| [2014] FWCFB 5993 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 18 SEPTEMBER 2014 |
Appeal against decision [2014] FWC 2277 of Commissioner Riordan at Sydney on 9 April 2014 in matter number U2013/2656.
Introduction
[1] The appellant, BlueScope Steel (AIS) Pty Ltd (BlueScope), has applied for permission to appeal against a decision (the Decision) 1 and orders2 of Commissioner Riordan published on 9 April 2014. In the Decision, the Commissioner granted an application for an unfair dismissal remedy sought by Mr Nejat (Paul) Agas (the respondent) under s.394 of the Fair Work Act 2009 (the Act). The Commissioner ordered that Mr Agas be reinstated to the role he was performing for the appellant prior to his dismissal. He also ordered that Mr Agas’s employment be deemed to be continuous in accordance with s.391(2) of the Act, and that he be paid for all lost time since his dismissal, less any monies he had earned in any alternative employment and a four week period ‘caused by the initial delay in proceedings.’
[2] The Decision and associated orders were stayed by consent on 6 May 2014, pending the determination of the appeal or until further order of the Commission.
[3] The appeal was heard on 23 July 2014. The appellant was represented by Mr M Seck, of counsel and the respondent by Mr A Howell, of counsel.
[4] At the time of his dismissal, Mr Agas was employed as a Level 5 Operator in the Hot Coil Processing and Despatch section (HCPD) of the Hot Mills Department at the Port Kembla Steelworks. This is the highest operator classification in the Hot Mills Department of the Port Kembla Steelworks. He had been an employee of BlueScope for 27 years. He had significant experience as an HCPD Operator, and held a WorkCover National Licence to Perform High Risk Work. As part of obtaining the licence, Mr Agas had received training which allowed him to be certified as competent to operate high risk equipment such as overhead cranes.
[5] Mr Agas was provided with a written notification of termination of employment on 7 August 2013, signed by Mr Michael McPhan, the HCPD & UCP Manager. In the letter, Mr McPhan told Mr Agas that he was being dismissed:
‘... for continued unacceptable performance. The Company has determined that you are incapable of performing the role of an operator, and your ongoing employment with the Company constitutes an unacceptable risk to the business.
After carefully considering all the relevant information the Company concludes that your continuing employment is no longer tenable. ...’ 3
[6] Mr Agas’s dismissal was triggered by an incident that occurred on 27 July 2013 while he was operating a 40 tonne overhead crane to transfer steel coils from one location to another. The decision to dismiss him apparently also had regard to a number of other prior significant equipment operating incidents that Mr Agas had been involved in.
Nature of the appeal
[7] This appeal is made under s.604 of the Act. That section provides as follows:
‘Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisation Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
(3) A person may appeal the decision by applying to the FWC.’
[8] Section 400 qualifies s.604 in relation to appeals from decisions made by the FWC under the Part of the Act concerned with unfair dismissal. Section 400 provides as follows:
‘Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
[9] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 4 considered the impact of s.400 on the approach to granting permission to appeal. It said:
‘[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.’
[10] Where permission has been granted, an appeal is in the nature of a rehearing. The nature of the jurisdiction being exercised was explained by Gleeson CJ, Gaudron and Hayne JJ in respect to the former Full Bench of the Australian Industrial Relations Commission in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission 5 as follows:
‘[18] The Full Court was in error in thinking that the nature of an appeal under s 45 differs according to the nature of the decision under appeal. However, it was correct to hold that, in the case of a discretionary decision, the exercise by a Full Bench of the Commission of its powers under s 45(7) depends on the decision at first instance being attended by appealable error. …
[19] “Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
…
[21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ] in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”’
[11] In an appeal such as this, it is not enough that the members of the Full Bench would have reached a different conclusion than the Commissioner. Nor would it be sufficient if the Full Bench were to disagree with the weight to be given to the factors the Commissioner took into account. Thus, the mere fact that the Full Bench might consider that the Commissioner gave insufficient weight to something would not justify setting aside the Decision. 6
[12] The Decision was made under Part 3-2 of the Act. In considering whether the respondent’s dismissal was harsh, unjust or unreasonable, the Commissioner was required to take into account the criteria set out in s.387 of the Act, which reads:
‘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.’
