and laptops behind.

Messrs Butsenko, Pedder, Iki, Brazel left at that time and have not worked at Qube since. Later the same day, Messrs Butsenko, Pedder, Iki and Brazel received letters from Mr Kranendonk confirming the stand down. The letters did not advise whether the stand down was on pay or not on pay.

On 9 August 2021 Mr Burkhardt was required to attend a meeting with Mr Kranendonk. Mr Burkhardt had been on leave since 1 July 2021 and 9 August 2021 was his first day back following that leave.

The meeting on 9 August 2021 happened at the beginning of shift at 8.00am. Mr Kranendonk met with Mr Burkhardt alone. At the meeting Mr Kranendonk referred to the protected industrial action of the stevedores and said, “we all have to do other types of duties such as stevedoring work” and then asked Mr Burkhardt “are you in or out?”.

Mr Kranendonk asked Mr Burkhardt to do stevedoring work. Mr Burkhardt replied that he was not able to do stevedoring work because he did not have the relevant VOC. He said that he was willing to continue to do his role as a Shift Manager or offered to take further annual leave because he did not want to do stevedoring work.

Mr Kranendonk declined the request for annual leave and told Mr Burkhardt to leave his laptop and mobile phone as he was stood down. Mr Burkhardt left Qube’s premises and has not worked there since. Later the same day, Mr Burkhardt received a letter from Mr Kranendonk confirming the stand down. The letter did not advise whether the stand down was on pay or not on pay.

On 11 August 2021 Mr Kranendonk wrote separately to Messrs Brazel, Iki, Pedder, Butsenko and Burkhardt. The letters were in similar terms. The letters informed the Shift Managers that they were stood down with pay, that their conduct was to be investigated and requested them to show cause why their employment should not be summarily terminated for misconduct.

The letters set out the following allegations:

On 29 July 2021 and 2 August 2021, it is alleged that you refused to work as required in that you refused to participate in task allocation for upcoming shifts and refused to perform other reasonable tasks for the Company that were clearly within your skills, training and experience in your role as a Shift Manager and in order to assist the Company to meet its operational requirements.

Mr Butsenko’s letter differed in that it only referred to 2 August 2021 and did not mention 29 July 2021 Mr Burkhardt’s letter referred to 9 August 2021 in place of 29 July 2021 and 2 August 2021.

On 17 August 2021 Mr Miller returned to work. He was required to attend a meeting with Mr Kranendonk and Sam Lee, the Operations Manager at Fremantle. At the meeting Mr Kranendonk asked Mr Miller if he knew what was going on. Mr Miller understood that the stevedores were on strike, that managers were attending work via boat to avoid the picket line and that the managers were performing stevedoring work.

Mr Kranendonk asked Mr Miller if he would be “part of it”. Mr Miller understood that he was being asked to cross the picket line and perform stevedoring work. He told Mr Kranendonk that he would not perform stevedoring work and that he was willing to perform his role as Shift Manager. Mr Miller also offered to be relocated to perform Shift Manager work at another Qube Port.

Mr Kranendonk did not accept Mr Miller’s offers and the meeting ended at that point with Mr Miller leaving to seek legal advice. Mr Miller did not receive any calls or emails from Qube in the days following that meeting as is the usual case to advise him of his allocated Shift Manager duties for each day. Mr Miller understood that he was stood down, and this was confirmed by letter from Qube dated 23 August 2021.

On 20 August 2021 Slater and Gordon Lawyers wrote to Mr Kranendonk on behalf of Messrs Brazel, Iki, Pedder Butsenko and Burkhardt. The letter responded that the Shift Managers understood that the Shift Managers had been asked to perform stevedoring work, that they had declined because they were not trained and did not have the relevant VOCs to do such work. The letter contended that terminating the employment of the Shift Managers would be harsh unjust and unreasonable as the Shift Managers

… held and continue to hold a legitimate fear that undertaking stevedoring work would expose them or others to a risk of imminent and serious injury or imminent and serious harm to their health. They do not have current qualifications and training to perform stevedoring work. They do not have the VOC that Qube requires of employees who perform stevedoring work. Our clients have a legal right under the Occupational Health and Safety Act 1984 (WA) to refuse to work in such circumstances. Further, Qube Ports has a statutory requirement under the same legislation to provide a safe working environment in which Qube Ports employees are not exposed to hazards and must provide such training as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards.

It is without question that our clients do not have the necessary “skills, training, or experience” nor do they hold the necessary VOC to operate stevedoring machinery and undertake stevedoring work in general without exposing themselves or others to hazards in the workplace.

Additionally, there is no express provision, nor can there be an implied provision in their employment contracts that require them to do the duties of a stevedore.

As such, your direction that our clients undertake stevedoring work is not a reasonable nor a lawful directive.

The letter went on to complain that the Shift Managers had not been given any documentation, nor been contacted to participate in any investigation about their conduct. They had also not been provided with any findings of fact leading to the allegations. It was also pointed out that the Shift Managers were suspended from duty in circumstances where there was no basis to do so.

On 23 August 2021 Mr Kranendonk wrote to Mr Miller. The letter was in similar terms to the letter sent to the other Shift Managers on 11 August 2021. It alleged that he had refused duty on 17 August 2021 and required him to show cause why he should not should not (sic) be summarily dismissed.

On 26 August 2021 Slater and Gordon Lawyers wrote to Mr Kranendonk on Mr Miller’s behalf in response to the letter of 23 August 2021. The letter was in similar terms to the letter on behalf of the other Shift Managers dated 20 August 2021. It pointed out that in Mr Miller’s case there did not purport to be an investigation into the allegations. It stated that Mr Miller was also concerned that performing stevedoring work would be unsafe as he did not have the requisite training or VOC’s. It contended that any direction to perform such work was neither reasonable nor lawful. The letter again pointed to the unfairness in Mr Miller being suspended from duty and that his dismissal in all of the circumstances would be unfair.

On 27 August 2021 Mr Kranendonk wrote to Messrs Brazel, Iki, Pedder, Butsenko and Burkhardt. The letter invited each of the Shift Managers to separate meetings on 30 August 2021 to discuss the allegations before making a final decision.

Messrs Brazel, Iki, Pedder and Butsenko were unable to attend the meeting on 30 August 2021 on medical advice.

On 30 August 2021 Mr Burkhardt attended a meeting with Mr Kranendonk and Emily Link, a Human Resources employee of Qube and his support person Aleks Ceklic, Solicitor. At that meeting he was asked whether he was refusing to come to work. He replied that he was not and that he was happy to do his work as a Shift Manager but that he did not want to cross the picket line and perform stevedoring work due to safety concerns.

On 2 September 2021 Mr Kranendonk wrote to Mr Burkhardt setting out an account of the meeting on 30 August 2021 and indicating that Qube had formed the preliminary view that his responses were inadequate to show cause why he should not be terminated for failing to follow a reasonable and lawful direction to perform alternative work which was both reasonable and safe to perform in your role as a Shift Manager. It stated that Qube had concluded that Mr Burkhardt’s conduct on 9 August 2021 constituted serious misconduct. The letter gave Mr Burkhardt a final opportunity to show cause why his employment should not be terminated for serious misconduct.

On 3 September 2021 Mr Kranendonk wrote to Messrs Brazel, Iki, Pedder and Butsenko. The letters were in similar terms. They directed the Shift Managers to answer 9 questions. The questions went to: What directions the employees had been given. Whether they had refused duty. Which of the duties requested required VOC’s? Whether they accepted that they could be directed to perform alternate duties. Whether Qube could have trust and confidence in them given they failed to perform a lawful and reasonable direction. Whether there was anything in mitigation they wanted to raise.

On 7 September 2021 Slater and Gordon Lawyers wrote to Mr Kranendonk responding to the letter to Mr Burkhardt of 2 September 2021. That letter contested the account of the meeting of 30 August 2021 and confirmed Mr Burkhardt’s view that he had been directed to perform stevedoring work which required training and VOC’s. The letter also confirmed that Mr Burkhardt was ready, willing and able to perform his duties as Shift Manager and requested that he be permitted to do so.

On 8 September 2021 Mr Kranendonk wrote to Mr Miller in similar terms to his letter to Messrs Brazel, Iki, Pedder and Butsenko on 3 September 2021 and directed him to answer the same 9 questions.

On 13 September 2021 Slater and Gordon lawyers responded to Mr Kranendonk’s letter of 3 September 2021 on behalf of Messrs Brazel, Iki, Pedder and Butsenko. The letter raised the issue that it was unclear what Mr Kranendonk’s purpose was in the following terms:

It is unclear to us what you are now doing. Your questions as to the events of the 29 July 2021 and 2 August 2021 in questions 1 to 6 appear to be in the nature of further investigating your allegations about refusing directions. Your questions at 7 to 9 appear to assume that whatever answers are given to the first 6 questions you will proceed to discipline out clients. This is an extraordinary way to deal with these matters and suggest that you are not dealing genuinely with these issues but rather have predetermined an outcome.

The letter then responded to the 9 questions posed in the letter. It again pointed out that: The Shift Managers had been asked to do stevedoring work. They refused to do so. They refused because it would be unsafe for them to do so as such work required training and VOC’s. They did not refuse to do Shift Managers’ work. There was no question of trust and confidence where they were ready, willing, and able to perform their duties as Shift Managers. There was nothing to mitigate because they had done nothing wrong.

On 14 September 2021 Slater and Gordon lawyers responded to Mr Kranendonk’s letter of 8 September 2021 on behalf of Mr Miller. The response was in similar terms to the response on behalf Messrs Brazel, Iki, Pedder and Butsenko on 13 September 2021. It challenged the purpose of the letter and responded to the 9 questions.

On 21 September 2021 Mr Kranendonk wrote to Mr Burkhardt dismissing him.

On 24 September Mr Kranendonk wrote to each of Messrs Brazel, Iki, Pedder, Butsenko and Miller dismissing each of them.”

Submissions on harshness

[17] The Applicants submitted that the proper approach to the “harsh, unjust or unreasonable” test was explained by the High Court in Byrne v Australian Airlines Ltd 1 as follows:

“… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[18] The Applicants submitted that they were dismissed for allegedly refusing a reasonable and lawful direction. The Applicants cited a decision of the Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd 2, in which it was said:

“[24] 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”.

[19] The Applicants noted that the approach in King v Freshmore was recently followed in Steve Newton v Toll Transport Pty Ltd, 3 where a Full Bench of the Commission stated:

“[77] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. The question of whether 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 (on the balance of probabilities).”

[20] As to the Act, the Applicants submitted that section 381 sets the objects of Part 3-2 Unfair Dismissal, with subsection 381(2) referring to s381(1) stating:

“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and 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 employee concerned.”

