| [2020] FWC 4547 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Denis Hajder
v
Agnew Gold Mining Company Pty Ltd T/A Gold Fields
(U2020/2359)
COMMISSIONER WILLIAMS |
PERTH, 1 SEPTEMBER 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application made by Mr Denis Hajder (Mr Hajder or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Agnew Gold Mining Company Pty Ltd T/A Gold Fields (Gold Fields or the Respondent).
[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.
[3] At the hearing of this matter the Applicant gave evidence and did not call any other witnesses. For the Respondent evidence was given by Mr Travis Carter (Mr Carter), the Unit Manager Underground Mining, Mr Daniel Lane (Mr Lane), the Underground Foreman, Ms Nikki Levitt (Ms Levitt), the Unit Manager Human Resources, Mr Ronald Morelli (Mr Morelli) an Underground Truck Operator and Mr Gregory Zofrea (Mr Zofrea) the Production Supervisor (“Shift Boss”).
[4] The Respondent is a resources company that mines and explores gold ores in the eastern Goldfields region of Western Australia.
[5] The Applicant commenced employment with the Respondent as an Operator Truck Driver on 1 February 2018.
[6] The Applicant’s employment was subject to an offer of employment dated 22 December 2017 which was signed by the Applicant (Letter of Offer). 1
[7] The Applicant’s employment was covered by the Gold Fields Companies Enterprise Agreement 2018 [AE429177] (the Enterprise Agreement).
[8] Clause 20.7 of the Enterprise Agreement states:
“(a) any unauthorised absence will be subject to disciplinary action and may result in termination of employment. The Employee will not receive payment for the duration of the unauthorised absence.
(b) If the Employee is absent from work for three consecutive working days without notification to the Employer, they will be deemed to have abandoned employment from the time of their last attendance at work, and the Employer after making reasonable efforts to contact the Employee shall be entitled to treat the Employee's employment as having been terminated without notice by the Employee.”
[9] Clause 8 of the Letter of Offer states the Respondent’s policies and procedures apply to the Applicant.
[10] The Respondent has a ‘Leave Policy’, which provides that an:
“employee is to telephone their immediate supervisor as soon as possible to advise that they will not be attending work. If they cannot get in contact with their immediate supervisor, they are to telephone the department's superintendent or foreman or the Head of Department.”
[11] All employees of the Respondent working at the Agnew mine site are made aware of policies and procedures that apply to their employment.
[12] The Applicant undertook an induction when he commenced his employment with the Respondent and is aware the Respondent has policies and procedures that apply to his employment as set out above. 2
[13] The Applicant’s evidence is that about 2.30 a.m. on 26 December 2020 he was driving his truck to get loaded and there was another truck driven by Mr Morelli that was following him.
[14] There are two radio channels used for communication. One is channel 2 that gets broadcast all over the mine. Another is channel 15 which is used as line of sight, which means you can only communicate with people that are close by.
[15] The Applicant says he thought it was Mr Morelli using the line of sight radio channel asking him how many loads he had done so far. The Applicant says he replied he do not know exactly how many trips he had made.
[16] The Applicant says in reply on the other side of the radio was the shift boss Mr Zofrea yelling and swearing at him for not telling him how many trips he had made.
[17] The Applicant agrees it is common for a Supervisor to ask how many loads a driver has extracted during a shift and it would be normal to respond to that question. 3
[18] The Applicant’s evidence was he then got on the radio and said that he was sorry and he thought he was talking to Mr Morelli and he told Mr Zofrea not to speak to him that way.
[19] He says Mr Zofrea responded on the radio calling him a “fucken dickhead” and an “idiot”. The Applicant says he did not say anything as he did not know how to respond. He says Mr Zofrea kept swearing and screaming at him.
[20] A few minutes later he got to a place where the truck gets loaded and Mr Morelli pulled up behind him. He says he asked him on the radio if he heard the whole conversation and he replied that he did, but he chooses not to.
[21] The Applicant says he got his truck loaded and started to drive up the decline.
[22] He says he was emotionally distressed and could not stop thinking about what happened. He says he did not know what to do and he just needed to get out of the mine.
[23] On the way up, he called one of the most experienced workers on the site on the radio and asked to see him as he was driving towards him. They pulled over at a safe place and the Applicant told him what happened. He said that he will talk to the Supervisor and tell him he should not behave as he did. The Applicant told him that he will take the truck to the surface and leave it there and he asked him to talk to the Supervisor and tell him not to abuse him anymore.
[24] He got to the surface and parked as he did not feel he was in right place of mind to keep driving while distressed.
[25] The Applicant agrees that he returned to the surface without completing his shift. 4
[26] The Applicant says Mr Zofrea the Shift Boss was there and the same thing happened. The Applicant says he told Mr Zofrea not to talk to him and left to the change room. The Applicant says Mr Zofrea followed him and the Applicant says he told him that if he does not stop he would call an emergency on a radio channel. Then Mr Zofrea left.
[27] The Applicant agrees it is quite possible that Mr Zofrea was telling him he should have been down collecting another load. 5
[28] The Applicant’s evidence under cross examination was that there was no physical altercation at all with Mr Zofrea and nobody physically threatened him. He says he was not scared by Mr Zofrea. He says there was no reason to be scared. The Applicant says he never swears. 6
[29] The Applicant says he got changed and asked people from the maintenance shop to get him away from there and give him a lift to camp, but Mr Zofrea said he was not allowed to leave and had to wait for the Foreman, Mr Lane, to arrive so he waited.
