[2014] FWC 3398

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Allan Pereira
v
Toll Energy Logistics Pty Limited
(U2013/13092)

COMMISSIONER WILLIAMS

PERTH, 23 MAY 2014

Application for relief from unfair dismissal.

[1] This decision concerns an application made by Mr Pereira (the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is Toll Energy Logistics Pty Limited (the Respondent).

Background

[2] The Applicant commenced work with the Respondent on 25 August 2011. He worked for the Respondent as a Fuel Terminal Officer on the Gorgon LNG Project on Barrow Island.

[3] On 14 August 2013 the Applicant was dismissed for misconduct with two weeks wages in lieu of notice. The letter of termination advised that during an investigation into a safety incident the Respondent had become aware that the Job Hazard Analysis (JHA) relating to the task the Applicant had been undertaking had been altered by him after the safety incident. As a result he was terminated for dishonesty and breaching the company’s safety procedures and values.

Factual findings

[4] I accept the Applicant’s evidence as to what occurred leading up to his dismissal was as follows; on 7 August 2013 the Applicant was working in the T65 sea container area. The T65 is a self bunded fuel storage tank mounted within a sea container. This was the first time in about three days he had worked in this area, but he had signed the JHA Reference #8040 Rev 2 document (the T65 JHA) within the previous week.

[5] The Applicant was not issuing fuel that morning. His task that day was to download the memory data from four of the T65 storage tanks and to then clear that memory.

[6] Before starting the task the Applicant did a Step Back 5 by 5. He completed this form, which is kept in a pocket book, which he was required to hand in the following morning during the pre-start meeting.

[7] While the Applicant was opening the third tank of the T65 he hurt his right thumb, tearing skin from both sides. The Applicant reported this to the leading hand who arranged for him to go to the medics.

[8] The safety supervisor Mr John Markham took him to the medics and a safety adviser Mr Anthony Manning was also in the car.

[9] In the car Mr Manning started to take a written statement. During that conversation he asked if the Applicant had completed a JHA and the Applicant told him he had not as it was not necessary for the work he was doing. I prefer the Applicant’s evidence over that of Mr Markham on what the Applicant said at this point.

[10] Mr Manning also asked if the Applicant had completed a Step Back 5 by 5 which the Applicant confirmed he had.

[11] The Applicant was later allowed to return to work but was assigned as a passenger with one of the tanker drivers who operated a Mack Rigid Fuel Tanker.

[12] As part of that work they were required to go into the area of the T65’s and load the Mack Rigid Fuel Tanker with fuel. Before doing that the Applicant completed and signed the T65 JHA and completed another Step Back 5 by 5 for that job. The T65 JHA which employees sign is kept on the site.

[13] On Friday 9 August 2013 the Applicant was approached by Mr Manning who asked the Applicant to complete and sign the T65 JHA backdating it to 7 August 2013, being the day of his injury. Mr Manning also said he couldn’t find the Step Back 5 by 5 and asked the Applicant to complete another. The Applicant did this, backdating it to 7 August 2013, and gave it to him.

[14] Mr Manning and the Applicant went to the T65 site. The Applicant could then see he had signed the T65 JHA on 7 August 2013 but forgot he had also worked on the Mack Rigid Fuel Tanker that day and at that time had signed for this later task. Consequently he was unsure of when the injury occurred and so he signed the T65 JHA for 6 August 2013 and also for 8 August 2013 not realising the date of injury was in fact 7 August 2013. Mr Manning was with him all this time and advised him what to sign.

[15] The next day, Saturday 10 August 2013, the Applicant was approached by Mr Manning who told him he had stuffed up and everyone knows that they went back and signed the T65 JHA. He told the Applicant he had to do an investigation so the Applicant was to bring the T65 JHA to his office. Later that day the Applicant did that and in Mr Manning’s office the Applicant removed the signatures from the T65 JHA that he had falsified the day before.

[16] Late that same day the Applicant again spoke with Mr Manning who told him that because everyone knew he had signed the T65 JHA the Applicant would have to go and re-sign the T65 JHA, which he then did and falsely dated this signature.

[17] On Sunday 11 August 2013 the Respondent’s HR Adviser Mr Nick Lord took the Applicant to the office of his supervisor, Mr David Ottoway, where they had a meeting during which Mr Lord asked about the injury incident. The Applicant volunteered the information that he had signed the T65 JHA retrospectively.

