44 Andrew Osborne tendered a statement in the proceedings in which he gave evidence that he was originally engaged as Operations Manager at Port Jackson on 13 April, 1999. His duties were later extended to include Port Botany. As he was required to supervise both shifts at two sites, it was not possible for him to constantly supervise all of the company's employees all of the time and he could not rely solely on the Charge Hand as it was a rotating position and was filled by casuals on occasion. He therefore relied on all employees informing him of any problems that required his attention. He also relied on quarterly meetings of the Workplace Safety Committees to identify and address any workplace issues that arose. More regular meetings were held when necessary. The employee members of that committee were Peter Provan, Colin O'Keefe, Brucie Batten and Robert White. He indicated that the company would prefer to nominate a permanent charge hand on every shift but agreement cannot be reached with the union in that regard. The union requires additional persons to be engaged in that role which would equate to a roster of five persons at an annual cost of $350,000.
45 Mr. Osborne gave evidence that between August and November 2003, the Workplace Safety Committee at Port Jackson met on approximately four (4) occasions "to address safety and operational issues associated with the absenteeism of the Applicant".
46 In early August 2003, he had been approached by three (3) of the site delegates at Port Jackson who were also employee members of the Safety Committee, namely Peter Provan, Colin O'Keefe and Bruce Batten, who advised him that "the men in the yard are getting sick of covering for Chris Plummer...because he keeps not turning up to work and he is not contactable". He had asked for specific examples but they had not been prepared at that time to expand on that complaint.
47 Shortly after, in August 2003, the same three delegates made another approach to him about the applicant stating words to the effect, "The guys are unhappy with Chris' attendance. He is taking a lot of sick leave and turning up late. This means that some of the guys are having to cover for Chris. Chris has been called in to the Union office prior to this to be spoken to about all of this sick leave, but it doesn't seem to be doing any good."
48 On 12 August, 2003, he had examined the Applicant's sick leave records and discovered that he had taken ten (10) days' sick leave since 14 April, 2003 which he considered to be excessive. He also noted with concern that the Applicant had not produced a medical certificate for the last four (4) absences. He held a disciplinary interview with the Applicant on the same day and issued him with a warning in the presence of Terry Dickson and Anthony Darr. The Applicant had declined two offers made by Mr. Osborne during that meeting to have union representation. Mr. Osborne testified that he had advised the Applicant that the other employees were complaining that he was putting pressure on everyone else by taking more than his accrued sick leave entitlements. The Applicant had responded that he had not realised the extent to which he had taken such leave. He had agreed to allow the Applicant an opportunity to take the warning letter away to obtain advice on it. Mr. Plummer had refused to sign it. During his next shift, the Applicant advised Mr. Osborne that he would "take the warning and just get on with things".
49 In approximately September 2003, he came across a group of employees on day shift laughing and joking together. In response to his inquiry, he was advised words to the effect, "Chris Plummer is at it again - this time he is in Queensland for a week attending a funeral. He has really got you worked out." To his knowledge, the Applicant had not sought, nor been approved, any period of leave for any reason at that time. He had not been aware that the Applicant was not attending for work at that time. He rejected the Applicant's evidence in that regard pointing out that sick leave would have been inappropriate in any event as bereavement leave would have been applicable. It was contended that the Applicant had not submitted a leave application form at any time between September to November 2003. He had expressed his displeasure to the Applicant upon his resumption at work.
50 Mr. Plummer was rostered off during the period 28 October, 2003 until 03 November, 2003. As was the relatively common practice at that site, he had arrived at a private arrangement with another employee, Mr. G. O'Keefe, for the latter to perform five shifts that were rostered to be worked by the Applicant from 03 November until 08 November, 2003. That arrangement was recorded in the Swap Book and witnessed by a delegate. The Applicant had not applied for leave beyond 08 November, 2003.