[30] The Applicant says when Mr Lane arrived he said he wanted the Applicant and Mr Zofrea to sort it out between themselves.
[31] The Applicant replied he did not want to talk to Mr Zofrea and Mr Lane told the Applicant he needed to speak to Mr Zofrea and sort it out immediately.
[32] At that point the Manager, Mr Carter, was passing by and the Applicant asked to speak to him. The Applicant says he explained what happened and Mr Carter was very professional and calm.
[33] The Applicant agrees he met with him in his office for most of the morning. 7
[34] Mr Carter asked the Applicant to fill in an incident report which the Applicant did.
[35] The Applicant’s evidence was that Mr Carter then sent him back to the camp on a different bus that the maintenance department use.
[36] The Applicant’s evidence was that this was the last day of the Applicant’s swing and a couple of hours later he was on a plane beginning five weeks’ holiday.
[37] The date the Applicant was scheduled to return to work was 30 January 2020. 8
[38] The Applicant says he thought by the time he got back to work he would get over it and it will be all ok by then. Five weeks had gone by and it was time for him to get ready for his flight, but he says he was not ok.
[39] The Applicant says he had not had any issues with anyone before this.
[40] The Applicant says he needed to talk to someone within HR and believed that they fly in on Mondays. So, the Applicant says after a few days on Sunday, 2 February 2020 he sent a message to the Safety Representative Mr Keith Rudling (Mr Rudling) and asked him if he can get HR to call as soon as they can.
[41] The Applicant says he got an email from Ms Levitt of HR that evening to see if he was ok. The Applicant called her first thing the next morning Monday, 3 February 2020. The Applicant says she did not know anything about the incident and was more worried that he was not working at that moment.
[42] The Applicant agrees that he was required by the Respondent to contact his Supervisor in the event he was unable to return for work as rostered. 9
[43] The Applicant says Ms Levitt wanted him to get on the first flight back to site and have a meeting with her and the Manager, onsite at the workplace. He asked not to be exposed to the same environment and have a meeting over the phone or in Perth, which was declined initially but later they agreed to have a phone meeting.
[44] During this phone meeting he says they were not interested in talking about the incident, but for him to come back to site to attend a disciplinary meeting for missing a few days of work.
[45] The Applicant says he responded by saying that the incident on 26 December 2019 was the reason he was not there and as soon as that was resolved he would be more than happy to be employed by the Respondent.
[46] The Applicant says he suggested to resolve the issue maybe an apology would go a long way for him to get over it, or that he got transferred to a different site.
[47] The Applicant says the next day was the termination of his employment.
[48] The Applicant agrees that he chose not to return for work on Thursday, 30 January 2020 the date he was rostered to resume work nor on Friday, 31 January 2020, Saturday, 1 February 2020 or Sunday, 2 February 2020. 10
[49] The Applicant agrees he had not contacted anyone during his five weeks’ annual leave to discuss the incident that occurred on 26 December 2019. The first time he did anything was on Sunday, 2 February 2020 when he asked the Safety representative to contact HR for him. 11
[50] The Applicant agrees there is another Foreman onsite, Mr Fleming.
[51] The Applicant agrees he got a couple of phone calls and messages from Mr Fleming but did not respond to these or listen to them. He confirmed again he had no issue with Mr Fleming. 12
[52] During the phone discussion with Ms Levitt on Monday, 3 February 2020 the Applicant denies saying that he should not have to call to say he would not be at work. He says during a conversation he told her what occurred on 26 December 2019 was a big deal and needed to be resolved whereas missing a couple of days of work was not a big deal. 13
[53] The Applicant agrees that the same day Ms Levitt sent him a letter directing him to return to work and to attend a meeting at the mine site. The Applicant agrees he refused to comply with that direction. 14
[54] On 4 February 2020 there was another phone discussion between Ms Levitt and the Applicant. During this conversation the Applicant says he told her that the incident needs to be dealt with before he can go back to work and that he was not going back to work before the incident had been resolved. 15
[55] Under cross-examination he agreed that Ms Levitt asked him directly “are you coming back to work?” and he said “no.” She also asked him if he was okay and he agreed he was but would not return to site before the incident had been resolved. 16
[56] The Applicant agrees she asked him if he was mentally or physically unfit to work and he told her that he did not need to go to a doctor or anything.
[57] His evidence was that they were not interested in talking about the incident and wanted him to return to work to face disciplinary action for not coming to work for the last couple of days. 17
[58] The Applicant agrees that he, by letter, was directed to attend the meeting on 5 February 2020 but this was changed to a show cause meeting by telephone to be held on 6 February 2020. He agrees he was offered the opportunity to have a support person present at that show cause telephone meeting. 18
[59] Ms Levitt confirmed during the show cause telephone meeting on 6 February 2020 that the Applicant’s employment had not yet been terminated and that he could return to work. 19
[60] The evidence of Mr Morelli was that around 3.30 a.m. on 26 December 2019, he was driving down the decline and Mr Hajder, who was also an Underground Truck Operator, was driving in front of him.
[61] It was close to the end of their shift and they were probably on the second last load for that shift. The shift was ending at 6.00 a.m.
[62] Mr Morelli says he heard the Shift Boss, Mr Zofrea, say over the radio words to the effect of “how many loads have you got for the night?”.
[63] Mr Morelli assumed he was talking to him. Before he could reply, the Applicant responded over the radio words to the effect of “Oh, who gives a fuck! I’m going home in the morning!”.
[64] He then heard Mr Zofrea say something like “I care because I get asked how many loads, and why by the bosses”.
