| [2022] FWC 3055 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Stephen Burley
v
Cleanaway Operations Pty Ltd T/A Cleanaway
(U2022/5500)
COMMISSIONER CAMBRIDGE |
SYDNEY, 24 NOVEMBER 2022 |
Unfair dismissal - valid reason for dismissal - significant procedural deficiencies - dismissal harsh, unjust, and unreasonable - reinstatement with no Order to restore lost pay.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 18 May 2022. The application was made by Stephen Burley (the applicant) and the respondent employer has been identified to be Cleanaway Operations Pty Ltd T/A Cleanaway ABN 40 010 745 383 (the employer or Cleanaway). The applicant was represented by the Transport Workers’ Union of Australia (the TWU).
[2] The application indicated that the date that the applicant’s dismissal took effect was 28 April 2022. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 20 September and 16 October 2022.
[4] At the Hearing Mr P Boncardo, barrister, instructed by Ms I Wisniewska from the TWU, appeared for the applicant. Mr Boncardo introduced evidence from the applicant as the only witness called in support of the unfair dismissal claim. The employer was represented by its Head of Employee Relations & Industrial Relations, Mr S Edwards, who called four witnesses who provided evidence on behalf of the employer.
[5] The applicant had worked for the employer for about 1 year and 1 month. However, the service date of the applicant was recognised by the employer to be 1 July 1997, a period of almost 25 years. The retrospective service date of the applicant recognised his previous employment with various companies that had been contracted to undertake waste collection services for the Randwick City Council. Cleanaway commenced to provide waste collection services for the Randwick City Council on 1 March 2021, and it employed the applicant, and other former employees of the previous waste collection contractor, from that date. The applicant had been performing waste collection services for contractors to the Randwick City Council for the past 35 years.
[6] The applicant was employed in a position described as a Driver Side-Lift or Side Load Operator, which the employer fixed at a Level 6 rate under clause 12.6 of the Waste Management Award 2020 MA000043. The applicant performed work in all functions of waste collection, driving both side and rear loader vehicles and when required, assisting in “bin-pulling” duties.
[7] The employer is Australia’s largest waste, recycling, industrial and liquid service provider, and it has the fourth largest heavy vehicle fleet on Australian roads. The employer has approximately 7000 employees. At the time of his dismissal, the applicant worked from the employer’s depot which is located at 8 Depot Road, Peakhurst.
[8] The applicant had been the TWU head delegate at the Randwick Council waste collection operations since 2007. The applicant had been involved in enterprise bargaining negotiations with Cleanaway which included various contests regarding the terms and conditions that should apply to work undertaken in respect of the Randwick Council waste collection contract. One matter of significant dispute involved the assertion by the applicant and the TWU, that the terms and conditions that were applicable under an enterprise agreement that covered the previous waste services contractor, Suez Pty Ltd, should apply to Cleanaway and its employees engaged in work on the Randwick Council waste collection contract.
[9] The applicant’s enthusiastic engagement in the disputation surrounding the enterprise bargaining negotiations with Cleanaway led to an application taken under s. 418 of the Act in which Cleanaway asserted inter alia, that the applicant had engaged in and had organised unprotected industrial action. The s. 418 application was eventually resolved by agreement being reached between the Parties. Except for recorded concern about the applicant’s conduct associated with the s. 418 application, the applicant’s employment was without any complaint or concern that had been identified to the applicant.
[10] On Monday, 4 April 2022, the applicant’s 99 year old mother was taken to Prince of Wales Hospital suffering from high blood pressure. The applicant was informed about his mother’s medical condition and advised that after her blood pressure had stabilised, she had been returned to the aged care facility where she resided. The applicant was also advised that because of ongoing concerns about the prospect that his mother may have a urinary tract infection, she had been prescribed antibiotics.
[11] The following day, Tuesday, 5 April 2022, the applicant attended for work, and he was allocated to drive a rear loader vehicle. The applicant commenced to drive the rear loader vehicle, a heavy vehicle of some 22 tonnes gross vehicle mass, and because he wanted to be contactable to receive any communication regarding his mother’s medical condition, he put his mobile phone in the pocket of his pants rather than his usual practice of leaving the phone in his bag.
[12] At about 11:45 am the applicant was driving the rear loader heavy vehicle along a suburban street when his mobile phone rang and he reached into his pocket, retrieved the phone, and noticed that the incoming call was from his mother’s aged care facility. The applicant then answered the phone, placed the call on loudspeaker, and put the phone into his shirt pocket. During the process of answering the incoming call and manipulating the phone, the applicant continued to drive the heavy vehicle and at times both of his hands were removed from the steering wheel of the vehicle.
[13] The applicant continued to drive the vehicle for about 40 seconds after he had answered the phone and during this time, he had the call on loudspeaker with the phone in his shirt pocket. The applicant then stopped the vehicle and continued the conversation with the phone on loudspeaker in his shirt pocket for approximately a further 3 minutes and 47 seconds. The applicant then concluded the loudspeaker call which had involved a representative of the aged care home advising the applicant that his mother had returned from hospital and providing further information about his mother’s condition which had apparently stabilised.
[14] The applicant then commenced to drive the vehicle again and within 3 seconds of the vehicle moving off, the applicant’s phone rang a second time. The applicant identified that this incoming call was from his sister, and he spoke with his sister whilst holding the phone in his right hand and driving the vehicle. This second telephone conversation, which was conducted whilst driving the vehicle and holding the phone in his right hand, lasted for approximately 36 seconds.
[15] At some point during the two telephone calls that the applicant engaged in on 5 April 2022, he was noticed by the employer’s Municipal Contracts Manager, Mr Angus Taylor. Mr Taylor was not performing his usual office based work on that day, 5 April, but instead, he had been assisting with waste collection work by taking over the role of an assistant on another rear loader truck. Mr Taylor was travelling as a passenger in another truck when he happened to see the truck being driven by the applicant while holding what appeared to be a mobile phone in one of his hands.
[16] On the afternoon of 5 April 2022, Mr Taylor telephoned his immediate Manager and the employer’s Regional Manager, Mr Steven Byrne, and informed him that he believed that he had seen the applicant using a handheld mobile phone whilst driving. Mr Byrne directed Mr Taylor to obtain the hard drive from the CCTV unit in the truck that had been driven by the applicant on 5 April 2022, and to review the CCTV recording.
[17] On the following day, Wednesday, 6 April 2022, the applicant performed his assigned duties unaware of the investigation that had been commenced following Mr Taylor’s chance observations of him on the previous day. During the afternoon of 6 April, once the truck that the applicant had driven on the previous day had returned to the depot, Mr Byrne retrieved the CCTV hard drive, and he viewed the recorded vision which showed the applicant’s conduct during the mobile phone calls that he had engaged in on the previous day.
[18] Later on 6 April 2022, Mr Taylor reported that, in summary, the CCTV recording had confirmed that the applicant had used a handheld mobile phone whilst driving the rear loader heavy vehicle along a suburban street. Mr Taylor reported the CCTV confirmation of this event to both Mr Byrne and to the employer’s Senior Human Resources Business Partner, Ms Fiona Warnock. Ms Warnock told Mr Taylor that because it appeared that the applicant had breached a Lifesaving Rule, he should be immediately stood down with pay as an investigation would be conducted which would involve inter alia, the applicant being interviewed by Human Resources management.