The Decision
[13] In the Decision, the Commissioner described the incident on 27 July 2013 thus:
‘On 27 July, 2013, Mr Agas was operating Number 1 crane, which is an overhead crane with a 40 tonne load limit located in K building, which transfers steel coils around the building. Each coil weighs on average 20 tonne. Mr Agas would be expected to move approximately 200 coils per shift when operating Number 1 crane. After picking up the coil to be moved, Mr Agas travelled across the warehouse in a typical manner. Unbeknown to Mr Agas, the crane hoist tripped during this procedure. As Mr Agas approached a set of stacked coils he noticed that the coil he was carrying was not high enough to clear the stacked coils. Despite disengaging the gears of the crane and trying to re-engage the hoist, the momentum of the coil being transferred caused a collision to occur with the stacked coils, resulting in approximately $10,000 damage to the company’s product.’ 7
[14] The Commissioner then referred to two other incidents involving Mr Agas in the previous 15 months which he described as falling ‘under the broad disciplinary heading of operational negligence.’ 8 The Decision then described those matters as follows:
‘Mr Agas received a written warning for an incident in May 2012 when he “dropped” a coil. Mr Agas is one of a number of employees to have dropped a coil in this particular area and I have taken into account the fact that Bluescope changed the work practice of storing coils in this area after Mr Agas’ incident.
In October 2012 Mr Agas received a final written warning as a result of a serious incident which caused $160,000 damage to a piece of Bluescope plant.
Mr Agas was driving a Ram Truck, which is basically a single prong fork lift capable of transporting the heavy coils around the Bluescope environ, at 1am on 20 October 2012. Whilst transporting a coil from outside the warehouse to inside the warehouse, the Ram Truck collided with a stationary barrier which had been installed to protect a rail signal light. The 20 tonne coil was dislodged from the Ram Truck and the vehicle suffered extensive damage.
Mr Agas received a four day suspension along with the final written warning. Relevantly, the final warning contained the following passages:
“2 November 2012
Mr Paul Agas
Hot Coil Processing & Despatch
Final written warning
...The findings have shown that you have been trained in the safe operation of Ram Trucks (CP09) and are a ticketed driver. The findings have also shown that your negligence, in the form of not ensuring the equipment was operated in a safe way while transferring a coil back to despatch for re-labelling and your poor attention to detail were the primary causes of this incident.
The incident would have been avoided had you carried out the necessary checks and ensured the path was clear to drive to the despatch area.
The Company has considered all the factors relating to this incident including your employment history and your training record as well as your honesty and cooperation through the investigation process. On this basis you will be issued with a final written warning and 4 shift unpaid suspension for unacceptable behaviour in the form of operational negligence.
The Company requires this unacceptable performance be addressed urgently and reminds you that working safely is a condition of your employment.
Paul, please be aware that this is a final written warning and any future breach of critical operating procedures, operational negligence, or behaviour of a similar kind may lead to further disciplinary action, which may include termination of your employment.” 9
[15] The Decision described how Mr David Jones (the Shift Team Leader) attended the site after the 27 July 2013 incident and asked Mr Agas to write down what had happened. Mr Jones then met with Mr Agas to complete an incident report. 10
[16] The Commissioner noted that Mr Boris Baraldi (an organiser with Mr Agas’s union, The Australian Workers’ Union) sent an email to Mr McPhan in relation to the incident on 30 July 2013. 11
[17] On the day of Mr Agas’s next scheduled shift (1 August 2013) Mr McPhan told Mr Agas that he would not be able to carry out any operational tasks while the 27 July incident was being investigated. According to Mr McPhan, Mr Agas was not happy about this and told Mr McPhan:
‘this is ridiculous. I haven’t done anything wrong. The crane failed.’
[18] Mr McPhan then said:
‘We’ll complete the investigation and if that is the case then there should be no issue with the outcome’ 12
[19] The Commissioner commented:
‘It is significant that Bluescope acknowledges that the crane hoist tripped.’ 13
[20] The Commissioner then stated:
‘Mr Baraldi sent further correspondence on 5 August. Mr McPhan had made up his mind to terminate Mr Agas by this date.’ 14
[21] The Decision then referred to a peer review meeting on 5 August 2013. The Commissioner commented:
‘The peer review meeting supported Mr McPhan’s view that termination was the appropriate course of action.’ 15
[22] The Decision continued:
‘Mr McPhan advised Mr Baraldi later that afternoon that Bluescope believed that Mr Agas should be dismissed. A “show cause” meeting was to be conducted the following day. Mr McPhan asked Mr Baraldi to ensure that Mr Agas was prepared to raise any mitigating factors.’ 16
[23] The Decision included some of the contents of a letter Mr Agas presented to Mr McPhan at the show cause meeting. That letter included the following:
‘... I understand that one of the main contributing factors that led to this incident was that the crane hoist height limit malfunctioned.
I acknowledge that one of the other main contributors was my error and lapse in judgment in misunderstanding that the crane hook block was not in the fully up position. I actually looked at the position of the coil when the hoist stopped whichI automatically thought was the high limit.
Had I instead looked at the hook block instead of the load, I more than likely would have picked up that the hoist had tripped and had stopped short of the high up limit.
In hindsight, had I not allowed myself to be consumed with the flow of production by keeping up with the pace of work, and had I approached the first set of double stack coils with greater caution, then I sincerely believe that I could have prevented this incident from occurring.
