| [2017] FWC 3826 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Edgar
v
SMS Operations Pty Ltd T/A Swick Mining Services
(U2017/4226)
DEPUTY PRESIDENT BULL |
PERTH, 27 JULY 2017 |
Application for an unfair dismissal remedy, safety breach. Safety procedure not followed, valid reason, procedural fairness considered, application dismissed.
[1] In this application Mr Nicholas Edgar, who was employed as an underground diamond driller with SMS Operation Pty Ltd which trades as Swick Mining Services (the respondent/Swick), claims that he was unfairly dismissed on 7 April 2017, having commenced employment with Swick on 15 December 2014.
[2] Mr Edgar’s termination of employment followed an incident which occurred on 2 April 2017, 1 while working underground at the Golden Grove mine site which is located approximately 450 km north of Perth and 250 km east of Geraldton.
[3] Swick is a mineral drilling contractor that provides underground and surface drilling services to various clients, in this case MMG which operates the Golden Grove mine which has both underground and open cut operations. Swick specialises in underground diamond drilling.
[4] Mr Edgar was driving up an underground decline in a light vehicle (LV) at the end of his shift when his vehicle drifted to the right, causing the right wheel to catch the side of a drain. The LV then made contact with the wall resulting in significant damage to the front right hand side of the vehicle. Mr Edgar was driving with a passenger the time. He proceeded to drive the vehicle out of the drain, away from the accident scene, and up to the surface into the workshop area at which time he reported the incident. 2
[5] Leaving the scene of the accident was said by Swick to be in breach of its incident management procedure 3 of which Mr Edgar was aware. Swick considered the breach to be of sufficient seriousness to warrant Mr Edgar’s dismissal with the appropriate notice period being paid in lieu.
[6] Mr Edgar received a written termination of employment letter dated 7 April 2017. In addition to reliance on the applicant’s breach of the incident management process, Swick referred to a series of warnings that Mr Edgar had recently received and that its client, MMG, had advised that Mr Edgar could not return to the Golden Grove mine site based on his failure to report the vehicle accident within an acceptable timeframe. 4
[7] When the matter was heard before the Fair Work Commission (the Commission), Mr Edgar appeared on his own behalf and Ms Ashlee Underwood, Senior Human Resource Officer, represented Swick.
Notice of discontinuance
[8] Mr Edgar’s application was filed in the Commission on 19 April 2017 by his then representative, A Whole New Approach Pty Ltd (A Whole New Approach). On 29th of May 2017 a Form F54 - Notice of Representative Ceasing to Act was filed with the Commission by A Whole New Approach advising that it had ceased to act for Mr Edgar in his unfair dismissal claim. The following day, 30 May 2017, A Whole New Approach filed a Form F50 - Notice of Discontinuance.
[9] In AB v Tabcorp Holdings Limited 5 the Full Bench held that where a notice of discontinuance has been filed, there are limited opportunities for the notice to be set aside and even where that can occur, it is doubtful that it is within the jurisdiction of the Commission to do so, with such action having to be taken in a court of competent jurisdiction.6
[10] On the same day, via telephone, Mr Edgar advised the Commission that he did not authorise the filing of the notice of discontinuance and requested that his application remain on foot. On contacting A Whole New Approach, the Commission was advised that they had been instructed to file the notice of discontinuance by Mr Edgar, whereas Mr Edgar advises that while he had considered withdrawing his application, he had only told his representative that he did not want them to act on his behalf any further.
[11] Further inquiries conducted by the Commission were unable to reveal how the notice of discontinuance came to be filed on behalf of Mr Edgar by A Whole New Approach, given A Whole New Approach had already ceased acting for Mr Edgar.
[12] On the basis that the notice of ceasing to act was filed by A Whole New Approach on 29 May 2017, clearly stating they no longer acted for Mr Edgar, the notice of discontinuance subsequently filed by A Whole New Approach on 30 May 2017, has been disregarded by the Commission as a nullity.
[13] Swick, while noting the notice of discontinuance, did not pursue this point in their defence of the claim.