[19] On the morning of Thursday, 7 April 2022, Mr Taylor provided the applicant with a Notice of Suspension During an Investigation. This Notice was provided to the applicant upon his arrival at the Peakhurst depot, and in accordance with the directive of the Notice, the applicant left the workplace.
[20] On Monday, 11 April 2022, the applicant attended a meeting that was held at the employer’s Peakhurst depot. This meeting was conducted by Ms Alana Arnold, the employer’s Human Resource Officer who had been appointed by her manager, Ms Warnock, as the person responsible for investigating and providing a documentary report regarding the applicant’s alleged breach of the Lifesaving Rules – Safe Driving, during the event that was recorded by CCTV on 5 April 2022. In addition to Ms Arnold and the applicant, the meeting was also attended by Mr Ho Lau, a TWU official and the applicant’s support person, and Ms Stephanie Moretti attended electronically as a management support person.
[21] The meeting held on 11 April 2022, included the viewing of the CCTV record of the vision of the applicant when he engaged in the two mobile phone calls whilst driving the rear loader truck. The applicant explained the circumstances regarding his mother’s health concerns, including her attendance at hospital, and given that she was 99 years of age, the anxiety that the applicant experienced at the time. The applicant acknowledged that he had breached safety rules and road traffic laws when he used his handheld mobile phone whilst driving a motor vehicle.
[22] During the meeting held on 11 April, the applicant was asked by Ms Arnold what he believed should be the outcome from his admitted breach of the Lifesaving Rules and road traffic laws. In response, the applicant referred to the circumstances of another Cleanaway employee, Mr John Cruz, who was apparently captured on a transport authority camera using a handheld mobile phone whilst driving a Cleanaway heavy vehicle and found to have breached the Lifesaving Rule – Safe Driving. The applicant told Ms Arnold that because Mr Cruz had received a First and Final Written Warning, he should receive the same punishment.
[23] Following the meeting on 11 April, Ms Arnold completed a Workplace Investigation Report which she sent by email at 4:15 pm to Mr Byrne and Ms Warnock. On the following morning, Tuesday, 12 April 2022, Ms Warnock forwarded the Workplace Investigation Report by email to the employer’s General Manager – Solid Waste Services, NSW/ACT, Mr Matt McKenzie.
[24] On Thursday, 14 April 2022, (Maundy Thursday), at 4:46 pm, Mr McKenzie sent an email to Ms Tracey Boyes, the employer’s Executive General Manager, which forwarded the email that had been sent to him on 12 April 2022, by Ms Warnock and which attached the Workplace Investigation Report that had been produced by Ms Arnold following the interview meeting with the applicant on 11 April. In this email, Mr McKenzie recommended that the applicant’s employment be terminated, and he sought Ms Boyes’ approval for that course of action. At 9:31 pm that evening, Ms Boyes sent a response email to Mr McKenzie and Ms Warnock that stated, “Thank you Matt and Fiona. Approved.”
[25] On Tuesday, 19 April 2022, (Easter Tuesday), at 8:34 am, Ms Warnock sent an email to Ms Michele Mauger, the employer’s Chief People Officer, which included the Workplace Investigation Report that had been produced by Ms Arnold and requested that Ms Mauger approve the applicant’s termination of employment, noting that approval had already been provided by “Tracey and Matt”. At 10:28 am, Ms Mauger sent a response email to Ms Warnock which stated, “Please accept this email as approval to proceed as requested.”
[26] On Thursday, 21 April 2022, the applicant attended another meeting with Cleanaway management, on this occasion the meeting was held at Eastern Creek, and those in attendance were Mr Byrne and Ms Warnock from Cleanaway, and Mr Lau from the TWU as support person for the applicant. Shortly after the meeting commenced, Mr Byrne handed the applicant a letter entitled “Proposed termination of employment - opportunity to respond”. This letter relevantly advised the applicant that the employer had determined that the appropriate disciplinary response to his misconduct as identified in respect of the use of mobile phone whilst operating a heavy vehicle, was termination of employment. The letter also stated that before finalising this decision, Cleanaway would provide an opportunity for the applicant to respond either verbally or in writing, to provide reasons, explanations, or circumstances which he believed should be taken into account. The applicant was given until 12 pm on Tuesday, 26 April 2022 to provide any response.
[27] On Tuesday, 26 April 2022, the applicant provided Mr Byrne with a two-page document dated 23 April 2022, which set out the applicant’s responses to the proposed termination of his employment. At 3:06 pm, Mr Byrne sent an email to Ms Warnock and Mr McKenzie which attached the applicant’s response document. At 3:09 pm, Mr Byrne sent an email to the applicant which advised that an outcome meeting would be held on Thursday, 28 April 2022, at the Eastern Creek location. At the request of Mr Lau from the TWU, the outcome meeting was rescheduled to Friday, 29 April 2022.
[28] On Friday, 29 April 2022, the applicant attended the outcome meeting with Mr Lau as his support person. Mr Byrne and Ms Warnock from Cleanaway attended the outcome meeting which involved Mr Byrne handing the applicant a termination of employment letter dated 28 April 2022 and signed by Mr Byrne. The outcome meeting lasted no longer than about 2 minutes.
[29] The termination of employment letter that was given to the applicant by Mr Byrne referred to the findings of the investigation regarding the misconduct of the applicant by using his mobile phone whilst operating a heavy vehicle, and it further stated that the employer had given proper consideration to the seriousness of the misconduct, mitigating circumstances, the applicant’s conduct history, and that it had also taken into account the matters raised in the applicant’s response document that was provided to the employer on 26 April 2022. The termination of employment letter further indicated that the decision to dismiss the applicant was confirmed, and despite a finding of serious misconduct, the applicant would be paid in lieu of notice together with all other accumulated entitlements.
[30] Since the termination of his employment, the applicant has not attempted to find alternative employment. The applicant has sought reinstatement as remedy for his alleged unfair dismissal.
[31] Mr Boncardo, barrister, who appeared for the applicant at the Hearing, made oral submissions which elaborated upon documentary submissions that were filed on behalf of the applicant on 2 August and 13 September 2022. Mr Boncardo commenced his submissions by reiterating the concession that there was a valid reason for the dismissal of the applicant. Mr Boncardo acknowledged that the applicant’s conduct on 5 April 2022, involving answering two calls on a handheld mobile phone whilst driving a vehicle, breached the employer’s Lifesaving Rule and provided valid reason for his dismissal. However, according to the submissions made by Mr Boncardo, there were numerous other aspects of the dismissal of the applicant which, notwithstanding that it was for a valid reason, established that the dismissal was harsh, unjust and unreasonable.
[32] The submissions made by Mr Boncardo firstly asserted that the dismissal of the applicant was a disproportionate punishment when all of the circumstances surrounding the applicant’s conduct on 5 April 2022, were fully considered. Mr Boncardo said that the applicant’s error of judgement in answering his phone twice did not occur in a vacuum. In particular, Mr Boncardo mentioned that the applicant was in a state of high anxiety and under significant stress associated with his concern for his 99 year old mother, and in this context, the applicant was not thinking clearly.