[21] The Applicants cited the decision of Buchanan J (Allsop CJ and Siopis J agreeing) in Toms v Harbour City Ferries Pty Limited 4 which referred to the history of the “fair go all round”:

“[40] It is trite to say that this case, which is the foundation for the objective of a fair go all round now enshrined in the FW Act in s 381(2), involved the working out of that general principle or objective in practice according to the individual circumstances of the case. But, at each point in the analysis, other questions of principle required consideration and evaluative judgment, as is very obvious from any patient reading of the judgment. It should not be assumed that, in s 381(2) of the FW Act, Parliament has simply adopted an empty phrase, stripped of its content and with no regard for its origin. As Burchett J said in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 (at 518):

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.

[41] Burchett J was referring to expressions in industrial instruments, but in the case of the meaning and intent of s 381(2) of the FW Act it is apparent that Parliament has attempted to bring with the transplanted expression “some of the soil in which it once grew”.

[42] Those matters are important for an assessment of the errors which the Full Bench of the FWC is said to have made in the present case, and the argument that it lacked power or authority to review or reverse the findings made at first instance which were relevant to the required, overall, evaluation to be made about whether the applicant’s dismissal was unfair, and whether he should be reinstated. It should be accepted that Parliament intends that examination of the merits of unfair dismissal cases should be the particular province of the FWC, and proceed upon a practical and pragmatic foundation. That examination necessarily extends to the possibility of review of reasons and outcomes on appeal. Those are matters not readily susceptible to narrow challenges on the grounds of “jurisdictional error”.”

[22] Regarding s.387 and the criteria for harshness, the Applicants submitted that in the present case, subsections 387 (b), (c), (d), (e), (f) and (g) are not determinative, and only s.387(a) concerning valid reason and s.387(h) other matters are relevant. These criteria are addressed below.

Valid reason

[23] The Applicants contended that their dismissals were harsh unjust and unreasonable.

[24] The Applicants noted that the reason for the dismissals, as stated in the termination letters, is that each of the Applicants failed to follow a lawful and reasonable direction. The Applicants submitted that on the evidence before the Commission, it should find that the direction was a direction to perform the work of stevedores who were taking protected industrial action. The Applicants submitted that in the circumstances, there was no valid reason for the dismissals because the direction to perform stevedoring work was neither reasonable nor lawful in circumstances where:

i. The Applicants were not trained to perform those duties;

ii. The Applicants did not have the relevant verification of competencies to perform those duties.

iii. The duties were not contemplated by their contracts of employment.

iv. The duties were not included in the Respondent’s position statements for Shift Managers.

v. The work was not work the Shift Managers had been required to perform in the past.

vi. The Applicants held legitimate concerns that undertaking the work would expose them or others to a risk of imminent and serious injury or imminent and serious harm to their health.

vii. The Applicants expressed their safety concerns and the fact that they were not trained or certified to perform the work when they were directed to perform the work.

(My emphasis)

[25] The Applicants submitted that even if the Respondent could establish that the direction to perform stevedoring work was a reasonable and lawful direction, there was no valid reason to dismiss the Applicants. The Applicants submitted that the directions that were refused were refused in circumstances where the stevedores were taking protected industrial action in support of better pay and conditions. The Applicants submitted that the refusals were reasonable in those circumstances because to accede to the requests would undermine the Shift Managers’ ongoing relationship with the stevedoring workforce once the industrial action ceased.

[26] The Applicants contended that they did not refuse duty, and were at all times ready, willing and able to perform their duties as Shift Managers. However, the Applicants submitted that they were not willing to perform the duties of stevedores.

[27] For these reasons, the Applicants submitted that the Commission should find that there was no valid reason for the dismissals.

Other matters

[28] The Applicants submitted that the following factors also go to the unfairness of the dismissals. It was noted that a number of the factors apply generally to all Applicants, and others apply to the individual circumstances of each Applicant.

[29] Common factors going to unfairness were outlined as follows:

a. The Applicants were suspended from work as a disciplinary measure. There was no reason to do this in circumstances where they were each ready, willing, and able to perform their usual duties. None of the Applicants posed a risk in the workplace if allowed to continue to do his ordinary contracted duties. The suspensions went on for weeks. Messrs Brazel, Pedder, Iki, and Butsenko were suspended on 2 August 2021 and kept on suspension for over 7 weeks. Mr Burkhardt was suspended for over 6 weeks and Mr Miller for over 5 weeks. Suspension for disciplinary reasons was not authorised by the Applicants’ contracts nor were they authorised by an award or other industrial instrument. Exclusion of employees from the workplace as a disciplinary measure in the absence of authorisation by the contract, statute or award constitutes an unlawful suspension.

b. The Respondent conducted a process of investigation that was flawed and simply confirmed a predetermined decision to dismiss in circumstances where:

i. The initial letter sent to the Applicants following their suspension required them to show cause why they should not be summarily dismissed. This indicated that the outcome of dismissal had been determined early and without seeking a response from the Applicants.

ii. It was not until the Applicants’ solicitor raised concerns about the procedure that the Respondent sought to interview Messrs Brazel, Iki, Pedder, Butsenko and Burkhardt about the events that led to the dismissal Mr Miller was never asked to attend an interview.

iii. The ‘investigation’ that followed was conducted by Mr Kranendonk who was the manager who issued the direction the subject of the investigation. He cannot be said to be impartial.

iv. The concerns raised on behalf of the Applicants in their written replies were not answered by the Respondent.

c. Each of the Applicants engaged frankly and honestly with the Respondent as it conducted its ‘investigation’.

d. None of the Applicants had been disciplined in the past.

[30] The Applicants noted that they were dismissed for the same reason, and submitted, therefore, that the Respondent failed to consider the individual circumstances of each Applicant.

[31] As to the individual circumstances of each Applicant, and the Applicants submitted that the Commission should have regard to the following matters:

a. Messrs Pedder and Brazel were dismissed during a period of incapacity in contravention of the Workers’ Compensation and Injury Management Act 1981 (WA) s 84AA. Section 84AA has been considered in employment related proceedings and it has been observed that a contravention of s 84AA may of itself give rise to industrial unfairness.4

b. Mr Pedder relocated from Brisbane in February 2021 at his own expense to take up employment with Qube. It was unfair to dismiss him in those circumstances.

c. Mr Brazel also relocated his family from Sydney to Western Australia to take up the position with Qube he has a partner and twin sons aged 2.5 years old.

d. Mr Miller commenced with Qube 21 years ago. His service was broken in 2009 when he took a voluntary redundancy as a stevedore however he was asked to return in 2011 to work as a Shift Manager.

e. Mr Butsenko also has long service having worked at Qube for seven years. The reason given for his dismissal included refusing duty on 29 July 2021. He wasn’t at work that day.

f. Mr Iki is 57 years old. His age tells against him gaining further employment.

[32] The Applicants submitted that in all of the circumstances, the Commission should find that each of their dismissals were harsh, unjust and unreasonable.

Remedy

[33] The Applicants seek reinstatement and ancillary orders for backpay and continuity of service.

[34] The Applicants submitted that reinstatement is the primary remedy for an unfair dismissal application. 5

[35] The Applicants cited the decision in Thinh Nguyen and Then Le v Vietnamese Ethnic School South Australia Chapter (Thinh Nguyen) 6 in which the Full Bench said:

“[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.”

[36] The Applicants noted that in its correspondence to the Applicants before the dismissals, the Respondent referred to a loss of trust and confidence. The Applicants stated that in Thinh Nguyen, the Full Bench also distilled the principles relevant to the question of a loss of trust and confidence as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[37] The Applicants submitted that in the circumstances of the present case, the evidence does not lead to a conclusion that there has, or could be, a genuine loss of trust and confidence in the Applicants. The Applicants submitted that the assertions in Mr Kranendonk’s correspondence were not soundly and rationally based, and they do not bear scrutiny. The Applicants submitted that the assertions were, at best, self-serving where the Applicants contended from the outset that any dismissal would be unfair, and they reserved their rights in that regard. The Applicants submitted that these cases do not give rise to a legitimate complaint that the Respondent has lost trust and confidence in them. Therefore, the Applicants submitted that the primary remedy of reinstatement should be awarded, and the orders sought should be made.

Respondent’s Submissions

[38] The Respondent submitted that having regard to s.387 of the Act and relying upon the evidence filed:

(a) the Applicants’ dismissals on 21 September 2021 (in the case of Mr Burkhardt) and 24 September 2021 (in the case of the other 5 Applicants) were not harsh, unjust or unreasonable as alleged by the Applicants;

(b) there was a sound and valid reason for each of the Applicants’ dismissals – namely, their refusals and failures to perform their duties;

(c) each Applicant was notified of the valid reason for his dismissal;

(d) each Applicant was given an opportunity to respond to the reason for his dismissal, including the proposed sanction of dismissal itself;

(e) there was no refusal of any request from an Applicant for a support person;

(f) Qube accorded each of the Applicants fair treatment and procedural fairness in relation to their respective dismissals; and

(g) in all the circumstances, each of the Applicants’ dismissals was fair and justified by their serious misconduct.

[39] The Respondent submitted that in considering the criteria for harshness in s.387 of the Act, the evidence strongly supports a conclusion that each of the Applicants has not discharged his onus of establishing that his dismissal was harsh, unjust or unreasonable and the applications should therefore be dismissed.

[40] The Respondent submitted that the performance of work lies at the heart of, and is part of the fundamental subject matter of, a contract of service. It submitted that a refusal to perform work strikes at the heart of the employment relationship, and is incompatible with, and repugnant to, the maintenance of that relationship.2

[41] The Respondent noted that the Applicants were each engaged as Shift Managers at Qube at Fremantle, and were contractually bound to perform their duties at work to the best of their abilities and knowledge, to serve Qube faithfully and diligently to the best of their abilities and to comply with Qube’s lawful directions.

[42] The Respondent submitted that a Shift Manager performs a critical role in the operation of a port. It explained that Shift Managers are ultimately responsible for the loading and discharge of a vessel, including all the land side operations that support the vessel operations. This requires the Shift Manager to supervise the stevedores that are conducting the loading and discharge of the vessel, planning, preparing and managing the yard that supports the vessel operations, as well as coordinating with all other stakeholders including the captain of the vessel, port authorities and the broader Qube team, such as the transport manager. The Respondent submitted that it is part of the Shift Manager’s role to be present on the wharf and to manage the discharge or loading of the vessel. This is done wharf side. The Respondent submitted that Shift Managers also perform safety inspections of the stevedores’s work, engage with the stevedores and audit the vessels to ensure a safe discharge, including by ensuring that those working are wearing the correct PPE. The Respondent submitted that Shift Managers are generally only working behind their desks in the main office at the start and at the end of their shifts, during handover and during the stevedores’ ‘smoko breaks’.

[43] The Respondent submitted that from late July to early August 2021, some employees working at the Fremantle Port started to take protected industrial action. This industrial action went on for some months, ending in mid-October 2021. The Respondent submitted that the Applicants were not eligible to participate in the industrial action.