[65] After this, he recalls Mr Zofrea telling Mr Hajder to be quiet and then asking again what the numbers were.
[66] Mr Morelli replied with words to the effect of “If I can get a word in - three or two waste, probably five all up, I am not sure about the other two truckies.”
[67] The other two “truckies” he was referring to, were two other Underground Truck Operators also working that shift.
[68] After this exchange over the radio, Mr Morelli did one more load and then returned to the surface. He tagged off for work at around 5.30 a.m. that morning.
[69] After Mr Morelli tagged off, the Underground Foreman, Mr Lane, approached him and said, “I need you to write a statement about all this”. He understood he was referring to the exchange between Mr Zofrea and Mr Hajder over the radio.
[70] Mr Morelli went into the crib room and wrote out a one-page statement.
[71] He did not see Mr Hajder when he came to the surface that morning of 26 December 2019 and has not heard from him since they spoke on the radio at that time.
[72] In his experience it is not uncommon for a Shift Boss to ask how many loads there are toward the end of the shift.
[73] Mr Morelli says he did not hear Mr Zofrea being abusive or swearing towards the Applicant. 20
[74] The evidence of Mr Zofrea was that around 3.15 a.m. on the morning of 26 December 2019, he was doing his last run underground and he drove up behind Mr Morelli and asked over channel 15 on the radio something like “how many loads of ore are we going to get?”.
[75] Underground, channel 15 is a ‘line of site’ station so only someone a short distance away would be able to hear what you say over the radio. At this time, Mr Zofrea had not seen Mr Hajder’s truck and was not aware he was driving in front of Mr Morelli.
[76] Mr Zofrea then heard Mr Hajder’s reply over the radio saying words to the effect of “I don’t care, fucking, we are going home.”.
[77] In response, Mr Zofrea said something like “Denis could you shut up, I’m talking to Rocket, we’re not finished yet”. Rocket is Mr Morelli’s nickname onsite.
[78] Mr Hajder tried to interrupt again saying something “Fucking…” at which point he said something like “Rocket, can you please give me the numbers” to which Mr Morelli replied saying “if I can get a word in...” and told him the numbers.
[79] Mr Zofrea says Mr Hajder kept yelling and swearing, but he cannot recall the detail of what he said other than “fucking, fucking”. He said to the Applicant he would see him up top.
[80] After that he went back to the surface. He had a shower and went to his office so that he could fill out the shift sheet.
[81] On the way to the office, he saw the Applicant at the tag board and was surprised because his shift was not finished yet. He said something like “Oh Denis, what are you doing here. You should be getting another load”.
[82] Mr Zofrea says Denis started yelling and swearing at him words to the effect of “You fucking, get away from me, you scare me…you shouldn’t fucking talk to me like that” so he walked away.
[83] By this time it was around 3.30 a.m. or 4.00 a.m. He says he went into the office and called the Foreman, Mr Lane and explained to him what had happened and said “can you please come to work now”.
[84] While he was waiting he spoke to Mr Morelli and asked him to write a statement of what had happened underground. Mr Morelli prepared a written statement and Mr Zofrea also prepared his own written statement.
[85] Mr Zofrea says he asked Mr Hajder to write a statement as well, but when he approached him he said words to the effect of “get away from me you crazy, fucking.”
[86] Mr Zofrea says Mr Lane arrived at site at around 4.30 a.m. or 4.40 a.m. and as Mr Lane was pulling in to park his car, Mr Hajder approached his car.
[87] Mr Zofrea’s evidence is Mr Lane got out of the car and appeared to be trying to direct Mr Hajder back over towards the office. Mr Hajder was irate and just kept yelling at Mr Zofrea, and now also at Mr Lane.
[88] Around this time, Mr Carter arrived and Mr Hajder then approached Mr Carter.
[89] Mr Zofrea then says Mr Carter took Mr Hajder into his office to calm him down and take a statement.
[90] Mr Zofrea did not see the Applicant again after this.
[91] The evidence of Mr Lane was that on the morning of 26 December 2019 at around 3.15 a.m. he received a call from the Mr Zofrea.
[92] He explained to Mr Lane that there had been an issue with Mr Hajder and said words to the effect of “he’s going off, he is angry and pissed off”.
[93] Mr Lane says he was still in bed and so arrived at the Administration Office around 4.45 a.m.
[94] As he was parking outside the office, Mr Hajder approached his vehicle and started trying to get into the car at the same time that Mr Lane was trying to get out.
[95] Mr Lane’s evidence is Mr Hajder appeared agitated and, while he was trying to get into the car, he said something like “you have to take me back to camp”.
[96] Mr Hajder was obstructing Mr Lane from getting his bag out of the car so he said words to the effect of “get out of my fucking way. 21
[97] He told Mr Hajder that they should talk about it in the office.
[98] Mr Hajder became increasingly animated. He was saying something like “I can’t be in the same room as him”. Mr Lane understood Mr Hajder was referring to Mr Zofrea.
[99] Mr Lane says Mr Hajder was yelling louder and louder, so he pointed his finger at him and told him to “calm down”.
[100] At this point, Mr Carter, the Unit Manager, arrived.
[101] Mr Lane’s evidence is when Mr Hajder saw Mr Carter, he approached him and again started saying that Mr Zofrea was dangerous and that he needed to be taken back to camp.
[102] Mr Hajder said words to the effect of “I am being bullied and victimised”.
[103] Mr Carter took Mr Hajder into his office and Mr Lane took Mr Zofrea into his office.
