Andrew Webb v The Smith's Snackfood Company Ltd

[2022] FWC 2973

[2022] FWC 2973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Andrew Webb
v

The Smith’s Snackfood Company Ltd

(C2022/3343)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 9 NOVEMBER 2022

Dispute about matters arising under enterprise agreement and the NES [s186(6)] – maintenance electrician – fire emergency – whether final warning consistent with disciplinary procedure in enterprise agreement – insubordination – investigation procedurally fair – revised warning not disproportionate – compliance with enterprise agreement established

1. On 7 June 2022 Andrew Webb (Mr Webb or the applicant), represented by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), applied to the Commission under s 739 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with a dispute.

1. The respondent is the Smith’s Snackfood Company Ltd (Smith’s or the respondent), part of the PepsiCo group of companies.

1. The subject matter of the dispute is a decision by Smith’s to issue an “absolute final warning” (in terms subsequently revised) to Mr Webb following a fire in a baking oven on 19 April 2022.

1. Mr Webb seeks an order removing the warning.

1. Smith’s oppose the application.

1. The dispute came before the Commission under the dispute settlement procedure of the Smith’s Snackfood Company (South Australia) Enterprise Agreement 2022 – 2025 (EA). The dispute was not resolved at the workplace level. It was referred to the Commission under cl 6.7 of the EA.

1. Conferences were conducted by the Commission on 15 June and 11 and 19 July 2022. The dispute did not resolve. The AMWU sought arbitration.

1. On 20 July 2022 I issued directions. Materials were filed by the AMWU and Smith’s.

1. On 15 August 2022 I granted permission for the respondent to be legally represented.[1]

1. On 30 August 2022 I issued an order for production of CCTV footage at the applicant’s request.

1. Arbitration originally listed for 7 September was deferred to 20 October 2022, by consent, due to unavailability of the applicant’s representative.

1. Further interlocutory proceedings occurred on 19 October 2022, the day prior to the hearing. An application that day by Mr Webb sought leave to file two late witness statements (of a Mr Iannella and Mr Bell) and to subpoena a Mr Jolly. For reasons advised during the hearing, I decided ex tempore to grant leave, subject to conditions, for the late filing of the witness statements. I declined to issue the subpoena having regard to its lateness and what I assessed as evidence from Mr Jolly of tangential relevance only.

1. I heard the matter by video conference on 20 October 2022.

1. At the commencement of proceedings, both parties confirmed that they had no objection to me arbitrating the matter notwithstanding my earlier conciliation.

Evidence

1. I received written and oral evidence from eight persons:

Called by Mr Webb

·   Andrew Webb (applicant and Maintenance Electrician);[2]

·   Cameron Wallace (Maintenance Electrician);[3]

·   Tony Iannella (Assistant Planner, formerly Dayshift Team Leader);[4] and

·   Mark Bell (Maintenance Fitter).[5]

Called by Smith’s

·   Michael Bland (former Engineering Nightshift Frontline Manager and former Maintenance Manager);[6]

·   Spiro Nassis (Site Expert Trainer);[7]

·   Michael De Lang (Technical Manager);[8] and

·   Katherine Spillane (Human Resources Manager).[9]

1. All witnesses other than Mr Nassis were cross examined. Some but not all facts are in dispute. A Statement of Agreed Facts is in evidence.[10] The disputed facts largely concern interactions between Mr Webb and Mr Bland and related conduct by Mr Webb on the morning of 19 April 2022. I deal with those issues in the body of this decision.

1. I note that CCTV footage of the incident, the subject of some (but not all) of the events on 19 April 2022, is in evidence and was admitted by consent.[11]

1. It is necessary to deal with the conditional basis on which I admitted the late evidence of Mr Iannella and Mr Bell. In granting leave, I imposed three conditions. Firstly, that I would rule on relevance once I heard the case as a whole. Secondly, that both Mr Iannella and Mr Bell be made available for cross examination. Thirdly, that Smith’s be granted leave to lead further evidence in-chief from Mr De Lang in relation to issues raised in the statements of Mr Iannella and Mr Bell.

1. Mr Iannella and Mr Bell were made available for cross examination, and Smith’s led further evidence in-chief from Mr De Lang.

1. As to relevance, the evidence of both Mr Iannella and Mr Bell did not concern the events of 19 April 2022 but rather their experience of dealing with a manager (Mr Bland) and their opinion on his relationship with the workforce. More particularly, their evidence concerned a meeting in late August or early September 2022 between them jointly and Mr De Lang, convened by Mr De Lang, in which Mr De Lang invited each to express their opinion on that subject.

1. In only limited respects I consider this late evidence relevant. Mr Webb’s application was filed on 7 June 2022. It concerns a warning issued on 23 May 2022 (later revised) relating to alleged conduct on 19 April 2022. The discussions convened by Mr De Lang occurred three months after proceedings were filed and did not specifically involve or concern Mr Webb or the 19 April 2022 events or subsequent investigation. Whilst evidence of ongoing workplace conduct may in some instances be relevant to determining a dispute, this application largely turns on past events. However, as the matters in issue concern, in part, the relationship between Mr Webb and Mr Bland as it existed on 19 April 2022 then, in a limited sense, I consider the evidence of Mr Iannella and Mr Bell to be relevant contextually, at least insofar as they gave evidence of their direct dealings with Mr Bland in and around that time. To that limited extent their evidence corroborated some of the evidence of Mr Webb, and to a degree Mr Bland’s own evidence, of his relationship with the day-shift workforce. However, evidence of opinions by Mr Bell and Mr Iannella of what other employees felt about Mr Bland is impressionistic and hearsay, and I give it little weight.

1. Accordingly paragraphs 4 and 6 of Mr Iannella’s statement and paragraphs 5 and 6 of Mr Bell’s statement and their related oral evidence, to the extent it concerns their direct dealings with Mr Bland, is of some relevance, though tangential as it does not speak specifically as to Mr Webb’s dealings with Mr Bland or vice versa. The remaining aspects of these statements are of little relevance except that they provide some general context to Mr Bland’s own evidence as to his relationship with the day-shift workforce.

1. That said, both Mr Iannella and Mr Bell gave evidence carefully and Mr Bell in particular had good recall.

1. I now make some further observations on the oral evidence and particularly that of Mr Webb and Mr Bland.

1. Mr Wallace and Mr Nassis both gave evidence relevant to the events of 19 April 2022. Each did so in a straightforward manner. Albeit limited in scope, their evidence is reliable with one caveat concerning one aspect of Mr Nassis’s evidence where it differs from Mr Webb’s, which I deal with in the body of this decision.

1. Mr De Lang was an impressive witness. His evidence related primarily to events following the 19 April 2022 fire and Smith’s subsequent investigation into Mr Bland’s complaint about Mr Webb’s alleged conduct. Mr De Lang had good recall. He did not convey the impression of colouring his evidence to suit the employer’s case. He was willing to accept or concede propositions advanced by Mr Webb but remained firm in his narrative of events.

1. Ms Spillane gave evidence conscientiously. Her evidence primarily concerned the conduct of the investigation and issuing of the warning(s). It was reliable on factual matters, noting however that findings and conclusions reached by Ms Spillane and others investigating the matter were their findings and conclusions only, and not evidence of what in fact occurred.

1. Mr Webb gave evidence in a considered and careful manner though was somewhat defensive in cross examination. His evidence was consistent with the available CCTV footage but on the critical disputed evidence of what was said between he and Mr Bland in the control room on 19 April 2022, there is neither CCTV footage nor independent corroboration. 

1. Mr Bland also gave evidence with an air of surety and frankness but occasional casualness. His casualness did not tend to colour his evidence as he remained attentive and respectful. He was firm bordering on assertive yet impressively consistent in cross examination on the disputed facts. His evidence was largely reliable with the caveats identified in this decision.

1. On only a few, but nonetheless critical issues decisive to this matter, do I need determine whether I prefer the evidence of Mr Webb or Mr Bland. I deal with these issues on their merits in the body of this decision.

1. In determining those matters I utilise tools commonly available to first-instance decision makers, such as the manner in which evidence was given, its reliability and consistency under cross examination, a witnesses level of recall, the extent of independent corroboration, and plausibility, including having regard to surrounding circumstances and the documentary record.

1. In determining this matter I have regard to all material before me.

Facts

Enterprise Agreement

1. The industrial instrument relevant to the dispute is the Smith’s Snackfood Company (South Australia) Enterprise Agreement 2022 – 2025.[12]

1. The EA covers persons employed in South Australia performing work governed by classifications set out in the EA.

1. The AMWU is an employee organisation covered by the EA, together with two other trade unions.

1. The EA was made on 18 February 2022 and approved by the Commission on 4 March 2022. It operated from 11 March 2022. It has not reached its nominal expiry date (28 February 2025).