[33] Mr Boncardo also mentioned a variety of other contextual factors that needed to be considered when assessing whether dismissal was a proportionate punishment for the applicant’s action on 5 April 2022. Mr Boncardo referred to what he said was the applicant’s unblemished employment record of working on the Randwick Council waste collection operations for over 30 years. Further, it was submitted that the applicant’s unequivocal acceptance and responsibility for his actions, for which he was genuinely remorseful, were matters that needed to be evaluated in any assessment of whether termination of employment was a proportionate outcome. Mr Boncardo also made detailed submissions about the asserted severity of the dangers and risks that were said to have been created by the applicant’s actions in answering the two mobile phone calls.
[34] Mr Boncardo further submitted that it was relevant to have regard for the evidence that the applicant was unaware that he could have utilised a Bluetooth connection that would have permitted hands-free operation of his mobile phone. In addition, Mr Boncardo submitted that it was also relevant to have regard for the applicant’s age, and his other personal circumstances, in any proper evaluation of whether the punishment of dismissal was disproportionate. Mr Boncardo submitted that when all of the relevant factors were properly evaluated, the punishment of dismissal was disproportionate and should be found to have been harsh.
[35] The submissions made by Mr Boncardo next dealt with the issue of what he asserted to be the differential treatment provided to the applicant. Mr Boncardo said that there were a number of employees of Cleanaway who remained employed after having breached a Lifesaving Rule in a similar fashion to the breach that the applicant had committed. In this regard, particular mention was made of the circumstances surrounding Mr John Cruz. Mr Boncardo also referred to a number of other individuals who had breached the Lifesaving Rule but had not been dismissed from employment as punishment for such conduct. Mr Boncardo submitted that it was clear that the employer had exercised a degree of discretion and leniency when assessing the particular circumstances of any breach of a Lifesaving Rule. Mr Boncardo submitted that the applicant was not provided with the same level of discretion and leniency that the employer had granted to other employees. Consequently, according to the submissions of Mr Boncardo, the differential treatment of the applicant, when compared to various other individuals, meant that the penalty of dismissal for the applicant was unjust.
[36] The next component of the submissions made by Mr Boncardo relied upon an assertion that the dismissal of the applicant was not compliant with the requirements of subsection 387 (c) of the Act. Mr Boncardo submitted that the applicant had not been given a genuine opportunity to respond to the reason for his dismissal that related to his conduct in answering the two phone calls on 5 April 2022. In support of this submission, Mr Boncardo referred to evidence that the final decision to terminate the employment of the applicant was made on 19 April when Ms Mauger provided her approval for dismissal. Mr Boncardo said that the subsequent process involving the invitation for the applicant to provide his written responses did not represent a genuine opportunity to potentially influence the decision to dismiss because the response document was never provided to the ultimate decision maker, Ms Mauger.
[37] Mr Boncardo said that the evidence established that the employer had made the decision to dismiss the applicant on 19 April, and the process that followed was just a box ticking exercise to make it appear that the respondent had complied with its procedural fairness obligations. Mr Boncardo submitted that the dismissal of the applicant, without providing him a genuine opportunity to respond to the reason for his dismissal, represented a substantive denial of procedural fairness. Mr Boncardo submitted that this substantive denial of procedural fairness meant that the dismissal was unfair in the circumstances.
[38] The final aspect of the submissions made by Mr Boncardo dealt with the issue of reinstatement as the appropriate remedy for the alleged unfair dismissal of the applicant. Mr Boncardo submitted that there was no evidence to properly establish that there had been a loss of trust and confidence between the Parties, and that it was particularly relevant to note that the applicant’s direct supervisor, Mr Roy Mittiga, was not called to provide evidence. Mr Boncardo submitted that there was no impediment to reinstatement which was earnestly sought by the applicant, and in the particular circumstances of the applicant, reinstatement would be an appropriate remedy.
[39] Mr Boncardo concluded his submissions by stating that this matter represented a paradigm case where reinstatement should be Ordered. Mr Boncardo said that the dismissal of the applicant was substantively unfair because it was disproportionate, harsh, and it involved the exercise of differential treatment. Further, according to the submissions made by Mr Boncardo, the dismissal of the applicant was also procedurally unfair, and he urged the Commission to provide a remedy of reinstatement.
[40] Mr Edwards, who appeared for the employer at the Hearing, provided written submissions which were dated 30 August 2022, and he supplemented this material with oral submissions which elaborated upon a closing statement document that was filed on 17 October 2022. Mr Edwards submitted that the dismissal of the applicant was not unfair, harsh, or unreasonable, and that the application for unfair dismissal remedy should be dismissed.
[41] Mr Edwards submitted that it was not contested that there was a valid reason for the dismissal of the applicant in respect of his breach of the employer’s Lifesaving Rules. Specifically, Mr Edwards said that it was accepted by the applicant that on two occasions he used his mobile phone whilst not in hands-free mode while driving a 22.5 tonne heavy vehicle in a narrow residential street of Maroubra. Mr Edwards said that the uncontested valid reason for the dismissal of the applicant was a factor that weighed heavily to establish that the applicant’s dismissal was not harsh, unjust, or unreasonable.
[42] Mr Edwards further submitted that the employer had satisfied subsections 387 (b), (d), (e), and (g) of the Act, and subsection 387 (f) was according to Mr Edwards, of neutral weighting, and that the focus of the claim for unfair dismissal involved subsections 387 (c) and (h) of the Act. Consequently, the submissions made by Mr Edwards focused upon aspects of the matter that related to subsections 387 (c) and (h) of the Act.
[43] Mr Edwards submitted that the employer had satisfied the requirements of subsection 387 (c) of the Act, as the evidence had established that the applicant had been given an opportunity to respond to the allegations that he had breached the Lifesaving Rules during the interview that the employer conducted on 11 April 2022. Mr Edwards said that the applicant was aware of the nature of the employer’s concern about his conduct regarding the breach of the Lifesaving Rules, and he had been provided a reasonable opportunity to respond to those concerns.
[44] The submissions made by Mr Edwards referred to the record of interview of 11 April 2022, which in summary, confirmed that the applicant had been provided with training and had a clear understanding of the Lifesaving Rules, he had acknowledged that he knew that you could not use a handheld mobile phone when operating a vehicle. Further, Mr Edwards said that the applicant had provided information about the circumstances of his mother as explanation for his conduct, and he also advised that he was not familiar with Bluetooth technology, and further, he had mentioned the case of Mr John Cruz. Mr Edwards submitted that this evidence established that the applicant had been given an opportunity to respond as contemplated by subsection 387 (c) of the Act.
[45] Mr Edwards further submitted that the Workplace Investigation Report that had been prepared following the interview with the applicant on 11 April 2022, was subsequently considered by Ms Mauger on 19 April 2022, and the decision to dismiss the applicant was made at that time. Mr Edwards also acknowledged that the subsequent process which involved the opportunity provided for the applicant to further respond on 26 April, would not have changed or altered the decision made by Ms Mauger on 19 April. Mr Edwards conceded that the process adopted by the employer was “over-engineered” and it was flawed. However, Mr Edwards submitted that the applicant was sufficiently aware of the allegations, and he had responded to those allegations as was recorded in the record of interview of 11 April 2022. Mr Edwards said that although the process adopted by the employer left much to be desired, it nevertheless satisfied the requirements of subsection 387 (c) of the Act.