[104] In the office, Mr Zofrea told him that, while underground:
(a) he had been driving behind Mr Morelli, another Underground Truck Operator, and had asked on the radio “how many trucks” there were;
(b) he did not know there was another truck in front of Mr Morelli;
(c) in response, Mr Hajder had said on the radio “I don’t give a fuck I am going home”;
(d) he told Mr Hajder words to the effect of “I am not talking to you. Ron - how many trucks?”; and
(e) Mr Hajder interrupted again, so he told Mr Hajder to “shut up”.
[105] Mr Zofrea told Mr Lane that once they came to the surface, Mr Hajder approached him and demanded to go home and said that the way he was spoken to was not right and he just started carrying on.
[106] Mr Lane asked Mr Zofrea to write a statement of what had happened, which he did. Mr Zofrea gave him the statement and left.
[107] Later, at 7.22 a.m. on 26 December 2019, he received an email from Mr Jim Innes, Superintendent, Underground Maintenance attaching photographs of Mr Hajder’s truck from that morning. 22
[108] The photographs show the truck was left in a poor condition after the Applicant’s shift. There were a number of rocks left in the area behind where the Operator would sit.
[109] Generally, at the end of a shift the Operator will hose off loose rocks or will report the truck to Maintenance to be cleaned.
[110] While it is not a requirement to remove rocks from the truck if an Operator is unable to do so, it is a requirement to inspect the trucks at the end of shifts and report any defects or issues that need attention. Rocks on the engine covers of a truck is an item that would require attention. 23
[111] Mr Lane says the photographs show that Mr Hajder failed to appropriately clean his truck before he finished his shift.
[112] The evidence of Mr Carter was that on 26 December 2019, he arrived at work at around 4.45 a.m.
[113] As he approached the Administration Office he saw Mr Lane, Mr Zofrea and Mr Hadjer standing in the doorway of the building. He could not hear much of what they were saying, but they seemed to be having a heated discussion.
[114] Mr Carter says it looked like Mr Zofrea was trying to speak to Mr Lane and kept getting interrupted by Mr Hajder. He then heard Mr Lane say to Mr Hajder words to the effect “go speak to Travis.”
[115] As Mr Carter entered the Engineering building, Mr Hajder followed him into his office. He seemed to be very emotional and was not making a lot of sense, but Mr Carter recalls him saying something like “This is so unfair, I was spoken to rudely”.
[116] Mr Carter says Mr Hajder was very worked up and he could see that they were not going to resolve the issue then and there. He was saying words to the effect of “Greg abused me and disrespected me.”
[117] He was aware that Mr Hajder had already completed a statement, but he could tell that he was very worked up and thought he may wish to provide more detail.
[118] He says he gave Mr Hajder a few copies of the template document to make a further statement. He told him to fly out, get some sleep, calm down and speak to his wife so that he could put together a logical statement that he could review. Mr Carter asked Mr Hajder to provide him with the statement within the next 24 or 48 hours and gave him a copy of his business card so he had his details.
[119] Mr Hajder stayed in his office for around 10 more minutes. Mr Carter had to repeat himself a number of times as he tried to calm him down. Then he left the office and site to fly out. Mr Hajder was still very emotional at this point.
[120] After Mr Hajder left, Mr Carter spoke to Mr Lane about what had happened and then spoke with Ms Levitt and Ms Bri Kent (Ms Kent) in the breezeway to explain what had happened and told them that he was waiting for a more detailed statement from Mr Hajder.
[121] Mr Hajder did not provide him with a further statement.
[122] Mr Carter was aware that Mr Hajder was going to be on a period of annual leave after he flew out. He did not see or speak with Mr Hajder again until Ms Levitt and he called Mr Hajder for a show cause meeting on Thursday, 6 February 2020.
[123] On 2 February 2020 Mr Carter was copied in to an email from Mr Fleming, the other Underground Foreman at the mine site, to Ms Levitt.
[124] In the email, Mr Fleming noted Mr Hajder was a “no show” for his flight back to site on 30 January 2020 and that he had not responded to any attempts to get in touch with him.
[125] At 5.30 p.m. on 3 February 2020 Mr Carter sent a letter to Mr Hajder, by way of email from Ms Levitt. The letter required him to attend a meeting with Mr Carter and Ms Levitt, onsite at 10.00 a.m. on 5 February 2020. Mr Hajder was offered the opportunity to bring a support person to this meeting.
[126] The letter outlined that the meeting was to discuss his:
(a) comments made during a verbal altercation with a Supervisor on the night shift on 25 December 2019;
(b) failure to return to site for a rostered shift on 30 January 2020;
(c) failure to notify a direct supervisor that he would not be returning to site, in accordance with the Gold Fields’ Leave Policy;
(d) failure to respond to numerous attempts by his Managers and colleagues over a period of three days to ascertain his whereabouts and check on his welfare after a period of five weeks’ leave; and
(e) failure to return to work, due to Mr Hajder feeling that the altercation on night shift on 25 December had not been resolved.
[127] At 12.28 p.m. on 4 February 2020, Mr Carter was copied in to an email from Ms Levitt to Mr Hajder, confirming the contents of a phone call that he understands Ms Levitt had with Mr Hajder earlier that day. The email also confirmed that it was a direct and reasonable instruction from Mr Hajder’s Supervisor to attend the meeting scheduled for 5 February 2020 and requested that Mr Hajder confirm his attendance by close of business that day.
