PR957993 PR957993 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment D.L. Nicholson and Copper Refineries Pty Ltd (U2005/1324) COMMISSIONER BACON BRISBANE, 12 MAY 2005 Termination of employment - arbitration. DECISION The application [1] This is an application made pursuant to s.170CE of the Workplace Relations Act 1996 (the Act). The applicant is Mr Donald Nicholson who commenced employment with Copper Refineries Pty Ltd (CRL) on 22 July 1970 and until his employment was terminated on 4 January 2005 performed the duties of a Machine Operator. Mr Nicholson's employment was terminated for a number of reasons which, when taken collectively, were determined by CRL to warrant termination of employment. The reasons for the termination are contained in the letter of termination dated 4 January 2005. In summary the reasons for termination are: On 3 December 2004 Mr Nicholson made racially discriminatory remarks about another member of the CRL staff. On 3 December 2004 Mr Nicholson refused to comply with a lawful direction from his immediate supervisor. Mr Nicholson in September and November failed to report two safety incidents within the timeframe required by CRL's relevant policies. When requested Mr Nicholson failed to disclose to CRL medical information relevant to his fitness for work. That on occasions Mr Nicholson has ridiculed and questioned the competence and professionalism of CRL staff. [2] Mr Nicholson contends that the termination of his employment was harsh unjust and unreasonable. On 16 February 2005 a Certificate was issued by the Commission pursuant to s.170CF(2) of the Act to the effect that all reasonable attempts to settle the matter by conciliation were likely to be unsuccessful. As a result Mr Nicholson elected to proceed to arbitration. Arbitration proceedings were conducted in Townsville on 19, 20 and 21 April 2005. The Act [3] In determining whether or not the termination of Mr Nicholson's employment was harsh unjust or unreasonable the Act requires the Commission to have regard to a number of matters. The first matter to be considered is whether or not there was a valid reason for the termination (s.170CG(3)(a)). The Commission will consider each of the incidents relied on by CRL to decide whether taken together they constitute a valid reason for the termination of Mr Nicholson's employment. The racial comment/s [4] Mr Nicholson's immediate supervisor is Mr Thomas Brand. Mr Brand telephoned Mr Nicholson on 3 December 2004. Mr Nicholson at the time was on the last day of a week of annual leave. Immediately preceding the annual leave, Mr Nicholson had been absent from work due to a workplace injury. To ensure that Mr Nicholson's attendance at work constituted an acceptable level of risk, CRL in accordance with its policies, required Mr Nicholson to undertake a Functional Capacity Evaluation (FCE). The purpose of Mr Brand's phone call was to advise Mr Nicholson not to report for afternoon shift on 6 December 2004, but rather to report for work on the day shift and prior to commencing work, undergo the FCE. [5] During this conversation Mr Nicholson became argumentative and "heated". He does not deny at times in the conversation saying to Mr Brand that he should "shut up I am talking here" and "I don't give a fuck". It was clear that Mr Nicholson did not want to attend the FCE (in the absence of a Doctor). That matter and this conversation will be further considered later herein. Of relevance to the matter currently under consideration is Mr Brand's evidence that Mr Nicholson said of Mr Ian De Satge (CRL's Safety Officer and Rehabilitation Co-ordinator) "that little black cunt isn't doing his job" . Mr De Satge is of Aboriginal descent. Whilst Mr Nicholson does not contest almost all of the conversation with Mr Brand, he does not recall making the above comment and it is fair to say by the time of the arbitration Mr Nicholson contends that he did not make the above comment. [6] In cross examination Mr Nicholson conceded that the comment (if made) was in breach of CRL's policies and that he was aware of the existence of such policies and that those policies also include that a person making such comments may face severe disciplinary action, including termination of their employment. Thus, even on Mr Nicholson's view, if the comment was made it would contribute significant weight to a finding that a valid reason existed for the termination of Mr Nicholson's employment. [7] There were no witnesses to the telephone conversation. Mr Nicholson was angry and, on Mr Nicholson's evidence, the conversation became "heated". Mr Nicholson, apart from telling his Supervisor to "shut up" , also refused a direction to attend for work on the day shift on Monday 6 December and advised Mr Brand that he would "attend work at 3.00pm on Monday and that if [CRL] didn't like it [Mr Brand] could meet him at the gate and sack him for all [Mr Nicholson] cares." There is no evidence that Mr Brand became aggressive toward Mr Nicholson during this conversation. Indeed the uncontested evidence is that Mr Brand was endeavouring to calm Mr