[44] The Respondent submitted that as a result of the industrial action, there was work which needed to be managed and performed by the Applicants and the other managers. It submitted that the required work included the Applicants’ usual day to day duties, including some alternative or incidental duties, within the scope of their roles as managers, which had to be performed during the period of the industrial action in order to meet operational demands.

[45] The Respondent submitted that on 29 July 2021 (in the case of Mr Brazel, Mr Iki and Mr Pedder), on 2 August 2021 (in the case of Mr Brazel, Mr Iki, Mr Pedder and Mr Butsenko), on 9 August 2021 (in the case of Mr Burkhardt), on 17 August 2021 (in the case of Mr Miller), on 30 August 2021 (in the case of Mr Burkhardt) and throughout the course of the investigation (in the case of all Applicants), the Applicants were required and directed by Mr Kranendonk, Manager of Qube in Western Australia, to perform their duties. The Respondent submitted that those duties were at all times reasonable and safe for the Applicants to perform, and the Applicants nonetheless refused to work. The Respondent submitted that the Applicants’ conduct is contrasted with other Qube managers who did perform their duties during the industrial action.

[46] The Respondent argued that contrary to the Applicants’ claims, the duties the Applicants were required to perform did not require a Verification of Competency (VOC) in order to be performed. It submitted that if the Applicants had been directed to do any specific duties which required a VOC, they would have received the necessary training for those duties on site. However, the Respondent also noted that most duties that would have been performed were within the Applicants’ skillset and competence. Further, the Respondent submitted that it never reached the stage where the Applicants were individually directed to perform specific tasks, as they had already refused to work before specific tasks were actually allocated to them.

[47] The Respondent submitted that Mr Kranendonk’s directions to work were lawful and reasonable in the circumstances, including because the performance of such work was reasonable, necessary and safe.

[48] At the hearing, Mr Tracey gave submissions on behalf of the Respondent as to the question of whether the Applicants were being asked to perform tasks within the scope of their employment:

“Another very important issue at the outset is the question of whether or not what these applicants were being asked to do was within the scope of their employment, and in that regard there is important industrial context to be aware of, and contractual context.  Their contracts are in the evidence, and my learned friend referred to where they are.  We've attached them to Mr Lee's witness statement.  And if you go, Commissioner, to page 437 of the court book, I might just take you there just to illustrate particular contractual arrangements.  This is part of - so to be clear, this is part of Mr Brazel's contract.

…

…And you'll see there, Commissioner, a clause in clause 9.  Now, this clause is also to be found in Mr Pedder's contract.  It is not to be found in the contracts of the other four employees.  The other four employees, apart from Mr Brazel and Mr Pedder, don't have an express provision as to what their duties are.  Like Mr Brazel and Mr Pedder, the contracts refer to their employment being as a Shift Manager.

Here you have a clause 9.1(a) which requires that the employee:

Perform to the best of your abilities and knowledge the duties assigned to you by the company from time to time at such places -

Et cetera -

for the benefit of any third party -

Et cetera, and then there's a whole list of matters which you'll recall in cross-examination were broadly accepted as obligations, by each of the applicants, as obligations each of them had as an employee of Qube.

Now, these clauses, I accept they only refer to two of the applicants, that they illustrate the broad nature of the duties that they may be directed to perform, and even though these are two contracts, I would submit that they are part of the industrial context in understanding what the nature and scope of the Shift Manager role is.  And also relevant to understanding the nature and scope of the Shift Manager role is the evidence that demonstrates the substantial experience and qualifications and previous work as stevedores that most of the applicants had.  And that evidence is in Mr Lee's statement showing their various tickets, and in their own statements where they refer to having worked as stevedores in the past, and Mr Miller being a particular obvious example of that.

So, it's in this industry, it's clear on the evidence, that people who work in the Shift Manager role generally will usually come from a background of working on the wharves, performing the tasks that stevedores perform and in the role of stevedores.

Now, the other context that's relevant to determining the scope of a Shift Manager's role is the, and this is just a general point, the contracts, and the Commission is not really assisted by this, I accept, but the contracts don't actually specify what the Shift Manager's duties are.  So the question then is, what's the nature of the role, as informed by those contextual matters that I've just described, and as in formed by the terms of the contract?

The terms that these two contracts, at least, confirm that whatever the duties assigned, from time to time, are, are duties that are required to be performed.  Obviously there would be an implied term that of being reasonably required to perform such duties, and that would be determined by such matters as whether or not somebody has experience, whether somebody is assisted or trained, depending on the task or the duty.

So this question of scope of employment is important because, on Qube's case, no applicant was ever directed to do any task or any work that was outside the scope of his employment.

Now, the factual background, and I'm making some broad submissions about the six applicants initially.  The evidence of Mr Miller, and I believe this is at point 139 of the first day's transcript, which I found over lunch, that's, perhaps, in my submission, what best captures what the real situation was, in this case, if I can put it that way.  This is his answer to my question.

THE COMMISSIONER:  Can you - - -

MR TRACEY:  Sorry, Commissioner.

THE COMMISSIONER:  I was going to ask you can you read it to me, because I don't have the transcript open in front of me.

MR TRACEY:  Of course, Commissioner, and I will definitely confirm the reference as well.  139, I believe, is the point where I asked him:

You were not going to perform your role as Shift Manager under any circumstances, while the picket lasted, is that right?---Yes, unless they could ensure my safety, which they couldn't.” 7

[49] The Respondent submitted that following the Applicants’ refusal and failure to work, it conducted an extensive investigation into their conduct. The Respondent submitted that it was a procedurally fair investigation and disciplinary process, which concluded that the Applicants had engaged in serious misconduct.

[50] The Respondent confirmed that the Applicants’ employment were terminated due to their failure, and unwillingness, to perform their duties; their failure to comply with a lawful and reasonable direction; and their failure to acknowledge and take responsibility for their conduct, which destroyed the trust and confidence inherent in the employment relationship. The Respondent submitted that such conduct amounted to a valid reason for dismissal of each of the Applicants and it submitted that the valid reason for the dismissals weighs strongly in favour of a conclusion that the dismissals were fair.

Notification of reason and opportunity to respond

[51] While not disputed or otherwise contended to be a relevant factor by the Applicants, the Respondent made submissions regarding notification of the reasons for the dismissals and an opportunity for the Applicants to respond.

[52] The Respondent submitted that as part of the procedurally fair process, correspondence was sent to the Applicants outlining the alleged misconduct of refusing to work, outlining that if substantiated, their conduct may constitute serious and wilful misconduct, and provided an opportunity for each Applicant to respond.

[53] The Respondent confirmed that responses were sent on behalf of the Applicants by their legal representatives, and through their representatives the Applicants collectively responded to the Respondent’s allegations by “adopting and emphasising the language of “stevedoring work” or “the duties of a stevedore”, and then asserting that such work or duties could not be required to be performed by Qube (including where the Applicants were unqualified/lacking a VOC)”. The Respondent submitted that such language misleadingly claimed or imputed that the Applicants were being asked to perform a different job, namely that of a stevedore, and that they were being asked to perform work for which they were not trained or qualified. The Respondent submitted that no such thing was ever asked of any Applicant, and this “misleading language (and the false imputation it conveyed), which was never used by Mr Kranendonk, was used as a weak attempt to excuse, to evade and to obscure the reality that the Applicants were refusing, and not willing, to perform their roles as managers at the time of the industrial action”.

[54] The Respondent submitted that it considered the responses to the show cause letters did not fully expose or explain the position being taken by the Applicants, and therefore the Respondent invited each of the Applicants to attend a meeting in person to provide them with an opportunity to respond and to clarify their position. It submitted that only Mr Burkhardt availed himself of that process, and attended a meeting on 30 August 2021. It submitted that Messrs Brazel, Iki, Butsenko, Pedder and Miller chose not to attend a meeting, citing medical grounds.

[55] The Respondent submitted that a final show cause letter was sent to Mr Burkhardt on 2 September 2021, which referred to Mr Burkhardt’s responses to Qube’s queries raised in the meeting of 30 August 2021. Mr Burkhardt (via his solicitors) responded to Qube’s show cause letter in writing on 7 September 2021.

[56] The Respondent submitted that in order to provide Messrs Brazel, Iki, Butsenko and Pedder with an opportunity to respond in writing to the matters which would have been put to them in the meeting, it wrote to them on 3 September 2021, requesting their individual responses in writing. Those Applicants (via their solicitors) collectively responded to Qube’s further queries in writing on 13 September 2021.

[57] The Respondent submitted that it separately wrote to Mr Miller on 8 September 2021, directing him to answer questions as to why he would not work. It received a response from Mr Miller’s representative on 14 September 2021.

[58] The Respondent submitted that it considered all of the Applicants’ responses and circumstances and only then decided upon disciplinary action in the form of termination of their employment. It submitted that the Applicants had a full and fair opportunity to respond to the allegations and were notified of the reasons for their dismissals. The Respondent submitted that its compliance with sections 387(b) and (c) of the Act weigh strongly in favour of a conclusion that the dismissals were fair.

Support person

[59] The Respondent submitted that this is a neutral consideration, noting there was no denial of a support person and all Applicants had legal representation at all stages of the investigation and disciplinary process. The Respondent noted that Mr Burkhardt had a support person present at the meeting on 30 August 2021.

Warning in relation to performance

[60] The Respondent agreed that this is not a relevant consideration.

The Respondent’s size and human resources expertise

[61] The Respondent agreed that these are also neutral factors. It confirmed that it is a substantial organisation which employs persons with human resources expertise.

Circumstances of the termination and other matters

[62] The Respondent maintained that having regard to the Applicants’ circumstances, the Applicants’ conduct as set out above was both serious and struck at the heart of the employment relationship and therefore the dismissals were in each case fair and a proportionate response to that conduct. The Respondent contended that each dismissal was a fair and lawful dismissal. It noted that the Applicants’ periods of service were not lengthy and none of them is of a particularly advanced age, though it acknowledged that Mr Iki is 57.

[63] The Respondent submitted that the Commission should have regard to the following matters:

•  It is a circumstance of aggravation that the Applicants’ refusal to work occurred at a critical time for Qube’s business and its operations at the Port of Fremantle. Their help was needed in circumstances where a large part of Qube’s workforce was taking industrial action. They stood idly by while their fellow managers stepped up to the challenge and performed the work that needed to be done.

•  It is hard to imagine something more contrary to the “fair go all round” principle if were there to be a finding that the Applicants’ dismissals were unfair or harsh. Such a conclusion would be an affront to the other Qube managers who actually did their job and performed their duties in the face of the difficult circumstances created by the industrial action.

•  It is also an aggravating aspect of the Applicants’ misconduct that they did not express any contrition or remorse for it. Their sense of entitlement, as highly paid managers, was extraordinary. They expected to continue to be paid and to be employed yet refused to perform both their normal duties and any incidental or alternative duties which the industrial action necessitated.

