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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER HINGLEY
C2003/187
APPEAL UNDER SECTION 45 OF THE ACT
BY DIAMOND OFFSHORE GENERAL COMPANY
AGAINST THE DECISION BY DEPUTY
PRESIDENT McCARTHY ISSUED ON 19 JUNE
2003 IN U2001/7238 (PR933314) RE
APPLICATION FOR RELIEF OF TERMINATION
OF EMPLOYMENT
C2003/190
APPEAL UNDER SECTION 45 OF THE ACT
BY DANIEL JAMES ROBERTSON AGAINST THE
DECISION OF DEPUTY PRESIDENT McCARTHY
ISSUED ON 19 JUNE 2003 IN U2001/7238
(PR9333273) RE APPLICATION FOR RELIEF
OF TERMINATION OF EMPLOYMENT
PERTH
10.41 AM, TUESDAY, 21 OCTOBER 2003
PN1
MR N. ELLERY: I seek leave to appear as counsel for the company, the appellant in 187 and the respondent in 190 and with me is MS T. HOYNE on behalf of the company.
PN2
MR LLEWELLYN: I represent Mr Robinson as the respondent in 187 and the appellant in 190, if it please the Commission, and I don't oppose leave.
PN3
SENIOR DEPUTY PRESIDENT ACTON: Leave is granted. I have had and my colleagues have had or received various written submissions in this matter and I might take the opportunity now at the start to mark those. We can indicate we have read the material that has been provided. In the matter 187, there is the written submissions in support of the appeal on behalf of the company, which I will mark as E1.
EXHIBIT #E1 WRITTEN SUBMISSIONS ON BEHALF OF THE COMPANY RE C2003/187
EXHIBIT #E2 MR ROBINSON'S (RESPONDENT) SUBMISSIONS RE C2003/187
EXHIBIT #E3 APPELLANT'S (COMPANY) SUBMISSIONS IN REPLY RE C2003/187
PN4
SENIOR DEPUTY PRESIDENT ACTON: I was proposing to deal with these matters in both appeals concurrently, unless there is any objection to that course.
PN5
MR LLEWELLYN: No objection.
PN6
PN7
SENIOR DEPUTY PRESIDENT ACTON: Now, that is the written submissions that we have received in the matter. Is there any other written submissions we should have received in either of the appeals?
PN8
MR ELLERY: Nothing further.
PN9
SENIOR DEPUTY PRESIDENT ACTON: Very well. As I have indicated, we have read the material and the purpose of today is for brief oral submissions the parties may wish to put in respect of the matters. Mr Ellery?
PN10
MR ELLERY: Thank you. And I just wonder what would be the most convenient course for the Bench? Would it be best if I deal with both appeals from the company's point of view, if I can put it that way, or would you prefer for us to deal with 187 and then hear from Mr Llewellyn in relation to 190 in due course?
PN11
SENIOR DEPUTY PRESIDENT ACTON: I think, Mr Ellery, subject to any objection from Mr Llewellyn, that it would be most convenient if you put all your submissions in both appeals.
PN12
MR ELLERY: Certainly. I'm happy to do that. Okay, if I can deal initially with 187, if I may. I make one preliminary point which is that the directions that were issued in the matter made it clear that the various time frames that were set were intended to be complied with and that failure to comply with the time frames may lead to the submissions not being dealt with or heard as the case may be. As is noted in our written submissions, the respondent's submissions which are E2 were filed late. There was no explanation whatsoever for the lateness of the filing of service of those submissions and we would make the preliminary point that in accordance with the initial directions issued, that that simply should not received or dealt with. I don't know whether you wish me to pause at that point or whether you would like me just to proceed with the rest of our submissions.
PN13
SENIOR DEPUTY PRESIDENT ACTON: Yes, just proceed, Mr Ellery.
PN14
MR ELLERY: Yes, certainly. As we have observed, the principles dealing with Full Bench appeals are well established and I don't seek to dwell on those, given the purpose of today's hearing. I'm sure they are well known. What I would like to focus on is what we see the primary matters on which our appeal rests. In relation to the question of whether or not leave to appeal should be granted and whether or not it is in the public interest for leave to appeal to be granted, there is a number of key points.
PN15
First of all, as we have elaborated in our recent submissions, the Commission in our view has made significant errors in a number of regards. One of those areas is that it has simply failed to determine a matter it was required to determine under section 170CG(3) and I will go to that subsequently. It appears to have incorrectly applied an onus of proof test against the company, the respondent at first instance, which we say is unsafe and incorrect. It has made findings in relation to evidence which we say are against the overwhelming weight of evidence and they go to matters such as whether or not Mr Robinson was aware of a particular policy, which I will address, and quite significantly in relation to the public interest issue, in order and reinstatement, we say the Commission has fallen into serious error.
PN16
There was significant evidence led about the serious concerns that the company had for the approach and the attitude and the safety performance of Mr Robinson in relation to safety matters and therefore the dangers that any reinstatement in an offshore oil rig environment would pose. I think it goes without saying that the offshore oil rig environment is a highly dangerous environment where safety is of the utmost importance and we say the Commission has failed to have due regard for significant evidence about the safety performance of Mr Robinson in ordering reinstatement, having made the conclusion that he made that the dismissal itself was harsh, unjust or unreasonable.
PN17
In summary, that is the submissions I want to make about public interest and obviously I will elaborate on some of those points as I go through. If I can turn to the issue of failure to determine relevant matters under section 170CG, as the Bench would be aware, having read the materials, there are a range of reasons relied on for the dismissal of Mr Robinson. There are a range of safety issues and safety performance issues which were relied on, the most critical of which were the events occurring immediately before his dismissal where he, on two separate occasions over 2 days, accessed a fuel room and obtained fuel for himself without the permission or assistance of the motor man or the mechanic.
PN18
The company's position very clearly was that there was a policy. The policy was clearly communicated to Mr Robinson and the policy was that he should not do that, quite simply, because it was dangerous, because the room in which he was obtaining fuel had various valves, not all of which were necessarily clearly marked and unless you were properly trained and skilled in the use of the various valves and the equipment in that room, if you accessed one of the valves in order to obtain fuel, you might make a serious mistake. You could flood the engine room, you could cause a stalling of the engines or other quite serious consequences.
PN19
So the impact or the effect of not complying with that policy could have been very very serious in the company's view and was a matter of quite some significance. This wasn't a simple technical issue or a procedural issue, this is an issue of some substance. Now, it was obviously disputed at first instance that Mr Robinson had been advised or had been informed about the policy and that was a critical issue. His case, and I'm paraphrasing here and no doubt Mr Llewellyn will correct me if he thinks I've got it wrong, but his case was simply that he wasn't told of and he wasn't aware of that policy, notwithstanding the fact that there was significant evidence about the fact that he was told about it and that other staff on the installation knew about the policy and that it was a well established and well entrenched policy that was communicated to all the staff, verbally as part of the induction process, among other means.
PN20
So we say this is a critical issue. This is one of the major and most important issues that the company relied on in coming to the decision to dismiss and which it used in its defence to support its decision before the Commission at first instance. And this goes to the question of valid reason. The Commission was therefore required to establish whether or not there was a valid reason for dismissal and the valid reason that the company put forward was that there was a policy. The policy was communicated and the employee knowingly and deliberately breached the policy. And the issue was in dispute.
PN21
As is self evident from simply the language of section 170CG(3), the Commission is required to determine all of the matters that arise under that section of the Act as and when those matters arise in any proceeding before it. There is a number of matters that arise under that Act, some of which may not arise in every case. For example, subsection (d) which relates to unsatisfactory performance. In some instances that issue may not arise in a proceeding but where any of these issues do arise and obviously a valid reason and the existence of a valid reason very much arose, the Commission is required to determine it. And we have referred to authorities in our written submissions, particularly King and Freshmore Victoria, which is paragraph 17 of our initial submissions, which is E1, and also Mulhall and the ALH Group Pty Limited, trading as Royal Exchange Hotel, which is cited at paragraph 18 of E1.
PN22
Those cases articulate what is clear from the Act and if I can quote from King and Freshmore, when the reason for a termination of employment is based on a misconduct of an employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. And then they go on to comment that in their view, in that particular case, the Commission failed to determine whether or not the misconduct occurred in that case and therefore it was regarded as a appealable error and a reviewable error. Now, in this case we say the Commissioner simply failed to determine this critical issue, which is: did Mr Robinson knowingly breach this policy?
PN23
He canvasses the issue over several paragraphs in the decision but he simply failed to determine it and he says at paragraph 29 of the decision:
PN24
When and how the applicant would have been made aware of the policy regarding obtaining fuel is unclear from the evidence. Whilst the applicant should have been aware of the policy, since there is no systematic way for him to acquire that awareness, he cannot be held responsible for not being aware.
PN25
And this is paragraph 29 of the decision. And he comments in similar terms throughout the decision about this issue of whether or not Mr Robinson was aware of the policy or not. It is perhaps implicit in that that there is some criticism from the Commission as to how effective the company's communication of the policy was, but it doesn't find that the company did not communicate the policy to Mr Robinson. He does not make a finding on that critical issue. He simply avoids it, he simply fails to determine that question.
PN26
He does, we say, appear to mistake some issues which may go, perhaps, to remedy when canvasses this issue and he canvasses other points that may be relevant to remedy but they are not relevant to whether or not a valid reason exists, which is the issue of the knowledge of the policy and the knowing breach of it. I can go on and quote other parts of the decision, but I don't think that takes us any further. The critical issue is nowhere in the decision does the Commission actually determine this question. It is simply avoided, it is ducked. He appears to perhaps implicitly say: well, it wasn't as well communicated as it could have been and therefore I am not really going to determine whether or not he knew of it because the fact that it may not have been as well communicated as I think it should have been suggests that somehow it is not a critical issue.
PN27
Well, we say it is a critical issue. The respondent's case is very directly that he was told of this policy. It was communicated to him and he has knowingly breached it. If I can move on from there, there is also an issue arising as to - - -
PN28
SENIOR DEPUTY PRESIDENT LACY: Before you move on.
PN29
MR ELLERY: Yes?
PN30
SENIOR DEPUTY PRESIDENT LACY: You say it was the company's case that the applicant was told of the policy and he breached it, but isn't the Member of the Commission entitled to make the finding that evidence wasn't adequate to persuade him that there was the policy and that it was conveyed to the applicant?
PN31
MR ELLERY: I would say quite arguably he is entitled or would have been entitled to make such a finding that the policy had not been communicated, but I say he hasn't done that. He has failed to determine the issue. He appears to be uncertain as to whether or not it was communicated or not and at the end he simply does not determine it. So we say quite clearly he could have, if he had wished to determine, and I'm not saying obviously this is what he should have determined, but he could have made a finding that the policy was not communicated to Mr Robinson. He didn't do that.
PN32
SENIOR DEPUTY PRESIDENT LACY: He had before him evidence that the employer was saying that the policy was communicated and he had Mr Robinson before him saying that he hadn't been told that policy and he said the state of the evidence is such that it is difficult to make a decision on that point. No doubt he should have been aware of it but it is implicit in his finding, I think, that he didn't accept that Mr Robinson was told of that policy.
PN33
MR ELLERY: Well, with respect, I don't concede that that can be read into his decision. He canvassed it, he considered the issue, he considered the evidence but he doesn't actually make a finding. The paragraph I just referred to, paragraph 29, he says, "When and how he would have been made aware is unclear," well, that is not making a finding that he didn't know about the policy or that it wasn't communicated to him. And he goes on to say, "He cannot be held responsible for not being aware." Well, again, that is not determining whether or not he was told of the policy. He simply fails to determine that issue.
