Alan Carmody v ISS Integrated Services
[2019] FWC 6070
•2 SEPTEMBER 2019
| [2019] FWC 6070 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Alan Carmody
v
ISS Integrated Services
(U2019/5205)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 2 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – forklift driver – alleged breaches of duty – serious and wilful misconduct – whether personal factors mitigated breaches – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed
[1] On 8 May 2019 Mr Alan Carmody (Mr Carmody or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by ISS Integrated Services Pty Ltd (ISS, the Respondent or the employer). He claims to have been unfairly dismissed on 18 April 2019.
[2] At the date of dismissal Mr Carmody was employed by ISS as a full time forklift driver under the ISS Integrated Services Pty Ltd Amcor Ltd Glass Operations Production Collective Workplace Agreement.
[3] Mr Carmody had six years and five months of service with ISS until he was dismissed on 18 April 2019.
[4] Mr Carmody claims that his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation. He does not seek reinstatement.
[5] ISS oppose the application. It says that it terminated Mr Carmody’s employment on the ground of serious misconduct on 18 April 2019 and, without legal obligation, elected to pay him a month in lieu of notice rather than dismiss him summarily. ISS contend that the dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.
[6] No jurisdictional issues arise in determining this matter. Mr Carmody was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.
[7] Conciliation of the application by a Commission-appointed conciliator was scheduled for 24 June 2019 but did not proceed due to the non-responsiveness of Mr Carmody. The application was referred to me for hearing and determination.
[8] On 16 July 2019 the employer made an application for the dismissal of Mr Carmody’s application on the ground of alleged non-responsiveness. However, in light of Mr Carmody’s appearance at a directions hearing that day, the strike-out application was not pressed. I issued pre-hearing directions on 16 and 31 July 2019.
[9] I heard the matter (merits and remedy) in open court in Adelaide on 27 and 28 August 2019.
[10] Both parties were self-represented at the hearing and neither sought external representation during the life of the matter. Mr Carmody presented his case in his own right. ISS’s General Counsel Mr Moore represented the employer, together with ISS Site Manger Ms Madden.
[11] At the hearing I took into account that the parties were self-represented and I provided a measure of guidance and assistance, particularly to Mr Carmody with respect to obtaining his evidence in chief and with respect to the examination of employer witnesses. I did so consistent with my responsibilities as an independent and impartial officer of the Commission.
The Evidence
[12] I received oral evidence, written statements, documents (including those produced in consequence of directions) and outlines of submissions from both Mr Carmody and ISS.
[13] I heard evidence from four persons:
• Alan Carmody (Applicant);
• Daniel Kirtlan (Warehouse Manager, Orora Limited);
• Eva Romanowski (ISS Site Manager); and
• Neville Whitfield (Driver, Nuriootpa Traders Pty Ltd).
[14] The facts leading to dismissal are central to my determination of this matter. Issues of credit are relevant. However, ultimately and with some exceptions, most of the facts are not in serious dispute. In relevant dispute though are some of the events during the nightshift on 28/29 March 2019 and differences in evidence between Mr Carmody and Mr Whitfield.
[15] Mr Carmody gave his evidence in a calm manner. Whilst generally reliable and being willing to acknowledge some wrongdoing on his part, a degree of caution is required. He was selective in his evidence of some events, and tended to gloss over details that cast his conduct in poor light. His recall was hazy on specific dates and the sequence of events.
[16] Mr Kirtlan was an impressive witness. He displayed a clear recall of events and answered questions with precision and without embellishment. He was a witness of credit.
[17] Ms Romanowski gave her evidence nervously and hesitantly. Her recall of the sequencing of events was not instinctive. However, the substance of her evidence was generally reliable especially where supported by the documentary record, including notes she took at meetings during the course of ISS’s investigation into Mr Carmody’s alleged misconduct.
[18] Mr Whitfield was a contractor working for a local business. He gave his evidence clearly and directly. He acknowledged that his recall of the timing of events on 28/29 March may not be exact and that his recall on those details may be “average”. Nonetheless, his account was plausible. He was clear on the events he set out in his statement and which he gave evidence about. There was no gloss placed on his evidence. He displayed an independence reflective of his position: no particular animus was shown towards Mr Carmody or partisanship towards ISS or Orora.
[19] Where relevant to my decision, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence (such as contemporaneous notes taken by Ms Romanowski 1) and the inherent plausibility of versions of events.
[20] Where there are differences in evidence that need to be reconciled:
• I prefer the evidence of Mr Whitfield over the evidence of Mr Carmody; and
• I prefer the evidence of Mr Kirtlan over the evidence of other witnesses.
[21] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:
“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 2
The Facts
[22] I make the following findings.
Background
[23] ISS supplies labour and facilities management services to clients. One such client is Orora, a packaging and manufacturing company. Orora operates a glass bottle manufacturing plant at Gawler in Adelaide’s outer northern suburbs, adjacent the Barossa Valley. It was formerly operated by Amcor Limited. ISS supplies labour to Orora for this glass manufacturing business.
[24] ISS has a presence embedded in Orora’s Gawler site through a full time ISS site manager. At relevant times this was Ms Romanowski.
[25] Mr Carmody commenced work with ISS on 3 December 2012. Throughout his entire period of employment Mr Carmody was employed by ISS as a Level 3 forklift driver in a work placement at Orora’s bottle manufacturing facility in Gawler. For approximately his first two years of employment Mr Carmody was a casual (working full time hours), after which he became a full time employee.
[26] Mr Carmody worked a rotating shift roster which included nightshift work. His work was primarily in warehouses and the plant operated by Orora. It included loading and unloading pallets onto trucks from conveyors and storing pallets in the warehouse. Typically there were three or four forklift drivers in a team per shift. Some were employed by ISS, others by a separate labour hire contractor or by Orora itself. Mr Carmody was required to comply with all policies put in place by Orora concerning conduct of persons working on site and its systems of work. He was required to take direction from supervisors and managers employed by Orora. He was accountable to a Level 4 supervisor and, in turn, the warehouse manager.
[27] The warehouses and plant in which Mr Carmody worked were large facilities with heavy and moving equipment and, at any given time, a mix of Orora, labour hire and other personnel. The warehouse included a staff meal room and smoking area.
[28] The forklift used by Mr Carmody belonged to Orora, not ISS. Mr Carmody had been issued a personal swipe card that could operate that forklift. Without that swipe card the forklift could not be started. In that sense it was ‘his forklift’.