I understand some of the other crane operators look for markers to help them pick up that the hoist is fully up. I accept an commit that in the future, I need to ensure that the crane hoist is fully up before travelling with a suspended load by making sure to look at the position of the hoist in relation to the up limit and also look at the load itself in relation to where I am about to travel.
I sincerely apologise for this lapse in judgment and promise that I will not have a repeat of this type of incident again. This has been a key learning for me and the incident is an important lesson and experience that I believe needs to be shared with my fellow work colleagues so that they can learn from this honest mistake. ...
In closing, I ask you to please give me the opportunity to demonstrate that my recent history is out of character and does not reflect my 27 years of service with the company. I am committed to ensuring that I do not have a repeat of my lapse in judgments in the future. ...’ 17
[24] The Decision noted that certain other issues were also canvassed at the show cause meeting. These included that Mr Agas had not accepted any responsibility for the incident before now because he was being defensive; Mr Baraldi was concerned that other drivers may fall into the same trap and any ‘learnings’ must be communicated quickly; Mr Agas and Mr Baraldi said they would be open to any sort of discipline that BlueScope was willing to consider other than termination of employment; and Mr Agas apologised for letting the team down. 18
[25] The Decision noted:
‘Mr McPhan was not persuaded by the representation of Mr Agas and Mr Baraldi. Mr Agas was dismissed the following day, August 7 2014.’ 19
[26] The Decision then outlined the relevant statutory provisions and proceeded to consider each of the criteria referred to in s.387 of the Act.
[27] Under the heading of ‘(a) Valid Reason’ the Commissioner stated:
‘Whether operational negligence exists is a matter to be determined on the facts of each case. I am satisfied that operational negligence was a contributory factor to the causation of the incident of 27 July 2013, the subject of this application. As a result of that contributory operational negligence I am satisfied and find that there was a valid reason for the termination of Mr Agas’s employment.’ 20
[28] The Commissioner dealt with the criteria in s.387(b), (c) and (d) of the Act under one heading titled ‘(b) Notified of the Reason and (c) Opportunity to Respond and (d) Support Person’. He stated as follows:
‘The conduct of BlueScope’s investigation is confusing. I have set out some of the issues below.
An interview between Mr Agas and Mr Jones on the evening of 29 July 2013, was labelled as an information gathering discussion to assist Mr Jones to complete the incident report. It was not part of the investigation. At that interview Mr Jones tried to assist Mr Agas in relation to the “facts” of the incident.
“Are you sure you want to say that.”
Mr Agas was not offered the opportunity to have a support person present at that meeting, although Mr Baraldi provided assistance to Mr Agas at a later date during the process.
Mr Agas did not have an opportunity to talk to anyone from Bluescope about the incident during the investigation until the “show cause" meeting of August 6, although Mr Baraldi corresponded with Mr McPhan on two occasions during this period.
Mr McPhan decided to dismiss Mr Agas on August 5, before Mr Agas had even had an opportunity to be involved in a formal discussion in relation to the incident.
Mr Agas was not officially advised of the issues until the show cause meeting of 6 August, although Mr Baraldi was advised of Mr McPhan’s views on 5 August and was requested to come prepared to the meeting the following day. Mr Agas was dismissed on August 7. I am satisfied and find that because the investigative process did not involve an interview with the relevant employee that it was procedurally unfair. I have concluded and find that a thorough investigation, including a re-enactment of the incident, could not be properly conducted without any input from Mr Agas.’ 21
[29] Under the heading ‘(e) Unsatisfactory Performance’ the Decision stated:
‘Mr Agas had been warned in relation to issues of operational performance on two previous occasions.’ 22
[30] The Commissioner noted under the heading ‘(f) Size of Employer’ that Bluescope is a large employer with a dedicated team of HR specialists. 23
[31] Under the heading ‘(g) Any other relevant issues’ the Commissioner considered what he described as ‘the inconsistent treatment by Bluescope of Mr Agas and another employee.’ He then described the case of ‘Mr Z’ who was also a level 5 Operator who had been involved in a number of incidents and had - according to the Commissioner - ‘a significantly poorer disciplinary record in relation to operational negligence than Mr Agas’ - yet had retained his employment in the HCPD. The Commissioner noted that BlueScope had distinguished the two cases on the grounds that, unlike Mr Z, Mr Agas had shown no remorse and accepted no responsibility in relation to his accidents. 24
[32] Among other matters concerning the disparity in the treatment of Mr Agas and Mr Z, the Commissioner commented:
‘It is difficult to identify how Mr Agas could satisfy Mr McPhan’s concern in relation to any lack of contrition. He stated to his team leader on the night of the incident:
“At the end of the day Dave, I was in the seat”.
