Mr Andrew Pearse v Viva Energy Refining Pty Ltd [2017] FWC 3817

Mr Andrew Pearse v Viva Energy Refining Pty Ltd [2017] FWC 3817 - FWC 2017 case summary — Zoe

[6]

[8] Viva Energy operates oil refining facilities in Geelong with storage, distribution centres and service stations across Australia. Until his dismissal, Mr Pearse had been continuously employed at the Geelong refinery for almost 27 years, initially by Shell Refining Pty Ltd (Shell) and since 2014 by Viva Energy following its purchase of the business from Shell.

[9] Mr Pearse's evidence was that prior to the events giving rise to his dismissal, he was employed as an operator in the Crude Distillation Unit on D shift. He worked both day and night shifts. His employment was governed by the Viva Energy Refining Enterprise Agreement 2014 (Enterprise Agreement), an agreement negotiated between the Company and the Australian Workers Union (AWU) and approved by the Commission in December 2014. He worked 35 hours per week on 12 hour shifts, plus overtime as required.

[10] At the time of dismissal, Mr Pearse was President of the four-member AWU Executive at the Geelong Refinery. He had held this position since 2005. He had been elected a site delegate for the AWU every two years since 1994. As such, he was the senior AWU officer amongst delegates and members employed at the Geelong Refinery.

[11] Mr Pearse was dismissed on 21 February for conduct that Viva Energy considered breached Company policies and the duties of an employee under the Enterprise Agreement. The conduct concerned Mr Pearse sending an email to approximately 170 other operators whilst working night shift on 25 November 2016. The email related to an industrial issue at the Geelong Refinery, namely that certain operators had undertaken advanced fire training.

[12] Mr Pearse's case was that his email informed operators of his disapproval that some operators had undertaken this training, that the training had not been approved by the AWU and that those participating were helping the Company with, what he asserted, was proposed de-manning contrary to AWU resolutions.

[13] Mr Pearse's evidence was that he drafted the email after being told by a fellow employee that training had been undertaken. He said that he (Mr Pearse) had a suspicion from what he had been told of the identity of one if not two of the employees involved. He said he did not name names in the email because he was not absolutely certain of the identity of the persons involved.[1]

[14] Mr Pearse said in evidence that he drafted and sent the email with a combination of anger and disappointment. He claimed[2] that while he was upset with a small number of employees who had, in his opinion, acted against the interests of union members, he did not make threats against those employees nor did he identify them. His submission was that whilst the tone of the email was emotive, it ended on a conciliatory note with a request that those employees contact him to discuss the issue.

[15] Mr Pearse further claimed that although he sent and signed off the email in his capacity as "just another operator", the employer dismissed him because of his union activities. However, on account of his desire to seek reinstatement as a primary remedy, he elected to pursue an unfair dismissal claim rather than seek a general protections order under Part 3-1 of the FW Act.[3]

[16] Mr Pearse claims that his dismissal was harsh, unjust or unreasonable on the ground that his conduct did not constitute a valid reason for dismissal, that the employer's decision was disproportionate to any misconduct, that the decision to dismiss included unlawful discrimination on account of his union activities, and that the Company's investigation into the incident and in deciding to dismiss had failed to provide procedural fairness. He also claims that it was harsh given the consequences on him as an individual.

[17] Mr Pearse was stood down by Viva Energy once the Company decided to formally investigate his conduct. Mr Pearse's evidence was that he subsequently reflected on his conduct and considered that the email had been a "lapse of judgment"[4], at least in the terms in which it had been drafted and sent.[5] He said, in his 17 February meeting with the Company and in his evidence, that if he had his time again he would not have sent the email and would not have used emotive language or language which could be interpreted as personally insulting to those who were participating in the advanced fire training.[6]

[18] On 17 February he sought to apologise to the Company and to affected employees but claims he was barred from doing so.[7] His case is that while the email was, in hindsight, an error on his part, it was not of sufficient seriousness to constitute a valid reason for dismissal.