Agreed facts

1. Mr Webb and Smith’s have agreed the following.

1.   “The Respondent owns and operates a food production facility at 553-567 South Road, Regency Park, in the State of South Australia (the Regency Park Site).

2.   The Respondent is a part of the PepsiCo group of companies.

3.   The Respondent operates a Reading Baking System (RBS Oven) at the Regency Park Site which is used to produce Red Rock Deli baked products.

4.   The RBS Oven:

a.   is approximately 25 meters long, 2 meters high and 1.5 meters wide;

b.   is powered by 2 gas burners;

c.   has a steel conveyor belt which transports product for cooking through the oven;

d.   feeds an external conveyor belt which transports cooked product to be packed;

e.   has 8 access doors; and

f.    has signage placed above the doors which state “Do not open oven doors when there is a fire inside”.

5.   The RBS Oven is electronically locked unless safety conditions are met.

6.   The safety conditions of the RBS Oven are monitored by a Safety Controller software package (Safety PLC). The safety conditions can be modified within Safety PLC. Access to Safety PLC is governed by a password.

7.   The computer system to access Safety PLC is located in the office in the workshop at the Regency Park Site.

8.   The Respondent operates a management of change (MOC) process.

9.   On 4 and 5 December 2013, David Randell sent emails to various personnel including Andrew Webb regarding the application of the MOC process.[13]

10.  The Respondent applies the PepsiCo Global Code of Conduct to its employees. Mr Webb participated in Code of Conduct training on 13 October 2021…[14]

11.  Andrew Webb is employed by the Respondent as day shift maintenance electrician at the Regency Park Site. Mr Webb’s position includes day-to-day maintenance, repairs and upgrades of machines, equipment and control systems within the Regency Park Site.

12.  Mr Webb has been employed in as a maintenance electrician since 1999.

13.  On 19 April 2022, Mr Webb attended work at the Regency Park Site in the capacity of day shift maintenance electrician.

14.  On 19 April 2022, Michael Bland attended work at the Regency Park Site. Mr Bland is a fire warden for the Regency Park Site.

15.  On 19 April 2022, Mr Webb’s position reported to Mr Bland.

16.  On 19 April 2022, Spiro Nassis attended work at the Regency Park Site in the capacity of site expert trainer. Mr Nassis is a fire warden for the Regency Park Site.

17.  On 19 April 2022, a fire occurred in the RBS Oven at or around 6:05am.

18.  Mr Webb evacuated to the evacuation point when he heard the fire alarm.

19.  The Metropolitan Fire Service (the MFS) were called to the Regency Park Site to attend to the fire.

20.  The MFS sought access to the inside of the RBS Oven to contain the fire inside it.

21.  Mr Nassis spoke to Mr Webb at the evacuation point on behalf of the MFS and requested that he override the Safety PLC.

22.  Mr Webb and Mr Nassis proceeded to the workshop office.

23.  At the workshop office, Mr Webb identified to Mr Nassis that he would need managerial permission to override the Safety PLC, after which Mr Nassis left the workshop office to obtain the permission.

24.  Mr Bland entered the workshop office and spoke to Mr Webb. The discussion occurred for approximately 45 seconds and when Mr Bland left, Mr Webb followed him to the RBS Oven.

25.  On 22 April 2022, the Respondent issued a letter of allegations to Mr Webb.[15]

26.  On 5 May 2022, Mr Webb met with Michael De Lang and Katherine Spillane to provide responses to the letter of allegations. Mr Webb was supported in this meeting by Mark Plunkett, AMWU Organiser.

27.  Mr Webb provided a written response to the letter of allegations...[16]

28.  On 23 May 2022, Mr Webb and Mr Plunkett met with met with Michael De Lang and Katherine Spillane. At this meeting, the Respondent issued a final written warning to Mr Webb…[17]

29.  On 15 August 2022, the Respondent modified and re-issued the final written warning to Mr Webb.[18]” (footnotes not included in original)

1. There are other largely non-contentious facts relevant to this chronology not set out in the Statement of Agreed Facts. I make the following further findings.

Prior disciplinary record of Mr Webb

1. On 9 August 2019, Mr Webb received a written warning concerning speaking to certain employees in an allegedly disrespectful manner.[19] The warning provided that further misconduct may lead to disciplinary action including termination.

1. Mr Webb, assisted by the AMWU, disputed the allegations and refused to sign the warning.

1. Under the terms of the EA, the warning lapsed two years after being issued.[20]

1. Smith’s do not rely on the warning in these proceedings other than to submit that Mr Webb was aware of the nature of disciplinary sanctions and their consequences under the EA.

1. Given the terms of the EA, I do not have regard to the 2019 warning in determining this matter.

Prior counselling of Mr Bland

1. Mr Bland commenced employment with Smith’s in mid-2021, some ten months prior to April 2022.[21]

1. Not long after Mr Bland’s commencement, Mr De Lang received complaints from some employees about Mr Bland’s managerial style.

1. On 29 June 2021, Mr Bland attended a meeting with Mr De Lang, Mr Webb and a team leader. Mr Bland was encouraged to apologise for his tone and, in the words of Mr De Lang, “getting in their faces”.[22] Mr Bland did so. Mr De Lang then privately counselled Mr Bland about his style of communication.[23]

1. Mr Bland tried to improve his communication style. Occasionally Mr Bland went to others such as Mr Bell for advice on how to improve his communication style and relationship with the day-shift workforce.

Role of Mr Bland from 21 March 2022

1. When first employed, Mr Bland was Engineering Nightshift Frontline Manager. On 18 March 2022 Mr De Lang announced by email that Mr Bland had been temporarily seconded to the position of Maintenance Manager commencing 21 March 2022, as the incumbent was due to leave.

1. In this role, Mr Bland reported to Mr De Lang.

1. In this role, Mr Bland had more interaction with the day-shift workforce.

1. Mr Bland was also a fire warden.

1. Mr Bland experienced difficulties in establishing an effective relationship with the day-shift workforce and, according to Messrs Iannella, Bell and Mr Bland himself, they he.

1. Mr Bland resigned from the business in or around September 2022.

Conflict between Mr Webb and Mr Bland 13 April 2022

1. At a team briefing on 13 April 2022 attended by Mr Bland and Mr Webb, Mr Webb voiced concerns about Smith’s approach to COVID-19 management.

1. Immediately after the team meeting, Mr Bland took Mr Webb and the Health and Safety Representative (Mr Jolly) aside for discussion of their concerns.

1. A disagreement then occurred between Mr Webb and Mr Bland as to whether Smith’s were applying sufficiently strict rules around COVID management. Rather than continue the disagreement, Mr Bland took Mr Webb and Mr Jolly to the office of the Health and Safety Manager and told them to discuss it with her. She was not present. Mr Bland then took Mr Webb and Mr Jolly back to the shop floor with the disagreement unresolved.

1. Mr Webb considered that Mr Bland mishandled the issue, failed to listen to his concerns, was abrupt in taking he and Mr Jolly to the safety manager’s office and was disinterested in securing a resolution.

1. Mr Webb considered this incident to be a further negative in an already strained relationship with Mr Bland.

Complaint by Mr Bland concerning Mr Webb’s conduct

1. Following the oven room fire on 19 April 2022, Mr Bland made a complaint about Mr Webb’s alleged conduct.

1. The fire occurred at around 6.05am. It was extinguished some half an hour later by the MFS.

1. Later that morning, just prior to noon, Mr Bland approached Mr De Lang. Mr Bland told Mr De Lang that there had been an incident of concern between he and Mr Webb that morning which he wanted to raise. Mr De Lang said that the immediate priority was getting the factory up and running again, that he should make notes of what had occurred, and the company would address it in due course.

1. Over the next 24 hours, Mr Bland drafted an email of what he says occurred.

1. At 4.23pm the following day (20 April 2022) Mr Bland sent Mr De Lang the following email:

“Dear Michael,

I had an incident with Andrew refusing to listening (sic) to me while the fire was spreading in RBS. Please see my statement below:

The fireman in charge asked me to get the oven doors open, because the fire was spreading up the oven. I asked Spiro to get the keys to open the oven side doors, because the firemen wanted to spray inside the oven. Spiro told me that he would fetch the keys and that he would get an electrician to disconnect the safety interlock. Spiro was gone for a couple of minutes and the fire was spreading more and the fireman told me that they would have to break the doors open. I told the fireman that I would quickly go see where the keys and electrician were. I met Spiro on my way out of RBS and he told me that he had spoken to Andrew and that Andrew was in the workshop and he didn’t know when Andrew was coming down to RBS. I then went to the workshop and found Andrew in the electrical office in the workshop on the pc.

