AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision PR945645
issued by Commissioner Richards on 13 April 2004
Wayne William Davis
(C2004/3384)
s.170CE application for relief in respect of termination of employment
Wayne William Davis
and
Collinsville Coal Operations
(U2003/6583)
SENIOR DEPUTY PRESIDENT HARRISON |
|
DEPUTY PRESIDENT MCCARTHY |
|
COMMISSIONER REDMOND |
PERTH, 19 NOVEMBER 2004 |
Appeal - termination of employment.
DECISION
[1] This is an appeal pursuant to s.45 of the Workplace Relations Act 1996 ("the Act"), for which leave is required, by Mr Wayne William Davis ("the appellant") against a decision made by Commissioner Richards in Brisbane on 13 April 2004.1 In that decision the Commissioner dismissed the application, which had been made by the appellant in the present matter, for relief in respect of the termination of his employment pursuant to s.170CE of the Act. The employer, Thiess Pty Ltd, was identified in the proceedings before the Commissioner and in these proceedings as Collinsville Coal Operations ("the respondent").
[2] The appellant challenges the decision in two principal ways. The first is on the basis that the Commissioner reached erroneous conclusions about the credibility of the appellant and made mistaken findings of fact and inferences. The second challenge is that the Commissioner erred in deciding that the termination was not harsh, unjust or unreasonable by failing to give sufficient weight to certain evidence in relation to matters to which he was required to have regard pursuant to s.170CG(3)(c) and s.170CG(3)(d) of the Act and in deciding that the termination was not harsh by failing to give sufficient weight to the alleged inconsistency in the treatment of employees in respect of the same or substantially the same conduct.
[3] This appeal is made pursuant to s.45 of the Act. Relevantly, that section provides:
(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:
...
(c) a decision of a member of the Commission not to make an award or order.
Where, as is the case with this appeal, it arises out of a s.170CE application, s.170JF(2) of the Act is also relevant. That section provides:
For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.
[4] The nature of a s.45 appeal was considered by the High Court of Australia in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission2 (Coal and Allied) Gleeson CJ, Gaudron and Hayne JJ, in a joint judgment, said:
"Because a Full Bench of the Commission has power under s.45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s.45."
[5] When considering whether the matters raised in this appal warrant the grant of leave, we have been informed by the decision of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission.3 There the Court said;
"It can be seen from s 45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and s 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave, be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, s 45(2) provides a further, and obligatory, basis for the grant of leave."
[6] The errors which the appellant here asserts the Commissioner made are errors of the nature described in Coal and Allied in the following way:
"Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
`If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ]'"
[7] Commissioner Richards heard this matter at first instance over three days. He heard evidence from nine witnesses called by the appellant. Witness statements were provided by the appellant for another 23 persons. He heard evidence from seven witnesses called by the respondent and a witness statement was provided for one additional person.
[8] A summary of the case put by the appellant to the Commissioner is outlined in the appellant's outline of submissions. That outline states:
"1. Mr Davis was dismissed by his employer Theiss (sic) Pty Limited from his job as a production worker at the Collinsville Coal Operations by letter dated 15 September 2003. The reason for the dismissal, given in the letter, was that Mr Davis had breached operating procedures and that there were serious consequences of that breach.
2. At about 4.00 am on 8 September 2003 Mr Davis was driving a large dump truck when warning alarms on the control panel of the truck activated. Mr Davis continued to drive the truck for approximately 1 kilometre before he stopped. After stopping the truck he drove the truck again to a parking area. It was subsequently found that the truck's engine had lost all oil and the motor had burnt out. The cost of the damage to the truck was $150,000.
3. Mr Davis explained that he continued to drive the truck because at first he wasn't sure what the alarms meant, he also wanted another truck that was approaching him to pass. After stopping he realised what the alarms were and did what he thought was the safest thing which was to park the truck off the road.