PN34
I make the point that this is not a peripheral issue or a minor part of the company's case. This was a major element, probably the major element of the company's defence, that there was this policy that was communicated and that he knowingly breached it. Had it been a less central element of the company's position, then I would say it would not be as reviewable an error or not as significant an error, because it would not have been of such consequence but it was very squarely at the heart of this case. It was very squarely at the heart of the company's defence and he has not determined the issue.
PN35
If I can move on from this issue and it is a related question, but the company - sorry, the Commission appears to find that there is some sort of onus of proof question against the company or the respondent in this case and I refer to paragraph 35 of his decision. And this is related to the point I have just made. His last sentence is that - and he is again contemplating here whether or not Mr Robinson was aware of this particular policy I've been referring to. His last sentence at paragraph 35 is:
PN36
However, in weighing up the evidence, I consider that the inadequacy of the respondent's inquiry at the time together with a lack of preparedness to consider the applicant's response, should allow the benefit of doubt in the applicant's favour.
PN37
Now, there is a couple of issues here. To some extent it would to us appear to be confusing issues that may be relevant on remedy with issues as to valid reason or potential issues as to procedural fairness with issues as to valid reason. And there is a confusion there which is not clearly resolved. But importantly he also says:
PN38
Should allow the benefit of doubt in the applicant's favour.
PN39
Now, as we refer to in our submissions, it is very clear that there is no question of benefit of the doubt. There is no onus of proof for or against any party in a proceeding such as this at first instance. It has been well established since Commissioner Larkin's decision in ..... if I have pronounced it correctly, and GIO Australia, which I have referred to, and it is very clear in the way the 1996 Act was redrafted from the previous Act. There is no onus of proof. There is no level or standard that the respondent, the company, has to get over or establish. The Commission is required to assess the evidence and make a determination and find as it is required to find on relevant facts and what again appears to be happening here is that the Commission is not determining that Mr Robinson's version is correct and that he didn't know the policy. But he seems to be saying, well, the company hasn't satisfied me that its version is correct and, therefore, I find against the company on this point.
PN40
SENIOR DEPUTY PRESIDENT LACY: Is it a question of onus though or is the Deputy President simply applying the principle, that they are a party, could have called a witness, it would have assisted its case faster. Do you say in the absence of explanation an inference can be drawn?
PN41
MR ELLERY: With respect, we say that that is not sentence that I read and addressed, and I recognise that the previous sentence you're referring to does look at the failure to call a particular witness.
PN42
SENIOR DEPUTY PRESIDENT LACY: But it seems to follow on from that.
PN43
MR ELLERY: Well, it may but he emphasises the inadequacy of the respondent's inquiry, in his view, and he talks about a lack of preparedness to consider the applicant's response. Now, those issues don't, in my view, turn on Mr Migliore and what evidence he may or may not have given. They're separate issues. They don't relate to that question. This is a continuation of discussion about this central question I've been referring to, which is did he know of this policy and did he knowingly breach it. So it is a continuation of the same discussion. I know it is under the heading of point 3, which is:
PN44
Did Dixon tell the applicant of the policy.
PN45
SENIOR DEPUTY PRESIDENT LACY: Yes.
PN46
MR ELLERY: So it is a further consideration of this question that he is referring to, in my view. Obviously, we can only interpret the decisions as we choose to. So in our submission there is a conclusion by the Commission at first instance that there is some sort of onus of proof and that somehow the company fails to satisfy that onus, and as I've said that is not correct, the issue is for the Commission weigh up both sides of the evidence and make a finding as he or she determines and, as I've said, this was a critical issue and it has failed to make a finding on this issue.
PN47
SENIOR DEPUTY PRESIDENT LACY: But the Deputy President was satisfied that the conversation took place in the machine room and that Mr Robinson didn't hear what was being told to him and it just seems to me that the Deputy President there is confirming that factor, that because Mr Robinson was not given adequate opportunity to address the issues at the time of the inquiry then he was going to give him the benefit of the doubt on that issue. I don't know that that goes to onus of proof.
PN48
MR ELLERY: Well, it is the conclusion of a relatively long discussion of this issue, of whether or not he knew of the policy and Mr Dixon's discussion with him on that particular occasion was only one of the instances in which the respondent says he was told of the policy.
PN49
SENIOR DEPUTY PRESIDENT LACY: Yes. I know.
PN50
MR ELLERY: So, in our submission, that is the point he is getting to. If I can move on from there I will address your question, to the extent I can, Senior Deputy President. If I can look at the evidence of the overall safety performance of the employee. This goes to two issues. One is to valid reason again and whether or not there was a valid reason for the dismissal and it, secondly, goes to reinstatement. I have cited there at particular, point 8, of E1, our submissions, numerous instances where evidence was led as to serious concerns about the safety performance of Mr Robinson.
PN51
I don't seek to go through those individually now. I don't know that much can be gained from that, but I do make the point that there is repeated and consistent evidence from various managers who worked with or who supervised Mr Robinson, that on numerous occasions they personally witnessed things that they were not happy with, that they had occasion to be concerned about and on some occasions counselled him about or discussed with him or warned him about.
PN52
So there is repeated and frequent evidence about safety concerns. Mr Robinson has his own view of that matter but we say the evidence is very strong and is overwhelming and the balance of the evidence is so much in favour of the fact that there was a repeated and serious deficiency in safety performance, such that it in itself constituted a valid reason together with the particular issue with accessing fuel, which I've referred to.
PN53
We make the point that these are repeated safety issues, these are not unrelated performance issues which may not in themselves be of great concern. These are repeated safety concerns about a particular employee in a highly dangerous environment where as a matter of policy and under legislation safety is of the utmost concern and the company has had numerous occasions to be very concerned about safety which has led to the termination and yet in our view the Commission has wrongly failed to accord sufficient weight to them and failed to give due regard to it in determining there was not a valid reason in determining to dismiss
PN54
That leads to the issue of remedy and it is very much the case of the company that putting aside the question of whether or not the dismissal should have been found to be harsh, unjust or unreasonable and we have our position in that regard, but even if it is accepted that it was to be found to be harsh, unjust and unreasonable in our view was inappropriate to order reinstatement for a variety of reasons and we say the Commission has fallen into error in this regard.
PN55
I've mentioned the issues of safety and I do want to take the Commission to the issue of safety to a certain extent because we think this is very important and the company's case was this was very important, yet at first instance the Commission has failed to have due regard to it. I've already referred you to paragraph 8 of exhibit E1, which is numerous safety issues which the company points to. If I could, I would like also to deal with some specific comments in transcript which I've referred to in brief at paragraph 39 of exhibit E1, but I would like to briefly read some of those statements because I think they are relevant.
PN56
These are various statements by various managers who worked with and who potentially would be working with Mr Robinson again from when he wants to be reinstated. Mr Huff, who was the offshore installation manager, so effectively the senior person on the platform that Mr Robinson worked on, at paragraph number 1441 of the transcript, he is asked as follows - - -
PN57
SENIOR DEPUTY PRESIDENT LACY: So 1441, was it?
PN58
MR ELLERY: 1441, yes. Paragraph number 1441.
PN59
SENIOR DEPUTY PRESIDENT LACY: Thank you.
PN60
MR ELLERY: The question is:
PN61
Do you know why a particular document has been marked safety and his conduct?
PN62
And then his answer is as follows:
PN63
While the misconduct is actually operating the valves in the engine room without the direction of a ...(reads)... how it should be and this is a prime example.
PN64
Then he cites the particular example of the accessing of fuel, which I won't repeat, and then I will read from the sixth last line - sorry, before that, the sentence before that which commences:
PN65
And it just proved to me that Daniel at this point was not going to listen to myself or any of the other ...(reads)... incidents that were mentioned here had the potential of being very severe.
PN66
So this goes to valid reason but it also goes to, and putting aside that issue, whether or not reinstatement as compared to some other remedy would be appropriate to order. So that is the senior manager on the particular platform. Mr Stevens, who is the safety adviser on the platform, at paragraph 1812 is asked:
PN67
What did you discuss with Mr Robinson?---His safety performance and attitude, mainly about getting them into type of body positions...
PN68
And I won't go on further but it reinforces that there was a genuine concern about his approach, his attitude to safety issues. Then at paragraph 1835 Mr Stevens again is asked in relation to a conference:
PN69
And then what happened?---We went over with Daniel to find out Daniel's facts and Daniel couldn't accept ...(reads)... any good any more and was forced to have to terminate him.
PN70
So there is a deep underlying concern about the actual fundamental approach of Mr Robinson to safety issues. Then finally I would just like to read Mr McKinnon, who was the deck supervisor, who was there for a direct supervisor of the applicant. At paragraph 2483 he is asked:
PN71
Just as hid direct supervisor, Mr McKinnon, would you be happy for Danny to be back on your crew?---No.
PN72
Then at 2484:
PN73
Why do you say that?---Danny was there for 18 months or more or something like that and, you know, my ...(reads)... so, no, I wouldn't like anyone like that on my crew.
PN74
So there are some quite genuine and deep seated concerns about his very approach. It is not an issue of competence or capacity it is his fundamental attitude and approach to safety issues and in ordering reinstatement, as compared to some other remedy, the Commission has disregarded that and, in our view, it is a dangerous decision to uphold and to allow it to stand.
PN75
SENIOR DEPUTY PRESIDENT LACY: The Deputy President took those matters into account. Paragraph 39 of the Deputy President's decision, he refers to the fact that the applicant was not being deliberately unsafe but rather his ambition and desire to be seen as a good worker affected his judgment with respect to safety. Then in paragraph 53: Considering any other relevant matters, he refers to this ambitious approach of the applicant to his work and his enthusiasm and energy and says that:
PN76
The respondent in those circumstances had a responsibility to ensure that his supervision was greater than it might have been for less keen employees.
PN77
Then paragraph 54, second:
PN78
From some of the evidence I have drawn an inference that the applicant's approach to his work caused a ...(reads)... the other employees including some of the supervisors.
PN79
Then goes on to say that the respondent had some responsibility in those circumstances. So the Deputy President took those matters into account in forming his opinion and decision.
PN80
MR ELLERY: Yes. I accept that he has, to that limited extent, taken it into account, Senior Deputy President, and I can't dispute that but we say that he has failed to give sufficient regard to the seriousness of these issues. The evidence of some of the supervisors, that they are concerned that there will be a serious injury to Mr Robinson because of his approach and that they have repeatedly discussed the issues with him, discussed his approach, his attitude to safety with him, as I've just referred to in the transcript, yet he doesn't adopt an appropriate approach and so to allow the decision to stand you're effectively requiring the company to allow the employee to put himself at risk because he will not take counselling and repeated training and counselling about these issues.
PN81
In any circumstances such as this obviously an employer has an obligation to attempt within reason to counsel and/or train an employee to adopt the appropriate response but there must come a point where the company must, in regards to safety, form a view that: well, this is not going to work, this employee is not going to adopt the appropriate response whatever we do and therefore the risk is too high and it cannot be allowed to continue and therefore termination arises or some other measure.
PN82
The company's very strong view was that this was such a case and yet we say the Commission has wrongly disregarded that view as requiring the company to take on into a highly dangerous environment an unsafe worker who has repeatedly shown himself to be unsafe. So I accept that he has, to the limited extent, had regard to those issues and some of that evidence but we say he hasn't given it sufficient weight.
PN83
SENIOR DEPUTY PRESIDENT LACY: Adequate weight.
PN84
MR ELLERY: Yes.
PN85
SENIOR DEPUTY PRESIDENT LACY: Right.