[14] Mr Edgar relied on written submissions, 7 his own evidence and on the witness evidence of Mr Ross Ferguson. Mr Edgar stated that he had accumulated 10 years’ experience as an underground diamond driller.8
[15] In Mr Edgar’s submission he did not dispute the particular incident that Swick relied upon to justify his termination; rather he submitted that other safety incidents with other employees had not resulted in their termination. Mr Edgar further submitted that following a workers’ compensation injury the attitude adopted towards him by Swick management was altered to his detriment. 9
[16] In respect of previous performance warnings he had received regarding his work performance, Mr Edgar either disputed the outcome or the seriousness of the incidents. At the hearing he stated that he did not contest the warnings when they were given to him as he did not want to go into conflict with his employer as he did not feel that he had their support following his workplace injury.
[17] Mr Edgar advised that he worked a roster of 2 weeks on/1 week off, with each shift being for a period of 12 hours.
Workers’ compensation injury
[18] Mr Edgar stated that in October 2016, he sustained an injury to his left shoulder while at work. Over the next 2 months he received treatment and at times worked in the Perth office. He went back to work on full duties in early December however just before Christmas he was still having trouble with his shoulder and had to take unplanned leave over the New Year period. Mr Edgar stated that on his return to work he could tell there was a bad feeling towards him and he was told he was being transferred to another site after his first swing back on full duties. He was then required to attend a full medical and stated that he only passed the medical because he was on painkillers and had a cortisone injection in his shoulder. 10
[19] Mr Edgar stated that the warnings and demotion that he had previously received only occurred once he returned to work from his workplace injury, all within a two month period. Mr Edgar stated that this was a blatant tactic embarked upon by Swick to obtain his resignation. 11
Accident of 2 April 2017
[20] Mr Edgar explained that he had been feeling exhausted on returning to site after his time off as he was getting over the flu. On Wednesday 29 March 2017, he had asked his supervisor for a shift off as his rig had shut down and he was still getting over the flu. His supervisor, Mr Maynard, told him that he wasn’t giving him the shift off but if he felt tired during the night that he was to stop work and come to the surface. 12 Mr Edgar completed his full shift. It was Mr Edgar’s evidence that the resultant lack of sleep and extremely hard shift on the evening of 1 April contributed to the accident. Mr Edgar stated he was exhausted and not thinking straight and believed he had possibly fallen asleep while driving when the LV accident occurred.
[21] Mr Edgar acknowledged that he failed to follow the proper procedures which required him to leave the vehicle at the accident scene and file a report. Instead he had backed the vehicle out and proceeded to drive the vehicle to a safe location to change a damaged wheel, as the damaged rim had caused the tyre to deflate. 13 Once the spare wheel was fitted, Mr Edgar drove to the surface and into the workshop area where he reported the incident to the supervision team.14
[22] In his evidence Mr Edgar readily conceded that he made the wrong decision after the LV accident. He was aware that he was required to immediately report the accident and not disturb the accident scene. He had not followed the appropriate procedure by leaving the accident scene, by changing a tyre and by driving the vehicle away from the collision point up to the surface of the mine.
[23] Mr Edgar stated that he then went to see the medic and completed a drug and alcohol test, which was clear. Following this he was told by his supervisor that he was to be removed from site.
[24] There was an investigation into the incident and Mr Edgar was advised to report to the head office in Perth with a support person to discuss the outcome of the investigation. Mr Edgar attended with Mr Ross Ferguson as his support person. Also in attendance were Ashlee Underwood Senior HR Officer and Mr Shannon Harding General Manager Support Services.
[25] Mr Edgar was adamant that following the introductions at the commencement of the meeting, he was handed his letter of termination by Ms Underwood. This was also supported by the evidence of Mr Ferguson, his support person at the meeting. The meeting was said by the parties to have lasted for about 20 to 30 minutes, during which Mr Edgar took the opportunity to submit why his termination of employment should not take place. Mr Edgar recounted other more serious safety incidents where termination of employment was not an outcome, in particular regarding an incident where the shift supervisor had shut down an underground area for 7 hours due to excessive heat levels.