[46] In his further submissions, Mr Edwards referred to various issues that had arisen under subsection 387 (h) of the Act. Mr Edwards submitted that one of the relevant matters to consider involved the notion of a fair go all round, which had application in respect to the obligations that the employer had to enforce safety standards to ensure safe work practices were observed. Mr Edwards said that this was particularly appropriate in an inherently dangerous workplace such as the waste management industry. Mr Edwards submitted that the gravity of the applicant’s conduct which he described as being extremely dangerous, meant that the dismissal of the applicant was proportionate to this conduct.
[47] Mr Edwards submitted that having regard for the obligations on the employer to ensure safe work practices were always followed, the incident of 5 April 2022, was of such significance that it was appropriate for the employer to invoke a disciplinary regime in order to ensure that it met its obligations in respect of safety. Mr Edwards submitted that in all the circumstances, the applicant’s dismissal was not disproportionate to the gravity of the misconduct in which he engaged, nor was it harsh in any other sense.
[48] Another factor that was addressed in the submissions made by Mr Edwards involved the question of the alleged differential treatment of the applicant. Mr Edwards referred to some of the other individuals including Mr John Cruz, which had been promoted by the applicant as demonstrating that there had been differential treatment of the applicant as opposed to these other individuals who had apparently breached the employer’s Lifesaving Rules. Mr Edwards submitted that the applicant had not provided sufficient detailed evidence of the circumstances of the other individuals that he sought to use as comparisons. Consequently, according to the submissions of Mr Edwards, no proper comparison could be made, and therefore there was no proper evidentiary basis upon which to establish that the applicant had been treated differently to other employees.
[49] Mr Edwards also made submissions about the personal circumstances of the applicant which had been raised as basis to establish that his dismissal was harsh. In this regard, Mr Edwards said that although the employer empathised with the applicant’s personal circumstances, the case law did not support an argument that the personal circumstances provided acceptable reasons for non-compliance with the employer’s Lifesaving Rules. Mr Edwards also submitted that the applicant had alternative safe options available to him instead of answering the two phone calls with his handheld mobile phone.
[50] Further, in respect of the age and adjusted service date for the employment of the applicant, Mr Edwards submitted that the applicant was a highly employable and fit 60 year old male, and the preserved service date of his employment was primarily recognised for the purposes of future pay entitlements as opposed to matters such as any requirement to comply with Lifesaving Rules. Mr Edwards submitted that although some of the relevant factors held some weight, given the nature of the applicant’s safety breach, the significant and real risk that he exposed the community to, the factors identified under subsection 387 (h) should not be held as a determinative factor of whether the dismissal of the applicant was harsh, unjust, or unreasonable.
[51] The submissions that were made by Mr Edwards also addressed the issue of any remedy in the event that the Commission found that the dismissal of the applicant was unfair. Mr Edwards submitted that reinstatement would be an inappropriate outcome on the grounds that the employer had a loss of trust and confidence in the applicant. Mr Edwards submitted that the applicant had a flippant attitude towards the employer’s Lifesaving Rules, and although the applicant had repeatedly said that he would never use his mobile phone in handheld mode again, the employer believed that it was not unreasonable to suggest that it had lost trust and confidence in the applicant’s ability to comply with the Lifesaving Rules and to follow the employer’s lawful and reasonable directions.
[52] Mr Edwards submitted that the employer’s loss of trust and confidence in the applicant had been compounded because he had engaged in arranging covert, unlawful, industrial action and any reinstatement of the applicant might impact upon the ongoing enterprise bargaining negotiations that the employer was involved in with the TWU. Mr Edwards submitted that based on the applicant’s previous behaviours, the employer had lost complete trust and confidence in the applicant’s ability to be productive, act appropriately, work safely, and not engage in future covert and unlawful industrial practices at the Peakhurst depot.
[53] In summary, the submissions made by Mr Edwards asserted that the applicant was not entitled to any remedy as his dismissal was not harsh, unjust, or unreasonable. Mr Edwards submitted that the applicant had been dismissed for valid reason, which involved very serious breaches of the employer’s Lifesaving Rules. Mr Edwards submitted that when all of the factors identified in s. 387 of the Act were considered, the dismissal of the applicant was not harsh, unjust, or unreasonable. Mr Edwards urged that the Commission dismiss the applicant’s unfair dismissal claim.
[54] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“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.”
[55] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust, or unreasonable.
[56] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust, or unreasonable. Section 387 of the Act is in the following terms:
“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.”
S. 387 (a) - Valid reason for the dismissal related to capacity or conduct
[57] In this instance, there was no dispute that the applicant was dismissed for valid reason. The valid reason for the applicant’s dismissal involved his very serious breaches of the employer’s Lifesaving Rules and road traffic laws when, on 5 April 2022, on two occasions, he answered telephone calls with his handheld mobile phone whilst driving a motor vehicle. On any reasonable and objective contemplation, this valid reason for dismissal must weigh heavily against any finding that the dismissal was harsh, or unjust, or unreasonable.
[58] Therefore, the conduct of the applicant on 5 April 2022, whereby he engaged in two separate mobile telephone calls with his handheld mobile phone while he was driving a 22.5 tonne garbage truck along a metropolitan street, has provided valid reason for the dismissal of the applicant. The particular nature of the valid reason in this instance has provided strong support for the Commission to uphold the employer’s decision to dismiss. However, the valid reason for the dismissal of the applicant, as strong as it should be recognised, must nevertheless be assessed, and carefully balanced against all of the other factors mentioned in s. 387 of the Act.
[59] The employer provided notification of the reason for the applicant's dismissal in the termination of employment letter that was dated 28 April 2022, and which was handed to the applicant by Mr Byrne at the outcome meeting that was held on 29 April 2022. The termination of employment letter confirmed the decision to dismiss the applicant for reason of his “misconduct by using mobile phone whilst operating a heavy vehicle, subsequently breaching the companies [sic] Lifesaving rule, code of conduct and Health and Safety Policy.”
[60] It is relevant to note that the termination of employment letter was signed by Mr Byrne and handed to the applicant by Mr Byrne. However, Mr Byrne did not take the decision to dismiss the applicant. Consequently, the notification of the reason for dismissal was not communicated by the person that made the decision to dismiss, that being Ms Mauger.
[61] The opportunity that the applicant was given to respond to the reason for dismissal that related to his conduct on 5 April 2022, was essentially farcical.
[62] After Ms Mauger had made the decision to dismiss the applicant on 19 April 2022, Mr Byrne (and Ms Warnock) decided to arrange a meeting with the applicant and his support person on 21 April 2022, “to discuss the findings of the investigation and close out the matter.” 1 At the meeting held on 21 April 2022, Mr Byrne gave the applicant two letters. The first was titled “Investigation into misconduct – conclusions” and the second document was titled “Re: Proposed termination of employment – opportunity to respond”. On 26 April 2022, the applicant provided a written response document to Mr Byrne.
[63] However, the applicant’s response document was never shown to or considered by the person that had made the decision to dismiss on 19 April 2022, that being Ms Mauger. Ms Mauger provided the following evidence which confirmed that the show cause process that was instigated and conducted by Mr Byrne and Ms Warnock was, in reality, a pretence:
“Now, the decision that you made on the 19 April which was communicated via email at 10:28 am was a final decision. Correct?--- That was correct.
Now, you’re aware, aren’t you, that Cleanaway provided Mr Burley a show cause letter - the opportunity I should say - to show cause as to why his dismissal should not occur?--- Yes, I am aware.
