[2017] FWC 31 [Note: An appeal pursuant to s.604 (C2017/458) was lodged against this decision.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Warwick Gee
v
Tasmanian Ports Corporation Pty Ltd T/A Tasports
(U2015/11920)

DEPUTY PRESIDENT WELLS

HOBART, 4 JANUARY 2017

Application for unfair dismissal remedy – whether valid reason for dismissal – labour hire – host employer – capacity – conduct – inherent requirements – no valid reason for dismissal – dismissal unfair – further evidence and submissions required as to remedy.

Introduction

[1] Mr Warwick Gee (the Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) following the termination of his casual employment by Tasmanian Ports Corporation Pty Ltd trading as TasPorts (ABN 82 114 161 938) (TasPorts). The letter of termination, dated 28 August 2015, cited an inability for Mr Gee to “perform the inherent requirements” 1 of his position as the reason for termination. The inability to perform those requirements related to Mr Gee’s loss of site access with his host employer, Grange Resources Limited (Grange), at Grange’s Port Latta site in Tasmania. TasPorts provide personnel to Grange to perform loading and shipping work at the Port Latta site under a services agreement.

[2] At the hearing of this matter, both parties sought and were granted leave to have legal counsel. Mr M Burns appeared for the applicant. Ms S Masters appeared for TasPorts.

[3] Mr Gee sought reinstatement to his former position as a casual Shiploader/Reclaimer Operator at Port Latta and compensation for lost wages, or in the alternative, appointment to a position on terms and conditions no less favourable than those upon which he had previously been employed.

Initial matters to be considered

[4] Section 396 of the Act requires I decide four matters before consideration of the merits of Mr Gee’s application. There is no dispute between the parties and, on the evidence, I am satisfied that:

Hearing

[5] The matter was heard on 16 and 17 June 2016 in Launceston and continued on 6 July 2016 in Hobart. Mr Gee 2 gave evidence on his own behalf. Ms Belinda Beltz,3 Manager Human Resources (TasPorts), Mr Ashley Ralston,4 Port Latta Marine Supervisor (TasPorts), and Mr Tim Duncombe,5 Production Superintendent (Downstream Processing) for Grange, gave evidence on behalf of TasPorts.

[6] TasPorts sought to tender a witness statement of Mr Paul Sturzaker, 6 former Senior Processing Manager for Grange. Mr Gee objected to the witness statement being tendered, on the basis that Mr Sturzaker did not make himself available for cross-examination. At the hearing I determined to accept the witness statement for consideration and to determine what weight, if any should be given to its contents. Having considered that witness statement I am satisfied that to place any weight on Mr Sturzaker’s statement without the opportunity for it to be tested in cross-examination would be prejudicial to Mr Gee. TasPorts were given ample opportunity to have Mr Sturzaker present at the hearing on 6 July 2016, and chose not to seek on order for his attendance.7 I have not had regard for the contents of Mr Sturzaker’s statement in my determination of this matter.

[7] Subsequent to closing arguments, the parties requested to make further written submissions, following a Full Bench decision of the Commission which dealt with host employment circumstances similar to those experienced by Mr Gee. This request was granted and further submissions were made by the parties on 6 and 12 September 2016.

[8] On 9 September 2016 Mr Gee’s lawyer filed supplementary submissions requesting that, pursuant to s.615A(2) of the Act, the substantive application be referred to a Full Bench. This application was opposed by TasPorts. The President issued a decision [2016] FWC 6710 on 19 September 2016, denying the Applicant’s application to refer the matter to a Full Bench.

Was the dismissal unfair?

[9] Section 387 of the Act requires a number of matters to be considered by the Commission in determining whether Mr Gee’s dismissal was harsh, unjust or unreasonable. That section provides:

387 Criteria for considering harshness etc.

[10] I now deal with each of the considerations required under s.387 of the Act.

Was there a valid reason for the dismissal (s.387(a))?

[11] An employer must have a valid reason for the dismissal of an employee, which is “sound, defensible and well founded” 8 and that reason should not be “capricious, fanciful, spiteful or prejudiced.”9

[12] In determining the existence or otherwise of a valid reason, it is not for the Commission to stand in the shoes of the employer and determine what it would do if it was the employer. 10 The matter to be determined by the Commission is whether there was a valid reason for the dismissal regarding the capacity or conduct of the employee.11

[13] In cases relating to the capacity of the employee, “an inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so.” 12

[14] TasPorts contends a ‘valid reason’ existed for Mr Gee’s dismissal; namely that he was not able to perform the inherent requirements of his position.

[15] Relevantly, the termination letter, dated 28 August 2015 provides: 13

[16] The revocation of Mr Gee’s access to all Grange sites was affected following an ‘investigation’ by Mr Duncombe which commenced on 14 August 2015 14 (the Grange investigation). Mr Duncombe reported the outcome of this investigation to Mr Sturzaker. There is no dispute between the parties that whilst TasPorts were aware of Mr Duncombe’s investigation, Mr Gee was not advised of the investigation and was therefore not afforded an opportunity to respond to any of the allegations made against him and TasPorts did not make representations on behalf of Mr Gee.