51 On the evening of 09 November, 2003, Mr. Osborne received a voicemail message from the applicant's sister to the effect that, "...I'm calling to let you know that Chris is in Thailand and has an ear infection. He has been to the doctor and they won't let him fly home. Chris has asked me to try to organise swaps for him for the extra time off that he'll need." Mr. Osborne testified that no one was willing to perform the Applicant's shift in the week commencing 10 November, 2003.
52 Mr. Osborne rejected the applicant's claim that he had worked the night shift on 17 November, 2003. The attendance record for that Monday indicated that a line had been drawn across his name and the word "sick" had been recorded in the column headed "Remarks".
53 The five (5) remaining members of that crew (Robert Leo, Terry Dickson, Des Grey, Ron Lock and Ray Forest) approached him together and said words to the effect, "When are you fucking going to do something about Chris not turning up to work? It's an absolute joke. Do something about it. We're all getting sick and tired of covering for him".
54 When the Applicant turned up at work on 18 November, 2003, Ms. Osborne advised him that he wanted to talk to him about his non-attendance at work the previous week. The Applicant declined his offer to have a witness of his choice in attendance. Mr. Osborne put the Applicant on notice that unless he produced, within the next seven (7) days, a medical certificate covering his extended stay in Thailand and copies of travel documentation that would verify his whereabouts during that absence, then his employment would be terminated. The Applicant's response was that he did not have a medical certificate from a doctor in Thailand, "I wouldn't go and see one of those fucking quacks. I'll get a doctor's certificate from here". Mr. Osborne's response offered the Applicant an ultimatum - either produce medical records from Thailand or produce travel documents (such as a flight ticket, boarding pass or amended itineraries) to verify his whereabouts over the relevant period.
55 The medical certificate produced by Mr. Plummer on 21 November, 2003 was deemed completely unsatisfactory in that it was from a medical practitioner in Australia and it was dated 21 November, 2003. The doctor had pointed out that he had not examined the Applicant whilst he was suffering from any medical condition that would have prevented his attendance at work. He further pointed out that the medical certificate was based on the history provided to him by the Applicant. In addition, the Applicant had not supplied the alternative evidence required of him in relation to his whereabouts at the relevant time.
56 Mr. Osborne telephoned the Applicant on 27 November, 2003 and invited him to attend a meeting on site later that afternoon. Shortly before the appointed time, the Applicant sent a voicemail message to Mr. Osborne stating, "Sorry, I forgot about the meeting. I am on my way to the Central Coast". Mr. Osborne gave evidence that he had immediately called the Applicant, expressed his displeasure, advised that the medical certificate was unacceptable and that he would not accept the Applicant's explanation for his absence without sighting acceptable medical or travel records. He formed the view that the Applicant could no longer be trusted to work in an unsupervised environment. He had taken 23 sick days over the period between 14 April, 2003 and 01 December, 2003, the majority of which were neither explained nor approved.
57 On the next occasion the Applicant was at work, 01 December, 2003, Mr. Osborne arranged a meeting with him and invited Mr. Des Gray to attend as a witness. He repeated the advice given on 27 November and, in addition, advised the Applicant that his unexplained absences over the past few months had caused problems not only for management but for his workmates concluding with words to the effect that "Your complete disregard for your workmates and your job here is so extreme that I have decided to terminate your employment". Mr. Osborne recalled that the Applicant's response had been to tell him to "Get f.....d" and then proceeded to make a telephone call and say to someone, "I am being f....g sacked by that f....g Osborne. We will see him in Court". He had remained with the Applicant until he left the premises. As he left, he had made what he considered to be a threat to him personally, "If I were you, I would be careful and watch my back".
58 He had prepared a termination letter and posted it to the Applicant on 03 December, 2003. The letter expressly stipulated that he was being paid one week's pay in lieu of notice commencing from 01 December, 2003.
59 The applicant has since been paid all accrued long service leave.
60 Discussions were being held with the Union to develop a new enterprise bargaining agreement. Part of the discussions related to the requirement by the Respondent to reduce its workforce from 60 to 44 employees. If the Commission were to reinstate the Applicant, then the Respondent would have to make someone else redundant to create a vacancy for him.
