[2020] FWC 250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley Williams
v
Viridian Glass Limited
(U2019/6510)

DEPUTY PRESIDENT MASSON

MELBOURNE, 17 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 13 June 2019, Mr Ashley Williams (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Viridian Glass Limited (Respondent). The Applicant seeks reinstatement and monetary compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Background

[6] The uncontested factual background to the matter is as follows.

[7] The Applicant was employed at the Respondent’s Clayton site which is located at 13 – 27 Whiteside Road, Clayton South VIC 3169 (the Clayton Site). Work on the Clayton Site involves the production, sale and delivery of flat glass products for residential and commercial construction. There are currently approximately 119 employees employed at the Clayton Site which includes both the factory and despatch areas.

[8] Ownership and operation of the Clayton Site has been subject to transfer over the years. At the time of the Applicant’s commencement of employment on the Clayton Site on 1 October 1986 1 the site was owned and operated by Don Mathieson and Staff Glass Proprietary Limited (DMS Glass). In October 2007 CSR Limited (CSR) acquired the Clayton Site at which point it was renamed to the Viridian Glass brand. In February 2019 Crescent Capital Partners (CCP) purchased the Viridian Glass business from CSR Limited.

[9] During the period of the Applicant’s employment on the Clayton Site he was initially engaged in the ‘Tufting’ plant and later worked on cutting in the factory 2 but then moved into the role of a full-time truck driver, a position he held up until 30 October 2018 at which point, it was mutually agreed he would be reclassified as a Driver/Glass Worker.3 This was a consequence of disciplinary action arising from a safety incident on 26 June 2018.4

[10] At the time of his dismissal the Applicant was covered by the CSR Limited Viridian Victorian Factory Agreement 2015 5 (the Agreement) and was receiving a base rate of pay under the Agreement of $32.14 per hour.6

[11] The nature of the Respondent’s operations at the Clayton Site involves significant inherent risk from a safety perspective. 7 The Respondent has a system of safety management that seeks to manage those risks. One of the key practices applied by the Respondent in managing safety risk on the Clayton Site is that of the ‘Take 2’ risk assessment process (Take 2) which requires employees to review their surrounds prior to undertaking a task to ensure there are no hazards present.8

[12] A more detailed and documented version of the Take 2 is that of the ‘Step Back 5’ risk assessment tool (Step Back 5). 9 The importance of the Take 2 process is regularly raised in toolbox meetings10, the Take 2 logo is used on other safety material11 and is prominently displayed on posters around the workplace12 all of which the Applicant was familiar with.13 The Respondent also uses a safety culture initiative called the ‘Cardinal Rules’ (Cardinal Rules) which was introduced in 2017 and which was regularly reinforced in toolbox talks and through posters14 within the workplace15. The Applicant was also familiar with the Cardinal Rules.16

[13] On 26 November 1997, when DMS operated the Clayton Site, the Applicant received a final warning for failing to properly secure a load of glass on the truck he was driving. 17

[14] On 14 November 2012 the Applicant received a final warning in relation to an incident that occurred on 12 November 2012. The incident involved the Applicant applying a non-standard procedure 18 to the disposal of glass sheets weighing approximately 160 kilos by loading them manually with assistance of a colleague on to the tines of a forklift (the Forklift Incident). The Applicant’s approach was contrary to training he had received on 20 January 2012 in relation to handling glass sheets.19 The Applicant had not completed a Step Back 5 or Take 2 prior to completing the task and accepted that his approach had been unsafe.20

[15] On 21 March 2013 the Applicant received a ‘final final warning’ 21 in relation to an incident in which he wrapped safety tape around the wheels of a motorcycle of an employee that had been left outside the despatch office (the Motorcycle Incident). The Applicant regarded the location of the motorcycle near the despatch office door as a hazard and decided to play a joke on the employee by wrapping safety tape around the motorcycle.22 The Applicant undertook counselling in relation to the incident.

[16] On 24 July 2014 the Applicant was involved in a minor incident in which during the removal of a wingnut which held a clamp on glass sheets on a truck the Applicant got his finger caught and was slightly injured. 23 No warning was issued in relation to the incident.24

[17] On 11 April 2016 the Applicant was involved in a serious incident on the Clayton Site in which he sustained a compound fracture of the left wrist/hand resulting in his hospitalisation. 25 The incident involved a collision of an A-frame trolley carrying glass sheets, that was being manually manoeuvred by the Applicant, with a structural column within the factory (the Trolley Incident). The Applicant’s left wrist/hand got caught between the trolley and the column.

[18] The Applicant received a formal warning on 5 July 2016 in relation to the Trolley Incident which relevantly stated;

“…..

