| [2015] FWC 3160 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bobby Mwakichako
v
BHP Billiton WAIO Pty Ltd
(U2014/14386)
COMMISSIONER CLOGHAN |
PERTH, 16 SEPTEMBER 2015 |
Application for relief from unfair dismissal.
[1] This is an application by Mr Bobby Mwakichako (Applicant or Mr Mwakichako) to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, BHP Billiton WAIO Pty Ltd (Employer or BHPB WAIO).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing on 30 April 2015, Mr Mwakichako represented himself and gave evidence on his own behalf.
[4] With permission of the Commission, the Employer was represented by Mr R Wade, Consultant, Ashurst Australia. Evidence was given by the following on behalf of the Employer:
[5] This is my decision and reasons for decision concerning Mr Mwakichako’s application.
[6] On 8 June 2010, the Applicant commenced employment with HWE Newman Services Pty Ltd (HWE) as a full-time Trainee Dump Truck Operator (Production Technician) on a fly in fly out basis with a roster of two (2) weeks’ work, followed by one (1) week rest.
[7] In or around October 2011, the Applicant’s employment with HWE transferred to the Employer. The transfer was subject to terms and conditions in a letter of offer of employment dated 24 October 2011 and accompanying General Terms and Conditions of Employment.
[8] An inherent requirement of the Applicant’s job was the operation of haul trucks and other surface mine equipment.
[9] In or around July 2012, the Applicant was exposed to hydrocarbon exhaust fumes.
[10] The hydrocarbon exposure happened on the last day of Mr Mwakichako’s “swing”. Mr Mwakichako returned to Perth the following day. While in Perth, Mr Mwakichako did not seek any medical treatment and returned to site at the end of his one week rest period.
[11] On 24 December 2012, the Applicant sustained a further work related respiratory illness as a result of hydrocarbon exposure.
[12] The Applicant made a workers’ compensation claim which was accepted by the insurer. Mr Mwakichako received his statutory workers’ compensation benefits between 24 December 2012 and 29 January 2014.
[13] The Applicant did not return to work between 24 December 2012 and 29 January 2014.
[14] On 20 January 2014, Mr Mwakichako discussed with the Superintendent Mining Production, Yandi, a work placement with the Integrated Remote Operations Centre (IROC) as a Mine Controller commencing on 29 January 2014.
[15] In the confirmatory correspondence, of the same date, the Employer relevantly stated:
“I refer to the telephone meeting on 20/01/2014 attended by you and myself. During this meeting, there was a discussion regarding the existence of medical restrictions in place that prevent you from performing your role as a Production Technician at Yandi.
During the meeting, I confirmed that there was a temporary work placement opportunity within the Integrated Remote Operations Centre (IROC), working as a Mine Controller on a Sportsman’s roster as attached. The work placement is due to commence on Wednesday 29th January 2014…and will continue for a yet to be determined period of time.
It was also explained to you during the meeting on 20/01/2014 that the IROC opportunity was a work placement for a temporary period of time and there remains a need for you to secure a permanent position with the organisation. It was also made clear that it would ultimately be up to you to find a suitable employment opportunity that enabled you to work within the medical restrictions currently in place.
I emphasised during the meeting on 20/01/2014 that you would be supported in seeking permanent redeployment opportunities by Jay Natesan (Alt Supt Mining Production), Tom Weeden (Senior Advisor HR) and myself. However, it was also made clear that you would also need to be actively engaged in this process and proactive in attempting to secure an alternative position within the organisation.” 1
[16] A further discussion with Mr Mwakichako took place on 24 April 2014. In the correspondence that followed, the Employer reminded him of the correspondence of 20 January 2014, in which Mr Mwakichako was advised to secure a permanent position within BHPB WAIO. Further, the correspondence stated that Mr Mwakichako’s Occupational Physician had confirmed, for health reasons, he had to avoid work with a high risk of further hydrocarbon exposure. Importantly, the correspondence relevantly concludes that Mr Mwakichako was unable to return to the position of Dump Truck Operator at Yandi, and:
“You were also advised in the meeting on 24 April 2014 that your temporary work trial within the IROC team was due to conclude on 31 May 2014 and reminded that your role as a Production Technician is a critical position within the Mining Production Department. It was made clear that we are unable to keep your position open indefinitely whilst you attempt to secure alternative employment.”