[64] The Respondent submitted that all of the above matters weigh strongly against a finding that the Applicants’ dismissals were harsh, and heavily outweigh the matters otherwise advanced by the Applicants in mitigation or “under cover of” s.387(h).

[65] The Respondent maintained that the Applications should be dismissed.

Remedy

[66] The Respondent submitted that if, however, the Commission were to find that the dismissals were unfair, the appropriate remedy is a nominal amount of compensation, including having regard to the Applicants’ misconduct.

[67] The Respondent submitted that reinstatement is not appropriate as a remedy in the circumstances of this case, especially given the nature of the Applicants’ serious misconduct and the fact that Qube and its management have, “quite understandably”, lost all faith and confidence in the Applicants and their working relationship with each of them.

[68] The Respondent submitted that the Applicants’ serious misconduct, and the additional matters referred to above, strongly militate against their reinstatement. It therefore strongly opposes any order for reinstatement, and submitted that any such order would be inappropriate within the meaning of s.390(3) of the Act.

Applicants’ Submissions in Reply

[69] While the Respondent contended that the dismissal was due to ‘the Applicants’ failure and unwillingness to perform their duties, their failure to comply with a lawful and reasonable direction to do so, and their failure to take responsibility for their conduct which destroyed the Respondent’s trust and confidence in them’, the Applicants asserted that they did not refuse to perform their usual duties. The Applicants argued that they were being asked to perform stevedoring work, and that request was not a lawful and reasonable direction because they were not qualified to perform stevedoring work. The Applicants maintained that their refusal to perform duties for which they were not employed and for which they were not qualified was an assertion of their rights as employees and that such an assertion of rights should not lead to a loss of trust and confidence.

[70] The Applicants submitted that this is a question of fact, and that the evidence before the Commission is clear. The Applicants maintained that the evidence supports a conclusion that the Respondent required each of the Applicants to perform stevedoring work, for which they were not employed and for which they were not qualified, and when they refused they were stood down and ultimately dismissed for doing so:

a. Messrs Iki, Brazel, Pedder and Butsenko, attended work as directed on the 2 August 2021, at the commencement of the industrial action. They were approached by the terminal manager Mr Kranendonk and asked to “consolidate the yard”. The Applicants raised that this was stevedoring work and that they did not have the qualifications by way of tickets and VOC certification to perform that work. They refused to do the stevedoring work. They were stood down at that meeting and later dismissed.

b. Mr Burkhardt on 9 August 2021 returned form a period of annual leave and was asked by Mr Krankendonk to perform additional duties, including stevedoring work. Mr Burkhardt refused to perform stevedoring work as he did not have the relevant VOC’s but said he would do his usual duties. He was stood down immediately and later dismissed.

c. Mr Miller returned from annual leave on 17 August 2021, he was not allocated his usual duties on that day but rather was required to attend a meeting with Mr Kranendonk and Mr Lee, Operations Manager. Mr Miller was asked whether he was willing to perform additional duties, including stevedoring work. He said he would not cross a picket line to perform stevedoring work. He said he was willing to be transferred to another port. He also said, when asked, that he was willing to perform Shift Manager work.

[71] While Mr Krankendonk denied that the requests being made involved performing stevedoring work, and contended that the Applicants were refusing to perform Shift Manager duties, the Applicants submitted that Mr Krankendonk’s denial should not be believed. The Applicants submitted that the evidence against the denial is ‘unassailable’. The Applicants submitted it is clear that they were being asked to do stevedoring work, and noted that in their written responses to the stand downs, their responses were clear that they refused to perform stevedoring work because they lacked the appropriate qualifications by way of tickets and certifications to perform that work.

[72] Further, the Applicants noted their evidence is that they at no stage refused to perform the duties of Shift Managers. The Applicants submitted that they were at work “(and crossed the picket line to be there)” to perform their usual duties when the meetings occurred. The Applicants submitted that they stated clearly in the meetings that led to their stand down, that they would perform their usual duties as Shift Managers. This was also stated in the correspondence following the stand downs and in show cause letters preceding the dismissals that they were always willing to perform Shift Manager duties.

[73] The Applicants cited a recent decision of a Full Bench of the Commission, in CFMMEU and Anor v Mt Arthur Coal Pty Ltd (Mt Arthur). 8 In relation to what constitutes a lawful and reasonable direction, the Full Bench said:

“[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, though an employee is expected to obey instructions which are incidental to that work.

[69] Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.

[70] The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.

[71] Employees are only obliged to comply with employer directions which are lawful and reasonable.

[72] Reasonableness is ‘a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows:

‘But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.’”

(My emphasis)

[74] The Applicants submitted that each of the elements of this test apply to the circumstances of the present case:

a. The Applicants were being asked to perform work they were not contracted to do.

b. The request to perform work operating machinery on the wharf for which they were not qualified and did not hold safety certificates was not safe nor lawful.

c. The nature of their employment as Shift Managers, the established usages and common practices which exist and the enterprise agreement covering stevedoring work, lead to a conclusion that it was not unreasonable to refuse the direction.

[75] Further, the Applicants restated that they were always ready, willing and able to perform their duties as Shift Managers, however, they were unable to perform those duties because they were stood down by the Respondent. The Applicants submitted that the Respondent’s assertion that they failed to perform their duties must fall away in circumstances where they were not permitted to work.

[76] The Applicants submitted that the Commission should find that the Applicants did not refuse to perform Shift Manager duties and that their concern was that they were being required to do stevedoring work, which they refused to perform. The Applicants maintain that request was not a lawful and reasonable request and was one which the Applicants were entitled to refuse. The Applicants noted that once they refused, they were prevented from performing their duties as the Respondent stood them down.

[77] The Applicants submitted that the Respondent’s contention that the Applicants failed to acknowledge and take responsibility for their conduct takes the matter no further. The Applicants submitted that they acknowledged their conduct, of refusing to perform work for which they were not contracted nor qualified, repeatedly in correspondence. The Applicants noted that they asserted repeatedly that they were willing to perform their usual duties but were not given the opportunity to do so. The Applicants submitted therefore that once it is appreciated that the Applicants were entitled to take the stance they did, any suggestion that there could be a loss of trust and confidence is untenable.

[78] The Applicants relied on their earlier submissions as to relevant ‘other matters’, and submitted that on the statements of the Respondent the requests to perform additional duties in the circumstances of the industrial action were at best vague. The Applicants submitted that a refusal to abide by a vague direction is far from conduct that can be characterised as “both serious and struck at the heart of the employment relationship” as stated by the Respondent.

[79] The Applicants submitted that in its submissions, the Respondent conceded that it did not give specific instructions as to tasks required of the Applicants. The Applicants submitted that while this was not the case for Messrs Iki, Brazel, Pedder and Butsenko who were told to consolidate the yard on 2 August 2021, the concession suggests that the Applicants were not stood down for refusing a specific direction. The Applicants submitted that in those circumstances, even if a direction was made in general terms, it cannot be said that the direction was reasonable, as the unreasonableness arises because the direction lacked specificity. The Applicants submitted, therefore, that they did not refuse to perform any particular direction to perform a task or work in a certain way, but were stood down because they refused to perform duties which involved performing stevedoring duties. The Applicants submitted that this is to be contrasted to the examples of lawful and reasonable directions referred to by the Full Bench in Mt Arthur at [81]:

“[81] We would also observe that courts and tribunals have taken a broad view of what might constitute a lawful and reasonable direction in particular circumstances, including but not limited to:

• a direction that an employee refrain from wearing a caftan while performing duties (and so being visible to co-workers and the public);

• a direction to remove an eyebrow ring whilst at work

• where there is a genuine indication of need for it, requiring an employee, on reasonable terms, to attend a medical examination in order to determine their fitness for work;

• requiring an employee to provide a medical report indicating diagnosis and likely capacity and time to return to ordinary duties (rather than just providing a medical certificate)

• an order that a senior employee not make public comments about decisions the employer has made in relation to its business

• a direction that an employee not privately contact a co-worker, after the employee had been counselled in relation to sexual harassment of the co-worker, and

• a direction to an employee to maintain the confidentiality of information gathered and recorded during disciplinary processes.”

[80] The Applicants submitted that each of these examples involve specific directions about which there could be no conjecture.

[81] The Applicants submitted that even if it was found that there was a valid reason to dismiss them, based on the vague directions given at the meetings at which the Applicants were stood down, it was unfair to dismiss them for refusing the direction when it was unclear what they were being asked to do.

[82] As to remedy, whilst the Respondent resists reinstatement on the basis that there has been a loss of confidence and that the positions have been filled, the Applicants relied on their earlier outline of submission as to loss of confidence and trust. As to the positions being filled, the Applicants submitted that this is incorrect as the Respondent was currently (at the time of filing their reply materials) advertising for Shift Managers positions at its Fremantle Terminal. The Applicants submitted in any event, the Respondent had been aware of these proceedings and had filled the positions knowing they were exposed to orders to reinstate the Applicants. Therefore, the Applicants submitted that any inconvenience caused is self-inflicted.

Consideration

[83] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

[84] When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) (1995) 185 CLR 410 is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 9

[85] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 held:

“The above extract is authority for the proposition that a termination of employment may be:

•  unjust, because the employee was not guilty of the misconduct on which the employer acted;

•  unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

•  harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”. 10

[86] As cited by the Applicants, the Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd 11said:

“[24] 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”.

[87] This present case basically swings on the issue of whether the direction given by the Respondent to the Applicants was a lawful and reasonable direction, a direction which was subsequently ignored by the Applicants which resulted in their summary dismissal for serious misconduct.

[88] There are any number of contested facts in this case. The accuracy of the respective recollections of conversations are questioned and challenged by both sides. There is certainly sufficient ambiguity, assumption and intrigue in some of these conversations to create confusion and uncertainty.

Section 387(a) – valid reason

[89] The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd: 12

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…” 13

[90] In Rode v Burwood Mitsubishi , 14 a Full Bench of the Australian Industrial Relations Commission held: 
 

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
 

[91] In Qantas Airways Ltd v Cornwall (Cornwall), 15 the Full Court of the Federal Court of Australia said: 
 

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[92] The recent decision in Mt Arthur provides a current analysis of the test to be undertaken in relation to the concept of a lawful and reasonable direction by the employer.

“[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform 16, though an employee is expected to obey instructions which are incidental to that work”.17

(My emphasis)

[93] The first issue to consider is whether the tasks that were required to be performed by the Shift Managers were incidental to their roles.

[94] The Collins English Dictionary defines the term “incidental” to mean:

1. happening in connection with or resulting from something more important;

2. found in connection with, related to.

[95] I have had regard to the Respondent’s Position Description of a Shift Manager, and for completeness, I provide it here in full:

“SHIFT MANAGER

Position: Shift Manager

Reports to:

•  Operations Manager / Superintendent

Key Relationships

•  Qube Ports and Bulk Employees

•  Vessel Agents

•  Shipping representatives

•  Port Authority and or AAT representatives

Primary purpose

The primary purpose of the Shift Manager role is to lead and manage operational teams allocated to shifts in order to achieve productivity, safety and customer performance standards.

