Inconsistent treatment and unfair dismissal

The Fair Work Act contains a number of express matters which the Fair Work Commission is bound to take into account when determining whether the dismissal of an employee is relevantly unfair; see in particular sec 387. Nevertheless, the matter is regarded as the exercise of a discretion. In the following passage from a recent unfair dismissal case, the approach generally taken by the Commission well explained, including the relevance of inconsistent treatment by an employer between employees.

“Other relevant matters

Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms: 82

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

In my assessment, Mr Dyson’s dismissal was “harsh” in both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd. 83 That is, the dismissal was “harsh in its consequences for the personal and economic situation of the employee” and “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” I have reached that conclusion by having regard to the facts and circumstances set out above, together with the other “relevant matters” discussed below.

The first relevant matter is the length and quality of Mr Dyson’s employment record with Centennial. As stated above, Mr Dyson had about 40 years’ service with Centennial and its predecessor prior to his dismissal. He had an exemplary employment record throughout that time. He did not receive any warnings, or have any disciplinary action taken against him, at any time during his employment with Centennial, save for his conduct on 7 April 2020 and the earlier warning to which I referred in paragraphs [41] to [45] above, which was withdrawn by Centennial. The present case is clearly distinguishable from cases such as BlueScope Steel Limited v Habak, 84 where the employee had a lengthy period of service (39 years) but had breached the same critical safety procedure on two occasions prior to the occasion which resulted in his dismissal. In all the circumstances, the length and quality of Mr Dyson’s employment record with Centennial weighs in favour of his argument that his dismissal was harsh.

The second relevant matter is the gravity of Mr Dyson’s misconduct on 7 April 2020. I have no hesitation in finding that Mr Dyson’s conduct on 7 April 2020 was serious as were his failures to comply with Centennial’s policies and procedures and his contractual and statutory obligations as an Undermanager. It is vitally important for an employer such as Centennial in an inherently dangerous industry such as underground mining to be able to have the utmost confidence that its employees, particularly senior employees (such as Mr Dyson) with supervisory and managerial responsibilities and statutory duties, will, at all times, conduct themselves safely and in accordance with the employer’s policies and their statutory and contractual obligations. One of the most important ways an employer in the coal mining industry can protect its employees is to require its employees to apply isolation procedures to all tasks associated with plant and equipment where persons are exposed to hazardous energy sources. That is precisely what Mr Dyson was required to do to comply with clause 3.0 of the ECS. Mr Dyson failed to comply with that obligation on 7 April 2020. He also failed to comply with his anterior obligations to complete his SLAM properly and together with Messrs McCarty and McKinnon, undertake a JSA, assess all the risks, and communicate effectively with Messrs McCarty and McKinnon. Mr Dyson’s failures are more fully set out in paragraph [61] above. However, when considering whether Mr Dyson’s dismissal was disproportionate to the gravity of his misconduct, it is relevant to have regard to the following factors which bear on the seriousness of the matter:

  • First, although Mr Dyson conceded in cross examination that he failed to consider whether, having regard to the risks, Mr McCarty was exposed to a hazardous energy source, and failed to turn his mind how to minimise or eliminate the hazards, 85he plainly considered there was a risk that Mr McCarty may fall from the ladder and end up on the conveyor belt or some part of the conveyor belt structure. So much is clear from the fact that Mr Dyson told Messrs McCarty and McKinnon that he was going to turn the belt switch off, and he did so. The only reason he took that action was because he did not want the belt to be running in the event that Mr McCarty fell onto it.86 Having identified one of the potential hazards, Mr Dyson failed to adopt the required control measure, namely, isolation. Instead, he adopted a lesser control measure, namely, turning off the belt switch. That was a serious failure on Mr Dyson’s part, particularly given his role as the most senior employee on the shift, but his conduct would have been more serious if he had not taken any steps to identify or address the hazard.
  • Secondly, for the reasons earlier given, I have found that Mr Dyson did not instruct Mr McCarty to get onto the belt and did not know that he would do so. Had Mr Dyson known that Mr McCarty was going to step on to the belt to replace the final two bat bags, Mr Dyson’s conduct and in particular his failure to isolate the belt would have been objectively more serious because the risk associated with the belt moving was higher with Mr McCarty standing on the belt than it was if Mr McCarty was standing on the ladder with the possibility he could fall off the ladder onto the belt.
  • Thirdly, one does not assess the seriousness of an incident by reason of the actual injury incurred. A proper assessment requires consideration of all the circumstances, including the seniority, training and experience of the employees involved, the employer’s safety systems and procedures (which were clear in this case), and both the risk of injury together with the range of potential injuries that could arise from such risks. Mr McCarty strained his right leg when the belt came on unexpectedly on 7 April 2020. He was unable to undertake all his usual duties at work for a number of months thereafter as a result of his injury. Mr McCarty’s injury was serious, but it could have been far more serious. By way of example, he could have fallen off the belt and onto the ground about 1.2m below or into the gap between the belt and stringer, thereby suffering a lost time injury or even a serious head injury. The fact that Mr McKinnon was present and could have pulled on the lanyard (as he did) to stop the belt and Mr Dyson was at the belt switch and could have turned the belt switch off meant that there was not a realistic prospect of Mr McCarty being carried along by a moving belt for any considerable distance or period of time. Having regard to all the circumstances, I consider it was possible that Mr McCarty may have been fatally injured or permanently injured in a serious way, but the prospects of such an outcome were low. The most likely outcome of the belt moving unexpectedly, in my assessment, was a lost time injury. This may be contrasted, as part of an assessment of the gravity of Mr Dyson’s misconduct, to other circumstances in heavy industry where the failure to isolate plant or equipment gives rise to a high risk of fatal injury, loss of body parts or other serious, permanent injury. I have heard and been involved in a number of such cases.