[19] Mr Pearse seeks reinstatement to his former position with payment for lost entitlements and with continuity of service. In evidence to the Commission he said that if re-employed as an operator he would not actively involve himself in union activities or stand for an elected position on behalf of the AWU.[8] He undertook to adhere to Company policies. In correspondence provided to the Company on 17 February[9], he also offered to conduct a training session for operators on the risks associated with email communication.

[20] He considers that these undertakings, together with his contrition and apology, are sufficient to re-establish a viable employment relationship with Viva Energy that would allow an effective return to work at the Geelong Refinery.

[7]

[21] Viva Energy dismissed Mr Pearse on 21 February for conduct in breach of the Company's policies and his duties as an employee. The policies relied upon by the Company were the Viva Energy Business Principles and Code of Conduct (Code of Conduct), and the Viva Energy Guide to Standards of Behaviour (Standards of Behaviour). The conduct concerned Mr Pearse drafting and sending an email on 25 November 2016. After conducting a formal investigation, Viva Energy concluded that the email targeted the employees who attended the advanced fire training, and "had the effect of intimidating and/or isolating and/or humiliating and/or bullying those employees."[10]

[22] Viva Energy claimed that Mr Pearse committed a serious breach of Company policy.[11] It considered that Mr Pearse interfered in the Company's right to give lawful and reasonable directions to employees to undertake additional training to develop job competency.[12] It said the dismissal was consistent with its obligation to eliminate workplace bullying, intimidation and harassment and with the business imperative of maintaining a harmonious and respectful workplace.[13]

[23] It submits this constituted a valid reason for dismissal.

[24] The Company further submits that Mr Pearse was afforded procedural fairness before a decision to dismiss was made. It said that it stood Mr Pearse down on full pay, conducted a detailed investigation and provided Mr Pearse a full opportunity to put his version of events to the investigator and to the decision-makers. It said that at all stages of this process Mr Pearse was put on notice that his employment was at risk. It said he was informed of his right to be accompanied by a support person, and availed himself of that right through an AWU State branch organiser, Mr Wood.

[25] In deciding to dismiss Mr Pearse, the Company said that it accepted the findings of the investigator concerning the intent of the email and its effect on certain employees. It said that it also considered views expressed by Mr Pearse during the investigation defending his conduct and what it claimed was a lack of genuine contrition. It said that it took into account Mr Pearse's work history which included a number of prior disciplinary incidents including a dismissal in 2008 for a safety breach (and reinstatement on recommendation of the Australian Industrial Relations Commission albeit with no back pay and to a more junior position[14]) and an extant warning for misconduct issued in August 2016.[15]

[26] The Company considered that Mr Pearse's length of employment did not constitute a sufficient mitigating factor. Nor did the Company consider Mr Pearse's expressed contrition and letters of apology to be mitigating factors. Rather, it considered they lacked candour.

[27] The Company contests the proposition that Mr Pearse's role as a union officer and delegate, or his role in exercising workplace rights afforded to a union officer had any bearing on its decision to dismiss.

[28] Viva Energy opposes an order for reinstatement should the dismissal be found to be harsh, unjust or unreasonable. It says that Mr Pearse's conduct has irrevocably damaged trust the Company considers inherent in an employment relationship. In making this submission, the Company relies on the factors it took account in deciding to dismiss including Mr Pearse's conduct in sending the email, his work history (including warnings) and his conduct during the investigation, including a claim made that Viva Energy were a "pack of bastards"[16]. On the issue of reinstatement, it also relies on the content and tone of certain other emails sent by Mr Pearse from the Company's email system whilst he was employed but which were not known to it at the time of the investigation or the decision to dismiss.[17]

[8]

[29] Mr Pearse gave evidence. He called no other witness. In addition to his oral evidence, he relied on documentary material attached to his witness statement, and to material discovered in the course of proceedings.