The injury occurred as a consequence of a lack of attention for your personal safety and a failure to be fully aware of your surroundings when moving a trolley of glass while walking backwards which for an employee of 29 year’s experience was unacceptable.

Ashley, the Company has considered your response and I note that you were previously issued with a warning concerning a safety breach in December 2012 and any further safety breaches may result in your employment being terminated.

You have showed understanding of the impact on yourself and fellow employees and have participated in the preparation of a video to be used throughout CSR for safety awareness training with a particular emphasis on the need to maintain concentration and awareness in the work environment.

……..”

[19] On 6 December 2017 the Applicant was involved in an incident in which, while unloading glass sheets at a factory to which he was delivering, he tripped over a strap that was lying on the ground (the Strap Incident). The Applicant sustained a minor injury. While not subject to any disciplinary action the Incident Investigation Form identified one of the causes of the incident as that of the Applicant’s failure to undertake a Take 2 prior to unloading. 26

[20] On 14 February 2018 the Applicant was involved in an incident while delivering glass to a residential site in Canterbury, Victoria. He collided with a parked vehicle while reversing his truck out of a residential driveway that he drove into for the purpose of turning his truck around (Vehicle Incident 1). 27 No disciplinary action was taken as a result of the incident.

[21] On 24 April 2018 the Applicant was involved in another vehicular incident in which while delivering glass to a residential site in Ashley, Victoria he clipped and damaged the side mirror of a vehicle that was parked in the street down which he was driving 28 (Vehicle Incident 2). No disciplinary action was taken as a result of the incident.

[22] On 26 June 2018 the Applicant was involved in an incident while delivering glass to a residential site in Camberwell, Victoria. While unloading the truck the Applicant was removing the first clamp (weighing approximately 15 kgs) which got caught on the truck curtain. In the process of freeing the clamp the Applicant overbalanced, tripped on the gutter, fell and struck (with the clamp) the back of the head of a non-CSR employee who was behind him 29 (the Clamp Incident).

[23] As a consequence of the Clamp Incident it was mutually agreed that the Applicant would be reclassified to the role of Driver/Glass Worker with his Glass Worker duties initially being that of a Truck Loader, such reclassification taking effect from 30 October 2018. 30 The effect of the reclassification was to confine the Applicant’s driving duties to within and between the Respondent’s factories. The delay in the confirmation of agreement on the change in classification was due to the Applicant having had a lengthy period off work due to a hip replacement.

[24] The Applicant also received a letter dated 2 November 2018 titled ‘Confirmation of Written Warning’ in relation to the Clamp Incident. In that correspondence the Respondent outlined its findings that the Applicant had unclamped the glass sheets on his truck in an unsafe manner, tripped and lost his balance causing him to strike a non-CSR worker in the head causing blunt force trauma. After highlighting the Applicant’s previous safety breaches, his responses to the allegations and the various safety obligations of employees, the Respondent concluded by relevantly stating as follows;

“…….

To avoid a more serious outcome, we asked whether you would consent to changing your duties to remain on site and supervised. You agreed to perform the duties of a Truck Loader. This was a strong factor in demonstrating you had remorse for what had happened and positively contributed to deciding the outcome of this process.

Having regard to the above, and in the present circumstances you are hereby issued with a formal written warning that your conduct is unacceptable.

……

You are remined that any further misconduct may result in further disciplinary action, and if serious enough, may include termination of your employment.

……..” 31

[25] On 14 May 2019 the Applicant was involved in a further incident at the Clayton Site which led to the termination of his employment (the Driveway Incident). The incident involved the Applicant reversing a truck out of a driveway between factory 1 & 5 of the Clayton Site onto Whiteside Road in order to relocate the truck into the required loading bay. In reversing out of the factory driveway the Applicant reversed over a 1.2m high moveable sign 32 that was placed in the middle of the driveway to alert members of the public to not enter the factory driveway. In doing so the Applicant dragged the sign approximately 2 metres before being alerted to the incident by the Operations Manager, Mr Keith Smith who was in an office adjacent to the driveway. The Applicant was unaware that he had backed over the sign until alerted by Mr Smith.33

[26] Immediately following the incident, the Applicant was required to undertake a drug and alcohol test, which was clear, and he was stood down on pay pending the investigation of the incident. 34

[27] A letter titled Allegation of Misconduct dated 20 May 2019 (the Allegation Letter), prepared by the Warehouse and Despatch Manager, Mr Tountas, was sent to the Applicant. The allegations were outlined, and the Applicant was invited to a disciplinary meeting on 21 May 2019. The letter relevantly stated as follows;

“……..