[29] Until late 2018 Mr Carmody enjoyed his job. Although originally from Melbourne, his marriage and his work were in South Australia. He fitted well into his work environment. There were occasional instances of counselling but he was generally a reliable employee. He received a formal warning some years prior for operating a forklift in a dangerous manner (speed).
Events of 2018
[30] In 2018 Mr Carmody experienced a marriage separation. Progressively over 2018 this caused him stress and anxiety, as well as financial pressures. He sought medical intervention from his general practitioner. He was prescribed medication for depression. To the extent necessary, he disclosed these matters to ISS and Orora. By the end of 2018, although he was prone to occasional outbursts of emotional distress in the workplace his condition was stable. He was however experiencing a loss of motivation, including in the workplace.
[31] Orora managers and ISS were sensitive to Mr Carmody’s circumstances. They had noted signs of occasional erratic behaviour. Approximately each three months, the warehouse manager Mr Kirtlan held one-on-one discussions with each warehouse employee. In a one-on-one with Mr Carmody on 23 November 2018 Mr Kirtlan spoke to Mr Carmody about disruptive behaviour and moodiness. 3 He informed Mr Carmody of Orora’s Employee Assistance Plan (EAP). Mr Carmody indicated that he was thinking about quitting and moving back to Victoria once his house was sold. Mr Carmody was told that the business would support his decisions as best it could.
Events of 2019
[32] On 31 January 2019 Mr Carmody was distressed at work. A supervisor, concerned for his well-being, sent him home. On learning of this, Mr Kirtlan was also concerned. After sending texts that day and the following morning but receiving no reply, Mr Kirtlan drove to Mr Carmody’s house to check on his welfare. Mr Carmody was home. Mr Kirtlan offered Mr Carmody further time off work but Mr Carmody indicated that he would be able to attend his next scheduled shift. 4
[33] Mr Kirtlan raised his concerns about Mr Carmody’s well-being with his superiors (including Mr Watson). It was agreed that a meeting would be held with Mr Carmody on 28 February 2019, attended by both Orora and ISS. At that meeting ISS and Orora reaffirmed that access to counselling was available to Mr Carmody via the EAP, asked Mr Carmody to see a company doctor, and suggested he consider requesting a referral to a psychologist. 5 Mr Carmody took these suggestions in good spirit; he saw the company doctor on 1 March 2019 and obtained a clearance to work, but declined the option of seeing a psychologist.
[34] On 21 March 2019 a supervisor (Adam Sanzari) reported to Mr Kirtlan concerns with Mr Carmody’s work conduct and behaviour. It was claimed that Mr Carmody had on two occasions, without authority and against operating procedure, manually closed roller doors thus preventing automated vehicles accessing the conveyor from which warehouse staff would offload goods, causing a backlog in production. It was alleged that Mr Carmody had halted production so he could take a lunch break but had also resisted attempts by supervisors to provide more staff to help him clear the backlog. It was also alleged that Mr Carmody was taking 50 minute lunch breaks (when the authorised break time was 30 minutes), and that he was using a mobile phone while operating a forklift and smoking in undesignated areas.
[35] Mr Kirtlan reported the alleged incidents to his superiors and ISS was notified. A decision was made to formally put the allegations (referred to as ‘the first set of allegations’) to Mr Carmody as part of a disciplinary process.
[36] At Mr Kirtlan’s next scheduled one-one-one with Mr Carmody on 28 March 2019, and prior to the disciplinary process being put in place, Mr Kirtlan raised in general terms concerns about Mr Carmody’s behaviour, poor motivation and the impact this was having on other staff and production. 6 Mr Carmody said that he was not coping with the workload and pressure and that he needed to ‘sort his stuff out’. Mr Carmody advised he was still thinking of leaving once he reached his 7 year pro-rata long service leave accrual. He also raised the possibility of transferring to day or afternoon shift, as he considered nightshift was compromising his well-being. Mr Kirtlan informed Mr Carmody that he would lose income by working different shifts and that might not help his financial position. Mr Carmody was again told that the business would support his decisions as best it could.
First disciplinary process
[37] The disciplinary process on the first set of allegations commenced on 1 April 2019. Mr Carmody was provided a letter from ISS setting out five allegations. 7 Mr Kirtlan had assisted in framing the allegations. Allegations 1 to 3 concerned the manual override of production contrary to operating procedures; allegation 4 concerned mobile phone usage contrary to policy; and allegation 5 concerned smoking in undesignated areas. Mr Carmody was asked to attend a meeting the following day (2 April 2019, subsequently moved to 3 April 2019) to discuss the matter, and that he could bring a support person if he chose.
[38] A disciplinary meeting (disciplinary meeting #1) was held on 3 April 209. 8 Mr Carmody chose not to bring a support person. With respect to allegations 1 to 3, Mr Carmody admitted conduct contrary to operating procedure but claimed that he did not intend to sabotage production and was alongside his radio and forklift the whole time. With respect to allegation 4 he denied using his mobile phone while driving the forklift claiming the forklift was stationary at the time. He acknowledged that policy did not permit a driver to have a mobile phone on them whilst on a stationary or moving forklift. With respect to allegation 5 he admitted that he may have lit a cigarette whilst on a stationary forklift and before going to the smoke hut but claimed that he was simply saving time.
[39] Mr Carmody was not placed on suspension during the first disciplinary process as he was absent on pre-arranged leave.
[40] On 8 April 2019 ISS advised Mr Carmody the outcome of the first set of allegations. By letter dated 8 April 2019, each of the allegations was found to have been substantiated. Mr Carmody was issued a “first and final warning for breaching organisational policies and procedures”. 9
Second disciplinary process
[41] In the interim (between the first disciplinary meeting and a decision on the first set of allegations), on 6 April Mr Kirtlan received further information from the supervisor Mr Sanzari concerning Mr Carmody. Mr Sanzari had recently learned that during the 28/29 March nightshift Mr Carmody had allegedly refused to load a truck of a contractor, Mr Whitfield.
[42] Mr Kirtlan considered the allegation serious. He raised it with his superiors. ISS was informed. It was decided a further disciplinary process would be required to formally put the allegation to Mr Carmody. A second allegations letter was prepared dated 9 April 2019. It was provided to Mr Carmody that day – the day after his first and final warning letter of 8 April. The second allegations letter set out five allegations: allegation 1 (failed to load Mr Whitfield’s truck on 28/29 March); allegation 2 (failed to escalate to a supervisor the need for assistance to load Mr Whitfield’s truck on 28/29 March); allegation 3 (used a mobile phone whilst operating a forklift on 28/29 March); allegation 4 (was watching pornography on his mobile phone in the lunch room on 1 April 2019); and allegation 5 (failed to attend for duty or notify a supervisor of intended absence on 8 April 2019) (‘the second set of allegations’).