Direct Reports

•  Foremen

Position Impact

•  Labour / Revenue performance

•  Customer performance targets

•  Employee safety

Specific Responsibilities:

•  Ensure appropriate communication of standards, expectations and procedures to the operational team through pre start safety and information discussions and meetings.

•  Selects, prepares and directs the use of appropriate equipment in a safe and productive manner that contributes to safe practices, damage prevention and productivity.

•  Directs and manages the performance of the operations team on the job to ensure a safe and efficient operation.

•  Liaises with Agents and Vessels’ Chief Officer to ensure all tasks are coordinated consistent with sequence of discharge and load plans.

•  Complete and process all required documents including damage, discharge and load plans.

•  Communicate and liaise with vessel Chief Officers and client representatives to ensure that performance objectives are achieved according to the vessel plan.

•  Monitor and ensure compliance with employment terms (EA’s), OH&S and Environmental legislation and company policy and take necessary corrective action.

•  Resolve queries and issues raised by the workforce relating to policy and practice and elevate the issues to the Operations Manager when appropriate.

•  Identify and submit hazard and near miss reports. Conduct safety observations and recommendations for corrective action to the Operations Manager.

Safety Responsibilities

•  Identify, assess and report all known and identified hazards and incidents in the workplace.

•  Implement effective risk controls utilizing the Job Safety Analysis process.

•  Participate in the monitoring, review and evaluation of implemented risk controls.

•  Stop the task where there is an imminent risk beyond the acceptable tolerance of the guidelines in the risk evaluation matrix and escalate to the Operations Manager as per the escalation protocols.

•  Adhere to the requirements of the Safety Health & Environmental Management System procedures and protocols at all times.

•  Identify and escalate opportunities for improvement.

In addition Zero Harm reflects our belief that we operate in an environment where risks are managed and that work does not impact on our people’s health and wellbeing.

Avoid Taking Unjustifiable Risks

•  Identify, asses and report all known and newly identified hazards and incidents in the workplace

•  Implement effective risk controls

•  Participate in the monitoring, review and evaluation of implemented risk controls

•  Stop work where there is an imminent danger and escalate to the appropriate supervisor/manager

Avoid Causing Harm

•  Do not engage in bullying or harassment in the workplace

•  Engage in safe work practices

•  Treat fellow employees, contractors, clients and the public with respect

Follow the Safety, Health & Environmental System

•  Follow the requirements of the SHEMS documentation including Rules, Procedures and Instructions

•  Identify system shortcoming and opportunities for improvement

Be Prepared To Work Safely

•  Report to duty in a fit state, free from fatigue the influence of alcohol or other drugs

•  Wear required Personal Protective Equipment and operate plant equipment safely

•  Participate in consultation activities regarding matters affecting your health, safety and welfare

•  Participate in relevant safety training and maintaining your safety related competencies

•  Engage in Work only when in possession of required and current Certificates of Competence

Qualifications and Experience

Essential

•  Supervisory experience in the stevedoring or similar industry

•  Experience in high risk operating environments

•  Understanding of operational capabilities of machinery and lifting gear

•  Experience in regulated workplace environments

•  Appropriate licences eg. Forklift, rigger, crane

•  Computer skills – Excel, word, outlook

Desired

•  Tertiary qualifications in logistics/related field

Key Competencies/skills

•  Team management and leadership

•  Problem solving ability

•  Negotiation skills

•  Communication skills

•  Focus on safety

•  Conflict resolution

•  Customer focused and responsive to customer requirements

•  Performance and task driven

•  Analytical & financial understanding

•  Time management”

[96] Mr Lee provided a good description of the role and function of a Shift Manager in his witness statement:

“Scope of Shift Manager Duties and Competencies

8. A Shift Manager is a critical role in port operations. Shift Managers are ultimately responsible for the loading and discharge of a vessel. This requires the Shift Manager to supervise the stevedores that are conducting the loading and discharge of the vessel, as well as coordinating with all other stakeholders including the captain of the vessel, supervising the landside operations and the lay down area, port authorities and the broader Qube team, such as the transport manager. It was part of the Shift Manager’s role to be present on the vessel and to manage the discharge or loading of the vessel. This is not done from behind a desk. The Shift Manager always has to be a few steps ahead of the team leader and make sure that the team leader is not stopping and looking for what to do next. Shift Managers also do safety inspections of the stevedores, engagements with the stevedores, audits of the vessels to ensure a safe discharge, ensuring that everyone is wearing the correct PPE etc.” 18

(My emphasis)

[97] This description does not include any incidental hands-on or manual stevedore work, but a requirement to supervise, manage, coordinate and audit. I have taken this into account.

[98] At the meeting on 2 August 2021, Mr Kranendonk was everything but definitive when answering questions from the Shift Manager, especially in relation to the requirement to perform the work of the striking stevedores. Relevantly, Mr Lee testified what he understood Mr Kranendonk’s comment at the meeting on 2 August 2021 to mean:

“Mr Kranendonk gave them an update of where the industrial action was at, and he asked if Mr Iki, Mr Pedder, Mr Brazel and Mr Butsenko were willing to help Qube and work as managers through the industrial dispute. Mr Kranendonk said words to the effect of “we need you to come back to work and do your jobs”. I understood that to mean coming in and performing their usual local Shift Manager tasks and from time to time this may also require them to chip in and help the business with other tasks in their roles as managers at a critically important time given the industrial action which was occurring. At no stage would that or other work be anything that the managers were not trained or qualified for. As stated in paragraphs 8 to 51 above, each of the Applicants were also trained in and competent to supervise and perform a wide range of operational skills and tasks in their roles as managers.

There was a question around the duties from Mr Brazel, saying words to the effect of “In what way, driving forks?”.

Mr Kranendonk responded saying “You all work for Qube as managers, you will need to perform your duties as managers and do what is required to help the business through these times.”.” 19

I have taken this into account.

[99] Under cross-examination, Mr Kranendonk eventually testified that the Applicants were going to be required to perform stevedoring work as part of his 4 step plan to ensure the on-going operation of the port. Mr Bell had no hesitation in confirming the requirement and expectation of the Shift Managers performing stevedoring work during this time. The Applicants all expected this scenario to be the case, but Mr Kranendonk refused to be up front and open with the Applicants. I have taken this into account.

[100] It is not in dispute that the Applicants were not advised at the time of their interview or appointment that they would be required to work as, or perform the work of, the stevedores if they were ever taking protected or unprotected industrial action in the future. I have taken this into account.

[101] I am not certain that a direction to a Shift Manager to perform stevedoring work is a legal direction. There is certainly no provision for it in the Applicants’ contracts of employment, not mentioned in any interview process involving any of the Applicants and not mentioned in the Shift Manager Position Description. I have taken this into account.

[102] The question of ‘reasonableness’ is an objective determination based on the decision in Darling. The waterfront in Australia is a unique workplace. The relationship between the employers and organised labour is accurately described as strained. The waterfront dispute of 1998 has been etched into the folklore of Australia’s industrial relations history.

[103] While the Applicants’ contracts contain clauses referring to requirements to work flexible hours, including additional hours as necessary, and to comply with company policies, only Mr Pedder and Mr Brazel’s contracts contain clauses titled ‘your duties’ which provide requirements to perform “duties assigned to you by the company from time to time, whether during or outside its business hours” and to “comply with the company’s lawful directions”. I have also reviewed the Position Description of a Shift Manager (as provided above), and it makes no reference to ‘additional duties as directed’ or ‘compliance with the company’s lawful directions’ or the requirement to undertake stevedoring work. I am not convinced that the wording in the contracts of Mr Pedder and Mr Brazel extend a right to the Respondent for these two Applicants to work outside their utilised skill set and demarcation boundary. I have taken this into account.

[104] I accept the evidence of all of the Applicants that they were prepared to perform their work, as per their position description, throughout the industrial dispute. The combined evidence of the Applicants is that they did not want to perform any other functions apart from those associated with their normal roles as Shift Managers. Based on the instruction of Mr Kranendonk on 2 August to “consolidate the yard”, the manager responsible for the area, Mr Minchin, was continuing to work in his role and was automatically the PIC. The only other work for the Shift Managers to perform was stevedoring work, ie, the work of the employees standing outside the gate on the picket line. Mr Kranendonk confirmed this issue in cross examination:

“And in those circumstances the work that they were already doing when you entered at 8.30 you were saying to them, effectively, well, I don't even want you to do the Shift Manager's work that you're already doing, weren't you?---At the time of consolidating the yard I needed my management team to assist with consolidating the yard for the ship arrivals.  That's where the focus was.  That's what we needed to do.

And the reason you needed your managers to do that?---Mm-hm.

Is because the stevedores who usually do that work were on strike?---Correct.

And so it follows that the work you were asking them to do was the stevedore's work doesn't it?---Incidental stevedoring work.  And yes it's no reason for this work to be not done by the management team because it's safe and it's pretty simple work that I was asking them to do.

How can you say that, Mr Kranendonk, when you told me a moment ago that you didn't know what tasks needed to be done.  That would be worked out in this way?---I didn't say that.

You reviewed the yard and the shed before you went to the meeting and were you fully aware of the tasks that needed to be done?  You weren't, were you?---I knew that the chains and gluts needed to be packed away.  I never said what task would be – they will be doing.

No, you just said that they'd have to do stevedoring work?
---Correct.  Because the stevedores weren't available.” 20

I have taken this into account.

[105] In relation to the Shift Managers performing stevedoring work, Mr Kranendonk testified:

“We were talking a moment ago about your plan.  It appears from your statement that you had a four-pronged plan.  First was the sourcing labour from other Qube port; second, sourcing managers from other Qube ports to do the work.  You say that your plan was that there would be no need for the applicants to operate machinery.  Had you made a decision prior to 29 July that the applicants, Shift Managers, would not need to operate machinery?---The decision for it is it's - we needed assistance from our management team from Qube, which is Fremantle, which is anywhere up the coast, or any other place in the country.  So we have roles for PICs, which that's the main task I needed my Shift Managers to conduct, is be the PIC on the job.  There's some managers that were willing to get VOC'd on machinery because they're familiar with the machinery and they've had experience on that type of machinery.  If people didn't want to get VOC'd or felt uncomfortable operating equipment or machinery, I would never in my life force somebody to drive or operate equipment in a port or anywhere else for that matter.  I've seen a person die on the waterfront because of a forklift, and I never ever in my whole career want to see that again.  So nobody would be forced to operate anything without a ticket or with a ticket or with a VOC or without a VOC.  Nobody.” 21

[106] Mr Kranendonk acknowledged that he not only wanted the Shift Managers to perform incidental general hand stevedoring work but also any other stevedoring work that they were qualified and certified to perform. 22

[107] This historical understanding and the folklore surrounding the ’98 dispute, clarifies the perimeter of the relationship, ie, management performs management duties, stevedores perform stevedoring duties. That is the industry, that is the demarcation, they are the ‘circumstances’. There is no dispute that the waterfront is an inherently dangerous workplaces. It is highly regulated for that purpose. Mr Kranendonk testified that he witnessed a fatality involving a forklift earlier in his career on the waterfront. As a result, Mr Kranendonk testified that he would never ask an employee to perform any task that they were not qualified to perform or felt uncomfortable performing. Unfortunately, Mr Kranendonk did not advise his Shift Managers of his principled position.