On the first opportunity he had to discuss the issue with his manager Mr McPhan on August 6, he apologised and accepted responsibility.’ 25
[33] Thus, the Commissioner concluded, contrary to what was considered by BlueScope to be a lack of remorse or responsibility by Mr Agas, that Mr Agas had in fact both apologised and accepted responsibility.
[34] The Commissioner also considered the fact that Mr Agas is the primary income earner of his family, and that the only meaningful work he had obtained since his dismissal had been as a casual bus driver. 26
[35] Under the heading ‘Consideration’ the Commissioner stated:
‘I have already found that Bluescope had valid reason, being operational negligence, to terminate Mr Agas’s employment. I now have to determine whether the termination of Mr Agas’s employment for this reason was harsh, unjust or unreasonable.’ 27
[36] The Commissioner noted that Mr Agas had received ‘two previous and justifiable warnings for operational negligence.’ He said that:
‘Whilst I believe that the circumstances surrounding the driving of the Ram Truck in the second incident was an accident waiting to happen because of the extremely poor visibility for the driver, Mr Agas accepted the penalty of the final warning. I do not intend to look behind those previous warnings.’ 28
[37] The Commissioner then set out a number of circumstances surrounding the incident of 27 July 2013 which he said he had taken into account. These included that the layout of the building where the incident occurred was unusual on the day in question ‘due to the lack of double stacked coils in the near vicinity of the coil that was picked up.’ 29
[38] The Commissioner also noted that Mr Agas was travelling in three directions at the one time (i.e. simultaneously lifting, moving forwards and moving sideways), and commented: ‘Mr Jones testified that this practice was unsafe and contrary to the WorkCover guidelines. However Mr McPhan and the three Operators that testified, acknowledged the need to work in this manner in order to maintain productivity and efficiency.’ 30 He further concluded: ‘When Mr Agas realised that his load was too low (as a result of the hoist malfunctioning) he immediately disengaged the gears of the crane. The crane does not contain a “dead stop” function. The momentum of the coil skimmed across the top of the first double stack of coils but collided with the slightly higher double stack immediately behind. I have taken the crane malfunction into account.’
[39] Thus, the Commissioner also took the crane malfunction into account. As to this, the Commissioner, in effect, did not accept Mr McPhan’s contention that Mr Agas should have checked the height of the hook of the crane ‘either by way of reference point on the back wall or by physically looking at the top of the gantry of the crane.’ He commented:
‘... The logic of this reference point assessment is difficult to understand.
It is clear that the closer an object is to you the larger it will appear. As it moves away it gets smaller, thereby altering any reference point on a wall some forty metres away. I have taken this into account.’ 31
[40] The Commissioner also said it was significant ‘that there are no written procedures on how to operate Number 1 crane, including how to check the height of the load. Apparently, this information is passed on via the “buddy system”.’ 32
[41] The Commissioner also took into account the absence of an audible or visual alarm to advise of a hoist malfunction on the crane. He said:
‘Such a deficiency results in the Operator being required to rely on “their eye” rather than the engineering capability of the crane. Mr Jones agreed that an audible alarm would be “fantastic because the control panel is not in the line of sight of the Operator.” 33
[42] The Commissioner also noted that two of the operators had testified to having ‘regular near misses when carrying coils due to the crane not lifting its optimum height’. 34
[43] Finally, the Commissioner took into account that Mr Jones confirmed that the hoist trip was not the fault of Mr Agas. 35
[44] The Commissioner then said:
‘Whilst I accept that acts of operational negligence provide a valid reason for dismissal, particularly if repeated, I do not accept that dismissal from employment for Mr Agas was an appropriate outcome from the incident of 27 July 2012 [sic; 2013]. Mr Agas acted and reacted in accordance with his training. If the crane hoist had not malfunctioned in the coil transfer would have proceeded without incident.’ 36
[45] At this point in the Decision the Commissioner said:
‘I have concluded and find that the decision to terminate the employment of Mr Agas was harsh, unjust or unreasonable.’ 37
[46] He then referred to a number of authorities including Byrne and Frew 38, Sexton39 and Darvell.40 He indicated that he agreed with the conclusions of Lawler VP in Sexton concerning the need for caution in accepting claims of differential treatment in other cases advanced as a basis for finding that a termination is harsh, unjust or unreasonable. He said:
‘Extreme caution must be exercised. I have exercised such caution in this case. The simple facts are that Mr Agas and Mr Z are both long serving employees of Bluescope. Both employees are level 5 Operators working in the HCPD. Both employees have been involved in serious and similar incidents at work. Both have dropped coils, both have caused extensive damage to the Ram Truck, both have failed to judge the height of their load correctly resulting in a collision and damage to company product.