I told Andrew that I need him to override the inter locking system on the oven doors and to shut the power down in RBS for the firemen to put the fire out. Andrew told me that he will not take any instructions from me. I told him that I am fire warden and must listen to me. Andrew said again that he won’t take any instructions from me. I asked Andrew what he was doing and he told me that he is busy trying to remotely unlock the oven doors. I told him it is taking too long and is now pointless, because they are about to cut the locks off anyway. I then said he needs to come and rather just turn the power off at the ovens, because of all the water in the area. I left the office and Andrew came with me. As we were leaving the workshop, I told Andrew that I also need the roller doors to open and Andrew said again that he won’t take any instructions from me because of my bad safety track record and referred to this weekend. I told Andrew that I was also not happy with his track record, referring to how he speaks to me. Andrew then walked down to RBS with me and turned the power off to the ovens. The firemen ended up cutting the doors open and got the fire under control.

This type of insubordination cannot be tolerated, especially while we have firemen trying to put a fire out.

Kind regards
Michael”

1. Having received the email, Mr De Lang forwarded it to Ms Spillane. Ms Spillane discussed the email with Mr De Lang and also the Plant Manager, Mr Stakic.

1. The three formed the view that the email raised a serious issue, warranted investigation and that Mr Webb should be stood down pending investigation.

1. The following day (21 April) Ms Spillane drafted a stand down notice which Mr De Lang signed.

Investigation of Mr Bland’s complaint

1. On the morning of 21 April 2022 Mr De Lang gave Mr Webb, in-person, the stand down notice.[24] The notice suspended Mr Webb on full pay while the matter was being investigated. The notice provided no particulars of the allegations other than referring to “a serious incident…with regards to your behaviour”. Mr De Lang told him that it concerned his behaviour on 19 April.[25] For his part, Mr Webb responded that he wanted management to continue to address his concerns about Mr Bland’s alleged conduct on 13 April. Mr Webb and Mr De Lang then briefly further discussed that (13 April) matter.[26]

1. Later that day, Ms Spillane and Mr De Lang took a formal statement from Mr Bland. It read:

“The fire alarm went off at approximately 6:05am on Tuesday, 19 April 2022 and all employees evacuated and went to the assembly areas. I went to the assembly area by the fire tank near the southwestern gate of the building near the waste area. There were team members from production and maintenance also there. I then went to the shed where the fire indicator panel is stored, which provided the location of the fire in the RBS (baked production line) and I walked down toward the area.

On my way, I checked the cereals production line area for smoke, there was no smoke, so I walked back up the passageway because I saw the fire truck lights and it was there I met the fire brigade.

Three fireman and I went to RBS. I took a fireman with me, and we attempted to open the yellow roller door at RBS. The door would not open due to the fire interlocks. We then went through the big door at raw materials warehouse and went into the small pedestrian door at RBS opposite the oven. When we opened the door, a yellow bin was smoldering, and Spiro Nassis was already there and I saw him with a water hose putting the fire out in the bin. The fireman with me took the hose to carry on watering down the bin because it started smoldering again. Then all of sudden flames burst out on the conveyor belt on the RBS line, which was only smoldering beforehand. The fireman then started spraying water onto the fire with the existing hose in the room. The other fireman then went to fetch their own hoses from the firetruck. There wasn't a lot of space at the small pedestrian door to get into the area with the hoses, so I used a pallet truck to move the pallets out of the way to provide greater access to the area.

We wanted to take the yellow bin outside, but we could not get the big steel roller door open either due the firelock system.

The firemen were spraying the fire, but it wasn't stopping and started spreading back up the oven. They were trying to spray at the front end and that wasn't working, so they started spraying the burner unit closest to the fire as well.

The fireman in charge wanted to open the doors to, the oven but they couldn't, and I tried to help them, but we needed the keys and for the electrical interlocks to be deactivated so it could be opened. The oven has a safety interlock system so that you cannot open the doors if it is over 100 degrees and due to the fire it was over 100 degrees. I asked Spiro to get the keys and he said it needed to have interlocks electrically deactivated, so I asked him to get an electrician as well. Spiro then left to get the keys and an electrician.

After a couple of minutes, the fireman came in with a crowbar and told me they needed to break open the oven door so they could spray water inside because the fire was getting worse and moving up the oven and they were focusing their hoses on the main burning unit as that is the gas supply to the burner.

The fireman told me again that they would have to break the door to the oven open. I asked them if I could quickly go and see where the keys and electrician were as Spiro not returned yet.

I met Spiro on my way out of RBS and he told me that he had spoken to Andrew Webb our electrician and that Andrew was in the workshop and he did not know when Andrew was coming down to RBS.

I then went to the workshop and found Andrew in the electricians office on the computer. I didn't know what he was doing on the computer so I approached Andrew and said, "I need you to override the interlocking system on the oven doors and to shut the power down in RBS so the fireman could put the fire out". I was concerned about the fireman being electrocuted because there was water everywhere from sprinklers and hoses in the RBS area and I needed his help.

Andrew abruptly told me "I will not take any instructions from you". I was shocked by his response as I had expected him to help and follow me. There was a fire out of control in the factory so I then told Andrew, "I am a fire warden and you must listen to me". Andrew abruptly told me again "I will not take instructions from you".

I then asked Andrew "what are you doing on the computer?", because he wasn't listening to me. Andrew responded "I am busy trying to unlock the oven doors remotely". By now I knew it was getting too late to try and open the doors electronically because Andrew was still trying to open the doors remotely on the computer.

I said to Andrew "it is taking too long and is now pointless because the firemen are about to cut the locks off the oven doors anyway". I then said to Andrew "you need to come with me and turn the power off at the ovens because of all the water in the area".
I left the office and then Andrew followed me. As we were leaving the workshop, I told Andrew, "I also need the roller doors opened". This was because I wanted to remove the bin that had been smoldering.

Andrew again abruptly told me again, "I won't take instructions from you because of your bad track record after the last week". I was on my way to the fire and I wasn't sure what he was referring to.

I said to Andrew, "Andrew I am not happy with your track record either" and I was referring to the way he had spoken to me. As we walked out of the workshop, opposite the welding bay, Andrew then said to me rudely, "do you want me to go home?". I said, "Andrew, really?" as we were in a crisis and he was talking nonsense. I walked towards RBS as we needed to get the fire sorted out and Andrew followed me.

We went to RBS and Andrew turned the power off and by now the fireman had already cut the locks off the oven doors so they could get to the fire.”

1. The following day (22 April) Ms Spillane and Mr De Lang interviewed Mr Nassis.

1. Ms Spillane then proceeded to draft a letter of allegations.

1. At about 3.30pm that day (22 April) Mr Bland was sent the letter of allegations.[27]

1. It was alleged that Mr Webb “repeatedly refused to follow lawful and reasonable directions…to assist with a fire crisis”. Particulars were provided.

1. On 5 May 2022 Mr De Lang and Ms Spillane met Mr Webb, supported by Mr Plunkett of the AMWU, to obtain Mr Webb’s response. Mr Webb had prepared a written response which he tabled.[28] Discussion of Mr Webb’s response ensued.

1. After caucusing privately, Ms Spillane and Mr De Lang advised that they would need to consider Mr Webb’s response further before arriving at a decision.

1. Ms Spillane and Mr De Lang re-interviewed Mr Bland on 13 May 2022. Mr Bland provided a statement in reply after reading Mr Webb’s statement.[29]

1. On 18 May 2022 Ms Spillane, Mr De Lang and Mr Stakic discussed the issue. They reviewed the statements. Mr De Lang had also earlier viewed the CCTV footage (retaining footage of the oven room fire only for future safety training purposes). They preferred the narrative of Mr Bland to that of Mr Webb. They decided the allegations were substantiated and that Mr Webb had breached the company’s Code of Conduct.

1. Ms Spillane, Mr De Lang and Mr Stakic discussed sanction. They considered the option of termination but in light of the length of Mr Webb’s tenure and, in their view, that Mr Webb had “belatedly sought to assist”, a final written warning was appropriate.[30]

The written warning of 23 May 2022

1. Ms Spillane drafted the warning, referring to it as an ‘Absolute Final Written Warning”.   It provided:[31]

“On 21 April 2022 you were stood down on full pay pending an investigation into allegations of serious breaches made against you with regards to your behaviour.

On 5 May 2022, the Company met with you to provide you with the opportunity to respond to the allegations provided to you on 22 April 2022. During the meeting you also provided a written response denying the allegations.

