| [2017] FWC 1871 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jake Clarkin
v
Bechtel Construction (Australia) Pty Ltd
(U2016/11871)
COMMISSIONER WILLIAMS |
PERTH, 5 APRIL 2017 |
Termination of employment.
[1] This decision concerns an application by Mr Jake Clarkin (Mr Clarkin or the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (The Act). The respondent is Bechtel Construction (Australia) Pty Ltd (Bechtel or the Respondent).
[2] Mr Clarkin was employed as a Rigger on the Wheatstone LNG construction project (Wheatstone).
[3] Mr Clarkin’s employment was terminated on 15 September 2016. The termination of employment letter relevantly read as follows:
“This letter confirms the Project’s decision to terminate your employment with immediate effect.
Your termination is a result of behaviour you have exhibited on the evening of 10 September 2016 where you were found to have created a noise disturbance at the Sun Chalets in Onslow as well as wilful property damage.
Your behaviour constituted Serious Misconduct as set out in Wheatstone Community Interface Code of Conduct; Section 2.3 Causing wilful damage to community facilities and amenities and Section 2.2 Drunken behaviour in public that causes a disturbance or a nuisance to others and is the authority relied upon for the Project's decision to terminate your employment.”
[4] Mr Clarkin gave evidence on his own behalf as did his partner Ms Jacqueline Horsey (Ms Horsey), who is employed by Bechtel as an Apprentice Mechanical Fitter at Wheatstone and Mr Joseph Difford (Mr Difford) a Rigger at Wheatstone. Six witnesses gave evidence for the Respondent; Mr Adam Leary (Mr Leary) Bechtel’s ER Superintendent, Ms Meagan Parker (Ms Parker) Manager at Onlsow Sun Chalets, Mr Michael Dodgson (Mr Dodgson) who was at the time an Industrial Advisor at the Chamber of Commerce and Industry, Mr Gary Vanous (Mr Vanous) Bechtel’s Site Manager at Wheatstone, Mrs Merle Caughey (Mrs Caughey) a guest at Onslow Sun Chalets on 10 September 2016 and by summons Mr Alister Robinson (Mr Robinson) of the Electrical Trades Union WA who was also a guest at Onslow Sun Chalets on 10 September 2016.
[5] Wheatstone is approximately 12 km from the town of Onslow. Onslow is 1379 km north of Perth by road.
[6] Wheatstone is being developed and will be operated by Chevron Australia Pty Ltd (Chevron). Construction of the $29 billion project commenced in 2011.
[7] Bechtel is the entity responsible for delivering engineering, procurement, construction and commissioning (the EPC) of the Wheatstone downstream (or onshore) scope of work for Chevron. Bechtel is also undertaking the construction scope for the Inside Battery Limits (ISBL) works modular setting and interconnections package which works include the installation, connection, testing and startup of the processing train modules, gas turbines, refrigeration compressors, and utilities for the two LNG trains. Bechtel directly employs workers to perform the ISBL scope of work.
[8] There are currently over 10,500 employees inducted to the Wheatstone site and between 7,300 and 7,500 of these employees are on site at any given time at Wheatstone which includes employees directly engaged by Bechtel and employees of subcontractors.
[9] In contrast there are only about 500 permanent residents in the town of Onslow.
[10] Given that Onslow is a very small community, both Chevron and Bechtel are sensitive to community needs and interests and have always been committed to Wheatstone having the least possible impact on the Onslow community.
[11] Consequently Chevron and Bechtel undertake a lot of community and volunteer work in Onslow, as well as supporting local businesses.
[12] Wheatstone has also made, and continues to make, significant financial contributions towards developing and upgrading Onslow’s social and critical infrastructure, including the town’s health, education and recreation services and facilities, as well as road, power and water infrastructure.
[13] Due to the sensitivities that exist between the Onslow community and Wheatstone, Chevron employs a number of Community Relations Officers, whose role it is to engage with the local community about the activities of Wheatstone and to also field complaints from members of the community, businesses and the local police about a range of matters, including incidents that occur in the town involving employees working on Wheatstone.
[14] From time to time there are incidents and reports about employees’ behaviour in Onslow and these occur most frequently on Saturday or Sunday nights. This is because employees on Wheatstone have rostered days off every second Sunday and often visit Onslow during this time off.
[15] As the EPC to Wheatstone, when incidents do occur, Bechtel seeks to ensure that it acts in such a way as to limit possible reputational damage to Chevron and to act in a way which does not in any way compromise Bechtel’s relationship with Chevron.
[16] If a Wheatstone employee wants to stay in Onslow overnight they must put in a request. This request must be approved by the employee’s Manager and the Operation Manager or their delegates. The regulation of access to Onslow is necessary to ensure the town is not flooded with Wheatstone employees and that the Onslow residents are free to go about their normal lives without the presence of large number of Wheatstone employees.
[17] Mr Clarkin commenced employment with Bechtel on Wheatstone in March 2016. Prior to this engagement he had been employed with Bechtel on other construction projects for about three years in total and immediately before this engagement at Wheatstone he had been off for a period of two months.
[18] Mr Clarkin’s contract of employment contained a number of provisions that committed him to compliance with Wheatstone policies and procedures.
[19] The offer of employment dated 27 January 2016 signed as having been read and understood by Mr Clarkin on 2 February 2016 includes:
“F. Compliance with project policies
You agree to comply with any applicable policies and procedures (including Project specific policies and procedures) (together, “Policies”), as varied from time to time. This includes Policies concerning performance or conduct during the work cycle (whether at the workplace, accommodation village or in the community, and whether during the performance of work or outside of working hours).
Such Policies operate independently of this letter and are not incorporated into this letter. You agree that such Policies constitute reasonable and lawful directions and instructions by the Company. You agree that the Policies are for the Company to manage the conduct of its business, and that the Company itself is not bound to abide by the Policies.
Policies setting expected standards of behaviour and conduct include, but are not limited to:
(a) Project Work Rules;
(b) Employee Code of Conduct;
(c) Village Rules; and
(d) Community Code of Conduct.
Each of these policies are provided to you at the same time as this letter of offer with the exception of Village rules which you will be required to sign upon your mobilization to the Project.
Whilst these policies, work rules and codes of conduct are not a term of this contract, a breach may result in disciplinary action which could include termination of your employment.”
[20] The letter of offer of employment says it conditional upon,
“Your acceptance of the conditions set out in this Letter of Offer;
…
Your acceptance, as demonstrated by your signature, of the Project policies including but not limited to: Project Work Rules, Employee Code of Conduct and Community interface code of conduct documents attached to this Letter of Offer.”
[21] In addition on 2 February 2016 Mr Clarkin signed an acknowledgement and acceptance of the Employee Code of Conduct (Code of Conduct) as part of his contract. This included the following:
“I understand that those acts and omissions listed at clauses 17.1 and 17.2 of this policy as being examples of misconduct and serious misconduct (respectively) are not exhaustive lists and acts and omissions by me may constitute misconduct or serious misconduct despite those acts or omissions not being listed at clauses 17.1 and 17.2 of the policy. Further, I understand that those lists at 17.1 and 17.2 may be added to or amended at any time.
