Unfair dismissal and industrial action

The following is an extract from a recent Fair Work Commission unfair dismissal case which deals with the cautionary factors which an employer should bear in mind before terminating the employment of an employee on the grounds that the employee participated in non-protected industrial action.

“As to the criteria in s.387 of the Act (and by reference to various cases) and the valid reason criterion, the respondent submitted it had a valid reason for terminating the applicant’s employment due to his persistent failure to comply with reasonable and lawful instructions of management. Relevant in such respects was the overall or aggregate employment history, which the respondent was entitled to take into account in its decision about the continuation of his employment. The respondent referred particularly to Loata Petrunic v Q Catering Limited T/A Q Catering (“Petrunic”) 1 where Hamberger SDP found as follows:

“[53] I am satisfied that the respondent had a valid reason to dismiss the applicant because of her conduct on 15 June 2018. The applicant was an active participant in the blockade of Q Catering’s premises. While she was not actually at work that day, she supported and encouraged her colleagues to engage in the stoppage. The stoppage and the associated blockade was intended to, and did, have the effect of significantly impeding the respondent’s operations that day, in support of certain (albeit poorly formulated) employee demands. The action was not ‘protected’ by the FW Act. The applicant’s conduct in this regard was fundamentally inconsistent with the obligations she owed to her employer.”

[87] The respondent submitted that the circumstances with respect to the applicant’s conduct on 2 December 2019 go to the heart of the findings by Hamberger SDP with respect to what constitutes industrial action. Furthermore, the applicant was being paid his average earnings for 2 December 2019 and was not on paid leave through accrued entitlements. The respondent submitted that, additionally, the evidence shows that the applicant coordinated the industrial action on 2 December 2019 as well as being an active participant throughout. The respondent submitted that, arguably, if viewed in isolation, the taking of unprotected industrial action by the applicant on 2 December 2019 would have constituted a valid reason for the termination of his employment. In such respects, the respondent referred to Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd 2, where an employee took unprotected industrial action and Dowsett J considered that the seriousness of the misconduct must be assessed having regard to the fact that the respondent had indicated that it would treat unprotected action seriously………………….The applicant submitted there can be no failure or refusal to attend work or perform work by an employee where there is no legal obligation on the employee to attend or perform work: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“The North Queensland Stadium Case”) 4 at [129]; Australian Building and Construction Commissioner v Ingham5 at [110]-[112]. An employee will not take industrial action if they refuse to attend work or perform work during periods of leave. This is so even if employees on leave engage with other employees in refusing to work: North Queensland Stadium at [129].

[98] The submissions continued that the applicant was under no legal obligation to perform work for the respondent on 2 December 2019 as he was on delegate’s leave under clause 84 of the enterprise agreement – and “leave is leave”: Chambers v Toll Transport Pty Ltd 6 at [75](a). The applicant did not take unlawful industrial action and this aspect of the respondent’s case is based on a false premise and must be rejected.

………………………Consideration

[112] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain criteria specified in s.387 of the Act. Section 387 reads:

“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.”

[113] Before turning to a consideration of those matters in s.387 of the Act, it is apposite to first make some comments. The dismissal of the applicant was said in the respondent’s case to be the result of a cumulative number of incidents. Most relevantly, these matters were the two immediately successive September 2018 warnings in relation to signing the record/s of attendance at a meeting; the September 2019 warning in relation to the period of time the applicant took off work in connection with attendance at Commission proceedings; and, most significantly, what unfolded on 2 December 2019 concerning the stoppage of work or the failure of certain employees to commence rostered work in the time period between about 5.15am and 8.20am, or thereabouts. What unfolded on 2 December 2019 was the salient matter that resulted in the eventual dismissal on 6 April 2020, with the warnings of September 2018 and 2019 forming part of the fabric in reasons for the decision-making. That is, the matters surrounding the warnings of September 2018 and 2019 were not considered by the respondent, around those relevant dates in 2018 and 2019, to be such as to proceed at that time to the disciplinary outcome of dismissal. Obviously, the applicant was not dismissed in September 2018 or September 2019; but he was dismissed in the wake of the stoppage on 2 December 2019. In the circumstances, it is relevant to examine matters concerning the events on 2 December 2019 – for it is the case that, but for what occurred in relation to that day and the respondent’s consideration of matters, the applicant’s employment would have (absent any other exigencies) continued indefinitely with the previous warnings lying dormant on the applicant’s personnel file.