The differences are that Mr Agas’ coil collision was caused by the malfunction of the crane compared to Mr Z being distracted, that Mr Z quickly accepted total responsibility whereas Mr Agas apportioned some blame to the failure of the equipment and that Mr Z has been given three final warnings and remains employed whereas Mr Agas received one final warning and was then dismissed.
Mr Agas did not receive a fair go as per the statutory requirement. There has been a lack of consistent and equal treatment between employees in relation to their disciplinary outcomes.’ 41
[47] The Commissioner also stated that he had some concerns about the behaviour of Mr Jones in the episode and had taken his conduct into account. 42
[48] The Commissioner then stated:
‘The requisite fair go was not extended to Mr Agas in relation to the investigation.’ 43
[49] The Commissioner said that Mr Agas had not been interviewed in an appropriate manner until after Mr McPhan had conducted a peer review at which he recommended Mr Agas’s dismissal. This was, according to the Commissioner, ‘grossly unfair’. 44
[50] The Commissioner continued:
‘An employee is entitled to have the accusations which threaten his employment explained to him in detail and preferably in writing. He is entitled to have an opportunity to respond to those accusations. Mr Agas was not given that opportunity.’ 45
[51] The Commissioner acknowledged that Mr Baraldi was representing Mr Agas, but he said that:
‘... the AWU’s involvement in the process does not extinguish the rights of Mr Agas to front his accuser face-to-face and then respond accordingly. It is a basic principle of procedural fairness - a principle which was not afforded to Mr Agas. The peer review conducted on 5 August should not have been conducted before Mr Agas was even interviewed.’ 46
[52] The Commissioner rejected the notion that Mr Agas had not shown sufficient contrition. He said that Mr Agas had every right to pass some of the responsibility for the accident to the faulty crane. He said that Mr Agas had suffered ‘the ultimate penalty for Bluescope’s faulty equipment.’ 47
[53] The Commissioner said that Mr Agas’s error of judgment in seeing the ‘height issue’ sooner - while it was a contributory factor to the accident - was not a reason which justified termination of employment. 48 He went on:
‘If raising the coil to its full or otherwise appropriate height is such a fundamentally integral component of a safe workplace, then Bluescope should require all Operators to conclude the vertical lift prior to travelling the coil to its destination. It was acknowledged by Bluescope that such a procedure would have a dramatic effect on the productivity of the entire Hot Trim Mill including the upstream processes. However, Bluescope does not operate on the basis of affordable safety. If such a practice would be safer it should be introduced by Bluescope.’ 49
[54] The Commissioner also said he had taken into account the social and financial consequences on Mr Agas as a result of the termination of his employment. He rejected the contention that anything less than termination would have been to condone Mr Agas’s operational negligence, and observed:
‘The termination of employment of each employee must be considered on its own facts. It is clear that Bluescope does not condone operational negligence. Considering what outcome should apply in the proper context, with a proper regard to overall consistency and fairness does not condone operational negligence.’ 50
[55] The Commissioner concluded that he was satisfied that Mr Agas’s dismissal was harsh, unjust or unreasonable. In this regard, the Decision read:
‘It was harsh because the outcome of termination of employment was excessive given the level of contribution to the operational failure made by Mr Agas’ mistake. It was also unjust and unreasonable for that reason.’ 51
[56] The Decision concluded by finding that Mr Agas should be reinstated in accordance with the primary remedy under the Act. He rejected the argument that reinstatement would create a danger to BlueScope’s product or employees, or that there had been an irreparable breakdown in the relationship. 52
The appeal grounds
[57] In its notice of appeal, BlueScope contended the Commissioner had made 14 legal errors and 15 significant errors of fact.
[58] The alleged legal errors were as follows:
[59] The alleged significant errors of fact were:
[60] The submissions on the appeal for Mr Agas contended that the Full Bench should refuse permission to appeal on the grounds that:
Permission to appeal
[61] This case raises important issues concerning the proper construction of s.387 of the Act in determining whether a dismissal is harsh, unjust or unreasonable. In our view, it is in the public interest to grant permission to appeal.
Consideration
[62] That part of the Decision dealing with whether the respondent’s dismissal was harsh, unjust or unreasonable can be broken into three parts: whether there was a valid reason, whether Mr Agas was afforded procedural fairness, and other matters the Commissioner considered relevant.
[63] We will deal first with that part of the Decision concerning whether there was a valid reason for the dismissal. The comment by Northrop J in Selvachandran 53 concerning the meaning to be given to ‘valid reason’ for termination of employment - even though it related to predecessor legislation to the Act - remains relevant. Northrop J said:
‘In its context in subsection 170DE (1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee's
capacity or conduct based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly, ...”.