[18] At approximately 2pm the Applicant was called to another meeting with the Deputy Operations Manager Mr Derek Miller, Mr Ottoway and Mr Lord. Mr Lord stated that based on preliminary information the Applicant was stood down on pay pending an investigation into his altering a document.

[19] On the afternoon of Tuesday 12 August 2013 the Applicant met with Mr Lord and Mr Miller, with a support person present. They asked questions about his injury and about him signing and altering the T65 JHA.

[20] At 6am on Wednesday 14 August 2013 they met again to continue with questions about these issues. The Applicant revealed for the first time that a safety adviser had asked him to alter the document. The Applicant did not want to reveal his name but reluctantly told them it was Mr Manning.

[21] The Applicant was then advised a show cause meeting would be held that day at noon for him to show cause why he should not be terminated.

[22] In the show cause meeting the Applicant told them that he had a good record with the Respondent and that he had made a mistake which he would not do again. The Applicant told them that termination was too harsh and he should be given a chance. He told them he was regretful of the decision he made to retrospectively sign a document and had learnt from the experience and would not let it happen again. The Applicant reminded them of his good work ethic and that his safety history was unblemished. The Applicant was advised that he was dismissed with immediate effect.

[23] The Applicant’s contract of employment with the Respondent, which he signed on 25 August 2011, included Clause 11 Termination which in part says;

[24] Clause 13 of the Applicant’s contract of employment prescribes that his employment is governed by company policies. The Respondent’s workplace values are detailed in the Toll Group Code of Practice policy.

[25] The Applicant understood that safety is given great importance on Barrow Island 1.

[26] The Applicant had attended a number of inductions and training sessions where he agrees safety was emphasised.

[27] In March 2012 he attended a five day Work Safe training course at the Respondent’s expense and was subsequently elected by his colleagues as an employee health and safety representative.

[28] I am satisfied from the evidence that the Applicant was fully conversant with the safety procedures on site and in particular had been trained in the use of and understood what was required of him and all other employees with respect to JHA’s, Step Back 5 x 5’s and Work Method Statements (WMS). The Applicant was aware of the Cardinal Rules applicable to the site and a copy of these was on his person at all times while on site. The first Cardinal rule says that employees are not to commence work until they have reviewed their JHA and WMS with their supervisor and completed a Step Back 5 x 5 card.

[29] The T65 JHA which is dated 4 August 2013 has the title “T65 Refuels and Operations” 2 and identifies the “Specific Task” as “Refuelling”.

[30] When the Applicant injured his thumb he was carrying out the particular task detailed in a WMS titled “Downloading Data from a T-65 Self Bunded Storage Tank Including Clearing the Memory” 3.

[31] In his evidence the Applicant said that the T65 JHA was not applicable to this task he was undertaking when he injured his thumb on 7 August 2013. Essentially what is put in support of his position is that the task he was doing was not “Refuelling” and therefore this JHA did not apply to that task and so he was not required to sign it. The Respondent does not agree that is correct.

[32] Whilst I accept his evidence that he did originally express that view on 7 August 2013 when questioned on the way to the medical centre the evidence is that the Applicant did not really persist with this argument in his defence during subsequent interviews. It is also difficult to understand why he would then have retrospectively signed this particular JHA if he believed it did not apply to the task he was doing when he was injured.

[33] There is evidence that other employees whom had performed the same task had signed the T65 JHA 4.

[34] The Respondent’s position is most clearly put by Mr Ottoway which in short is that a JHA is an overarching document and the T65 JHA covers anything to do with refuelling or operations of a T65 and that downloading data from the T65 is part of refuelling because if the memory data is not cleared, further refuelling operations cannot be conducted 5.

[35] Having also considered the evidence of the other witnesses for the Respondent my conclusion is that the T65 JHA did apply to the task the Applicant was undertaking when he was injured on 7 August 2013 and consequently he was required by the Respondent’s safety systems and procedures to have completed it before commencing the task.

Submissions

The Applicant

[36] In the Applicant’s submission the decision to summarily dismiss him was not for a valid reason. There clearly was a reason but it was not sound or defensible in all the circumstances. Hence it is argued it was not valid.

[37] Emphasis is placed on the fact that Mr Manning, a safety adviser who was investigating the safety incident in which the Applicant injured his thumb on 7 August 2013, had on 9 August 2013 approached the Applicant and at that time and thereafter it was he who advised the Applicant to make the changes to the T65 JHA which he subsequently did.