[26] It is noted that Mr Edgar’s statement 15 taken on the day of the accident states that he had been driving up the decline when the vehicle drifted to the right hand side any he didn’t correct fast enough and caught the edge of a drain and was pulled into the wall. There is no indication from Mr Edgar’s statement on the day of the accident that he was exhausted, tired or was asleep at the time of the accident. The written statement of the passenger in the vehicle at the time, Mr Anthony Whitelock, states that Mr Edgar was driving too close to the right-hand side of the decline causing the right wheel to catch in the drain with the vehicle then hitting the wall causing significant damage to the front right hand side of the vehicle.16 Mr Whitelock’s statement does not refer to Mr Edgar either falling asleep, or being exhausted.
[27] Mr Edgar stated that the accident was the first work vehicle accident he had suffered in 23 years.
Previous Warnings
[28] Mr Edgar’s Employment Management Record indicates that on 22 January 2017, while at the Jundee mine he failed to complete the majority of the orientations on the drill hole on the previous shift 17. This was brought to Swick’s attention by the client. Mr Edgar was given a verbal warning and told if it occurred again it would be a written warning with a two-week bonus deduction.
[29] On 31 January 2017, while at the Jundee mine Mr Edgar ‘bogged rods in competent ground’ resulting in the loss of a rod string and the need to abandon the hole. This incident was put down to driller error and Mr Edgar was given a final written warning. 18 Mr Edgar stated it was the first time he had lost a rod string in almost 10 years of diamond drilling.19 Mr Edgar stated in his evidence that he had been advised that this issue would be overlooked on the basis that it was a one-off event. Mr Edgar stated he did not receive a written warning until a much later date which he was surprised to receive. The written warning documentation allowed Mr Edgar to provide a written response to this finding, but he declined to so.
[30] On 23 February 2017, Mr Edgar was found to have not followed Swick procedures in incorrectly storing the rig boom/feed frame and not correctly completing his pre-start check by failing to notice damage to one of the rig tyres. Mr Edgar was given a further final written warning and demoted for a period of 3 months, at the end of which time the demotion was to be reviewed. 20 Mr Edgar again declined to provide any written response to this finding or outcome at the time. In his evidence, Mr Edgar disputed that he had not completed the pre-start correctly. He maintained that no other driller had identified damage to the rig tyre and the damage was not readily identifiable during the pre-start check.
[31] Mr Edgar’s evidence was that having received the written warnings he was in fear of losing his job, and following the LV accident he had expected that his employment would be terminated.
[32] Mr Edgar’s evidence was that on 7 April 2017, he was called to a meeting to discuss the outcome of the investigation into the LV accident where he was handed a pre-prepared letter of termination. It was Mr Edgar’s evidence that Swick did not want to hear his side of the story and simply wanted him out of the workplace.
[33] At the hearing Mr Edgar advised that he had started a new business and was also doing shutdown work for another employer where he had worked for approximately 16 days since his termination of employment. He had not actively sought work in the underground diamond drilling sector as he did not believe he would be successful in obtaining work in this area due to his dismissal by Swick.
[34] Mr Edgar stated he believed that by pursuing this unfair dismissal claim he was effectively ending his career in underground diamond drilling.
[35] Swick submits that Mr Edgar was terminated because he failed to follow the Swick incident management process following his accident on 1 April 2017. Mr Edgar did not follow the proper process by failing to:
● barricade and isolate the accident site;
● preserve the scene of the accident ;
● report the accident immediately. 21
[36] Swick submitted that as result of the above failures Mr Edgar’s site access was revoked by the client MMG. This is a right that the client has under the contract between the parties where it states at 19.5 Refusal of Access: MMG may, at any time and for any reason, Direct the Contractor or any Contractor Personnel to vacate the relevant Site. 22
[37] At the hearing Ms Underwood submitted while the client’s position was a factor, Swick had independently investigated the incident and determined that Mr Edgar was at fault and that the breach of safety protocol was sufficiently serious to warrant his termination of employment. This decision was arrived at following consideration of the written statement that Mr Edgar had completed and submitted following the accident.