[17] Mr Gee was employed pursuant to the Port Latta Loading Crews and Lines Boat Crew Agreement 201315 Mr Gee’s work at Port Latta involved him operating large iron ore pellet loading machinery, and line crew duties which included tying up vessels for loading and general maintenance on equipment within the Port Latta site. Mr Gee’s duties largely involved him working “off-shore”16 loading iron ore pellets onto ships. Mr Gee had also carried out casual work for Skilled Group undertaking shut down and maintenance work mostly at Port Latta.17 Mr Gee also holds a carpenter-joiner qualification.18

[18] The evidence discloses that on 13 August 2015, an altercation occurred between Mr Gee and Mr Wayne Dillon, his shift supervisor, as to whether he worked off-shore (shiploading at the end of the loading jetty) or in-shore (on a reclaimer, which is a loader machine used to load iron pellets onto the jetty conveyor belt, at the start of the loading jetty). There are two shiploaders and two reclaimers at Port Latta and they are operated by a mix of two TasPorts employees and two Grange employees. For the most part, the two TasPorts employees would operate the loader equipment off-shore. 19

[19] On that day Mr Gee attended for work as normal, entered the worksite and spoke with his work colleague Mr Geoff Jenkins. Mr Jenkins told Mr Gee that he thought it was a ‘one-in one-out’ work situation that day, which mean that the two of them would be covering both in-shore and off-shore work. Mr Gee asked Mr Jenkins what his preference was and Mr Jenkins indicated he wasn’t confident operating off-shore. Mr Gee told Mr Jenkins he would undertake the off-shore work that day. 20 Mr Gee then telephoned Mr Dillon to check that Grange wanted the one-in, one-out arrangement as this was not usual. Mr Dillon advised Mr Gee the ‘one-in one-out’ arrangement was correct, but that Mr Gee was to work in-shore that day. Mr Gee replied “No,… I’m going to go off-shore.” Mr Dillon again told Mr Gee he would be working in-shore. Mr Gee again replied “No”. Mr Dillon told Mr Gee to go and speak to Mr Tony Poke, the Day Works Supervisor, about the matter. The conversation took approximately 20 seconds.

[20] Mr Gee then went to Mr Poke’s office; however Mr Poke was not there. As Mr Gee approached the reception area, Mr Poke was ending a phone call with Mr Dillon. Mr Poke pointed the phone at Mr Gee and said “Yes you are.” 21 Mr Gee said to Mr Poke “we arrange between ourselves who’s going off shore”.22 Mr Poke responded with words to the effect of ‘Grange arranges where you go’.23

[21] Mr Gee then asked Mr Poke which reclaimer he was to operate. Mr Poke, said ‘off the top of his head’ 24 to go to the west. Mr Gee told Mr Poke he would prefer to operate the east reclaimer as there is an issue with dust entering the cab of the west reclaimer. Mr Poke responded with “Just get to work”.25 This evidence is supported by the records of conversation documents provided by TasPorts.26

[22] When Mr Gee arrived at the west reclaimer Mr Brodie Dillon, son of Mr Dillon, was already operating that reclaimer. Mr Gee advised Brodie twice that he had been directed to work on the west reclaimer and questioned Brodie why he was operating it. Brodie stated that his father had told him to operate the west reclaimer for that shift. Mr Gee said to Brodie “Okay then, no worries. I’ll go over and work on the east.” 27 This evidence was not disputed by TasPorts. Mr Gee operated the east reclaimer for the shift and was not contacted again by Mr Poke or Mr Dillon to discuss his duties further.

[23] I am satisfied that the direction for Mr Gee to work in-shore was a reasonable instruction as it is work that is within Mr Gee’s skills, knowledge and experience. I turn now to consider whether Mr Gee’s conduct amounted to a refusal of a reasonable instruction.

[24] Ms Beltz’s evidence was that:”[s]ubsequent to the removal of Mr Gee from the employment roster TasPorts were made aware that whilst Mr Gee did eventually undertake the work directed to him (after challenging the management direction) his refusal of a management direction extended to work on the reclaimer that he was specifically told not to work on.” 28 It is difficult to align this evidence with the evidence of Mr Ralston, who stated “[d]uring my further investigation into the Refusal, I found out that Mr Gee had been directed by Mr Poke to work on the west reclaimer but had instead gone to work on the east reclaimer.”29 Clearly TasPorts, through Mr Ralston were aware prior to the letter of 28 August 2015 that removed Mr Gee from the roster, that Mr Gee had not operated the west reclaimer. Mr Ralston was not instructed by Mr Holden to undertake his investigation until 25 August 2015.30 What is clear is that Grange advised TasPorts, via the email from Mr Sturzaker to Mr Ralston on 17 August 2015, that the alleged ‘refusal’ related to a direction to operate “a reclaimer”,31 not a refusal to operate the west reclaimer. Accordingly, Grange could not have based their decision to revoke Mr Gee’s site access, taken on 17 August 2015, on his alleged refusal to operate specifically the west reclaimer. The obvious tension in this evidence identifies the shortcomings of two investigations that did not provide any opportunity for the accused to provide his version of events.