[128] On 5 February 2020, Mr Carter sent a letter to Mr Hajder confirming that he was required to attend a show cause meeting the following day on 6 February 2020 at 1.30 p.m. which would take place by telephone because Mr Hajder had told Ms Levitt that he would not attend site.
[129] The letter noted that the meeting was to provide Mr Hajder with an opportunity to respond to a number of matters, to provide further information or mitigating factors which may be relevant for the company to consider prior to terminating his employment. The letter specifically referred to the Applicant’s failure to:
(a) attend his rostered shift;
(b) comply with Gold Fields’ Leave Policy;
(c) respond to attempts to contact him;
(d) return to work as directed by his Supervisor; and
(e) participate in discussions regarding the altercation on 25 December 2019.
[130] The letter also noted that an investigation had been conducted into the 25/26 December 2019 incident and that it was found that Mr Hajder displayed inappropriate and unprofessional behaviour, refused to finish his rostered shift, left his vehicle in an unacceptable state and, in doing so, breached the Gold Fields’ Values of Respect and Honest throughout the process.
[131] On 6 February 2020 Mr Hajder texted Ms Levitt just prior to 1.30 p.m. to ask if we could change the meeting to 1.45 p.m. instead. Mr Hajder then requested a further 15 minute delay, which they denied.
[132] At around 1.45 p.m., Ms Levitt and Mr Carter telephoned Denis.
[133] During the call, Mr Carter’s evidence is Mr Hajder told them that it was not his intention to not return to work but he “still felt very strongly” about what had occurred on 26 December 2019.
[134] When asked why he did not contact a Supervisor to explain he was not returning to work Mr Carter says Mr Hajder had no answer.
[135] Mr Hajder appeared distracted and continued to generally accuse Gold Fields of unprofessional behaviour towards him. At one point, Mr Carter asked Mr Hajder if he was driving and Mr Hajder said words to the effect of “yes, you’re on speaker phone and I can hear you”.
[136] Mr Carter then told Mr Hajder to pull over to the side of the road to have “a proper conversation”, explaining that we were potentially discussing his employment and that he was not taking it very seriously.
[137] Ms Levitt explained that the investigation regarding the incident underground on the morning of 26 December 2019 had been kept open, pending a further statement from Mr Hajder, but as none was provided the investigation was now closed.
[138] Mr Carter says Mr Hajder then said words to the effect of “I know I have been terminated”. Ms Levitt asked Mr Hajder why he thought that was the case if he had not received a termination notice.
[139] Mr Hajder seemed to get to a point where he no longer wanted to speak with them. He said he was going to get legal advice and then hung up abruptly.
[140] Mr Carter says they did not hear from Mr Hajder again.
[141] Ms Levitt’s evidence was that on 26 December 2019, whilst onsite Mr Lane and Mr Carter explained to her that there had been an incident on the night shift. They explained that there had been a verbal altercation between Mr Hajder and Mr Zofrea, the Shift Boss.
[142] Mr Lane said that he had received a call from Mr Zofrea to come up to site because of a verbal altercation over the radio.
[143] Mr Carter explained to her that when he arrived at the office, Mr Hajder was still very upset and that he had told Mr Hajder to head back to camp early and fly out. He also said that he had told Mr Hajder that he could do another statement on his break if he wanted to and gave him a template document.
[144] Ms Levitt was aware that Mr Hajder had a period of annual leave booked and would not return to site on the next roster. She said words to the effect of “OK, well we will wait for him to come back from leave and then we can deal with this.”
[145] While Ms Kent and she were speaking with Mr Lane, he also mentioned that there had been a truck “left in a bit of a condition” at the end of shift. Mr Lane said something like “I’ve never seen a truck left like that, whoever it was should get a warning.”
[146] On 2 February 2020 she was made aware by email that Mr Hajder was a “no show” for his flight back to site on 30 January 2020 and that he had not responded to any attempts to get in touch with him, including attempts to call Mr Hajder on 31 January 2020, 1 February 2020 and 2 February 2020, each time leaving a voicemail, all of which went unanswered.
[147] Apparently Ms Bernice Tengaru (Ms Tengaru), Administrator, had also messaged Mr Hajder. The message was unopened and Ms Tengaru had received no response.
[148] This is a breach of the Respondent’s Leave Policy, which requires an employee to make contact with their Supervisor as soon as possible if they will not be attending work.
[149] At this point, it had been four days since Mr Hajder was rostered to return to site and he had not contacted anyone at the Respondent to explain his absence.
[150] At 8.17 a.m. the same morning, Ms Levitt sent an email to Mr Hajder, noting that Mr Hajder did not board the flight to return to work for his rostered shift and that employees, including Mr Fleming, had received no response to their attempts to get in touch with him.
[151] She confirmed that the primary concern was for Mr Hajder’s welfare and that the Respondent would reach out to his next of kin if we had not heard from him by midday the following day, 3 February 2020. The email also noted that, if they did not hear back from him by the close of business on 3 February 2020, they would assume he no longer wished to be employed, and that his employment would be terminated for abandonment of employment.
[152] Later that day at 6.02 p.m., Ms Levitt was notified by way of email from Mr Fleming that Mr Hajder had sent a text message to a colleague, Mr Rudling, asking for HR to call him the following day.
[153] As Mr Hajder requested, Ms Levitt telephoned him in the morning on 3 February 2020.
[154] During the call, she asked Mr Hajder why he had not shown up for work or answered any of the attempts to contact him and why he wanted to talk to HR.
[155] Ms Levitt says Mr Hajder did not answer her questions about his failure to attend work and instead started talking about the altercation on 25/26 December 2019 with Mr Zofrea. The version of events that Mr Hajder was relaying to her did not match what Mr Lane and Mr Zofrea had previously told her about what happened.