Nicholson and made attempts to persuade Mr Nicholson to comply with the direction so that Mr Brand would not have to "pass this on to senior management" . [8] If Mr Nicholson is to be believed when he testifies that he did not make the offensive comment about Mr De Satge, then Mr Brand has simply fabricated the offensive comment. Mr Nicholson did not directly make such an allegation, nor was such a proposition put directly to Mr Brand in cross examination. Mr Nicholson does not advance any motive for Mr Brand fabricating such an allegation. Mr Nicholson did accept in cross examination that for his evidence to be accepted, it must follow that Mr Brand was lying and had fabricated the allegation. [9] The Commission has considered the evidence and finds, on the balance of probabilities, that Mr Nicholson did make the racially derogatory statement in relation to Mr De Satge. Mr Brand presented as a believable witness and the Commission accepts his evidence on this point over that of Mr Nicholson. In making this finding the Commission also attaches weight to the fact that Mr Nicholson did not advance any basis or motive for a finding that Mr Brand had fabricated the allegation. [10] The evidence clearly establishes that Mr Nicholson's demeanour during the conversation with Mr Brand was angry and intimidatory. His comment to Mr Brand that he would refuse the direction to attend on day shift on Monday 6 December 2004 and that Mr Brand could sack him for all Mr Nicholson cared was clearly made to intimidate Mr Brand. Mr Nicholson concedes that he was swearing during the conversation. The balance of probabilities is that the contentious comment was made by Mr Nicholson and that he genuinely can't recall it due to his demeanour at the time or that the comment was made and Mr Nicholson chooses not to remember it because of the serious ramifications that would follow. In the Commission's view this is more probable than the alternative which is that Mr Brand for no apparent reason fabricated the entire allegation concerning the racially offensive remark. Even if Mr Nicholson is to be believed he only contests that he made the racially offensive remark. That leaves the facts before the Commission that Mr Nicholson said of Mr De Satge "that little cunt is not doing his job" . This hardly leaves Mr Nicholson in a strong position. The remark is clearly intended to demean Mr De Satge. It is offensive and in the Commission's view attracts significant weight toward a finding that a valid reason existed for the termination of Mr Nicholson's employment. Mr Nicholson's bad position is made all the worse when the racially offensive remark is taken into account. [11] There is one matter raised by Mr Nicholson concerning Mr Brand's evidence that might lead the Commission to question the integrity of that evidence. However the Commission is satisfied for the reasons that follow that there was a satisfactory explanation which leaves Mr Brand's evidence undiminished. [12] Mr Brand attached a photocopied extract from his diary to his affidavit. The extract was the notes he made in the diary on 3 December 2004 in relation to the telephone conversation with Mr Nicholson. Counsel for Mr Nicholson called for the original diary. When presented, Mr Brand's 2004 work diary has only one entry. That entry records the conversation with Mr Nicholson on 3 December. Other than that entry, the diary is completely blank. Mr Brand's evidence is that he keeps two work diaries, one for appointments and non-disciplinary related work events and one for matters which are (or may be) related to disciplinary matters of members of his work team. Importantly Mr Figg, who is a Refinery Supervisor, gave evidence that he sighted Mr Brand's diary, (that is Exhibit A2 in these proceedings) on 3 December and that he was present on that day when Mr Brand was attempting to make a photocopy of the diary entry. There is simply no reason to doubt Mr Figg's evidence. Whilst the circumstances of Exhibit A2 appear on their face to be somewhat suspicious, the Commission is satisfied that the diary entry was made on 3 December and that the entry accurately reflects Mr Brand's recollection of his conversation with Mr Nicholson. [13] Mr Brand's original diary entry did not include the precise words used by Mr Nicholson on 3 December. Rather Mr Brand simply recorded that Mr Nicholson had made racial comments about Mr De Satge. The actual words used by Mr Nicholson were discussed with senior management on Friday, 3 December and/or during the week of 6 December 2004. At the direction of senior management, Mr Brand amended the typed version of his diary entry by adding in his own hand writing the precise words used by Mr Nicholson. Again, the Commission is satisfied that there is nothing improper in any of this and is satisfied that it is open to the Commission to rely on the diary entry, together with the typed version, including the hand written addition. [14] There is one other comment made by Mr Nicholson which CRL contends is racially discriminatory. Mr Nicholson does not contest that he made the