PN86
MR ELLERY: I would also note that the discussion that occurs in the decision at first instance which you just referred to, Senior Deputy President, is primarily in relation to the question of whether the dismissal was harsh, unjust or unreasonable and, as I've indicated, we say that these concerns are relevant to that point but also very relevant to the issue of reinstatement and in determining reinstatement compared to some other remedy we say he hasn't given sufficient weight to those concerns. If I could also move on to an issue in relation to the question of remedy which was a significant mistake of facts that was made by the Commission at first instance on which he based the decision to reinstate and this is referred to at paragraphs 27 onwards of my submissions, which is exhibit E1.
PN87
We say that the factual position cannot be disputed, it is not in doubt, it was not in dispute at first instance. The position was that Mr Robertson was employed on a particular rig that he was working on. While that rig was under a contract to Woodside he was doing a particular job, if you like a higher duties role, as dog man rather than roustabout which was his initial position. It was agreed and understood that at the end of the Woodside contract he would be moving back to his primary position as roustabout, he would not be terminated from employment.
PN88
SENIOR DEPUTY PRESIDENT LACY: That was common ground, was it, between the parties?
PN89
MR ELLERY: Yes, and if I can refer to that at and I have given relevant extracts at paragraph 31 onwards of exhibit E1 of our submissions. Thirty one is that Mr Robertson testifies and the question is:
PN90
Right. So did you know what was going to happen at the end of the Woodside contract?
PN91
And the answer is:
PN92
It was always discussed that I would go back to - on Ron McKinnon's crew, the same as I had always been, as a roustabout.
PN93
So I'm referring you here to para 31 of my written submissions which deal with this and then also, on the next paragraph of my submissions, the question was asked of him:
PN94
You were not going to lose your job because the Woodside contract ended, were you?
PN95
The answer, "no". So that was clear and that was not in any dispute.
PN96
It was also given in evidence that the Woodside contract ended at about the time that he was actually terminated from employment and I refer to paragraphs 33 and 34 of my submissions, to the evidence about that, and this is not in dispute that the Woodside contract wrapped up at about the time that he was terminated. But Ms Hoyne, the Personnel Manager, gave unchallenged evidence at transcript 2627 and I'm not going to take the Commission to that unless you ask me to because it is very clear that staff would have been made redundant - Australian hired staff were to be made redundant when the rig left Australian waters and was effectively decommissioned from Australian waters. And it might actually be helpful if I give you the precise words. It is paragraph 2627 of the transcript. This is Ms Hoyne being examined in-chief. Okay, the question is:
PN97
Okay. And then can you just tell me what happened to the crew on the Ocean General after Mr Robertson left in terms of the operations of that specific rig?
PN98
This is paragraph number 2627. The answer:
PN99
We maintained a full crew. The rig had contracts and they would continue to work until May 2002. It secured a contract in Vietnam so it left on or about 1 May and the crew were kept on until 15 May and we made the majority of the crew redundant.
PN100
And then at 2629:
PN101
Is it normal for you to, if you move out of Australian waters, get a different crew on?---We keep the majority of the senior crew on, the OIN, the rig superintendent, mainly the ex-pats from the States, -
PN102
that is, I take it, referring to specialists from the United States -
PN103
the dual crews, deck crews. Any one that we've taken on in Australia normally leaves the rig or is made redundant.
PN104
And, obviously, Mr Robertson was taken on within Australia. And the question is:
PN105
And you then man the crews from other countries?
PN106
The answer, "Correct". Now, this was not challenged at first instance and then, more importantly, Mr Llewellyn in his submissions made various admissions which go to this issue and I've quoted those at paragraphs 36. This isn't a discussion about the question of assessment of loss for the
PN107
purposes of compensation and if I could read from exhibit E1, paragraph 36, from Mr Llewellyn:
PN108
Because one of my submissions I would simply make is that -
PN109
and then I go to the underlined part -
PN110
the period of loss really only occurs up until May of 2002 because following that what happens is irrelevant because the termination would have been effected fairly at that point in any event because the rig was no longer there.
PN111
And then over the page I've referred to another comment from Mr Llewellyn in the same section of the transcript where he says, and I'm referring to the underlined part:
PN112
Because in any event he would have been terminated with everybody else at that point.
PN113
And he is referring there to May 2002. So there was no argument between the parties at first instance that in May 2002 the rig went overseas and Mr Robertson, along with all the other Australian crew members, the more junior members of the crew, were to be made redundant. That was the consistent standard of practise of the company, that was the company's evidence, that was not challenged, Mr Llewellyn conceded that point quite properly at first instance and it - - -
PN114
SENIOR DEPUTY PRESIDENT LACY: Does the submission there, the termination would have been effected fairly at that point, mean that he would have been redundant and paid a redundancy pay?
PN115
MR ELLERY: Yes. He would have been redundant. He would have been made redundant, as to what the terms of any redundancy I'm not - I don't have instructions.
PN116
SENIOR DEPUTY PRESIDENT LACY: There is no evidence about that?
PN117
MR ELLERY: I would - I might have to take instructions on that.
PN118
SENIOR DEPUTY PRESIDENT LACY: Yes.
PN119
MR ELLERY: But the discussion from Mr Llewellyn there is at the issue of how to calculate and assess compensation. There were difficulties at first instance because Mr Robertson is working overseas and proof of his earnings were somewhat shortcoming in our view and there were arguments as to how you could calculate what other earnings he had because he was earning in overseas currencies, in any event, so the discussion was on that point. So it is not in dispute that as of May 2002 Mr Robertson would not have been employed by the company longer. He would have been made redundant and the Commission has very clearly got this wrong, at first instance.
PN120
He refers at the conclusion of the decision, at paragraph 77 and 78, and he basically discusses this issue because the respondent in its closing submissions put that he would have been made redundant in May 2002 and therefore that should be assessed in determining whether or not to reinstate because he would not have been an indefinite employee had he not been dismissed in October 2001, as he was. And at 77 and 78, I won't go through what the Commissioner says, but he has clearly got it wrong. He has confused the ending of the Woodside contract with the decommissioning of the rig from Australian waters. The Woodside contract ended in October 2001 at about the time that he was dismissed and the evidence was unchallenged that in May 2002 the rig was to go offshore and Mr Robertson would have been terminated.
PN121
We say that is a critical point in the Commission's consideration of whether or not to order reinstatement as compared to some other remedy. He made the finding effectively that had he not been dismissed in October 2001 Mr Robertson would have been an ongoing employee, an indefinite employee, and therefore reinstatement was a more appropriate order in those circumstances than otherwise.
PN122
SENIOR DEPUTY PRESIDENT LACY: Is there any evidence about the availability of jobs at the time of the hearing?
PN123
MR ELLERY: There were submissions to the effect that there were no positions available. What positions were utilised by the company were fully occupied and there were no positions available. Just allow me one moment. As I understand it, his submissions were that there was one rig in the Australian waters at that time and it is was fully crewed at that time so there was no position to simply reappoint him to. So - and it is our submission and that was clearly a critical assumption that was relied on by the Commission in determining that reinstatement was an appropriate remedy. He incorrectly thought that Mr Robertson would have been indefinitely employed. Obviously, that puts a different colour on the question of what to order in terms of remedy.
PN124
COMMISSIONER HINGLEY: Well, is that what you say? You say that if he was going to be made redundant he shouldn't have been reinstated at - earlier.
PN125
MR ELLERY: Well, it is a fact that it should have been taken into account. I wouldn't put it that it is automatically the case that if he is going to be made redundant in the future that he could not be reinstated but it is a factor that should have been properly taken into account and would have been a very significant factor, in our view, Commissioner, and there has been a significant mistake as to the facts and, therefore, the decision to reinstate was based on an incorrect understanding of the factual situation. And, as I say, we say it is not just a technicality or a matter of detail that is not of any great moment. It is a critical issue that goes to whether remedy of reinstatement was appropriate and fair in all the circumstances or not and the decision was based on a mistake as to the correct facts.
PN126
SENIOR DEPUTY PRESIDENT ACTON: Well, Mr Ellery, you suggested there was unresolved dispute between the parties about Mr Robertson's post-termination earnings but in the exhibit material at first instance there is numerous pay slips and documents prepared, presumably for the tax office, on remuneration and presumably - well, of which there was provision for cross-examination, etcetera, on the material amongst - - -
PN127
MR ELLERY: That - - -
PN128
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN129
MR ELLERY: Yes, there was evidence provided but there is an exchange in the transcript and I would have to go to the transcript reference to identify where it is, but there is an exchange in the transcript and there was arguments about the fact that the evidence was not forthcoming, it was quite late in the peace, it was argued that it wasn't all clear and that it wasn't a complete picture of what post-termination earnings there had been. Now that, in the end, did not particularly matter to the decision of the Commission because the Commission didn't order compensation and it didn't play a major role but it was argued that the evidence was not clear and forthcoming and that should mitigate against the employee at first instance.
PN130
If I can point you to the respondent's submissions on a remedy, I don't know if you have those in the court file, but paragraph 3 of the respondent's submissions on remedy which were filed in writing pursuant to the directions of the Commission after the hearing.
PN131
SENIOR DEPUTY PRESIDENT ACTON: Mm, mm.
PN132
MR ELLERY: Point 3 is that:
PN133
As far as possible orders for compensations concern, the respondent submits that the Commission should have regard to the fact that the applicant was not frank and forthcoming in his evidence regarding his employment from the time of the dismissal to the time of hearing.
PN134
So that is the submission that was put in writing, at first instance, on behalf of the company.
PN135
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN136
MR ELLERY: Now, there may be an argument as to whether that is a fair point or not but that was certainly the position, at first instance put by the company, that it wasn't forthcoming and wasn't frank evidence.
PN137
SENIOR DEPUTY PRESIDENT LACY: Was any calculation made from the pay advice slips that were in evidence about the actual earnings?
PN138
MR ELLERY: Well, that was a matter that the applicant, at first instance, led some evidence about and gave some submissions about. We say it wasn't very clear what the real earnings were and, obviously, Deputy President McCarthy didn't determine the issue because it wasn't relevant in his particular order but there was some evidence and some submissions about that at first instance. And it is probably of greater significance in a case such as this, perhaps, because there was a very long time between the dismissal, October 2001, and the hearing and determination of the matter at first instance, which was quite a considerable time after the actual dismissal and that was primarily because the respondent was working overseas at various times. Sorry, not the respondent, the applicant, Mr Robertson.
PN139
I don't know if I've - have I adequately addressed the Bench's queries on that point or?
PN140
SENIOR DEPUTY PRESIDENT ACTON: Well, in your submissions on remedy my recollection is that you suggest that if there was compensation to be awarded the general formula should be spelt out and left to the parties to determine what the actual quantum is?
PN141
MR ELLERY: Yes, with leave to come back to the Commission, if required, if the matter couldn't be resolved between the parties. That is our position and partly we made that submission because the evidence, if I could put it this way, was somewhat messy and unclear at first instance and it would not be very easy to resolve it in a Full Bench hearing now, on the second time around, I would suggest. But hopefully, if it was required, the parties could resolve that matter between themselves.
PN142
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN143
MR ELLERY: Just allow me one moment, if you could. Thanks for that brief adjournment. As I understand it, what happened at first instance was, among other things, there was a dispute about how the earnings that Mr Robertson had received overseas should be properly calculated and attributed. The matter was not finally determined because his Honour, at first instance, said, well look, let's put that to one side, effectively, and come back to it if and when required and so the issue was not fully resolved. There was also a dispute as to whether all the evidence was clear or not and the impact of all that evidence and the issue was parked, if you like, and not fully resolved while the Commission determined other things.
PN144
SENIOR DEPUTY PRESIDENT ACTON: Pay advice from the company. If I take you to, for example, page 316 and onward of the appeal book, it sets out in terms of what the company was paying Mr Robertson at the time of his employment. It sets out the normal rate of pay, superannuation, taxation, etcetera, but when one goes to the - essentially, the group certificate, there is suggestion that there was fringe benefits tax reportable and so there may have been other forms of remuneration which are not set out in the pay advice. Is that so?