I further understand that if I breach this Employee Code of Conduct it may result in the withdrawal of entitlement to accommodation and/or jeopardize my continued employment on the WHEATSTONE Project.”
[22] The Code of Conduct applies to a worker’s behaviour when at the Wheatstone camp, when travelling to and from work, and when in the local community of Onslow.
[23] Clause 3.0 of the Code of Conduct states it applies to behaviour amongst other things “… in the local community.”
[24] Clause 4.0 of the Code of Conduct states:
“Bechtel strives to have a positive impact on local communities that are adjacent to projects in which Bechtel is involved.
Bechtel has a legitimate interest in ensuring that it is seen by the local community and potential clients as an employer that encourages responsible behaviour and makes a positive contribution to the local community. This reputation impacts on Bechtel's ability to recruit and retain high quality staff and on Bechtel's ability to successfully tender for and be awarded projects in the future.
Behaviour in the local community that adversely affects Bechtel’s reputation will not be tolerated and, where proven, may result in the termination of your employment.
Similarly, Chevron is committed to establishing and maintaining positive relations with local communities. Accordingly, Chevron requires and expects responsible employee behaviour relevant to the local communities in the project site area.”
[25] Clause 19.0 of the Code of Conduct further provides that:
“Conformity with normal accepted standards of community behaviour and this Employee Code of Conduct is expected in the village and the local community for the benefit and wellbeing of all residents.”
[26] Clause 19.1 of the Code of Conduct goes on to provide examples of “Misconduct” and 19.2 provides examples of “Serious Misconduct”.
[27] Clause 19.1 says that behaviour that constitutes misconduct may result in disciplinary action, and that repeat or multiple violations may result in termination of employment.
[28] Relevantly the examples of what behaviour constitute misconduct includes:
“Drunken or noisy behaviour” and
“Causing a nuisance to others, or causing a disturbance” and
“Breaches of this Employee Code of Conduct ”.
[29] Clause 19.2 says that behaviour which constitutes serious misconduct may result in termination of employment without notice.
[30] Relevantly the examples of what behaviour constitute serious misconduct includes:
“Fighting, and/or offensive, intimidating or violent behaviour in any form (either initiating and/or in response to actions of another)”
and
“Vandalism, wilful damage, misuse/abuse or interference to company and/or personal property;”
[31] Separately the Community Interface Code of Conduct (Community Code) is also a condition of employment on Wheatstone.
[32] The Community Code at clause 2.0 reinforces Bechtel’s interests in imposing disciplinary standards to ensure responsible behaviour in the local community and the extent to which a breach of those standards has the potential to damage Bechtel’s reputation.
[33] Clause 2.1 of the Community Code requires employees exhibit responsible behaviour in the local community and uphold the reputation of Wheatstone and states unacceptable conduct in the community will not be tolerated and will be treated as misconduct or serious misconduct.
[34] With some minor variations in the wording the same examples of misconduct and serious misconduct found in the Code of Conduct are set out in clause 2.2 and 2.3 respectively of the Community Code.
[35] Clause 2.2 says that engaging in misconduct may result in disciplinary action and repeated or multiple violations may result in termination whereas for serious misconduct the disciplinary action may be termination of employment without notice.
[36] Mr Clarkin had also accepted the Project Work Rules (Project Rules) which again drew attention to the requirement that his behaviour in the community not be injurious to the reputation of Bechtel and reinforcing again the disciplinary consequences for behaviour that would constitute misconduct or serious misconduct.
[37] Mr Clarkin in his evidence acknowledged his obligations under these Codes and Rules and acknowledged the importance of maintaining the reputation of Bechtel in the local community. He is aware of the small size of the Onslow community and appreciated the disparity in size between Onslow and the Wheatstone workforce. He readily conceded there was a need to regulate conduct within the Onslow community of Wheatstone employees. He readily acknowledged he was familiar with the policies of Bechtel and completely understood his obligations under the Community Code. 1
[38] Ms Horsey is employed by Bechtel and is also working at Wheatstone. Mr Clarkin and Ms Horsey have been in a long-term relationship for over two and a half years.
[39] On Saturday, 10 September 2016 Mr Clarkin and Ms Horsey checked into the Onslow Sun Chalets. They have previously stayed at the Sun Chalets and on one prior occasion another guest at the Sun Chalets commented about Mr Clarkin and Ms Horsey being noisy.
[40] Ms Parker the Manager of the Sun Chalets registered Mr Clarkin and Ms Horsey and recognising they were Wheatstone employees required them to specify which company they were from and provide their Wheatstone ID numbers. The Sun Chalets already had Mr Clarkin’s Wheatstone ID on file as a previous guest. Ms Horsey provided her Wheatstone ID. The Wheatstone ID’s show that both Mr Clarkin and Ms Horsey as employees of Bechtel.
[41] Both Mr Clarkin and Ms Horsey arrived at the Sun Chalets in their Bechtel work uniforms and were readily identifiable as Bechtel employees. 2
[42] The guest registration also required Mr Clarkin to acknowledge that they were liable for any property damage.
[43] Whilst registering the couple Ms Parker said to Mr Clarkin words to the effect of “Have fun, but don’t cause trouble.”
[44] Ms Parker told Mr Clarkin that she now has to report everything in particular noise. She stressed this because a woman who lives opposite the Sun Chalets had made several complaints to her about the noise and had also apparently complained to Chevron’s Community Relations Team.
[45] Mr Clarkin acknowledged Ms Parker’s caution by responding that it was not worth losing your job over. 3
[46] Mr Clarkin and Ms Horsey were given room number 13 which is in a block of four rooms which are side-by-side. Room 13 shares a common wall with room 12 which is on one side and also shares a common wall with room 14 on the other side.
[47] That night the rooms either side of Mr Clarkin and Ms Horsey’s room were occupied by other guests being Mr Robinson, who was in room 12 and Mrs Caughey and her husband who was in room 14.
[48] Mr Clarkin and Ms Horsey were staying in Onslow with a group of fellow employees to celebrate a mutual friend’s birthday. Their friends were also staying at the Sun Chalets. They had a two room chalet which was separated from the block of rooms where Mr Clarkin and Ms Horsey were staying but only a short distance away.
[49] Prior to checking in Mr Clarkin had gone to the local bottleshop and purchased a carton of mid-strength beer and some food and snacks.
[50] Around 6.00 p.m. Mr Clarkin and Ms Horsey went to their friends’ chalet and watched football during which he drank approximately four mid-strength beers and had a couple of shots of spirits. After the football had finished the group went to the hotel in town where Mr Clarkin drank a further two or three mid-strength beers.
[51] Mr Clarkin and Ms Horsey returned to the Sun Chalets around 11.00 p.m. initially returning to their friends’ room.
[52] Mr Clarkin’s witness statement says that around 11.30 p.m. he felt a bit nauseous and returned to his room. He was preparing to take a shower when Ms Horsey came in to their room around 11.45 p.m. Mr Clarkin and Ms Horsey argued and Mr Clarkin says he raised his voice and probably swore at Ms Horsey but denies he was yelling at the top of his voice. His witness statement says that after no more than two minutes of arguing their disagreement ended.