[30] In support of its case, the Company called five witnesses: Refinery Area South Manager Paul Lewis, Industrial Relations Consultant and Acting Viva Energy Human Resources Manager John McKenzie, Operations Manager Glenn Lyons, General Manager Refining Thys Heyns and General Manager of Human Resources Jodie Lee-Ann Haydon.

[31] It relied on material attached to the statements of each witness, including an Investigation Report conducted into Mr Pearse's conduct.

[32] Given the volume of oral evidence, there are surprisingly few areas where versions of critical events differ. Most differences concern matters of opinion or inferences witnesses drew from otherwise agreed facts, such as the intent or effect of the email. However, given that some factual differences emerged, it is appropriate to express a view on the witnesses.

[33] Mr Pearse was a conversational witness, lengthy and talkative in many of his answers. While he had strong recall of the key events and stood his ground in cross examination, his evidence was prone to generalisation and, in some instances, speculation.

[34] I found Mr Lewis to be a poor witness, not in relation to credit but largely because he struggled to recall his witness statement and appeared detached from involvement in the proceedings. He had a better recall of actual events that led to the dismissal than formalities associated with his statement and its preparation. Mr McKenzie was a reliable witness. He was extensively cross examined on the conduct and findings of his Investigation Report. He was clear and detailed, albeit somewhat defensive when it came to cross examination on his findings. Being the author of the report, that is not surprising. Both Mr Lyons and Mr Heyns were impressive witnesses. Mr Lyons had clear recollection and was confident in both conceding ground and standing ground in cross examination. Mr Heyns was also a strong and considered witness with good verifiable recall. Ms Heydon's evidence was concise and believable. It was largely corroborated by documentation and the evidence of Mr Heyns.

[35] Where there is an inconsistency between the evidence of Mr Pearse or Mr Lewis, I prefer the evidence of Mr Lyons, Mr Heyns and Ms Heydon.

[18]

[40] Viva Energy management were alerted to the email on 7 December, more than a week after it was sent, when an employee who had attended the training approached the Area South Operations Manager Mr Lewis. Mr Lewis said that the employee expressed concern at the email's contents and its impact on him doing his job[18]. I accept the evidence of Mr Lewis on this point. However, that employee was not identified by Mr Lewis in his evidence, nor was the person called to give evidence.

[41] Mr Lewis formed a view that the email was likely to intimidate and marginalise employees who attended the training. He alerted the Refinery Operations Manager Mr Lyons who formed a similar view and who in turn alerted the Refinery General Manager Mr Heyns, and the corporate General Manager of Human Resources Ms Haydon.

[42] On 8 December Ms Heydon discussed the email with Mr Heyns. She formed a view that the email did not appear to be consistent with employee obligations under the Code of Conduct. Mr Heyns was concerned at its apparent threatening and intimidating intent and tone. Together, they decided a formal investigation would be instigated.

[43] John McKenzie was engaged as the investigator. Mr McKenzie had been an independent industrial relations consultant since 2015 but earlier in November 2016 had been engaged by Viva Energy as its Acting Refinery Human Resources Manager when a temporary vacancy arose. While Mr McKenzie conducted the investigation using skills and knowledge acquired during his career and as an independent industrial relations consultant, he had been, in the preceding month and remained during the investigation, the Acting Refinery Human Resources Manager reporting to Ms Haydon.

[44] Mr McKenzie's investigation commenced in December 2016. His report was delivered to Mr Heyns and Ms Haydon on 2 February 2017.

[45] Mr Pearse and his support person Mr Wood met the investigator Mr McKenzie in the presence of Mr Lewis on 20 December. He had been stood down since 13 December. Mr Lewis handed Mr Pearse a letter[19] informing him of the allegations and of the fact that Mr McKenzie would be conducting a formal investigation. The letter attached policies the Company considered relevant to the investigation. The letter also advised Mr Pearse that he would remain stood down on full pay for the duration of the investigation.