[108] Shift Managers are not required to perform work that is described as ‘stevedoring work’ under the Award. They are involved in supervision and planning (see [95]-[96] above). I do not accept the driving of cranes, forklifts or other machinery to be the incidental work of a Shift Manager. Similarly, I do not accept the moving of chains and gluts to be work which is incidental of the Shift Manager’s role. The packing of chains and gluts is the work of a level 2 Stevedore employee. These tasks are not incidental to the planning and supervision of the work being performed. I have taken this into account.

[109] As a result of the above considerations, I am satisfied that the direction of the Respondent for the Applicants to perform stevedoring work was unreasonable. They were not qualified to do the work, nor was it a common practice for them to perform stevedoring work. I do not accept that the work of a stevedore is incidental to the work of a Shift Manger, if it were then Mr Butsenko, who has never worked as a stevedore, would struggle to be able to perform his role as a Shift Manager. The employment of Mr Butsenko as a Shift Manager proves that being a stevedore or holding stevedoring skills was not a prerequisite for the role. Therefore, it is hard to see how doing stevedoring work is incidental to the role of a Shift Manager.

[110] I find that the directions issued by the Respondent to each of the Applicants were not lawful or reasonable. Therefore, the Respondent did not have a valid reason to terminate the Applicants. Without a valid reason, the termination of the Applicants is harsh, unjust and unreasonable.

[111] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, it is necessary for me to deal with the remaining provisions of section 387. I note that the Applicants have raised no issues in relation to sections 387(b-g) of the Act.

Section 387(b) – Notified of the reason

[112] The Applicants were notified of the reasons for their dismissal. This issue is a neutral consideration.

Section 387(c) – Opportunity to respond

[113] The Applicants were given an opportunity to respond to the show cause correspondence of the Respondent. This issue is a neutral consideration.

Section 387(d) – Refusal to support person

[114] The Applicants have not claimed that they were refused a support person at any stage during the process. This issue is a neutral consideration.

Section 387(e) – Unsatisfactory performance

[115] The Applicants were not dismissed for unsatisfactory performance. This issue is a neutral consideration.

Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed

[116] It is not in dispute that the Respondent is a large employer that has well developed procedures in place which were followed in this instance and a dedicated and professional HR team. This issue is a neutral consideration.

Section 387(h) – Any other matters

[117] I have taken into account the evidence of Mr Roberts, who was not required for cross-examination, where he stated that at the meeting on 29 July 2021:-

“Mr Iki spoke, saying something along the lines of he was happy to do his usual Shift Manager work but nothing else during the industrial action”. 23

[118] I have taken into account that Mr Minchin remembered Mr Iki said on 29 July 2021,

“I’m out, I am only going to do what I am employed to do and nothing more”. 24

[119] Mr Minchin further testified that:-

“It was clear that Mr Iki, Mr Pedder and Mr Brazel were all not prepared to continue working as reasonably required by the business during the industrial action like other managers ended up doing”. 25

I have taken this into account.

[120] I have taken into account that Mr Roberts, Mr Muir and Mr Corey Minchin, Senior Shift Manager, all attested in their witness statements that they performed work that would normally be undertaken by the stevedores whilst the stevedores were taking protected industrial action.

[121] Mr Lee also testified that:-

“Nobody was asked to drive a crane. Nobody in these meetings was asked to perform any work or tasks which they needed to be ticketed or VOC’d for. No specific duties were mentioned to the Shift Managers other than that they would just need to come and do their normal tasks of a Shift Manager and run the jobs for Qube during the industrial dispute including any other reasonable tasks in their roles such as those associated with the consolidating of the yard, something which was incidental to the Shift Managers’ roles and within their skillset, competence and training. None of these tasks required them to be ticketed or VOC’d for.

Consolidating the yard is a general term used to refer to the preparation of the yard in order to receive the cargo which is being discharged from a vessel, which generally includes tidying the yard and moving any items from the yard, such as vehicles, machinery, timbers or gluts, chains and anything else which was required to be cleared and packed away. Consolidating the yard is necessary to make the area safe before work starts. Whilst no training is required, some skills that are taught in training modules such as Dojo Training, include lashing Mafie trailers which may be applied to consolidating the yard. This was a general task that did not require a VOC.

…

Other Shift Managers, including Alan Taylor and Jon Roberts who said that they would continue performing their job as Shift Managers, had already left the office prior to this meeting. Mr Taylor, Mr Roberts and other managers who stayed on and performed their jobs attended their assigned tasks safely and without any issues during the industrial action period, including performing any incidental duties which were reasonable, necessary and safe during that critical time for the business, and within their competence or skillsets.” 26

I have taken this into account. I note that Mr Taylor and Mr Roberts no longer work at the Fremantle Port.

[122] In relation to the meeting with Mr Miller on 17 August, Mr Lee stated that Mr Miller said that he was prepared to do his job as a Shift Manager but would not cross the picket line. I have taken this into account.

[123] Mr Miller claimed that he did not want to be called a ‘scab’ by his friends at the local pub and that he feared for his own safety and that of his family. In response to questions from me, Mr Lee said:-

“I think Mr Miller uses the word scab in his evidence, and made that comment to Mr Kranendonk.  Did you see that when you read Mr Miller's evidence?---Yes.

Do you know what a scab is?---Well, I understand what the term is used for, yes.

What's your understanding?---I definitely disagree with the term, but I guess it's a term that the stevedores use for people that would work through an industrial dispute or anything along those sort of lines.

Did you accept that what your plan was asking these applicants to do was to basically work as a scab?---I wouldn't use that term as a scab, no, but they were going to help Qube the business through a tough period of industrial dispute.

Based on your definition of the term, do you accept that what your plan was asking the applicants to do was work which you described in your definition?---Yes.

Did you think that would have consequences for these six applicants at the conclusion of the dispute - - -?---No.

- - - if they - I understand you were provided with some protection during the dispute.  I'm just wondering whether or not that same level of protection was offered to any of the other six applicants?---No, it wasn't, but if they did end up working, yes, it 100 per cent would have been if they wanted it.” 27

(My emphasis)

I have taken this into account.

[124] Mr Lee claimed to have worked on a ‘plan’ to allow the Respondent to continue to service its clients and keep the port open during any protected action undertaken by the stevedores:

“So, but you knew that there would be some industrial action and you needed to have someone do the work that the team leaders and stevedores usually do?---At some stages, if the industrial action and we were going to work vessels and it didn't stop, at some stage we were going to have to work vessels, yes.

It was part of your plan, was it, to determine how you would source labour to do that work?---Yes.

It was part of your plan, was it, to determine how much of that work could be done by those who were not taking industrial action?---Correct.

Was it the case that part of your plan was that the Shift Managers would have to do tasks that they didn't ordinarily do, and those tasks would be the tasks that were ordinarily done by the Team Leaders and the stevedores?---Generally speaking, they would have been managers, but from time to time, they would have had to do some alternative tasks, yes.

And the alternative tasks that we're talking about, are tasks that would ordinarily be done by Team Leaders and stevedores?---Yes, that's correct.” 28

(My emphasis)

I have taken this into account.

[125] It is not in dispute that the Applicants were not advised that Mr Taylor would be available to provide any VOC training which was required. I have taken this into account.

[126] Mr Lee testified that the Shift Managers were not advised during the interview process that they would be required to perform stevedoring work during any period of industrial action. I have taken this into account.

[127] Mr Kranendonk’s evidence changed throughout his cross-examination by Mr Slevin:-

“And you had an expectation that your own managers would do some stevedoring work, didn't you?---No.  Some could, which were trained; and some were there to be the PIC on the jobs.” 29

[128] Later in his cross-examination, Mr Kranendonk testified that he wanted the Shift Managers to do stevedoring work:

“- - -I want to know what happened?---To those effects I asked the guys to go out to the yard and consolidate the yard which means multiple things.  It's not only using and operating equipment at all. It's also about – you know – picking up the timbers that are laying around in the shed to make sure that we can get equipment in there.

…

Now you said to me that you said to the effect that we have got to go and consolidate the yard.  Mr Brazel said on your account 'Do you mean operating machinery?'  And then you said what to Mr Brazel?---To assist the business to come through we are – have to do – to assist the business with whatever we need to get done.

…

That's why Mr Brazel said, 'Do you mean operating machinery?'  He was making a comment that you were requiring him to do something that he wasn't qualified to do.  That's the effect of what he said, isn't it?---Incorrect.  I had qualified people in the yard already that would operate the machines.  You didn't say that though, did you?---No.

…

And when they – they said they are not prepared to work.  They were saying I am not prepared to consolidate the yard because that's the only work that you had given them, wasn't it?---Correct.

…

They don't ordinarily consolidate the yard, do they?  That's Mr Minchin's bailiwick, isn't it?---That's correct.

…

You made a decision then when they said they weren't prepared to consolidate the yard to stand them down, didn't you?---Correct.

…

And the reason you needed your managers to do that?---Mm-hm.

…

Is because the stevedores who usually do that work were on strike?---Correct.

And so it follows that the work you were asking them to do was the stevedore's work doesn't it?---Incidental stevedoring work.  And yes it's no reason for this work to be not done by the management team because it's safe and it's pretty simple work that I was asking them to do.

…

No, you just said that they'd have to do stevedoring work?
---Correct.  Because the stevedores weren't available.

And you believed that you could direct the Shift Managers to do stevedoring work because you believed that was simply incidental to their jobs.  That's the case, isn't it?---Incidental to their employment (indistinct).” 30

(My emphasis)

I have taken this into account.

[129] In what can only be described as the most bizarre circumstance that I have ever heard throughout my career, at the meeting on 29 July, Mr Kranendonk asked those present to sign a confidentiality deed 31 before he was prepared to outline his 4-step plan to keep the Port functioning. However, Mr Kranendonk required the Shift Managers to sign the document before they read it.

“MR SLEVIN:  In that meeting when you mentioned that document, you said words to the effect of, 'If you're going to be involved, you will need to sign this document.'  Is that the case?---No.

…

MR SLEVIN:  Mr Kranendonk, what did you say, then?---

If you want to understand more about this confidentiality agreement in respect of the upcoming industrial action, can I ask you to sign this.

So you were effectively saying to them, 'If you want to know what the plan is, you've got to sign this document.'  That's the case, isn't it?---In a roundabout way, correct.