The Company has carefully evaluated and considered the evidence presented during the investigation and the allegations have been substantiated on the balance of probabilities. That being:

·   On Tuesday 19 April 2022, you were insubordinate and repeatedly refused to follow lawful and reasonable directions from your Manager, Michael Bland to perform duties to assist with a fire crisis on the RBS baked production line, specifically:

·  When Michael approached you in the electrician's office and stated words to the effect, "I need you to override the interlocking system on the oven doors and shut the power down in RBS so the fireman can put the fire out", you abruptly responded by stating words to the effect of "I will not take instructions from you" and

·  When Michael replied with words to the effect, "I am a fire warden and you must listen to me", you abruptly responded again stating words to the effect of "I will not take instructions from you" and

·  When Michael stated words to the effect, "you need to come with me and turn the power off at the ovens because of all the water in the area" and added as you were both leaving the workshop "I also need the roller doors opened", you abruptly responded again stating words to the effect of "I won't take instructions from you because of your bad track record after the last week".

Your actions constitute a serious breach of the PepsiCo Code of Conduct and expectations of behaviour. The Company finds your behaviour unacceptable and is extremely concerned with your conduct.

You need to understand and appreciate how close you came to being terminated due to your misconduct. Had you not ultimately carried out what was required of you, your employment would have been terminated. Nonetheless your repeated statement to the effect that you won't take instructions from Michael Bland is conduct that is inconsistent with your obligations as an employee and will not be tolerated going forward. The Company's trust and confidence in you as an employee is severely eroded and accordingly we have determined to issue you with an Absolute Final Written Warning. This document is to confirm that you have been issued with an Absolute Final Written
Warning.

Should there be no improvement in your behaviour and/or further misconduct occurs, further disciplinary action will be instituted which in all probability will result in the termination of your employment with the Company.

PepsiCo is committed to assisting you to manage your conduct, accordingly you will be required to agree to the following actions and conditions:

·   You will behave in accordance with PepsiCo Values and Behaviours at all times.

·   You will behave in accordance with PepsiCo Code of Conduct at all times.

·   You will abide by All Company Policies and Procedures at all times.

·   You will adhere to lawful and reasonable instructions issued to you by any manager or supervisor. (It is not acceptable to debate these instructions and delay responding to them by reference to prior events, you deem unacceptable).

Andrew you need to understand the seriousness of this matter and how close you came to having your employment with the Company terminated. The Company will not tolerate any further misconduct on your part or conduct that is in breach of the PepsiCo Code of Conduct. I hope that you will work constructively with me to address your unacceptable behaviour.

A copy of this record will be kept on your personnel file.”

1. On 23 May 2022 Mr De Lang and Ms Spillane met with Mr Webb, again assisted by Mr Plunkett, at which time they announced the investigation outcome and gave Mr Webb the written warning. Mr Webb refused to sign it.

1. On 7 June 2022 Mr Webb filed a dispute in the Commission.

The revised written warning 15 August 2022

1. Following a Commission conference on 11 July 2022, Smith’s gave further consideration to the terms of its warning.

1. In an endeavour to resolve the matter, on 12 July 2022 Smith’s proposed revised terms (removing the word “absolute” and amending “you were insubordinate and repeatedly refused to follow lawful and reasonable directions” to read “you were insubordinate in that you stated your refusal to follow reasonable and lawful directions”).

1. The revised terms did not settle the matter. Smith’s nonetheless re-issued the warning in revised terms.

1. The revised warning was issued on 15 August 2022.[32]

1. It is the revised warning which, at the date of hearing, remains on Mr Webb’s personnel record.

Other findings

1. Where appropriate, I make further findings in the body of this decision.

Question to be determined

1. The parties were directed to agree the question to be arbitrated.

1. The agreed question is as follows:

“Was the issuing of a final written warning to Andrew Webb in relation to his conduct on 19 April 2022 consistent with the application of clause 13 of the Agreement?”

Submissions

Mr Webb[33]

1. Mr Webb submits that the events of 19 April 2022, and in particular his conduct, were incapable of warranting disciplinary action in accordance with cl 13.5.2 of the EA.

1. More specifically, Mr Webb submits that it was not reasonably open to Smith’s to conclude, as it did, that he “was insubordinate and repeatedly refused to follow lawful and reasonable directions to assist in the fire that occurred at the Regency Park site on 19 April”, and that it is also not reasonably open to the Commission to so find.

1. Mr Webb submits that the version of his conversation with Mr Bland as advanced by Mr Bland is inaccurate and should not be relied upon. Mr Webb refutes the claim that he initially refused to follow a lawful and reasonable instruction.

1. Mr Webb submits that his training in company policy obliged him to seek direction from a senior member of the company’s technical management when pursuing either of the two options available for opening the RBS oven door once the Safety PLC system was in place.

1. Mr Webb submits that he explained to Mr Bland why he could not immediately comply with his request to override the Safety PLC system or apply a bridging procedure and remain consistent with policy and his training. Mr Webb submits that he also gave this explanation to Mr Nassis, and as such was not targeting personal malice or disrespect towards Mr Bland.

1. Specifically, Mr Webb denies that he told Mr Bland, in respect to requests to override the oven doors, isolate power and open a roller door, “I will not take instructions from you” and “I won’t take instructions from you because of your bad track record after the last week”.

1. Rather, Mr Webb submits that it was Mr Bland who was rude in allegedly saying to Mr Webb, as they exited the control room, “you people are all the same, you hide behind safety”.

1. Mr Webb submits that he did comply with all directions that he had authority to perform.

1. It follows that Mr Webb answers ‘no’ to the question to be determined.

1. In so doing, Mr Webb seeks an order rescinding the disciplinary warning from his employment record.

Smith’s[34]

1. Smith’s submit that Mr Webb’s conduct on 19 April 2022 was misconduct in that he initially failed to follow lawful and reasonable instructions from Mr Bland, and was insubordinate in doing so. That Mr Webb subsequently complied does not set aside his initial refusal and insubordination.

1. Smith’s submit that Mr Webb’s conduct was inconsistent with his employment obligations, and Smith’s Code of Conduct.

1. Smith’s submit that the evidence of both Mr Bland and Mr Nassis is reliable and consistent with its finding that the allegations were made out, and are a proper basis for the Commission to conclude that both limbs of misconduct occurred (initial failure to follow lawful and reasonable instructions, and insubordination).

1. The misconduct was serious in that it occurred in the midst of a fire crisis and was directed at his immediate manager who was also a fire warden (Mr Bland).

1. A final written warning was warranted in the circumstances. It was a reasonable and proportionate disciplinary response, consistent with the EA.

1. Smith’s submit that Mr Webb had a full and fair opportunity to consider the allegations and respond to them prior to making its disciplinary decision.

1. Smith’s submit that in light of the above there are no grounds on which the Commission should interfere with its warning of 23 May 2022 as revised on 15 August 2022.

Jurisdiction

1. The role of the Commission in this matter is one of private arbitration, defined by the terms of the EA.

1. Section 739(4) of the FW Act provides that “if, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so”. However, the Commission “must not exercise any powers limited by the term” (s 793(3)), and “must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties” (which includes an enterprise agreement) (s 93(5)).

1. Clauses 6.7 and 6.8 of the EA relevantly provide:

“6.7        If a dispute in relation to a matter arising under this Agreement is not resolved at the workplace in accordance with the procedure in clause 6.3, and all agreed steps for resolving the dispute have been taken, a Senior Company representative will provide to the employee/s, in writing, the Company outcome to the dispute. If the dispute remains unresolved it may be referred to the Fair Work Commission or the relevant statutory authority for resolution by mediation and/or conciliation and, if the dispute remains unresolved, by arbitration. This includes the exercising of the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

6.8      The decision of the Fair Work Commission following any arbitration will bind the parties, subject to either party exercising a right of appeal.”

1. Jurisdictional issues are not in dispute.

1. It is agreed, and I so find, that the dispute is a matter arising under the EA, in that it concerns the application of cl 13 “Counselling & Disciplinary Procedure” and whether the requirements of that clause have been met in relation to the warning issued to Mr Webb on 23 May 2022 as revised on 15 August 2022.

1. It is also agreed, and I so find, that the preconditions in cl 6.3 requiring the dispute to have been first dealt with at the workplace level before being referred to the Commission have been met.