[38] Swick also relied on the fact that Mr Edgar had received a series of performance warnings including two final written warnings in January and February 2017. 23 Swick maintained it had provided the relevant safety training.
Evidence of Ms Underwood
[39] Ms Underwood stated that she was Swick’s HR representative in attendance at 7 April meeting with Mr Edgar, along with Mr Shannon Harding the General Manager Support Services. 24
[40] Prior to the meeting Ms Underwood advised that she had considered the written statement from the passenger in the vehicle, Mr Edgar’s own statement about the accident, the incident report that was completed and an email from the client requesting Mr Edgar be removed from site. 25
[41] Ms Underwood stated that at the meeting Mr Edgar was given an opportunity to provide a verbal response to the outcome of the investigation being that his employment should be terminated. 26 At the hearing Ms Underwood stated that having listened to his further explanation which mainly traversed events concerning other people and added nothing new to the reason for his termination, the decision to terminate Mr Edgar’s employment was reinforced.
[42] Ms Underwood stated that at the meeting Mr Edgar admitted his breach of safety protocols. She stated Mr Edgar confirmed he was aware of the safety protocols, having attended incident reporting and incident management training in 2014 and 2016, with incident reporting and management also covered in his site induction when he transferred to Golden Grove in March 2017. Ms Underwood also stated that incident management is regularly addressed on all sites. Ms Underwood did not tender the safety procedures that Swick relied upon.
[43] Ms Underwood’s evidence was that while the letter of termination had been prepared prior to the 7 April meeting that Swick would have revoked its decision “if he had brought forward anything different”. According to Ms Underwood, Mr Edgar was unable to add any additional information she felt was relevant to the incident including why he should not be terminated.
[44] Ms Underwood stated that during the meeting Mr Edgar acknowledged that he had not followed the correct reporting procedure and that his actions could have led to more serious consequences. She maintained that it was only after hearing his further explanation which mainly addressed other issues and at the conclusion of the meeting that Mr Edgar was given a copy of his termination letter.
[45] Ms Underwood also stated that Ms Edgar’s recent poor record, with two written warnings and one verbal warning, had been taken into consideration.
Evidence of Mr Maynard
[46] Mr David Maynard is the Site Supervisor at the Golden Grove mine site for Swick. Mr Maynard is Mr Edgar’s supervisor. Mr Maynard disputed that Mr Edgar advised him that he was tired or fatigued prior to the accident. Mr Maynard maintained that Mr Edgar had mentioned other medical issues to which Mr Maynard responded that he could go and see the nurse however Mr Edgar declined to do so. 27
[47] Mr Maynard’s evidence was that Mr Edgar had asked for a night off prior to the accident on the basis that he recently had the flu. Mr Maynard stated that he asked Mr Edgar whether he was fit for work, to which Mr Edgar responded that he was; he just didn’t want anyone else to be infected with the flu as he had caught the flu from somebody at work on his last swing. Mr Maynard then advised Mr Edgar that if he was fit to work he should go to work and if he didn’t feel well throughout the shift he should give him a call and he would be brought back to camp. 28
Evidence of Mr Farr
[48] Mr Michael Farr, the Area Manager for Golden Grove operations, provided a witness statement, 29 gave evidence and was cross-examined by Mr Edgar. Mr Farr advised that on 2 April 2017 he was contacted by the Site Supervisor Mr Maynard and informed of the incident involving the light vehicle contacting the wall whilst leaving the underground at the end of the shift.30
[49] Mr Farr stated he was concerned when alerted to the actions following the incident, in that the incident scene was not preserved for further investigation and instead the vehicle had been driven to the nearest safe location where a tyre was changed and then further driven to the surface supervisor’s office before any report was made to the supervisor. This was in breach of the site safety procedures. On this basis he advised the supervisor to stand Mr Edgar down until the incident could be investigated and he could liaise with the HR team and the client (MMG) contact. 31
[50] An email to Mr Farr from the client representative about the incident, dated 2 April 2017, referred to the vehicle damage and the failure to preserve the incident scene and included the client’s request to remove Mr Edgar from site. 32 Mr Farr stated that on 3 April 2017 he referred the matter onto the HR team and requested advice on the investigation outcome. He stated that on 4 April 2017, he received the email that was sent to Swick’s CEO which sought approval to terminate Mr Edgar’s employment. The request for approval to terminate was based on the facts as set out in the incident report and coupled with the recent poor performance record of Mr Edgar while working at another site.33
[51] Mr Farr was cross-examined on the previous warnings that Mr Edgar had received and maintained that they were justified.