[53] Ms Horsey then left the room and Mr Clarkin proceeded to have a shower however as he entered the shower he slipped, fell and pulled the shower curtain down which ripped. As he fell his shoulder or elbow hit the shower screen which then cracked. Mr Clarkin’s statement says that he then lashed out at the shower screen causing further damage to it.
[54] I note that when interviewed by Bechtel on 12 September 2016 Mr Clarkin said that he had had a lot to drink and said that the arguments with Ms Horsey lasted about 30 seconds.
[55] Under cross-examination Mr Clarkin said that the majority of the verbal exchange with Ms Horsey during their argument was from him. Mr Clarkin insisted that the argument lasted for a very short period of time but agreed it could have been as much as a minute or two.
[56] Mr Clarkin acknowledges that Bechtel was entitled to view his behaviour as a breach of its policies and deal with him accordingly. 4
[57] Ms Horsey’s witness statement says that the argument with Mr Clarkin in their room involved raised voices and some swearing and lasted less than a minute.
[58] Under cross-examination Ms Horsey’s evidence was that the argument would have lasted for less than five minutes but believed it was “…all of two minutes...”. 5 Her evidence was that during their argument her voice was not raised and she was not yelling but Mr Clarkin’s voice was raised.6
[59] Mr Robinson is the northwest Organiser for the Electrical Trade Union. Mr Robinson was a regular guest at the Sun Chalets and stayed overnight on 10 September 2016. Mr Robinson was staying in the room next to Mr Clarkin and Ms Horsey’s room. His evidence was that he fell asleep around 10.00 p.m. but was woken up by an argument between a man and a woman in the adjoining room. He estimated that the argument was between five minutes and 15 minutes long. 7
[60] His evidence was that next morning when checking out he did mention to Ms Parker that there had been a disturbance from Mr Clarkin’s room. He does not recall telling her that she might want to check for damage or that she might want to talk to the other guests next door and denies saying that he was a bit worried about the girl in the room next door and denies saying that he won’t come back to the resort on weekends again.
[61] This is contrary to the evidence of Ms Parker that when he was checking out he said there was a lot of noise coming from the room next door and she might want to check because there might be some damage and that he was worried for the girl. Ms Parker’s evidence was that he said he will make sure he doesn’t stay the Sun Chalets again on the weekend and she might want to talk to the other guests in the room next door.
[62] Mr Robinson agrees some days after the incident he had a conversation with Mr Dodgson. Mr Robinson denies conveying to Mr Dodgson that in reference to the disturbance at the Sun Chalets that he had been concerned for the well-being of the female involved in the argument and denies ever having had a grave concern for the female in the adjoining room.
[63] This is contrary to the evidence of Mr Dodgson that he had a conversation with Mr Robinson a few days after he had stayed at the Sun Chalets and he in a fairly animated manner told Mr Dodgson there had been a lot of noise in the room next to him and described a very long, loud and aggressive argument with the man dominating the verbal exchanges. Mr Dodgson’s impression was that Mr Robinson had become concerned about the well-being of the woman in the adjoining room and recalls Mr Robinson telling him that at one point he left his room to see what was going on or to see whether he could help the woman. Mr Robinson told Mr Dodgson that he was thinking about rescheduling his visits to avoid staying overnight in the Sun Chalets on weekends.
[64] I have considered the conflict in the evidence of Mr Robinson and that of both Ms Parker and Mr Dodgson as to their respective conversations with him. It is apparent to me that Mr Robinson in his evidence is downplaying the seriousness of the disturbance caused by Mr Clarkin and Ms Horsey by now either denying or not remembering what he subsequently told Ms Parker and Mr Dodgson about what he had heard that night and the concerns he had for Ms Horsey.
[65] Consequently I prefer the evidence of both Ms Parker and Mr Dodgson regarding their respective conversations with Mr Robinson. I find that what Mr Robinson conveyed in his conversations with Ms Parker and Mr Dodgson was that he had heard an argument between Mr Clarkin and Ms Horsey which was long, loud and aggressive and had caused him to be concerned for Ms Horsey’s well-being and to believe damage had been caused to the room.
[66] Mr Difford was one of the employees staying in the two bedroom chalet where Mr Clarkin and Ms Horsey had watched football on television. Mr Difford’s witness statement says that Mr Clarkin left the two bedroom chalet sometime between 11.00 p.m. and 12 midnight. His statement says that Ms Horsey went to check on Mr Clarkin but was gone for no more than five minutes. Under cross-examination however Mr Difford said she was gone for 15 minutes maximum, considerably longer than his witness statement stated. Mr Difford acknowledged he had had a fair amount to drink by that time of night. There is an obvious discrepancy between his witness statement and his evidence at the hearing as to how long Ms Horsey was away from the group and assumedly back at the room arguing with Mr Clarkin.
[67] Mrs Caughey, with her husband, was also a guest at the Sun Chalets on the night of 10 September 2016. Mr and Mrs Caughey are in their eighties. They were staying in room 14 immediately next to the room occupied by Mr Clarkin and Ms Horsey.
[68] Mrs Caughey’s statement was that she and her husband were woken by a very loud banging on the door of their room and a man with a big voice shouting, although she couldn’t hear what he was saying. She checked the clock on the bedside table which showed it was 11.00 p.m.
[69] The banging on the door was very loud and she thought the door was going to give way. Her husband said loudly through the door that the person should go away or they would call the police. However the person kept banging on the door and yelling and it was very loud and aggressive.
[70] Mrs Caughey did not see who it was banging on the door because the curtains next to the door were drawn and she didn’t want to look out through the curtains or open the door to see who it was. Mrs Caughey said she was petrified, felt in danger and was fearful they would not be able to defend themselves if the door gave way. The banging on the door went on for a minute or two.
[71] Mrs Caughey found her phone and was about to call 000 but by this stage the banging had stopped and it sounded like the person had moved away from the outside of their room. Mrs Caughey then heard further banging on another door possibly the door of the room next to theirs.
[72] Mrs Caughey in her statement says it then sounded as if the male person with the big voice had entered the room next to theirs. She could very clearly hear banging and shouting coming through the walls in the room next door; Mr Clarkin’s room. She could hear two voices one was the person she had heard yelling outside their room and the other voice she hadn’t heard before. She could not remember if the second voice was a man or a woman. The second voice seemed to be overtaken by the first man’s voice and was not as loud. The two people were arguing with each other and the argument was loud and aggressive.
[73] Mrs Caughey says that she got the impression that things were being thrown around and bashed in the room because she could hear types of thuds that sounded like one object hitting something else.
[74] Mrs Caughey’s evidence was that the yelling and banging continued for what seemed like ages and although her evidence was she could not remember how long it could have been more than 30 minutes. She said it felt like it just went on and on and on.
[75] Her evidence was that there is no way the disturbance lasted for only a minute or so.
[76] Under cross-examination Mrs Caughey confirmed that room 14, which she was in, was the end room of the block of four rooms.
[77] Whilst agreeing under cross-examination that she did not know how long the argument actually went for Mrs Caughey’s evidence was that, “It went for a damn long time. I can tell you that.”