[25] Speaking with Mr Gee would have provided Grange with information which could then have been considered. Doing so also would have provided Grange with the opportunity to examine whether the information already to hand, from other sources, might require further consideration or investigation.

[26] An employer and a host employer are entitled to make significant demands on an employee in accepting direction in the workplace. The evidence shows that Mr Gee’s discussions with Mr Dillon and subsequently Mr Poke, took approximately three minutes. 32 They did not manifest in a terrible explosion. Rather the discussion with Mr Dillon was no more than a rub on the day which was magnified later by a misunderstanding as to who was to operate the west reclaimer. Mr Gee wasn’t being contrary and there was no conclusion that following the discussions Mr Gee was insolent or disrespectful of the employment relationship. This was not a case of manic determination for Mr Gee to have his own way. It is important, in my view, that Mr Gee did not mislead Brodie Dillon who was operating the west reclaimer at the relevant time. Having heard the detailed evidence, it is quite clear that Mr Gee’s actions following his conversation with Mr Poke do not reflect his having refused an instruction. It follows that TasPorts’ submission that Mr Gee’s actions amounted to “a sustained refusal … (as opposed to an impetuous refusal quickly remedied)”33 cannot be sustained.

[27] I am satisfied that whilst the conversation between Mr Dillon and Mr Gee was less than an ideal employee/employer interaction, the conversations did not ultimately constitute a refusal to carry out a lawful and reasonable instruction or direction. Neither did Mr Gee’s operation of the east reclaimer constitute a refusal, given the evidence that Mr Dillon had instructed his son to operate the west reclaimer for that shift. I note that Mr Dillon did not advise Mr Gee to work on a specific reclaimer. 34 It was Mr Gee’s evidence that Grange’s actions on the morning of 13 August 2015, meant that he felt targeted by Grange35 and that this feeling escalated when he was both drug and alcohol tested the following day when he attended for work.36

[28] In the course of the Grange investigation, Mr Duncombe spoke to the Production Supervisor, Mr Marcus Lockett. Mr Lockett described that on or around 7 August 2015 (Mr Gee asserts the events occurred on 8 August 2015), Mr Gee had relayed incorrect information to a Pilot on board a vessel which was in breach of Grange’s reporting protocols and affected the ability to continue shiploading. Mr Gee said this issue arose due to a number of breakdowns which had occurred on that shift. He was concerned that due to the breakdowns the product loaded on the shift had not been weighed properly and he was concerned the vessel would be inadvertently overloaded, which had occurred before. He contacted the shift supervisor at the time but was fobbed off. He then contacted his work mate and then the ship’s Pilot to explain an issue with extra tonnage that was displayed on the computer screen in his loader. Mr Gee said he contacted the ship’s Pilot directly to be pro-active and ensure that, prior to the end of his shift; the correct tonnage information was in the hands of someone who could ensure the ship did not end up overloaded. 37

[29] Grange’s written reporting protocols were not before the Commission. Mr Duncombe stated that Mr Gee should not have contacted the ship’s Pilot. If Mr Gee’s actions constituted a breach of Grange policy, and it is not clear in all the circumstances that they did, it is evident that Mr Lockett did not consider it sufficiently serious as to require that further action be taken at the time. I note that the Grange ‘record of conversation’ 38 signed by Mr Lockett relating to those matters of 7 or 8 August 2015 is not a contemporaneous note. It was created on 24 August 2015, some seven days after the revocation of Mr Gee’s site access.

[30] As a result of the investigation, Grange also had concerns about photographs (six images depicting sunrises and/or sunsets, dolphins swimming and some of Grange’s infrastructure) 39 taken by Mr Gee whilst he was in the cab operating “off-shore” equipment, and posted on his social media Facebook account between 26 January and 7 May 2014. There was dispute between the parties as to whether the photographs posted to Mr Gee’s Facebook account were available only to his Facebook friends or whether his account settings were ‘public’ and available to all Facebook users. Grange did not rely on the alleged breaches of its Information Technology, Communications and Social Media policy (ITC policy)40 or reporting protocols in the revocation of Mr Gee’s site access. Mr Duncombe advised that those matters were not the major issue and that it was because of the alleged failure to follow a direction from a Grange supervisor that Mr Duncombe had recommended to Mr Sturzaker that Mr Gee’s site access be revoked.41

[31] A question as to Mr Duncombe’s credibility arose during his oral evidence when Mr Duncombe stated he had visited Mr Gee’s Facebook account twice, 42 when his written statement advised he viewed the account once. This conflict arose as a result of the very specific dates in Mr Duncombe’s witness statement as to when he was on site at Port Latta, when he became aware of the incident, and when he commenced the Grange investigation, all of which were said to be on 14 August 2015. Mr Gee, at hearing, produced evidence that Mr Duncombe had sent him a Facebook friend request43 on Monday 13 August 2015 at approximately 9.30am, the day before Mr Duncombe said he had become aware of the matters and started the Grange investigation. Mr Duncombe’s evidence under cross examination was, at times, evasive and unsatisfactory and led me to view this evidence as constructed.44