4. He also explained that he was not well on the evening of the shift. He had boils. The boils were causing him pain and meant that his ability to concentrate on his work was impaired. Mr Davis had informed his supervisor earlier in the shift that he was not well and consequently was not required to work the first part of his shift to allow him to recuperate. Later in the shift he was asked to relieve another driver who was having a meal break. It was at this time that the incident that led to his dismissal occurred."4
[9] The respondent put the position in these proceedings that:
"...the Commissioner found that it was - found, unsurprisingly, that it was core part of the duties of a plant operator in the position of Mr Davis that he know and understand, and retain, full knowledge and understanding of the alarm systems on the vehicle."5
[10] Further, the respondent put that:
"All of the facts that the Commissioner found in relation to this matter were largely uncontroverted in relation to the operation of the vehicle and the fact that a level 3 alarm did come on, and the fact that Mr Davis continued to drive while that level 3 alarm was on, and in circumstances where he professed various reasons, multiple and overlapping reasons, as the Commissioner described them, as to why he continued to drive, despite the fact that his training - everything about his training told him to stop, and he continued to drive, as I submitted before, in excess of one kilometre for well over a minute at full throttle."6
[11] The respondent stated that as a consequence:
"...the employer, in those circumstances, is entitled to have trust and confidence that an employee will operate the plant and equipment safely, given the severe consequences if an employees fails to do so, in this context an employer who loses that trust and confidence as a result of a completely unexplained default on the part of the employee, it's submitted could never be challenged in reaching a conclusion that an employee of that - who had demonstrated those characteristics was an employee who should not longer be trusted in charge of a $2 million, 200 tonne piece of equipment that can move at the speed that these trucks can move."7
[12] The notice of appeal contains the following seven grounds:
"Ground 1 The Commissioner erred in finding Mr Davis's evidentiary case was not credible.
Ground 2 The Commissioner erred in finding that Mr Davis gave conflicting evidence.
Ground 3 The Commissioner erred in that he mistook important aspects of the evidence.
Ground 4 The Commissioner erred by drawing unsupported inferences from the evidence.
Ground 5 The Commissioner erred by failing to give sufficient weight to the fact that Mr Davis was treated harshly relative to other employees.
Ground 6 The Commissioner erred by failing to give sufficient weight to the fact that Mr Davis was not afforded an opportunity to respond to the reason for his dismissal which was performance related.
Ground 7 The Commissioner erred by failing to give sufficient weight to the fact that Mr Davis had not previously been warned about his performance."
Grounds 1 and 2
[13] The appellant's submissions addressed grounds one and two together.
[14] The appellant argued that the Commissioner erred in his concern for the credibility of the appellant as that concern was unjustified on the evidence. The Commissioner refers in paragraphs [43] and [45] of his decision to two concessions and it is argued that the concessions to which the Commissioner refers were not made in the evidence. We consider that the evidence of the appellant, if not as a whole then certainly aspects of it, left it open to the Commissioner to find that those concessions were made,8 and that it was therefore open to the Commissioner to express concerns about the appellant's credibility on that basis.
[15] The appellant further argued that the Commissioner erred in indicating concern about the creditability of the appellant on the basis that various arguments of the appellant were "disjunctive". The context of the Commissioner's indication of concern was that the appellant had provided several reasons why he had not responded appropriately to the alarm and indicators and the Commissioner did not consider that those reasons sat comfortably together. He concluded, that the effect of the differing reasons was for each to detract from the force and credibility of the other.
[16] It is submitted that there is no contradiction in the appellant's evidence that he did not stop when the warnings commenced due to safety concerns and due to confusion resulting from his health condition. It was open to the Commissioner to observe that one reason suggests the lucidity of the appellant and the other suggests a lack of lucidity, simultaneously. The conclusion of the Commissioner, which also took into account other reasons proffered by the appellant in explanation or mitigation of his actions or inactions,9 in our opinion, was fair and reasonable based on the evidence. We do not accept the appellant's submissions that the Commissioner erred in this way.
Grounds 3 and 4
[17] The appellant argues that the inferences drawn to reach the findings challenged by grounds 1 and 2 also amount to a mistake of the evidence.
[18] The appellant argues that the finding of the Commissioner that the applicant "could reasonably have been expected to have come to a safe stop within 100 metres or so of the Level 3 alarm being triggered"10 was not established by the evidence.