You didn't give it to them to read first, did you?---No.

And when they - Mr Iki wasn't prepared to sign the document, was he?---No.

He asked you something along the lines of, 'What do you mean?'  That's the case, isn't it?---'What are you trying to say,' correct.  That's what he said.

And you said that you couldn't say until he signed the document?---No, I said, 'Well, if you put two and two together, you would know what this document will be about.'

So you were asking him to assume or to make some assumptions about what the document was about, were you?---Yes.” 32

[130] Unsurprisingly, none of the Applicants signed the Deed. I find that it is grossly unfair and unconscionable conduct to ask an employee to sign a document without giving the employee an opportunity to read the document first. I have never heard of an employer asking an employee to sign a document that they are not allowed to read. Conversely, I have never heard of an employer signing a document presented by an employee or a Union without reading it first. Such a proposition is simply ridiculous and belies the good reputation of a number of the Respondent’s IR employees. The document, for example, could have required the employees to work for no remuneration or required the employees to resign from their employment in 6 months’ time, etc. In my opinion, no employee with a modicum of common sense would sign a document that they were prohibited from first reading. I have taken this into account.

[131] Further, when Mr Iki questioned Mr Kranendonk about this proposition, Mr Kranendonk told him to put two and two together. Mr Kranendonk testified that Mr Iki should make his own assumptions about the contents of the document. It is difficult to comprehend how a senior manager could possibly suggest, at a time of heightened anxiety and stress on all sides, that an employee should make assumptions about the contents of an important document that they are required to sign but not allowed to read. I have taken this into account.

[132] I have taken into account that the only employees required to sign this document were the 7 Shift Managers that were present in that meeting. Managers who were not in the meeting were not requested to sign the ‘secret document’.

[133] In relation to the contested evidence as to who said “Have you seen the clowns outside the fence waving their flags around”, I find that the comment was made by Mr Kranendonk. It would be peculiar in the extreme for an employee to make such a derogatory remark and then refuse to perform the stevedoring workers’ duties. Such a scenario just does not make sense. I have taken this into account.

[134] Mr Kranendonk provided a passionate response that he would never ask anybody to operate any type of machinery which they were not qualified or comfortable with operating. It is not in dispute that Mr Kranendonk did not advise the Shift Managers of his position on this issue. I have taken this into account.

[135] I am satisfied and find that all of the Shift Managers, at different times, advised Mr Kranendonk that they were prepared to perform their duties as a Shift Manager but would not perform the work of the striking stevedores for a variety of reasons including safety on the job, personal and family safety, because stevedoring functions are not part of their job, and the need to preserve and re-establish a working relationship with the stevedores when the protected action concludes.

[136] Mr Kranendonk became very defensive and agitated when asked about the term ‘scab’, which was used by Mr Miller in his interview:

“THE COMMISSIONER:  Mr Kranendonk, I do have one question in relation to - sorry, two questions; one in relation to a question put to you by Mr Slevin in relation to the discussion you had with Mr Miller, where Mr Miller indicated that he didn't want to be called a scab down at the local pub and that you were offended by that term.  I'm just wondering why you were offended by that term?---It's - Mr Commissioner, it is the lowest term of name-calling that you could say on the waterfront.  As you know, I've been on the waterfront for a while as a stevedore myself and, you know, manager and all that kind of stuff.  But the word 'scab' is the most degrading word that anybody could say to a person.

So what do you understand by the term - what is your definition of a scab?---What's my definition of a scab?

Yes?---My definition of a scab is a person that is lower than low of the lowest.

But what does a person have to do though - what does a person do that it called a scab?---This is a term used by unions where people come and assist businesses that are currently under industrial dispute, that cross the picket line.

So it's basically - my understanding might be a bit different to yours, but my understanding is it's somebody who basically works in an employee's role that is currently out on strike?---Correct.

Is that a fair - - -?---Right.  Correct.” 33

(My emphasis)

I have taken this into account.

[137] I find that none of the employees had any problem with attending work to perform their normal Shift Manager duties. Whilst they would have had to drive past the picket line to perform their role, they would not be regarded as having crossed the picket line unless they were performing the work of the stevedores who were taking protected action. Having spent 24 years of my working life as a Union Official, only employees who performed stevedoring work would be regarded by the Union as having ‘crossed the picket line’ or leave them susceptible to being called a ‘scab’. It would appear that some confusion may have existed between the parties in relation to this issue. Neither Mr Miller nor Mr Burkhardt, who were interviewed separately, wanted to cross the picket line, ie they did not want to perform the work of the employees undertaking protected industrial action. Similarly, the other Applicants all stated that they were, at all times, prepared to do their work, but not the work of the stevedores, for a variety of reasons including safety. I have taken this into account.

[138] I have taken into account that both Mr Miller and Mr Burkhardt raised concerns about their families’ safety. It is not in dispute that Mr Lee had the same concern and was provided with additional security at his home. I have taken into account that none of the Shift Managers were offered this additional protection.

[139] I have taken into account that none of the individual contracts that have been signed by the Applicants contain a provision that they will be required to perform stevedoring tasks if the stevedores are taking protected industrial action.

[140] There is nothing unique in having salaried or contract staff (ie, Managers) perform the work of wages employees who are participating in legal and protected industrial action. Such a scenario has occurred at Qantas and Bluescope in recent years, continuing a practice which has existed for decades. I am not aware of this practice occurring in the Stevedoring Industry since 1998. The practice of using Managers as strike breakers or ‘scabs’ in 1998 has clearly left a lasting impression on Mr Kranendonk. Whilst Mr Lee does not agree with the term, Mr Lee agreed that the plan was to have the Shift Managers work in a manner which fitted his definition. I have taken this into account.

[141] Whilst some people find the term ‘scab’ as offensive, I have used the term in this decision on the basis it was used in the evidence of Mr Miller and used during the proceeding. The term also has a widely understood definition in the stevedoring industry.

[142] I agree with Lander J in CFMEU v BHP Coal Pty Ltd, 34 where he held that:

“A scab is a derogatory term, which is uttered for the purpose of criticising and upsetting the person to whom it was directed”.

[143] I am in no doubt that if Mr Miller and his fellow Applicants crossed the picket line to perform stevedoring work, then they would have been subjected to this type of derogatory verbal barrage either at work or in their private lives. The Respondent does not appear to have taken this likelihood into consideration, even when it was raised directly with them by Mr Miller. I have taken this into account.

[144] The confusion and ambiguity which was prevalent at the meetings on 29 July and 2 August 2021, exasperatingly continued in the correspondence between the parties throughout August and September. The Applicant’s continued with their assertion that it was unsafe for them to perform stevedoring work whilst the Respondent continued with the line that they just wanted the Applicant’s to return to work and do their jobs. Unfortunately, the Respondent did not take the opportunity to clarify and resolve this misunderstanding;

“Yes.  Now, I just - and then a response is given.  Now, when the responses are given, and no stage do you ride to them and say, 'Look, we don't require you to do any stevedoring work that you are not qualified to do.'  You don't actually say that in terms, do you?---No.” 35

“I'll let the letter speak for themselves.  It's really more about the approach that you were taking.  You weren't saying, 'Look, this is a misunderstanding.  I don't - I'm not going to require the managers to do anything that's unsafe.  I'm not going to require them to do anything they are not qualified to do.  They can come and return to work and do their shift manager's duties without having to do those incidental stevedoring duties that they believe are unsafe.'  You didn't respond in that way, did you?  That's not the way that you approached these letters, was it?---Incorrect.  I wanted the shift managers to do their jobs, because at the end of the day I still need shift managers.

Yes.  No, you - - -?---I wasn't asking anybody again to do the VOC, because that was their sticking point.

No.  But you didn't write that in their letters.  You see, I understand what you're saying, and from your earlier evidence that may have been the approach you took, but you didn't say that to - you have this chance to write to them and say - and clearly this all up, but you didn't, did you?---Correct.” 36

I have taken this into account.

[145] The Respondent’s communication strategy was poor. There was no reason why the Shift Manager could not read the confidentiality deed before being requested to sign it – it did not contain any secret strategy or pearl of wisdom. It was a plain confidentiality deed. The fact that such a document was actually needed shows there was a lack of trust with the Shift Managers anyway.

[146] Further, rather then leave the future role of the Shift Managers open for interpretation and supposition, the Respondent should have been up front with them. Based on Mr Kranendonk’s position, they were not going to need to obtain any VOC if they did not want to perform that work. The trouble was that no-one knew of Mr Kranendonk’s view on this issue. As a result, none of the Shift Managers were prepared to work because they were concerned about their safety and their lack of training and certification. Proper consultation requires meetings of appropriate length, robust discussion, the canvassing of views, respectful consideration of all points of view – on both sides. This did not occur in this circumstance. The meetings were brief. Consultation was limited, restrictive and vague. I have taken this into account.

[147] I do not accept the submission from the Respondent that the Applicants have repudiated their employment contracts. The Applicants were prepared to work. The Applicants were prepared to do their own jobs. The Applicants were not prepared to perform work for which they were not trained or qualified to perform or for which they were not employed to undertake. For a repudiation to have occurred, the Applicants would have needed to have breached a fundamental term of their employment contracts. Assessing the terms of each contract and analysing the position description of a Shift Manager, this requirement has not been satisfied. I have taken this into account.

[148] I have previously found that Mr Kranendonk’s behaviour was unusual and unique when dealing with the Applicants. Mr Kranendonk was secretive and vague in relation to his expectations. For example, Mr Kranendonk would not answer the question about whether the Applicants would need to drive machinery or perform the work of the striking stevedores. Mr Kranendonk was not forthcoming with his heartfelt principle that he would never ask any employee to operate a machine that they did not feel comfortable to operate. Further, Mr Kranendonk’s views about people working as ‘scabs’ was not known to the Applicants. To suggest that the Respondent has lost trust and confidence in the Applicants when this information was not known to the Applicants would be to deny the Applicants the requisite level of procedural fairness.

[149] Mr Kranendonk was very busy during the latter stages of negotiations with the MUA leading up to the dispute. Unsurprisingly, he did not recall a number of conversations:-

“Did you work on it with Mr Lee?---He was partially involved, yes.

Did you have a conversation with him, asking him to be involved?  Was that you who asked him to be involved?---No, I don't recall that, no.

So you may have, you just don't remember?---I don't remember.

It seems that you have a very busy time July through to October, didn't you, Mr Kranendonk?---Yes.

And in terms of recalling details such as that conversation with Mr Lee, you would be forgiven, I think in those circumstances, not to have a good recollection of the details of those sorts of conversations.  Is that correct, you don't have detail?---I've got the recollection of the details that I've got, and I've written in my statement that I know what has occurred.  You know, a lot of stuff did happen - - -

All right, but you don't have the detail of what you said to Mr Lee about planning for the industrial action?---No.” 37

[150] In relation to a conversation that Mr Pedder testified he had with Mr Kranendonk on 23 July 2021, Mr Kranendonk testified:-

“Did you say - there was a conversation Mr Pedder recalls on 23 July where you sort of stopped midway through walking up the stairs in the Shift Manager's office and just said to Mr Pedder, 'Look, if it came to it, would you drive a crane?'  Do you recall that conversation?---No, that did not occur.