[43] I make findings concerning the factual events of 28 and 29 March and 1 April 2019 and the absence from work on 8 April 2019 when considering whether there was a valid reason for dismissal.
[44] The second allegations letter required Mr Carmody to attend a disciplinary meeting the following day, 10 April and that he could bring a support person if he chose.
[45] A disciplinary meeting (disciplinary meeting #2) was held on 10 April 2019. 10 Its objective was to secure Mr Carmody’s response to the allegations.
[46] Given the significance of the events of 28/29 March to the second set of allegations, Mr Kirtlan decided to interview the contractor, Mr Whitfield. He also did this on 10 April 2019. 11
[47] At disciplinary meeting #2 Mr Carmody again chose not to bring a support person. He did however present a six page handwritten response to each of the allegations 12 as well as making handwritten annotations on the second allegations letter.13 Mr Carmody’s position was:
• Allegation 1 (refusal to load Mr Whitfield): did not refuse without justification;
• Allegation 2 (failure to escalate): always escalates;
• Allegation 3 (mobile phone use): denied, was alone off the forklift at alleged time;
• Allegation 4 (watching pornography): denied, was live streaming with a friend in Vietnam; and
• Allegation 5 (failure to notify absence): admitted but made an honest mistake.
[48] Mr Carmody was placed on suspension (with pay) pending the outcome of the second disciplinary process.
Show cause and termination
[49] On 16 April 2019 ISS advised Mr Carmody the outcome of the second set of allegations. By letter dated 16 April 2019, allegations 1, 2, 3 and 5 were found to have been substantiated. Allegation 4 was not pursued by the employer. Mr Carmody was issued a ‘show cause’ letter as to why his employment should not be terminated. 14 He was required to attend a meeting the following day, 17 April 2019.
[50] Mr Carmody told the employer that he was financially struggling and could not afford fuel for his car to attend the show cause meeting. Orora’s Mr Watson provided Mr Carmody cash for fuel so he could attend the show cause meeting. Mr Carmody agreed to do so (and subsequently refunded Mr Watson the funds).
[51] The show cause meeting (disciplinary meeting #3) was held on 17 April 2019. Notes were taken by Ms Romanowski. 15 Mr Watson and Mr Kirtlan also attended. Mr Carmody accepted that his motivation had dropped due to personal circumstances but that he had been a long serving employee and sought a further chance. He said that his anxiety had passed, and that he would seek to strictly comply with policy in the future. The meeting concluded with Ms Romanowski indicating that ISS would take Mr Carmody’s response into account.
[52] Immediately following the meeting, Ms Romanowski, Mr Watson and Mr Kirtlan discussed the options. Mr Kirtlan expressed the view that Mr Carmody had been supported, had full opportunity to comply, that the breaches were serious and that dismissal was recommended. The three collectively present concurred but Ms Romanowski indicated that as the decision was for ISS to make, she would consult her superiors.
[53] During the afternoon of 17 April and morning of 18 April 2019 Ms Romanowski consulted senior human resources officers within ISS, by providing written materials and orally over the phone. One such person was People & Culture Manager, Jessica Morrissey. Ms Romanowski was directed to proceed with dismissal though she did not know who made or authorised the decision to dismiss. She was advised that Mr Carmody should be provided a month pay in lieu of notice. She prepared and signed a letter of termination dated 18 April 2019. 16
[54] The termination letter of 18 April 2019 was provided to Mr Carmody that day. He subsequently received the month’s pay in lieu on 25 April 2019 together with wages owed and accrued annual leave.
Post termination
[55] Mr Carmody commenced these proceedings 20 days later, on 8 May 2019.
[56] Post dismissal, Mr Carmody registered with a number of labour hire agencies. He then took a four week holiday to Vietnam. On return, he relocated from Adelaide to Melbourne in mid July 2019.
[57] In August 2019 Mr Carmody secured full time employment (on a lesser rate of pay) as a forklift driver via a labour hire agency working at Australia Post’s warehouse in Melbourne. He expects to commence that role in early September 2019.
Consideration
[58] The issue for determination is simply put: was Mr Carmody’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?
[59] I am under a duty to consider each of the criteria in section 387 of the FW Act, 17 and now do so. In so doing, I take into account all of the evidence and submissions before me.
[60] Section 387 of the FW Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid Reason (section 387(a))
[61] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 18 and should not be “capricious, fanciful, spiteful or prejudiced.”19
[62] In a conduct-based dismissal 20 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.21
[63] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 22
[64] ISS dismissed Mr Carmody because it considered that he had fundamentally breached his duties as an employee resulting in a loss of trust and confidence. The show cause letter and the termination letter particularised four alleged conduct breaches from the second set of allegations which the employer concluded were made out on the balance of probabilities:
• A failure to load Mr Whitfield’s truck during the shift on 28/29 March;
• A failure to escalate to a supervisor the need for assistance to load Mr Whitfield’s truck during the shift on 28/29 March;
• Using a mobile phone whilst operating a forklift during the 28/29 March shift; and
• Failing to attend for duty or notify a supervisor of absence from work on 8 April 2019.
[65] At the hearing of this matter the employer submitted that further evidence of serious misconduct by Mr Carmody had been admitted during the hearing which also formed a valid reason for dismissal, namely:
• That Mr Carmody was dishonest during the investigation into the second set of allegations by falsely claiming that he was loading a truck between 12.30am and 1.00am on 29 March 2019 and by claiming that he neither had in his possession nor was on his mobile phone at that time, and that this dishonesty was an attempt to cover up other breaches of policy concerning his dealing with Mr Whitfield during that shift.
[66] The decision to terminate was made in the context of findings by the employer that instances of misconduct had been established following the investigation into the first set of allegations, which had resulted in a first and final warning only days prior.
[67] For the purpose of considering whether these alleged breaches occurred and, if so, whether they constitute (collectively or individually) a valid reason for dismissal, it is convenient to group them into four categories:
• Conduct during the 28/29 March nightshift concerning Mr Whitfield;
• Conduct during the 28/29 March nightshift concerning mobile phone usage;
• Alleged failure to notify absence on 8 April 2019; and
• Alleged dishonesty during the investigation into the second set of allegations.
