TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent is operator of Gorgon Liquefied Natural Gas Project on Barrow Island (BWI) in Western Australia (Gorgon Project) – applicant employed as Production Technician – two of respondent’s key policies are ‘Chevron Way’ and ‘Business Conduct and Ethics Code’ – these policies articulate respondent’s values and establish standard of conduct with which it expects all of its employees to conduct themselves – policies place highest priority on health, safety and diversity of respondent’s workforce – all employees were provided training in relation to the respondent’s employment policies during induction – at around 5am on 28 September 2016, applicant was on a bus which was transporting workers from accommodation camp on BWI to the Operations Centre Building – during bus ride, the applicant engaged in a conversation with other workers which was offensive and inappropriate – during the conversation the participants broke into laughter (the Incident) – at the time of the Incident, there were at least two workers of Aboriginal heritage on bus – one of these workers informed his supervisor of the Incident by email, alleging that participants in the Incident had made ‘disrespectful derogatory comments directed towards Indigenous Australians’ – worker made a formal written complaint the next day – immediately following receipt of complaint, respondent initiated an investigation into the Incident – applicant interviewed by telephone on 6 October 2016 – admitted to engaging in inappropriate conversation and stated he had apologised to the other worker later on the day of the Incident (28 September 2016), once he became aware that he had caused offence – applicant attended meeting in Perth with respondent on 13 October 2016 during which he was informed of investigation findings and provided with opportunity to provide a response – applicant provided a written response on 14 October 2016 – on 17 October 2016 the applicant attended another meeting with respondent where he was informed that, after considering his response to investigation findings, the decision had been made to terminate his employment with immediate effect, and that he would be paid five weeks’ salary in lieu of notice, as well as any accrued but untaken leave entitlements – Commission held that prior to the Incident the applicant had an unblemished employment record with Chevron – accepted applicant’s unchallenged evidence that over the last 30 years he has had many positive interactions with Aboriginal people as football teammates, workmates, friends and acquaintances and that he has worked in roles where he mentored, managed and coached many Aboriginal people, mostly young men – Commission found that what applicant said amounted to inappropriate workplace behaviour and so under terms of Chevron’s policy this exposed him to possible disciplinary action up to and including the termination of employment – found valid reason for dismissal of applicant because of his failure to comply with Chevron’s Discrimination Policy – that of itself does not necessarily mean that his dismissal was not harsh, unjust or unreasonable – Mt Arthur v Goodall considered – held that whilst what was said on bus had offended and upset other employees, this was result of applicant’s failure to properly consider his surroundings before he spoke, his words were not directed at anyone – his actions were careless rather than involving reckless indifference – these circumstances reduce the gravity of the applicant’s misconduct – applicant was entitled to maintain his view that the story he told in the full context was not offensive and not degrading to women – the fact that the applicant maintained this view on these matters during his interview with respondent was not inconsistent with him being contrite about fact that what he said was heard by others and had offended and upset them – found that respondent should have given consideration to fact that as soon as applicant became aware that he had upset the other employee, the applicant went to some lengths to attempt to apologise to him – Commission satisfied that applicant was genuinely apologetic for having caused upset to other employees who heard what he said – satisfied that the dismissal was harsh and unreasonable – applicant had been unfairly dismissed – applicant sought an order for reinstatement and order for continuity of service – submitted there was no basis to find that his conduct has resulted in a loss of trust and confidence which would make reinstatement inappropriate and impracticable – respondent submitted that Commission should not order reinstatement because of serious nature of applicant’s misconduct, his failure to appreciate his conduct constituted harassment within meaning of Discrimination Policy, his attempts to downplay the seriousness of his misconduct and his complete disregard for Chevron’s values and its approach to workplace conduct as set out in its policies – Commission found it difficult to understand how it can be said that the applicant’s momentary lack of attention to his surroundings as he sat amongst his friends at back of bus at 5am in the morning demonstrates he does not in any way accept Chevron’s values – evidence shows that what occurred was the only instance of speaking inappropriately in workplace in three years of employment – applicant referred respondent to three Aboriginal men who could be character referees for him – held this does not suggest Aboriginal employees are at risk of further abuse by applicant if he was reinstated – no basis to conclude that applicant has not learned his lesson and is likely to repeat this type of behaviour – no reason to believe that respondent’s trust and confidence in applicant cannot be restored – found reinstatement of applicant to position in which he was employed immediately before dismissal was appropriate remedy – applicant’s representative submitted that Commission may consider declining to make an order restoring the lost remuneration since dismissal as reasonable sanction for applicant’s misconduct – further submitted that that would strike balance between respondent’s obligations to provide a workplace free from unacceptable conduct and its right to impose a disciplinary penalty for such behaviour – Commission did not make order for lost remuneration – remuneration lost since October 2016, as penalty for his misconduct, is by any standard a considerable penalty. Solin v Chevron Australia P/L
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