61 During cross-examination, Mr. Osborne explained that Mr. Plummer's absenteeism had not been discussed at any Safety Committee meeting. It had been raised with him by the delegates who, co-incidentally, were also members of that Committee. Although he had considered it to be a safety issue as it was a complaint about the amount of overtime other employees were having to work because of absenteeism, the delegates wanted to have it dealt with as a separate personal issue because it involved only one person. There had not been an organised safety committee meeting in early August 2003 when they first approached him.
62 He denied any knowledge of a personal vendetta by Peter Provan against the Applicant and his father or of an assault by Mr. Provan on the Applicant on one occasion at work. He confirmed that he had believed the delegates when they lodged the complaint with him and had not considered that there may have been any underlying motives. He had not raised the issue with Mr. Plummer as they had not provided him with any evidence in support of their allegations. He believed that they had the evidence at that time but did not want to divulge it to him. He confirmed that no-one had refused to work an extra shift as a result of tiredness or stress.
63 Mr. Osborne agreed that there had not been any absences by the Applicant between the first approach and the second approach by the delegates. He confirmed that he had not been provided with details about the meeting between the Applicant and his union and that he had not raised the issue with the Applicant. Throughout his engagement at that yard, the union had dealt with its problems internally, before management could get involved, that's been the "culture of the yard".
64 He confirmed that the union had been approached to give evidence in the proceedings against the Applicant but had declined.
65 He explained that, as the Applicant's sick leave absences had exceeded 10 days, he required a medical certificate for all absences in excess of that amount, irrespective of whether they were only single day absences. The company had a sick leave policy which was kept in the office and had not been distributed to staff. He agreed that it would be unfair on any reasonable view of it to point out to the Applicant that medical certificates were required for single day absence without making him aware of the company policy.
66 Mr. Osborne had issued only one other warning. It was to another employee in the three or four months prior to issuing the Applicant with a written warning. When Mr. Plummer asked for a copy, Mr. Osborne had personally written the warning out twice so as to give him a copy to take away.
67 He admitted that he had been surprised the first time the Applicant declined to have someone from his union in attendance. However, he had not asked for a reason as the Applicant already had another witness in the room.
68 Mr. Osborne agreed that the Applicant received his first warning in 8.5 years on 12 August, 2003. He further agreed that the presumption can be made that he did not agree with its terms as he had not been prepared to sign it. He had followed it up with the Applicant in the mess room some three or four days later and the Applicant had undertaken to provide him with the signed copy but that had never been received nor followed up.
69 The charge hand, Gary Mayer, would have written the word "sick" in the attendance book sometime during the day shift. Mr. Mayer had called to advise him of the Applicant's absence. It was standard practice for the charge hand to note who was in attendance and who was absent. He pointed out that the Leave Notification Forms were available to be completed and submitted for long service leave and bereavement leave, but the Applicant had either completed and submitted such an application nor contacted him to seek such leave. Blank forms were located in the desk in their mess room.
70 Mr. Osborne agreed that he had not disciplined Mr. Mayer for writing the word "sick" in the attendance book even though he knew that the Applicant was at a funeral. That was because he had not yet received any paperwork advising of the true reason for the Applicant's absence. Mr. Osborne insisted that all the other employees submitted the necessary application for leave forms and informed both him and the charge hand of their intended absence.
71 The Applicant had taken periods of leave in the past but he had taken them by doing swaps. An employee was able to arrange to have two weeks off at a time that way.
72 He refused to accept that the Applicant had not been dishonest in relation to that leave. He insisted that the Applicant had taken sick leave to attend a funeral. All other employees communicated with him and advised him of their particular needs and they were able to sort matters out over the telephone. The Applicant had not done so either before he left on bereavement leave or upon his return. He insisted that the Applicant should have been aware of the existence of those forms.