Consideration

Disputes concerning disciplinary matters

1. Subject to the terms of a relevant industrial instrument, the Commission has a well-established approach to the arbitration of disputes concerning disciplinary matters. This approach was summarised by Deputy President Asbury in Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd:[35]

“[157] Although dealing with reasonableness in a different context, these principles are
apposite in the present case. In the context of determining the present dispute, I have applied the following principles:

·The Commission should not interfere with the right of an employer to determine the policies and standards in its workplace, the breach of which will result in a disciplinary penalty, or the employer’s right to impose a disciplinary penalty for breach of those policies and standards, unless there is injustice or unreasonableness associated with the policies and procedures or their implementation in a particular case;

·Where an employee challenges a disciplinary penalty contending that he or she is not guilty of the misconduct on which the penalty is based, or that the penalty is disproportionate to the misconduct, the Commission should determine whether the conduct occurred and what it involved;

·The well-established standard of proof laid down in Briginshaw should be applied to such determination, in light of the seriousness of the allegation and the repercussions for the employee concerned;

·Whether the imposition of a particular disciplinary penalty on an employee is unreasonable will depend on all of the relevant circumstances and is not determined on an abstract basis;

·The Commission should not substitute its own view for that of the employer or stand in the shoes of the employer and determine whether in the Commission’s view a disciplinary penalty was appropriate;

·It does not need to be demonstrated by the employer that the disciplinary penalty was issued was the preferable or most appropriate course of action, or was in accordance with “best practice”;

·The standard is not that a penalty is so unreasonable in the circumstances in which it is imposed, that no reasonable person would have responded in that way; and

·Where a disciplinary penalty is within a range of reasonable responses to substantiated conduct, the Commission will not interfere with the penalty.”

1. I apply this approach whilst having regard to the specific requirement in cl 13.1.1 of the EA that any disciplinary procedures by Smith’s be “orderly and just”.

Clause 13 of the EA

1. Clause 13 of the EA, which is the subject of the question to be determined, provides:

“13. COUNSELLING & DISCIPLINARY PROCEDURE

13.1 The primary purpose of this procedure is to ensure all employees are informed of and given the opportunity to meet the standards required by the Company. This procedure also provides for:

13.1.1  an orderly and just method of reviewing an issue on its merits; and

13.1.2  a means of resolving an issue without disruption to work and without prejudice to final settlement.

13.2 Issues warranting counselling or discipline are separated into two types:

13.2.1 Behavioural Patterns

These are continuing or repeated breaches of Company standards which as a one-off issue may not be serious enough to warrant counselling but through repetition become a performance problem. Examples are unavailability for work, punctuality, excessive personal leave, patterns of non-attendance, or work performance.

13.2.2 Behavioural Incidents

These are specific incidents where an employee’s conduct breaches generally accepted or Company-specific standards of behaviour. Examples include abusive or threatening language, drug-related problems, refusal to comply with instructions, non-compliance with OH&S and/or work procedures.

13.3 The Company retains its right for summary dismissal in appropriate circumstances.

13.4 Four methods of counselling and discipline apply:

13.4.1 Informal Counselling

This is a ‘caution on the run’ where an employee is informally reminded or informed of a problem, typically by a Team Coordinator. The purpose is solely to make the employee aware of the problem so that it can be rectified. This counselling may be delivered in a one-on-one or group setting and no personnel file record is made.

13.4.2 Formal Counselling

This involves an employee being called into a discussion away from the immediate work area and informed of a problem by a Team Leader or Operations Resource. A personnel file note will be made to record that the counselling occurred but is not considered a written warning.

13.4.3 First Written Warning

This involves a formal discussion between an employee and an Operations Resource or Manager. At the employee's request, a representative or co-worker of the employee’s choice may be present. The employee and the representatives will be provided with the opportunity to write comments and to receive a copy of the written warning. The First Written Warning includes a reference that a continuation or repeat of the problem may lead to the termination of employment.

13.4.4 Final Written Warning

This involves a formal discussion between an employee and a Manager. At the employee's request a representative or employee of their choice may be present. The employee and the employee's representative,
 will be provided with the opportunity to write comments and to receive a copy of the written warning. The Final Written Warning includes a reference that a continuation or repeat of the problem will lead to the termination of employment.” (emphasis in original)

1. Clause 13.1.1 of the EA requires disciplinary procedures to be “orderly and just”.

1. In the context of cl 13 read as a whole, and without being definitive, I interpret the meaning of the word “just” to encompass notions of substantive fairness. I also interpret the meaning of the word “orderly” to encompass notions of procedural fairness. Thus, I interpret the collective phrase “orderly and just” to require an objective assessment of both the merit of the disciplinary response by Smith’s and the process by which the disciplinary response was reached. Neither Mr Webb nor Smith’s demur from such an approach.

1. For example, if Mr Webb did not engage in misconduct in relation to the fire event on 19 April 2022, the disciplinary response by Smith’s would not have been “just”.

1. Similarly, if the disciplinary sanction applied to any substantiated misconduct by Mr Webb was disproportionate to the misconduct or did not appropriately take into account relevant mitigating circumstances, is also may not have been “just”.

1. Further, if the process by which the disciplinary response was reached was not procedurally fair, it would not have been “orderly or just”.

Issues requiring determination

1. The question for determination asks whether issuing a final written warning to Mr Webb in relation to his conduct on 19 April 2022 was consistent with cl 13 of the EA.

1. To answer this question, a number of sub-issues arise:

·   Did Mr Webb fail to follow a lawful and reasonable direction on 19 April?

·   Was Mr Webb insubordinate on 19 April?

·   Did any misconduct or breach by Mr Webb warrant a final warning?

·   Was the disciplinary procedure compliant with cl 13 of the EA?

1. I now deal with these issues.

Did Mr Webb fail to follow a lawful and reasonable direction?

1. Whether Mr Webb followed a lawful and reasonable direction is a question of fact. It is a finding to be made having regard to the terms of the direction and what Mr Webb did or did not do.

1. Importantly, and relevantly in this matter, this finding is not to be made simply by reference to what Mr Webb may have said or not have said. It is to be made by reference to what Mr Webb did or did not do.

1. For the following reasons, I find without hesitation that Mr Webb did not fail to follow lawful and reasonable directions on 19 April 2022.

1. Three directions were given to Mr Webb in relation to the fire event:

1.   To override the safety controller system (Safety PLC) so as to allow the oven doors to be opened remotely without being forced open by fire officers. This direction was first given to Mr Webb by Mr Nassis and then repeated a few minutes later by Mr Bland in the control room;

2.   To isolate power to the oven room so as to remove the risk of electrocution as a result of water used to douse the fire being on plant and on the floor. This direction was given to Mr Webb by Mr Bland in the control room; and

3.   To open a roller door to allow access and egress into the oven room by fire officers. This direction was given to Mr Webb by Mr Bland as they exited the control room.

1. Mr Webb complied with each of these directions.

Direction to override the safety software

1. In relation to the first direction, I accept Mr Webb’s evidence that the Safety PLC system could be overridden by logging into company software and entering a password. However, only a manager at a certain level (not Mr Bland) had the authority and thus the password to override the safety control system.

1. Thus, to comply with the direction, Mr Webb was required to log into the system and obtain the consent of an appropriately accredited manager (evidenced by being provided the override password).

1. I also accept the evidence of Mr Webb, corroborated by Mr Wallace, that whilst there is a manual way to open the ovens (by key) the existence of the key was not known (and had not been made known) to Mr Webb prior to 19 April 2022.

1. Upon being asked by Mr Nassis to override the Safety PLC system, Mr Webb immediately accompanied Mr Nassis to the control room where Mr Webb had access to the computer system used by the electricians. Mr Webb discovered that the override required managerial permissions. He told Mr Nassis to go off and get permission while he continued to search for a solution. Mr Nassis left.

1. Whilst seeking a manager capable of providing permission, Mr Nassis first encountered Mr Gallasch and then Mr Bland. Mr Bland was urgently looking for Mr Webb because the fire officers had moments earlier told Mr Bland they intended to manually break the locks on the oven doors to gain access to the fire (and had commenced doing so), and Mr Bland had asked them to refrain if possible while he tried to get the electrician to open them remotely or by key to avoid damaging the plant. Mr Nassis told Mr Bland that Mr Webb was in the control room.

1. Mr Bland went straight to the control room. The control room is a considerable distance from the oven room (some 200 metres and at least a two minute walk along a breezeway and through the workshop).

1. Mr Bland entered the control room frustrated at finding Mr Webb physically remote from the oven room and not knowing what he was doing on the computer in the midst of a fire emergency. I make findings below about what was then said between Mr Bland and Mr Webb. 

1. Suffice for current purposes, Mr Webb was already trying to remotely override the Safety PLC system and had already asked Mr Nassis to locate a manager with requisite authority. When Mr Bland made this same request and then asked Mr Webb what he was doing on the computer Mr Webb told him that he was trying to remotely unlock the system. Mr Bland, believing that Mr Webb should have been in the oven room trying to override the system and isolating power, not 200 metres away in a control room, then told Mr Webb that it was taking too long and that he needed Mr Webb to come with him to the oven room and isolate the power.