[38] It is submitted that it is wrong to characterise the Applicant’s actions in altering the T65 JHA as a cover-up because he had openly at the first possible opportunity admitted on 7 August 2013 that he had not signed the T65 JHA. This was known to the Respondent at the outset and the subsequent actions of the Applicant did not cover that up.

[39] The Applicant held a belief that he was not required to have completed the T65 JHA and had previously reported to his superiors that there was not a specific JHA for the task he undertook on 7 August 2013.

[40] It is acknowledged the Applicant acted dishonestly when he made false entries and when he removed entries from the T65 JHA. However it was submitted that these actions were triggered by the Respondent’s safety advisor, Mr Manning, telling him to do this.

[41] The circumstances in which the conduct occurred were not fully appreciated by the Respondent. It was a relatively minor injury and doubt exists as to whether it was necessary under the Respondent’s company policies to complete a JHA in any event.

[42] The Applicant was asked by the Respondent’s safety adviser to sign and then alter the document. The Respondent should have taken into account the involvement of Mr Manning as a mitigating circumstance and the decision to terminate was disproportionate to what occurred in all the circumstances and so was harsh. Discipline and company values could have been upheld by a final warning.

[43] Consequently the Applicant has been unfairly dismissed by the Respondent.

The Respondent

[44] On 7 August 2013 the Applicant sustained a minor injury whilst undertaking the task of downloading the T65 storage tank data. The task was one for which a WMS and JHA existed.

[45] The Applicant had failed to sign on to the T65 JHA record prior to commencing the task, as required by the WMS. However, on 9 August 2013, the Applicant signed the T65 JHA record retrospectively. In doing so the Applicant deliberately and dishonestly altered the T65 JHA record which was misconduct.

[46] The misconduct was engaged in to avoid criticism and discipline by the Respondent for breaching the WMS by failing to undertake a critical safety pre-planning step in not completing a JHA record prior to downloading the data from the T65 storage tank.

[47] The Respondent investigated and confirmed that the Applicant had dishonestly backdated his signature on the document to make it appear to the Respondent that all safe work procedures had been completed prior to the Applicant undertaking the task.

[48] As a result of its investigations, the Respondent dismissed the Applicant on 14 August 2013 for serious misconduct in dishonestly backdating a critical safety document, namely the JHA record, contrary to his contract of employment, the Respondent’s workplace policies (i.e. the WMS) and the company’s values.

[49] The Respondent submits that the Applicant’s misconduct was a valid reason for terminating the Applicant’s employment.

[50] The Applicant had breached his contract of employment and the Respondent’s safety procedures and the company values warranting his dismissal.

[51] Clause 11 of the Applicant’s contract of employment provides for the following;

[52] The Respondent submits that the Applicant’s misconduct in retrospectively altering a safety document, namely a JHA record, which is designed to be a contemporary record of safety checks and outstanding issues, amounts to dishonesty within the meaning of Clause 11 of the Applicant’s contract of employment.

[53] The Applicant, in failing to sign on to the JHA prior to performing the task, breached a fundamental safety planning and scoping requirement of the Respondent’s operations, which resulted in injury to the Applicant.

[54] Minimisation of the risk of harm to employees, including the Applicant, is the reason that a JHA is required pursuant the terms of the WMS to properly plan for the task. The purpose of signing onto the record is an acknowledgment that the employee is fully aware of the hazards associated with the task. Not only did the Applicant fail to perform this critical safety task, he attempted to cover up his dereliction of duty by engaging in the misconduct to give the appearance of compliance with the terms of the Respondent’s WMS and safety policies.

[55] The Respondent’s workplace values are embodied in the Toll Group Code of Practice.

This document is issued to employees upon commencement and Clause 13 of the Applicant’s

Contract of employment provide as follows:

[56] Relevantly, the Toll Group Code of Practice (the Code), under the heading ‘Health and Safety’ provides for the following;

[57] The Respondent submits that in backdating the T65 JHA record the Applicant ‘took a short cut’ and ‘ignored his job procedures’ contrary to the terms of the Code.

[58] Further, if the Applicant had doubt as to any comments made by colleagues or advice provided about the ability to falsify a JHA record by backdating and inserting his signature onto the document, it was within his power and ability to seek further counsel on the matter prior to undertaking a deliberate, intentional and dishonest act. In this sense, the Respondent submits that the Applicant is not absolved of his misconduct by relying on the advice Mr Manning to backdate the T65 JHA record.

[59] Based on the above, the Respondent submits that there was a valid reason for the Applicant’s dismissal.