[19] Mr Ian Devonshire, Plant Operator for the respondent, gave evidence that when an unloaded truck of the type driven by the appellant during the incident for which he was terminated, is driving along a flat haul road in dry conditions it "might [take] 100 metres to stop"11 and that would be "a very gentle stopping process"12. Similarly, Mr Wayne Hinds, also a Plant Operator who "very regularly"13 drives the 777D truck, and who has been driving a 777D truck when a level 3 alarm has sounded, gave evidence that on those occasions, to pull up the truck safely, he travelled "Up to 100, 200 metres maybe. Say 100 metres, 200 metres max"14 depending on the circumstances. The implications of the road being wet and on an incline were not attested to, except insofar as those witnesses impliedly or explicitly observed that implications do exist.
[20] The evidence of the appellant in examination in chief and re-examination had been that it would take "around about 500 metres"15 to safely stop the truck once the alarm and dashboard indicators were triggered. In cross-examination he concluded that it would take "at least 100 metres"16 to have safely stopped the vehicle and also that it was "quite possible" that it "would take more than 100 metres to pull up steady and safely on a straight road"17 in circumstances such as those at the time the alarm and indicators were triggered. The appellant agreed with the statement that "it would have taken ... a hundred metres or so to stop the truck quite safely in the middle of the road"18. The fact that the appellant expressed uncertainty as to whether it would necessarily take more than 100 metres by stating it was "quite possible" attends the earlier estimation of 500 metres with doubt. Whilst 500 metres is technically "at least" or "more than" 100 metres and the answers are not blatantly contradictory, the substantial difference between the two answers attends the credibility of the witness with sufficient doubt as to leave the finding that the Commissioner made open to him, particularly in circumstances where evidence from the other witnesses referred to above suggested it would take around 100 metres to stop, albeit that estimation was based on dry, flat roads.
[21] The Commissioner observed, in support of his finding as to distance required to safely stop the truck, that the appellant's justification of his conclusions as to distance was insufficient to discount the difference between the two distances attested by the appellant. That conclusion was open to the Commissioner on those facts.
[22] The appellant argues that the Commissioner's finding that "he [the appellant] was motivated to travel for over one kilometre after the engine critical alarm was activated because he was seeking a safe place in which to park-up"19, and a similar finding later in the decision20 misstate the evidence. The appellant argues that the evidence was that the reason he continued driving for one kilometre when the alarm went off was because he did not know why the alarm went off and after one kilometre he stopped the truck to determine what the problem was and that he then drove 100 metres to park the truck in a safe place.
[23] It is our view that the evidence is not as clear cut as the appellant suggests. It is true that the appellant said that he couldn't read the gauges properly,21 it never clicked at that moment that something was seriously wrong22 or that it was a level 3 alarm,23 and that he was trying to work out what was going on.24 However, the appellant, when questioned in cross-examination in relation to the appropriate response to level 3 alarms, clearly raised the issue of safety, stating "in my view it wasn't safe just to pull up, to pull the truck up immediately".25 Similarly the appellant stated that he could have pulled up safely, not at the point the alarms went off, although he could have safely pulled up past that point.26 This is consistent with the witness statement tendered by the appellant in proceedings before the Commissioner which stated:
"At the time I was not located at an area where I could pull off the road and shut the engine down."27
[24] That witness statement further stated that in response to a question why he did not pull up immediately the appellant explained as follows:
"In response to his question I told him I thought it would be appropriate to find a place to pull over so the truck wasn't left in a dangerous position."28
[25] That response clearly implies that the appellant did not consider it safe to pull up the truck immediately upon activation of the alarm, although in cross-examination the appellant stated that he could have done so,29 contradicting that response in the witness statement. Whilst there is evidence of other reasons for the appellant continuing to drive, those reasons were not mentioned in the witness statement.
[26] It is apparent, however, that there is a factual basis for the Commissioner's conclusion that the appellant continued for one kilometre to find a safe area to pull up the truck. The Commissioner accepted that earlier version of events and was entitled to do so on the evidence.