[32] Grange’s ITC policy is a comprehensive document of some 22 pages. When considering the document as a whole, it is focused on providing a set of guidelines and procedures on the appropriate and reasonable use of Grange provided ITC resources. It does not specifically deal with the use of personally owned equipment with the exception of clause 9(t) which states that a user must not “have an unauthorised mobile phone in possession on any site operational work area”. Mr Gee had a personal mobile in his possession which he used to make calls to on-site management instead of using the radio network. 45 The policy also provides, under clause 9(v), that a ‘user’ must not “use a mobile phone for taking photographs or video on any site operational work area unless authorised.”

[33] Deegan C in Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd46 (a decision upheld on appeal to a Full Bench) at paragraph [54] determined that:

[34] Whether the photographs taken by Mr Gee whilst at work were made public on Facebook or whether they were only available to Mr Gee’s Facebook friends is irrelevant for the purposes of establishing a breach of the relevant policy. Grange’s ITC policy provides that a user must not take photographs or video on a mobile phone on any “site operational work area” unless authorised. This required the taking or photos or video to be approval by a Grange supervisor or Manager. Mr Gee’s evidence was that he was not aware of the contents of Grange’s ITC policy. Mr Ralston’s evidence was that he could not be certain that Mr Gee was familiar with the policy. 47 Having carefully considered the evidence on this point, as it was given, I have determined that Mr Gee was not provided with, and was not aware of, the content of the ITC policy.

[35] As to Grange’s concern that Mr Gee was in possession of an unauthorised mobile phone contrary to the policy, Mr Gee’s uncontested evidence was that he had used his mobile phone to conduct operational conversations from time to time. It follows that Grange’s reliance on a finding that Mr Gee had breached the ITC policy by having an unauthorised phone on site, not only cannot be sustained, but rather possession and use of this phone was officially sanctioned.

[36] The evidence establishes that Mr Gee did not seek permission to take the photographs in question which show parts of the Port Latta operational equipment. The ITC policy at clause 9(m) precludes a user transmitting or exposing “extremely sensitive information via the internet without authorisation and without encryption”. 48 It is clear from this wording in the policy that the photographs taken by Mr Gee are not captured by the policy, nor does clause 10 ‘Social Media’ deal with this specific issue and are therefore not a breach. In any event, I am of the view that the context in which the photos were taken and posted to Facebook does not evince any malice on the part of Mr Gee and Grange did not establish that it suffered any damage because of those actions. I formed the view that the photographs of dolphins and sunrises, (whilst taking them was a breach of the ITC policy) would be considered low scale misconduct and would not provide a valid reason for dismissal, whether taken individually or in combination with the incident on 13 August 2016 with Mr Dillon.

[37] Likewise, the alleged breach of reporting protocols of 7 August 2015 was not considered to be serious or of concern by Mr Lockett as he did not report it or take any other action at the time. TasPorts did not provide, through Mr Duncombe’s evidence, a copy of any on site protocol or indicate whether a breach of any such protocol could or would result in dismissal. It appears to me, when considering Mr Duncombe’s conduct from 13 August 2015, that he was searching for issues relating to Mr Gee to support a decision he had already made, which was to recommend Mr Gee’s site access be revoked.

[38] It is clear that Mr Gee was not afforded an opportunity to address Grange on the allegations as to his conduct on the day in question and to explain why he responded to his supervisors as he did. 49

[39] I am of the view that whilst TasPorts relies on an incapacity for Mr Gee to carry out his duties, the decision to terminate Mr Gee’s employment was inextricably linked to the decision of the host employer (Grange), to revoke his site access due to his alleged conduct. I am satisfied that the investigation carried out by Grange was procedurally flawed and the outcomes of that investigation, in so much as they seek to establish that Mr Gee refused a lawful and reasonable direction, are unsound.

[40] As to the credit of Mr Gee, it was my general view that he was forthright in his evidence. He gave his evidence unhesitatingly and in full, acknowledging aspects of the events which didn’t favour his case or the cause. He was quite free in his concession that he said “no” more than once in his conversation with Mr Dillon.

[41] I accept the evidence of Mr Gee and am satisfied that whilst he described the actions he undertook on 13 August 2015, he did not admit to having refused a direction either during his discussion with Mr Ralston on 13 August 2015 or at a meeting held on 17 August 2015 with TasPorts, 50 (which had been previously scheduled to discuss workplace entitlements for the line crews).