Conduct during the 28/29 March nightshift concerning Mr Whitfield
[68] The misconduct asserted by ISS at the hearing of this matter can be particularised into six items as follows:
• That Mr Carmody failed to load an external contractor’s (Mr Whitfield’s) truck during the shift on 28/29 March as required of him;
• That, contrary to operating procedure, Mr Carmody told Mr Whitfield to load the truck himself if he wanted it done;
• That Mr Carmody remained seated beyond his authorised break on his mobile phone when he should have been working;
• That, contrary to operating procedure, Mr Carmody allowed Mr Whitfield access to Mr Carmody’s forklift and to use Mr Carmody’s swipe card to start the forklift;
• That, contrary to operating procedure, Mr Carmody observed and allowed an external contractor (Mr Whitfield) to load the truck using Mr Carmody’s forklift; and
• That Mr Carmody failed to escalate to a supervisor the need for assistance to load Mr Whitfield’s truck during the shift on 28/29 March or that Mr Whitfield was doing so himself.
[69] Before determining whether any or all of these alleged breaches occurred or were misconduct, it is necessary to make findings concerning Mr Carmody’s conduct vis-à-vis Mr Whitfield during the nightshift of 28/29 March.
[70] I heard direct evidence from both Mr Carmody and Mr Whitfield on these matters. For reasons earlier indicated, I prefer the evidence of Mr Whitfield over the evidence of Mr Carmody where there is conflict.
[71] I make the following findings.
[72] Mr Whitfield is an external contractor working for Nuriootpa Traders. During the nightshift of 28/29 March (between 10.30pm and 11.00pm) he approached the warehouse in his truck for the purposes of having his truck loaded with four or five loads for transport between the warehouse and plant. This was familiar work. He had his truck loaded on previous shifts by Mr Carmody without incident. It takes 20 to 30 minutes to complete each load.
[73] Mr Whitfield waited in his cabin for between one and two hours to have his truck loaded. Whilst a delay of this length does not commonly occur on nightshift, it is not entirely unusual in busy periods. He radioed for a forklift driver but was unable to raise anyone.
[74] After this waiting period he made contact with Mr Carmody. Mr Carmody proceeded to load the truck with the first load. While Mr Carmody was loading the truck and operating the forklift (in both a stationary and moving state), Mr Whitfield observed Mr Carmody in the possession of his mobile phone (sometimes in hand and sometimes inserted in a pouch on the forklift) and messaging on his mobile phone whilst operating the forklift.
[75] When transporting the first load, Mr Whitfield noticed the plant running low on stock and that further loads were needed from the warehouse as soon as possible. When Mr Whitfield returned to the warehouse he expected Mr Carmody to load the second load. Mr Carmody was seated away from the forklift and using his mobile phone. He was taking his break. Mr Whitfield remained with Mr Carmody for approximately 30 minutes whilst Mr Carmody continued on his phone. During and after that period Mr Whitfield repeated to Mr Carmody that the truck needed to be loaded and that the plant was running low. Mr Carmody gestured to Mr Whitfield in the direction of his stationary forklift and said words to the effect: 23
“there’s the forklift, if you want to do it you can do it yourself”
[76] Mr Whitfield, although knowing that the then operating procedure (as revised compared to earlier times) did not permit him as a contractor to drive Orora’s forklift and load his truck but concerned at the potential impact on production in the plant should loads not be quickly transported, decided to load his own truck. He walked to the forklift. Mr Carmody’s swipe card was affixed to the swipe reader. The forklift started by turning the key given that the swipe card was so affixed.
[77] Mr Whitfield proceeded to load the second load. It took at least 20 minutes. While he was doing so he observed Mr Carmody remaining seated using his phone.
[78] Mr Whitfield transported the load to the plant and returned to the warehouse. He needed a third load. He approached Mr Carmody. Mr Carmody was still seated and on his phone. He did not get up. Mr Carmody said to Mr Whitfield words to the effect: 24
“since you’ve done that one, you might as well load yourself again”
[79] Mr Whitfield proceeded to the forklift and loaded the third load. It also took at least 20 minutes. While he was doing so he observed Mr Carmody remaining seated using his phone.
[80] On returning to the warehouse for the fourth load, Mr Carmody was no longer seated using his phone. Mr Carmody agreed to, and did, load the fourth load.
[81] Mr Carmody 25 did not dispute that he did not load the second and third loads. He did not dispute that he allowed Mr Whitfield to use his forklift to load those loads. He did not dispute that he was on his mobile phone seated at least during the first load being loaded and in all probability during the second load. He claimed that he was on his break and entitled to do so. His evidence was also that he was working alone and unsupervised at the time.26
[82] Mr Whitfield’s evidence was: 27
“Alan did not want to load me much that night and I wasn’t achieving much help getting packaging to the factory…I stated my concern about loading myself to Alan, but he didn’t seem to worry about it, and responded with a whatever, it will be alright attitude. He was preoccupied with his phone to care about what was going on around him.”
[83] Based upon these findings, I conclude that Mr Carmody engaged in the following five forms of conduct during the shift on 28/29 March:
• Mr Carmody twice failed to load Mr Whitfield’s truck during the shift on 28/29 March;
• Twice, and on both occasions contrary to operating procedure, Mr Carmody told Mr Whitfield to load the truck himself if he wanted it done;
• Mr Carmody remained seated beyond his authorised break on his mobile phone whilst Mr Whitfield loaded his truck;
• Twice, and contrary to operating procedure, Mr Carmody allowed Mr Whitfield access to Mr Carmody’s forklift and to use Mr Carmody’s swipe card to start the forklift; and
• Twice, and contrary to operating procedure, Mr Carmody observed and allowed Mr Whitfield to load the truck using Mr Carmody’s forklift.
[84] Was this conduct in breach of duty?
[85] I conclude that it was, and that in combination it was a serious breach of duty.
[86] Mr Carmody accepted in his evidence that he knew that current Orora policy did not permit contractors like Mr Whitfield to operate a forklift to load their own trucks. 28 This had been allowed up to one year ago but, for safety reasons, was no longer permitted.
[87] Mr Carmody’s explanation that he was on an authorised break after load 1 does not explain his conduct. I accept that an employee, even if working with little support, is entitled to an authorised break even if this impacts work flow. However, authorised breaks in the warehouse were 30 minutes duration. Mr Whitfield remained passive with Mr Carmody for that period of time before, out of frustration and a concern over production, Mr Whitfield loaded loads 2 and 3. For at least the next half hour (that is, after the 30 minute break) Mr Carmody still remained seated and on his phone, and in all probability for nearly the next hour.
[88] Mr Carmody’s authorised break had concluded by the time Mr Whitfield started loading load 2 and well before Mr Whitfield loaded load 3. Mr Carmody thus had a duty to load both loads and failed to do so.