[114] I am bound to note that much of the evidence in this case seemed to me really to involve the airing of the underlying issues of disagreement about matters concerning: (a) industrial rights and obligations as between the employees generally and the respondent; (b) workplace health and safety; and (c) whether the stoppage of work on 2 December 2019 constituted unprotected industrial action. Some matters in dispute have been the subject of dispute proceedings before the Commission (and, it appeared at the time of the hearing, were still the subject of proceedings before the Commission) and other matters were in dispute, but were not escalated to the point of formal lodgement of a dispute notification with the Commission. It is not the role of the Commission in relation to an unfair dismissal application under s.394 of the Act to determine the disputed question of whether the stoppage on 2 December 2019 constituted unprotected industrial action by various employees, who were not party to these proceedings. What is known is that the respondent contends it was, whereas the applicant contends it was not. For the reasons that follow, I find that even if the stoppage did involve unprotected industrial action by various employees on 2 December 2019 the applicant was not himself personally engaged in any such alleged unprotected industrial action for the reason he was on approved leave and had no relevant duties that day that he refused to perform.

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)

[115] Section 19 of the Act deals with the meaning of “industrial action” in the following terms:

“19 Meaning of industrial action

(1)  Industrial action means action of any of the following kinds:

(a)  the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)  a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)  a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d)  …

(2)  However, industrial action does not include the following:

(a)  action by employees that is authorised or agreed to by the employer of the employees;

(b)  action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c)  action by an employee if:

(i)  the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3)  …”.

[116] I find, and this really is an uncomplicated conclusion derived from evidence that is common ground, that the applicant did not personally engage in industrial action of any of the kinds described in s.19(1)(a), (b) or (c) of the Act. It is immaterial to this unfair dismissal application whether the stoppage by certain other employees was unprotected industrial action or otherwise. The fact of the matter is that on 2 December 2019 the applicant had a day of respondent-approved leave and he was not rostered to perform any work at all. In consequence, it follows that the applicant could not, thereby, properly be considered to have failed or refused to perform work, return to work, or similar, in the manner contended for in the respondent’s evidence and submissions, and in the dismissal letter. The applicant attended the workplace given the meeting had been arranged by him in his representative roles as union delegate and HSR (and some other employees attended who were not rostered for work relevantly scheduled to commence at or after approximately 5.15am that day), but given the pre-approved leave and consequential absence of rostered work there could have been none of the alleged failures by him personally to comply with what were described as reasonable and lawful management instructions for him to perform work. This is so notwithstanding (a) the various references in the recount provided in Mr Turnbull’s evidence as to all employees, including the applicant, failing to comply with reasonable and lawful instructions to return to work; and similarly (b) the various references in the dismissal letter dated 6 April 2020 as to all employees, including the applicant, failing to comply with reasonable and lawful instructions to return to work.

[117] For completeness, I should add that the evidence indicated the applicant did not organise the stoppage. True it is that the applicant organised the meeting itself, but matters then took their own course, being a collective member-driven course rather than a course driven by the applicant. The evidence in such respects was uncontested, as Mr Turnbull, the only witness in the respondent’s case, was not present during the meeting when matters were being propositioned (by another employee or employees) and put to a vote, and the like. If anything, the evidence indicated the applicant was effectively trying to defuse the situation in acting as a go-between in relaying the members’ concerns to management. Moreover, it was the applicant’s role which brought the fractious circumstances of that particular morning to a conclusion involving an end to the stoppage – because it was the applicant’s discussions with Mr D’Apice, and the assurances the applicant then relayed to the members, which in fact appeared to have brought about the end of the stoppage involving certain employees.