[78] I accept the evidence of Mrs Caughey in full. Considering this evidence I do not take her evidence as proving that Mr Clarkin was the person outside her room banging on the door. The identity of the person who was banging on Mrs Caughey’s door on the evidence before the Commission is unknown.
[79] Considering all the relevant witnesses there is a range of evidence before the Commission as to how long Mr Clarkin and Ms Horsey argued for.
[80] Mr Difford’s evidence that Ms Horsey was away from the two bedroom chalet varied from five minutes to 15 minutes maximum.
[81] Mr Clarkin at different times has said the argument lasted no more than two minutes, and said it lasted 30 seconds and finally said it lasted a minute or two.
[82] Ms Horsey said the argument lasted for less than a minute, or all of two minutes or less than five minutes.
[83] Mr Robinson said the argument lasted between five and 15 minutes.
[84] Mrs Caughey was uncertain by said the argument could have lasted more than 30 minutes.
[85] Considering the large difference between the time estimates of Mr Clarkin and Ms Horsey compared to that of Mr Robinson and Mrs Caughey my conclusion is that both Mr Clarkin and Ms Horsey, given their individual and joint self-interest, have deliberately underestimated how long their argument lasted in order to portray the disturbance caused by their argument as shorter than it truly was. I also believe that Mr Robinson, as a union Official recognising Mr Clarkin was dismissed because of this disturbance, has also downplayed the length of time Mr Clarkin and Ms Horsey argued. My conclusion is that the argument between Mr Clarkin and Ms Horsey lasted for a period of time somewhere between the upper estimate of Mr Robinson and the upper estimate of Mrs Caughey. I find that the argument between Mr Clarkin and Ms Horsey in their room lasted for between 15 and 30 minutes.
[86] Consequently I find that Mr Clarkin with Ms Horsey caused a disturbance which woke three guests sleeping in two adjacent rooms. I find that this disturbance lasted for between 15 and 30 minutes. Their argument over this time was loud and aggressive and both their voices could be heard and this caused guests in adjacent rooms to be alarmed and to become concerned. I accept Mr Clarkin’s voice was louder than Ms Horsey’s.
[87] With respect to the damage to the shower screen the unspoken implication is that this occurred during or perhaps as a consequence of the argument between Mr Clarkin and Ms Horsey and was not the result of Mr Clarkin slipping. If this was the case this would indicate that the argument was more serious than either have admitted. There is however only Mr Clarkin’s evidence as to how the shower screen was damaged. Ms Horsey’s evidence is this occurred after she had left Mr Clarkin alone in the room. Consequently there is no basis for the Commission to conclude that the shower screen was damaged other than as Mr Clarkin said it was. I find that the shower screen was damaged as Mr Clarkin slipped and fell and was further damage when he lashed out in frustration at what had occurred.
[88] On the morning of 11 September 2016 Ms Parker became aware there had been a disturbance in Mr Clarkin’s room having spoken to Mr Robinson. Subsequently there was discussion between Ms Parker and Mr Clarkin where Mr Clarkin advised they had broken the shower screen. Mr Clarkin subsequently paid for the damage to the screen and the loss of income for the following night for the room.
[89] Ms Parker then advised the Chevron Community Relations Team of the events in the form of an emailed complaint. This email also expresses frustration with the behaviour of Wheatstone workers and states that Ms Parker is becoming impatient with the impact this has on other guests. Ms Parker explains that they are getting more and more Wheatstone employees coming in and being very loud and disruptive due to the large amount of alcohol they are consuming.
[90] Bechtel having been made aware of this compliant commenced an investigation into what occurred.
[91] Statements were taken from Mr Clarkin and Ms Horsey on 12 September and interviews were conducted with Mr Clarkin and with Ms Horsey on 13 September 2016. Ms Parker was also interviewed.
[92] Mr Clarkin was stood down from work pending further investigation.
[93] On 14 September 2016 Mr Clarkin attended a further meeting where he was asked to show cause why his employment should not be terminated. Ms Horsey attended the meeting as Mr Clarkin support person. It was put to Mr Clarkin that the argument went for an hour which he refuted and maintained it was a 30 second argument. Mr Clarkin argued that he was a good employee and he did not feel that termination was a suitable punishment.
[94] Bechtel considered what Mr Clarkin had put to the company in the show cause meeting and decided that Mr Clarkin’s employment should be terminated.
[95] The following day on 15 September 2016 Mr Clarkin was advised at a meeting that his employment was terminated and provided a termination of employment letter which specified that the noise disturbance as well as the wilful property damage at the Sun Chalets constituted serious misconduct as set out in the Community Code. Mr Clarkin was terminated with immediate effect.
[96] With respect to Ms Horsey, Mr Leary says he and the investigators concluded she was more of a victim rather than an instigator of the disturbance in that she did not cause the damage to the shower screen and was not the person doing most of the yelling or shouting. 8 Mr Vanous accepted this conclusion. Consequently Ms Horsey received only a final written warning.9
[97] Mr Leary gave evidence regarding other employees removed from Wheatstone. I accept his evidence that when a worker has caused a serious public disturbance or committed serious misconduct in the town of Onslow, it has resulted in the termination of that worker’s employment and/or removal of that worker from Wheatstone.
[98] There have been a total of 128 workers removed from Wheatstone for breaching the Community Code, including 29 workers in the past 12 months.
[99] In relation to those 29 workers removed from Wheastone in the past 12 months:
(a) 15 were removed due to violence, threatened violence or aggressive behaviour;
(b) Four were removed due to unacceptable behaviour resulting in ejection from a licenced premises;
(c) Three were removed due to harassment;
(d) Three were removed due to property damage;
(e) Two were removed due to theft; and
(f) Two were removed due to drunk and disorderly conduct in public.
[100] There are at least six instances of workers either leaving Wheatstone or being removed from Wheatstone due to them causing property damage whilst staying in Onslow:
(a) An employee in 2016 entered the wrong room in the Onslow Beach Resort, and punched and damaged the walls. The worker was also aggressive towards staff who confronted him, and police were called to the incident, who arrested the worker.
(b) An employee in 2016 damaged a fence while driving in the community on a non-work day, and verbally abused a member of the community who had witnessed the incident. The damage to the fence was found to be superficial, and the police did not pursue any charges at the time. The driver and both passengers (who were also Wheatstone workers) were removed from Wheatstone for breaching the Community Code.
(c) Two employees in 2015 were removed from Wheatstone after exhibiting drunken behaviour and damaging a private fence at an Onslow community event known as the “Passion of Pilbara Fair”.
(d) An employee in 2015 was investigated in respect of an incident at the Onslow Sun Chalets, whereby the two rooms that the worker had booked had vomit and urine in the bedding, smashed glasses and damage to two fridges. The worker resigned.
(e) An employee in 2013 was removed from Wheatstone for causing damage to a recreation room at Discovery Park.
(f) Four employees in 2012 were investigated in respect of an incident at the Onslow Sun Chalets, whereby a room had urine in the bedding, a smashed dining table and blood throughout the floor of the room. These workers were removed from Wheatstone.