The allegation is that on 14 May 2019 at around 11.00am you were driving truck UHR 366 and reversing out of the factory driveway and onto Whiteside Road. Before you undertook this operation you did not complete a ‘Take 2’ risk assessment, nor use a spotter.

While doing this, you collided with a plastic sign that was situated in the middle of the driveway, which caught under the truck and was dragged along the driveway with you until Operations Manager, Keith Smith was able to stop you.

It is noted in your last disciplinary meeting, that resulted in a formal written warning for unsafe behaviour, you agreed with Management and CFMEU Organiser, Bruce Ross to use a spotter; and that you have many formal warnings over many years for unsafe behaviour.

…………”

[28] The meeting proceeded on 21 May 2019 with Mr Tountas and Mr Redmond present on behalf of the Respondent. The Applicant attended and was supported by site delegates, Mr Rod Thickens and Mr Mark Jones, the latter turning up late to the meeting. The meeting minutes record that after being repeatedly pressed by Mr Tountas during the meeting as to whether he had walked around the truck to check the area before reversing the truck, the Applicant conceded that while he had checked his mirrors he had not walked around the truck, undertaken a Take 2 or used a spotter. 35

[29] Following the meeting on 21 May 2019 a ‘Show Cause Letter’ dated 22 May 2019 36 (the Show Cause Letter) was sent to the Applicant in which the Applicant was requested to prepare for and attend a further meeting on 23 May 2019. The details of the allegations were again provided in the Show Cause Letter as well as the Applicant’s responses to the allegations. The letter relevantly stated as follows;

“…………..

The allegation was as follows;

Your response was as follows;

1. Initial response was that you walked around the truck, hoped in and took your jumper off and observed the area but did not see the sign. After further consideration, you admitted that you did not walk around the truck.

2. You can not recall agreeing with management and the Union organiser to use a spotter at all times as part of your agreement in the previous warning. However, this was minuted on the day.

After considering your response and the evidence collected, we have determined that the allegations have been substantiated.

……………..

Having regard to the above and your employment record which has previous warnings on file, we are currently considering termination of your employment.

A meeting has been convened for Thursday 23 May 2019 at 12.00pm in the Reception Meeting Room to allow you an opportunity to respond to this proposal.

…………….”

[30] A further meeting was held on 23 May 2019 at which the Respondent was represented by Mr Tountas and Mr Redmond. The Applicant attended and was supported by Mr Jones, Mr Thickens and a CFMMEU organiser. When asked by Mr Tountas why he should not be dismissed, the Applicant responded with words to the effect that he had been employed at the site for over 30 years, loved his job and his fellow workers and got on well with the office staff. 37 The Applicant did not advance any reasons related to his personal or family circumstances as to why he should not be dismissed.38

[31] After hearing from the Applicant Mr Tountas and Mr Redmond adjourned the meeting for approximately 10 minutes to consider the Applicant’s responses in relation to the proposed termination of his employment following which the meeting was reconvened and the decision to dismiss the Applicant was advised. 39 A letter confirming the Applicant’s dismissal dated 23 May 2019 (the Termination Letter) was subsequently prepared and sent to the Applicant and relevantly stated as follows;

“……..

Following your response, we still could not find it in ourselves to trust you to work on the Viridian Clayton site for the following reasons:

• You have several formal written warnings during your employment for disregarding your occupational health and safety duties, and our OHS policies and procedures.

• The safety risks you create for yourself and others while at work is unacceptable.

• You repeatedly refuse to accept accountability for your actions and/or learn from your mistakes.

Having regard to the above and your employment record, the decision has been made to terminate your employment effective 23 May 2019.

Your outstanding wages and accrued entitlements shall be paid on or around 5 June 2019.

……….”

The hearing

[32] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

[33] After considering the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the Act). The hearing was held on 25 September 2019 and 3 October 2019.

[34] The Applicant was represented at the hearing by Ms Cate Larkins, the National Industrial and Legal Officer of the Manufacturing Division of the Construction Forestry Maritime Mining and Energy Union (CFMMEU). Mr Mark Douglas, National Human Resources Manager, appeared for the Respondent.

Witnesses

[35] The Applicant gave evidence on his own behalf and the following witness also gave evidence on his behalf:

• Mr Rod Thickens (Employee of the Respondent)

[36] The following witnesses gave evidence on behalf of the Respondent:

• Mr George Tountas (Warehouse and Despatch Manager)

• Mr Jattin Khanna (Operations Manager)

Submissions

[37] The Applicant filed submissions in the Commission on 14 August 2019. The Respondent filed submissions in the Commission on 6 September 2019.

[38] Final written submissions were filed by the Applicant on 28 October 2019 and final written submissions in reply were filed on 15 November 2019. Final written submissions were filed by the Respondent on 8 November 2019.