73 Mr. Osborne agreed that he asked the applicant for a certificate regarding that absence but had not specified that he wanted death certificate. He pointed out that the Applicant could have provided proof in the form of a completed leave form specifying bereavement leave or a cutting from a newspaper containing his deceased friend's funeral notice. He admitted that he had not told the Applicant precisely what he wanted and had not discussed the unsuitability of the medical certificate until he brought it up at the point of dismissal. He pointed out that he had not discussed it with the Applicant because the latter had not personally handed it to him. He had left it in the room for Mr. Osborne to pick up days later.
74 Neither Mr. Osborne nor the charge hand had approved the period of leave for the Applicant from 3 to 8 November. It was written into the shift swap book and approved by one of the delegates. He had no problems with that as the internal swap meant that the shifts in question were covered. Shift swaps did not require leave forms to be completed. After 10 November, he asked other employees in the yard and they refused to fill in for the Applicant for that week. He had not asked the delegates.
75 He insisted that he had walked into the mess room on 17 November, 2003 and found Rob Leo, Terry Dickson, Des Gray, Ron Lock and Ray Forrest sitting there. He could not recall who had asked him to do something about the Applicant. When it was pointed out to him that Ray Forrest had not been present and did not start his shift until 1 am the following morning, he stated that he had prepared his statement using the attendance record to reconstruct his memory. He conceded that he had made an error in regards to Mr. Forrest but refused to resile from his statement that the question had been asked of him by the group of employees.
76 He had been informed by the Applicant's sister that Mr. Plummer had consulted a doctor in Thailand. He had demanded to see a certificate from that doctor. It was logical to believe that if a doctor in Thailand had told him he could not fly, then he would have obtained a medical certificate to that effect. He could not see the Applicant, as planned, on the Friday because of his work commitments. He agreed that the Applicant left the medical certificate obtained in Australia but did not leave the airline tickets. Therefore, he did not know whether the Applicant had them with him to show Mr. Osborne on 21 November or not.
77 By 27 November, 2003, he had given the Applicant his first written warning about his sick leave record, had received an unacceptable medical certificate for an absence occasioned by bereavement of a friend and warned him about the unacceptable medical certificate he had obtained in Australia for an alleged ear-ache he had suffered in Thailand. He made the decision to terminate the Applicant at that point. Mr. Osborne agreed that at the first warning stage he had not told the Applicant that his employment was threatened and that the first threat of termination was at the second meeting. He agreed that he asked for the travel documentation because he did not believe the Applicant. He pointed out that had he been given the opportunity to sight those documents, he may have changed his mind about the Applicant. He denied that the union had leaned on him to dismiss the Applicant and he also disagreed that he had pre-judged the Applicant.
78 He had made a record in his diary of what was said at the termination meeting. He confirmed that he had offered the Applicant a ride home in a taxi but had excluded that from his statement.
79 He confirmed that the Applicant had been dismissed for misconduct, however, in the Employment Separation Certificate, the box alongside "Unsuitable for this type of work" had been ticked and the box alongside "Misconduct" had not been ticked. He agreed that the document was a lie.
80 He explained that he could no longer trust the Applicant because he had received information that Mr. Plummer was not turning up for some of his night shifts. He conceded that he had never sought an explanation for that allegation from the Applicant although it had formed part of the reasons for his dismissal.
81 Mr. Osborne was unable to relate any incident during which the Applicant had been untruthful to him. He agreed that he did not have a shred of evidence to suggest that the Applicant had ever dealt with him dishonestly in any way, shape or form.
82 He agreed that it was important that people co-operate with one another yet those persons he had referred to in his statement had not been prepared to back up their allegations with a statement and had not been prepared to give evidence in the Commission.
83 During re-examination, Mr. Osborne clarified the issue regarding the Employment Separation Certificate. It had been completed by himself and by the Paymaster. He confirmed that it was not he who had completed the section relating to the reason for the dismissal.
84 Mr. Osborne confirmed that he would have been satisfied if the Applicant had attended the later meeting with travel documentation explaining his absence but that documentation was never produced by Mr. Plummer.