[156] Mr Hajder said that during the shift, he had replied to the question on the radio about how many loads there were with something along the lines of “what’s it to you?” as a bit of a joke as he thought it was a colleague and then Mr Zofrea just started swearing and yelling at him and calling him names. He said that he was apologising and trying to calm Mr Zofrea down, but Mr Zofrea kept abusing him. Mr Hajder said that when Mr Lane came, Mr Lane was also abusive and swore at him.
[157] Mr Hajder said that he was upset that no one called him after the incident to apologise. Ms Levitt said something like “did someone tell you that they were going to call you? Because usually we try not to contact people during R&R” to which he said “no, but I expected an apology.”
[158] Ms Levitt says throughout the call, Mr Hajder was very emotional and was yelling a lot.
[159] She repeatedly tried to bring the conversation back to a discussion about his failure to attend work.
[160] When she asked him why he did not call someone to say that he was not coming to work, Mr Hajder said something like “I shouldn’t have to call in to say I won’t be at work, it’s not a big deal. People don’t turn up all the time.” When she asked Mr Hajder why he did not respond to any attempts to contact him, he again said words to the effect of “well, I shouldn’t have to.”
[161] She told Mr Hajder that she would come back to him once she had some further information and confirming that, as he was not on approved leave, he would not be paid while he refused to attend site. She suggested that he contact the Respondent’s EAP, PeopleSense, because he seemed very upset.
[162] This conversation went for approximately one hour.
[163] At 5.20 p.m. that afternoon, Ms Levitt emailed Mr Hajder attaching a letter that confirmed he was currently off work on unauthorised and unapproved leave, which meant that he would not be paid for the period he was away from site.
[164] The letter required him to attend a meeting with herself and Mr Carter on site at 10.00 a.m. on 5 February 2020. Mr Hajder was offered the opportunity to bring a support person to this meeting.
[165] The next day, on 4 February 2020, Mr Hajder telephoned her in the morning.
[166] During the call, Mr Hajder told her that he would not return to site to discuss any matters between himself and Mr Zofrea. He also told her he would not discuss any matters between himself and Mr Lane.
[167] During the call, Mr Hajder again became increasingly aggravated and was yelling and swearing.
[168] Mr Hajder said words to the effect of “Gold Fields has different values to me” and that he would not discuss the issue further and therefore the Respondent needed to “take any action needed”.
[169] Mr Hajder repeated several more times something like “your values are so different to mine”.
[170] Ms Levitt replied “OK Denis, I really need to clarify - are you OK and are you coming back to work?”
[171] Mr Hajder said he was “not OK” to come to site, but also said that he was not mentally or physically unfit. She asked Mr Hajder if he could provide a medical certificate and he said that he “didn’t plan on it”.
[172] Ms Levitt says Mr Hajder said goodbye and abruptly hung up. The conversation went for around 20 minutes.
[173] After the call, at 12.28 p.m., she sent Mr Hajder an email to confirm what he had said to her during the call.
[174] In the email, she confirmed that it was a direct and reasonable instruction from his Supervisor to attend this meeting and requested that he confirm his attendance by close of business that day.
[175] At 2.00 p.m. Mr Hajder sent her an email noting that he would talk to PeopleSense and then confirm his attendance for the meeting.
[176] By way of reply email, she told Mr Hajder that PeopleSense was a great option for confidential counselling and support but requested that he confirm his attendance at the meeting as soon as possible.
[177] She did not get a response from Mr Hajder and after their conversations it was clear that he was not going to comply with the direction to return to site and was not going to provide a medical certificate or other evidence to explain his failure to do so.
[178] On 5 February 2020 at 1.57 p.m., she emailed Mr Hajder attaching a show cause letter.
[179] The letter confirmed he was required to attend a show cause meeting the following day, 6 February 2020, at 1.30 p.m., which would take place by telephone because he had stated that he would not attend site and did not want to see anyone.
[180] The letter noted that the meeting was to provide him with an opportunity to respond to a number of matters and to provide further information or mitigating factors which may be relevant for the company to consider prior to terminating his employment. The letter specifically referred to the Applicant’s failure to:
(a) attend his rostered shift;
(b) comply with Gold Fields’ Leave Policy; respond to attempts to contact him;
(c) return to work as directed by his Supervisor; and
(d) participate in discussions regarding the altercation on 25 December 2019.
[181] The letter also noted that an investigation had been conducted into the 25/26 December 2019 incident, and that it was found that Mr Hajder displayed inappropriate and unprofessional behaviour, refused to finish his rostered shift, left his vehicle in an unacceptable state, and, in doing so, breached the Gold Fields’ Values of Respect and Honest throughout the process.
[182] By way of reply email at 3.29 p.m., Mr Hajder confirmed that he would attend the meeting the following day.
[183] On 6 February 2020 at around 1.20 p.m., Ms Levitt received a text message from Mr Hajder asking for the meeting to be held at 1.45 p.m. instead of 1.30 p.m. She sent a reply text message confirming that 1.45 p.m. was fine.
[184] At around 1.45 p.m. on 6 February 2020, Mr Carter and Ms Levitt telephoned Mr Hajder as scheduled for the purpose of having the show cause meeting. She was with Mr Carter in his office for the call.
[185] During the call, Mr Hajder was very worked up. He was yelling for a lot of the conversation and at times it was difficult to understand what he was saying.