1. At this point Mr Webb stopped trying to remotely override the Safety PLC because Mr Bland had told him to stop doing so and do something else.

Direction to isolate power to the oven room

1. Upon being told by Mr Bland that power to the oven room needed to be isolated, Mr Webb walked briskly with Mr Bland to the oven room. The isolator was in the room detached from the oven. Upon entering the room together, they took a safe route around the oven to access the isolator. Mr Webb proceeded to isolate the power. Neither Mr Webb’s nor Mr Bland’s evidence suggests otherwise, and the CCTV footage supports this.

Direction to open the roller door

1. The roller door is immediately adjacent to the door entry into the oven room. The roller door is operated electronically by manual button. Opening the roller door required Mr Webb’s physical presence at the door.

1. Upon reaching the oven room and immediately prior to entry, Mr Webb tried to open the roller door. It did not open. It was apparent to Mr Webb that due to the fire the electronic opening system had been disabled.

1. Due to the urgent need to switch off power to the oven room, Mr Webb alongside Mr Bland then entered the oven room at pace.

1. Thus, Mr Webb tried, albeit unsuccessfully, to comply with the direction to open the roller door.

1. For these reasons, I find that whilst each of the directions given to Mr Webb was lawful and reasonable, he took all reasonable steps to comply with them and did so in a timely manner so far as was possible and within the remit of his authority and training.

Was Mr Webb insubordinate?

1. I now turn to whether Mr Webb was insubordinate to Mr Bland during the fire event.

1. Both Mr Webb and Mr Bland’s evidence was that once each arrived at the oven room, their interaction was co-operative and professional and that no criticism of Mr Bland nor insubordination was levelled by Mr Webb from that time.

1. The insubordination is said to have occurred in the control room minutes earlier.

1. I have found that Mr Webb went to the control room for proper reasons associated with dealing with the emergency, and that Mr Bland entered the control room minutes later unaware why Mr Webb was in the control room.

1. I also find that upon entering the control room Mr Bland was, given the urgency of the moment, frustrated at having to travel some distance away from the seat of the fire to locate Mr Webb. Mr Bland’s claim in cross examination[36] that he “had nothing to be annoyed about” and was “not angry” when entering the control room was unimpressive.

1. A discussion ensued.

1. It was short. Both Mr Webb and Mr Bland agree that it occupied around 45 seconds. In the sterile atmosphere of a court room that appears very short for such a controversy to arise. In the midst of a fire emergency, events moved at pace.

1. Two versions of the conversation are advanced.

1. Mr Webb’s version:[37]

(Mr Webb seated in the control room at the computer observing the computer screen. The control room is a small annex to the workshop)

(Mr Bland enters; Mr Webb turns towards Mr Bland)

Mr Bland:       I need you to override the system.

Mr Webb:I’ve looked at it, I am looking at it now, and I cannot physically do that because it’s locked.

Mr Bland:       No, you need to.

Mr Webb:I can’t because it’s locked, and I don’t have the password. I am locked out.

Mr Bland:(voice raised) I need you to turn the power off and open the roller door. You need to do what I say, I am the fire warden.

Mr Bland exits the control room and Mr Webb follows. As they briskly walk through the workshop and enter the breezeway enroute to the oven room, Mr Bland says:

Mr Bland:       You people are all the same, you hide behind safety.

1. On Mr Webb’s version there is no insubordination on his part, no stated refusal to follow instruction and in fact rudeness in response by Mr Bland.

1. Mr Bland’s version:[38]

(Mr Webb seated in the control room at the computer observing the computer screen)

(Mr Bland enters; Mr Webb turns towards Mr Bland)

Mr Bland:I need you to override the interlocking system on the oven doors and shut the power down in the RBS so the firemen can put the fire out.

Mr Webb:(abruptly) I will not take instructions from you.

Mr Bland:(voice raised) I am a fire warden and you must listen to me.

Mr Webb:(again abruptly) I will not take instructions from you.

Mr Bland:What are you doing on the computer?

Mr Webb:I am busy trying to unlock the oven doors remotely.

(Mr Bland looks at the computer screen and forms a view that remote override will take too long)

Mr Bland:It is taking too long and now pointless because the firemen are about to cut the locks off the oven doors anyway. You need to come with me and turn the power off at the ovens because of all the water in the area.

Mr Bland exits the control room and Mr Webb follows. They briskly walk through the workshop and enter the breezeway enroute to the oven room. As they walk through the workshop:

Mr Bland:       I also need the roller doors opened.

Mr Webb:I won’t take instructions from you because of your bad track record after last week.

Mr Bland:       Andrew I am not happy with your track record either.

Mr Webb:       Do you want me to go home?

Mr Bland:       Andrew, really?

There is no further conversation until they enter the oven room some 200 metres away.

1. On Mr Bland’s version there is repeated insubordination by Mr Webb in the form of a stated refusal to follow instructions, and no rudeness on Mr Bland’s part.

1. For the reasons that follow, I generally prefer Mr Bland’s version with the following qualifications.

1. I accept Mr Webb’s evidence that he (Mr Webb) stated to Mr Bland during the brief conversation words to the effect that “I cannot physically do that because it’s locked and I don’t have the password.” Mr Bland’s evidence that this was not said as there was “no time for chit chat”[39] was inconsistent with his evidence that Mr Webb was busy trying to unlock the oven doors remotely.[40]

1. I also accept Mr Webb’s evidence that Mr Bland said to him, as they walked through the workshop into the breezeway, words to the effect “you people are all the same, you hide behind safety”. A finding to this effect is consistent with my finding that Mr Bland was frustrated when entering the control room. That Mr Bland made a reference to “safety” by way of retort is not implausible given that it was the Safety PLC system he wanted overridden but which Mr Webb was unable to do. Given that Mr Bland took exception to being spoken to in an insubordinate manner moments earlier, a retort to this effect immediately following is not implausible. It most likely was said by Mr Bland in conjunction with him saying, “Andrew I am not happy with your track record either”.

1. In other words, I have concluded that both Mr Webb and Mr Bland omitted from their evidence those parts of the conversation that were damaging to them or a poor reflection on them (that is, the inappropriate or insubordinate words they used to the other) whilst otherwise giving generally accurate evidence of what else was said between them.

1. I make these findings having regard to the Briginshaw[41] standard of proof recognising that the conduct alleged against Mr Webb is serious in the context of his employment obligations in that it carried potential disciplinary sanction including termination.

1. My reasons for generally preferring Mr Bland’s evidence as to the conversation are as follows.

1. Firstly, Mr Bland’s evidence was generally credible, being frankly given and remaining largely consistent under cross examination.

1. Secondly, plausibility having regard to past surrounding circumstances.

1. The relationship between Mr Bland and Mr Webb and vice versa on the morning of 19 April 2022 immediately prior to the fire incident was strained and one of mutual disregard.

1. Ten months prior, Mr Webb had caused Mr Bland embarrassment when a complaint was made to management about Mr Bland’s communication style, causing Mr Bland as a new manager to be counselled a short time after starting in the business. Further, a mere six days prior to the fire incident, a dispute had arisen over safety issues between Mr Webb and Mr Bland. That dispute arose in circumstances where their relationship was already strained. Accordingly, by the morning of 19 April 2022 Mr Webb already had formed the view that Mr Bland was a poor manager, with poor technical knowledge, poor communication skills and had mishandled a disagreement over safety six days prior.

1. Given this background, it is entirely plausible that an argument involving rudeness and disrespect occurred between the two in which Mr Webb said words to the effect “I won’t take instructions from you” and also added “because of your bad track record after last week”, and that Mr Bland said in reply “I am not happy with your track record either; you people are all the same, you hide behind safety”. A finding that Mr Webb specifically referred to the events of “last week” is particularly plausible given the conflict between the two over a safety issue the week prior.

1. Thirdly, plausibility having regard to Mr Webb’s state of mind towards Mr Bland immediately prior to Mr Bland entering the control room.

1. On this, the evidence of Mr Webb and Mr Nassis is relevant.

1. There is a difference between the evidence of Mr Nassis and Mr Webb as to whether, on the morning of 19 April 2022, Mr Webb asked Mr Nassis to locate a specific manager (Mr Gallasch) to approve the override of the Safety PLC system or whether the request was simply made in non-specific terms (to locate “a manager”).

1. Mr Webb said that by name he requested Mr Gallasch be present after Mr Nassis said he would locate Mr Bland. Mr Nassis did not recall Mr Webb naming Mr Gallasch. However, Mr Nassis agreed that he (Mr Nassis) did in fact then proceed to locate Mr Gallasch. On this issue, I prefer Mr Webb’s evidence. It was specific and consistent with the fact that Mr Nassis spoke to Mr Gallasch before speaking to Mr Bland. I take into account that Mr Nassis did not discount the possibility that a request had been made in such specific terms but simply that he did not recall Mr Webb doing so.