[42] As to the actions of TasPorts during the Grange investigation, TasPorts should have acted to protect its own interests and those of Mr Gee. Mr Ralston knew of the investigation being carried out by Mr Duncombe. He advised Ms Beltz of that fact. Neither Mr Ralston nor Ms Beltz advised Mr Gee that an investigation into the circumstances surrounding the events of 13 August 2015 was underway and that it might affect his interests. TasPorts failed to make representations to Grange in relation to their employee or a procedurally fair investigation. Further, Mr Ralston’s evidence was that even though he carried out his own investigation into the events of 13 August 2015, he never spoke directly to Mr Dillon about those matters. 51

[43] In the oft quoted principles of “valid reason” contained in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran) the following passage is relevant in the context of Mr Gee’s dismissal:

[44] This principle from Selvachandran recognises the unfair dismissal objectives, now contained in Part 3-2 of the Act, (s.381(2)) that both parties must ensure a fair go all round for the other. Section 381(2) provides:

[45] In the matter of Kool v Adecco Industrial Pty Ltd T/A Adecco52 (Kool) Asbury DP held at paragraphs [48] and [49]:

[46] TasPorts contended that the recent Full Bench decision in Pettifer v MODEC Management Services Pty Ltd 53 per O’Callaghan SDP, Binet DP and Hampton C, (Pettifer) supports its submission that there was a valid reason for Mr Gee’s dismissal relating to his capacity, as Mr Gee was solely employed for the purpose of performing work at Grange’s Port Latta site; and that TasPorts was not able to redeploy him.54

[47] Pettifer involved an employee who was employed by MODEC and placed with a host employer, pursuant to a contract for the provision of labour for a floating production vessel. Following a safety near miss, the host employer exercised its right under its contract with MODEC and directed MODEC to remove Mr Pettifer from the host employer’s site.

[48] Relevant to the matters to be considered in this application, the Full Bench in Pettifer held as follows:

[49] It is a well-established legal principle that members should follow a Full Bench decision as it relates to matters to be determined, unless the decision is inconsistent or wrong in law. In other words, a Full Bench decision should be followed unless there are sound reasons for not doing so. TasPorts rely on the authority in Nguyen v Nguyen 55 where the High Court held:

[50] I am mindful of the principle established in Pettifer and that respect is to be accorded to that Full Bench decision. However, there are a number of significant differences as to the circumstances requiring decision in this case and those prevailing in Pettifer. These differences include:

[51] An employer’s review of alternate opportunities for an employee’s employment does not have to be a forensic review, but it does have to be real, otherwise there is no safeguarding of the employee’s interests.

[52] Ms Beltz conducted a review of TasPorts’ worksites and concluded that there were no other positions to which Mr Gee could be deployed. There is no dispute that this review was undertaken without reference to Mr Gee and without Ms Beltz having an understanding of Mr Gee’s full work history, qualifications or skills. Had Ms Beltz spoken to Mr Gee, she would have established a full work history, together with his skills set and formal qualifications.

[53] Mr Gee has established skills from working in a line crew, 56 albeit not the Master Class 5 qualification which Ms Beltz stated was required for deckhand positions within TasPorts.57 However, Mr Gee has the capacity to be successful in training that is reasonably within his vocational reach, as is evidenced by his trade qualifications and up-skilling whilst working for TasPorts.58 TasPorts were required to undertake a vocationally and geographically robust review of its business. Their failure to do so neglected the proper duty they owed to Mr Gee.

[54] In the same way, and to the same degree, as Mr Gee had a duty to safeguard the interests of his employer, so too was TasPorts, in my view, obliged to safeguard Mr Gee’s interests. Such mutuality is fundamental to modern employment. TasPorts, as a minimum, had a duty to safeguard the interests of Mr Gee. Ms Beltz was required to have a full understanding of Mr Gee’s total skillset and then conduct the review with that information in mind. Not only was the review not comprehensive, it was not sought to be done comprehensively.

[55] Relevant in this matter are the findings of Asbury DP in Kool at paragraphs [65], [66] and [69] which provide:

[56] The evidence before the Commission in this case reflects that the reason for Mr Gee’s removal from the site was due to his conduct. It is also clear from the evidence of Mr Ralston, when he replied to Mr Sturzaker’s email on 17 August 2015, that he supported the removal of Mr Gee from the site in circumstances where he was not aware of the content of Grange’s completed investigation report and had not put any allegations to Mr Gee. While Mr Ralston was aware of the Grange investigation and the likelihood of Mr Gee being removed from site, neither he nor any other person at TasPorts sought at any time to establish whether there was a ‘valid reason’ for Mr Gee’s removal from site. This finding is supported by TasPorts’ final written submissions which stated “The Respondent did not make its own findings about any wrongdoing of the Applicant. In accordance with the Respondent’s submissions, the Respondent took steps to satisfy itself that Grange had a reasonable basis for revoking [Mr Gee’s] site access. This does not equate to a finding that [Mr Gee] was dismissed because of the conduct that led to his site access being revoked.”  59 TasPorts was required to do more than “satisfy itself that there was a reasonable basis for Grange’s decision to revoke the… site access…”60 in that this action was to end in Mr Gee’s dismissal.

[57] Further, in establishing the existence or otherwise of an alternate position in which Mr Gee could be redeployed, I am not satisfied, for the reasons stated above, that TasPorts undertook an adequate process in the circumstances.

[58] On the basis of my findings above I have determined that the conclusions reached by both Grange and TasPorts were not sound, defensible or well founded. I am satisfied that there was no valid reason for Mr Gee’s dismissal related to his capacity or conduct in all the circumstances.