[46] Mr McKenzie then made contact with persons he considered relevant to the investigation, and sought signed statements from each. In addition to interviews and statements from Mr Lewis and Mr Lyons, statements were obtained from an Operations Maintenance Co-ordinator, a Production Excellence Manager and two Plant Controllers. Mr McKenzie also sought to interview three other persons, two of whom were Shift Team Leaders and one who was an Emergency Response Officer. While each of these met or spoke briefly with Mr McKenzie, each separately declined to make a formal statement on the grounds that either they could not add anything to the investigation or were concerned about their relationship with co-workers.[20]

[47] Faced with this impasse, Mr McKenzie decided to interview a random sample of operators. Contact was made with approximately fourteen persons. Due to a combination of sick leave absences and operational reasons, only a handful of these operators were interviewed.

[48] Mr McKenzie interviewed Mr Pearse on 25 January in the presence of his support person Mr Wood. A written record of interview was prepared.[21]

[49] Mr McKenzie provided the report of his investigation to Viva Energy on 2 February. It was extensive; some 38 pages plus 200 pages of appendices. Its principal findings were adverse to Mr Pearse. Mr McKenzie found that Mr Pearse had breached the Standards of Behaviour and Code of Conduct. In all, Mr McKenzie made the following ten findings:

Mr Pearse sent the email on 25 November 2016, and intended to send it out to all Viva Energy Operators. The email highlights employees that were attending Fire Training in Brisbane, and an employee that organised this training.

The email from Mr Pearse links the purpose of the Fire Training in Brisbane to the Emergency Response Operations Area (EROPs) changes. The email was designed to draw the attention of the general Operator workforce to the employees organising and attending the Fire Training in Brisbane.

It was generally known by the Area South Operators who was attending the Fire training in Brisbane. It was reasonable to conclude that Mr Pearse knew who was attending the training when he sent the email.

It was generally known by the Area South Operators who organised the Fire Training in Brisbane. Mr Pearse made his own assessment who organised the Fire Training when drafting and sending the email. The email was designed to highlight this to the broader Operator Group.

The three employees that were the subject of the email were Messrs LoRicco, Cone and Tomkins. The email from Mr Pearse was designed to target these employees attending and organising the Fire Training in Brisbane and to intimidate, and/or isolate, and/or humiliate and/or bully these employees and discourage other employees from attending or organising such training.

The email from Mr Pearse had an impact on the three employees concerned. This impact is due to the fact that the intent of the email was to target the employees concerned, and intimidate, humiliate, harass, bully and/or isolate these employees. In addition, the email was calculated to have an effect on people that were perceived to have acted contrary to union resolutions.

The email was designed to actively discourage employees from undertaking safety training as required by the Company, where this was perceived to have an impact on employment.

The type of Fire Training that was provided in Brisbane has been provided to Operators in the past.

Mr Pearse would have been aware of Viva Energy Policies such as Code of Conduct and Guide to Standards of Behaviour through online training.

10. Mr Pearse intended to send the email in his role as an operator, and not a union delegate.[22]

[50] Mr McKenzie reached the following "Conclusion":

[53]

[73] The Investigation Report found that "the email was designed to target these employees attending and organising the fire training in Brisbane and to intimidate and/or humiliate and/or isolate and/or bully these employees and thereby warn off or discourage other employees from attending or organising such training."[41] This was the basis for Mr McKenzie concluding that the Code of Conduct policy and the Standards of Behaviour Policy had been breached. The Company decision-makers also adopted this conclusion.

[74] In making this finding Mr McKenzie was expressing a view on the intent of the email.