PN145
MR ELLERY: I will have to take instructions on that. If you will allow me just a moment.
PN146
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN147
MR ELLERY: There may well have been a relatively small issue of FBT. I'm instructed that there were service awards provided to employees which were gifts, they were not cash, and therefore FBT was payable on those but I'm not instructed that there is any other way that FBT would arise. So it is likely to be of a small quantum.
PN148
SENIOR DEPUTY PRESIDENT ACTON: Well, the - on - if you turn to page 326 of the appeal book the - - -
PN149
MR ELLERY: I'm sorry and - sorry to interrupt and Mr Llewellyn has perhaps pointed that living away from home allowance, LAHA, is also potentially a fringe benefit and, obviously, in an offshore oil rig environment that can arise.
PN150
SENIOR DEPUTY PRESIDENT ACTON: Right. The LAHA is reportable in the pay advice.
PN151
MR ELLERY: Yes.
PN152
MR LLEWELLYN: Only tax free.
PN153
SENIOR DEPUTY PRESIDENT ACTON: My question goes to whether the pay slips are an accurate reflection of the remuneration or was there any agreement between the parties on what Mr Robertson's remuneration was?
PN154
MR ELLERY: I don't think there was, at first instance, no. I'm sorry, Mr Llewellyn might be able to assist.
PN155
MR LLEWELLYN: Perhaps I can be of some assistance. The wage package Mr Robinson was on was actually covered by an AWA. In terms of the Diamond pay slips, the fringe benefit tax that appears on the group certificate is virtually wholly attributable to living away from home allowance which is delivered to the employees in the employees pay slip as a tax free allowance. So it is not the - in terms of the gross income, it is not the full benefit of the allowance. The figure that shows as living away from home allowance on the pay slips is actually an in-hand amount and then fringe benefit is then recorded against it for the purposes of other taxation requirements in terms of Medicare levies and child support payments, family benefit payments, those types of things. If that assists.
PN156
MR ELLERY: Thanks, Mr Llewellyn, and we don't dispute any of that and I can clarify and I am instructed, as Mr Llewellyn pointed out to me, that there was no dispute between the parties at first instance as to what the Diamond Offshore earnings of Mr Robertson were. There was some dispute as to the extent of mitigation efforts and how to quantify income earned overseas, which was not fully resolved.
PN157
SENIOR DEPUTY PRESIDENT ACTON: Right. Are you able to take me to the transcript about where it was agreed what the earnings were?
PN158
MR ELLERY: If you will allow me a moment I would, yes. Thanks for that opportunity. I think the easiest way to deal with it is to - it is dealt with in the closing submissions of Mr Llewellyn on behalf of the applicant at first instance. I am not sure whether you have those in your appeal book, at what page, but essentially - - -
PN159
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN160
MR ELLERY: Paragraphs 42 to 45 make various submissions which were not in dispute, which does deal with a redundancy payment by the way, which answers a query that came up before that I wasn't able to answer which is the disadvantage one has when I didn't deal with the matter at first instance, but 42 to 45 deal with various earnings that could have been anticipated would have been earned and earnings that were received from Diamond Offshore. Then at 46, there are Mr Llewellyn's submissions about earnings overseas which were in some dispute; the conversation rate and extent of Mr Robertson's efforts to mitigate was in dispute as well.
PN161
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN162
MR ELLERY: So, that was in dispute, and then you will see at paragraphs 47, Mr Llewellyn's reference to various exhibit numbers. So, thanks for your patience on that but I think that resolves as much as we are able to resolve at this point. Obviously the issue of conversion of English pounds etcetera and mitigation is an issue.
PN163
SENIOR DEPUTY PRESIDENT ACTON: Yes. Thank you.
PN164
MR ELLERY: Thanks. And if I could make a comment that the point on mitigation was that the evidence was that Mr Robertson wanted to work in an oil rig and wasn't going to take work elsewhere and therefore there was some - in terms of his mitigation efforts - and therefore there were some longer periods before he got work than what might have otherwise been the case, and the company's position was that he should have taken other positions in an effort to mitigate the loss. And that was put but not ever resolved at first instance. That would really conclude all I wanted to say on the first appeal. If it is convenient, I can now deal with appeal 190 and our position on that.
PN165
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN166
MR ELLERY: Which are summarised in exhibit E3. Sorry, is it exhibit - no, not E3, sorry.
PN167
SENIOR DEPUTY PRESIDENT ACTON: E5, I think.
PN168
MR ELLERY: Yes, thank you, E5. Too many appellants and respondents in this case; it is getting a bit confusing. So, the employee's claim in this appeal appears to be fundamentally that the decision not to award a backpay, if I can colloquially put it, and to allow a significant delay between the finding of unfairness and the decision to actually order reinstatement was inappropriate. That, as I understand it, is the essence of their appeal on this point and there are some other issues which Mr Llewellyn will take you to, but that is the essence of it as we see it. And obviously I make the observation without wanting to sound trite that to the extent necessary we don't resile from any of our positions or submissions in the other appeal in putting any of these matters to the Commission in 190.
PN169
At the heart of it, these two decisions, the decision not to allow or order any backpay and to allow a delay between the order and the actual occurrence of reinstatement, are purely discretionary decisions in our view, fall squarely within the discretion of the Commission at first instance based on his assessment of the facts and there can be no identifiable error of law or fact in coming to those conclusions. And obviously we say that for those reasons public interest for this appeal cannot lie and there should be no review of the decision on those facts.
PN170
As we have referred to in our submissions dealing with section 170CH which talks about the remedies that can ordered, it is very clear and very deliberate that there are a number of steps that the Commission has to take in deciding whether to issue any remedy at all, and it is obviously open to the Commission to find that a dismissal was unfair, for example - again, I am putting things colloquially, if I may - but not order any remedy whatsoever. But if the Commission is to order a remedy then there is various assessments and certain considerations that must be independently gone through.
PN171
Now, we have put up submissions about reinstatement itself and obviously I leave those to one side, but if the Commission is minded to reinstate, then it is entirely a separate assessment under section 170CH4 as to whether or not the Commission orders continuity of employment or his backpay or anything of that nature. It is an entirely separate assessment that the Commission has to make, and it is apparent from the language of the Act. I read now from 170CH4:
PN172
If the Commission makes an order under subsection (3) -
PN173
which is the order for reinstate -
PN174
and considers it appropriate to do so, the Commission may also make -
PN175
and then the various orders are set out there. So, there is no question that it is an entirely separate, discretionary decision for the Commission to order continuity of employment toward a compensation for the loss of remuneration or not, as the Commission sees fit. And in our written submissions we referred you to a key authority, which is Kenley & JB Hifi, which is referred to at paragraph 21 of exhibit E5, which elaborates on this point and makes it clear that the Act has changed from the 1996 legislation or the pre-'96 legislation.
PN176
Under the pre-'96 legislation, it was the case that reinstatement ordinarily was accompanied by an order for compensation for the lost remuneration, and it was almost a prima facie position, if I could put it that way. Quite clearly the new Act is quite different and it is required for the Commission to separately assess whether or not continuity of employment should be maintained or compensation awarded. And if I can quote from the extract from that case, which I referred to at point 22 of exhibit E5, at the end of it, it says:
PN177
The use of such language is, we think, contrary to the proposition that it would only be in exception or unusual circumstances that such an order would not follow an order of reinstatement.
PN178
So, it is very well established that under the new legislation, well, relatively new legislation, that it is not the case that reinstatement is automatically or prima facie accompanied by continuity of employment, compensation for lost wages and so on. That is a matter for the Commission to assess on a case-by-case basis and exercise its discretion to do so. And in this case the Commission clearly considered that very issue quite carefully, assessed in his view the fact that there was, to put it simply, some blame or some fault on the part of Mr Robertson, that his approach to safety was not ideal, if I can paraphrase it that way, and that it would be appropriate not to order continuity of employment or compensation for lost wages. And that is squarely, we say, a discretionary decision for the Commission to make and there cannot be identified any error of law or fact in coming to that view.
PN179
SENIOR DEPUTY PRESIDENT LACY: That and its submission contradicts something you put earlier about the Commissioner not giving sufficient weight to the issue of safety.
PN180
MR ELLERY: Well, Senior Deputy President, as I have said, we don't detract from or resile from our position in the other appeal and we say in the other appeal - I am not sure which particular point you are referring to - but in some of the cases, for example, the lack of serious weight given to the evidence about safety performance and safety concerns, the evidence was so strong and so overwhelming that it must be an error for so much evidence to be disregarded or not taken proper account of. In this case there can be no doubt that there was evidence that there was some fault or blame on the part of the employee, that he had been subject to one formal warning, other counselling, then there were genuine concerns about his performance. That evidence was there and not open to contest.
PN181
And all the Commission has done in that, in coming to this conclusion, is that he has assessed that evidence and made the view that in this particular case he thinks it is appropriate not for continuity to be ordered. And that is on all fours we say with the decision of Senior Deputy President Duncan in Rossi v Australian Air Express, which we refer to at paragraph 28 of our submissions, where he expressly says that, in order to make it clear that the Commission does not condone Mr Rossi's actions in recognition of the occupational safety and health connotations of his actions, he would not order continuity of employment. And he made a very similar order to that made by Deputy President McCarthy here, so was open for the Commission to do that.
PN182
I have referred the Commission in our written submission to various cases where, for various reasons, the Commission decides not to order continuity of employment, to exercise its discretion under 170CH4, and to order reinstatement without continuity of employment or backpay. There is no wrong or right answer to that question in any particular case like this where there is evidence for and against. It is matter of discretion and we say it is not a reviewable error or an appealable error.
PN183
The other case that seems to be made on behalf of the employee, Mr Robertson, is that reinstatement means returning the employee to the position they would have been, had it not been for the dismissal. And they cite in the first instance the case of Blackadder v Ramsey Butchering. Now, we say a couple of things. First of all, as the Commission would know and as we have spelled out in our written submissions, that case was appealed and on appeal the Full Court of the Federal Court did not uphold the decision at first instance. So, the decision that they refer to was overturned on appeal. But Ramsey was a very different case. Ramsey, with an order to reinstate to work.
PN184
And the employer in that case took the view that the would not allow the employee to work subject to clearance of a medical and other related issues. And so the issue was whether an order for reinstatement carries a connotation of a right for the employee to actually be at work. Now, that is entirely separate from this matter, where there is no doubt that an order for reinstatement means an order for reinstatement, means back to work, bar the Commission has quite consciously formed the view that it should not order continuity of employment, should not order back pay. So, it is quite a different case. And obviously, as I have said, the Act very clearly spells out that is a separate consideration for the Commission to make.
PN185
Looking at the issue of the delay, again, there is an open discretion for the Commission as to when it makes an order operative. That is a matter for discretion of the Commission at first instance. And the Commission squarely turned its mind to this issue. This is an off-shore oil rig working environment. It is not an environment where, if the Commission makes an order, the employee can drop down the road and start work the next day. There has to be a rig available. There has to be a position. There has to be, in various cases, safety inductions and training or whatever else might be required. And quite properly we say the Commission took the view that there should be some delay and he squarely addresses that at paragraph 84 where he says:
PN186
The order will take into account the respondent needs to organise and prepare for reinstatement of the applicant.
PN187
So, he has quite properly taken it into account and made the decision he has come to. And he says:
PN188
An extended time frame will, therefore, be ordered.
PN189
So, it is not an omission. It is a conscious decision that was open to it on the facts. I think to take it any further I would be simply repeating matters that I have already referred to and are already dealt with in detail in the written submissions. Unless there is any questions or matters that the Bench wish to raise with me, that would conclude our submissions.