[101] Mr Leary’s evidence was that these instances above all involved serious misconduct.
[102] His evidence was there have been instances where an employee has engaged in misconduct in Onslow and consequently they were disciplined but this did not involve termination of their employment.
[103] On one occasion it was agreed between the employee and the employer that they would not seek permission to travel to Onslow in future.
[104] In other instances there have been verbal or written warnings issued as appropriate.
[105] Mr Vanous confirmed that there is the opportunity to deny employees permission to go in to Onslow for the night as a disciplinary measure.
[106] Bechtel did not speak to Mr and Mrs Caughey as part of their investigation.
[107] During the investigation coincidently Mr Dodgson recounted to Mr Leary the discussion Mr Robinson had with him about his experience of the disturbance at the Sun Chalets.
[108] Mr Clarkin was summarily dismissed on 15 September 2016 as a result of alleged serious misconduct. The alleged serious misconduct occurred during the evening of 10 September 2016 in a private motel room at the Sun Chalets in Onslow.
[109] Mr Clarkin was not at work, or rostered for work, when the alleged serious misconduct occurred. The Sun Chalets are private accommodation in Onslow which was booked and paid for by Mr Clarkin. The Respondent played no part in organising or authorising the activity.
[110] The alleged serious misconduct occurred:
[111] The events constituting the alleged serious misconduct are that Mr Clarkin and Ms Horsey had a short domestic dispute in the motel room they had booked. Following the dispute the shower screen in the couple’s room was damaged by Mr Clarkin.
[112] The damage to the shower screen, and loss of utility for the Sun Chalets, was voluntarily reimbursed by Mr Clarkin on 11 September 2016.
[113] It is submitted these events form the entire basis for the summary dismissal of Mr Clarkin.
[114] Bechtel claim that the alleged serious misconduct constituted serious misconduct for the purposes of the Community Code. This is the sole reason given for the termination of Mr Clarkin’s employment.
[115] The Community Code is not a term of Mr Clarkin’s contract of employment.
[116] An employee’s behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment. 10
[117] The Applicant submits it is established authority that a failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(c) the policy, or a direction to comply with the policy, is unreasonable. 11
[118] The Community Code did not relate to the subject matter of Mr Clarkin’s employment nor did it relate to matters affecting Mr Clarkin’s work. Mr Clarkin was employed as a Rigger on Wheatstone; the Community Code professed to regulate standards of behaviour outside of the workplace.
[119] The Applicant submits the regulation of behaviour outside of the workplace, and in the case of the Community Code potentially many hundreds, possibly thousands, of kilometres outside of the workplace is not reasonable.
[120] The application of a policy should not enable Bechtel to interfere in, or regulate, Mr Clarkin’s private life.
[121] The Community Code was not a term of Mr Clarkin’s contract of employment, it does not relate to the subject matter of the employment or matters affecting the work of the employee, and it unreasonably encroaches on Mr Clarkin’s private life.
[122] Consequently it is submitted the Commission should find that it does not provide a valid reason for the summary dismissal.
[123] If it is found that the Community Code was applicable to Mr Clarkin’s employment it is submitted the alleged serious misconduct does not constitute serious misconduct for the purposes of the Community Code.
[124] Pursuant to the Community Code, “drunken behaviour in public that causes a disturbance or a nuisance to others”, does not constitute serious misconduct but rather constitutes misconduct.
[125] Pursuant to the Community Code, misconduct does not warrant summary dismissal.
[126] In any event, it is submitted on behalf of the Applicant the alleged misconduct was neither drunken nor was it in public and was therefore not misconduct, serious or otherwise, for the purposes of the Community Code.
[127] “Causing wilful damage to community facilities and amenities”, does constitute serious misconduct for the purposes of the Community Code.
[128] It is submitted the damage caused by Mr Clarkin was neither wilful nor was it damage to a community facility or amenity. It was therefore not serious misconduct for the purposes of the Community Code.
[129] If the Community Code does apply to Mr Clarkin’s employment the alleged serious misconduct would not constitute serious misconduct for the purposes of the Community Code. It therefore does not provide a valid reason for the summary dismissal.
[130] It has long been held that it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees. 12 There are only limited circumstances in which those exceptional circumstances will arise. Rose v Telstra Corporation Limited (Rose v Telstra) is long established authority on this point. It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
[131] In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct. 13
[132] Objectively, it cannot be said that a brief domestic dispute in a private setting enlivens any of the circumstances envisaged in Rose v Telstra.
[133] The alleged serious misconduct does not reach a standard of gravity or importance that it could be seen as a rejection of the employment contract by Mr Clarkin.
[134] In these circumstances it is submitted Bechtel had no right to interfere or attempt to regulate Mr Clarkin’s private life.
[135] The Applicant submits other disciplinary procedures short of dismissal were available to Bechtel and that summary dismissal was a disproportionate response to the alleged serious misconduct.
[136] Wheatstone was a high paying job. The likelihood of Mr Clarkin being able to secure employment on similar terms is unlikely. The dismissal will have a severe detrimental effect on Mr Clarkin’s economic situation.
[137] Mr Clarkin had a clean work record with Bechtel.
[138] There was no valid reason for the termination relating to Mr Clarkin’s conduct.
[139] Termination for alleged serious misconduct in breach of the Community Code was not a valid reason because it is submitted the Community Code was not a term of Mr Clarkin’s contract of employment and, in the circumstances, it could not have provided a foundation for termination; and Mr Clarkin’s alleged serious misconduct did not breach the Community Code.
[140] Regardless of the Community Code, Bechtel had no right to extend their reach to conduct occurring outside of the workplace, in a private setting, and in Mr Clarkin’s own time.
[141] For all of the above reasons the Applicant submits the dismissal was harsh, unjust and unreasonable.
[142] There is obviously a significant factual dispute regarding the duration and intensity of the altercation. It is ultimately submitted by the Respondent that the account of Mr Clarkin and Ms Horsey cannot be reconciled with the evidence of Mrs Caughey and that Mrs Caughey’s version should be preferred.
[143] In any event, it is submitted that Mr Clarkin’s own admitted conduct is manifestly sufficient to bring it broadly within the ambit of behaviour described in the Code of Conduct, the Community Code and the Project Rules. Ignoring for a moment the issue of the connection with the workplace, it is now trite that a valid reason is a reason that is sound, defensible or well founded.
[144] Where the reason for termination of employment relates to an employee’s conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.
[145] In the circumstances, it is submitted that the termination of Mr Clarkin’s employment was for a valid reason. On the Respondent’s account of the incident, Mr Clarkin’s misconduct was manifestly serious and in clear breach of his contract of employment and the various policies that he had expressly acknowledged.
[146] In relation to the question whether or not there is a sufficient connection between Mr Clarkin’s misconduct and his employment, regard must first be had to all the facts and circumstances relevant to the incident. The relevant facts are the following:
(a) As a matter of contract, Mr Clarkin committed to comply with the Code of Conduct, the Community Code and the Project Rules.
(b) The Respondent had a legitimate interest in regulating employee behaviour in Onslow and whilst those employees were not on duty.