[89] Telling Mr Whitfield on both occasions that he (Mr Whitfield) could load the truck with his forklift if he (Mr Whitfield) wanted to do so compounded the breach of duty. Allowing a contractor do so was a serious infraction of operating procedure. By affixing his swipe card to the card reader, Mr Carmody also allowed Mr Whitfield to override a system design to prevent a person other than the designated forklift driver from driving the forklift. This too was a breach of procedure.
[90] Mr Carmody’s actions were not inadvertent. They were consistent with a decline in motivation over a period of time. He was knowingly indifferent to his employment obligations.
[91] I do not make a specific finding that Mr Carmody failed to escalate to a supervisor the need for assistance to load Mr Whitfield’s truck that evening. Although Mr Carmody’s evidence was vague on this point, the employer did not call evidence from a supervisor as to whether they were or were not informed. Mr Kirtlan acknowledged that Mr Carmody had during the on-on-one on 28 March 2019 expressed concern at his ability to deal with workload pressure. 29 Although I do not conclude that supervisors were so informed by Mr Carmody, I am not satisfied to the requisite standard of proof that Mr Carmody failed to do so. I make no such finding.
[92] The circumstances of the five particulars of misconduct I have found concerning dealings with Mr Whitfield during the nightshift on 28/29 March rendered the misconduct serious misconduct.
Conduct during the 28/29 March nightshift concerning mobile phone usage
[93] I have made findings that Mr Carmody used his mobile phone while operating his forklift during the nightshift 28/29 March. This was directly observed by Mr Whitfield. The use was on multiple occasions across a number of hours, whilst Mr Carmody loaded load 1 and load 4 of Mr Whitfield’s truck. It involved Mr Carmody holding the phone whilst operating the forklift as well as having the phone in a pouch affixed to the forklift. Mr Carmody’s evidence was that he had fixed a pouch to his forklift so he could place his phone there.
[94] The use of a personal mobile phone whilst on a forklift on the warehouse floor, whether it is stationary or being driven, is strictly forbidden by Orora policy. That policy is clear and was known by Mr Carmody. 30 I also accept Mr Kirtlan’s evidence that the policy is enforced, not just with respect to Mr Carmody. The policy states:31
“7.4 Mobile Phones
7.4.1 It is illegal to use a mobile phone while operating a forklift. Failure to comply will result in disciplinary action in all cases.
7.4.2 Use of personal mobile phones is not permitted within the warehouse.
7.4.3 Do not use personal radios/Walkman/iPod etc. while operating a forklift. Failure to comply will result in disciplinary action.
7.4.4 Noise cancelling head phones are not to be used while operating a forklift.”
[95] I also accept Mr Kirtlan’s evidence that it is impermissible for an operator to add a make-shift pouch on their forklift to hold a phone. The policy requires phones to be left in lockers. They are “not permitted within the warehouse”.
[96] Mr Carmody denied that he held the phone whilst driving the forklift. He said that he was communicating on his phone hands free whilst it was in the pouch.
[97] I prefer Mr Whitfield’s evidence that at times Mr Carmody was holding the phone while on the forklift.
[98] Mr Carmody’s explanation was that he was not “using” his phone contrary to policy because it was hands free and he remained in control of the forklift with his hands. 32
[99] This is a spurious proposition and one I reject. The policy makes no distinction between hand usage and hands free usage of mobile phones. Hands free usage also presents substantial safety risks as it involves the potential for distraction. Such risks are compounded by Mr Carmody’s evidence that whilst he used his phone hands free in the self-created pouch, from time to time he also placed headphones in his ears attached to the phone so that other workers could not hear his phone conversations. Even though Mr Carmody said that he could still hear external noise with headphones on, the safety risks are apparent. The allegation concerning unauthorised mobile phone use that was substantiated via the first disciplinary investigation indicates that Mr Carmody’s usage during the 28/29 March nightshift was not the first time Mr Carmody had disregarded the mobile phone policy. His indifference to the policy was brazen and occurred over a period of time.
[100] The circumstances of Mr Carmody’s conduct concerning the use of a mobile phone whilst operating his forklift rendered the misconduct serious misconduct.
Alleged failure to notify absence on 8 April 2019
[101] It is an agreed fact that Mr Carmody did not attend for duty on Monday 8 April 2019, as rostered.
[102] Mr Carmody’s explanation to Orora at the time and to ISS during the investigation was that he made an honest mistake. This was his evidence before me.
[103] I accept Mr Carmody’s evidence on this point. He failed to look diligently at the forward roster and identify that he was required to work that day, in accordance with his regular roster. Whilst the roster was regular, the circumstances leading up to that Monday had not been. Mr Carmody had been the subject of the first disciplinary process, and was on pre-arranged leave during the week preceding 8 April 2019. In those circumstances, coupled with his stress and anxiety arising from the disciplinary process and general circumstances, he was inattentive to the roster calendar. He thought he resumed work on Tuesday 9 April 2019, not Monday 8 April 2019. He did not attempt to cover up his error. It was a one-off. These are relevant factors in mitigation.
[104] I conclude that the failure to attend work on 8 April 2019 was a breach of duty warranting counselling. It was not, in context, a serious breach of duty warranting dismissal or forming part of a decision to dismiss.
Alleged dishonesty during the investigation into the second set of allegations
[105] During the investigation into the second set of allegations, on 10 April 2019 Mr Carmody told the employer and Orora that he was not sitting down and on his phone between 12.30am and 1.00am on 29 March 2019, but that he was loading Mr Whitfield’s truck and that his phone was on charge in the lunch room.
[106] Mr Carmody, in his evidence to the Commission, acknowledged that this was false. 33 At that time he was not loading Mr Whitfield’s truck but was sitting down on his phone in the lunch room or smoking area whilst Mr Whitfield was loading the truck.
[107] Ms Romanowski’s evidence was that she formed the view during the investigation that this aspect of Mr Carmody’s explanation was, in all probability false, as it did not accord with the times indicated on Mr Carmody’s phone for usage that he had showed her as part of the investigation.
[108] Both the evidence before me, including Mr Carmody’s acknowledgement, satisfy me that Mr Carmody gave false and misleading information to the investigation, and that he knowingly did so. I accept the employer’s submission that he did so in order to not disclose to Orora or the employer the fact that he had permitted Mr Whitfield to use his forklift to load the second and third loads onto the truck, instead of doing it himself. Mr Carmody’s evidence 34 was that he was concerned that he would be dismissed if this was known.