Was there notification of the reason for the dismissal (s.387(b))?

[59] Notification of ‘the reason’ relates to the ‘valid reason’ for dismissal. 61 Notification of the valid reason to terminate must be given to the employee before the decision to terminate is made,62 in explicit terms,63 and in plain and clear terms.64 Although considering provisions in previous legislation, the Full Bench in Crozier v Palazzo Corporation Pty Ltd65 established:

[60] Mr Gee was notified of the reason for his dismissal in his dismissal letter dated 28 August 2015. The reason relied on by TasPorts was that due to the revocation of Mr Gee’s site access to all Grange sites; he was unable to fulfil the inherent requirements of his role as a Shiploader/Reclaimer Operator – Port Latta.

[61] The evidence establishes there was no advice, written or otherwise, to Mr Gee from TasPorts that it was investigating his conduct or his capacity to carry out his duties, between 17 and 28 August 2015. Therefore, Mr Gee was not notified of the reason for his dismissal before the decision was taken by TasPorts to terminate his employment.

Was there an opportunity to respond to the reason for the dismissal (s.387(c))?

[62] In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, albeit a decision under the Industrial Relations Act 1988, that considered the construction and application of s.170DC (the precursor to s.387(c)), Wilcox CJ held that:

[63] Mr Gee’s site access was revoked by Grange on 17 August 2015 and communicated to TasPorts via an email to Mr Ralston. Mr Gee, as a union delegate, was in attendance at a meeting with TasPorts management (Mr Barry Holden, Mr Ralston and Ms Beltz) on that same day. TasPorts advised Mr Gee at that meeting that his site access had been revoked. I am satisfied the email sent by Mr Sturzaker to Mr Ralston on 10.15am, 66 was not provided to Mr Gee but that its contents, in some form, were identified to Mr Gee and Mr Jason Campbell, State Secretary of the Maritime Union of Australia.67 Mr Ralston failed to advise Mr Gee at that time that he had sent a response to Mr Sturzaker at 10.54am advising that TasPorts fully supported the decision taken by Grange.68 Ms Beltz told Mr Gee that the revocation of site access was new information to TasPorts and that they “would need to have time to consider what this would mean for Mr Gee’s employment.”69 Ms Beltz said that TasPorts would discuss the matter further with Grange, but that Mr Gee was stood down until further notice.70 Ms Beltz’s evidence was that Mr Gee had an opportunity at that meeting to respond to Grange’s reasons for revoking his site access.71 I am satisfied Mr Gee was available to provide a response in some form at this meeting relating to Grange’s decision. However, that it could not be seen, on any fair interpretation of the legislation, to have been an appropriate and “full opportunity to respond” to any of the matters contained in that email or that this constituted an adequate opportunity for Mr Gee to respond or to defend himself.

[64] Subsequent to 17 August 2015, Mr Barry Holden, then TasPorts’ General Manager Marine Services, instructed Mr Ralston to conduct his own investigation into the matters relied on by Grange to revoke Mr Gee’s site access 72 (the TasPorts investigation). Mr Ralston discussed the Grange investigation with Mr Duncombe and Mr Sturzaker. In the TasPorts investigation Mr Ralston relied on the Grange records of conversation completed by Mr Dillon and Mr Poke73 and a conversation he had with Mr Gee on the morning of 13 August 2015 when Mr Gee was operating the east reclaimer. Mr Ralston said Mr Gee told him he had refused the direction. Mr Ralston said this substantiated the findings in Grange’s investigation. Mr Gee denies that he ever told Mr Ralston on either 13 or 17 August 2015 that his conduct was a refusal of a direction. As stated previously, I accept Mr Gee’s evidence on this point. Similarly to Grange, TasPorts did not advise Mr Gee that Mr Ralston was conducting an investigation, nor did they invite him to respond to any allegations of wrongdoing.74

[65] Between 17 August and 28 August 2015, Mr Ralston had at least two conversations with Mr Gee at Mr Gee’s residence. The evidence discloses that during this time TasPorts did not advise Mr Gee that they were considering terminating his employment on the basis of incapacity to undertake his duties. Ms Beltz’s evidence was that Mr Ralston spoke to Mr Gee in his home about TasPorts considering his capacity; however this is not supported by Mr Ralston’s evidence. Mr Ralston said that following Mr Gee’s site revocation, he made contact with Mr Gee, but that “we did not discuss anything in relation to the investigation.” 75 During a conversation at this home, Mr Gee did tell Mr Ralston that he did not expect Grange would allow him back on site due to the 13 August 2015 incident. I do not consider this comment to be an admission of guilt on Mr Gee’s part, but rather an expression of his frustration and his expectation that Grange was unlikely to be seen to reverse a decision.

[66] At this point in time, Mr Gee was awaiting TasPorts conducting further detailed discussions with Grange and advising him further. He could not respond to any matter relating to his on-going employment until TasPorts requested him to do so.