PN190
SENIOR DEPUTY PRESIDENT LACY: Thank you, Mr Ellery. Mr Llewellyn?
PN191
MR LLEWELLYN: Thank you, ma'am. Perhaps just for ease of dealing with matters, if I deal with 187 first and then proceed through to 190. Essentially the submissions of my friend seem to be built on a house of cards, from my observation, and that is that he premises everything on the fact that he says that the Commission failed to determine the matter or determine in accordance with 170CG(3). And that is, failed to make a finding on the key issue. And that finding being of whether Mr Robertson was aware of the policy or not. Now, much of his appeal seems to be centred around that particular point initially, including the public interest question that he raises in terms of why the appeal should be allowed in the first instance.
PN192
And in respect to that, I just draw the Commission's attention to page 17 of our appeal book, and paragraph 20 of Deputy President McCarthy's decision. And quoting from that at 20 Deputy President McCarthy says that:
PN193
I find the applicant was in the practice of obtaining fuel from the engine room and that he was not aware of the company policy that he should not do so.
PN194
So, quite clearly on my friend's submission that Deputy President McCarthy failed to make that finding, paragraph 20 should put that plainly out of contention, because obviously the Deputy President did make the finding in relation to 170CG(3) in relation to that particular premise. And spells it out very clearly in paragraph 20. My submission simply in the areas that my friend referred to went to the fact that the company's evidence, and much of the company's evidence, was that he should have known and I think the Deputy President made comment in relation to Mr Dixon's evidence. For example, Mr Dixon made it clear it was in the inductions and everyone should know about it.
PN195
It was inducted on you when you came into the rig. And of all the witnesses, he was the only one that said that. Mr Huff, the Rig Manager, conceded that that wasn't the case. Mr Fenalon, who was the rig welder, had been with Diamond for some considerable length of time, conceded that wasn't the case. And, indeed, his direct - sorry, not his direct supervisor. Mr McKinnon, who was originally his direct supervisor, also conceded that it is not part of the induction process as you come on the rig. So, in relation to the premise my friend has built his entire appeal on, and that is the failure to make a finding in respect of whether or not Mr Robertson was aware or not aware of a policy to get fuel, quite clearly the Deputy President has made the finding.
PN196
Now, on that basis, we say his house of cards simply collapses. And it goes through all of the other issues in relation to appeal matter 187 that he raises. In any event, however, I think we should deal with a couple of other issues. And the issue that is of greatest concern to us is this so-called reliance on safety issues by the respondent. Now, the respondent makes out that the off-shore drilling industry - and for the benefit of the Bench, I refer to it as the off-shore drilling industry rather than the oil industry. It is not an oil rig. It is actually a drilling rig. So, it is the off-shore drilling industry. Is an extremely dangerous environment.
PN197
Now, while I consider that any workplace in what I would class as the mining industries of which oil and gas drilling is one of them and exploration is also one of them, I don't make any submission as to which one is more dangerous than the other, because obviously they all are. The issue is more that my friend raises a number of points that says that the company - and the company in evidence did keep harping on the point. But when you look at some of the transcript of these proceedings and, more particularly, for example, the evidence of Mr Huff, the Rig Manager, and particularly at page 201 of the appeal book, running through paragraphs 17, 23 onwards, where there was a discussion going on between myself and Mr Huff with regard to his concerns of safety.
PN198
And that goes around the position that essentially Mr Robertson was initially employed as a rouseabout. He was then promoted to a dogman's position. Mr Huff agrees with that. He also agreed with the premise when I put it to him, was that was Diamond in the habit of promoting people that they have safety concerns over? And quite rightly he agreed that that wasn't the case. Diamond don't promote people they have safety concerns over. It went further than that. Diamond Offshore actually put Mr Robertson through a training program for a tower crane. It was also put to Mr Huff whether the company was in the habit of sending people on expensive training courses, for example, tower crane training, for people that had genuine safety concerns over.
PN199
And the answer, rightly, again, was, no, they don't do that either. Yet in all cases, they put Mr Robertson through all that training. On top of that, when you consider the evidence that was put before Deputy President McCarthy, Mr Robertson had mitigated his loss by the fact that he had gone out and worked in the very industry Diamond say that he was unsafe in on a casual basis in the North Sea. Now, that was working for labour hire contractors where - and I think the industry would acknowledge nowdays albeit that it might have bought Piper Alpha to do it, the North Sea is considered probably one of the most safety conscious areas in the off-shore industry.
PN200
Now, you would ask yourself how someone that was so inherently unsafe managed to maintain employment in that industry post the termination as far as mitigating his loss. All these issues were put before the Deputy President and upon that the Deputy President formed a view that Mr Robertson should be reinstated to his position. Now, in our view, simply put, when one goes through all of the evidence that was presented at the hearing including the outlines that were filed prior to the commencement of the hearing, there were only essentially three issues raised. The first was the issue with bins where Mr Robertson quite happily signed the counselling advice because he agreed what he had done was unsafe.
PN201
He had got inside another bin and could have potentially put himself at risk. The next incident that was complained of that Mr Huff said was taken into account for the termination is contained at page 314 of the appeal book which is exhibit A10 which is the incident on 2 October in relation to the L shaped drilling pipe. And quite clearly when one looks at exhibit A10, in large letters of approximately an inch high or more, the words "void" are written across it. And Deputy President McCarthy went into that issue and the fact that Mr Robertson rightly believed that he had vindicated himself and proved to Mr Huff to the extent where there wasn't a counselling issue at all, that his actions weren't unsafe.
PN202
The next incident is a fuel incident. And there is some conflicting evidence around the fuel incident when Mr Robertson was informed. But essentially the Deputy President found in his decision that he accepted Mr Robertson's account of that. Now, that, we say, was for a number of reasons including the issues essentially raised by SDP Lacy today. And that is that he essentially found that he accepted Mr Robertson's evidence. Now, that was in line with the fact that Mr Migliore, despite the fact that he was on the Ocean Bounty at the time, wasn't called to give evidence. The statement that was actually tendered, I think, or attempted to be tendered - I am not sure whether it is actually in here now.
PN203
But the evidence was that - and it wasn't argued that Mr Migliore had actually told Mr Robertson that he shouldn't do it again on the second occasion. And that is after the second occasion, the one that was the so-called trigger for the termination, Mr Migliore advised him that he shouldn't do it any more. And he had in fact not done it again since then. Now, they are the issues that were put before Deputy President McCarthy. And what the company simply says is - they say there was a history of Mr Robertson not accepting advice. Well, quite clearly, that is not correct and could not be demonstrated on the evidence. There is one occasion where he accepted the warning, accepted the advice he was given.
PN204
On the second occasion, it was discussed. It was agreed that his actions weren't unsafe because the counselling note was voided. And on the third occasion, since Mr Migliore had spoken to him on 12 October, Mr Robertson hadn't returned to the engine room to do anything. While he might disagree with Mr Dixon's instruction on it, having been performing that task, and the finding that I took you to where Deputy President McCarthy found that he had been in fact in the practice of doing it for some time, weighed on the decision of the Deputy President at the time. So, in terms of the issues my friend raises as to whether there has been a miscarriage of the type referred to in House v King, clearly there has not been.
PN205
All of that evidence is considered and is covered in the decision issued by Deputy President McCarthy on the 19th. The second issue - and we say that a lot of that falls away, given the findings that the Deputy President made. Is this so-called flag that is being waved now. And we put it in these terms. It is a flag of convenience for companies such as Diamond Offshore in this circumstance. That there is this overwhelming safety concern they have and, therefore, people shouldn't be put on the rig. Now, it concerns me because there have actually only been a couple of cases that have actually come before this Commission over a period of time. One of those was with Sedco where the employee wasn't reinstated.
PN206
He was actually given 6 months compensation and that came before Commissioner O'Connor, with this similar sort of safety concerns. The second one is a case that was heard before Commission Eames in Darwin relating to Diamond Offshore which you can point to having the same sort of safety ramifications or the same argument run by the company at that point in time. I should say at that point, the employee wasn't reinstated either, because there was no rigs at all working. So, he simply got compensation. But the thing that concerns me when these type of arguments are run before the Commission is that if I go to the Warden matter - and that is PF Warden v Diamond Offshore.
PN207
It is Print S0242 and I can provide a copy of that Print to the panel. And why I say this is somewhat related, it goes to an attitude, and unfortunately it is an attitude which, I think, is still in this industry to some extent. The decision - and to save everyone time, it is a case that I represented again against Diamond. But if I can characterise the decision as this. Essentially what had happened is there was a rig about to go to stack. In this case, the Ocean Epoch. A rig that is currently working in Bass Strait. Just before the rig went to stack, the company engaged and decided to do some drug testing on the rig, which resulted in seven employees being terminated. Two of those employees, however, challenged their termination, and they did so on this basis.
PN208
And it was the basis of condonation. Now, the same sort of safety concerns were raised. The drug policy is that if you get done for drugs you get the sack because it is a highly dangerous environment. You wouldn't want people affected. Now, there were two people essentially in this case. Mr McNaught who gave evidence on behalf of Mr Warden, I should say, who had actually failed a drug test. Was rung by the company in Darwin and told, you failed a drug test. You can't go to the Ocean General. Because that was working for Woodside at the time. They then rang him back and said, don't worry about it. We will send you out to the Epoch the next morning. And that is in fact where he went.
PN209
Now, here is a company that stands here today and says, we have got all these genuine safety concerns. You shouldn't put people back on our rigs that we think are unsafe. Yet people that failed a drug test at employment - so these people weren't even employees yet. Pre-employment medicals. Failed a drug test and were still sent to a drilling rig. Not the Woodside rig because you couldn't send him out there. They would know what the test was. But we will send him to the Ocean Epoch. Similarly, in Mr Warden's case, Mr Warden undertook a drug test when he started with the company. He also failed and was subsequently put on the Epoch.
PN210
Now, the company then stands before a Full Bench of the Australian Industrial Relations Commission and says there is all these genuine safety things, that you shouldn't do things. And at the same time have a safety policy as they put it in drug testing where they breach it. And those findings are found on this decision on page 5 of 10 at paragraph 25 where essentially Commissioner Eames found there were four to five employees that fitted into that category. Now, I simply raise that because it appears to me that it is an argument of convenience rather than an argument of fact. When all else fails, we will fall back onto a safety regime argument. Now, quite clearly it is not supported on the facts.
PN211
It is not supported by the evidence under cross-examination by the Rig Manager. And nor is it supported by the findings of Deputy President McCarthy, in that he found that Mr Robertson was in essence ambitious and wanted to get ahead and created a - I won't go through the paragraphs. Senior Deputy President Lacy has already gone through them. And that is essentially paragraphs 53 and 54 of the decision. Now, those, we say, are the issues in terms of this matter. But given the evidence before the Deputy President at the time, we say the issue of safety and reinstatement there is a nullity that the Deputy President found the evidence correctly and is contained in his decision. The other issue my friend raises is the issue in relation to what would have been or if I can phrase it in these terms, the primary remedy that was put to Deputy President at the time of the hearing was that the primary remedy is always reinstatement. However, one would have to concede that if Diamond wish to get rid of Mr Robertson they could have legally done it in May 2002.
PN212
Now, why we say that is that the rig was leaving the country and they could have made him redundant. While we don't agree that they made all employees redundant because that wasn't the final evidence of Ms Hoyne. The evidence of Ms Hoyne was that they made most of the employees redundant and for the benefit of the Commission those comments under cross-examination can be found at page 287 of the appeal book, paragraphs 2662 to 2664 where under cross-examination Ms Hoyne admitted that there were a number of employees, or some employees albeit a small number, that were maintained and that can be found at the top of page 288.