Evidence of Mr Harding
[52] Mr Shannon Harding is employed as the Swick General Manager Support Services. This position covers all support services, health and safety training, HR and administration responsibilities. Mr Harding attended the 7 April meeting together with Ms Underwood.
[53] Mr Harding’s evidence was that Mr Edgar was provided with an opportunity at the meeting of 7 April to respond to the proposition his employment would be terminated and that Mr Edgar spoke for approximately 20 minutes. Mr Harding stated that more information from Mr Edgar was needed before the decision to terminate could be finalised. Mr Harding said that Mr Edgar’s response was that Mr Edgar accepted that he had made a mistake, but offered little reason as to why his termination should not proceed. Mr Harding stated that he had made notes at the meeting but these were not provided to the Commission. Mr Harding’s evidence was that only at the conclusion of the meeting was the termination of employment letter provided to Mr Edgar.
Evidence of Ms Kelly Shalders
[54] Ms Shalders is the Swick Injury Health Advisor and became involved in managing Mr Edgar’s October 2016, shoulder injury and subsequent workers’ compensation claim. Ms Shalders’ evidence was that employees were not treated any differently due to having sustained a workplace injury. She was unaware of any bad feeling towards Mr Edgar on his return to work following his injury and maintained that such an approach would be against the ethics of Swick management.
Consideration
[55] Section 387 of the Fair Work Act 2009 (FW Act) sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
“Section 387 Criteria For Considering Harshness
…
(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.”
[56] I will now consider each of these factors in turn.
Valid reason
[57] The Federal Industrial Relations Court 34 considered the concept of a valid reason for termination in Selvachandran v Peteron Plastics Pty Ltd35 (Selvachandran), a decision of Northrop J. Despite being a case under previous legislation, it is applied in this Commission. In Selvachandran, his Honour found that:
“In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[58] Comments made by Wilcox CJ in Kenefick v Australian Submarine Corporation Pty Ltd 36 are also relevant in considering the meaning and approach to ‘valid reason’:
“I think it follows that the reason must be genuine, that there must be a causal relationship between the reason and the termination and that the termination must be a logical response to the employee’s capacity or conduct or the employer’s operational requirements.”
[59] It is well established that an assessment of whether a dismissal is harsh, unjust or unreasonable does not involve the Commission putting themselves in “the shoes” of the employer and determining what they would have done in the circumstances, but is to assess whether the employer had a valid reason connected with the employee’s capacity or conduct 37 and then consider all other relevant factors as required by the FW Act.
[60] It is clear that Mr Edgar did not follow the required reporting procedure following his vehicle accident. While the relevant procedures were not produced to the Commission in the hearing by Swick, Mr Edgar to his credit, did not dispute that he had breached the procedure which he was aware of having attended the relevant training. Mr Edgar stated in his written submissions 38 under the heading - Driving from scene of an accident states:
“I don’t really have much to say but yes I did, I made the wrong decision after the accident”.
[61] Failing to preserve the scene of the accident for the purposes of an investigation, and failing to report the incident immediately provided Swick with a valid reason for termination. Mr Edgar’s statement made to the Swick on the day of the incident made no reference to having fallen asleep or being tired. 39 This is in contrast to Mr Edgar’s evidence at the hearing, that he was exhausted at the end of his shift and may have had a micro sleep at the time.
[62] While this explanation was not provided in his statement made at the time, even if accepted it does not excuse the failure to follow the correct procedure. Mr Edgar was not terminated for having damaged a vehicle but for failing to preserve the scene of the accident and failing to immediately report the incident. His explanation at the hearing for failing to preserve the scene was that he wasn’t thinking straight after the accident. It is noted that Mr Edgar was required to see the site medical officer after the accident, however no evidence was provided to the Commission to substantiate his explanation of exhaustion and not thinking straight.