And you were never provided, were you, with a copy of his show cause response?--- I was not provided with a copy.
And you would agree with me that if Cleanaway tells an employee that their employment is at risk but they can tell Cleanaway reasons why their employment ought not be terminated, which Cleanaway will consider, that it is incumbent upon Cleanaway to consider any response given by the employee?--- The business runs the show cause meetings and the business is instructed that if any new evidence comes out as a consequence of that meeting they are to bring it back to me to review.
So you never saw Mr Burley show cause letter and did not give it any consideration. Correct?--- No, I did not.
The decision was made on the 19 April and that decision was final. Correct?--- That is correct.” 2
[64] It appeared from the evidence that was provided by Ms Arnold, that Mr Byrne and/or Ms Warnock determined that the response document that was provided by the applicant on 26 April 2022, did not include any additional information and therefore it would not be provided to Ms Mauger. However, there were numerous aspects of the circumstances surrounding the applicant that he had stressed in his response document and about which Ms Mauger had no knowledge of, and these were matters that would have, on any reasonable contemplation, potentially influenced the decision to dismiss. A few examples of these matters can be identified from the following evidence that was provided by Ms Mauger:
“Now, you’d agree with me, wouldn’t you, that Mr Burley’s attitude to his conduct was a relevant matter for you to take into account in determining whether or not it was appropriate to dismiss him?--- Yes, I do.
And whether or not he was regretful or remorseful and committed never to engage in such conduct again?--- Yes, I do.
And you had no information before you when you made the decision as to Mr Burley’s attitude?--- No, I did not.
And you also agree with me, don’t you, that you have assessed Mr Burley’s service as being just over 13 or so months with Cleanaway? That is he commenced his employment on the 1 March 2021?--- With Cleanaway, yes, that is correct.
But you know he had an adjusted service date of 1 July 1997. You’re aware of that?-- I am aware of that, yes.
Were you aware of that when you made your decision that he should be sacked?--- No I was not.” 3
“You didn’t know what his family and financial responsibilities were, did you?--- No, I did not.
You knew that he had a 99 year old mother?--- I didn’t realise she was 99. No, I did not.” 4
“And if you had been told that Mr Burley regretted his conduct and was committed to never engaging in similar conduct again that would have been a matter that would have influenced you to potentially retain him as an employee?--- I cannot answer that I don’t know.” 5
[65] Consequently, the applicant was not provided with a genuine opportunity to respond to the reason for his dismissal related to his conduct on 5 April 2022. Instead, the employer engaged in something of an elaborate pretence which attempted to create the appearance of a show cause process. The procedure that was adopted by the employer was both convoluted and perfunctory whereby it involved the participation of numerous individuals, most of whom had no face to face contact with the applicant, but who nevertheless determined to make and/or support recommendations for his dismissal, or who subsequently decided that any pleadings from the applicant did not warrant any hearing by the ultimate decision maker.
[66] The approach that was adopted by the employer was severely flawed and it denied the applicant natural justice. If the applicant had been provided with a genuine opportunity to actually be heard by the decision maker, there was a clearly identifiable prospect that disciplinary action other than termination of employment may have been determined. Of course the outcome may not have altered, but at least then the employer would have implemented a dismissal with proper process. The absence of that proper process represents a fundamental injustice.
[67] The employer did not unreasonably refuse to allow the applicant to have a support person present to assist at any discussions relating to dismissal. The applicant did have a support person present during discussions that related to his dismissal.
[68] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, the undeniable misconduct associated with his use of a handheld mobile phone on two occasions on 5 April 2022, while driving a vehicle along a suburban street. The nature of the misconduct of the applicant was not something that would warrant any prior warning, and the applicant accepted and acknowledged his wrongdoing.
[69] Interestingly however, the employer’s submissions noted that the applicant was issued a warning “for organising and taking unprotected industrial action.” 6 This issue of the applicant’s alleged involvement in unprotected industrial action was a matter that was also included in the Additional Considerations - Employee History section of the Workplace Investigation Report that was prepared by Ms Arnold on 11 April 2022.
[70] The Additional Considerations – Employee History section of the Workplace Investigation Report also made mention of two incidents respectively dated 14 December 2021, and 2 February 2022, where, on each occasion, it was recorded that the applicant had been involved in third party vehicle damage. Despite the inclusion of these matters as Additional Considerations that were ultimately placed before the decision maker, Ms Mauger, the applicant was not made aware of the alleged incidents, and these matters are not the subject of any recorded questioning or response from the applicant.
[71] The employer is a large size business operation and therefore it was quite surprising to observe the severely flawed procedure that it adopted in respect to the investigation, determination, and subsequent implementation of the dismissal of the applicant. Frankly, the processes that were implemented by the employer suffered from the involvement of too many managers, many of whom did not have any face to face contact with the applicant as part of the disciplinary procedure. In the result, it was very surprising and unfortunate that such a large employer would adopt an overly bureaucratic process that was convoluted, perfunctory, and culminated in a show cause procedure that was farcical and unjust.
[72] There was evidence that the employer did have employee management specialists and other staff with employment related expertise. Consequently, it was very disappointing that despite the presence of such specialist management staff, the employer adopted a seriously flawed procedural approach that denied the applicant natural justice.
[73] In this instance, there was a number of other relevant matters that were identified as having potential impact upon the determination of the applicant’s unfair dismissal claim.
Proportionality
[74] The question of whether dismissal was a proportionate punishment for the misconduct of the applicant has required careful consideration. It was clear that the employer had not invoked a policy or practice of mandatory dismissal for confirmed breach of the Lifesaving Rule which relevantly stipulated as, “Only using a mobile phone in hands-free mode.” 7 Consequently, it is necessary for there to have been an evaluation of the relative severity of the conduct of the applicant on 5 April 2022. That evaluation must necessarily involve a detailed examination of the actual conduct, and helpfully, the CCTV footage has provided the capacity to make such a detailed examination.
[75] Regrettably, in this instance the decision maker Ms Mauger, did not undertake a detailed examination of the CCTV footage, but instead she was only provided with two still pictures extracted from that footage. Consequently, Ms Mauger could not have made any assessment of the relative severity of the particular conduct of the applicant. Instead, she treated the two confirmed incidents involving the applicant holding his mobile phone, identified as being at 30 minutes and 19 seconds and 30 minutes and 05 seconds respectively, as established basis for dismissal, as if dismissal was a mandatory outcome for the confirmed breaches of the Lifesaving Rule. Consequently, the decision maker Ms Mauger did not make any evaluation of the relative severity of the actual conduct of the applicant so as to determine whether dismissal was or was not a proportionate punishment.
[76] It should be noted that the second of the two still photos included in the Workplace Investigation Report was incorrectly identified as being “At 30 minutes and 05 seconds into the video”. This has appeared to be a typographical error and it should have read “At 34 minutes and 05 seconds…”. It may appear that little would turn upon this typographical error, and it was corrected by Ms Mauger at paragraph 28 (e) of her statutory declaration. 8 However, without any careful examination of the CCTV footage, there may have been an assumption made by Ms Mauger (and other managers), that on the two occasions that were captured in the still photos, the applicant had been holding his mobile phone in his hand for the duration of the calls and while driving a moving vehicle.