PN213
Now, that is because Diamond Offshore, at that stage, had been operating three drilling rigs in Australian waters. Those three drilling rigs being the Ocean Epoch, the Ocean Bounty and the Ocean General. At the time of the hearing both the Ocean Bounty and the Ocean Epoch were in Darwin Harbour, both crewed up to some extent albeit not completely crewed up and the Ocean Bounty was undergoing extensive maintenance work prior to commencing drilling programs.
PN214
So, the position is that not all employees were made redundant but certainly it would have been the greater percentage of the people on the rig that would have been made redundant at that time. So, quite simply put, what the position was and it came down to an argument and this is where I'll go into some of the arguments about the issue in relation to remedy and what should be considered. And the real argument around that was that the company position was that in relation to remedy the entire earning period, that is the entire period between the termination and the decision should be considered, our view simply was that if it was considered that Mr Robertson would have been laid off in May 2002 then that is the end of the time you should consider.
PN215
Now, we maintain that position if there is to be an order made or an order in the terms that is be made where there is no continuity of employment because then it is the issue of what he would have lost. Now, they were the issues and as SDP Atkins quite rightly pointed out, when you go to the exhibit book and it is a fairly extensive reference of the pay sheet - sorry, the appeal book, there is a fairly extensive reference in relation to the earnings and they stretch from pages 316 of the appeal book through to pages 359.
PN216
And I guess the advantage to those pay slips and perhaps if I can take you to, for example, at page 359 what the Commission will be able to see at that point and I think from memory that was the final pay slip according to the evidence that was issued to Mr Robertson prior to the hearing of the matter, being that he was laid off for a period of time. You will note that there, even under the English system, they managed to keep yearly incomes on a gross to date column, which is the - approximately located in the middle of the pay slip, you will see an amount of 10,074 pound, being the year to date earnings for that period of time. So, the pay records that were provided and Mr Robertson was able to be cross examined on, were extensive.
PN217
They also included, and this is the issue my friend raised in terms of the mitigation, the position that was put by Diamond was essentially that they had provided all this training for Mr Robertson therefore he should have been more employable and should have been able to go out and source a job more easily. The evidence from Mr Robertson is, he had in actual fact found other alternate employment, albeit short lived, through labour hire agencies or through a labour hire agency and that work subsequently dried up.
PN218
And on that basis he then chased work overseas and in fact found work overseas in the oil drilling industry or in the oil industry. Now, all of that was there and available to be put to Mr Robertson in terms of his - while in the witness box but the pay records quite clearly as they are contained show all that information including the fact that he had jobs other than simply in the oil drilling industry. However, it wasn't ongoing work. Now, quite simply and I guess one of the submissions we put in that, is that if you've been terminated for a safety breach it's a bit hard to give the company you are terminated from as a reference point for future employment and that is a similar submission we put in a Full Bench appeal in relation to a matter in the mining industry in a state jurisdiction.
PN219
So, quite simply, there was other work engaged in and that is contained in the various pay records that are through that period - sorry, I'm just trying to remember the name of the company since I thought I was going to be very dexterous and be able to turn to - Recruit West. There should be a group certificate contained in there from that company setting out the earnings albeit only a very small period of time.
PN220
So, the issue of mitigation wasn't a question, it wasn't a question at the hearing because quite clearly Mr Robertson demonstrated that he had gone out and mitigated his loss. The other question I will deal with briefly that my friend has raised, is this question of delay - - -
PN221
SENIOR DEPUTY PRESIDENT ACTON: Just before you do, Mr Llewellyn, on page 383 of the appeal book is your closing submissions at the first instance - - -
PN222
MR LLEWELLYN: Yes.
PN223
SENIOR DEPUTY PRESIDENT ACTON: - - - at para ref 46, that Mr Robertson's earnings, suggests England to April 2002, the sum of $5586.
PN224
MR LLEWELLYN: Yes.
PN225
SENIOR DEPUTY PRESIDENT ACTON: And then there is Recruit West, was the Recruit West employment post April 2002?
PN226
MR LLEWELLYN: No. Recruit West was, I think it was just prior to Christmas 2001. It was actually Recruit West, was employment in Western Australia on a labour hire in the mining industry prior to going overseas. So, his earnings essentially other than the Recruit West earnings in Western Australia were all overseas earnings.
PN227
SENIOR DEPUTY PRESIDENT ACTON: So, your suggestion is that prior to May, between October and May, October 2001 and May 2002 there was some 5586 plus 1661 in earnings, is that right?
PN228
MR LLEWELLYN: Well, what I took it up to was up until 10 May 2002 - - -
PN229
SENIOR DEPUTY PRESIDENT ACTON: Right.
PN230
MR LLEWELLYN: - - - which gave a total earnings of 14,401.
PN231
SENIOR DEPUTY PRESIDENT ACTON: Right. And is that gross or net?
PN232
MR LLEWELLYN: That was gross.
PN233
SENIOR DEPUTY PRESIDENT ACTON: Right. Thank you. Yes.
PN234
MR LLEWELLYN: Just in terms of the conversion so perhaps the Bench - what we simply did was apply the conversion rate that applied at the time, we didn't look for an average or anything else. I think Mr Robertson's argument with me with that was, he was complaining that the conversion rate had actually gone up so it was actually costing him but in terms of - it was hard for me to find historical data to do it fortnightly or what have you. So, what I simply did was apply the conversion rates from the exchange rates at the time and that gave us the 2.8 calculation. He was on the unfortunate part that our dollar was a little bit weak at that point in time unfortunately.
PN235
SENIOR DEPUTY PRESIDENT: Suffice to say that your submission at first instance was that between the date of termination and 10 May 2002 Mr Robertson earned some 14,400 odd gross.
PN236
MR LLEWELLYN: That is correct.
PN237
SENIOR DEPUTY PRESIDENT ACTON: Yes. Thank you.
PN238
MR LLEWELLYN: And that can be taken straight from the pay records that are in the exhibit book and I guess that is one of the issues in relation to what my friend puts, is that if there is going to be a determination of compensation either in 187 or 190 then my view is it should be done before the Bench as currently constituted. As he says, this matter already has had some delay and perhaps if I deal with that now. The delay and we would concede the delay in part is Mr Robertson's work in Scotland and it was difficult for him, at one stage it was requested that he return for a conciliation conference, so he did it around his work in Scotland and he has essentially paid his airfares back to Australia but that wasn't the only reason for delay.
PN239
SENIOR DEPUTY PRESIDENT LACY: Sorry, who paid the airfares back to Australia?
PN240
MR LLEWELLYN: Mr Robertson paid his own airfares. Mr Robertson has actually flown back three times in this matter, in total and that is not including the last time he flew back to commence work with Diamond Offshore. The issue has been, all the way through these proceedings is unfortunately not only was Mr Robertson working offshore but so were a number of the respondent's or Diamond Offshore's witnesses, rather than deal with respondent and appellant but the respondent in the primary matter, being Diamond Offshore, a number of their witnesses were also working offshore on a four on, four off roster and were on different rigs.
PN241
So, the issue was trying to combine all of those roster cycles to bring people together. There was also a period of delay while the parties considered a recommendation from the Commissioner - sorry, from the Deputy President who presided over the conciliation proceedings and I understand that is currently still sealed in the file. That also caused some delay so, we can't simply point at Mr Robertson and say the delay was all his. I do concede however, there was lengthy delay in contact and because the Deputy President who was running the file at that time insisted on direct contact with Mr Robertson and that was somewhat difficult given that he was out mitigating his loss and I don't say that as a criticism, it's under the Act that the Deputy President is entitled to have that contact.
PN242
SENIOR DEPUTY PRESIDENT LACY: Is any endeavour made to conciliate by video or telephone?
PN243
MR LLEWELLYN: It was somewhat difficult given his work location.
PN244
SENIOR DEPUTY PRESIDENT LACY: All right.
PN245
MR LLEWELLYN: And that was the difficulties we had and the only contact we had a lot of the time was via e-mail and that relied on Mr Robertson accessing his e-mail from the rigs in the North Sea or indeed from the locations he was in Scotland at the time or Aberdeen, I think it was he was living at the time. So, if you didn't catch him when he was on shore then you would have some two or three weeks delay before you would get hold of him and apparently the North Sea rigs aren't quite as easy to phone as ours are, for whatever reason, I don't know why that is but it is not an industry I'm familiar with over there.
PN246
So, there were a variety of reasons that caused those delays over a period of time and not solely attributed to Mr Robertson. So, in terms of the issue in relation to 187, we simply say that as I've gone through, the finding was made, the Commission determined all of the issues. All of that information is contained in the decision at the first instance and on that basis we say there are no grounds for appeal. There are no public interest tests questions to be answered and on that basis the appeal in terms of 187 should be dismissed.
PN247
If I can then turn to 190 and cover a few areas in relation to that and I note my friend and I are probably not surprisingly using a number of the same authorities. And that is quite simply when what we say in relation to 190 is essentially that the public interest questions are simply this, that essentially the Commission found in determining this matter that there was no valid reason for the dismissal. That finding is contained in the decision at first instance at page 21 of the appeal book, paragraph 44 in relation to 170CG(3) issues on was there a valid reason for termination.
PN248
What we simply say occurred then is that the Commission failed to take into account issues that made the decision not to award compensation manifestly unfair. They are issues that are not dissimilar to the issues that are discussed by the Full Bench in Kenley & JB Hi-Fi at print S7235. Now, we say that on this basis that when one goes through the decision and these we say are the relevance to the paragraphs that SDP Lacy read out earlier and that is paragraphs 53 and 54. Essentially what the Deputy President found is that there was an onus on the employer to ensure that they supervised Mr Robertson more closely, if I can put it in those terms and this is of course paraphrasing it.
PN249
And the Deputy President found that on the basis that it was clearly agreed by the respondent in the first instance that Mr Robertson was a very ambitious person, he intended to make a career out of the oil drilling industry. Indeed Mr Huff's evidence was that he believed that Mr Robertson had a big future in the industry. Now, combine that with, as I went through earlier, the safety issues that were complained of that brought about the termination of which the finding is there was no valid reason and they are quite simply for some 20 odd months Mr Robertson, and I will deal with them in reverse order that being the so called figure point, the fuel issue from the engine room backwards.
PN250
The main issue and the main safety issue that my friend has complained of today is this fuel issue from the engine room. You go through the evidence in relation to that matter and Mr Dixon's evidence is and Mr Robertson concurred with it in part, is that the fuel system on the rig consists of a valve and a safety valve. That is like for example, a bowser, much the same as your similar or familiar with when you go to a petrol station and then immediately behind the bowser cut off there is a stop valve. So, on all the fuel points and that was the evidence of Mr Dixon, there is a safety valve which is a tap that is turned off and then you've got the bowser that actually gets fuel out. So, if you turn both of those taps on you get fuel.
PN251
SENIOR DEPUTY PRESIDENT LACY: Is there any evidence by way about what Mr Robertson was doing getting fuel?
PN252
MR LLEWELLYN: He was refilling the fork lift.
PN253
SENIOR DEPUTY PRESIDENT LACY: On whose instructions? On his own initiative?
PN254
MR LLEWELLYN: Well, the evidence will be - or the evidence is, not will be, sorry. The evidence is that in terms of the rouseabout's position that Mr Robertson held in the dogman's position is that they use a variety of equipment on deck, wash down guns which are diesel powered and also the fork lift. Now, those employees are responsible to essentially look after those vehicles. Now, as you go through the evidence, I mean fuel - - -
PN255
SENIOR DEPUTY PRESIDENT LACY: You need not go any further. It is all right, I just wondered, how come he was getting fuel that is all.