[63] For the above reasons I am satisfied a valid reason existed for the termination of employment.
[64] Swick also took into account the client having removed the site access for Mr Edgar. This was based on an email received from a Mark Van Heerden said to be the client’s Geology Manager sent on 2 April 2017 to Mr Farr. MMG has a contractual right to direct contract personnel to leave the site, the email from Mr Van Heerden stated:
“Regarding the LV (light vehicle) I would not want to see that individual stay on this site. We cannot have people not reporting incidents.” 40
[65] Ms Underwood stated that this was an implied contractual direction to remove Mr Edgar from the site and denying him future site access. While it is understandable that a contractor will normally act to appease a client where possible to preserve the relationship, it is not clear that Mr Van Heerden’s email is a contractual direction.
[66] Simply acting on the instructions of a client would be insufficient to establish a valid reason for a dismissal as was discussed by the Full Bench in Tasmanian Ports Corporation Pty Ltd t/a Tasports v Mr Warick Gee. 41 However in this matter I am satisfied that Swick independently concluded that Mr Edgar’s conduct warranted dismissal.
[67] In regard to the recent performance warnings that Mr Edgar had received I consider they were relevantly taken into consideration due to their currency, although the evidence did not establish that the incidents themselves were the result of any blatant negligence or deliberate flouting of proper process.
Whether Mr Edgar was notified of the reason for his dismissal and whether he was given an opportunity to respond to any reason related to his capacity or conduct
[68] As mentioned above Mr Edgar was under the impression that he would be terminated following the 2 April vehicle accident. On 7 April 2017, he was advised of the reason for termination and had opportunity with a support person present to raise any further issues in his defence, which he took the opportunity to do.
[69] Mr Edgar submitted that as the termination letter had been written prior to the meeting and given to him at the start of the meeting that Swick had predetermined that his dismissal would take effect irrespective of what he had to say at the meeting.
[70] Ms Underwood stated that the decision to terminate Mr Edgar had been made prior to the meeting; however the decision was open to being revoked if Mr Edgar provided evidence at the meeting showing he should not be terminated. She maintained the termination letter was provided at the end of the meeting. Mr Harding stated that a final decision had not been made and that the termination letter was not provided until having heard from Mr Edgar.
[71] This aspect of the respondent’s termination procedure causes some reason for concern. In Crozier v Palazzo Corporation Pty Ltd, 42 a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”’ 43
[72] In Gibson v Bosmac Pty Limited 44 Wilcox CJ, made the following finding in regard to the application of procedural fairness, although the case was determined under a previous Act, it is applied in this Commission:
“Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”
[73] Ms Underwood’s evidence was that the decision to terminate had been made before the meeting of April 7, thus the termination letter was prepared. Whether the letter was provided at the commencement of the meeting or at the end both parties agree that Mr Edgar was advised at the commencement of the meeting that Swick had determined that his conduct following the incident on 1 April warranted his termination of his employment.
[74] Mr Harding was less categorical than Ms Underwood in stating that the meeting was arranged to elicit more information from Mr Edgar than he had provided in his incident report. Following Mr Edgar’s response there does not appear to have been any separate consideration by Swick management as to whether the decision to terminate should be reviewed.
[75] All relevant witnesses confirmed that Mr Edgar spoke for at least 20 minutes regarding the proposed dismissal and setting out why that should not occur. Nothing raised by Mr Edgar changed the view of the respondent that his employment should be terminated. At the meeting Mr Edgar accepted his wrongdoing in respect of his conduct in failing to observe the site safety procedures.
[76] Despite what could be considered to have been a predetermined outcome, having heard what Mr Edgar stated at the meeting in his defence it is clear that the outcome would have been unchanged irrespective of whether the decision to terminate had already been made. To the extent that there may have been flaws in the process adopted by Swick, when viewed in its entirety Mr Edgar was still given the opportunity to respond. 45
[77] As the Western Australian Industrial Appeal Court in the Shire of Esperance v Mouritz 46 stated in regard to the procedural fairness of a dismissal:
“The unfairness of the dismissal cannot therefore be determined by the procedural unfairness alone.”