[60] The Commission has considered similar factual circumstances to those presently brought before it. In considering such circumstances, Noanoa v Linfox Pty Ltd 6 Commissioner Cambridge noted that;

[61] The evidence provided in the witness statements of Mr Ottoway and Mr Lord demonstrate that the Applicant falsified the T65 JHA record as he believed his ‘job was on the line’. The Respondent submits that this fact demonstrates that the Applicant, at the time of backdating the T65 JHA record, did so to deliberately mislead the Respondent into believing that all safety procedures had been discharged prior to performing the task.

[62] The Respondent submits that where an employee deliberately and intentionally falsifies a critical safety document, such as the T65 JHA which was falsified by the Applicant, the employer’s decision to dismiss the employee rests in the resulting lack of trust and faith that safety procedures and their supporting documentation are being adhered to and recorded in an accurate and truthful manner.

[63] Faced with such deliberate and intentional dishonesty, the Respondent validly exercised its decision to terminate the Applicant for breaching his contract and the Respondent’s policies and company values. Further, the Applicant’s actions resulted in a breakdown of the trust and faith that the Respondent placed in the Applicant to discharge his duties as an employee.

[64] It is submitted that the process undertaken by the Respondent more than satisfied all the procedural requirements the Commission is required to consider in such matters and there is no deficiency in terms of procedural fairness.

[65] The Respondent submits that the gravity of the conduct, the validity of the decision to terminate and lacking evidence that the dismissal was otherwise harsh, unjust or unreasonable is supported by the fact that the individual who advised the Applicant to dishonestly backdate the T65 JHA, namely Mr Manning, was also terminated at the conclusion of the Respondent’s investigation into this matter.

[66] As outlined in these submissions, the Respondent upholds and regards as fundamental the integrity of the safety procedures, policies and processes and does not tolerate dishonesty in the discharge of safe work requirements, such as that engaged by the Applicant and Mr Manning.

[67] The Applicant submits that admitting the dishonesty and acknowledging his part in the falsification of the T65 JHA record goes against the decision to dismiss the Applicant, however the Respondent submits that where deliberate and intentional falsification of critical safety documents occurs, it is immaterial that the Applicant is remorseful or regards the instance as a momentary lapse of judgment.

[68] In such circumstances, the Respondent submits, that for the reasons outlined above, that no mitigating circumstances undermine the Respondent’s decision to terminate or the manner in which that termination was effected.

[69] The Applicant has not been unfairly dismissed and this application should be dismissed by the Commission.

Legislation

[70] Section 387 sets out the criteria the Commission must take into account in such applications. This is set out below;

Consideration

Valid reason

[71] It is clear from the evidence that the Applicant had not completed the applicable T65 JHA before he commenced the task he was doing when he was injured on 7 August 2013. That failure to comply with the Cardinal Rules applicable to the site and failure to comply with the safety policies and procedures of the Respondent was a valid reason for his dismissal.

[72] I note that the Respondent did not rely on this breach of safety requirements by the Applicant when deciding to terminate him. I also note the evidence of the Respondent’s witnesses that were it not for subsequent actions by the Applicant to falsify the T65 JHA in all likelihood he would not have been dismissed for this failure to complete the T65 JHA.

[73] Separately it is clear that subsequently the Applicant deliberately changed the T65 JHA. First on 9 August 2013 he signed the T65 JHA in two places and falsely dated both signatures. Next on 10 August 2013 he altered the T65 JHA to remove these two signatures and finally, later that day, he re-signed the T65 JHA and again falsely dated this signature.

[74] The Applicant falsely altered the T65 JHA on three separate occasions over two days.

[75] On 9 August 2013 the Applicant also wrote up a Step Back 5 x 5 and falsely dated this document. This was in effect a duplicate of the original Step Back 5 x 5 he completed on 7 August 2013.

[76] There is no doubt that these actions are misconduct and amount to a valid reason for dismissal.

[77] The Applicant’s actions were dishonest. His contract of employment entitled the Respondent to dismiss him without notice for serious misconduct for committing an act of dishonesty.

Notification of the reason for dismissal

[78] There were a series of investigation meetings where the events of 7 August 2013 through to 10 August 2013 were discussed. At a meeting early on 14 August 2013 the Applicant was advised that he was to attend a further show cause meeting to discuss whether his employment would be terminated. That meeting was held at midday the same day.

[79] I am satisfied that prior to this final meeting on 14 August 2013 the Applicant understood the concerns the Respondent had about his actions in failing to complete the T65 JHA on 7 August 2013 and then subsequently falsely altering that T65 JHA on 9 August 2013 and 10 August 2013 and that he may be dismissed from his employment because of his actions.