1. It is an agreed fact that it was in the control room in the presence of Mr Nassis that Mr Webb identified that he required managerial permission to override the Safety PLC system.[42]

1. Thus I find, preferring on this aspect Mr Webb’s evidence to that of Mr Nassis,[43] that Mr Webb told Mr Nassis that he (Mr Webb) needed management to authorise the override of the Safety PLC system, that Mr Nassis then responded, “I will go and get Michael Bland” and that Mr Webb then replied, “can you get Brenton Gallasch as well”.

1. In cross examination Mr Webb agreed that Mr Gallasch did not have the requisite authority to authorise the override of the Safety PLC system.[44] Mr Webb’s evidence of his reason for requesting Mr Gallasch’s presence went beyond his evidence in chief that he (Mr Webb) wanted multiple managers to verify the serious act of overriding the Safety PLC system. He agreed that he wanted Mr Gallasch’s presence because he had lost trust in Mr Bland and wanted a witness to the conversation.[45]

1. In other words, Mr Webb’s state of mind immediately prior to Mr Bland entering the control room was negatively disposed towards Mr Bland such that his personal distrust of Mr Bland was prominent in his mind despite the urgency of responding to the fire event.

1. In these circumstances, it is plausible that Mr Webb was insubordinate to Mr Bland at the outset of their conversation when he saw that it was Mr Bland and not Mr Gallasch who entered the control room.

1. Fourthly, plausibility having regard to Mr Bland’s conduct following the fire incident.

1. Within hours of the fire incident, Mr Bland, of his own motion approached his manager (Mr De Lang) and told him that he wanted to report an incident with Mr Webb that morning. Mr Bland then followed this up by writing an email sent the next day setting out the issue he wanted to report and have investigated. The issue was referred to in the email as “Andrew refusing to listen (sic) to me while the fire was spreading in the RBS”.[46]

1. It is implausible that Mr Bland would report an incident and seek formal investigation if something of significant concern had not occurred. Mr Bland made his report promptly after the incident despite the many priorities associated with resuming production after the fire. It is implausible that a busy manager in the wake of a fire would concoct a disciplinary report against an employee if they did not believe that employee to have misconducted themselves in a serious manner.

1. I take into account that Mr Bland had his own predetermined view towards day-shift employees including Mr Webb, dating back to the June 2021 complaint and his apology. However, the evidence does not support a finding that Mr Bland was so negatively disposed towards Mr Webb personally that in the wake of the fire event he would concoct a false story to expose Mr Webb to disciplinary investigation based on made-up allegations.

1. Fifthly, and relevant to credit, are aspects of implausibility in other parts of Mr Webb’s evidence. For example, Mr Webb’s evidence[47] that on 19 April 2022 he did not know that Mr Bland was the Maintenance Manger flies in the face of the fact that Mr Webb was sent (and was a named recipient of) Mr De Lang’s email of 18 March 2022 advising of that fact. Mr Webb’s evidence that he did not read that email was unimpressive. Further, Mr Webb’s witness statement to the Commission makes no reference to him telling Mr Bland in the control room that Mr Nassis had asked him to remotely override the ovens (a finding I have made) yet Mr Webb’s statement to the investigators says that he “informed him” (Mr Bland) of that fact.

1. Counsel for Mr Webb submitted that given that Mr Webb did what he was instructed, it is implausible (“inherently improbable”) that he told Mr Bland that he would not follow instructions.

1. This is a submission of substance and one to which I have given considerable thought despite ultimately reaching the conclusion that Mr Webb was in fact insubordinate to Mr Bland. Whilst superficially attractive, for three primary reasons I do not accept this submission.

1. Firstly, for the aforementioned reasons, the evidence of Mr Bland as to the conversation is generally preferred.

1. Secondly, the words used by Mr Webb were not simply “I won’t take instructions”. He added, each time he said this, the words “from you”. In other words, the subject of Mr Webb’s thrice repeated remark was Mr Bland as the source of the instruction, not the instruction itself. Seen in this way, it is not inconsistent that Mr Webb nonetheless performed or tried to perform the instructions. This much is readily apparent with respect to the first instruction (to override the safety control on the oven doors). Before Mr Bland entered the control room, Mr Webb was already doing this at the request of Mr Nassis. With respect to the second instruction (isolate power) Mr Webb’s evidence was that he himself considered it a safety risk for live power and water to be in proximity to each other. Isolating the power was consistent with his own safety assessment. With respect to the third instruction (to open the roller door) Mr Webb tried to do this as they approached the oven room. By then, the heat of the argument had somewhat calmed. Even though he did so at the request of Mr Bland, it was a request made only after Mr Webb had already twice been insubordinate.

1. Thirdly, whilst no doubt unusual, doing something is not evidence that a person did not say that they would not do it. The circumstances on the morning of 19 April 2022 were out of the ordinary, with time being of the essence given the fire event. The evidence of both Mr Webb and Mr Bland was that as they walked the distance to the oven room and then entered the room the situation between themselves, whilst remaining uncomfortable, progressively settled. Understandably, as each reached the seat of the fire their focus turned to the serious situation at hand and not their mutual dislike for the other. The CCTV footage suggests communication and attention to the task once both persons entered the oven room. In these unusual circumstances, Mr Webb proceeded to do what was required of him despite having been insubordinate minutes earlier.

1. For these reasons, I find that Mr Webb was insubordinate to Mr Bland on three occasions, the first two in the control room and the third when exiting the control room and walking through the workshop.

Did any misconduct or breach by Mr Webb warrant a final warning?

1. The insubordination occurred in context.

1. Mr Bland, upon entry to the control room, was agitated and frustrated both in demeanour and tone.

1. Mr Bland was a manager who had rushed from the seat of the fire to the other side of the factory to locate an electrician to perform an urgent task. He was bound to be showing strain. I take into account that an element of Mr Bland’s frustrated demeanour upon entry to the control room was not simply the strain of the moment but also his assumption that Mr Webb was unreasonably in the control room and divorced from the fire response.

1. That was an unreasonable assumption. Mr Webb was in the control room for good reason already trying to perform one of the very tasks Mr Bland then asked of him. The fact Mr Webb could not complete the task was not his fault. It was Smith’s Safety PLC system that compelled managerial authorisation to remotely unlock the ovens.

1. However, I do not find that Mr Bland provoked the insubordination. Mr Bland’s first statement upon entry was not to question Mr Webb’s presence at the computer. It was to direct him, in an assertive tone consistent with the urgency of the moment, to override the Safety PLC system. That direction was met with an insubordinate response. It was only after the first stated refusal to follow his instructions that Mr Bland further raised his voice.

1. I also take into account that a fire crisis was an unusual circumstance where conduct was impulsive and time did not allow for considered or pre-determined conversation.

1. However, these contextual factors do not, considered overall, mitigate the seriousness of the insubordination.

1. The fact that the relationship between Mr Webb and Mr Bland was poor due to prior events explains but does not excuse the insubordination by Mr Webb nor subsequent rudeness by Mr Bland.

1. Although unplanned, the insubordination was the expression of how Mr Webb felt about Mr Bland and, whilst not witnessed by others, it challenged Mr Bland’s authority as both manager and fire warden.

1. The insubordination was repeated albeit over a very brief period. It occurred whilst Mr Webb was seated, and then a final time whilst walking out of the workshop. There was no excuse for repeating the insubordination a second or third time, once Mr Webb was told to do what he was being asked.

1. That it was insubordination to a manager who was also a fire warden added to its seriousness. Compliance with instructions from fire wardens in the midst of a fire event is a self-evident obligation. This notwithstanding, Mr Webb repeated the insubordination a second and third time.

1. The active fire event was a situation of emergency and urgency. Mr Webb’s individual or collective disrespect of a manager in such a moment ought not have been part of his response. Using that moment to state a refusal to accept the authority of Mr Bland was poor judgement. In that moment of emergency, it mattered not whether Mr Webb’s views about Mr Bland’s communication style or technical know-how were well-founded or shared by others. Mr Webb’s duty was to put his personal views aside and deal with the emergency at hand. In that moment, by word he failed to do so. He used language that had the potential to complicate the fire response.

1. In a fire crisis, the consequence of delay caused by a challenge to the manager’s authority is the antithesis of the communication required between employee and manager.

1. I take into account that Mr Bland appeared to not know that the Safety PLC system was password locked and that Mr Webb explained this to Mr Bland. The explanation was appropriate and not insubordinate. However, explaining why he could not remotely open the ovens does not mitigate the insubordinate language otherwise used, targeted as it was at instructions from Mr Bland personally.