[77] Contrary to any such assumption, a careful examination of the CCTV has revealed that the first call was answered by the applicant at 30:19, as can be seen from the first still photograph. However, what is not shown in the still photos is that by 30:27 the applicant had put his phone into his shirt pocket and was using the phone on loudspeaker. Further, after another 26 seconds, while speaking on loudspeaker with the phone in his shirt pocket, the applicant stopped the vehicle, and the remainder of the first call was completed with the vehicle stationary and the phone in the applicant’s shirt pocket.
[78] The second call, which was answered by the applicant at 34:05, as shown in the second still photo, occurred as the applicant commenced to slowly move the vehicle again after completing the first call. The second call lasted for about 35 seconds, and on this occasion the applicant did hold the phone in his hand for the duration of the call. However, the vehicle appeared to be moving very slowly during the second call.
[79] A careful examination of the CCTV footage has disclosed that the applicant was clearly mindful that his actions were in breach of well understood road safety rules and the Lifesaving Rules. The applicant acted to minimise the severity of his breaches by putting the first call on loudspeaker, and then quickly stopping the vehicle for the remainder of the call. There could be no condonation of the applicant’s actions, but they were not the most flagrant breaches involving wanton disregard for the safety implications.
[80] Upon proper consideration of the entire circumstances, having regard for the dangerous nature of the waste collection industry, and following a careful examination of the CCTV footage, a balanced and objective assessment has established that the misconduct of the applicant was not at the more severe level of safety breaches. Unfortunately, the absence of any proper, detailed examination of the CCTV, confirmed that, in reality, a mandatory punishment of dismissal was applied without any assessment being made of the severity of the breaches so as to determine whether or not the punishment of dismissal was proportionate with the severity of the misconduct. This unfortunate absence of proper consideration of a relevant factor as to whether dismissal was a proportionate punishment was, very regrettably, further confirmed by the following evidence that was given by Ms Mauger:
“But you’d agree that it’s important to assess the gravity of the breach in determining whether or not to dismiss an employee?--- No, I do not. It was a clear breach of our lifesaving rule and our lifesaving rules specifically say that it could result in termination of employment.
Do they? Are you sure of that? Your lifesaving - - - ?--- Yes, they do.
All right. I take you to those lifesaving rules, please. You will find a copy commencing - - - ?--- I’m sorry. Not actually on the posters themselves but in some of the documentation that is issued it does refer to that a breach of a lifesaving rule may result in termination of employment.
The lifesaving rules themselves say nothing whatsoever about the consequences of a breach of those rules, do they?--- Yes. No - I agree.” 9
[81] In reality, Ms Mauger applied what might be described as a zero tolerance - mandatory dismissal punishment regime that was closed to any contemplation of severity assessment. There was no assessment made by Ms Mauger of the level of severity of the applicant’s misconduct. Upon careful, balanced examination of the CCTV footage, and having regard for the dangerous nature of the work, the misconduct could not be determined to be at the more severe level. Therefore the punishment of dismissal was imposed as a mandatory outcome, which was disproportionately hash.
Differential Treatment
[82] In both the record of interview of 11 April 2022, and the applicant’s response document provided to the employer on 26 April 2022, the applicant made mention of the circumstances of another employee, Mr John Cruz. Essentially, the applicant asserted that he was aware that in September 2021, Mr Cruz had been captured by a road traffic authority camera using his mobile phone in his hand whilst driving on the M4 motorway. Further, the applicant understood that for this breach of the Lifesaving Rules, Cleanaway determined to issue Mr Cruz with the punishment of a first and final written warning. The applicant believed that his misconduct was similar to that of Mr Cruz’s, and therefore a similar punishment involving a first and final written warning should follow.
[83] Any assessment of the circumstances of other employees for the purposes of determining whether there has been consistent disciplinary treatment is usually a difficult exercise. Often, there may be evidence of very similar misconduct but, in the absence of comprehensive evidence about all of the relevant circumstances, a proper comparison involving the context in which the similar misconduct occurred cannot be made. Consequently, the consideration of alleged inconsistent treatment of one employee vis-a-vis another, must be approached with significant caution.
[84] There were several employees whose circumstances were said to be similar to that of the applicant, that is, in recent times they were found to have breached the Lifesaving Rules, but they received first and final written warnings rather than dismissal. Conversely, the employer provided evidence that in the financial year ending June 2022, it had dismissed 31 employees for contraventions of a Lifesaving Rule, 8 of the 31 specifically involved contraventions of the Lifesaving Rule regarding only using a mobile phone in hands free mode. Against this background, emphasis was made in respect to the case of Mr Cruz, the individual instance that the applicant had raised, and for which the more significant body of evidence was provided.
[85] Ms Arnold reviewed the circumstances of Mr Cruz after he had been mentioned by the applicant during the interview held on 11 April 2022, in response to her question about the anticipated outcome from the breaches of the Lifesaving Rules. Ms Arnold provided evidence that she identified three differences between the circumstances of Mr Cruz and those of the applicant. These differences were, (1) Mr Cruz’s offence was captured by a mobile phone detection camera and Cleanaway was notified via an infringement notice, whereas the applicant was seen by Mr Taylor and recorded by the in-cabin CCTV, (2) the applicant was seen to have both hands removed from the steering wheel at times when answering the phone whereas the single detection camera photo did not confirm that Mr Cruz had removed both hands from the steering wheel, and (3) Mr Cruz was found to have offended on one occasion while the applicant offended on two separate occasions.
[86] It appeared that as a result of the three differences that Ms Arnold had identified between the circumstances of Mr Cruz and the applicant, she made no further mention of the applicant’s attempted reliance upon the asserted similarities with the case of Mr Cruz when she prepared the Workplace Investigation Report. Consequently, there was no specific mention of the applicant’s assertions about the comparable circumstances of Mr Cruz in the Workplace Investigation Report. However, as part of the Additional Considerations set out in part 6.1 of the Workplace Investigation Report the following text was included:
“Consistency
- The outcomes applied across the Cleanaway business for previous breaches and any mitigating circumstances in those cases.
- The merits of this incident.” 10
[87] Consequently, the Workplace Investigation Report that was provided to inter alia, Ms Mauger, was pointedly deficient because it failed to include any mention of the applicant’s attempted reliance upon the asserted similarities with the case of Mr Cruz, nor did it provide the basis upon which the review by Ms Arnold identified the three differences which apparently established the rejection of the applicant’s assertion. In a case where the facts were essentially not in dispute, the applicant’s pleadings in respect to the appropriate punishment for his acknowledged misconduct should have, at very least, been given some level of recognition.
[88] An examination of the three differences that Ms Arnold identified between the case of Mr Cruz and the applicant’s misconduct on 5 April 2022, does not support a conclusion that the punishment of dismissal for the applicant would be a consistent outcome when compared to the case of Mr Cruz. The first identified difference was that Mr Cruz was caught using his handheld phone by a traffic camera, while the applicant was caught by observation of Mr Taylor, subsequently confirmed by CCTV. Just how or why the different means of detection would make any difference to the appropriate punishment was, frankly, baffling.