PN256
MR LLEWELLYN: Yes. Well the other equipment is the crane which Mr Robertson is also responsible for fuelling up and why I say responsible for fuelling up the crane, the evidence in relation to the crane which was an issue that was raised with Mr Dixon on the discussion that took place in the engine room was that you have to turn the fuel on in the engine room but actually fill the crane, at the crane. Now, it is obviously a two person job, I mean it is either that or you are an engine man with extremely long arms. So, they are the types of issues but I mean, essentially the employees that use that equipment are responsible to keep it running.
PN257
SENIOR DEPUTY PRESIDENT LACY: Sorry. I didn't mean to divert you from where you were.
PN258
MR LLEWELLYN: No. That is fine. So, essentially when you work those issues backwards, on 12 October we have, according to the evidence, Mr Migliore instructing Mr Robertson not to go into the engine room again and that was after going in the engine room on the 12th and a complaint from Mr Dixon. Mr Robertson had been in the engine room on the 11th where there was some discussion took place in the engine room itself of which Mr Robertson wasn't sure what was going on apart from the fact that Mr Dixon was having a bad day.
PN259
Now, that is the incident that caused dismissal, from that the Deputy President has found that, (1) Mr Robertson wasn't aware of the policy. Secondly, the policy was poorly communicated, if it was communicated at all, there was no written information provided to the Deputy President by the respondent of a policy at all. There was conflicting evidence between the respondent's witnesses as to whether they were told at induction. Now, the only person that said that it was told to him at induction was the motor man. All the other witnesses for the respondent said that it wasn't told to them in induction nor was it told to them when they came onto the rig at the rig induction.
PN260
Now, that is common ground. Mr Fenalon who was a witness for Mr Robertson and an employee at that stage, I think, of Diamond for some 17 or 18 years also said it wasn't there, so that is the situation in relation to the engine room issue. The voided warning, I think the Deputy President quote: Rightly sets that out in relation to the decision and that is headed the pipe incident, commencing at page 15 of the appeal book, paragraphs 11 through to paragraph 17 where the Deputy President at paragraph 17 says that:
PN261
If the incident was not taken into account and the investigation of the incident resulted in a warning being withdrawn I fail to see that I should place any significance or reliance on it in these proceedings.
PN262
And we say that that decision is correct on the evidence. I mean any employee that is issued with a counselling note and is subsequently told that as a result of the investigation the counselling note is voided is entitled to believe that there is no issue. We say the Deputy President quite clearly got that correct. The only other incident that was raised of any significance or in any clarity at all was the issue relating to the 10th of the 8th, which is the issue with the bins.
PN263
Now, in relation to that particular issue, on examining the conduct my friend complains of in relation to Mr Robertson and the warning or the counselling note that concerns the 10th of the 8th incident is contained at page 313 of the appeal book, exhibit A9. You will note on this occasion that Mr Robertson has actually ticked the box that he agrees with the above comments and accepted the counselling note. Now, that doesn't characterise an employee that fails to take direction or won't listen to what he is being told. He heard what was said to him, he acknowledged it.
PN264
In fact Mr Huff also - we also went through that with Mr Huff in relation to the same issue, which was an issue as the Woodside contract was ending a period of time of some activity on the rig where Mr Huff raised the fact that Mr Robertson had tied a tag line on at the wrong point. Once Mr Huff had pointed out and Mr Robertson realised what he was showing him, Mr Robertson's action was to go and move the tag line albeit his position was the tag line still would have worked but not as well.
PN265
And then subsequently went and saw Mr Huff and apologised for the confusion and said that: I didn't understand what was being lifted. Now, again it doesn't point to an employee doesn't take criticism or listen to what he is being told. Now, given those situations what we say is the miscarriage, if you like, or the wrong application of these facts is that essentially the finding or the remedy to reinstate with no compensation, if I deal with that in the first instance. As the Commission will see from the outlines or the submissions we filed as to loss, remembering that those submissions only cover the period of loss up until May of 2002. It sets out that Mr Robertson who was terminated on 14 October by that stage had lost significantly in excess of $45,000.
PN266
Now, you combine that with the fact that there was then a decision ordered - sorry, a decision handed down on 19 June where the reinstatement was to occur some three and a half months later putting Mr Robertson again in the position where he is losing some $1227 a week. Now, in anyone's language they are significant and severe penalties. That is a loss of in excess of $60,000 for an employee to bear or as it is set out in relation to the JB Hi Fi case where in paragraphs 36 where the Full Bench at the time went through the issues in relation to the discretion referred in 170CH(4):
PN267
Is general in nature and is to be exercised having regard to the context in ...(reads)... of the applicant which led to the termination of employment in question.
PN268
On the construction of section 170CH(4)(b) we have adopted:
PN269
It was open to the Commission to have regard to Mr Kenley's conduct but whether the result arrived at was plainly unjust is contended by the applicant remains to be decided.
PN270
Now, the Commission in that situation went on to decide that issue and at paragraph 38 where the Commission said:
PN271
We think that these findings and the Commissioner's characterisation of Mr Kenley's ...(reads)... In our view such an outcome is plainly unjust
PN272
And going on, paragraph 39:
PN273
The financial impact of the order on Mr Kenley is out of all proportion with the conduct ...(reads)... it would have been reasonable for the respondent to suspend Mr Kenley for some seven months without pay.
PN274
Now, quite clearly that decision is on point with what is being asked to be considered in these proceedings. What my friend asked the Commission to consider in these proceedings is that the Commission has found that there is no valid reason - sorry, the Deputy President has found there is no valid reason. The Deputy President has also found that Mr Robertson was zealous, keen to get ahead. He has also found that the company failed to acknowledge that and failed to provide appropriate supervision for a person of that calibre on the rig. In terms of the safety incidents, there is only one safety incident that bears any resemblance or any recognition in this matter and that is the 10th of the 8th, which was admitted. In terms of all others there is nothing else in evidence before the Commission of any safety performance of Mr Robertson other than he is a difficult employee to manage and we say that is because of his declaration, if you like, that he was going to get ahead in this industry.
PN275
Now, what my friend says is that in those circumstances it was reasonable for the Deputy President to find that Mr Robertson should be fined the equivalent of almost 12 months earnings. In other words to be stood down without pay for almost 12 months for something that wasn't a valid reason to terminate. Now, our submission on that is, simply that is manifestly unjust. You may accept that there is a time for the respondent to get his house in order for a position, we would argue three and a half months is not sufficient or is an over sufficiency if you like.
PN276
Bearing in mind there were a number of rigs working were being manned up at the time. Indeed, even recently the company seems to have managed to replace a person within three or four days, on the Ocean Epoch as it was brought off Fremantle two weeks ago. So, I mean those issues, we say, are manifestly unjust and all of the authorities my friend refers to and they are, as I said we have the same ones, is Biviano v Suji Kim, Michelson v The Shire of West Arthur, Wright v Telstra and Glass and North, an Eastern States name of ....., Goonyella is it - G-o-o-n-y-e-l-l-a. Cole, of which and I have copies available, my friend has already handed up a set of authorities in which he intended to rely.
PN277
When one goes through all of those cases, on all occasions where you look at these types of matters there has been compensation awarded. We say, in particular, we believe the Deputy President was bound by those things that are contained in the two Full Bench decisions. The one I've referred to in terms of the Kenley v JB Hi-Fi decision and the second one being the Biviano and my pronunciation will be incorrect, so for the sake of the record it is spelt B-i-v-i-a-n-o v Suji Kim Collection and that is S-u-j-i- K-i-m Collection.
PN278
We say those decisions are binding and they should have been binding on the Deputy President at the time and those things are set out and the things that should be considered are set out in the second of those decisions which is the Suji Kim Collection decision at page 74, commencing at paragraph 61. Sorry. Paragraph 61. Where, under 170CG(3), the Commissioner concluded there was no valid reason for the termination of Ms Biviano or Ms Biviano's employment. In other words:
PN279
The respondent's offer of an alternate position to a lower wage and status was not sound, defensible and well founded. In ...(reads)... applicant should subsequently be penalised to the tune of 19,000 for refusing to accept the demotion.
PN280
And quite simply what we put is in exactly the same circumstance in this matter. And the appeal that is currently before you, we have a situation where the Deputy President has again found there is no valid reason for the termination yet imposes a penalty of some $60,000. Now, that penalty is a combination of the period of time up until May of 2002 and then the period of time from 19 June to when Mr Robertson was reinstated. And that is without giving a decision or a position as to whether or not Mr Robertson could have been gainfully employed all during that time on one of the rigs Diamond Offshore were operating in Australian waters at the time. And that predominantly was the Ocean Bounty.
PN281
Now, that is a submission from the Bar Table and I don't think there is anything in evidence as to whether that rig kept up work all through that period of time. So, that is a view of my knowledge of the industry rather than evidence that was presented to the Deputy President in the first instance. So, they are the issues, we say, that should enliven the public interest question and give the reasons why the appeal should be allowed in 190 and the compensation determined appropriately. Now, in our view, quite simply, what is contained - and there is sufficient information contained for the Full Bench to be able to deliver that decision in relation to these matters.
PN282
Both in terms of the material contained in the appeal books, and that being the wages records from the period of time of the termination right up until December of 2002. And that is being pages 316 to 359. And quite simply, we still maintain our reliance on the submissions we filed, in terms of our closing submissions, as to remedy in relation to the discussions of quantum. Now, it raises two submissions, I guess, from my point of view. And that is that if the Commission is so minded that there should be some penalty applied for Mr Robertson's over-zealousness to get ahead in the industry, then that position is more than amply provided from the period of time from June to October of this year. Now, for the benefit of the Commission, that represents a loss in terms of, if he was in a light position, of some $14,724.
PN283
SENIOR DEPUTY PRESIDENT LACY: What has Mr Robertson done with his time between 19 June and now?
PN284
MR LLEWELLYN: He was working off-shore. He actually left, I think, to come back in 12 August. And that was actually issues raised, I think, in the stay proceedings where Mr Robertson had a conversation with Ms Hoyne who informed him that they were going to put him on a rig by 1 October. So, he made arrangements to move back to Australia. And, unfortunately, got back here and found out there were two appeals running. I shouldn't say two. Because he knew one appeal was running and that was our appeal in relation to remedy. But he wasn't aware initially the company had also filed in relation to the reinstatement issue. So, Mr Robertson has mitigated that loss over the period of time.
PN285
He has actually managed to find work of a more recent date. Unfortunately, BGC doesn't run the same cumulative system of telling you how much he has earned to date and he hasn't got his latest pay slip. But he has been working basically casual labour as a crane operator on various construction sites with BGC, as I understand it. Now, in terms of where he has had a full week, his loss for those full weeks will be almost non-existent. And that is because I have looked at one pay slip where he did get a full week which was about $1200. But I think there is only about three of those pay slips that he has got so far. So, there was a period when he got back that he wasn't working and he subsequently found work more recently.
PN286
But in any event, there is still a significant loss over that period of time. If there was going to be a loss. In terms of the period of time at least up until May, where I don't think there would be any argument, had he not been terminated Mr Robertson would have continued to work. Then he should be entitled, at the very least, for that compensation, bearing in mind there is no order to maintain continuity of employment. So, him starting back on 1 October, albeit a retrospective start date now, would simply mean he would start with no service at all. And the off-shore industry, as the Commission may well know, is not one of lengthy employment necessarily.
PN287
I think the longest serving rig we had in Australian waters was the 702 which actually managed to get 11 years up. Most of the other rigs work for 6/12 months, maybe 2 years maximum, depending on contracts. And at this point in time there is nothing before the Commission on how long the Diamond contracts are on either the Bounty or the Ocean Epoch which are the two rigs which are currently in work. So, I mean, Mr Robertson could well be reinstated and in 3 months time not have a job again. But from his point of view, it is essential for him to get back into the industry in Australia. Because at the moment he is still suffering under a termination effectively for an alleged safety breach, albeit there is a finding that he should be reinstated.
