Construction work

The crane operator had been a member of the union for 20 years and he had been working as a crane operator for a construction contractor for three years. He arrived at the Epping worksite in the morning to pick up a crane and drive it to the Metro Tunnel construction site in Parkville. The construction contract had been engaged to provide workers and equipment on the Parkville worksite.

Tearooms at the worksite closed due to the pandemic

When he arrived at the Parkville worksite, he was told by a delegate of the union that the worksite was closing because the government had directed all tea rooms on construction sites to be shut. If the tea rooms were shut, the construction workers would not be able to work their shifts without the mandatory breaks. The crane operator was directed to drive the crane back to the Epping yard.

Sent home for the day

Back at the Epping yard, he spoke with the company’s managing director seeking more information about what was to happen in light of the shutdown of the tearooms. The managing director then informed him of a protest action that had been planned to take place in front of the union office. The managing operator also said that he would be paid for the day’s work but that he should go home. As he had no work to do, the crane operator left for home.

Crane operator attended the protest for an hour

At 3:00 pm, he went to the protest to support his fellow construction workers. When he arrived, he learned that earlier in the day, there had been some violence at the protest. The protestors threw bottles and damaged the union office. Five protesters were employees of the construction contractor. At the protest, he wore his work clothes that had no company logo or anything that would identify him as an employee of the union. After an hour, he left as some people were becoming violent again.

Summarily dismissed the day after for serious misconduct

The next day, the crane operator was terminated with immediate effect. The managing director said he had no choice but to terminate him as the company’s reputation would be put at risk if it did not dismiss the crane operator who attended a violent and unlawful protest action. The company was sure to lose work if the crane operator were not dismissed.

Construction contractor failed to accord him procedural due process

Having been summarily dismissed, the crane operator had not been given the opportunity to respond to the allegations that led to his terminal. He had not been given the opportunity to have a support person either as there had been no discussions related to his summary dismissal.

Pressure from the union to dismiss the crane operator

The crane operator went in person to see the managing director of the company who told him that a union delegate had seen him at the protest. The union was angry because the violent protesters had caused damage to the union office. On a televised interview, the union secretary for the state of Victoria said that the violent protesters would never work in the industry again.

The crane operator applied for a remedy for his unfair dismissal.

For his part, the crane operator said he had not opposed vaccination and he only attended the protest to find out what would happen to the shutting of the tearooms. He had gone there in his private capacity and was only curious as to how it would impact his work.

It was his right to attend the protest

And at any rate, it was well within his rights to attend the protest and that he never participated in the violence. He alleged that he had not been directed to go home by the managing director who had, in fact, encouraged him to attend the protest. The crane operator denied that the managing director ordered him to go home. It was the union delegate who had ordered him to stay-at-home. Thus, the stay-at-home order was not work-related.

Attending the protest is not “serious misconduct”

Also, he had been summarily dismissed for serious misconduct when attending the protest was not serious misconduct. More importantly, the separation certificate given to him by the company stated that he had been terminated for “shortage of work.”

Loss of trust and confidence in the crane operator

At trial, the managing director said that he had lost trust and confidence in the crane operator whom he had allowed a certain level of autonomy at work and entrusted him with an expensive piece of machinery. The managing director denied having encouraged the crane operator to attend the protest to fight for his rights and that he had only asked the crane operator why he was not at the protest.

The violent protests made the company look bad, worsened relationship with union

The managing director has seen a video of the protest and recognised one employee. The managing director then called the employee who had informed the managing director that he had been there with the crane operator. The managing operator then told the employee that he and the crane operator should get out of there.

The crane operator attending the violent protest made the relationship between the construction company and the union worse. All five employees of the company who had attended the protest were dismissed.

Crane operator attended protest during paid work hours

The managing director maintained that the protest had been illegal as the government had issued stay-at-home orders. Also, the crane operator attended the protest during working hours as the crane operator had been paid for the day even as he was sent home. As an essential worker, the crane operator had been issued a work permit and the terms of the work permit did not allow him to attend the protest.

Crane operator attended an unlawful protest

The Fair Work Commission found that the evidence supports the finding that the crane operator had been at the protest for over an hour and that he attended it because he supported the protest. The crane operator understood that his work permit and the stay-at-home orders prohibited from leaving his home. The managing director even required him to stay-at-home for the rest of the paid work day. The protest was unlawful given the stay-at-home orders by the government. Attending a protest is not one of the five exceptions to the stay-at- home orders. The protest was not a lawful industrial activity. It gave the company a valid reason to dismiss him.

Risk to the employer’s business and reputation

The managing director considered the crane operator’s actions to compromise the company’s reputation with the union, with other construction companies who would be a source of work for the company. The most important consideration is that the Victorian government is one of the clients of the company and the crane operator violated the stay-at-home orders issued by the Victorian government. His presence at the protest may suggest to people that the company endorsed the protest or the crane operator’s presence at the protest. By attending the protest, he had risked his employer’s reputation.

Summary dismissal not justified

However, even with a valid reason to dismiss the crane operator, the managing director, in dismissing the crane operator had not given him the opportunity to fully respond to the allegations of misconduct made against him. The crane operator had not participated in any of the violence at the protest. And the company did not believe that he participated in the violence.

Dismissal was harsh and disproportionate

The dismissal was harsh and it was not proportionate to the act of the crane operator. His actions in attending the protest was a serious matter but it did not constitute serious misconduct. The crane operator may not have thought about his actions or the consequences and implications of his attendance at the protest.

In this, he failed to uphold his duty of fidelity to his employer. He did not think of the risk to his employer. He should have been dismissed on notice. The summary dismissal was harsh. The FWC awarded the crane operator four weeks’ notice.

Source:

Omar Chebbo v Major Crane Logistics Pty Ltd [2021] FWC 6693 (24 December 2021)

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2021/6693.html