Has the Applicant been dismissed?

[39] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

[40] Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[41] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[42] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

[43] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the Act.

Initial matters

[44] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[45] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

[46] It is not disputed, and I find that the Applicant was dismissed from his employment on 23 May 2019 and made the application on 13 June 2019. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

[47] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[48] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

[49] It was also not in dispute and I find that the Applicant was employed by the Respondent for a period of some 33 years on the Clayton Site and was dismissed on 23 May 2019, a period in excess of 6 months.

[50] It was not in dispute and I find that the Applicant was an employee.

[51] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Application of an enterprise agreement

[52] It was not in dispute and I find that, at the time of dismissal, the Agreement applied to the Applicant’s employment.

[53] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[54] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[55] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

[56] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.

Was the dismissal a case of genuine redundancy?

[57] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[58] The Applicant contended that his dismissal was motivated by the Respondent seeking to avoid a potential redundancy in the future, a contention I will deal with later. However, it was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[59] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[60] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[61] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[62] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 40

[63] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[64] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 41 and should not be “capricious, fanciful, spiteful or prejudiced.”42 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.43

[65] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁴⁴ “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 45

[66] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”⁴⁶ However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”⁴⁷

Submissions

[67] The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because;

• The Driveway Incident that led to his dismissal was not sufficiently serious to justify dismissal, even when considering his previous warnings.

• While the Applicant admits to not having completed a Take 2 prior to reversing the truck that led to the Driveway Incident he did check his mirrors for people before reversing. Further, there was no evidence that the Applicant was required to use a spotter.

• The Respondent recognised in the Driveway Incident – Incident Investigation Form that there was no risk to any person at the time through its applied rating.

• According to the Driveway Incident – Incident Investigation Form completed by Mr Tountas; the incident was graded as ‘minor’. Furthermore, Mr Tountas was unable to explain why he deemed the ‘potential consequence’ as ‘significant’ in the Incident Investigation Form.

• Considering a small plastic sign had been upended during the Driveway Incident and needed to be replaced in its position, the Applicant submits that Mr Tountas completed the Incident Investigation Form incorrectly.

• No evidence was led by the Operations Manager Mr Smith in relation to the Driveway Incident.

• An inference should be drawn that Mr Tountas brought preconceived ideas about the Applicant in completing the Driveway Incident – Incident Investigation Form due to his involvement in the aftermath of the Trolley Incident which he found traumatic.

• An incident that informed the dismissal of an employee with 33 years’ service should not be designated as minor with low risk.

• The uncontested evidence of Mr Rodney Thickens was that all the truck drivers thought that the sign in the driveway was in an illogical position and could not be viewed over the tray of a truck.

• The Respondent claims that the Applicant showed insufficient remorse, and this was cited by Mr Tountas as the whole reason for the dismissal and the resultant lack of trust.

• The Respondent’s belief that the Applicant repeatedly lied during the meeting of the 21 May 2019 regarding his conduct of a Take 2 ignored the state of mind and distress the Applicant was suffering at the time due to the investigation.

• The Respondent had not discharged the Applicant’s contention that a substantive and operative reason for the Applicant’s dismissal was the financial liability due to his length of tenure and the right to redundancy that would flow from the Agreement. Nor was the contention of the Applicant countered as to the viability of the business and the likelihood of redundancies in the next 3-5 years. This it was submitted may constitute unlawful termination.

[68] The Applicant further contended that the existence of previous warnings, even where justified, could not have the effect of justifying a dismissal that would otherwise be unfair. It was according to the Respondent, on the authority of B, C and D v Australia Postal Corporation T/A Australia Post (Australia Post) necessary to consider the final dismissal incident “shorn of the personal circumstances of the employee and broader context”. 48 The Applicant submits that when the personal circumstances and broader context is stripped away, the reasons relied on by the Respondent, confined to the Driveway Incident, are not sufficient to found a valid reason for Applicant’s dismissal.

[69] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s capacity or conduct. The Applicant had received four formal warnings for safety breaches between November 2012 and June 2018 and the Driveway Incident was the fifth safety incident in six and a half years. Accordingly, the dismissal was not a matter of a single isolated incident.

[70] In relation to the Driveway Incident it was submitted that;

• The Applicant disregarded his obligation to complete a Take 2 despite his familiarity with that risk assessment process.

• The driveway where the incident occurred is busy with employees of the Respondent and other vehicles.

• While the incident involved the Applicant reversing over a metal/plastic sign, the seriousness arose from the failure of the Applicant to perform the requisite Take 2 check and that the consequences could have been more serious.