Opportunity to respond to the reason for dismissal

[80] At the show cause meeting around midday on 14 August 2013 the Applicant did have an opportunity to respond to the reasons for dismissal and did actively explain why in his view the Respondent should not in the circumstances dismiss him.

Refusal to allow a support person to be present

[81] There was no refusal at any time to allow the Applicant to have a support person present during meetings to discuss his actions.

The procedures followed and the size of the Respondent’s enterprise

[82] The procedures followed by the Respondent were consistent with its large size.

The procedures followed and the absence of human resource management expertise

[83] The procedures followed by the Respondent were consistent with the fact that it does have dedicated human resource management expertise and specialists available.

Other relevant matters

[84] The motivations of the Applicant in falsifying the T65 JHA are not clear. Given he had from the outset admitted he had not signed the T65 JHA before he undertook the task on which he was injured, falsifying the T65 JHA did not hide this prior failure to complete the T65 JHA from the Respondent. What is known is that there is nothing before the Commission in terms of motivation for his actions that amount to any mitigating circumstances.

[85] It is strongly submitted on behalf of the Applicant that the fact it was the safety adviser of the Respondent, Mr Manning, who was investigating the original safety incident, who approached the Applicant and asked him to alter the T65 JHA is a factor to be considered in the Applicant’s favour in this application. This factor it is submitted means the dismissal was disproportionate in all the circumstances. I agree this fact is in the Applicant’s favour in this case.

[86] I note that the Respondent’s General Manager, Mr Glenn Benson, whose ultimate decision it was to dismiss the Applicant, understood at the time he made the decision that the Applicant had said that Mr Manning had instructed him to alter the T65 JHA. As Mr Benson explained in his evidence, accepting that this was true it was in any event not in his view a mitigating circumstance in the Applicant’s favour because the Applicant is still responsible for his own behaviour.

[87] Clearly different minds may reach different conclusions on this issue in the circumstances of this particular case. Particularly in the context of concerns around safety it is the employer however that bears a heavy statutory burden which others, including the Commission, are not subject to. It is well established in any event that the Commission’s function is not to stand in the shoes of the employer and to decide whether or not the decision made by the employer was a decision that the Commission would have made 7.

[88] Against the fact that Mr Manning first asked the Applicant to alter the T65 JHA is the fact that the Applicant acknowledges he was not forced by Mr Manning to alter the T65 JHA and that he knew it was wrong and dishonest.

[89] More weight in my view would be given to the influence of Mr Manning in mitigation if what the Applicant had done was for example to only once sign a document that was put in front of him by Mr Manning.

[90] However the Applicant’s falsification of the T65 JHA was not an ill considered spur of the moment once-off act. He falsely altered this T65 JHA on three occasions over a period of two days. Indeed to remove the signatures the Applicant had falsely inserted on 9 August 2013 he had to go to some lengths on 10 August 2013 to the extent of having to bring the T65 JHA from where it was normally located to Mr Manning’s office so this could be done.

[91] After first altering the T65 JHA on 9 August 2013 the Applicant also had an opportunity to reflect overnight on what he had done. However apparently he did not do so and was not concerned about what he had done because on his own evidence the next day, without any reluctance or expression of concern, he again twice falsely altered the T65 JHA. Whilst Mr Manning’s involvement was inexcusable this does not in the circumstances excuse the Applicant’s own actions.

[92] It was reasonable for the Respondent to form the view that it could no longer have trust or confidence in the Applicant complying with its policies and directions with respect to safety.

[93] The Applicant was an elected health and safety representative of employees and had received a full week’s training in this role.

[94] At the time of his dismissal the Applicant had been employed for approximately two years.

[95] The Applicant was paid two weeks wages in lieu of notice.

[96] Considering all the circumstances I am not satisfied that the dismissal of the Applicant by the Respondent was harsh, unjust or unreasonable. The dismissal of the Applicant was not unfair. Accordingly this application will now be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

P Mullally representative for the Applicant

A Sharpe representative for the Respondent

Hearing details:

2014.

Perth:

April 10

 1   Transcript at PN154

 2   Exhibit R6 and R7

 3   Exhibit R2

 4   Statement of Mr Ottoway at paragraph 29

 5   Transcript at PN512, PN642 - PN645

 6   [2011] FWA 306 at [36]-[37]

 7  [1996] 142 ALR 681 at [25]

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