[64] In determining whether an employer had a valid reason for dismissing an employee, the Commission must first identify the applicable reason (or reasons). In this case the reason for Mr Agas’s dismissal was foreshadowed by BlueScope in advance of the dismissal and confirmed in his letter of termination of employment. It was ‘for continued unacceptable performance’. As a consequence of this ‘continued unacceptable performance’ BlueScope determined that Mr Agas was incapable of performing the role of an operator, and his ongoing employment constituted an unacceptable risk to the business.
[65] Having identified the reason for dismissal the Commission needs to determine whether that reason was ‘sound, defensible or well founded.’ This would typically include a determination whether the reason was - on the basis of the evidence before the Commission - properly founded on the facts. For example, in the circumstances of this case, was there evidence of ‘continued unacceptable performance’?
[66] One of the difficulties in this case is that the Commissioner’s findings on whether there was a ‘valid reason’ for Mr Agas’s dismissal are seemingly internally contradictory. At paragraph 31 of the Decision the Commissioner inaccurately identified the reason for the dismissal as ‘operational negligence’ or ‘contributory operational negligence’, which he apparently considered solely or principally in relation to the incident on 27 July 2013. It seems to us, with respect, that this error, which we accept is a significant error of fact, means that he failed to have proper regard to the evidence about this incident being the latest in a series of other incidents of unacceptable performance (albeit the Decision does later note that Mr Agas had received ‘two previous and justifiable warnings for operational negligence’). In paragraph 31 the Commissioner concluded that there was a valid reason for the dismissal - although at paragraph 65 he also concluded that dismissal from employment was not ‘an appropriate outcome from the incident’.
[67] It seems to us, again with respect, the Commissioner misapplied himself in the consideration of the basis relied upon by BlueScope for the dismissal and, thereby, also misapplied himself in the consideration of the question of a valid reason for the dismissal. Of course, whether there is a valid reason does not in and of itself determine whether a dismissal is harsh, unjust or unreasonable. The Commission is required to have regard to all the criteria (at least to the extent they are relevant) in s.387 of the Act. We observe, however, that if there is a valid reason - as the Commissioner squarely found there was in this case - it is inherent in the concept that dismissal cannot be ‘an inappropriate outcome’ unless there are sufficient countervailing factors arising from a consideration of all the (relevant) factors to conclude that the dismissal was harsh, unjust or unreasonable such as to warrant discretionary intervention in the decision to dismiss.
[68] We next turn to that part of the Decision concerned with procedural fairness. The Act’s requirements concerning procedural fairness are principally set out in s.387(b), (c), (d) and (e). The Commissioner was required by the Act to make findings about each of these criteria - at least so far as they were relevant to Mr Agas’s application.
[69] Unfortunately, the Commissioner conflated his consideration of the criteria in s.387(b), (c) and (d) and, in so doing, it seems to us, he failed to make requisite findings that were necessary to be determined or relevant to the facts of this case, or both. The criterion in s.387(b) of the Act is whether Mr Agas had been notified of the reason for his dismissal. Mr Agas was notified of the reason for the dismissal in the letter of 7 August 2014 which, within the statutory formulation set out in s.387(a) of the Act, was a matter related to Mr Agas’s capacity. That is, the letter of termination of employment relevantly advised that BlueScope determined to dismiss for reasons of Mr Agas’s ‘continued unacceptable performance’, that Mr Agas was ‘incapable of performing the role of an operator’, and that ongoing employment would constitute an ‘unacceptable risk’ and ‘is no longer tenable’. We would add that Mr Agas - based on his own evidence 54 - was clearly on at least some form of notice that his employment was at risk from the moment he was asked to help prepare an incident report into the events of 27 July 2013. On 30 July 2013, Mr Baraldi of the union - explicitly acting on behalf of its member - provided Mr McPhan with a detailed two page email presenting Mr Agas’s version of events in response to BlueScope’s concerns. Despite this the Decision says that Mr Agas was not ‘officially advised of the issues until the show cause meeting of 6 August’ although he does acknowledge that Mr McPhan had told his representative the day before of his views.