• In applying the risk matrix at the time of the incident, Mr Tountas was concerned with the actual outcome, as opposed to the potential consequence. On re-assessment of the potential consequence a higher risk rating arises. Any discrepancy between the original assessment and reassessment can be explained by confusion on the part of Mr Tountas.

• The dismissal of the Applicant was not confined to the failure to undertake a Take 2 but also the Applicant’s failure to accept accountability.

• During the meeting on 21 May 2019 the Applicant repeatedly denied failing to undertake a Take 2 or walkaround the truck, despite being asked several times by Mr Tountas. This revealed dishonesty on the part of the Applicant.

[71] In relation to the alleged unlawful termination of the Applicant, that being the Applicant was dismissed by the Respondent for the ‘substantive and operative reason’ to avoid a redundancy obligation, the Respondent submits that;

• The Applicant failed to lead any evidence or outline the impact of a site closure in another area or State on the roles at the Clayton Site, at which he was based.

• The Applicant had no knowledge of what the intentions of the owners of the Respondent were with respect to the Clayton Site.

• The allegation of impending redundancies was based on no more than rumor, speculation and preconceived ideas.

• Mr Tountas gave direct evidence that refuted the suggestion that redundancies were planned, as did the Operations Manager, Mr Khanna.

• The Applicant has failed to explain how the sale of the Viridian Glass business from CSR to CCP has any bearing on the allegation at hand that his dismissal was initiated to avoid a redundancy payment to him.

• The financial report of the previous owner CSR tendered in evidence by the Applicant does not take into account the investment that both Mr Tountas and Mr Khanna referred to in their evidence.

Evidence

[72] I now turn to the evidence in relation to whether there was a valid reason for the Applicant’s dismissal. Before turning to the Driveway Incident which ultimately led to the Applicant’s dismissal it is necessary to consider the evidence relating to the previous incidents and warnings.

Forklift Incident -12 November 2012

[73] In relation to the Forklift Incident the Applicant gave evidence that he and a work colleague applied a non-standard procedure to the disposal of 168kg sheets of glass by manually moving them onto the tines of a forklift 49. The proper procedure, in which he had been trained50, required driving a truck into the factory and unloading the glass with the correct unloading equipment.51

[74] The Applicant concedes that the non-standard procedure used was in hindsight unsafe 52 but had been used because the factory was busy at the time.53 He further accepted that the non-standard procedure used could have resulted in serious injury54. Further, he had not undertaken a Take 2 or Step Back 555 prior to undertaking the non-standard procedure although he was unsure if the Take 2 process was in place in 2012.56

Motorcycle Incident – 21 March 2013

[75] In response to a request made by the Applicant to a fellow employee to move a motorcycle that was parked near the door of the despatch office the other employee declined to move the motorcycle. 57 Following the fellow employee’s response, the Applicant decided to play a joke on that employee by wrapping some safety tape around the wheels of the motorcycle58.

[76] While agreeing that he would not engage in similar conduct following the Motorcycle Incident the Applicant did not concede that his behavior constituted a risk to the other employee. The Applicant confirmed that he had received a formal warning and undertook counselling in relation to the incident. 59

Trolley Incident – 11 April 2016

[77] The Applicant states that the training he had received in manually moving an A-frame trolley of glass in the factory required that, by reason of where the trolleys are normally placed when not in use, it was necessary to initially pull (or reverse) the trolley out of its stationary position before then pushing the trolley in the direction in which it is required to move. Steering the type of trolley involved in the Trolley Incident is affected by the steering lever mechanism which is used to pull and push the trolley and controls the steering wheels at the steering end of the trolley. The wheels at the non-steering end are in a fixed position. 60 (emphasis added)

[78] The Applicant confirmed that he had undertaken manual handling training on 29 February 2016 61, that he achieved a satisfactory outcome in the training and that the training covered safety aspects related to moving trolleys at Question 20, to which the Applicant relevantly responded that trolleys must be pushed forward.62 The Applicant also confirmed that he participated in a Toolbox Talk on ‘Push and Pull Trolleys, Take 2’ on 9 November 201563, and agreed that employees are not supposed to pull a trolley other than when reversing it out of its stationary starting position.64

[79] The Applicant in his witness statement says that;

“In April 2016, I was pushing a trolley in the factory, and it slipped out of my hands. It all happened in a spilt second. The trolleys are very heavy, and it was moving with momentum towards a steel pole. I am not sure what I was thinking at the time, I think it was just that I needed to stop the trolley by any means necessary and ensure it caused no damage to anything in the factory. I put myself between the trolley and the pole, and it crushed my hand.” 65