PN288
A finding of reinstatement actually being in the industry and working again are two different things. Now, quite simply put, we say that in terms of the lost remuneration, the pay records in the exhibits - and I don't think even in the respondent's response in relation to the quantum that we worked out, bearing in mind the respondent had ample time to give written submissions in relation to the quantum and everything else. And in saying that, perhaps for the sake of completeness we probably should cover that issue in relation to the transcript where, unfortunately - and this isn't by way of a criticism. Ms Kruger, it was her desire that we basically set out how we would calculate the compensation rather than do it orally at the time, because of the amount of figures that were involved.
PN289
As I said, I make no derogatory comment about that, as the Bench can probably plainly see the number of pay slips. And unfortunately the English aren't quite in sync. with us yet and run a different financial year to us. It is just a shame they have got a good rugby side. But, nevertheless, those submissions were given in writing and the parties had ample time allowed by the Deputy President to consider the formula and consider the way in which it was calculated. And in relation to that, I simply point to the fact that also contained in the appeal book as filed at page 395, the respondent didn't raise any of those issues in terms of how we chose to calculate.
PN290
And that is the 2.8 Australian dollars per pound equation that we used at the time, being the exchange rate at the time. I think the only issues the respondent raised in relation to that was their concerns that Mr Robertson hadn't - and that is contained in paragraph 5 of the respondent's submissions as to remedy on page 390 of the appeal book. Where they claim that due to the various training programs and expenses that the respondent gave, I mean, the applicant should have been able to find work a lot easier. Again, I raise the point that the oil drilling industry is not a large industry in Australia. Confined to a few major players. And you are going to apply for a job saying you have been sacked from one party because of an alleged safety incident.
PN291
Now, if my friend's submissions as to why you shouldn't pick people up is anything to go by, gives you a view about what people may or may not accept in the industry. Now, for those reasons, it was important to Mr Robertson to clear his name and get back onto a drilling rig. Now, quite simply, we say that the information is there. It is readily accessible. The formulas aren't challenged. As my friend alluded to, I think paragraphs 42 through 45 at page 383 of the appeal, which is our submission as to earnings and the Diamond Offshore pay sheets that are contained in the appeal book, show those earnings quite clearly. The formula in relation to the calculations, we actually ran through with Ms Hoyne. And they can be found at page 287 of the appeal book, where we ran through the issues of redundancy and how much - - -
PN292
SENIOR DEPUTY PRESIDENT LACY: Sorry, Mr Llewellyn, what do you say to Mr Ellery's suggestion that if it comes to any calculation after a decision that the Full Bench provide some formula and parties work that out?
PN293
MR LLEWELLYN: My preference would be to have the Bench determine it. And I say that only on the view I expressed that this matter has been delayed for some time already. I don't take this any further, but the relationship between Diamond Offshore and the union is not what you could consider to be a good relationship. And I think all that will do is simply draw the matter out further. My view is quite simply that there is sufficient information contained in all of the submissions. There is sufficient information contained in terms of the earnings. The issue of mitigation in terms of the transcript and the cross-examination is all there. And, I mean, the wage records themselves speak for that.
PN294
The fact that Mr Robertson having difficulty finding work here actually took himself to Aberdeen and found work. Those things are all present in the appeal book before the Bench as currently constituted and we believe that the matter should be dealt with to finality today or any decision issued by the Bench following today's proceedings, rather than to have to come back and do it again. Now, selfishly, that is my time as well of course. But I am just not sure that the parties would reach agreement on that, because we would get into some - and my prediction would be there would be an argument between us about the delays particularly and identifying each of those delays and who was responsible and who wasn't responsible.
PN295
The fact that it was delayed for respondent witnesses not being available. It was delayed for Mr Robertson mitigating his loss. And I have had this matter before when the respondent has asked for a similar order in relation to a matter between Kesich v P & O Catering and Services where that was the order initially. Was to go away and determine that amongst ourselves. And, quite frankly, it ended up being determined by the Commission or the Commissioner at first instance, I think, on that occasion determined it finally. That matter was again appealed.
PN296
SENIOR DEPUTY PRESIDENT LACY: Yes, well, speaking for myself, Mr Llewellyn, I understand your preference.
PN297
MR LLEWELLYN: And I am quite sure the Bench doesn't particularly want to see me back here again. So, sir, unless the Bench has any questions of me, that would conclude my submissions on the matter.
PN298
SENIOR DEPUTY PRESIDENT ACTON: Mr Llewellyn, again, at page 383 of the appeal book at paragraph 42 you talk about Mr Robertson's 6 monthly earnings being 40,000 odd taxed and 4158 tax free. The 4158 tax free is the living away from allowance, is it?
PN299
MR LLEWELLYN: Living away from home allowance, yes.
PN300
SENIOR DEPUTY PRESIDENT ACTON: And then in paragraph 43 you talk about a figure of 12,027.50 being the weekly rate. Where does that weekly rate come from?
PN301
MR LLEWELLYN: The weekly rate comes from the calculation of redundancy payment. The redundancy payment is paid on the basis of your normal earnings. So, what it takes into account is your weekly rate - perhaps if I can do it in these terms, it might be easier. If I take you to exhibit A12 at page 316. It may set it out. The redundancy provisions apply. So, if you essentially get that figure by combining the 2189. On this case 22,050.
PN302
SENIOR DEPUTY PRESIDENT ACTON: And the super., is it?
PN303
MR LLEWELLYN: Actually, no, that won't work. What are they paying fortnightly? Perhaps if I can do it in these terms, it might be easier. If you take the 84 hour rate which is the fortnightly rate, divide that in two, which will give you a weekly earning. To that you add the LAHA which is calculated on the basis of - the employees at this stage, I think, were working a three on, three off rotation. So, for each rotation the employees received $31.50 for each day spent off-shore. Now, on a 21 days on, 21 days off, they pick up 22 days of LAHA or $693.50 per 6 weeks. So, simply divide that by 6 and add it to the other and you should come up with a figure of about $12,027.50.
PN304
SENIOR DEPUTY PRESIDENT ACTON: So, the 12,027.50 doesn't take into account superannuation?
PN305
MR LLEWELLYN: None of the figures I have put here take into account superannuation at all.
PN306
SENIOR DEPUTY PRESIDENT ACTON: Including the 40,000 in paragraph 42?
PN307
MR LLEWELLYN: Yes. I would assume super. is paid on top of it.
PN308
SENIOR DEPUTY PRESIDENT ACTON: Yes. Thank you.
PN309
MR LLEWELLYN: It is simply the gross earnings. I am not in the habit of calculating - and I guess it depends on how the money is paid. I mean, if it is paid as part of a reinstatement order, I would expect ordinary time earnings to be covered in any event. Under tax ruling 94(4) the respondent would be required to pay SGL. If it is done as a compensation payment, then it raises issues under the Tax Act in terms of whether it then forms an eligible termination payment which, of course, isn't eligible for 9 per cent SGL. But then also makes it eligible for compensatory tax consideration of 31.7 rather than 48 cents in the dollar. And I don't really want to get into all that, if I can possibly avoid it, although I can walk the Commission through it if you wish.
PN310
Unfortunately, that is my secondary role in terms of advising people in this industry about how their pays work out. And unfortunately I have been put to having to find it all. And I can understand now why I never wanted to become an accountant.
PN311
SENIOR DEPUTY PRESIDENT ACTON: And Mr Robertson's earnings which are set out in paragraph 46, they are the gross amounts and pure earnings. Do we know if superannuation was paid?
PN312
MR LLEWELLYN: In terms of Recruit West, superannuation would have been paid.
PN313
SENIOR DEPUTY PRESIDENT ACTON: Yes. But is it in that figure?
PN314
MR LLEWELLYN: No, it won't be, because the figure from Recruit West is simply taken from his group certificate. In terms of his earnings in England, there would be no superannuation paid. But as I understand it - no, that comes out after. Hang on. Before I say that, I need to check. Can I just have a second. Yes, the gross amounts for his earnings in England are simply a gross amount. The question I was raising with Mr Robertson, the English system have a deduction for medical insurance. But I understand the gross figures on his pay slips, having a look at them, actually contain the gross pre the medical, being that all medical over there is free apparently, as opposed to our free system.
PN315
But those deductions are made post the gross to date earnings. So, the gross earnings that I have calculated at paragraph 46 are exclusive of superannuation, there being no equivalent superannuation provisions in relation to the English system and are simply purely gross earnings calculated with the conversion that applied at the time.
PN316
SENIOR DEPUTY PRESIDENT ACTON: Thank you.
PN317
SENIOR DEPUTY PRESIDENT LACY: Any questions?
PN318
COMMISSIONER HINGLEY: No, no questions.
PN319
SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Llewellyn. Mr Ellery?
PN320
MR ELLERY: I just had two brief comments I wanted to make in closing. I seek to go over any of the ground that we have already covered in some detail. But in relation to the provision of the information with the pay slips and so on of Mr Robertson, if you look at the transcript you will see that those documents were actually tendered on day 2 of the hearing after Mr Robertson had given his evidence. And that is why I refer to the complaint about the lateness of the provision of information. And it is recorded on the transcript that Ms Kruger only saw them that morning, day 2 of the hearing. And at the conclusion of the hearing when Deputy President McCarthy invites submissions and canvasses whether there should be written submissions or oral submissions.
PN321
He basically invites the parties to make submissions on the primary question of unfairness and whether there should be any remedy and says, he will come back or allow the opportunity for the parties to come back to turn to the detail of calculations of any compensation and so on. Which is not an unusual order, I think, in proceedings of that nature. So, that partly explains why the information you have got before you is in the form it is.
PN322
SENIOR DEPUTY PRESIDENT LACY: Was any request made for Mr Robertson to return for cross-examination on those matters?
PN323
MR ELLERY: No. But the question was reserved and Deputy President McCarthy notes that it may be appropriate for that to happen. But it wasn't pursued any further than that. And then if I can turn to the issue of the calculation of compensation and my proposal that, if necessary, putting aside our other submissions obviously, but if necessary, the Bench could direct the parties to resolve a final amount if that was required. There is not a lot of room to argue, frankly. The Bench could make any directions it made as to what period of time may or may not be compensated for and whatever formula that may take.
PN324
We have already submitted that we concur with and accept those calculations provided by Mr Llewellyn at paragraphs 42 to 45 of his closing submissions in the matter of first instance. There is an issue as to the currency exchange conversion. It is a pretty discrete issue, I would suggest. And if it was necessary for it to come back to be dealt with, to be determined, if the parties couldn't resolve it themselves, then it would be a very discrete matter that could be dealt with very simply, perhaps with written submissions if that was required. I don't think there is a lot of room for it to be turned into some drawn out, tortuous proceeding with counter arguments backwards and forwards. The issues are quite narrowly confined. Other than that, I have nothing further.
PN325
SENIOR DEPUTY PRESIDENT ACTON: We will reserve our decision in this matter.
ADJOURNED INDEFINITELY [1.03pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #E1 WRITTEN SUBMISSIONS ON BEHALF OF THE COMPANY RE C2003/187 PN4
EXHIBIT #E2 MR ROBINSON'S (RESPONDENT) SUBMISSIONS RE C2003/187 PN4
EXHIBIT #E3 APPELLANT'S (COMPANY) SUBMISSIONS IN REPLY RE C2003/187 PN4
EXHIBIT #E4 MR Robinson'S (APPELLANT) SUBMISSIONS RE C2003/190 PN7
EXHIBIT #E5 RESPONDENT (COMPANY'S) SUBMISSIONS RE C2003/190 PN7
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