[118] I find a valid reason for the dismissal related to the applicant’s conduct did not exist in relation to the events on 2 December 2019. Given the complete falling-away of the respondent’s reliance on the applicant’s conduct on 2 December 2019 (i.e. as addressed in the penultimate paragraph of the dismissal letter, being the alleged withdrawal of labour constituting unlawful industrial action by the applicant and repeated failure by the applicant to comply with management’s reasonable and lawful instructions to cease the taking of unprotected industrial action in breach of the provisions of clause 22 of the enterprise agreement) it is unnecessary to consider whether the circumstances concerning the earlier warnings of September 2018 and 2019 constituted a valid reason for dismissal. That is, the respondent cannot reasonably rely on these matters as stand-alone valid bases for the dismissal. As I noted earlier, the warning letters concerning these (historical) matters would have lain dormant on the applicant’s personnel file but for the circumstances that unfolded on 2 December 2019 and the respondent’s reliance on them in the dismissal that ensued.

[119] I find there was no valid reason for the dismissal of the applicant.

…………………………..

Conclusion

[128] I am satisfied the applicant has been unfairly dismissed as the dismissal was, as the applicant submitted, harsh; I am also satisfied that the dismissal was unjust and unreasonable. The decision to dismiss had elements both of substantive and procedural unfairness, and the differential treatment of the applicant was quite pronounced. I am also satisfied the applicant should have an unfair dismissal remedy. Reinstatement is the remedy that has been sought by the applicant and that is the primary remedy under the Act. I am satisfied that reinstatement is the appropriate remedy in all the circumstances of this case having regard to my consideration of all the matters advanced by the applicant together with an order to maintain continuity and, subject to the comments that follow, an order concerning lost pay. I am not persuaded (indeed there was a dearth of evidence thereto) that matters of loss of trust and confidence, or other matters relied upon by the respondent, would militate against ordering the primary legislative remedy.

[129] In view of the foregoing, the disposition of the application as to remedy is as follows.

Reinstatement

[130] The respondent shall reappoint the applicant to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location the applicant formerly was based at Chullora) by no later than 21 days after the date of this decision.

[131] Given that, at the time of the hearing, steps were being taken in relation to a contested workers’ compensation claim involving past incapacity and the like, it seems to me that the following is appropriate. The order as to reappointment should take effect regardless of the status of the contested workers’ compensation claim. If it is the case that the applicant is now fit to resume ordinary, pre-dismissal duties, any issues concerning the return-to-work under the order self-resolve regardless of the outcome of any disputed workers’ compensation-related matters. If the matter of the contested workers’ compensation claim results in (however described) acceptance of the workers’ compensation claim and the applicant is unable to return to work within the time frame specified in the order, the physical return to work will then need to be dealt with in accordance with usual workers’ compensation processes involving, for instance, a return-to-work plan with the involvement of an accredited rehabilitation provider. The Commission’s order will require the reappointment; I wish to emphasise that any workers’ compensation-specific arrangements or exigencies will have their own processes, and the Commission will not be involved in any of them, or dispute about them, as that would be jurisdictionally-inapt.

Order to maintain continuity

[132] In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of the applicant’s employment.

Order to restore lost pay

[133] In connection with the reappointment, I consider it is appropriate to make an order causing the respondent to pay to the applicant an amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal. That matter is complicated here because of the contested workers’ compensation claim. For instance, if it transpires that the applicant is found to have been unfit due to a workers’ compensation-related injury in the period following the dismissal, it cannot be contended that he would have been earning wages over the same period – and hence an order to restore lost pay could not relevantly arise for the particular period or periods in question. Moreover, there was no evidence before the Commission concerning:

(a) the amount of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[134] I direct the parties to confer on the matter of an order for lost wages and superannuation, more specifically in the context of the outcome of the contested workers’ compensation claim (being an outcome which was not known at the time of the hearing). The payment in lieu of notice will also need to be taken into account, together with any payments on termination of accrued but untaken leave. If the parties are unable to reach agreement on the amount in question concerning lost pay, the matter will be relisted in 2021 to give the parties the opportunity to be heard. I will then determine the discrete matter of the amount, if any, to restore lost pay.”

Pickering v Linfox Australia Pty Ltd (2020) FWC 6595 delivered 11 December 2020 per McKenna C