[17] On 10 September 2014, Mr Mwakichako attended a meeting to discuss his ongoing employment in circumstances of “your permanent work restrictions” 2.
[18] On 29 September 2014, the Employer sent to Mr Mwakichako correspondence terminating his employment. The correspondence referred to Mr Mwakichako’s inability to return to his pre-injury duties and the Employer’s inability to keep “open’ his position as Production Technician indefinitely. The Employer continued:
“As explained to you in previous correspondence and also in our meeting on 24 April 2014, if you were not able to source an alternative role through the redeployment process, it was likely that your employment would be terminated based on your inability to perform the inherent requirements of your role. The Company has afforded you an extension to the initial 3 month redeployment timeframe, and you have now had over 20 weeks to find a suitable alternative role within BHP Billiton that you could safely perform. No suitable role has been obtained.
During this meeting you were given an opportunity to provide any additional information we should take into account before making our decision regarding your ongoing employment. You mentioned that you had applied for a position in Perth (Hub Scheduler - 40174507) on 10 September 2014 but were awaiting feedback on your application.
We gave careful considerate to your response and advised you that we would wait until a decision was made on your job application for the Hub Scheduler position and you were informed that if your application was unsuccessful, then your employment would be terminated.
We regretfully advise that due to your job application for the Hub Scheduler position not progressing, your permanent work restrictions, your resulting inability to fulfil the inherent requirements of your role as Production Technician and your failure to find suitable alternative employment during the redeployment process, the decision has been made to move forward with ending your employment with the Company. The termination of your employment will be effective immediately 29 September 2014. You will be provided five weeks’ payment in lieu of notice as well as payment for any accrued and unused leave that you may be entitled to.” 3
[19] On 19 October 2014, the Applicant sought a remedy for alleged unfair dismissal from his Employer.
[20] In summary, Mr Mwakichako’s case is as follows:
“…during one of my assessments in 2013 when the BHP doctor asked me how I'm doing, how I'm going and I told him that the company has asked me to apply for jobs, he told me I'm not supposed to be doing that, I'm not supposed to be running around applying for positions within the business, that: It is the company's responsibility. Based on your education, from what you have told me and your past experience, they should be able to slot you into another position.” 4
[21] To put it succinctly, Mr Mwakichako asserts “...and naturally I thought my situation should have been given special consideration…”. 5
[22] The Applicant also states that BHPB WAIO’s reason for termination of employment was because he had been unable to source an alternative role which could be safely performed. 6 However, because Mr Mwakichako was not provided with a response to each job application, or the reasons why he was unsuccessful, and subsequently to terminate his employment because he was unsuccessful, was unfair.7
[23] Finally, the Applicant asserts that his employment could not have been terminated because he was unable to fulfil the inherent requirements of the position because, if that was the case, he would have been terminated in March 2013 and not September 2014. 8
[24] In summary, the Employer’s case is as follows:
[25] There is no dispute between the parties that Mr Mwakichako has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.
[26] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“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) ...
(d) ...”
[27] The criteria for whether a dismissal is harsh, unjust or unreasonable can be found in s.387 of the FW Act as follows:
“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.”
[28] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[29] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[30] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[31] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 9. Further,
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 10
[32] In my view, the first issue for determination is the reason for Mr Mwakichako’s termination of employment.
[33] The Applicant submits that his dismissal was because he was unable to “source an alternative role through the redeployment process”. 11 In my view, this is a selective and narrow reading of his letter of termination of employment.
[34] The correct position is as set out in Mr Mwakichako’s witness statement which reads:
“I cannot return to any position which carries the risk of exposure to hydrocarbons.” 12
[35] This position was put, in context, in cross examination, as follows:
“…Ultimately, Mr Mwakichako, do you accept that on the strength of medical advice, the respondent BHP was not prepared to allow you to continue employment in the original role of production technician, or otherwise referred to as a truck driver or a mobile plant operator? Do you confirm that?---I do.