(c) Mr Clarkin was acutely aware of the Respondent’s stance in relation to off-duty misconduct occurring in Onslow and, in his various acknowledgements, he effectively accepted the Respondent’s interest in community related misconduct.
[147] There are a number of important legal principles or considerations which both inform and properly contextualise the criteria outlined by Ross VP (as he then was) in Rose v Telstra. These principles or considerations are important because they qualify and give context to the criteria in Rose v Telstra:
(a) in considering the question of a “sufficient connection”, the Commission is bound to reflect upon all relevant circumstances. It is not appropriate to simply “adopt a formula or set of criteria by the application of which conduct can readily be classified as private or work related”;
(b) the requirements (or criteria) set out in Rose v Telstra do not in truth import a new test. The test for the fairness of any dismissal remains the test set out in the Act;
(c) when considering whether or not the conduct complained of “damages the employer’s interests” - as stated in Rose v Telstra - there does not need to be evidence of actual damage to the employer but rather only a risk of damage; and
(d) where the misconduct complained about is very serious, there need be a less direct relationship between the occurrence of the misconduct and the employment relationship. In other words, the more serious the misconduct the more readily will the connection be inferred.
[148] The fact that Mr Clarkin was off-duty and off-site is, in the light of the Code of Conduct, Community Code and Project Rules, largely irrelevant. Even absent the contractual policy connection, however, it is submitted that the very close association between Wheatstone and the community gave rise, in itself, to a sufficient basis to warrant Bechtel taking disciplinary steps.
[149] It is submitted that there was plainly a valid reason for the termination of Mr Clarkin’s employment. It is submitted that there was also a manifestly clear connection between his misconduct and his employment relationship with Bechtel, such as to justify his dismissal.
[150] The evidence establishes that the Respondent appropriately notified Mr Clarkin of the reasons why the company was considering terminating his employment and Mr Clarkin was given an opportunity to respond to those reasons.
[151] The Respondent then communicated the valid reasons for the termination of Mr Clarkin’s employment in the termination letter dated 15 September 2016.
[152] Having regard to the application, it is not at all clear whether Mr Clarkin in fact asserts procedural unfairness and, if so, on what factual basis. It is however submitted that the facts support the conclusion that Mr Clarkin was not in any way inhibited (both during the course of the investigation and the show cause meeting) in his ability to address the substantive reasons why the Respondent ultimately terminated his employment.
[153] It is submitted that Mr Clarkin was afforded procedural fairness. Mr Clarkin was provided with an opportunity to respond to the allegations and the reasons given for the termination of his employment.
[154] At all relevant times Mr Clarkin engaged Ms Horsey as his support person.
[155] The dismissal relates to Mr Clarkin’s conduct.
[156] It is submitted that the Respondent conducted the disciplinary processes to a standard that would be expected of an organisation of the size of the Respondent.
[157] It is important to emphasise that to date Mr Clarkin has displayed little evidence of contrition for his actions. He also appears to lack any appreciation of the seriousness of his conduct.
[158] It is submitted that Mr Clarkin’s conduct in agreeing to pay for the damage he caused is not indicative of remorse but an ordinary consequence of Mr Clarkin’s misconduct. To the extent that it may be established that Mr Clarkin and Ms Horsey conspired to present a false account or that they jointly down played the severity of the incident, these are matters that should weigh very heavily against any finding of unfairness.
[159] If on the contrary the Commission upholds the application the Respondent submits the actions of Mr Clarkin have destroyed the Respondent’s trust and confidence in him and so reinstatement is not appropriate.
[160] Section 387 of the Act sets out those matters that the Commission must have regard for when considering whether or not a dismissal, in this case of Mr Clarkin, was harsh unjust or unreasonable.
“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.”
[161] Mr Clarkin had an argument with his partner in their room at the Onslow Sun Chalets on the night of 10 September 2016. This argument woke other guests in the Sun Chalets and lasted between 15 and 30 minutes. Mr Clarkin was arguing in a loud and aggressive manner. The argument disturbed and alarmed the guests in adjacent rooms.
[162] Mr Clarkin’s contract of employment expressly required him to comply with Bechtel’s policies and procedures including specific project policies and procedures. His contract included an acceptance by him that such policies constitute reasonable and lawful directions by Bechtel. Relevantly these policies included the Code of Conduct, the Community Code and the Project Rules.
[163] Wheatstone has over 7000 employees living on-site and working only 12 km from the town of Onslow which by contrast has a population of only 500. Bechtel’s Codes and Rules in recognition of these unusual circumstances include requirements for its employees, including Mr Clarkin, to behave in an acceptable manner outside of working hours whilst in Onslow.
[164] Bechtel recognises it has a responsibility to ensure that its operations and its employees do not unnecessarily cause adverse impacts on the local community and in that sense is recognising it operates under some form of implicit “social license”. To that extent I accept that the relationship between Bechtel and the local community is a matter relevant to the employment of its employees at Wheatstone. Consequently a Bechtel policy that seeks to prevent poor behaviour by its employees in the local community which could adversely affect Bechtel’s reputation and relationship with the local community is a policy related to the employment of its employees.
[165] Separately I am satisfied that the content of the Codes and Rules are not unreasonable in terms of their impost on employees in the particular circumstance of Wheatstone.
[166] The Codes provide some examples of what constitutes misconduct and what constitutes serious misconduct. These examples expressly are not the limit of all behaviour that would amount to misconduct or serious misconduct. There is some difference between the wording of the Community Code and the Code of Conduct however the relative seriousness of conduct which constitutes misconduct versus serious misconduct is common.
[167] Relevant to this matter is that examples of misconduct, in the Code of Conduct include:
“Drunken or noisy behaviour” and
“Causing a nuisance to others, or causing a disturbance”
[168] Examples of serious misconduct in the Code of Conduct include:
“Vandalism, wilful damage, misuse/abuse or interference to company and/or personal property;”.
[169] I have no doubt that these examples from the Code of Conduct also align with the distinction in the Community Code between what is misconduct and what is serious misconduct.
[170] Having considered Mr Clarkin’s conduct it is clear he was involved in noisy behaviour that caused a nuisance to others or caused a disturbance. This conduct I am satisfied was misconduct.
[171] Bechtel however approached what occurred on the basis that Mr Clarkin’s behaviour was serious misconduct rather than the lesser offence of misconduct.
[172] In the termination of employment letter Bechtel referred to his behaviour as constituting:
“…Serious Misconduct as set out in the Wheatstone Community Interface Code of Conduct ; Section 2.3 Causing wilful damage to community facilities and amenities and Section 2.2 Drunken behaviour in public that causes a disturbance or a nuisance to others…”
[173] However a proper reading of the Community Code 14 shows that whilst “Causing wilful damage to community facilities and amenities” is an example of “Serious Misconduct” “Drunken behaviour in public that causes a disturbance or a nuisance to others” is not identified as serious misconduct but rather only as misconduct in clause 2.2.
[174] Notably many of these examples of serious misconduct set out in Bechtel’s Codes involve the fact that the conduct is wilful.
[175] The Concise Macquarie Dictionary defines “wilful” as follows:
“adj. 1. Willed, voluntary, or intentional: wilful murder.”