[70] The criterion in s.387(c) of the Act is relevantly concerned in this case with whether Mr Agas was given the opportunity to respond to any reason related to his capacity. Despite the Commissioner’s conclusions, Mr Agas was, on the evidence, given that opportunity to respond - and did in fact respond - through the representations to BlueScope made by or on his behalf. The Commissioner concluded that Mr McPhan had decided on 5 August 2013 to dismiss Mr Agas ‘before Mr Agas had even had an opportunity to be involved in a formal discussion in relation to the incident.’ This conclusion was, with respect, against the evidence. Moreover, the Commissioner’s conclusion in this regard appears substantially to have informed the Commissioner’s procedural fairness-related criticisms of BlueScope. A plain reading of the available evidence does not support such criticism of the procedure. Mr McPhan’s evidence was that on 5 August 2013 - taking into account that Mr Agas was on a final warning - he had formed the view that, ‘subject to what else Mr Agas may have to say’, he could not justify maintaining his employment with BlueScope based on what was apparent from the investigation. Mr McPhan was entitled to form that preliminary view - but it is also critical to note that any such view Mr McPhan held was subject to the important proviso that this would be subject to what else Mr Agas may have to say. He said that he was also very concerned by the lack of acknowledgement of responsibility for the incident by Mr Agas. 55 Mr McPhan then said he conducted a review of the incident with members of the management team. This supported his view.56
[71] Mr McPhan’s evidence is that he then contacted Mr Baraldi and told him that BlueScope believed the incident was the fault of Mr Agas and that ‘it warranted dismissal.’ He then asked Mr Baraldi to ensure that Mr Agas be prepared at the meeting on 6 August 2013 ‘to run through any additional mitigating circumstances he thought the Company should take into consideration before finalising any outcome.’ 57
[72] The implication of this evidence is that BlueScope management had indeed formed a preliminary view - subject to what Mr Agas had to say - that his dismissal was warranted. This is quite unexceptionable. However, it is also clear from Mr McPhan’s evidence that no final decision was taken until after he had heard what Mr Agas and Mr Baraldi had to say at the meeting on 6 August 2013.
[73] The proposition that BlueScope had decided to terminate Mr Agas’s employment prior to the meeting on 6 August 2013 was put squarely to Mr McPhan in cross-examination and his response was ‘We’d made the decision at that point that it was serious enough to warrant terminating’. 58 Indeed, the Commissioner specifically asked Mr McPhan what that meant and he replied:
‘That at that point it would warrant - it could be seen as a dismissible offence based on his employee history, the differentiation in what we had seen versus what was in the incident report, and also taking into account the correspondence we had had between Mr Baraldi and myself regarding the incident. What we’re saying is that it warranted termination and we were looking for mitigating circumstances at that point as to whether it would be a lesser discipline.’ 59
[74] Mr McPhan then outlined possible factors that might have led to a decision other than dismissal. Given this evidence, there was simply no sustainable basis for the Commissioner to have made the finding that he did in this regard.
[75] Despite the Commissioner’s conclusions concerning procedural fairness, which we consider involved a (further) significant error of fact, Mr Agas was given an opportunity to respond to any reason related to his capacity or conduct. Such matters were addressed in Mr Baraldi’s emailed representations and at the show cause meeting (and other matters were also raised by or on behalf of Mr Agas).
[76] The criterion in s.387(d) of the Act in this case is concerned with whether there was any unreasonable refusal by BlueScope to allow Mr Agas to have a support person present to assist at any discussions relating to dismissal. The Commissioner failed to make a finding about this matter. He did, however, say that Mr Agas was not offered the opportunity to have a support person present at the discussion with Mr Jones on the evening of the 27 July 2013 incident. That of course is not the criterion set out in the Act. Mr Agas did not ask for a support person to be present at that meeting; nor was there any evidence that BlueScope at any time refused to allow Mr Agas - unreasonably or otherwise - to have a support person present at any discussions. The preparation of an incident report by an employee, at a time broadly coinciding with the occurrence of an incident, does not, it seems to us, invoke the provisions of s.387(d) of the Act in relation to the matters described by an employee in a report. That is, the preparation of a contemporaneous incident report would not ordinarily or necessarily be considered to be a matter involving discussions relating to dismissal.
[77] In summary, the Commissioner failed to make requisite findings about the criteria set out in s.387(b), (c) or (d) of the Act. If he had - based on the evidence - he would have been bound to conclude that BlueScope had notified Mr Agas of the reason they were considering dismissing him, had given him an opportunity to respond to that reason and had not unreasonably refused to allow him a support person at any relevant discussions. Despite this, the Commissioner found that ‘the investigative process’ was procedurally unfair. He did this by substituting an alternative notion of procedural unfairness to that set out in the Act. The process was unfair he found because it ‘did not involve an interview with the relevant employee.’ The requirements are those set out in s.387(b), (c) and (d); whether to conduct an interview is a matter for the person conducting the investigation. In this case, Mr Agas well knew the basis of BlueScope’s concerns, and had ample opportunity to present his case. There were no sound grounds for finding that there was any procedural unfairness. Mr Agas’s union made written representations for BlueScope to consider. Moreover, further representations were made at the show cause meeting and, relevantly, prior to the final decision to dismiss.