comment. In the conversation with Mr Figg on 3 December, after his conversation with Mr Brand, Mr Nicholson was advised that Mr De Satge was in Bowen (at another CRL facility) to which Mr Nicholson responded with words to the effect "what's he gone walkabout?" Mr Nicholson submits that the foregoing is a term which is commonly used in Australia, which means that someone is absent from their home base (or in this case their work place) and it has no racial connotation. Mr Nicholson says that he did not utter the words with any intent of racial discrimination. [15] The evidence is that on 3 December 2004 Mr Nicholson was angry with Mr De Satge and that he had spoken in an offensive and/or demeaning way about Mr De Satge in telephone conversations with Mr Brand and, as will be discussed shortly, with Mr Titlow. In between these two telephone calls Mr Nicholson telephoned Mr Figg. All three calls were made within a fifteen minute period. It was in the call to Mr Figg that Mr Nicholson made the "gone walkabout" comment about Mr De Satge. [16] The Commission considers the comment to be demeaning to Mr De Satge. The Comment was made in a telephone conversation that was made between two other calls (within a short timeframe) in which Mr Nicholson was clearly and intentionally demeaning of Mr De Satge (including a racially offensive comment). It is the Commission's conclusion that in this context Mr Nicholson's comment that Mr De Satge had "gone walkabout" was demeaning. Further, given Mr De Satge's aboriginality and Mr Nicholson's dissatisfaction with him at the time, the Commission has formed the view that Mr Nicholson intended to demean Mr De Satge when he made the comment. Refusal of direction [17] This matter relates to the balance of the discussion between Mr Nicholson and Mr Brand in their telephone conversation of 3 December 2004. Mr Brand had directed Mr Nicholson to attend for work on 6 December 2004 on day shift (rather than afternoon shift) and further directed him to undergo an FCE before recommencing work. Mr Nicholson refused to comply with that direction. It will be recalled that in refusing the direction Mr Nicholson challenged Mr Brand (and presumably therefore CRL) that if they didn't like his decision, they could meet him at the front gate at 3.00pm on Monday 6 December and sack him for all he cared. What is to be drawn from this is that by his comments Mr Nicholson was aware that he was refusing a direction from CRL and that the refusal had the potential to result in the termination of his employment. [18] During these proceedings Mr Nicholson contends that the direction from CRL was not reasonable and as a consequence he was entitled to refuse to comply with it. The basis of Mr Nicholson's contention is that he wanted a Doctor in attendance at the FCE. During his evidence Mr Nicholson effectively indicated that his health was so poor that he was concerned that when doing the various exercises that constitute the FCE, he may suffer a medical reaction which absent immediate medical assistance (ie a Doctor) may result in long term adverse consequences or presumably even death (see paragraph 27 herein). [19] It is not clear why Mr Nicholson felt that it was CRL's duty to organise a Doctor to be present at the FCE. CRL was satisfied that the FCE would be conducted safely and would constitute an acceptable level of risk. It was not the usual practice for Doctors to attend an FCE. It may have been open and acceptable to all concerned for Mr Nicholson to arrange to have a Doctor of his choice in attendance at the FCE. No such option was explored by Mr Nicholson. Rather, because Mr Brand could not tell him if there was to be "qualified medical personnel" in attendance at the FCE he refused to attend, challenged CRL to sack him and ridiculed Mr Figg and Mr De Satge, whom he also racially offended. [20] Clearly on Mr Nicholson's evidence about his health, CRL was entitled to assess his fitness for duty by requiring him to attend an FCE. This is consistent with CRL's policies. In the circumstances it was a reasonable direction. Mr Nicholson was entitled to discuss with CRL his concerns about the FCE and his medical condition. The outcome of such a discussion is left to speculation because in lieu of that course Mr Nicholson decided (amongst other things) to refuse CRL's direction. It must also be kept in mind that at the time of this refusal (and the challenge to sack him) Mr Nicholson did not know whether or not CRL would object to a Doctor attending the FCE. It is not contested that Mr Brand did not know the answer to that question and told Mr Nicholson so. Despite the lack of relevant information, Mr Nicholson refused to attend the FCE that had been scheduled for Monday, 6 December 2004. [21] The Commission is satisfied that in the above circumstances the direction given to Mr Nicholson to attend the FCE was reasonable and that Mr Nicholson refused that direction without first discussing his health concerns with CRL in an attempt to reach an amicable arrangement in relation to the FCE. Mr Nicholson has acted improperly in