[75] This was a matter of contention at the hearing. To both the investigator and in his evidence to the Commission, Mr Pearse said that his intention was only to provide information to other operators. He stated that his purpose was to inform them that certain employees were participating in the advanced fire training, and to inform them of his opposition to that participation and of his reasons. He said he simply wanted them to "think", not act.[42]

[76] He strenuously denied that his intent was to elicit any reaction from the other operators against those participating or to flush out those who had or were participating. He said the only action he was seeking to trigger was his offer to discuss their participation with those involved if they chose to identify themselves to him.[43]

[77] Mr Pearse also denied that the effect of the email had been to create disharmony amongst the workforce or an environment in which employees felt intimidated, harassed or belittled.[44] He said that his record as an employee and as a union official stood against a workplace culture of that type.[45]

[78] Based on their reading of the email when it was first brought to their attention, both Mr Lewis and Mr Lyons formed a different view. They considered that it was unfair on those who had attended the training and those who may consider doing the training in the future.[46] Ms Heydon and Mr Heyns formed a similar and even firmer view on their first impressions. These individual and collective concerns of management are what gave rise to the investigation. They were confirmed by the findings and conclusion of the investigator.

[79] To make findings on the question of intent, the Commission must consider the email objectively and in context. Intent, objectively assessed, is not a finding to be made based solely on the stated intention of the author of a document or the subjective perceptions of its readers.

[80] I find that the email was intended to negatively portray the employees who had attended the advanced fire training and to disrespect their lawful decision to do so. Nor did the email show respect for persons who may have contemplated undertaking the training in the future. It expressly insulted the attendees in derogatory terms by saying that they "could be seen as naïve, deluded, stupid of selfish." This was not just an expression of opinion by Mr Pearse. It was a form of words designed to encourage other operators to hold a similar view. As such, I find it was a breach of Viva Energy values and policies requiring employees to foster respect for people and contribute to a respectful workplace environment. It also contravened policies requiring employees to refrain from distributing offensive or derogatory material. My finding accords with Mr McKenzie's conclusion in these respects.

[81] I also find on an ordinary construction of the language of the email and its tone, that it was divisive. It described the operators who had attended the training as 'select' (in inverted commas) operators, with the inference that somehow they were in a different or special relationship with the Company in contrast to the other operators.

[82] Mr Pearse did not identify the operators which his email described as 'select'. To the investigator and in his primary evidence to the Commission he said that he suspected but did not know with certainty who they were.[47] He had been told the name of a person (Mr Cone) by his work colleague Mr Grimes the day or the day prior to sending the email. He considered Mr Cone's involvement possible, if not probable. Under cross examination he conceded that at the time of drafting the email he had grounds to believe the identity of two of the persons but had not had this confirmed.[48]

[83] Whether Mr Pearse knew the identity of all or some of the operators who undertook the training, it is reasonable to conclude that the email was designed to flush out the identity of those who had done so. The author would have considered it to be a reasonable response of an operator interested in the subject, when reading the email, to ask themselves or other operators 'who was involved?'.

[84] I do not find the evidence of Mr Pearse that he did not intend anyone to react to his email to be convincing. An objective reading of its content, particularly in context, suggests otherwise. Mr Pearse was a longstanding employee who was known by his work colleagues to have provided many years of leadership on collective industrial and workplace issues. It is not credible to conclude that an experienced operator holding a senior industrial position sending an email on an industrial issue to 170 work colleagues would have thought that the operators who received it would just passively internalise that knowledge ("think" but "do nothing"), as Mr Pearse claimed was his intent.[49] Based on the email's construction and tone as well as his role in collective workplace advocacy, I find that Mr Pearse intended at least some of the operators who had not undertaken the training to ask questions in the workplace about who had done so, and for at least some of the operators who had undertaken the training to either reveal that fact to their colleagues under the pressure of the moment or feel uncomfortable at the risk of being 'found out'.

[85] Mr Pearse's concluding message in the email was to invite the operators who had undertaken the training to identify themselves to him and state their case. Given the tone and content of earlier parts of the email and the fact that it had been sent in writing to so many operators, this was not a neutral act of conciliation, as Mr Pearse sought to portray in his evidence. I find that it was intimidatory.

[86] In the email Mr Pease claimed the training had been "secret", with the inference that the participants were going behind the back of the other operators or undermining them in some way. Mr McKenzie found that while it had not been widely publicised, the training had not been secret at least amongst certain groups of operators[50]. Mr McKenzie also considered that the training had a legitimate purpose for the individuals concerned (to enable them to meet a requirement for promotion). This was also the evidence of Mr Lyons.[51] In his interview with Mr McKenzie on 25 January, Mr Pearse agreed that he had since discovered that some training of this type occurred in Sale a few years earlier.[52] I find that the email "targeted" the individuals who attended the training, even though it did not name them.