[89] The second difference that was identified by Ms Arnold was that the applicant was seen to have removed both his hands from the steering wheel when answering his phone, whereas the single traffic camera image of Mr Cruz did not show that both hands were removed from the steering wheel. Obviously, CCTV footage will provide significantly more information than a single photo frame. Ms Arnold could not recall 11 whether in the case of Mr Cruz and others that had been found to have used a handheld mobile phone, there was any attempt made by Cleanaway to extract the CCTV footage from their vehicles. However, it would seem to have been very likely that at some point before and after the single captured images were taken, that Mr Cruz (and the others) would have used both hands to manipulate their mobile phones. Therefore, by application of practical logic, on the balance of probabilities, Mr Cruz and the others would have also removed both hands from the steering wheel albeit briefly, in order to answer and finish their mobile phone conversations. Consequently, there was an overwhelming likelihood that the second identified difference was not a difference at all.
[90] The third identified difference was undeniable. Clearly the applicant was observed to have answered two calls on 5 April 2022. However, these calls were connected to the same subject matter, the circumstances of his elderly mother’s medical condition, and they occurred in quick succession. Against this identified and undeniable difference, there was no counterbalancing consideration that had any regard for the fact that Mr Cruz was travelling in lane 1 of the M4 motorway when he was captured by the mobile phone detection camera. Logically, Mr Cruz would have been travelling at significant speed on the motorway throughout the duration of the telephone conversation. Conversely, the applicant was travelling along suburban streets at significantly slower speeds, and the vehicle that he was driving was stationary for most of the time that he was engaged in the first telephone conversation with the mobile phone on loudspeaker in his shirt pocket.
[91] Upon an objective and balanced contemplation of all of the available evidence surrounding the circumstances of the applicant when compared to those of Mr Cruz (and other employees), the overwhelming and enduring conclusion is that the employer’s approach to dealing with the applicant was manifestly different to that which it afforded other employees, particularly Mr Cruz. Issues such as, the speed with which the Workplace Investigation Report was prepared, its significant omissions, the imbalanced approach to aspects of its contents, the perfunctory adoption, and subsequent endorsements of a recommendation for dismissal, and the farcical show cause process, have all contributed to the creation of a compelling visualisation that there was, for want of better terminology, an “X factor” that operated for the applicant when compared to other employees. Further consideration of this X factor will be provided later in this Decision.
Personal circumstances
[92] The evidence has established that the employer had very little, if any, regard for the personal circumstances of the applicant when the decision was made to terminate his employment. Ms Mauger confirmed that before arriving at the decision to approve the dismissal of the applicant, the totality of the information that she considered was the email chain sent to her from Ms Warnock at 8:34 am on 19 April 2022, which attached the Workplace Investigation Report that had been prepared by Ms Arnold on 11 April 2022. Ms Mauger said that she read that material and then at 10:28 am, she sent an email response providing approval for the applicant’s dismissal.
[93] The Workplace Investigation Report does not contain much information about the personal circumstances of the applicant. In the section headed “1. Overview” mention is made of the applicant’s age and that “Stephen [sic] adjusted service date is 1 July 1997 as he transitioned over to Cleanaway with the Randwick Council Contract.” 12 Despite this inclusion in the Workplace Investigation Report, it was somewhat puzzling when Ms Mauger provided the following evidence during cross examination:
“But you know he had an adjusted service date of 1 July 1997. You’re aware of that?--- I am aware of that, yes.
Were you aware of that when you made your decision that he should be sacked?--- No, I was not.” 13
[94] Ms Mauger also provided evidence that she didn’t realise that the applicant’s mother was 99 years of age. However, when her attention was drawn to the Record of Interview that was included with the Workplace Investigation Report where, at paragraph 7 the applicant stated: “I have my 99 year old mother in aged care…” Ms Mauger said that she had forgotten that the applicant’s mother was 99. It is difficult to accept that something as notable as a person being 99 years of age would be forgotten.
[95] It was clear from the evidence that a variety of the personal circumstances of the applicant were consciously excluded from any consideration by Ms Mauger before she sent the response email at 10:28 am providing approval for the applicant’s dismissal. As an example, Ms Mauger provided the following testimony:
“Their family responsibilities and the financial impact of dismissal on them and their family members?--- No. I would not consider that.
Their age?---That may be considered.
Their prospects of obtaining further employment?---That may be considered.” 14
[96] Consequently, the picture that has emerged from a careful consideration of the totality of the evidence has confirmed that the employer deliberately excluded consideration of certain aspects of the personal circumstances of the applicant, and either ignored, or callously didn’t bother to even read the scant information that had been provided about his personal circumstances. Regrettably, the employer’s manifest failure to have proper regard for various aspects of the personal circumstances of the applicant was disturbingly callous, uncaring, and entirely unreasonable.
X Factor
[97] Earlier in this Decision mention was made of the identification of an X factor which has operated and manifested as various unfortunate aspects of the employer’s approach to the dismissal of the applicant. As previously mentioned, the evidence of issues including, the speed with which the Workplace Investigation Report was prepared, its significant omissions, the imbalanced approach to aspects of its contents, the perfunctory adoption and subsequent endorsements of a recommendation for dismissal, the speed with which the decision to dismiss was adopted, the farcical show cause process, and the failure to have proper regard for various aspects of the personal circumstances of the applicant, are matters that have built a picture of an employer that was highly motivated to achieve the objective of the dismissal of the applicant.
[98] The reason for the employer’s strong motivation to achieve the objective of the dismissal of the applicant has been disclosed by identification of the X factor. A careful consideration of the evidence in totality, has provided for the compelling conclusion that the X factor was the applicant’s role as a TWU delegate, and his enthusiastic engagement in the disputation surrounding the enterprise bargaining negotiations with Cleanaway.
[99] Although the employer rejected any proposition that the applicant’s industrial activities was a component of its consideration in respect of the decision to dismiss the applicant, the evidence strongly points in the opposite direction. The Workplace Investigation Report included the following at part 6.1 Additional Considerations, under the heading “Employee History”:
“- Unlawful industrial action (Refer to Fiona for details)” 15
[100] Although Ms Mauger asserted that she did not take into consideration the matters that were identified in the Workplace Investigation Report under the heading of “Employee History”, she also stated that she didn’t ignore those matters. Her evidence on this particular point has been difficult to reconcile, and included the following:
“And there are three matters there set out, being unlawful industrial action and two instances of vehicle damage. Do you see those?---Yes, I can see those.
They were matters that you took into account in determining to proceed to approve Mr Burley’s dismissal?---No, they were not. As my witness statement outlined I had no prior knowledge of the employee history.
And you ignored than, did you, what is set out in clause 1.6 of this document in relation to employee history?---No. I didn’t. No, I did not. I would - on occasion I will request the employee’s history and in this particular matter I did not request additional employee history because of the investigation report and the contents of that report.” 16
[101] It was clear from the evidence, particularly that provided by Mr Taylor, that the applicant’s industrial activities and the manner in which he discharged his role as a TWU delegate, caused considerable angst for Cleanaway management. In reality, Mr Taylor, Mr Byrne, Ms Warnock, and other Cleanaway managers would have been gratified with the discovery of the applicant’s misconduct on 5 April 2022. The applicant’s undeniable breaches of the Lifesaving Rule as confirmed in the CCTV footage, provided strong prospect for his dismissal, and it would have, in effect, bluntly represented “a golden opportunity to be rid of a troublemaker.” Regrettably however, the enthusiasm created by this opportunity has created an approach to the investigation, consideration, and subsequent determination to dismiss the applicant, which included elements of harshness, injustice, and unreasonableness.