[67] As Mr Gee was not aware that TasPorts were investigating his capacity to carry out duties or that they were considering terminating his employment for this reason, he was not afforded an opportunity to respond to the reasons for his dismissal.

Was there an unreasonable refusal to allow a support person to be present (s.387(d))?

[68] If an employee protected from unfair dismissal requests a support person be present when discussions are occurring that relate to the dismissal, the employer should not unreasonably refuse that the support person be present.

[69] It should be noted that there is no obligation on an employer to offer or suggest that the employee have a support person present. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] provides:

[70] This criterion is irrelevant in the circumstances of Mr Gee’s termination in that he was not advised of the reason for dismissal prior to receipt of the dismissal letter. It follows that no meeting took place that related to his incapacity and therefore it was not possible for a request for a support person to be made.

Were there warnings about unsatisfactory performance (s.387(e))?

[71] The stated reason for dismissal was incapacity, and not Mr Gee’s performance. This consideration is not relevant.

Did the size of the employer impact on procedures followed in effecting the dismissal (s.387(f))?

[72] I do not consider that the size of TasPorts’ enterprise impacted on the procedures it followed in effecting Mr Gee’s dismissal, as TasPorts are a large enterprise.

Did an absence of human resource expertise impact on procedures followed in effecting the dismissal (s.387(g))?

[73] TasPorts has dedicated human resource management expertise, so I do not regard this consideration as relevant.

Any other relevant matters (s.387(h))

[74] Section 387(h) of the Act establishes a broad scope of matters for the Commission to consider in determining whether a dismissal is harsh, unjust or unreasonable.

[75] Mr Gee, is aged 49 years, has four sons and lives with his partner in a home that is mortgaged. 76

[76] Mr Gee commenced his employment with TasPorts’ predecessor, in September 2006 when he accepted a casual position as a Shiploader at the Port Latta site working for DanBar Marine Services. This business was later acquired by TasPorts in 2009. 77 Mr Gee’s casual employment was an in-fill position to cover short term vacancies of the more permanent Shiploading crew. Mr Gee’s evidence was that around 2007, when one of “the more permanent casual guys”78 resigned, Mr Gee was offered one of the four “more permanent” casual positions on the Shiploading crew working between 20 to 130 hours per fortnight, averaging about 25 hours per fortnight. Mr Ralston’s evidence was that “[t]hroughout Mr Gee’s employment with TasPorts there have been a number of behavioural incidents at the workplace. Some of which were not correctly recorded as Grange have a tendency with contractors to choose not to ask them back to work rather than recording or dealing with behaviour problems.”79 The Commission was not provided with any evidence to support this statement. If, as Mr Ralston stated, Grange were concerned about Mr Gee’s conduct as a contracted labour hire employee, they would have removed him at the time of that conduct. However, Mr Gee enjoyed 9 years of employment at Port Latta. Ms Beltz’s evidence was that there were some notes on Mr Gee’s personnel file which indicated he had been aggressive in some industrial dealings.80 However it appears Mr Gee was never counselled over these matters. I am satisfied that Mr Gee’s employment, other than that which occurred on 13 August 2015, was without incident.

[77] In August 2015, Mr Gee’s partner was diagnosed with a significant illness which involves on-going doctor and hospital appointments. 81

[78] In this case, there are two matters which I consider lead to a determination that Mr Gee’s dismissal was “harsh”.

[79] The first of these matters are Mr Gee’s nine years of unblemished service at Port Latta. It appears that no regard was had for that matter in the investigations into Mr Gee’s conduct.

[80] The second of these matters are Mr Gee’s age and the effect that is likely to have on him obtaining secure employment. Whilst Mr Gee was a casual employee of TasPorts, the evidence provides that the nature of that employment was that he was a casual employee who was offered regular and systematic work at the rate of $54.26 per hour, 82 together with overtime. Mr Gee’s age is likely to adversely affect him securing new regular work.

Conclusion as to harsh, unjust or unreasonable dismissal

[81] It could not be said, on any objective reading of the evidence, that Mr Gee was afforded a “fair go all round” by his employer on three counts. First, that TasPorts failed to make representations on behalf of Mr Gee and to insist Mr Duncombe carry out a procedurally fair investigation. Second, that Mr Ralston compounded the procedural unfairness when he too investigated, on behalf of TasPorts, the alleged conduct and again failed to advise Mr Gee of that investigation and afford him an opportunity to respond. Third, that Ms Beltz, after concluding that Mr Gee lacked the capacity to carry out his duties at Port Latta, conducted a review of possible alternate positions within TasPorts, without consulting with Mr Gee about his skills, qualifications and experience.

[82] Having regard to each of the considerations prescribed in s.387 of the Act, I am satisfied that TasPorts’ dismissal of Mr Gee was:

[83] I reject the submissions made by TasPorts that any response provided by Mr Gee could not have changed the decision to terminate his employment (see decision of Simpson C in Downs v Eaton Services Group 83). A robust review of redeployment opportunities within TasPorts, and discussions with Mr Gee about such redeployment, was likely to have resulted in a different outcome, given his proven ability to obtain new skills and his employment record.