[87] For these reasons, I am satisfied that the email constituted behaviour that was humiliating, intimidating or hostile and contrary to Viva Energy policies. I find that Mr Pearse was dismissed by Viva Energy on account of sending the email of 25 November 2016 in breach of Company policies and his duties as an employee. In doing so, the decision-makers had regard solely to Mr Pearse's conduct as it related to Company policies and his duties as an employee, and his employment record. Mr Heyns and Ms Heydon had particular regard to the caution expressed to them by Mr McKenzie that no decision should be made on account of Mr Pearse's lawful and legitimate role as a union delegate. I find that Viva Energy did not dismiss Mr Pearse for an unlawful reason under the FW Act associated with the exercise of workplace rights or industrial activity. This ground of his unfair dismissal claim is not made out.

[88] However, not all breaches of policy constitute a valid reason for dismissal. All relevant circumstances must be considered including the nature of the breach (or breaches), the extent to which an employee knew or could reasonably have known of the policy (or policies), and any extenuating or mitigating circumstances.

[89] Did Mr Pearse know or could he have reasonably known about Viva Energy policies he was found to have breached?

[90] Mr McKenzie found that Mr Pearse "would have been aware of the Viva Energy Policies such as the Code of Conduct and Guide to Standards of Behaviour through on-line training."[53] Ms Heydon gave evidence to similar effect.[54] Mr Pearse, however gave evidence that he was not familiar with the specific policies.[55] He said that while he completed the on-line training modules,[56] they could be short-circuited to the final assessment, thus avoiding the need to read the specific policy. He said that this had been the practice of operators, although he could not recall if that was the case with these specific policies.[57] He also said that he had been trained in the Shell Code of Conduct and not the Viva Energy Code. He acknowledged, however that he had completed the on-line training on Viva Energy's anti-bullying and harassment policies.[58]

[91] Ms Heydon gave evidence that operators were expected to apply themselves diligently to the on-line training modules.[59] Her evidence, supported by documentation, was that Mr Pearse had completed the on-line training to a competent level.[60] While it was technically possible on some modules to skip content to short circuit the learning, her evidence was that it was the responsibility of each employee to be aware of the content of the module they were certified to have competently completed. Her evidence, which I accept, also indicates that the Viva Energy Code of Conduct was sent to all employees when Viva Energy acquired the business, and that the former Shell Policy, in relevant respects, reflected the Viva Energy Code.[61]

[92] I find that Mr Pearse had completed on-line training on the relevant Viva Energy policies and their Shell equivalent to a standard of competency. I find that he knew or ought to reasonably have known of Company policies concerning respect in the workplace, and prohibitions on harassing, insulting or bullying workplace behaviour or communication. My findings accord with the conclusions reached by Ms Heydon's and Mr McKenzie.

[93] Were the policy breaches by Mr Pearse sufficiently serious to warrant dismissal?

[94] For different reasons, counsel for Mr Pearse and for Viva Energy each expressed the view that I should have regard to both the context and the content of Mr Pearse's email and conduct in deciding whether it was sufficiently serious to warrant dismissal on notice. I agree. I now consider particular factors bearing on this question. In doing so, I have assessed the email objectively in both language and tone, and in the context of the prevailing circumstances.

[59]

[101] Counsel for Mr Pearse urged me to conclude that the seriousness of Mr Pearse's conduct was mitigated by his willingness to acknowledge his error and apologise to the Company and to the targeted employees.