The reason for that, as we know, is that to allow you to do that would have potentially exposed you to hydrocarbons, which would have worsened your condition; is that correct?---Potentially, yes.
You accepted that advice and you agreed with it in the sense that you did not want to be exposed once again to hydrocarbon exposure?---Yes, I went by the doctor's advice.
In fairness to you, Mr Mwakichako, you have never suggested to BHP, the respondent, that they were unfair or acted incorrectly in following the medical advice; is that correct?---It's correct.
Ultimately, without dwelling on the medical issues, Professor Eli Gabbay recommended that you should avoid any risk of hydrocarbon exposure?---Yes, he did.” 13
[36] Mr Mwakichako’s Workers’ Compensation Progress Medical Certificate of 20 November 2013 states that he is fit to return to work on restricted duties which are to “avoid excessive hydrocarbon exposure as per Respiratory physician advice.” 14 The Respiratory Physician was Professor Gabbay and his advice was, “it is my view that it would be appropriate to ensure that Mr Mwakichako does not have any further hydrocarbon exposure and I recommend that he be employed in a role where there is no significant risk of this.”15
[37] Facing such substantial and overwhelming medical advice, it is not surprising that BHPB WAIO was not prepared to allow Mr Mwakichako to return to his substantive role as a Production Technician in case he was further exposed to hydrocarbons.
[38] The Employer’s position is put, earliest, in its correspondence of 20 January 2014 when it refers to a discussion with the Applicant earlier on that day regarding “medical restriction in place that prevent you from performing your role as a Production Technician at Yandi”. 16 This situation is further encapsulated in correspondence of 10 September 201417 and in the letter of termination of employment, which clearly refers to Mr Mwakichako’s “inability to fulfil the inherent requirements of your role as Production Technician since 25 December 2012.”18
[39] The Commission pursuant to the FW Act and previously under the Workplace Relations Act 1996 has found that a dismissal based on an employee’s inability to carry out the inherent requirement of the position is a valid reason for termination of employment. While the circumstances are never entirely similar, the dismissal and subsequent appeals in Ermilov 19 and Birdi20 are well known and I intend to follow the principles in those decisions.
[40] The principles are succinctly summarised by the Full Bench of the Commission in J Boag and Son which states, “plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job”. 21
[41] I am satisfied that Mr Mwakichako was dismissed because he was unable to carry out the inherent requirements of the position of Production Technician. It was a valid reason and one which was “sound”, “defensible” and “well founded”.
[42] The Applicant, in a roundabout way, poses the question that if he was dismissed because he was unable to carry out the inherent requirements of the position of a Production Technician, why was his employment not terminated in March 2013.
[43] While I am unsure whether it has any relevance, the fact that BHPB WAIO did not terminate Mr Mwakichako’s employment in March 2013 led ultimately to a further eight (8) months’ employment (not in receipt of workers’ compensation) at his Production Technician rate of pay, and the opportunity to apply for positions as an internal applicant.
[44] In not dismissing Mr Mwakichako in March 2013 or January 2014, the Employer explained to him that his continuing employment was subject to him securing a permanent position and that it “would ultimately be up to you to find a suitable employment opportunity”. The Employer did not cast Mr Mwakichako adrift immediately, but indicated that it would assist him in securing alternative employment.
[45] Mr Mwakichako does not resile from the position that he had to find another job in BHPB WAIO to remain in employment. 22 Further, that he met with the Employer’s representative or had telephone discussions with him approximately every four weeks.23
[46] Mr Mwakichako was required to advise Mr Weeden each time he made an application to enable Mr Weeden to make contact with the relevant recruiting department. While the process to assist Mr Mwakichako did not go entirely to plan, I am not satisfied that the blame can be laid entirely at BHPB WAIO’s door.
[47] The parties have a different perspectives as to what happened over the nearly eight (8) months regarding the assistance given to Mr Mwakichako. I consider Mr Mwakichako is correct when he states that the Employer was cutting down on staff and departments were shrinking. 24 However, the evidence does not demonstrate his assertion that he was, “just being managed out of the company”.25
[48] Mr Mwakichako acknowledged, in his evidence, that BHPB WAIO must have protocols to deal with recruitment. 26 However, I infer from Mr Mwakichako’s evidence that his understanding of the Employer’s “assistance” in seeking alternative employment, would be to locate and place him in another position within BHPB WAIO as he was deserving of, or requiring, special consideration.