[78] The Commissioner dealt in some detail, as a further ‘relevant consideration’ within the meaning of s.387(h) of the Act, with a comparative analysis concerning the dismissal of Mr Agas as against the circumstances concerning another employee of BlueScope who was not dismissed despite operational incidents; and such considerations appear to have had considerable emphasis in the Decision. We have considered the matters described in the Decision. We agree with the Commissioner’s observation that, based on the authorities, there needs to be a very cautious approach to claims of differential treatment as a basis for concluding that a dismissal was harsh, unjust or unreasonable. We accept BlueScope’s submissions that the Commissioner erred significantly in his consideration of the evidence in relation to the extent of any comparisons concerning Mr Agas and Mr Z; we accept that there were properly-based differentiating considerations in relation to the manner in which BlueScope determined to deal with each employee. In any event, we consider that the significant errors of fact otherwise disclosed in the Decision most relevantly concerning the (erroneous) conclusions as to the basis for the dismissal and the procedural issues militate against this matter of seemingly inconsistent treatment of itself otherwise founding a proper basis for a finding the dismissal was harsh, unjust or unreasonable.
[79] The errors the Commissioner made in the way he applied - or failed to apply - s.387(a), (b), (c) and (d) of the Act are errors of the House v The King type. Accordingly, we have decided to grant permission for BlueScope’s appeal, to quash the Decision and orders made by the Commissioner and to determine the matter on the basis of the evidence and material before the Commission.
Re-hearing - Consideration of the application by the Full Bench
[80] In considering whether the dismissal of Mr Agas was harsh, unjust or unreasonable we have had regard to the evidence and material presented in the proceedings at first instance and to the various criteria referred to in s.387 of the Act, and in so doing rely upon certain of our findings already addressed in this decision. We would otherwise note the following additional matters.
[81] As to s.387(a) of the Act, the uncontested evidence was that Mr Agas had a record of performance-related issues stretching back over a number of years. 60 This included two incidents in the 15 months immediately preceding the dismissal. At the time of his dismissal, Mr Agas was on a final written warning as a result of an incident which caused $160,000 damage to a piece of BlueScope plant. There was no evidentiary basis for doubting the soundness of those prior warnings.
[82] While the catalyst for Mr Agas’s dismissal was the incident on 27 July 2013, there had been a history of other incidents. We have considered the fact that the immediate context of the incident undoubtedly was the malfunction of the crane hoist. We have considered that this was a matter beyond Mr Agas’s control, but, nonetheless, also find that if Mr Agas had been performing his Level 5 Operator role more attentively he would have, or should have, conducted an appropriate visual check more carefully - with the result the ensuing collision would have, or should have, been averted. His failure to do so caused a (further) serious and costly workplace incident; and also represented a risk to workplace safety. We find that BlueScope’s reason for the dismissal was a valid one. Although the initial malfunction was not within Mr Agas’s control, Mr Agas himself recognised during his cross-examination that a key part of his job was to respond in the event that a malfunction such as this occurred. 61
[83] Mr Agas had a lengthy period of service - but it was far from unblemished. Indeed, properly considered, the dismissal came about as a culmination of his responsibility for a series of unacceptable incidents. We accept that BlueScope had a reasonable concern that ongoing employment would constitute an unacceptable risk.
[84] We are satisfied that BlueScope notified Mr Agas of the reason it was considering dismissing him (s.387(b)); gave him an opportunity to respond to that reason (s.387(c)). We are also satisfied that BlueScope had not unreasonably refused to allow Mr Agas a support person at any relevant discussions relating to the dismissal (s.387(d)). Mr Agas was given and took the opportunity to present matters which may have been relevant to any decision that may be made by BlueScope concerning the incident and reasons why he should not be dismissed, both through Mr Baraldi and at the ‘show cause’ meeting.
[85] With regard to s.387(e) of the Act, we note that Mr Agas had previously received prior warnings. With regard to s.387(f) and s.387.(g) we note that BlueScope is a large employer. We consider that the procedures it adopted in effecting the dismissal were consistent with its size and access to specialised human resources expertise.
[86] We do not consider that there are any other matters that are relevant to our consideration of the criteria considering harshness etc, within the meaning of s.387(h) of the Act, that would lead to any discretionary intervention in BlueScope’s decision to dismiss Mr Agas (including the treatment of Mr Z).
Conclusion
[87] As noted earlier, we have determined to quash the Decision and orders made by the Commissioner and to re-hear the matter on the basis of the evidence and material before the Commission.
[88] On that re-hearing, we have concluded Mr Agas has not established a case that his dismissal was harsh, unjust or unreasonable. His application for an unfair dismissal remedy is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
M. Seck of counsel for the appellant.
A. Howell of counsel for the respondent.
Hearing details:
2014.
Sydney:
July, 23.
3 AB 433
4 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266
5 [2000] HCA 47, 203 CLR 194
6 Lambley v DP World Sydney Ltd and FWA [2013] FCA 4
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38 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 465
39 Sexton v Pacific National (ACT) Pty Ltd PR931440
40 Darvell v Australian Postal Corporation 2010 FWAFB 4082
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53 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333
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55 McPhan statement, paragraph 74
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