refusing a reasonable direction given to him by CRL. The Commission will attach weight to this finding in determining whether or not a valid reason existed for Mr Nicholson's termination of employment. Failure to report work related injuries [22] On 2 September 2004 Mr Nicholson injured himself at work. It is CRL's contention that its policies require Mr Nicholson in that circumstance to notify his supervisor as soon as is possible. In the absence of his immediate supervisor Mr Nicholson was required to notify some other CRL management team member. Mr Nicholson attempted to advise Mr Brand of his injury, however for reasons which CRL ultimately accepted, was unable to do so. Following its September investigation CRL determined that it ought not take any disciplinary action against Mr Nicholson over this incident. Mr Nicholson was however, advised of the requirement to comply with the CRL policy. The Commission is not prepared to attach any weight to this matter in considering whether a finding that the termination was for a valid reason. The matter has been investigated by CRL in September and it was determined that no disciplinary action ought be taken against Mr Nicholson. Despite that determination CRL now relies on the matter to take disciplinary action (ie termination of employment) against Mr Nicholson. Given the earlier determination such an approach is now not reasonably open to CRL. [23] On 22 November 2004, whilst at work and late into his shift, Mr Nicholson slipped on some oil. He did not suffer any immediate injury and he did not report the incident on that day. When he woke the next day (23 November 2004) Mr Nicholson had a pain in his back which he attributed to the slip at work. He reported his injury and the reason for it to CRL on that day. CRL contends that its policies require Mr Nicholson to report the incident (ie the fact that he slipped on oil) as soon as possible after it occurred. The requirement to report the incident is irrespective of whether Mr Nicholson was injured. [24] Mr Nicholson contends that he had complied with CRL's policies because at the time of the slip there was nothing to report and that he is to report injuries as soon as possible, which he did when he first became aware of the injury on the following day. The Commission does not accept Mr Nicholson's contention. The relevant policy obligates Mr Nicholson to report incidents. Incidents include events that do not result in injury or damage to property. This is made clear in the Townsville Operations Incident Management Procedure. Subclause 6.2 of that Procedure is titled "Incident Notification" and paragraph 6.2.1 states: "Notification of an incident to the responsible supervisor shall be as soon as reasonably practicable within the shift of occurrence". At subclause 6.3 the Procedure classifies incidents into various types. One type of incident is: "Near miss/No injury/No damage". [25] Mr Nicholson wrongly submits that he is only obligated to report incidents which result in injury when he contends that he complied with the policy by reporting the incident the next day because that was the first time he realised that he had been injured in the incident. Mr Nicholson is right when he submits that he has an obligation to report a workplace injury "as soon as possible after the incident". That obligation arises from the "Injury Management Policy". In terminating his employment, CRL relies on Mr Nicholson's failure to report the incident in accordance with the Incident Management Procedure not his failure to report his injury in accordance with the Injury Management Policy. [26] Any safety procedure that only requires the reporting of injuries would in 2005 be found woefully inadequate. CRL's Incident Management Procedure requires that incidents be reported as soon as reasonably practicable (and within the shift) whether or not injury or damage occurs is made with the specific intention of endeavouring to ensure someone else (in this case) does not slip on the oil and injure themselves. Clearly Mr Nicholson's failure to report the incident of slipping on oil on the floor in accordance with the relevant procedure (ie as soon as reasonably practicable and within the shift) exposed other employees to the hazard which was known to Mr Nicholson and which he had failed to report. It is the Commission's conclusion that Mr Nicholson's failure to report this incident as is required by the Incident Management Procedure does contribute weight to a finding that the termination was for a valid reason. Failure to disclose medical information [27] During his evidence Mr Nicholson told the Commission that: "PN760 Can you tell the Commission the changes in your health between 2002 and 2004?