Any unreasonable refusal by the employer for Mr Edgar to have a support person present to assist at any discussions relating to his dismissal
[78] Mr Edgar was invited to attend the dismissal meeting with a support person and did so, attending with Mr Ross Ferguson.
If the dismissal related to unsatisfactory performance whether the person had been warned about that unsatisfactory performance before the dismissal
[79] While Mr Edgar had received previous final written warnings regarding unsatisfactory performance, they were not directly related to the reason for his dismissal.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[80] Given Swick Mining Services professes to be one of Australia's largest mineral drilling contractors 47 its dismissal procedures should be consistent with ‘best practice’ on this basis.
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
[81] This is not a relevant consideration in this application.
Any other matters that the FWC considers relevant
[82] Mr Edgar contended that following his work related injury Swick adopted an approach with written and verbal warnings that were designed to obtain his resignation. On the evidence before the Commission this submission was not made out. Swick’s Injury Health Advisor Ms Shalders provided evidence that Mr Edgar was provided with ample support following his workplace injury. Mr Edgar’s cross examination of Mr Farr and Mr Maynard did not elicit any evidence to support his contention.
[83] I have considered Mr Edgar’s length of service with Swick of approximately 2 years and 4 months and do not regard this as a factor leading to the dismissal being harsh, unjust or unreasonable. I have also had regard to Mr Edgar’s submissions concerning other site safety issues that he has raised in this matter but don’t consider that they are sufficiently relevant to impact on his unfair dismissal claim. 48
[84] Having found that a valid reason for the dismissal existed and considering all other factors under s.387 of the FW Act, including that he was dismissed with payment of his notice period, I am unable to find the existence of any circumstances to conclude that the dismissal was harsh, unjust or unreasonable.
[85] The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Edgar on his own behalf.
Ms Underwood for the Respondent.
Hearing details:
2017.
Perth.
17 July.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR594719>
1 On some documentation the incident is said to have occurred on 1 April
2 Exhibits R1, Statement of Anthony Whitelock; R2, Incident report dated 2 April ; and A5, Written Statement dated 1 April
3 Respondent’s submissions, filed 6 July 2017
4 Exhibit A6, Termination letter
5 [2015] FWCFB 523
6 Ibid at [11]
7 Exhibit A1, Submissions of Nicholas Edgar
8 Ibid
9 Ibid
10 Ibid
11 Ibid
12 Ibid
13 Exhibit R2
14 Form F2
15 Exhibit A5
16 Exhibit R1; Exhibit R2
17 Exhibit A4, Warning (verbal) dated 23 January
18 Exhibit A3, Warning (final) dated 1 February
19 Exhibit A1
20 Exhibit A2, Warning (final) dated 25 February
21 Respondent’s submissions, filed 6 July 2017
22 Services Agreement between MMG Australia Limited and SMS Operations Pty Ltd
23 Respondent’s submissions, filed 6 July 2017
24 Exhibit R4, Witness statement of Ashlee Underwood
25 Ibid
26 Ibid
27 Exhibit R5, Witness statement of David Maynard
28 Ibid
29 Exhibit R6, Witness statement of Michael Farr
30 Ibid at [1]
31 Ibid at [3]
32 Exhibit R3, Email dated 2 April 2017
33 Exhibit R6 at [6]
34 As is then existed
35 (1995) 62 IR 371
36 (1995) 131 ALR 197, (1995) 62 IR 107 at 116
37 As per Moore J in Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685
38 Exhibit A4
39 Exhibit A5
40 Exhibit R3
42 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137
43 Ibid at 151
44 (1995) 60 IR 1
45 See majority decision of Mason CJ, Brennan, Dawson, Toohey, and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578
46 71 WAIG 899
47 Swick website
48 See John Sexton v Pacific National ACTU Pty Ltd