Remedy

[84] Having determined that Mr Gee’s dismissal was unfair, I am required now to consider the remedy to be applied. Section 390 describes the circumstances of when a remedy order may be made:

When the FWC may order remedy for unfair dismissal

[85] The jurisdictional preconditions in s.390(1)(a) and (b) are satisfied and I must consider whether to order the reinstatement of Mr Gee or, if reinstatement is inappropriate, whether in all the circumstances, it is appropriate to order payment of compensation to him.

[86] The evidence before the Commission provides that Mr Gee, prior to his dismissal, made a stress related workers compensation claim. He said his “workers’ compensation claim was originally against TasPorts. It’s been shifted to Grange and it’s going to be brought back to TasPorts as well.” 84 Whilst workers’ compensation matters are a separate jurisdiction to this Commission, it is likely that Mr Gee’s circumstances since the final hearing date in July, may have changed, which may impact on remedy considerations. Further, the evidence currently before the Commission that relates to Mr Gee’s medical incapacity to present for work, both prior to, and subsequent to, his termination is incomplete.

Conclusion

[87] I am satisfied that Mr Gee’s dismissal was harsh, unjust and unreasonable.

[88] To enable a proper consideration of an order for the remedy, to be applied in this matter, I will require further evidence and submissions from the parties relevant to the matters contained in ss.391, 392 and 393. The parties are directed to confer on the nature of the further evidence to be presented and advise my chambers of preferred directions and hearing dates, within 14 days of this decision, with leave to apply to the Commission for a directions hearing should that be required.

DEPUTY PRESIDENT

Appearances:

Mr M Burns, for the Applicant

Ms S Masters, for the Respondent

Hearing details:

Launceston

16 & 17 June 2016

Hobart

6 July 2016

Final written submissions:

The Applicant – 6 September 2016

The Respondent – 12 September 2016

 1   Exhibit A1, Statement of Warwick Gee, Attachment WG3

 2   Exhibit A1

 3   Exhibit R1, Statement of Belinda Beltz

 4   Exhibit R5, Statement of Ashley Ralston

 5   Exhibit R4, Statement of Tim Duncombe

 6   Exhibit R7, Statement of Paul Sturzaker

 7   Transcript, PN2005

 8   Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373

 9   Ibid

 10   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 11   Ibid

 12   J Boag & Son Pty Ltd v Button [2010] 195 IR 292 at [29]

 13   Exhibit A1, attachment WG3

 14   Exhibit R4, paragraph 16

 15   AE409960

 16   Exhibits A3 and A4, Log Books

 17   PN58-PN60

 18   Exhibit A1, paragraph 4

 19   PN139

 20   PN137

 21   PN140

 22   PN679

 23   PN680

 24   PN711

 25   PN141

 26   Exhibit R5, attachments ‘E’ and ‘F’

 27   PN705

 28   Exhibit R1, paragraph 23

 29   Exhibit R5, paragraph 49

 30   Exhibit R5, attachment ‘D’

 31   Exhibit R5, attachment ‘C’

 32   PN317

 33   Exhibit R6, Respondent’s Closing Submissions, paragraph 2

 34   Exhibit R5, attachment ‘E’

 35   PN760

 36   PN768-769

 37   PN373

 38   Exhibit R4, attachment ‘C’

 39   Exhibit R4, attachment ‘D’

 40   Exhibit R4, attachment ‘E’

 41   Exhibit R4, paragraph 24

 42   PN1714-1715

 43   Exhibit A2, Screenshot of Facebook friend request

 44   Starting at PN1705

 45   Exhibit A1, paragraph 49, attachment WG15

 46   [2009] AIRC 893

 47   PN1775

 48   Exhibit R4, attachment ‘E’, page 3

 49   PN1657

 50   PN811-812

 51   PN1881

 52   [2016] FWC 925

 53   [2016] FWCFB 5243

 54   Exhibit R8, paragraph 1

 55   169 CLR 245 at 269

 56   PN56

 57   PN1137-PN1138

 58   PN1374

 59   Exhibit R7, paragraph 13(a)

 60   Ibid

 61   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print 22679 [41]

 62   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]-[73]

 63   Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730

 64   Ibid

 65   (2000) 98 IR 137 [73]

 66   Exhibit R5, attachment ‘B’

 67   PN1289-1291, PN1920

 68   R5, attachment ‘C’

 69   Exhibit R1, paragraph 15

 70   Ibid

 71   Exhibit R1, paragraph 14

 72   Exhibit R5, attachment ‘D’ email dated 25 August 2015

 73   Exhibit R5, attachments ‘E’ and ‘F’

 74   PN1947

 75   Exhibit R5, paragraph 61

 76   Exhibit A1, paragraphs 2 and 3

 77   Exhibit A1, paragraph 18

 78   Exhibit A1, paragraph 19

 79   Exhibit R5, paragraph 56

 80   PN1207-1213

 81   Exhibit A1, paragraph 6

 82   Form F3 – Employer Response to Unfair Dismissal Application

 83   [2015] FWC 2751

 84   PN895

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