---Well, since then I've been in hospital. I was off for about, in early 2003, I would say probably around about 18 January I think, I was on long service, I had a massive bleed in my lung which I was in hospital for on and off, I was very sick for about - I think I was off for something like 10 weeks, and when I came back off that I went back onto my long service. So for about the first five months I think, from memory, of that particular year, '03, I was hardly at work at all with all these - I've had trouble with my legs and all that. I went to a vascular surgeon, Gollidge, I went to him. He done, I think they call it an ultrasound or whatever, on my left leg, and all the veins, arteries and everything my left leg had it. Now they've gone to both legs. I've got surgical stockings on now that I've got to wear at all times. In the letter to the company the only way to fix it is an operation. The only way to get results is use vein, and my veins have had it, so the only way that the operation can be done is by using plastic, which is not recommended. It only lasts about five years. So I have been told not to use my legs any more than possible. Yes, so I've had - after the big bleed they took me off Warfarin, so I've had the massive bleed in my lungs, the legs, you know, they get very tired, my feet get very sore because I've got bad circulation. PN761 Why were you on Warfarin?---For my heart. Then I've been Warfarin, I've been a heart patient for something like 10 years. I've been in and out of intensive care wards six times, eight times, I wouldn't really know exactly how many times. This is why I maintain about the stress tests, and that I've had quite a few tests of all descriptions done, always with a doctor in attendance." [28] In August 2004 Mr Nicholson at CRL's direction attended Dr Keyes prior to Mr Nicholson's return to work following an illness. As part of this process Mr Nicholson was required to complete a questionnaire relating to his health. The questionnaire was the form usually used by CRL to conduct its pre-employment health assessments. The following is extracted: Previous Medical History Disease Diagnosis Date Present effect on health Injuries Type Date Cause Present effect on health Operations Type Date Present effect on health [29] It can be seen that Mr Nicholson failed to list any diseases, injuries or operations. The questionnaire also asks a series of questions which are said to enable a "Review of Systems". Applicants are required to: "Tick if you have ever had any of the following conditions and make comments below on when they occurred and whether they still effect (sic) you." [30] Mr Nicholson did not tick that he was suffering from any condition. Some of the conditions identified were followed by a non specific question. For example the conditions related to the heart were: Ischaemic heart disease or angina or myocardial infarction or heart attacks/Chest pain Coronary artery bypass graft Pacemaker Arrhythmia or irregularity of the heart High blood pressure Leg pain when walking (intermittent claudication) Varicose veins Other heart disease [31] Of all the conditions listed, Mr Nicholson did not tick that he was or had suffered from any condition. Yet his evidence is that he can't recall how many times he has been in intensive care (probably six or eight times) because of his heart condition. Further, as previously discussed, Mr Nicholson is so concerned about the condition of his heart (amongst other things) that he refused to attend a Functional Capacity Evaluation unless a Doctor was in attendance. This must also be considered with Mr Nicholson's evidence in these proceedings that the veins and arteries in both of his legs have "had it" and are "gone" . [32] CRL has made good its contention that Mr Nicholson failed to disclose to CRL medical information relevant to Mr Nicholson's fitness for work. Mr Nicholson did not provide any reasonable explanation for his failure to honestly and accurately answer the questions asked of him. The Commission is satisfied that this matter contributes weight toward a finding that the termination was for a valid reason. Abuse/Ridicule of CRL staff [33] There is ample evidence before the Commission which establishes that Mr Nicholson spoke inappropriately to (and about) CRL staff. Much of it is not contested. Mr Nicholson does not contest that during the telephone conversation with Mr Brand (his immediate supervisor) that Mr Nicholson said (amongst other things): "Shut up. I am talking here" and in refusing a direction from Mr Brand: ". . . I don't give a fuck". [34] Mr Titlow, who is a Security Officer at the CRL site, gave evidence that Mr Nicholson telephoned on 3 December 2004. Mr Titlow, who was not cross examined, records the detail of that conversation: "Incident Occurrence 03/12/2004 Received a phone call on ext 255 from an outside line at about 1330hrs on the 03/12/2004. It was Don Nicholson calling for Ian De Satge. He was very abrupt on the phone asking if Ian was on site. I told him that Ian was in Bowen. He replied and I quote "A lot of fucking good that is!" He then told me to give Ian a message to call him straight away. I then told Don that I would transfer his call directly to Ian's mobile he told me and I quote "No I'm calling from home make him (Ian) fucking pay for it!" He then said quote "when you give him the message tell him to call me right away not when he's (Ian's) fucking ready." He then gave me his home