[80] The Applicant resisted the proposition put to him that he was pulling the trolley when it collided with the structural beam, badly injuring his arm, but rather he claimed that he was pushing the trolley from the side. He also confirmed that the steering mechanism and steering wheels were at the front of the trolley relative to the direction the trolley was being moved in at the time of the incident. 66

[81] Video footage of the incident 67 was adduced which showed the Applicant initially leading the trolley facing in the direction the trolley was moving. He was positioned slightly to the front and side of the trolley. When approximately 10 metres from the structural column the Applicant re-positioned himself immediately in front of the trolley with his back to the structural beam and he was then seen to be pulling the trolley. The positioning of the Applicant was a consequence of the steering mechanism being at the front of the trolley relative to the direction the trolley was being moved. The footage showed the Applicant with his back to the structural column at the time of the impact and he was unable to alter the course of the trolley and/or stop its momentum before the trolley hit the structural column, crushing his wrist/hand in the process.

[82] Mr Tountas gave evidence that the total weight of the trolley involved in the incident was 950kg, that the Applicant was trained in the correct procedure for moving the trolley 68 and in the course of the incident the Applicant moved the trolley approximately 40 metres while pulling the trolley from the side, contrary to training and routine practice.69

[83] Mr Tountas gave further evidence in relation to the video footage of the incident that the steering mechanism end of the trolley should not have been leading the trolley but rather should have been pushing the trolley from behind. That is, the trolley should have been reoriented by 180 degrees with the steering mechanism at the rear rather than the front relative to the direction the trolley was moving. He further states that the Applicant was in the wrong position and was in fact pulling the trolley, not pushing it as required, when the collision occurred. 70

[84] The Applicant concedes that while his normal approach to maneuvering the trolley would have been to lead the trolley because it was easier to steer, that method was inconsistent with the training he received which required him to push and steer from the rear of the trolley. 71 He further concedes that he did not do a Take 2 prior to the incident.

[85] The Trolley Incident – Incident Investigation Report identified several Agreed Corrective Actions to be taken as a result of the incident including; retraining of the Applicant, further training of the workforce, physical changes in the workplace, review of the manual handling risk assessment and glass trolley work instruction and review of column padding for the structural column. 72

[86] While receiving a formal warning for the incident the Applicant sought to downplay the incident and expressed shock at having received a warning for what he regarded as “simple human error, not recklessness or negligence” 73.

Clamp Incident – 26 June 2018

[87] The Applicant states that he was undertaking a delivery to a Camberwell residential site at approximately 7.30am on 26 June 2018. After parking the truck as close to the gutter as possible he then proceeded to commence the process of getting the glass off the truck with the assistance of the glaziers who were at the site. The Applicant relevantly states that;

“At approximately 8.15am I got on the back of the truck and undid the clamps, whilst I was removing the first clamp, it got caught in the truck’s curtain. While I was trying to untangle it from the curtain, I tripped and fell backwards with the clamp still in my hand. There was a man standing behind me who was walking back to the house with his back to me. I still had the clamp in my hand. They are very heavy things, like 18 – 20 kilograms in weight, and the momentum pulled me backwards and I struck the man behind me on the back of the head.” 74

[88] The Applicant gave further evidence that in removing the clamp and overbalancing he had tripped on the gutter. 75 The Applicant claims that the man he struck with the clamp was not wearing the correct personal protective equipment (PPE), that being a hardhat.

[89] The Applicant completed a ‘Take 2 Minute Site Delivery Hazard Identification Form’ (Site Delivery Hazard Identification Form) in respect of the Clamp Incident delivery and no hazards were identified by him on the form. 76 He conceded during cross-examination that in relation to various questions in the Site Delivery Hazard Identification Form, he had ticked that the unloading area was safe and clear for unloading, that the customers had required PPE and the intended pathway was clear, stable and free from trip hazards. The Applicant denied completing the Site Delivery Hazard Identification Form without thought or without doing a risk assessment.77

[90] The Applicant claims that the incident was caused by genuine human error and a confluence of really unlucky events.⁷⁸ While accepting some responsibility for the incident the Applicant also states there was contributory negligence by the injured man, the subcontractors and the Respondent, which he did not believe was taken into account at the time.⁷⁹

[91] Following the Clamp Incident an investigation was conducted which included meetings with the Applicant on 10 July 2018 and on 13 July 2018 during which the Applicant was accompanied by a CFMMEU organiser Mr Bruce Ross and a delegate Mr Wes Appleman. Minutes of the meeting held on 13 July 2018 were taken. 80 The Applicant was advised during the meeting on 13 July 2018 that the Respondent viewed his continuation as a driver as ‘untenable’ and discussed alternative roles he could do. This resulted in agreement that the Applicant would move to a role involving on-site driving only, which involved loading and truck driving within and between the Respondent’s factories.