[176] Is it correct in this instance to view how Mr Clarkin damaged the shower screen as causing wilful damage? I think in fairness to Mr Clarkin that is not a reasonable characterisation of what occurred. The shower screen was damaged initially by accident and then he says he lashed out in frustration and caused further damage. This lashing out was akin to an unthinking reflex action. I do not consider Mr Clarkin caused damage to the shower screen voluntarily or intentionally. Consequently I do not accept that Mr Clarkin’s behaviour constituted serious misconduct as set out in the Community Code.
[177] I note that Ms Placanica of Bechtel correctly identified the absence of the necessary “willful” element in her email of 12 September 2016. 15
[178] In summary Mr Clarkin’s behaviour in terms of the Bechtel’s Codes constituted misconduct but did not constitute serious misconduct.
[179] The significance of this distinction is that the Community Code provides that if an employee has engaged in misconduct that person may be subjected to disciplinary action, but proven “...repeated and/or multiple violations…” of the Community Code may result in withdrawal of the employees accommodation entitlement and/or termination of employment. I infer from this that a single act of misconduct would not result in termination of employment.
[180] It is apparent from a reading of clause 2.3-Serious Misconduct that, reflecting the more serious nature of the behaviour, it is intended that a single act of serious misconduct may result in termination of employment.
[181] In the same way Bechtel seeks to hold Mr Clarkin to the terms of its Community Code so should they as the employer be held to the terms of the Community Code. Mr Clarkin’s behaviour was misconduct but was not serious misconduct. It was not a case where it can be fairly said his conduct involved repeated or multiple violations, each amounting to misconduct, which would therefore warrant termination of his employment. Applying the terms of Bechtel’s Community Code Mr Clarkin should have been subject to disciplinary action but that should not have been termination of his employment.
[182] Mr Clarkin’s behaviour on the night of 10 September 2016 was noisy, undoubtedly caused a nuisance to others and was a disturbance in the local community. Mr Clarkin’s behaviour at the Onslow Sun Chalets was misconduct as explained in Bechtel’s Codes.
[183] Mr Clarkin was obliged to comply with the requirements of Bechtel Codes but did not do so.
[184] Mr Clarkin’s conduct and his failure to comply with Bechtel’s Codes were valid reasons for his dismissal.
[185] Mr Clarkin was notified in the show cause meeting of the reason why Bechtel was considering dismissing him. At the point of dismissal he was advised of the reason he was being dismissed.
[186] Mr Clarkin was given an opportunity to respond to the reason Bechtel was considering dismissing him and did so before a final decision was made by Bechtel.
[187] Bechtel did not refuse to allow Mr Clarkin to have a support person present at discussions relating to his dismissal.
[188] Bechtel is a large employer which has dedicated Human Resource Management specialists on staff and the procedure followed in this case as would be expected reflected this.
[189] Mr Clarkin has been employed for a little less than 12 months at the time he was dismissed however this followed a short break in his employment with Bechtel and prior to this he had been employed with Bechtel for three years.
[190] Prior to these events Mr Clarkin had a clean employment record.
[191] The disturbance that caused Mr Clarkin to be terminated involved him and Ms Horsey, also a Bechtel employee. This raises the question of the differential treatment of the two employees.
[192] In Jeststar Services Pty Ltd v L Ishak 16 a Full Bench of the Commission consider differential treatment as follows:
“[13] In relation to differential treatment of employees with respect to disciplinary action, a Full Bench in Australian Postal Corporation T/A Australia Post v Nick Rushiti 22 (Australia Post) endorsed the following observations of Vice President Lawler in Sexton John v Pacific National (ACT) Pty Ltd23 (Sexton):
“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been ‘harsh, unjust or unreasonable’
…
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.” (References omitted)
[193] Ms Horsey for her part in the disturbance received a final written warning whereas Mr Clarkin was terminated. Bechtel’s explanation for this difference in disciplinary approach was the conclusion that Ms Horsey was “...more of a victim, than the instigator of the disturbance…” and that she did not damage the shower screen nor was she doing most of the yelling or shouting. 17
[194] It is notable that Bechtel’s Code of Conduct at 19.2-Serious Misconduct includes the following as an example of serious misconduct:
“Fighting, and/or offensive, intimidating or violent behaviour in any form (either initiating and/or in response to actions of another)” (Underlining added)
[195] The principle applied by Bechtel in this example is to potentially hold both participants accountable for fighting or violent behaviour regardless of whether they were the initiator or were instead responding to the actions of the other participant.
[196] Noting this approach Bechtel, even on their conclusion as to Ms Horsey’s lesser role, applied a contradictory approach to the argument between the couple. Bechtel acted to discipline the supposed instigator much more harshly than the other participant in the argument. Rather than holding both employees equally accountable Bechtel chose to apportion blame for the disturbance concluding in effect the Mr Clarkin “...started it...”.
[197] Bechtel ultimately concluded that Ms Horsey was more of a victim than the instigator. At the time the decision to terminate was made Bechtel had been told that Mr Robinson, whilst listening to the disturbance, had become concerned for the well-being of the woman in the room who was Ms Horsey. He had also said that the male voice was loud and aggressive and dominated the verbal exchanges. 18 Mr Robinson at that time was entitled to be concerned about what he was hearing. However when Bechtel were making their disciplinary decisions they knew far more than Mr Robinson did as to what had actually occurred in the room. Bechtel by then knew there was no evidence at all of any physical violence between the couple that night and so what Mr Robinson had been fearful of had not occurred.
[198] In addition Mr Clarkin and Ms Horsey had both told Bechtel the argument was not serious. There was no evidence as to what the subject matter of the argument was nor what each of them had said to the other as they argued. Ms Horsey was not suggesting at all that Mr Clarkin was solely responsible for the disturbance. Significantly her statement of 13 September 2016 says that she did not feel at all threatened or in danger and although voices were definitely raised she did not feel unsafe and that 30 minutes later they were both having another drink together. 19 There was no reason for Bechtel not to accept Ms Horsey’s statement to this effect. The mere fact Mr Clarkin’s voice may have been louder and heard more than Ms Horsey’s voice by guests in the adjoining rooms is not sufficient to demonstrate that Mr Clarkin was the instigator of the disturbance and was the aggressor nor does this demonstrate that Ms Horsey was “…more of a victim...”, as Bechtel concluded.
[199] Bechtel’s conclusion that Ms Horsey was more of a victim and not the instigator was baseless. The only difference between the two during their argument was that Mr Clarkin’s voice was louder and he was shouting more.
[200] Finally there was no reason for Bechtel not to accept Mr Clarkin’s explanation as to how the shower screen was damaged, which was essentially that it was an accident. There was nothing found in their investigations to contradict his explanation. Consequently the damage to the shower screen was not a difference which would elevate Mr Clarkin’s misconduct to a point where his termination was warranted but Ms Horsey’s misconduct did not warrant termination.
[201] Considering these matters Bechtel’s conclusion that Ms Horsey was more of a victim and Mr Clarkin was the instigator was wrong. The evidence supports the conclusion that they were each equally responsible for the disturbance that occurred. Their conduct was properly comparable. Consequently equal disciplinary action would have been expected. Bechtel’s decision instead to terminate Mr Clarkin’s employment when Ms Horsey received only a final written warning for comparable conduct was therefore harsh.