[27] The Commissioner made a finding that the appellant did not ask to go home due to his ill health early during the shift on which the incident for which he was terminated took place, contrary to the evidence of the appellant. The Commissioner based this finding on several factors, including the evidence of Mr Kingsley Davies, to whom the appellant allegedly made the request, that:
[28] The Commissioner inferred that had the appellant made a request to go home and been told to stay at work and have an easy night he would not have been happy with that result nor would he have later driven the truck without further complaint. Consequently the Commissioner concluded that the evidence of the appellant contradicts that of Mr Kingsley Davies, as one version of events is that there was a request and the other is inconsistent with such a request having been made. We are satisfied that the inference and conclusion were open to the Commissioner on the evidence.
[29] The evidence of Mr Rodgers that he was aware that the appellant had asked Mr Davies to go home is hearsay and that was a relevant consideration for the Commissioner in according weight to that evidence and determining which version of events, Mr Davies' or the appellant's, he preferred.
[30] The appellant contends further that the Commissioner, in considering the implications of the appellant's ill health erred in inferring that had the discomfort of the appellant contributed to his actions the appellant "would have been rendered effectively incapable of calculating safety factors, and he would not have recognised that the truck had to be stopped immediately with his training"30. The appellant contends that the Commissioner erred in drawing this inference based on his evidence that he was concerned about safely stopping the truck in an appropriate place and simultaneously affected to the extent that "his mind wasn't completely on the job" and therefore did not recognise the seriousness of the alarms nor appreciate the need to stop the truck immediately. This argument has been considered above at paras [15]-[16], where we concluded that the inference that led to the conclusion relating to the appellant's creditability was reasonable on the evidence and therefore open to the Commissioner.
Ground 5
[31] The appellant contends that the Commissioner failed to give sufficient weight to the relative treatment of the appellant when compared with other employees. The Commissioner did not consider that he had been appraised of sufficient detail of other incidents which are allegedly comparable, but where the relevant employees were treated less harshly than the appellant.
[32] The appellant refers to an incident that related to a Mr James Perschel and contends that the incident is "the same" as the incident relating to the appellant. Mr Perschel was suspended for a week and given a final warning for deliberately ignoring a level 3 oil pressure alarm and continuing to operate the machine despite knowing immediate engine shutdown was required, the result being that the engine seized.31 There is no detail provided as to how long Mr Perschel ignored the alarm, any relevant circumstances or reasons he provided to the employer, whether the employer took into account its conclusions as to his awareness of the requirements of immediate shutdown and whether he would act in accordance with requirements in the future, or any other factors which might have led to the circumstances being compared to or contrasted with those of the appellant.
[33] Similarly there was very scant detail on the circumstances surrounding another incident referred to by Mr Steven Rodgers where around $500,000 damage was occasioned to a truck.32 It was made clear by the respondent that monetary value of damage caused does not necessarily reflect the level of disciplinary action.33
[34] The appellant alleges that the Commissioner did not give any weight to these incidents. In our opinion this ignores the comments of the Commissioner that he "is not able to reach a view that there are any examples of conduct that are comparable for purposes of demonstrating that the decision to terminate the Applicant's employment was harsh"34 and the reference to the "primary example led by the Applicant"35 and the explicit reference in the decision to other examples of alleged differential treatment.36 Each of these extracts from his decision clearly suggest that the Commissioner had regard to the incidents referred to in the evidence. We do not consider that the conclusion that there was inadequate detail of the alleged comparable incidents to find that the appellant was treated harshly relative to other employees involved any appellable error.
[35] We are not convinced that the absence of the appellant, due to annual leave, at the tool box meeting on 14 August 2003 where there had been discussion of "Operators driving trucks with alarms going off"37 constituted a relevant consideration as to whether the relative treatment of the appellant when compared with other employees was harsh. In any event, the discussion, according to Mr Bernard Everding, arose due to and sought to address concerns relating to drivers' hearing.38
[36] Consideration of the relative treatment of the appellant is a matter considered pursuant to s.170CG(3)(e) and the omission of any mention of the tool box meeting in the decision of the Commissioner indicates that he did not consider it to be a matter relevant to determining whether the termination was harsh, unjust or unreasonable. That conclusion does not demonstrate any error in our view.