You're saying it did not occur.  Perhaps it's like that conversation with Mr Lee about devising the plan, it's a conversation that you just don't recall?---No, it did not occur.

Mr Pedder recalls it with some detail, and just it's only a brief conversation, and you said that to him, and he said to you, 'No, I wouldn't do stevedoring work.'  So you recall that?---No.

You say in your statement that Mr Pedder had said to you, though, during that period that he wouldn't do stevedoring work.  That's the case, isn't it?---No.

So you don't believe Mr Pedder ever said to you that he wouldn't do stevedoring work?---No, he said he wouldn't cross a picket line.  You there?

…

I just suggest to you that that conversation did occur with Mr Pedder on 23 July while you were planning what you would do, and you said to him, 'If you came to it, would you drive a crane?'  What do you say to that, that you've just forgotten that conversation?---No, I didn't forget it.  It didn't happen.

Do you say that you didn't speak to Mr Pedder at all on that day, on 23 July?---No.” 38

[151] Mr Kranendonk’s evidence is at odds with Mr Roberts’ evidence, where his unchallenged witness statement says:-

“Mr Pedder indicated that he had already spoken with Mr Kranendonk and that he would not work either.” 39

[152] Mr Kranendonk also testified that Mr Iki did not say that he was prepared to come to work on 29 July to do his work but not the stevedore’s work. 40 Mr Kranendonk’s evidence is at odds with the evidence of the Applicants but also the evidence of Mr Minchin41 and Mr Roberts.42

[153] Where there has been contested evidence, I prefer the evidence of the Applicants over Mr Kranendonk. Mr Kranendonk was brutally honest in his answers where he basically said, ‘I can remember what I can remember’. The conflict in evidence is not meant as a criticism of Mr Kranendonk, but as the Manager of Fremantle Port, involved in an industrial dispute for the first time, Mr Kranendonk was required to be thinking about maintaining the operation of the Port whilst at the same time trying to resolve the industrial dispute with the MUA. That Mr Kranendonk cannot remember precise details of conversations that he had with his colleague Mr Lee or the Applicants is not a criticism of his behaviour or his evidence in this proceeding.

Conclusion

[154] Mr Kranendonk was deliberately evasive, secretive and vague when dealing with his Shift Managers in relation to the work that they would be performing during the protected action of the stevedoring employees. His refusal to allow the Shift Managers to read a simple confidentiality agreement before they signed it on July 29 was bizarre and ridiculous. His refusal to discuss his plan to use staff labour and labour hire to operate the port until the Shift Managers signed the confidentiality agreement is equally strange. His response to a legitimate question from Mr Iki, to ‘put two and two together’ and ‘work it out for yourself’ is hardly a conclusive or direct answer.

[155] For 4 of the Applicants to be accused of failing to follow a lawful and reasonable direction from the meeting on 2 August is extraordinary when Mr Kranendonk was clearly talking in very vague terms and not prepared to answer direct and legitimate questions in relation to the use of machinery and other tasks in consolidating the yard.

[156] Following the obiter in Mt Arthur, I am satisfied and find, for the reasons identified above, that the Respondent did not have a valid reason to terminate the Applicants. The Direction issued by the Respondent to the Applicants was not lawful or reasonable. The work that they were ultimately required to perform was not incidental to their role. Any termination without a valid reason naturally results in the termination being harsh, unjust and unreasonable.

[157] If I am wrong and the Respondent did have a valid reason to terminate the Applicants, then I find that their termination was harsh and unjust for the reasons identified above.

[158] I accept the submission from the Applicants that they did not refuse to follow a lawful and reasonable direction at any of the meetings because no instructions were actually given to the Shift Managers.

[159] The Respondent did not seek to resolve the issues of the Applicants in relation to safety. In my view, this was an error. Further, Mr Miller and Mr Burkhardt raised issues about their personal safety. These issues were ignored by the Respondent, even though the Respondent had a plan in place to deal with this issue.

[160] Meetings between senior management and their employees, no matter what level, should not develop into some sort of cryptic crossword or be open to individual interpretation, especially when the intention of the employer was to have the Shift Managers perform the work of the striking stevedores. The consultation needs to be concise and precise.

[161] I find that the termination of the Applicants was harsh, unjust and unreasonable.

Remedy

[162] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.

[163] I have taken into account all of the submissions that have been provided by the parties in relation to remedy and I have attached the appropriate weight to the evidence of the witnesses.

[164] The Applicant seeks to be reinstated. The Respondent submitted that reinstatement was impracticable because it had lost trust and confidence in the Applicant.

[165] The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:

“Section 390 When the FWC may order remedy for unfair dismissal

(1)  Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a)  the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b)  the person has been unfairly dismissed (see Division 3).

(2)  The FWC may make the order only if the person has made an application under section 394.

(3)  The FWC must not order the payment of compensation to the person unless:

(a)  the FWC is satisfied that reinstatement of the person is inappropriate; and

(b)  the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[166] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins), 43 the Full Court of the Industrial Court said:

“Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”  44

(My emphasis)

[167] In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen), 45 a Full Bench of the Commission conveniently summarised this issue:

“The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”  46

[168] In Smith v Moore Paragon Australia Ltd, 47 a Full Bench of the Commission held:

“[15] It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not "appropriate". To adopt such an approach would tend to defeat the remedial purpose of the legislation. The unavailability of a job vacancy is simply one factor to be taken into account in deciding whether or not an order for reinstatement is appropriate.”

[169] The Respondent claims to have lost trust and confidence in the Applicants because they have not followed a lawful and reasonable direction, they were not prepared to assist the Respondent to keep the port operational during a critical time for the Respondent, they cannot be trusted that they will simply abandon their employment in the future if this scenario arises again and that their loyalty appears to be aligned with the Union rather than the Respondent.

[170] The Respondent also claimed that there are no vacant Shift Manager roles at Fremantle. The positions of the Applicants have been filled which will create impracticalities if the Applicants were reinstated.

[171] I do not accept that the requisite level of trust and confidence could not be re-established with the 6 Applicants in order to allow the Applicants to continue their career with the Respondent. Mr Kranendonk and Mr Lee appear to be very reasonable people. I believe that they could get on with anyone, particularly Mr Kranendonk, who seems to have the type of personality that he could walk into any pub in Australia and within 5 minutes not be lonely or thirsty for the rest of the night. I have taken this into account.

[172] It is not in dispute that the primary unfair dismissal remedy in the Act is reinstatement. All of the Applicants want to be reinstated. The Australian Parliament clearly wanted reinstatement to be the preferred outcome of any unfair dismissal application. I have taken this into account.

Conclusion

[173] Based on the obiter and Perkins and Nguyen, I am satisfied and find that the requisite trust and confidence can be re-established between the Applicants and the Respondent. I note that none of the Applicants were dismissed for unsatisfactory performance. All of the Applicants are keen to resume their careers with the Respondent.

[174] I Order that the Applicants be reinstated to their former roles as Shift Managers at Fremantle Port.

[175] I Order that the Applicants maintain their continuity of employment.

[176] I Order that the Applicants be back paid for their lost time, including their superannuation, between the date of termination and the date of their reinstatement, less any money earnt by each Applicant in the intervening period.

[177] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR738284>

 1   (1995) 185 CLR 410 per McHugh and Gummow JJ at 465.

 2   [2000] AIRC 1019 the Full Bench of the AIRC.

 3   [2021] FWCFB 3457; 307 IR 140 at [77].

 4   [2015] FCAFC 35 at [31] to [42].

 5   At s 381(1)(c)), s 390(3)(a).

 6   [2014] FWCFB 7198.

 7   Transcript PN2775-2793.

 8   [2021] FWCFB 6059.

 9   (1995) 185 CLR 410, 465-7.

 10   (1998) 84 IR 1, 10.

 11   [2000] AIRC 1019.

 12   (1995) 62 IR 371.

 13   Ibid.

 14   PR4471.

 15   (1998) 84 FCR 483.

 16   Price v Mouat (1862) 11 CBNS 508; 142 ER 895 (employee hired as lace buyer not bound to obey orders to perform work of lace carder); Bampton v Viterra Ltd (2015) 123 SASR 80; 251 IR 261; [2015] SASCFC 87; BC201505246; Mackie v Wienholt (1880) 5 QSCR 211 (cook not bound to obey order to work in dairy); McCarthy v Windeyer (1925) 26 SR (NSW) 29; 42 WN (NSW) 175 (sub-editor not bound to obey orders to do work of a lower grade); Truth & Sportsman Ltd v Moldsworth [1956] AR (NSW) 924 (B-grade journalist not bound to obey order to work at a lower grade); Commissioner for Government Transport v Royall (1966) 116 CLR 314; [1967] ALR 313 (employee incapacitated by injury and entitled to salary during the period of incapacity does not lose the right to receive salary because of his refusal to perform duties within his residual capacity but not within the duties of his pre-injury classification). See also Hackshall’s Ltd v McDowell [1930] AR (NSW) 620 (where the court had to consider whether an order to a bread cart deliverer to work outside the normal area was outside the scope of the contract).

 17   Such as to work reasonable overtime: Anthony v NSW Fresh Food & Ice Co Ltd [1946] AR (NSW) 64 (the determination of ‘reasonable overtime’ was to be made by reference to the particular industry).

 18   Witness Statement of Mr Sam Lee at [8].

 19   Ibid at [63]-[65].

 20   Transcript PN2233 – 2239

 21   Transcript PN1991.

 22   Transcript PN2401.

 23   Witness Statement of Mr Jonathon Roberts at [15].

 24   Witness Statement of Mr Corey Minchin at [14].

 25   Ibid.

 26   Ibid at [72]-[73], [76].

 27   Transcript PN1632-38.

 28   Transcript PN1489-1493.

 29   Transcript PN1951

 30   Transcript PN2197, 2202, 2209, 2217, 2220, 2232, 2234, 2235- 6, 2239-40

 31   Exhibit 23.

 32   Transcript PN2058-2068.

 33   Transcript PN2607-2612.

 34   [2012] FCA 1201.

 35   Transcript PN2554

 36   Transcript PN2556-2558

 37   Transcript PN1928-1933.

 38   Transcript PN1961-1965, 1975-1976.

 39   Witness Statement of Mr Job Roberts at [16].

 40   Transcript PN2092.

 41   Witness Statement of Mr Minchin at [14].

 42   Witness Statement of Mr Roberts at [15].

 43   (1997) 72 IR 186.

 44   Ibid at 191-2.

 45   [2014] FWCFB 7198.

 46   [2014] FWCFB 7198 [27]-[28].

 47   Print 942856.