[109] Mr Carmody submits that he had no obligation during the second disciplinary investigation to disclose that Mr Whitfield had loaded his truck using Mr Carmody’s forklift as, he claims, allegation 1 as put to him in the letter of 9 April 2019 referred to his alleged failure to load the truck and nothing more. He says that he was warranted during the investigation to tell the employer that he declined to answer the question about who loaded the truck, and that he so declined. 35
[110] I do not agree that Mr Carmody was so justified. The employer’s allegation referred to breaching “the inherent requirements” of his role – which were to load trucks using his forklift. The employer asked him how Mr Whitfield’s truck came to be loaded. This was a reasonable question relevant to the employer forming a view about whether allegation 1 was substantiated or not. Mr Carmody’s refusal to elaborate was part of an attempt to cover up his wrongdoing, not the exercise of a legal right.
[111] In any event, Mr Carmody’s refusal to answer this question during the second investigation interview bears no relationship to whether his conduct allowing Mr Whitfield to use his forklift to load the tuck was a valid reason for dismissal. The Commission is not simply reviewing the employer’s decision for reasonableness. It is conducting its own inquiry into the facts and whether those facts establish misconduct that forms a valid reason for dismissal. Facts concerning the loading of Mr Whitfield’s truck are material to these proceedings and both Mr Carmody and ISS led evidence on those issues. I am in a position to make my own findings irrespective of those of the employer, and irrespective of how the employer framed the allegation it put to Mr Carmody, and I have done so.
[112] I conclude that Mr Carmody knowingly gave incorrect information to an internal investigation in order to cover up wrongdoing and that this was misconduct. Covering up wrongdoing compounded the wrongdoing. It was serious misconduct.
Conclusion on valid reason
[113] The misconduct I have found concerned multiple breaches of duty by Mr Carmody dealing with a variety of policies, procedures and employment obligations.
[114] Other than the failure to attend work on 8 April 2019, I conclude that Mr Carmody’s conduct during the 28/29 March nightshift concerning the loading of Mr Whitfield’s truck, that Mr Carmody’s conduct during the 28/29 March nightshift concerning his mobile phone usage and giving false and misleading information to the employer during the second disciplinary investigation individually and collectively were acts of serious misconduct.
[115] I further conclude that the circumstances of the misconduct, given that they involved known policies and procedures that were central to Mr Carmody’s obligations as a forklift driver, given that they occurred over a period of time and given that that they involved an attempt to mislead, struck at the trust and confidence required to sustain an employment relationship between Mr Carmody and his employer.
[116] As such, they individually and collectively constituted a sound, defensible and well-founded reason for dismissal. I so conclude.
Notification of the reason for dismissal (section 387(b))
[117] Mr Carmody was notified of the reason for dismissal in the termination letter of 18 April 2019.
Opportunity to respond (section 387(c))
[118] The evidence before me is that Mr Carmody was provided a clear and fair opportunity to respond to the allegations against him. I draw this conclusion with respect to both the first set of allegations and the second set.
[119] The first allegations letter of 1 April 2019, the second allegations letter of 9 April 2019 and the show cause letter of 16 April 2019 were all followed by meetings the purpose of which was for ISS (and Orora) to hear Mr Carmody’s response.
[120] Although each of these three meetings were scheduled within 24 hours of the allegations letters (and show cause letter) being received, and although this was a short period of time, I am satisfied in the circumstances that Mr Carmody had sufficient time and opportunity to prepare a considered response or to seek an extension of time if he felt unable to do so. The first meeting was rescheduled by 24 hours. By the time the second meeting on 10 April 2019 commenced, Mr Carmody had prepared a detailed written response. With respect to the 17 April 2019 meeting, his concern was not its timing but his ability to fuel his motor vehicle to attend. Orora supplied funds for fuel and Mr Carmody attended without protest.
[121] Mr Carmody submitted that whilst he had an opportunity to respond, it was unfair of the employer to require him to respond to an allegation that he was watching pornography at work. He said that such an allegation was offensive to him, was false, and even though it was found to be unsubstantiated it caused him great distress.
[122] One can greatly sympathise with an employee wrongly accused of watching pornography whilst at work. Whilst Mr Carmody was understandably distressed at the allegation, I am satisfied that the employer had a duty to investigate the allegation once it was reported to Orora and ISS by another employee that there was a belief that Mr Carmody had done so. I am satisfied that the employer did not act recklessly by including this allegation in the second allegations letter. Mr Carmody’s explanation was accepted by the employer. Upsetting as the allegation was, it was incumbent on ISS to investigate such reports particularly given the context in which it was also being alleged (and substantiated) that days prior Mr Carmody had been using his phone at work in dereliction of his duties.
[123] Mr Carmody advanced the further submission that he considered it unfair that Orora was a party to the decision to dismiss, as his employment was a matter between him and ISS.
[124] I do not accept this submission, for four reasons.
[125] Firstly, Mr Carmody knew from the time he was first employed that he was to be working at Orora and was required by ISS to comply with all relevant policies operating at the Orora site and take direction from Orora managers.
[126] Secondly, it was not inappropriate for ISS to include Mr Carmody’s managers from Orora in the disciplinary process or to seek their opinions on possible sanction at the conclusion of that process. Orora’s managers were the persons who were able to assess the merit or otherwise of Mr Carmody’s explanations given their knowledge of operating policies and procedures, and having conducted one-on-one sessions with warehouse personnel, including Mr Carmody.
[127] Thirdly, ISS has a contract to supply labour to Orora which enables Orora to determine which persons work in its facility.
[128] Fourthly, ISS did not abdicate to Orora its responsibilities as Mr Carmody’s employer. An ISS officer (Ms Romanowski) was embedded at the Orora site. The first and second disciplinary process was overseen by ISS. The decision to dismiss was made by ISS officers across 17 and 18 April 2019, knowing the views of Orora but exercising consideration independent of Orora. The decision was made by persons in ISS to whom the embedded ISS officer Ms Romanowski reported.
[129] An allied submission by Mr Carmody was that under the terms of his contract of employment with ISS 36 he was promised that “if your services are no longer required at Amcor [sic Orora], ISS will endeavour to relocate you to an alternate site”. Mr Carmody submits that if Orora wanted him dismissed, then ISS should have relocated him.
[130] This submission misconceives the nature of this contractual term in Mr Carmody’s employment contract, and of the reasons for his dismissal.
[131] Firstly, the contractual term does not sit in isolation from the contract as a whole. The contract goes on to provide for termination “in accordance with the conditions outlined in the CWA” (Collective Workplace Agreement). That Agreement provides a right to terminate for “conduct that would justify summary dismissal at common law”. 37
[132] Secondly, Mr Carmody was not dismissed on Orora’s say-so but because ISS formed the view that it had lost trust and confidence in him as its employee. That loss of trust and confidence was relevant to the employment relationship as a whole, not a specific work context.