[202] Mr Clarkin during the interviews and meetings with Bechtel understated how long the argument with Ms Horsey lasted in order to downplay the seriousness of his actions and the amount of disturbance they had caused. I note though that Bechtel had assumed he had understated the length of time of the disturbance and took this into account in their decision making.
[203] Of those persons who were aware of Mr Clarkin’s conduct on the night of 10 September 2016 Ms Parker was aware that Mr Clarkin’s was an employee of Bechtel and Mr Robinson was aware he was a Wheatstone employee. This was not a case where Mr Clarkin had not been identified by anybody as being a Wheatstone employee or a Bechtel employee. Consequently his misconduct did cause damage to Bechtel’s reputation as evidenced by the frustration expressed in Ms Parker’s email of 11 September 2016.
[204] The fact that Mr Clarkin on checking out of the Sun Chalets admitted to damaging the shower screen and agreed to pay for the damage and the loss of future revenue is not in my view indicative of remorse on his part which the Commission should credit him for but rather is the natural and unavoidable consequence of booking a room and being liable for any damage done to it.
[205] In this case there was a valid reason for Mr Clarkin’s dismissal.
[206] Under Bechtel’s Codes Mr Clarkin’s behaviour constituted misconduct which entitled Bechtel to take disciplinary action against him. Because his behaviour was not repeated nor did it involve multiple violations this was not serious misconduct and so under the terms of Bechtel’s Codes his behaviour should not have resulted in his employment being terminated.
[207] Consequently the dismissal of Mr Clarkin was inconsistent with the terms of Bechtel’s Codes and to that extent it was unjust.
[208] Separate to the requirements of the Codes, summary dismissal in this case was a disciplinary action disproportionate to the gravity of Mr Clarkin’s misconduct. For this reason the dismissal was harsh despite their having been a valid reason for dismissal.
[209] Finally the decision to terminate the employment of Mr Clarkin whilst issuing Ms Horsey only a final written warning involves an inconsistent application of disciplinary action for comparable misconduct which seperately demonstrates the dismissal was harsh.
[210] The dismissal of Mr Clarkin was both harsh and unjust.
[211] Consequently Mr Clarkin has been unfairly dismissed.
[212] Section 390 of the Act provides that the Commission may order a remedy for unfair dismissal where a person has been unfairly dismissed and is protected from unfair dismissal. That is the case for Mr Clarkin.
[213] Bechtel submit that in all the circumstances here they have lost trust and confidence in Mr Clarkin and so reinstatement is not appropriate.
[214] A Full Bench of the Commission considered the issue of a loss of trust and confidence in the decision of Thinh Nguyen (C2014/5360) Thanh Le (C2014/5361) v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter 20 as follows:
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” (References omitted)
[215] Mr Clarkin’s misconduct exclusively concerned behaviour outside of work which of its character does not pose any impediment to him carrying out his duties in the workplace. I do not accept that there has been a loss of trust and confidence between Bechtel and Mr Clarkin that would prevent his reinstatement. The only evidence that this is the case are in reality mere assertions to that effect based in part on beliefs as to his actions which can now be seen to be not fully accurate.
[216] In this case I am satisfied that reinstatement is appropriate.
[217] My decision is that an order will be issued reappointing Mr Clarkin to the position in which he was employed immediately before his dismissal.
[218] My decision is that it is also appropriate to make an order to maintain the continuity of Mr Clarkin’s employment.
[219] The Commission is empowered under section 391(3) of the Act to also make an order where it considers it is appropriate to do so to cause the employer to pay an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
[220] In determining an amount for those purposes the Commission must take into account the amount of any remuneration earned during the period between the dismissal and the making of the order for reinstatement and the amount of any remuneration reasonably likely to be earned during the period between the making of the order for reinstatement and the actual reinstatement.
[221] The making of such an order is a discretionary matter for the Commission. 21
[222] Mr Clarkin’s annual remuneration in the recent past was approximately $236,000.
[223] At the time of this decision it is approximately 28 weeks since Mr Clarkin was dismissed.
[224] My decision is that an order should also be issued for part of the amount of the remuneration Mr Clarkin has lost. Whilst the dismissal of Mr Clarkin was unfair it would not be appropriate for him to suffer no consequence which would be the practical effect if the Commission were to now order all the remuneration he has lost be paid to him less only the amount he has earned working elsewhere since his dismissal.
[225] Given Mr Clarkin is not blameless in this matter there should be a serious consequence for his misconduct and I think it is appropriate that eight weeks remuneration be deducted from the amount the Commission will order. An amount equivalent to eight weeks work at Wheatstone will consequently be deducted from the amount of remuneration lost since the date of dismissal.
[226] It is also apparent from the subsequent submission regarding his earnings since he was dismissed that Mr Clarkin has elected to take one week of unpaid leave every five weeks in order to spend time with Ms Horsey who continues to work for Bechtel on a fly in fly out roster. Consequently he has chosen for approximately six weeks since he was dismissed not to work for personal reasons. An amount equivalent to six weeks at Wheatstone work will consequently be deducted from the amount of remuneration lost since the date of dismissal.
[227] Any remuneration earned from employment or other work since the date of dismissal up until the date of this decision shall also be deducted from the amount of remuneration lost since the date of dismissal.
[228] In summary in terms of section 391(3) of the Act my decision is that the Commission will order the Respondent to pay to Mr Clarkin an amount being the remuneration he has lost since the date of his dismissal up to a date being 21 days after the date of the order issuing minus remuneration equating to 14 weeks work at Wheatstone and minus earnings from other employment since the date of dismissal.
[229] The parties are directed to confer on the form of an order reflecting this decision and the Respondent is to provide a draft of such an order within 14 days; that order to have effect within 21 days of its date of issue.
COMMISSIONER
Appearances:
K. Sneddon and K. Wilson of the Construction, Forestry, Mining and Energy Union for the Applicant.
R. Wade of Ashurst Australia for the Respondent.
Hearing details:
2017.
Perth:
February 15 and 16.
1 Transcript at PN60 to PN79.
2 Ibid., at PN96 to PN97.
3 Ibid., at PN100 to PN102.
4 Ibid., at PN285.
5 Ibid., at PN377 and PN379.
6 Ibid., at PN399 to PN401.
7 Ibid., at PN1107.
8 Exhibit R1 at paragraph 64.
9 Exhibit R3 at paragraph 44.
10 Rose v Telstra Corporation Limited (1998) 45 AIR 3.
11 Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285 at 34.
12 The Appellant v Respondent (1999) 89 IR 407 at 416.
13 Rose v Telstra Corporation Limited (1998) 45 AIR 3.
14 Indexed bundle of Respondent’s documents at page 52.
15 Ibid., at page 26.
17 Exhibit R1 at paragraph 64.
18 Exhibit R3 at paragraph 16.
19 Indexed bundle of Respondent’s documents at page 43.
21 See [2010] FWAFB 10089 at [44] and [2010] FWA 2282 at [65].
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