1. That Mr Bland raised his voice and subsequently made an inappropriate retort on leaving the control room does not mitigate the insubordination. As noted, the raised voice only occurred once Mr Bland was first told that his instructions would not be taken. Mr Bland’s inappropriate comment about employees hiding behind safety, as disrespectful as it was, was said only after Mr Webb had thrice told Mr Bland he would not take his instructions.

1. In mitigation though is the fact that Mr Webb’s actions (as distinct from words) meant that the potential the insubordination had to complicate the fire response was not realised. Mr Webb rose from the computer and left the control room with Mr Bland when Mr Bland told Mr Webb to follow him to the oven room and isolate power. Once out of the workshop and its control room annex, as both men progressively walked the 200 metres towards the oven room, their argument did not continue. Each then bit their tongue for the greater good. For that, each, including Mr Webb, is to be given credit. That Mr Webb did so, and then without further argument tried to open the roller door and then successfully isolated power in the oven room does not excuse his earlier insubordination but contextualises it as a few moments of serious disrespect and thoughtlessness that were then followed by better judgement.

1. A final warning was only one of a number of disciplinary options available to Smith’s under the terms of the EA.

1. Smith’s had the right to terminate on notice or dismiss summarily for misconduct or, at the other end of the scale, apply a lesser response such as counselling.

1. As noted, it is not for the Commission to decide what disciplinary course an employer ought to take but to rather decide whether the course taken was, in the words of the Smith’s EA, “orderly and just”.

1. Given my finding that the repeated insubordination was serious and had the potential to (but did not in fact) compromise the fire response, I do not consider Smith’s response in issuing a final warning to have been disproportionate or unjust.

1. Whilst it was open to Smith’s to administer a lesser sanction (such as a warning rather than a final warning), that the insubordination occurred in the context of an active fire event and with only limited contextual mitigation leads me to conclude that the sanction chosen, being a final warning, was not disproportionate and thus was reasonably open to the employer.

1. Clearly the final warning itself was a lesser sanction than summary dismissal or dismissal on notice. It had the effect of enabling Mr Webb to keep his job. The conclusion by Smith’s to the effect that the employment relationship could be salvaged despite the insubordination was reasonably open given that Mr Webb exercised better judgement once approaching the oven room and did what was required of him.

1. However, two aspects of the terms of the final warning of 23 May 2022 were questionable. Referring to the final warning as an “absolute” final warning in circumstances where there was no other operative warning let alone final warning on Mr Webb’s record was pointless and confusing. Further, the 23 May 2022 warning was poorly worded in that it did not clearly explain whether Mr Webb’s misconduct was failing to do what he was asked, or for insubordination, or for both.

1. With one exception, the revised warning of 15 August 2022 addressed these issues and referenced the final warning to concern the insubordination only. This was reflective of Ms Spillane’s view that Mr Webb would have been terminated but for the fact that he did undertake the directed tasks on 19 April 2022.

1. The exception is the use of the word “ultimately’ in the sentence “had you not ultimately carried out what was required of you, your employment would have been terminated”. The word “ultimately” infers belated compliance only, which is not accurate. As I have found, Mr Webb  was acting to comply with instructions prior to, during and following the insubordinate verbal altercation he had with Mr Bland. The word “ultimately” should be excised from the revised warning.

Was the disciplinary process compliant with cl 13 of the EA?

1. The evidence before the Commission clearly establishes that an orderly process of investigation was undertaken by Smith’s. The investigators gave balanced thought to their task. Before deciding what to do, they sought to establish what had occurred. They did not pre-judge the matter.

1. They took statements from relevant persons, and upon receiving Mr Webb’s statement, decided to re-interview Mr Bland and secure a further statement.

1. They provided Mr Webb and his union support person notice of the allegations and gave considered attention to Mr Webb’s detailed response.

1. I find the disciplinary process to have been compliant with cl 13 of the EA.

1. In so concluding, I indicate that, apart from excising the word “ultimately” from the revised warning, the two year period during which the warning operates for the purposes of cl 13.5.3 of the EA should be two years from 23 May 2022, not from 15 August 2022. In circumstances where Mr Webb was under an operative warning from 23 May 2022 that was revised by decision of Smith’s, it would not be just or consistent with cl 13 of the EA for the warning to operate beyond 22 May 2024.

Conclusion

1. Clause 13 of the EA requires disciplinary procedures to be “orderly and just”. I have observed that this phrase requires an objective assessment of both the merit of the disciplinary response by Smith’s and the process by which the disciplinary response was reached.

1. I have made findings in relation to each matter.

1. I have found that whilst each of the directions given to Mr Webb was lawful and reasonable, he took all reasonable steps to comply with them and did so in a timely manner so far as was possible and within the remit of his authority and training.

1. However, I have concluded that Mr Webb was insubordinate on three occasions in quick succession on 19 April 2022 and that the insubordination, whilst unplanned, was serious in the context of a fire response notwithstanding that Mr Webb otherwise undertook the tasks required of him.

1. I have concluded that the disciplinary sanction of a final warning for insubordination in the terms issued on 23 May 2022 as revised on 15 August 2022, together with my determination that the word “ultimately” be additionally excised, was just in that issuing a final warning was reasonably open to the employer.

1. I have concluded that the disciplinary procedure associated with the investigation of the matter by Smith’s was procedurally fair.

1. Given these findings and conclusions, I conclude that the final written warning issued by Smith’s to Mr Webb in relation to his conduct on 19 April 2022, on the terms that I have determined, was consistent with cl 13 of the EA.

1. The question for determination is:

“Was the issuing of a final written warning to Andrew Webb in relation to his conduct on 19 April 2022 consistent with the application of clause 13 of the Agreement?”

1. The answer to the question is ‘yes’

1. Having answered the question in this manner, I make one concluding observation. It is entirely understandable that Mr Webb, supported by the AMWU, notified this dispute. At the time of doing so, the operative warning asserted that Mr Webb had been insubordinate and had failed to follow instructions but did so only belatedly. In this decision I have found that Mr Webb did not fail to follow instructions at any time during the fire event on 19 April 2022. To that extent, and despite the insubordination he directed at Mr Bland, Mr Webb’s application has had the effect of setting the record straight with respect to his actions on that day. Had Smith’s not revised the terms of the warning, I would have answered the question differently as a warning premised on a finding that Mr Webb had failed to follow instructions would not have been just.

1. The dispute is determined accordingly. I direct that the word “ultimately” be removed from the revised warning, and that the warning does not remain in place beyond 22 May 2024.

DEPUTY PRESIDENT

Appearances:

Ms K Tobin with Mr M Plunkett, on behalf of Andrew Webb

Mr B Cooper, with permission, on behalf of The Smith’s Snackfood Company Ltd

Hearing details:

2022
Adelaide (by video)
20 October

[1] Email ‘Chambers – Anderson DP’ 15 August 2022 12.19pm

[2] A7 (including Attachments A and B) and A8

[3] A4

[4] A5

[5] A6

[6] R2 (including MB1 to MB2)

[7] R1 (including SN1)

[8] R3 (including Attachments 1 and 2 and MDL1)

[9] R4 (including KS1 to KS11)

[10] A1

[11] A2

[12] A3

[13] A7 Attachment B

[14] A7 Attachment A

[15] KS4

[16] KS5

[17] KS7

[18] KS8

[19] KS9

[20] Clause 13.5.3

[21] Recording of hearing at 4:56:23 – 4:56:26

[22] KS5

[23] Recording of hearing at 6:17:41 – 6:20:26

[24] KS11

[25] R3 paragraph 11

[26] R3 paragraph 12

[27] KS4

[28] KS5

[29] KS6

[30] R4 paragraph 19

[31] KS7

[32] KS8

[33] Mr Webb Submissions 5 August 2022 and Submissions in Reply 26 August 2022

[34] Submission 14 June 2022 and 19 August 2022

[35] [2022] FWC 1699

[36] Recording of hearing at 5:13:34 - 5:15:13

[37] A7 paragraphs 26 and 27; KS5page 2 (dot point 5)

[38] MB1 and MB2

[39] Recording of hearing at 5:16;18 – 5:17:16

[40] Recording of hearing at 5:14:28

[41] Briginshaw v Briginshaw (1938) 60 CLR 336

[42] A1 paragraph 23

[43] Statement of Mr Webb A7 paragraph 23

[44] Recording of hearing at 2:14:02 and 2:15:25

[45] Recording of hearing at 2:14:50

[46] KS1 paragraph 1

[47] Recording of hearing at 2:03:35 - 2:04:01

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