[92] The minutes of the meeting of 13 July 2018 record that at the conclusion of the meeting after it had been agreed that the Applicant would be reclassified to a different on-site only driving role, an exchange occurred between the CFMMEU organiser Mr Bruce Ross and the Applicant in relation to his agreed on-site driving duties;

“Bruce - ‘get a spotter and check your mirrors’

Ash - ‘yep’

Bruce – Right! Please! (emphasised)”

[93] According to Mr Tountas, a spotter is another employee who works with a driver who is maneuvering a vehicle, usually a truck, to assist the driver avoid particular hazards. 81

[94] The Applicant concedes that he understood that arising from the Clamp Incident he was at risk of termination of employment, that the change in role that was agreed was a measure taken to avoid the termination of his employment, that in not dismissing him the Respondent took into account his length of employment and that he was aware that he was almost terminated as a consequence of the Clamp Incident. 82

Driveway Incident – 14 May 2019

[95] The Applicant states that on the 14 May 2019 he was asked by Mr Tountas after morning tea to move a truck from outside one part of the factory to a different part of the factory. The Applicant then described what occurred in the following terms;

“53. I got in the truck and had a full check behind me in the mirrors and saw that the factory gate was not fully closed. I put the truck in reverse and veered slightly right so I could get out of the way of the gate. I couldn’t see any sign, as the sign in question did not actually stick up so it could be seen over the back of the truck.

54. Within a couple of seconds, Mr Smith left the office and come over and said “Ash, you have backed over the sign” or words to that effect. I didn’t realise I had done it…….”

55. I replaced the sign to where I presumed it had been. I had never observed the sign to be there until that day…..” 83

[96] During cross-examination the Applicant variously stated that;

• When he got into the truck it was facing away from the roadway 84;

• While he looked in his mirrors once in the truck, he didn’t look behind the truck or physically walk around the truck before getting in and reversing 85;

• It is not normal for employees to walk around in the driveway area 86;

• He did not do a Take 2 prior to the incident 87; and

• The potential consequence of reversing a truck backwards down the driveway towards the pedestrian crossing was that of hitting somebody and causing a fatality. 88

[97] Mr Thickens gave evidence that following the Driveway Incident he had spoken with other truck drivers and that all of them had raised concerns about the size and position of the small sign that the Applicant had run over. Mr Thickens further states all the truck drivers wanted the sign to be bigger in order to be more visible and for it to be placed in the middle of the driveway. 89

[98] Mr Tountas gave evidence that employees were not confined to the marked walkway in the driveway area and further states that the sign was introduced approximately 18 months prior to the incident to avoid customers, couriers and other members of the public entering an area of the factory that was restricted to employees of the Respondent. He further states that contrary to the evidence of Mr Thickens no drivers had raised the sign as a hazard 90 and no other drivers had collided with the sign.91

[99] An investigation was undertaken by Mr Tountas which included the completion of an Incident Investigation Form - Minor dated 14 May 2019 92 (the Driveway Incident – Incident Investigation Form). Mr Tountas applied the Risk Matrix, which produces a ‘Resulting Risk Rating’ derived from the product of ‘Potential Consequence’ and ‘Likelihood’. The incident was assessed as ‘Significant’ in terms of ‘Potential Consequence’ and ‘Very Unlikely’ in terms of ‘Likelihood’ producing a ‘Resulting Risk Rating’ of ‘Low’ with a Risk Score of ‘3’. In the preliminary investigation Mr Tountas found that it appeared that the Applicant failed to perform a Take 293.

[100] Mr Tountas was questioned during cross-examination as to the rating he applied to the incident in completing the Driveway Incident – Incident Investigation Form. He was taken by the Applicant’s representative to the ‘Potential Consequence’ description of ‘Environment’ under the ‘Significant’ category rating he had applied. While agreeing that the ‘Resulting Risk Rating’ of the incident in the form was ‘Minor’, he resisted the proposition that the ‘Potential Consequence’ rating of ‘Significant’ was incorrect or that the ‘Potential Consequence’ rating he should have applied was that of ‘Minor’. 94

[101] While agreeing that he had been traumatized by his witnessing the aftermath of the Trolley Incident, Mr Tountas resisted the proposition put to him during cross-examination that his view of the Driveway Incident and the Applicant’s culpability was influenced by the impact on Mr Tountas of the Trolley Incident. 95

