T10111
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Goldfields Limited and The Australian Workers' Union,
Appeal against a decision handed down by Commissioner P C Shelley arising out of matter T9601 of 2001 - alleged unfair termination of employment of Mr Barry Butler - appeal grounds 1, 5, 6 and 12 upheld - original Order revoked - new Order awarding compensation REASONS FOR DECISION [1] In matter T No. 9601 of 2001 Commissioner Shelley found that the termination of Barry Roland Butler (the applicant) was unfair and ordered that Goldfields Ltd, Henty Mine (the respondent in that matter), "re-employ" Mr Butler "on terms and conditions of employment no less favourable that those which applied to his employment immediately prior to 4 June 2001." [2] The application before the Commissioner was lodged on behalf of the applicant by the Australian Workers Union (AWU). [3] The Commissioner said at paragraph 186 of her decision:
and at paragraph 211:
[4] An appeal against the decision of the Commissioner was filed by Australian Mines and Metals Association (Incorporated) on behalf of Goldfields Ltd (the appellant in this matter) on the following grounds:
[5] Both parties relied on the principles of appeal found in the decision of the High Court in House v King [55 CLR 499] which states:
[6] The appellant also submitted that the principles espoused in the High Court decision are reflected in s.70(1A) of the Act. [7] Section 70(1A) provides:
[8] It was conceded by the appellant that "basically there are issues of procedural fairness which we are not going to be taking or contesting, issues of failure to ask the applicant whether or not he was wishing to have representation as required...is a given".1]. [9] Appeal ground 1:
[10] It was argued that the Commissioner erred in finding that the offence committed by the employee fell within the major misconduct category of indecency or horseplay or the serious misconduct category of dangerous horseplay of the company discipline policy. The company claimed that the behaviour of the employee, which the evidence reveals was considered by company witnesses as outside the disciplinary policy, was "so gross, so obscene, so out of nature with the workforce, that it was not considered in the drafting of the disciplinary process".2 Mr Burgess had responded to a question in cross examination by saying that he considered the behaviour as "gross indecency"3 and "unique and I think it goes beyond human decency".4 [11] The company disciplinary policy provides a process for the investigation and action for reported instances of misconduct. The policy also provides a list of examples of behaviour which would fall into a particular category; the categories being minor misconduct, major misconduct, serious misconduct and very serious misconduct. Each of the categories of offence includes the following:
[12] In the proceedings below the Commissioner accepted that the behaviour of the applicant best fitted the major misconduct or serious misconduct categories but not the very serious misconduct. She said at Paragraph 184:
[13] Mr Gunson, appearing for Mr Butler, said that the disciplinary policy is a recognised company policy which had been the subject of briefing sessions for employees; accordingly Mr Butler had a legitimate expectation that the policy would be properly applied by the company. As such he was terminated for reason of serious misconduct which, by reference to the company disciplinary policy and as a first offence, a warning was the appropriate penalty. [14] Much reliance was placed on the specific words and hierarchy of offences found in the company disciplinary policy which, in our view, is overly prescriptive, lacks flexibility and is restrictive in its application. It may well be that the determination of the Commissioner was inevitable due to what we consider is an ill-conceived disciplinary policy. [15] We note that the company now accepts that its policy is less than desirable and requires surgery. [16] Strict reliance on the company disciplinary policy resulted in the finding by the Commissioner that a warning was the correct penalty to apply and not termination. The company had submitted both in the proceedings below and on appeal that the behaviour was so gross and offensive that it could not have been contemplated in the examples described in the disciplinary policy and as such termination was an appropriate penalty. The finding by the Commissioner as to the level of the offence committed by Mr Butler, as it related to the categories found in the disciplinary policy, was the correct level based on the terminology found in the letter of termination, however the policy does make allowance for behaviour not specifically described and, according to the evidence of the company witnesses, the behaviour was such that it did not meet any of the criteria of the levels in the policy and was behaviour to which summary dismissal could apply. [17] We are of the view that the Commissioner misdirected herself and acted on a wrong principle by her absolute reliance on the examples found in the disciplinary policy categories of behaviour rather than considering the evidence that the behaviour was outside the examples found in the policy and therefore the processes found in the policy were irrelevant to this matter. [18] We uphold appeal ground 1. [19] Appeal ground 2: not pursued. [20] Appeal ground 3:
[21] The appellant submitted that the principle of a "fair go all round" as described in Loty v Australian Workers Union , [1971 AR (NSW) 95] is enunciated in Section 30(2) of the Act which provides:
[22] Accordingly the appellant submitted that procedural unfairness can reasonably be subordinated by the substantive reasons for dismissal in the application of the section. [23] It was argued that the Commissioner had under-rated the seriousness of the behaviour and had allowed the issue of procedural fairness to outweigh substantive fairness. The company conceded that there had been a denial of procedural fairness inasmuch as Mr Butler was not given the opportunity to seek union representation but submitted that the behaviour was so serious as to outweigh any unfairness. It was submitted that employers in the mining industry have a duty of care both by legislation and common law to provide a safe and healthy environment. This obligation, the appellant claimed, was ignored by the Commissioner in her decision to re-employ. [24] On behalf of Mr Butler it was argued that procedural unfairness cannot be subordinated by the substantive reasons for the dismissal unless it can be established that had the procedure been fair then the same result would apply. In this matter it was claimed that the Commissioner had dealt with the application like all other unfair dismissal applications with disputed facts. Once it had been determined that the termination was unfair it was her duty to consider appropriate remedy and the primary remedy is that of reinstatement or re-employment as determined in New Town Timber and Hardware Pty Ltd v Anthony John Gurr and Robert Gozzi No. FCA100/1994 Judgment No. A44/1995 [5 Tas R 71]. The fact that she had found that the conduct was offensive and reprehensible did not mean that the termination was "not unfair, harsh, unjust or unreasonable".5 [25] In respect to appeal ground 3 we agree with the submission on behalf of Mr Butler that despite the Commissioner's view of the behaviour of Mr Butler she was still able to find that his termination was unfair. She did so on the basis that there was a denial of procedural fairness, which is conceded by the appellant, accordingly the finding was open to her on the evidence. [26] We dismiss appeal ground 3. [27] Appeal ground 4: not relied upon. [28] Appeal grounds 5 and 6:
[29] We deal with appeal grounds 5 and 6 together. [30] It was argued that the Commissioner had placed too much reliance on the evidence of Mr Butler and witness Mr McCann as to the work culture of the employer. The appellant argued that the emphasis by the company, throughout the proceedings on Mr Butler's offensive behaviour had been related to safety issues and little regard, it submitted, was given to the evidence of the employer as to its views of the culture and the relationship between practical jokes and safety issues. [31] The evidence of the company witnesses was that practical jokes were not endemic as claimed by Mr Butler and Mr McCann and that the corporate philosophy had no place for such things. Mr Tunstall, in response to a question about the corporate philosophy, said:
[32] Similar views were expressed by Messrs Burgess and Clayton which the appellant claimed were not considered by the Commissioner who preferred the evidence of Mr McCann and Mr Butler as to the culture in the industry. [33] Mr Gunson said appeal grounds 5 and 6 related to the weighting of the evidence before the Commissioner. He argued that the evidence of the company witnesses was partisan whereas the evidence of Mr McCann, who hadn't worked at the Henty mine, was indicative of the culture in similar west coast mines. Some of the behaviours referred to by Mr McCann were similar in nature to the behaviours of Mr Butler. It was claimed that the Commissioner had to assess the evidence of all of the witnesses and in light of her adverse findings as to the evidence of Messrs Burgess, Clayton and Tunstall, in respect to the investigative process, she had preferred the evidence of Mr Butler and Mr McCann. [34] The Commissioner placed considerable reliance on the evidence of Mr McCann which, by his own admission was `speculative.' He admitted that he had never worked at the Henty Mine, was unaware of the culture at the Henty mine other than by local gossip, nor was he aware of the detail of the case before the Commission. It is our view that his evidence was generally unreliable being little more than hearsay. He relied on incidents of long history and his evidence represents little more than his own self serving view of the industry. We prefer the sworn evidence of the company managers as it related to the current culture and work practices at the mine despite the fact that their evidence is inconsistent as it relates to the investigative process. [35] We uphold grounds 5 and 6. [36] Appeal ground 7: not relied upon. [37] Appeal ground 8: not relied upon. [38] Appeal ground 9: not relied upon. [39] Appeal ground 10:
[40] The appellant argued that the finding of the Commissioner in paragraph 217 contradicts the evidence of the witnesses. She found:
[41] It was submitted that the sworn and uncontested evidence of Messrs Tunstall and Burgess does not support the finding of the Commissioner, further that the findings are no more than assumptions adopted by the Commissioner not supported by the evidence. Further the findings are also a contradiction of the commentary at paragraph 229 where the Commissioner said:
[42] Mr Gunson reiterated his earlier submission that the weighting of evidence is properly within the role of the Commissioner and should not be interfered with by a Full Bench. In respect to the paragraphs relied upon by the appellant it was submitted that the Commissioner had not accepted the submission of the applicant in the proceedings below and has "simply considered the evidence that was before her and drawn conclusions or inferences which were reasonably open on the evidence."7 [43] It was further argued that to excise the discussion in paragraphs 216 and 217 from the Commissioner's decision where they relate to the workers compensation issue there would be no change in the final determination of the Commissioner as the termination by the company was effected because of the serious view taken of Mr Butler's behaviour. The Commissioner has made her determination of that offence taking into account the company disciplinary policy and the investigative process and has not relied on the evidence or discussion about the workers compensation issue. [44] Whilst we accept that there is some confusion with the findings made by the Commissioner in respect to the workers compensation issue we doubt that it had any significant influence on her determination. [45] We reject appeal ground 10. [46] Appeal ground 11: not pursued. [47] Appeal ground 12:
[48] The appellant argued that the decision was unjust as the Commissioner had found that the applicant had lied, had committed the offence for which he was dismissed, despite his denials, and had a history of playing practical jokes on his workmates yet determined that he be re-employed. The company had argued throughout the proceedings below that the issue was related to safety concerns and the right of employees to work in a healthy and safe environment, this issue according to the appellant has been ignored by the Commissioner who focused only on procedural unfairness to justify re-employment. [49] Mr Gunson argued that the claim by the appellant that the decision was `plainly unjust' seemed to relate more to a concern that re-employment would attract some public embarrassment and that the reputation of the Henty mine would be irretrievably damaged. This, he submitted was not put to the Commissioner, and as such should not be considered by the Full Bench, further he said that if the principal remedy being re-instatement or re-employment was found to be practical then that was the determination open to the Commissioner. [50] We disagree with the submission of Mr Gunson that the concern of the appellant is about some perceived public embarrassment if the re-employment order is maintained. The submissions of the appellant in both these proceedings and in the proceedings below have been related to the relationship between the offences committed by Mr Butler as recorded in the letter of termination, and the effect of those offences on the health and safety of the other employees. The appellant has also argued that the offence which caused the termination was so offensive and reprehensible, as was also found by the Commissioner, that it did not and could not be a specific consideration in the company disciplinary policy and as such a pedantic reliance on the hierarchy and dot points in the policy led the Commissioner into error. [51] We have carefully considered the issues raised on appeal and the proceedings below. There is no doubt that the investigative process was flawed, this is conceded by the appellant; further, company witnesses were less than honest in their evidence as to the investigative process, accordingly we agree with the finding of the Commissioner that there was a denial of procedural fairness. [52] However the finding by the Commissioner that the termination of Mr Butler was unfair, primarily due to a lack of procedural fairness, ignores the serious nature of the offence committed, the fact that Mr Butler had failed to reveal the truth, a finding of the Commissioner, a failure to recognise the cultural changes being introduced and implemented by the company and a strict and inflexible application of the disciplinary policy. The unchallenged evidence reveals that Mr Butler has a history of similar behaviour which he testified was part of the culture at the mine. We do not agree that it is but we note that the evidence before the Commissioner reveals that the company has, in the past, been somewhat cavalier in its attitude to such behaviour. This of course does not condone the behaviour. The disciplinary policy does recognise that not all examples are listed in each category and each level contains the statement "this list is not intended to be exhaustive but rather illustrative of the seriousness of offences in this category." [53] We uphold appeal ground 12. CONCLUSION [54] It was submitted that should the Full Bench find one or more of the grounds relating to general or specific error made out that the matter should be referred to another member of the Commission for re-hearing. [55] Justification for this proposed course of action being that the credibility of the witnesses was possibly the main determining factor in the application before the Commissioner and a re-hearing would allow a re-assessment of witness credibility. [56] We reject that submission and see no reason why this matter should be considered any differently to any other appeal before the Commission; witness credibility is not unique to this application and is a determining factor in many matters before this tribunal and other like tribunals. [57] In light of our earlier findings we are of the view that the Commissioner has erred in the exercise of her discretion and accordingly the decision of the Commissioner, requiring the appellant in this matter to re-employ Mr Butler, should not stand. Accordingly, pursuant to s.71(13)(a) of the Act we revoke the Order of Commissioner Shelley in matter T No. 9601 of 2001. [58] However there has been a denial of procedural fairness afforded to Mr Butler by the refusal of the company to allow him to have a witness with him in discussions with the company and the investigation of the offence by the company certainly raises questions of propriety. We note that the appellant acknowledges the denial of procedural fairness and as such we have formed the view that Mr Butler should receive compensation in respect to that lack of procedural fairness. [59] We have taken that provision into consideration and we are of the view that Mr Butler would have been likely to receive remuneration for a relatively short period of time. In assessing compensation we have taken into account the likely period of time necessary for a proper process of investigation and assessment, including adequate time for Mr Butler to address any allegations that may have been directed against him. We have also considered the serious defects in the investigation process and the denial of representation. We note that Mr Butler has been an air leg miner for some thirty two years the last two, approximately, as an employee of Goldfields. Prior to that he was engaged at the Henty site and employed by a number of contractors for a period of about six years. We consider it relevant that his chances of re-employment in the industry in the same location are limited and have taken that situation into account in our considerations. [60] For these reasons we are of the view that Mr Butler should receive compensation equivalent to three months pay. [61] Pursuant to the powers conferred on the Commission by s.71(13)(b) of the Industrial Relations Act 1984 we hereby Order that Goldfields Limited (the former employer) pay to Barry Roland Butler (the former employee), of 40 McNamara Street, Queenstown, Tasmania, an amount equivalent to three months pay based on the normal monthly rate of pay he would have received immediately prior to his termination. Further, the total amount payable to the former employee be reduced by the amount he received in workers compensation payments during the three months post his termination. The above payment must be made within fourteen (14) days of the date of this decision.
P L Leary Appearances: Date and place of hearing: 1 Appeal Transcript PN11 |