[186] Mr Hajder said that he “still felt very strongly” about what had occurred on 25/26 December 2019.
[187] She explained to Mr Hajder that an investigation into this incident had occurred in his absence and that he would likely receive disciplinary action. Mr Hajder said something like “that is unacceptable, I want an apology.”
[188] She asked Mr Hajder why he did not contact a Supervisor to explain he was not returning to work. She also asked if he understood the Gold Fields’ Leave Policy, to which he said words to the effect of “I’m not a lawyer - how could I understand the policy”.
[189] Mr Hajder appeared distracted and continued to generally accuse Gold Fields of unprofessional behaviour. At one point, Mr Carter asked Mr Hajder if he was driving and Mr Hajder said words to the effect of “yes, you’re on speaker phone and I can hear you”.
[190] Mr Carter then told Mr Hajder to pull over to have “a proper conversation”, explaining that we were potentially discussing his employment and that he was not taking it very seriously.
[191] Ms Levitt asked Mr Hajder if he would return to site to face disciplinary action to which he replied “no, my employment is terminated, I need to now seek legal advice because what you guys have done is wrong”.
[192] As Mr Hajder’s employment had not been terminated at this stage, she said “no you haven’t been terminated. This discussion is before we make a decision” and something like “who told you that you are fired, did you receive a termination notice?” In reply, Mr Hajder said something like “you are treating me dishonestly, I know I am fired”.
[193] Mr Hajder then said that he would seek legal advice and hung up the phone abruptly. The conversation went for about 20-25 minutes.
[194] On 9 February 2020, Ms Levitt sent Mr Hajder a letter terminating his employment.
[195] The letter confirmed his employment was terminated on the basis that he had failed to comply with a lawful direction and failed to provide satisfactory responses to Gold Fields regarding a number of issues, including in respect of his behaviour on 25/26 December 2019, his failure to attend work as rostered on 30 January 2020, his failure to contact Gold Fields to provide a satisfactory reason for his non-attendance at work from 30 January 2020 to 2 February 2020, and his failure to attend work from 3 February 2020.
[196] The Applicant was paid one months’ salary in lieu of notice.
[197] There is some conflict in the evidence of the witnesses as to what occurred on the morning of 26 December 2019.
[198] Having considered the evidence of all the witnesses including the statements they gave on the day, were applicable, my findings are as follows.
[199] In response to question on the radio about how many loads had been moved for the night the Applicant, mistakenly thinking it was Mr Morelli asking rather than Mr Zofrea, replied
“Oh, who gives a fuck! I’m going home in the morning”
[200] Mr Zofrea, annoyed because the Applicant had replied rather than Mr Morelli to whom the question was directed told the Applicant over the radio to “shut up” and that he was “...a fucking dickhead and an idiot.”
[201] I also find that in response the Applicant yelled and swore on the radio towards Mr Zofrea.
[202] The Applicant then drove to the surface and stopped work before his shift was completed.
[203] When Mr Zofrea saw the Applicant on the surface he told him he should still be moving another load. In response the Applicant yelled and swore at Mr Zofrea.
[204] I find that the Applicant left his truck with an unacceptable amount of debris on the engine cover and other parts of the truck, contrary to the Respondent’s requirements.
[205] I find that while speaking with Mr Lane and then with Mr Carter that morning the Applicant was agitated, emotional, yelling and swearing at times and complaining that Mr Zofrea had been disrespectful and had abused him.
[206] The Applicant submits that after the exchange on the radio with Mr Zofrea he was in an emotional state. He submits he was in no condition to drive and that is why he went to the surface and left the truck. 24
[207] He submits the last thing he was concerned with was the condition in which he left the truck and in any event you do not get terminated because of that.
[208] He submits that apart from this incident on 26 December 2019 he had never had any problems working there.
[209] He says he should not have been abused and all he wanted was to solve the problem and get back to work. He expected at least an apology.
[210] He submits it was unfair because the Respondent was not willing to talk about the incident, all they were talking about was that he had not come back to work after his leave.
[211] He submits the reason he did not come back to work was because of what happened on 26 December 2019.
[212] He submits the Respondent overreacted to the fact he did not come to work for a couple of days. He says employees not returning to work happens all the time.
[213] The Respondent submits that the Applicant’s employment was terminated on the basis that he had failed to comply with a lawful direction and failed to provide satisfactory responses to the Respondent regarding a number of issues, including:
(a) his unsatisfactory behaviour on the night shift on 25 December 2019;
(b) his failure to attend work as rostered on 30 January 2020 without a satisfactory
reason.
(c) his failure to contact the Respondent to provide satisfactory reason for his non attendance at work from 30 January 2020 to 2 February 2020; and
(d) his failure to attend work from 3 February 2020 onwards without a satisfactory
reason.
[214] In making the decision to terminate the Applicant’s employment, the Respondent gave particular consideration to the Applicant’s breach of the Leave Policy, failure to comply with reasonable directions from the Respondent, failure to remain in contact with the Respondent, failure to attend work, and ongoing refusal to discuss any of these issues.
[215] It is a well-established legal principle that an employer may give a lawful and reasonable direction, and an employee is obliged to obey the employer's lawful and reasonable direction. Failure to do so may constitute a valid reason for dismissal.
[216] It has previously been held that direction to return to work is lawful and reasonable, and further, that a failure to return to work can amount to misconduct and can therefore provide a sound, defensible and well-founded reason for dismissal. Failure to comply with lawful and reasonable direction to attend meetings with an employer may also amount to serious misconduct.