[49] Mr Mwakichako applied for at least eight (8) positions in approximately eight (8) months. The Applicant was advised, in written form, that he was unsuccessful with respect to four of the applications and was advised by telephone, on one occasion, that he had been unsuccessful.
[50] I can find nothing “unfair” in Mr Mwakichako’s dismissal because he had been unsuccessful in sourcing another position with the Employer. Mr Mwakichako’s criticism that he was not advised of the reasons why he was unsuccessful in his applications, or had not received a response, may be valid. However, the criticisms were not the reason for his dismissal, and more importantly, the criticisms cut both ways.
[51] In cross examination, when it was put to Mr Mwakichako that for nearly eight (8) months, he did not communicate with Mr Weeden with words to the effect of, “I have applied, “I’ve heard nothing from you. I haven’t got a response. I haven’t got the courtesy of an acknowledgement” 27, he responded, that BHPB WAIO is a large professional organisation and he expected people to actually do their jobs.28 Mr Mwakichako was aware that he had to find a job; it was necessary for him to be proactive if he believed there were failings in the recruitment process which may have been prejudicial to him getting a job.
[52] I am satisfied, for the reasons above, that Mr Mwakichako’s criticisms of the recruitment and selection process, in the period January to September 2014, did not undermine the valid reason of the Employer to terminate his employment.
s.387(b) - notification of the reasons for termination of employment
[53] Mr Mwakichako was notified of the reasons for termination of employment. Mr Mwakichako was put on notice at a discussion, and in writing, on 24 April 2014, that the Employer could not keep him assigned to the position of Production Technician (which he was unable to carry out) indefinitely while he secured alternative employment.
[54] Further, Mr Mwakichako’s letter of termination clearly states at paragraph two (2), that the reason for termination of employment was due to his inability to fulfil the inherent requirements of his position as a Production Technician.
s.387(c) - opportunity to respond
[55] I am satisfied that Mr Mwakichako had the opportunity to respond to the reasons for his potential termination of employment on 24 April 2014, and actual termination of employment, on 11 September 2014.
s.387(d) - support person
[56] On the evidence, I am satisfied that for the meeting on 11 September 2014, Mr Mwakichako was encouraged, and did have a support person present.
s.387(e) - unsatisfactory performance
[57] The reason for Mr Mwakichako’s termination of employment was not related to his performance.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[58] The Employer’s size and dedicated specialist Human Resources personnel were reflective of the manner in which Mr Mwakichako’s dismissal was effected.
s.387(h) - other matters
[59] There are no other matters which I have not considered above.
[60] In conclusion, for the reasons set out above, I am satisfied that Mr Mwakichako’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
B Mwakichako, the Applicant.
R Wade, Consultant, Ashurst Australia on behalf of the Employer.
Hearing details:
2015:
Perth,
30 April.
1 Exhibit R5 (15)
2 Exhibit R5 (21)
3 Exhibit R5 (22)
4 Transcript PN238
5 Transcript PN235
6 Exhibit A1 (29)
7 Exhibit A1 (30)
8 Exhibit A1 (32)
9 Brink v TWU PR922612 at paragraph [7]
10 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
11 Exhibit R5 (22)
12 Exhibit A4 para 74
13 Transcript PN80 to PN84
14 Exhibit R5 914)
15 Exhibit R5 (20)
16 Exhibit R5 (15)
17 Exhibit R5 (21)
18 Exhibit R5 (22)
19 Loren Ermoliv v Qantas Flight Catering Limited PR953449 and on appeal PR956925
20 Charanjit Singh Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728 and on appeal [2012] FWAFB 1404
21 J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022
22 Transcript PN147
23 Exhibit R4 (22)
24 Transcript PN155
25 Transcript PN155
26 Transcript PN156
27 Transcript PN179
28 Transcript PN179
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