phone number and hung up. I then called Ian on his mobile and passed on the message." [35] Mr Nicholson submits that the Commission ought to accept that he was stressed at the time that he made these comments and that this fact should serve to mitigate the comments. Even on Mr Nicholson's version the conduct is unacceptable. That an employee may suffer some stress at the workplace does not in the circumstances of this matter provide a license to demean and diminish the dignity of other employees at the workplace who are simply performing their duties. Mr Titlow was entitled to be treated with respect. Mr Nicholson failed to so treat Mr Titlow. [36] Mr Nicholson has not satisfied the Commission that he was under stress on 3 December 2004 when he behaved so appallingly toward four co-workers (Messrs Brand, Figg, De Satge and Titlow). Rather the Commission has formed the view that he was angry about the direction to attend the FCE on day shift on 6 December 2004. Within seconds of this direction being given by Mr Brand, Mr Nicholson refused to comply with it and escalated the conversation to a confrontation by abusing, swearing at and challenging Mr Brand (CRL) to "sack him" and by making a racially offensive remark about Mr De Satge. [37] Given the corner into which he had (for no apparent reason) painted himself, Mr Nicholson may have been stressed when he spoke to Mr Titlow, however it would be improper for the Commission to accept that such self created stress could be accepted as mitigation for further inappropriate conduct. Mr Nicholson made submissions to the effect that it was a National pastime for Australian workers to ridicule members of the management team and co-workers. The Commission attaches no weight to that submission. What must be considered in these proceedings is the behaviour of Mr Nicholson and the comments he made and the context in which those comments were made. If the Commission was to accept that Mr Nicholson's behaviour was acceptable and was indeed in conformity with a National pastime, Australian workplaces would deteriorate into places of total mayhem. Mr Nicholson chose the behaviour and he must face the consequences of that behaviour. The Commission accepts that this point contributes weight toward a finding that the termination of Mr Nicholson's employment was for a valid reason. Conclusion [38] For the foregoing reasons the Commission is satisfied that there was a valid reason for the termination of Mr Nicholson's employment. Notification [39] Mr Nicholson was provided with a letter of termination of his employment. The letter in a detailed way provides Mr Nicholson with the reasons for the termination of his employment (including why CRL did not accept Mr Nicholson's contentions relating to each of the reasons). The Commission is satisfied that Mr Nicholson was notified of the reason for the termination of his employment. Opportunity to respond [40] On 21 December 2004 CRL met with Mr Nicholson and outlined the allegations made against him. These allegations were also included in a letter of the same date. The letter leaves the reader in no doubt that CRL viewed the allegations as extremely serious and that Mr Nicholson's employment was at risk unless he could show why his employment should not be terminated. [41] On 23 December 2004 Mr Nicholson responded (both orally and in writing) to the allegations. As a result of his response Mr Nicholson was provided with further written information on that day outlining CRL's allegation concerning the words used in the racially offensive comment/s made about Mr De Satge. The basis of the comments made to Mr Titlow were also included. Mr Nicholson responded to these allegations in writing on 24 December 2004. [42] The Commission is satisfied that Mr Nicholson was provided with an opportunity to respond to the reasons related to his conduct on which CRL relied in terminating his employment. Warning [43] As the termination of his employment was not related to unsatisfactory performance, it is not contended by Mr Nicholson that he should have been or was warned about his performance. Size of undertaking [44] The Commission is satisfied that the size of the employer's undertaking would (to a substantial degree) have been likely to impact on the procedures followed in effecting Mr Nicholson's termination. Human Resources Specialist [45] It is not contested that CRL has employed dedicated Human Resources Specialists and it is therefore not relevant to further consider s.170CG(3)(db). Other relevant matters [46] Mr Nicholson contends that CRL did not consider any alternatives to the termination of his employment. Mr Draffen, CRL's Refinery Manager, gave evidence that he did consider other sanctions, however in the end decided that the correct course was to terminate Mr Nicholson's employment. [47] The Commission also considers that Mr Nicholson's length of service (34 years) is a relevant matter to consider. Mr Nicholson's behaviour was so serious that the length of his service does not on balance render the termination harsh unjust or unreasonable. It would be