[217] The Applicant was dismissed on 9 February 2020 and was notified of the reasons for his dismissal in a termination of employment letter on the same day.
[218] The termination letter confirmed that the Applicant’s employment was terminated on the basis that he had failed to comply with a lawful direction and failed to provide satisfactory responses to the Respondent regarding the issues and that his employment was terminated with immediate effect.
[219] In light of all of the above matters, the Commission should find that the facts amounting to the Applicant’s conduct is ‘supportable of a sound defensible or well-founded reason’ to terminate the Applicant’s employment for serious misconduct.
[220] It is submitted the procedure followed by the Respondent in effecting the termination of the Applicant’s employment was entirely fair.
[221] The Respondent considers that the Applicant’s behaviour, when considered with his lack of insight that his behaviour has been inappropriate and his refusal to return to work or communicate effectively with the Respondent, resulted in a fundamental breach of mutual trust and confidence that is incongruent with the continuation of the employment relationship.
[222] The Applicant expressly refused to return to the Agnew mine site, either to work or to discuss any issues arising from his conduct, and clearly stated that he felt that the Respondent had “different values” to him. This exemplifies the Applicant’s clear refusal to attempt to work towards repairing the employment relationship.
[223] In light of all of the circumstances of this matter and based on the ordinary meanings of ‘trust’ and ‘confidence’, the Commission should find that reinstatement is inappropriate.
[224] Further, the Applicant’s Outline of Argument notes that the Applicant has not made any attempts to mitigate his financial loss by seeking alternative employment since the date of his dismissal.
[225] Section 387 of the Act sets out particular matters that the Commission must have regard for when determining whether an employee is dismissal is harsh unjust or unreasonable. The section is set out below.
“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.”
[226] Whilst the Applicant was entitled to be upset about what was said to him over the radio on 26 December 2019 his reaction that morning was out of proportion with what had occurred. What occurred was quite a brief conversation on the radio.
[227] The Applicant’s evidence was very clear that at no time on that morning was he scared, there was not any physical altercation, and nobody threatened him. 25
[228] The Applicant complains about the swearing of others, but the evidence is he swore himself that morning a number of times.
[229] The Applicant’s swearing at Mr Zofrea, his stopping work before his shift had finished and leaving his truck in an unacceptable condition was not acceptable behaviour.
[230] The Applicant explained during the hearing that all he was asking for was an apology which would have gone a long way to sorting things out for him.
[231] Separately the Applicant’s opinion that it was a minor matter for him, after five weeks of annual leave, to not attend site for work as rostered and to make no effort to contact his employer before his rostered shift started to tell them he would not be attending and to then ignore their attempts to communicate with him and finally only contact them a number of days after he was due to return demonstrates a total disregard for his obligations as an employee to his employer.
[232] In addition his repeated refusal to come to site, as directed by his employer, where all of the issues could have been dealt with in the normal manner, was unreasonable in all of the circumstances.
[233] The Applicant’s unsatisfactory behaviour himself on the morning of 26 December 2019, his failure to resume work as rostered after his annual leave, his failure to comply with the Leave Policy and to provide any reason for his non-attendance and his refusal to attend onsite to allow the disciplinary processes to be undertaken were valid reasons for his dismissal related to his conduct.
[234] The Applicant was notified of the reasons the Respondent was considering dismissing him in the show cause letter.
[235] The Applicant was given a proper opportunity to respond to the reasons for which the Respondent was considering dismissing him and did so during a phone meeting.
[236] The Applicant declined the opportunity to have a support person present during discussions. 26
[237] The dismissal was not based on unsatisfactory performance so this matter is not relevant.
[238] The Respondent is a large enterprise with dedicated Human Resource Management specialists and this is reflected in the appropriate procedure followed in effecting the Applicant’s dismissal.
[239] It is correct as the Respondent has submitted that the Applicant demonstrated no insight in to his own poor conduct throughout this matter in particular he was unconcerned about his deliberate failure to resume work after his annual leave, his failure to notify his employer before this occurred and that he deliberately ignored his employer’s attempts to contact him for a further three days.
[240] The dismissal of the Applicant was neither harsh, unjust nor unreasonable. The Applicant was not unfairly dismissed.
[241] This application will now be dismissed and an order [PR722210] to that effect will be issued.
Appearances:
D Hajder on his own behalf.
A Casellas of Clayton Utz for the Respondent.
Hearing details:
2020.
Perth (telephone hearing):
June 9.
Printed by authority of the Commonwealth Government Printer
<PR722209>
1 Witness Statement of Ms Levitt, Attachment NL-1, FWC Court Book at page 68.
2 Transcript at PN66 and PN67.
3 Ibid., PN39 and PN40.
4 Ibid., PN46.
5 Ibid., PN51.
6 Ibid., PN52
7 Ibid., PN57
8 Ibid., PN65
9 Ibid., PN68 and PN71.
10 Ibid., PN69.
11 Ibid., PN74 to PN77.
12 Ibid., PN78 to PN80.
13 Ibid., PN87.
14 Ibid., PN88 and PN89.
15 Ibid., PN93.
16 Ibid. at PN95 and PN96.
17 Ibid., at PN97.
18 Ibid., at PN98 and PN99.
19 Ibid., at PN101 and PN102.
20 Ibid., PN131, PN132 and PN136.
21 Ibid., PN175.
22 Witness statement of Mr Lane, Attachment DL-1, FWC Court Book at pages 47 to 51.
23 Transcript at PN183 to PN191.
24 Ibid., PN269.
25 Ibid., PN52.
26 Ibid., PN99.