[102] In certain contexts, acknowledgement of error and an apology can mitigate the seriousness of misconduct. However, the nature of the conduct as well as context matter. Mr Pearse did not express contrition or acknowledge error in the days that followed the email being sent. He did not seek to recall the email. He did not seek to reissue it in a less emotive or derogatory form. Throughout Mr McKenzie's investigation he did not apologise to the Company or to the individuals he targeted.[65] Rather, he defended his actions. Mr Heyns formed the view on 17 February that Mr Pearse apologised at an advanced stage in order to try to save his job. He also considered that the apology to the Company focussed on sending the email and not the substance of what he saw as a serious policy breach. On this basis he concluded that the apologies lacked candour and would not be accepted or distributed by the Company.[66]

[103] Mr Pearse gave evidence that, in the week prior to giving evidence at the hearing and after reading witness statements lodged with the Commission, he sent a further letter of apology to Mr Heyns.[67] In it he apologised for having called Viva Energy "a pack of bastards" in his investigation interview with Mr McKenzie. He explained this as a reaction to having been stood down, and said it did not represent his view of the Company as a whole. This was also his evidence to the Commission.[68]

[104] I find that it was not until the final sequence of meetings with management, when dismissal was a very real possibility, and in some cases only in the wake of these Commission proceedings, that Mr Pearse expressed contrition. By then, consequences had arisen. Employees who had attended the training had refused to co-operate with the investigator, and at least some were concerned about their workplace relationships. The basis for mutual respect and trust between the Company and Mr Pearse had been eroded.

[105] I find that the apologies proffered were belated and expressed in the shadow of an advanced disciplinary process when dismissal was understood by Mr Pearse and his support person to be a real possibility. Even if they were sincere, by that time almost three months had elapsed and they had become self-serving. I consider they are insufficient to mitigate the seriousness of the misconduct.

[67]

[115] An employee protected from unfair dismissal must be provided with an opportunity to respond to a reason for dismissal if it relates to their conduct or capacity. This criterion is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.[73]

[116] Mr Pearse was given a full opportunity to respond to the allegations throughout the course of the investigation, and during the sequence of meetings which led to the decision to dismiss. Mr Pearse availed himself of those opportunities.

[117] While it was common ground that Mr Pearse was given an opportunity to respond, counsel for Mr Pearse submitted that the decision to dismiss lacked procedural fairness in that Viva Energy failed to properly apply its disciplinary policies. Those policies are the Disciplinary Procedure and the Guidelines of Fair Play.[74]

[118] On legal advice, at the conclusion of the termination meeting on 21 February the AWU organiser Mr Wood asserted that the Guidelines for Fair Play had not been adhered to.[75] He had earlier, again on legal advice, unsuccessfully sought copies of all documents Mr McKenzie had accumulated during the investigation.[76] The contention was that the Guidelines for Fair Play provide for a 'peer test' in which conduct is discussed with up to five peers who are representative of the employee's workgroup for the purpose of assessing if the conduct complained of was what others would do or was a normal operating practice.[77]

[119] A formal peer test was not applied to assess Mr Pearse's conduct. However, Mr McKenzie's investigation sought to actively involve other operators including a random sample. Despite varying degrees of cooperation and availability, he did so. I find that the intent if not the methodology of the peer test, to the extent to which it is relevant to a non-operational incident (such as an email on an industrial issue), was met.

[120] I find that the Disciplinary Procedure and the Guidelines for Fair Play were, in substance, adhered to by Mr McKenzie in setting out the methodology of his investigation[78] and in conducting the investigation. Mr McKenzie and then the Company decision-makers provided Mr Pearse with natural justice, as required by the Guidelines for Fair Play. This principle was referred to by Mr McKenzie at the outset of his report.[79] I also find that the Guidelines for Fair Play were complied with by Ms Heydon and Mr Heyns in reaching and communicating a decision to dismiss. I do not consider that they provide a basis for finding procedural error in the dismissal.

At a glance

Court

Decision date

Source

Judgment (121 paragraphs)

Mr Andrew Pearse v Viva Energy Refining Pty Ltd [2017] FWC 3817 (20 July 2017)

Parties

Legislation Cited (2)

Cases Cited (5)