an error to accept that long serving employees, because of their service, are entitled to mistreat co-workers in the way that Mr Nicholson did. Length of service may be a reason to find harshness if, in this case, the termination was solely based on the failure to report the "oil slip" incident. It has a significantly higher hurdle to overcome when an employee takes it upon himself to intimidate, demean and/or racially offend co-workers, coupled with the refusal of reasonable directions from the employer without first endeavouring to agree arrangements satisfactory to both sides. [48] There is one other matter which is relevant to a consideration of whether Mr Nicholson's termination was harsh unjust or unreasonable. On Saturday 4 December 2004 (the day after the telephone conversations with Messrs Brand, Figg, Titlow and De Satge) Mr Nicholson attended his Doctor. The Doctor certified that Mr Nicholson was (and would be for two weeks) too ill to attend work. CRL was advised of that fact on 6 December 2004. On that day Mr Nicholson had a telephone conversation with Mr Westlake, who is CRL's Refinery Production Superintendent. Mr Westlake gives evidence that he was "concerned to understand the exact nature of Don's medical condition" . [49] During this discussion Mr Nicholson said that, amongst other things, he was suffering from "stress" although the Doctor had not included that on the medical certificate which only recorded that Mr Nicholson was suffering from a "medical condition" . Mr Westlake sought and Mr Nicholson agreed to obtain a more detailed certificate. [50] On 10 December 2004 Mr Westlake sent an email to Ms M. Kimlin, CRL's Human Resources Manager (with a copy to the Refinery Manager) recommending the termination of Mr Nicholson's employment. [51] On 17 December 2004 Mr Nicholson advised Mr Westlake that the Doctor had certified Mr Nicholson too ill to attend work for a further two weeks. Mr Westlake gives the following evidence: "Don advised me that he had been provided with a certificate for a further two weeks sick leave and we arranged for him to deliver the documentation the following Monday, 20 December 2004. However, this arrangement was subsequently changed to Tuesday, 21 December 2004 so that Don could meet with Ken Draffen. Don asked me why the meeting was changed to Tuesday and I told him that there were some other matters that needed to be discussed with him. On the morning of 21 December 2004, I met Don at the gate of the refinery. I escorted Don to the main office building to meet with Ken Draffen." [52] Mr Nicholson was not told that he would be meeting with the Refinery Manager and the Human Resources Manager on 21 December and that the purpose of the meeting would be to determine whether or not Mr Nicholson's employment ought be terminated. Mr Westlake did not provide any reason why this significant fact had been withheld from Mr Nicholson. Rather Mr Nicholson was left in the belief that he was to meet Mr Westlake at the gate in order to drop off the medical certificate and on Mr Westlake's evidence to discuss some other issues. In reality Mr Nicholson (if he had his personal protection equipment with him) would be required to enter the site and meet with the Refinery Manager and the Human Resources Manager. [53] This deception undertaken by CRL is not adequately explained. It was totally unnecessary and was improper. Mr Nicholson had a right to know that he was expected to meet with such senior people and he had a right to know the purpose of such a meeting. These rights were not afforded to Mr Nicholson. The denial of such a fundamental right (and simple common courtesy) lends weight to a finding that the termination was unjust or unreasonable. [54] The weight to be attached needs to be assessed. The Commission does not attach significant weight to this finding for the following reasons. Mr Nicholson did not object to the meeting proceeding. Mr Nicholson was provided with an adequate period of time to consider the allegations made against him and to provide a response. The time available was such that outside (ie union, solicitor or other) advice or assistance could have been obtained. The allegations against Mr Nicholson were provided to him in writing and a further meeting was scheduled. When considered overall no significant disadvantage was visited upon Mr Nicholson by CRL's failure to properly advise Mr Nicholson of the purpose and attendees of the 21 December meeting. [55] Save for any relevant matters already considered herein, there are no further matters which the Commission considers as relevant and which should be considered in accordance with s.170CG(3)(e). Conclusion [56] After considering all of the material the Commission for the foregoing reasons has concluded that the termination of Mr Nicholson's employment was not harsh unjust or unreasonable. BY THE COMMISSION: COMMISSIONER Appearances: Mr B. Shaw of Counsel on behalf of the applicant. Mr C. Murdoch of Counsel on behalf of Copper Refineries Pty Ltd. Hearing details: 2005. 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