[102] In this case, the applicant was dismissed because he breached the employer’s Lifesaving Rules and road traffic laws when he used his handheld mobile phone whilst driving a heavy vehicle along a public road. The applicant’s use of his mobile phone on 5 April 2022, occurred on two occasions that day, and these events were captured on a CCTV recording. Upon examination of the CCTV footage, the applicant engaged in misconduct, which was undeniable, and provided a valid reason for his dismissal.
[103] However, the valid reason for the dismissal of the applicant has been evaluated and balanced against significant procedural errors which were evident in the manner that the employer investigated, determined, and implemented the dismissal of the applicant.
[104] The procedural errors in this case were matters of significance such that the applicant was denied natural justice. There were various matters including, the speed with which the Workplace Investigation Report was prepared, its significant omissions, the imbalanced approach to aspects of its contents, the perfunctory adoption and subsequent endorsements of a recommendation for dismissal, the speed with which the decision to dismiss was adopted, the farcical show cause process, and the failure to have proper regard for various aspects of the personal circumstances of the applicant, which, when properly considered and balanced against the valid reason, established that the dismissal of the applicant was harsh, unjust, and unreasonable.
[105] Unfortunately, the significant procedural errors were, in many respects, attributable to the improper motivation of the employer in the pursuit of the objective of the dismissal of the applicant because of his engagement in industrial activity as a delegate of the TWU.
[106] Therefore, although the applicant was dismissed for valid reason involving his misconduct, the significant procedural defects evident in respect of the investigation, determination, and implementation of the dismissal of the applicant, have rendered the dismissal to have been harsh, unjust, and unreasonable. The applicant’s dismissal has been found to have been unfair, and the Commission must logically consider the appropriate remedy that should be provided in this instance.
[107] The applicant has sought reinstatement as remedy for his unfair dismissal.
[108] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss. 390 - 393) of the Act. Section 390 of the Act is relevant to the consideration in this instance and is in the following terms:
“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.”
[109] The Commission has carefully considered whether it would be appropriate to make Orders for the reinstatement of Mr Burley. The circumstances surrounding the dismissal of Mr Burley, particularly those aspects relating to his engagement in industrial activity as a delegate of the TWU, may have created some tension in the relationship between Mr Burley and Cleanaway.
[110] In this regard, the submissions of the employer included the following statement:
“By the very fact that the applicant has engaged in contentious covert unprotected industrial action over a period of time and held himself out to the general public as a Cleanaway employee in support of protected industrial action on the picket line, appearing on social media and other media platforms despite having been dismissed by the respondent, suggests that there is insufficient trust and confidence to make the relationship viable and productive.” 17
[111] There were a number of aspects of this submission which could not be established as facts. Firstly, there have been no findings made that the applicant engaged in unprotected industrial action. Importantly, the s. 418 application had been resolved by way of agreement, and without there being any factual findings or other conclusions determined. Secondly, any purported unprotected industrial action ceased as part of the resolution of the s. 418 application. Thirdly, there was no evidence provided about the applicant’s alleged appearances on social media or other media platforms, nor any material to establish just what vice was caused by these alleged social media appearances.
[112] Consequently, the employer promoted a degree of heightened artificiality about the tension created by the applicant’s engagement in industrial activity. There appeared to be some industrial activities and actions of the applicant which reflected a degree of miscalculated overenthusiasm, for which he acknowledged mistake and subsequently retracted. Both Cleanaway and Mr Burley should be mature enough to move on from those unfortunate events, and the particular circumstances do not support a conclusion that there has been a genuine loss of trust and confidence such that the employment relationship could not be successfully and harmoniously re-established.
[113] Further, although some circumspection should be exercised by Mr Burley in respect to his enthusiasm for participation in industrial activity, Mr Burley had every justification for being aggrieved by the unfair elements of his dismissal, particularly in respect to the employer’s strong motivation to achieve the objective of the dismissal because of his engagement in industrial activity as a delegate of the TWU.
[114] In addition, the absence of any evidence from the applicant’s immediate supervisor, Mr Mittiga, who would be the person involved in the day to day interactions between the applicant and his employer, further supports a conclusion that there has not been a genuine loss of trust and confidence which would prevent the successful re-establishment of the employment relationship. In order to assist with the successful re-establishment of the employment relationship, the Commission has decided to provide two recommendations.
[115] Unfortunately the Commission does not have the power to Order re-engagement of an unfairly dismissed employee into a demoted position or to specify terms that are to apply to the return to employment. However, given the nature of the applicant’s breach of the employer’s Lifesaving Rules and road traffic laws, the Commission recommends that; (1) the Parties agree to the applicant being re-engaged to perform the non-driving role of a “bin-puller/offsider” for a period not to exceed 3 months, and (2), the applicant ensure that all future driving work shall be undertaken either without the presence of a mobile phone, or only where a mobile phone is connected via Bluetooth and affixed by cradle or other holder/mounting for handsfree operation.
[116] In the particular circumstances of this case, the primary remedy of reinstatement would represent an appropriate and just rectification that reflected a dismissal that, although for valid reason, included significant procedural defects such that the applicant was denied natural justice. Therefore, reinstatement would be appropriate in all of the circumstances of this case.
[117] Consequently, for the reasons stated above, the Commission has determined that although the dismissal of the applicant was for valid reason, it was nevertheless harsh, unjust, and unreasonable. Further, in respect to remedy for the applicant’s unfair dismissal, Orders for his reinstatement and continuity of service, shall be made. However, the Commission has decided that, having regard for all of the circumstances, and particularly in the absence of any pursuit of alternative employment by the applicant, it would be inappropriate to make an Order to restore lost pay.
[118] Orders providing for the reinstatement of the applicant and for continuity of service will be issued separately. Accordingly, separate Orders [PR748023] providing for unfair dismissal remedy in these terms will be issued.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR748021>
Appearances:
Mr P Boncardo, Counsel with Ms I Wisniewska from The Transport Workers’ Union of Australia appeared for the Applicant.
Mr S Edwards, from Cleanaway Operations Pty Ltd T/A Cleanaway appeared for the employer.
Hearing details:
2022
Sydney:
September, 20.
October, 16.
1 Exhibit 8 - Annexure AA20.
2 Transcript (20 September 2022) @ PN1189-PN1194.
3 Transcript (20 September 2022) @ PN1163-PN1168.
4 Transcript (20 September 2022) @ PN1179-PN1180.
5 Transcript (20 September 2022) @ PN1186.
6 Respondent’s Outline of Submissions - 30 August 2022 @ paragraph 39.
7 Exhibit 9 - Annexure MM1.
8 Exhibit 9.
9 Transcript (20 September 2022) @ PN1158-PN1161.
10 Exhibit 9 - Annexure MM6 page 8 of 16.
11 Transcript (20 September 2022) @ PN864-PN868.
12 Exhibit 9 - Annexure MM6 page 2 of 16.
13 Transcript (20 September 2022) @ PN1167-PN1168.
14 Transcript (20 September 2022) @ PN1104-PN1106.
15 Exhibit 9 - Annexure MM6 page 8 of 16.
16 Transcript (20 September 2022) @ PN1130-PN1132.
17 Respondent’s Outline of Submissions - 30 August 2022 @ paragraph 59.