[133] I conclude that ISS provided Mr Carmody a reasonable opportunity to respond to the allegations of misconduct levelled against him. He was not denied procedural fairness.
Opportunity for support person (section 387(d))
[134] Mr Carmody was afforded the opportunity to attend the disciplinary meetings of 3, 10 and 17 April with a support person. This was specifically made known to Mr Carmody in the two allegation letters and the show cause letter.
[135] Mr Carmody chose not to attend with a support person.
[136] I conclude that ISS did not unreasonably refuse Mr Carmody a support person.
Warnings concerning performance (section 387(e))
[137] Mr Carmody had been counselled by Mr Kirtlan on at least three occasions in the months prior to his dismissal (23 November 2018, 28 February 2019 and 28 March 2019) about his workplace behaviour, apparent lack of motivation and the impact this was having on those with whom he worked.
[138] Mr Carmody had also received a number of warnings prior to his dismissal. However, their relevance in the context of this matter has some unique limitations.
[139] Mr Carmody’s evidence was that he had previously been formally warned, a number of years ago, about for operating a forklift in a dangerous manner (speed).
[140] This is a relevant factor in that the subject matter of that warning relates to the reasonable expectation of Orora and ISS that a forklift driver is required to comply with the rules concerning the use and driving of a forklift, and that those rules are in part based on safety principles. Its limitation is simply that it was a historic warning and, whilst not stale, was in the past.
[141] The more contemporaneous warning before me is the first and final warning given on 8 April 2019 following the investigation into the first set of allegations. However, given the lag times associated with the employer becoming aware of the alleged conduct breaches forming the second set of allegations (6 April 2019) and the time taken to conclude the first investigation (week of 1 April to 8 April 2019), the utility of that first and final warning as a warning against which behaviour should be corrected is redundant. It simply was not possible for Mr Carmody to use the 8 April 2019 warning arising from the first set of allegations to correct the behaviour (of 28/29 March and 1 April 2019) which was the subject of the second set of allegations.
[142] Accordingly, I do not consider that the warning of 8 April 2019 has any efficacy in these proceeding. It does not weigh against Mr Carmody’s contention that his dismissal was unfair. The admitted conduct that was the subject of that warning remains relevant.
Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))
[143] ISS is a significant employer employing approximately 1200 persons.
[144] Although a labour supply and facilities management agency has unique challenges associated with the placement of its employees in client businesses, that is the business model it operates. It has dedicated human resources capability. Its size and human resource capability provides a basis to conclude that it has the capacity to establish policies concerning the conduct and well-being of its employees, monitor compliance with its policies and indirectly those of its client businesses, manage (in conjunction with clients) performance and conduct issues as they arise, and seek external advice on human resources or industrial matters where necessary.
[145] This capability was particularly evident with respect to the Orora site in Gawler where ISS has an embedded site manager attending to its interests.
Other matters (section 387(h))
Mitigation: personal circumstances
[146] In the context of considering valid reason, I have considered the circumstances advanced by Mr Carmody in mitigation. Principal amongst these was that Mr Carmody submits that he was suffering stress and anxiety in the six months preceding dismissal, that he had made that known to the employer and was taking prescription medication for depression.
[147] Since dismissal, Mr Carmody says that he has continued to struggle with stress and anxiety, and may need to do so in the years ahead. He said that his holiday to Vietnam post-dismissal was an opportunity to get away from those troubles.
[148] Whilst I did not receive medical evidence from Mr Carmody concerning his mental or physical health, his evidence about these matters was expressed in a genuine manner. Mental health issues are matters that are not easy to discuss, especially for some men. Mr Carmody was commendably strong enough to raise these matters with his manager and Mr Kirtlan displayed an appropriate degree of sensitivity to the issues. I note however the further evidence that Mr Carmody was cleared by a medical practitioner on 1 March 2019 as fit for work, that Mr Carmody told the show cause meeting on 17 April 2019 that his anxiety “had passed” and Mr Carmody’s evidence was that he has declined, to date, the option of seeing a psychologist or counsellor.
[149] In recommending to ISS that Mr Carmody be dismissed, Mr Kirtlan knew of and had helped Mr Carmody manage these personal circumstances.
[150] Mr Carmody also pointed to the impact the dismissal has had on him and his earning capacity and its compounding effect on his financial difficulties associated with a matrimonial breakdown. He was not able to immediately secure alternate work and although his search was not initially intensive he has now done so, four months later.
[151] In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of the conduct, as well as my overall findings concerning procedural fairness.
[152] I conclude that each of these considerations, whilst relevant, do not carry sufficient weight to set aside the breaches of duty and the valid reason they collectively constitute. These factors alone are not unique. They do not outweigh conduct in breach of policy or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 38
[153] I am not satisfied, in the absence of medical evidence, that the mental or physical health challenges faced by Mr Carmody explain to any relevant extent or mitigate his misconduct or that the employer failed to adequately take these into account. Nor am I satisfied that the impacts of dismissal on Mr Carmody render the dismissal harsh.
Mitigation: proportionality
[154] In a conduct matter such as this, it is relevant to consider whether dismissal was harsh in that dismissal (or summary dismissal) may be a disproportionate sanction to the misconduct.
[155] I have concluded that the misconduct was serious misconduct in that it involved known policies and procedures that were central to Mr Carmody’s obligations as a forklift driver, occurred over a period of time and involved an attempt to mislead.
[156] For these reasons I do not consider dismissal a disproportionate response by the employer. Mr Carmody displayed indifference to his employment obligations at least during the nightshift on 28/29 March. The breaches struck at the heart of the employment relationship and the duties Mr Carmody owed to not mislead and to comply with Orora’s and ISS’s policies and operating procedures as they related to conduct in the workplace and the operation of a forklift in the context of Orora’s warehouse operations.
Mitigation: access to long service leave
[157] Mr Carmody submits that his dismissal was harsh because it denied him potential access to pro rata long service leave. He says that Orora and the employer knew, as a consequence of his conversations with Mr Kirtlan on 28 March 2019, that he was waiting until his pro rata long service leave became available before making a firm decision whether to resign and relocate back to Melbourne.
[158] Under South Australian law, Mr Carmody would have been eligible for pro rata long service leave after seven years of continuous service, if he were to resign after that time or were he to be dismissed (other than for serious and wilful misconduct). 39
[159] At the date of termination, Mr Carmody had served approximately six years and five months.