The analysis in the foregoing paragraph has not been undertaken for the purpose of reasoning that Mr Dyson’s misconduct was not of the most serious kind that could be imagined, with the result that his dismissal was harsh. That would be an erroneous approach to the question of determining harshness in the sense of the dismissal being disproportionate to the gravity of the misconduct. My approach has been to consider the gravity of Mr Dyson’s misconduct in all the circumstances and to reach an evaluative assessment as to whether Mr Dyson’s dismissal was disproportionate to the gravity of his misconduct.

The third relevant matter is that the personal and economic consequences for Mr Dyson of the dismissal have been severe. Mr Dyson is 61 years old. He has spent his entire working career in the mining industry, almost exclusively for one employer. I accept Mr Dyson’s evidence that the termination of his employment has been devastating for him. It has come at a time when he has recently gone through melanoma scares and operations, his parents are both ill and require his care and assistance, and he has recently separated from his long term partner, which has come with financial and emotional strain. Mr Dyson is now unemployed. He has not been able to obtain any alternative employment since his dismissal, notwithstanding his considerable efforts to find a job in a range of occupations and industries.

The fourth relevant matter is my assessment that Mr Dyson is, and was during the investigation meetings on 17 and 21 April 2020, genuinely contrite and he both accepts and understands where he failed to comply with his duties and obligations on 7 April 2020. The purpose of the initial meeting with Mr Dyson on 9 April 2020 was to discuss what happened. There is no suggestion in the evidence that potential breaches of policy, procedure or other obligations were discussed at that meeting. At the meeting on 17 April 2020 Mr Dyson acknowledged failures on his part. At the meeting on 21 April 2020 Mr Dyson expressed remorse, told Centennial that he would “comply in the future”, and squarely admitted, when it was first put to him, that there had been a breach of the ECS. 87 There is no suggestion in the evidence that Mr Dyson was asked during the investigation process whether he breached any other particular policies or procedures. During cross examination, Mr Dyson made numerous concessions and admissions about his knowledge, training, and breach of a whole range of policies, procedures and obligations. Mr Dyson clearly understands that he should have isolated the belt and I am confident he would do so in the future if a similar situation arose.88 Centennial criticises Mr Dyson for not being able to explain why he made the errors he made on 7 April 2020. It is appropriate, in my view, to give that matter some weight, but not as much as has been contended for by Centennial. It is not always a simple or straightforward matter to explain why an incorrect decision was made.89 Mr Dyson did not seek to rely on excuses such as the prior practice of crossing the belt without isolation at the Myuna mine or the other matters that were plainly on his mind at the time of the incident, such as his recent health concerns and the breakdown of his long term relationship.90 He accepts, without qualification, that he made a series of poor decisions91 and failed to comply with his duties and obligations on the day in question.

Inconsistent treatment

Mr Dyson asserts that he was unfairly afforded inconsistent treatment by Centennial in relation to his dismissal. He points to the fact that Mr McCarty received a final written warning, was suspended without pay for two weeks, and was demoted for his involvement in the incident on 7 April 2020.

In Darvell v Australian Postal Corporation, 92 the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted):

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.”

There is some force to Centennial’s argument that Mr Dyson’s conduct on 7 April 2020 was more serious than Mr McCarty’s conduct because Mr Dyson was the most senior employee on site, Mr McCarty reported to Mr Dyson, and Mr Dyson should have taken charge and led the task from hazard identification through to job planning to the safe execution of the task. Balanced against that is the fact that Mr Dyson did not know that Mr McCarty was going to stand on the belt when he left the area to turn the belt switch to the off position. Mr McCarty made the decision to stand on the belt in circumstances where he knew the belt was not isolated. Once Mr McCarty got onto the ladder and decided he would step onto the belt to hang the final two bat bags, he should have taken steps to ensure the belt was isolated before stepping on to the belt. 93 Centennial also points to the fact that Mr McCarty was contrite at all times, accepted where he went wrong, and did a better job than Mr Dyson in completing his SLAM. On the basis of the findings I have made, Mr Dyson was also contrite, accepted he was at fault, and admitted breaching the ECS. I accept, however, that Mr McCarty did a better job than Mr Dyson in completing his SLAM. Having regard to all the circumstances, I consider the seriousness of the conduct of Mr Dyson and Mr McCarty on 7 April 2020 to be broadly the same. It follows, in my view, that an employer acting reasonably would not dismiss one of these two employees summarily (Mr Dyson) and retain the other employee (Mr McCarty), albeit with a final written warning, two week period of unpaid suspension and a demotion. This differentiation in treatment supports Mr Dyson’s argument that his dismissal was harsh. However, even if I had rejected Mr Dyson’s argument of inconsistent treatment, I would still have found that Mr Dyson’s dismissal was harsh for the reasons given above.

Conclusion as to harsh, unjust or unreasonable dismissal

After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Centennial’s dismissal of Mr Dyson was harsh, but not unjust or unreasonable.”

Dyson v Centennial Myuna Pty Ltd (2020) FWC 546 delivered 14 October 2020 per Saunders DP