Ground 6
[37] The appellant submits that the Commissioner erred by failing to give sufficient weight to the fact that the appellant was not afforded an opportunity to respond to the reason for his dismissal. The Commissioner found that the appellant was not given a copy of the investigation report about the incident until the meeting at which his employment was terminated but should have been given an opportunity to consider and comment on the report arising from the investigation.
[38] Despite that finding, the Commissioner found that the appellant had still been afforded an opportunity to respond to the reason, as he had two interviews on 8 and 12 September 2003. The fact that a copy of the investigation report was not provided to the appellant until the meeting of 15 September and was provided to his representative one and a half hours before the meeting, was a deficiency but did not mean that the requirement of s.170CG(3)(c) was not met. The Commissioner concluded the requirement had been met. At all three of those meetings the appellant was provided an opportunity to present his reasons for his actions.
[39] We are satisfied that there is no appellable error evident in the Commissioner's consideration of s.170CG(3)(c).
Ground 7
[40] The appellant submits that the Commissioner failed to give sufficient weight to the fact that the appellant had not been warned about his performance contrary to the obligation in s.170CG(3)(d). Clearly the Commissioner considered the fact that the appellant had not received any warnings from the respondent.39 However, the requirement of s.170CG(3)(d) only applies to circumstances where the employment of an employee is terminated for unsatisfactory performance. In cases where termination of employment is not for unsatisfactory performance, such as the present, there is no requirement that the Commission take into account a failure to provide an employee with a warning. The Full Bench in Annetta v Ansett Australia stated:
"In approaching the construction of the term `unsatisfactory performance' it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by par (d) itself is whether the appellant's employment was terminated for unsatisfactory performance."40
[41] Whilst the Commissioner did not explicitly state a finding on this matter, the appellant's submissions at first instance stated "It is submitted that the Applicant had not been given any previous warning with respect to conduct of this nature." The appellant's submissions had referred to the reason for termination as being "conduct" rather than "performance", rendering the requirement of s.170CG(3)(d) inapplicable. It is clear that the Commissioner considered that the appellant's employment was terminated for his conduct in failing to observe operating procedures without any justifiable explanation, not for unsatisfactory performance. In those circumstances no appellable error is made out.
[42] We are satisfied that the appellant's employment was not terminated for unsatisfactory performance, and consequently the ground that the Commissioner did not give sufficient weight to the requirement of s.170CG(3)(d) must fail.
Conclusions
[43] It is not necessary to detail the conduct which resulted in termination of the appellant's employment, which is fully set out in the Commissioner's detailed reasons for decision. It is sufficient to note that he was not convinced by the arguments put forward by the appellant and the evidence in support of those arguments that the appellant's employment had been terminated harshly, unjustly or unreasonably.
[44] The Commissioner comprehensively examined the evidence and the basis upon which the appellant relied in seeking to establish that the termination was harsh, unjust or unreasonable. There were no issues that the Commissioner failed to take into account in that regard.41
[45] We have considered whether it is seriously arguable that the Commissioner made an error. In our opinion it is not and on a fair reading of his decision we can find no error in his assessment of the evidence in reaching his conclusions. We have also considered whether an arguable case of appealable error has been demonstrated by the appellant. We are not persuaded that any of the grounds of appeal demonstrate such error. We do not propose, in the public interest or otherwise, to grant leave to appeal.
[46] For these reasons we do not grant leave to appeal.
BY THE COMMISSION:
DEPUTY PRESIDENT
Appearances:
T. Slevin, of counsel for the appellant.
A. Herbert of counsel for the respondent.
Hearing details:
2004.
Brisbane:
August 4.
Printed by authority of the Commonwealth Government Printer
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8 See Transcript PN272-273; 283; 328-329; 339-340.
15 Transcript PN88 (examination in chief); PN772 (re-examination).
32 Transcript PN1905-1921; PN2854-2860.
40 Print S6824, 7 June 2000 per Giudice J, Williams SDP and Cribb C at para 16, recently adopted in Potter v WorkCover Corporation, PR948009, 15 June 2004 per Ross VP, Williams SDP and Foggo C at para 83.