[160] It is clear from the evidence before me that accessing pro rata long service leave was actively playing on Mr Carmody’s mind in the months prior to his termination as he contemplated his personal and work future. It is also likely that, for an employee experiencing the financial pressure of a matrimonial breakdown, accessing a lump sum pro rata long service leave payment on resignation may be a significant ameliorating issue.
[161] However, that an employer does not depart from applying an otherwise appropriate sanction for misconduct to accommodate an employee’s wishes to access a future entitlement contingent on a particular quantum of service is not unreasonable conduct by the employer. If an employee is keen to access that entitlement, it is that employee’s responsibility to align their workplace conduct to their employment obligations in order to not put potential access to the entitlement at risk.
[162] It was within Mr Carmody’s control to conduct himself in the weeks and months leading up to dismissal in a manner that did not breach policies and operating procedures. He did not do so and this gave rise to the allegations and those that were substantiated in both the first and the second disciplinary processes. His dismissal was based on his misconduct prior to his pro rata long service leave related entitlement potentially arising. It was not based upon matters beyond his control. Mr Carmody is not unique amongst employees who have failed to access contingent service related entitlements in such circumstances. Nor is he unique amongst those who have found that the Commission does not consider their dismissal harsh on that ground. 40
Conclusion
[163] This matter concerns summary dismissal for serious misconduct, albeit a dismissal where the employer elected to provide pay in lieu of notice that it was not required to give.
[164] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Carmody was harsh, unjust or unreasonable.
[165] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Carmody.
[166] However, in cases such as this, the employer carries an evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.
[167] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 41 as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[168] In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 42
“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”
[169] I have found that there were valid reasons for dismissal based on serious breaches of duty and in particular Mr Carmody’s conduct during the 28/29 March nightshift concerning the loading of Mr Whitfield’s truck, Mr Carmody’s conduct during the 28/29 March nightshift concerning his mobile phone usage and giving false and misleading information to the employer during the second disciplinary investigation.
[170] Collectively the serious misconduct established a well-founded loss by the employer of trust and confidence in Mr Carmody’s capacity to work according to the policies and operating procedures applied by both Orora and ISS.
[171] In these circumstances the dismissal was neither unjust nor unreasonable. There was a sound, defensible and well-founded reason for dismissal.
[172] One aspect of the employer’s decision-making process I have assessed for potential unfairness is the opaqueness associated with who actually made the decision to dismiss. On what was made known to him, Mr Carmody had reason to believe it was Ms Romanowski who did so, as she oversaw the disciplinary processes and signed-off on his show cause and termination letters. The employer’s response (F3, 17 June 2019) and materials and witness statements filed in these proceedings did not disclose otherwise. It was not until Ms Romonowski was asked questions during cross examination that it was revealed persons ‘higher’ up’ made the decision and instructed her to proceed with dismissal. Ms Romanowski was the intermediary between the final decision-maker and the dismissed.
[173] Although this is not such a case, one can readily conceive of circumstances where a failure to disclose who made a decision to dismiss (either directly, or by accepting an internal recommendation) could constitute a denial of procedural fairness. For example, relevant ‘history’ may exist between the decision-maker and the dismissed (such as prior workplace conflict) that compromises fair and independent judgment of the facts or the appropriate sanction.
[174] Whilst for an employer a decision to dismiss is often a business decision based on conduct, performance, or operational requirements, for an employee it is an intensely personal matter. Being dismissed by unknown persons in an opaque system of managerial hierarchy can add to a sense of frustration. It can leave questions unanswered, and may contribute to proceedings such as these being filed in search for answers. There are good reasons for medium and larger businesses requiring final decisions to dismiss to be made or authorised ‘up the line’; for example, this can add checks and balances that counter the impulsiveness of some managers. However, a failure of transparency risks unfairness.
[175] Whilst internal systems are matters for individual employers, for the Commission the statutory test is one of overall fairness, objectively assessed. Despite this gap in ISS’s case, I have concluded that there was no overall denial of procedural fairness to Mr Carmody in either its investigation or basis for dismissal. The procedures applied were generally fair and the decision to dismiss was left to ISS and was not predetermined.
[176] I have considered whether the dismissal was harsh in three contexts: whether it was harsh because of mitigating personal factors or impacts on Mr Carmody; whether it was a disproportionate response; and whether it was harsh because it denied Mr Carmody potential access to pro rata long service leave. I have concluded that none of these factors renders the dismissal harsh.
[177] Overall, Mr Carmody was not denied a fair go all round.
[178] As the dismissal was not unfair, I am not required to consider issues of remedy.
[179] For these reasons and in conjunction with the publication of this decision I issue an Order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
A. Carmody, on his own behalf
J. Moore and T. Madden, for the Respondent
Hearing details:
2019.
Adelaide.
27 and 28 August.
Printed by authority of the Commonwealth Government Printer
<PR711881>
1 ER2, ER5, ER7
2 Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509
3 DK2; DK8 EMS File 35814
4 DK11 EMS File 40392
5 DK11 EMS File 42065
6 DK2
7 A2 and ER1
8 ER2
9 A3 and ER3 page 2
10 ER5
11 DK1
12 A8
13 A5
14 ER6
15 ER7
16 A7 and ER8
17 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]
18 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
19 Ibid
20 except where the Small Business Fair Dismissal Code applies
21 King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
22 Edwards v Guidice (1999) 94 FCR 561 [6]-[7]
23 Evidence of Neville Whitfield Audio 27 March 2019 1221; R1; R5 Answer to Question 6
24 R1
25 Evidence of Alan Carmody Audio 27 March 2019 1114, 1120 - 1125
26 A1 para 10
27 R1
28 Evidence of Alan Carmody Audio 27 March 2019 1120
29 DK2
30 Evidence of Alan Carmody Audio 27 March 2019 1137, 1140
31 DK4 para 7.4
32 Evidence of Alan Carmody Audio 27 March 2019 1137
33 Evidence of Alan Carmody Audio 27 March 2019 1110, 1128
34 Evidence of Alan Carmody Audio 27 March 2019 1133, 1141
35 Evidence of Alan Carmody Audio 27 March 2019 1117
36 R3
37 ISS Integrated Services Pty Ltd Amcor Ltd Glass Operations Production Collective Workplace Agreement Clause 21.3
38 For example, Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [48]
39 Long Service Leave Act 1987 (SA) sections 5(3) and (4)
40 For example, Graham v Walker Australia Pty Ltd[2017] FWC 5136 at [89]
41 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
42 [2013] FWCFB 6191
1