[102] Mr Tountas also sought in his evidence to revise the Potential Consequence rating he had applied from that of ‘Significant’ to ‘Serious’ which combined with the ‘Likelihood’ rating of ‘Unlikely’ would have the effect of increasing the ‘Resultant Risk Rating’ to ‘Moderate’ and an overall Risk Score of ‘9’. He sought to justify the upward revision of the risk rating on the basis that when he applied the risk matrix to the incident at the time of completing the form he had only taken into account the actual consequence, that of no injuries, rather than potential consequence which could have been a pedestrian being hit. 96

[103] Mr Tountas gave evidence that during the meeting with the Applicant on 21 May 2019 he asked the Applicant on several occasions whether he had done a Take 2 and walked around the truck prior to reversing it to which the Applicant confirmed he had. After being pressed several times on this point by Mr Tountas the Applicant conceded in the meeting that he had not undertaken a Take 2 or a walk around. 97 The Applicant states that his initial incorrect responses to Mr Tountas’ question as to whether he had undertaken a Take 2 or walk around were due to confusion and disbelief that he had hit the sign. He denied that his incorrect responses were due to his trying to hide the fact that he had not undertaken a Take 2.98

[104] Mr Tountas states that the dismissal of the Applicant was not because he had run over a sign but because of his safety behaviors. Specifically, the Applicant had failed to undertake a Take 2 or check the area prior to the Driveway Incident. This failure occurred despite the emphasis of the Respondent on the Take 2 safety behavior, consistent training delivered to the Applicant and other employees and despite previous incidents and warnings the Applicant had received. This led to the Respondent losing trust that the Applicant could change his safety behaviours. 99

Redundancy Avoidance Allegation

[105] I now turn to consider the evidence in relation to the Applicant’s submission that his dismissal was affected to avoid a potential redundancy liability at some future point. The Applicant gave the following evidence;

• The Agreement which covered his employment provided for redundancy benefits which based on his length of service equated to a redundancy benefit of approximately $161,214. 100

• There had been a widespread downturn in business, particularly in domestic glass, that most of the manufacturing was moving overseas, that the Financial Review reported CSR’s massive losses and that CSR’s venture into the glass market had been a failed enterprise. 101

• The Clayton Site is predicted to be potentially viable following the sale of the Respondent’s business by CSR to CCP in January 2019, although other sites of the Respondent are likely to face significant cuts, if not closures. 102

• The Applicant and his former colleagues expected redundancies due to a belief that the new owner CCP would strip the business back for future sale. 103

[106] Mr Tountas gave evidence that the Respondent had invested in a second insulated glass line at the Clayton Site, that the site was likely to require more drivers in the coming years, not less and that the Applicant had been replaced by a new recruit. 104 Mr Khanna reinforced that evidence by stating that he was overseeing a sizeable investment by CCP into new machinery for the Clayton Site, that the Clayton Site was growing and there were no plans for redundancies in the despatch or factory areas of the Clayton Site.105

Consideration

[107] I firstly turn to the incidents in which the Applicant was involved, and which resulted in disciplinary action. In doing so I confine my consideration to those events that occurred since 2012 as I consider that prior incidents dating to 1997 are less relevant due to the period of elapsed time.

[108] Turning firstly to the Forklift Incident that occurred in 2012, I am satisfied that the incident occurred as a result of the Applicant and a work colleague applying a non-standard procedure to the disposal of glass sheets through the manual transfer of those glass sheets on to the tines of a forklift. The procedure applied was contrary to training the Applicant had received and significantly, a risk assessment was not undertaken. The incident was wholly preventable and could have, on the Applicant’s own admission, led to more serious injury had the sheet fallen on the Applicant or his colleague. It was no partial defence to suggest, as the Applicant offered, that the non-standard procedure was used because it was busy in the factory at the time of the incident. I note the Applicant’s remorse over the incident and his assurance that a repeat of such behavior would not occur were recorded in the final warning along with the warning to him that a further instance of a behavioural safety breach would result in dismissal.

[109] As regards the Motorcycle Incident that occurred in 2013 the behavior of the Applicant was in my view foolish and unwarranted. While the risk of accident and injury flowing from the Applicant’s conduct of placing safety tape around the wheels of a motorcycle could not be entirely ruled out, such an outcome would seem unlikely. More troubling in the incident was the failure of the Applicant to follow the correct safety procedure. Specifically, if the Applicant was concerned about the location of the motorcycle relative to the door of the despatch office, the appropriate course of action was to formally report the hazard. He did not do this but rather engaged in, by his own admission, a prank.

[110] Turning now to the Trolley Incident that occurred in 2016 I am satisfied that the Applicant’s conduct directly contributed to the collision between the A frame trolley that he was maneuvering and a structural column in the factory, resulting in a serious crush injury to his left wrist/hand. I am satisfied that while other contributing factors were identified by the Respondent through its post incident investigation the Applicant’s conduct was a major contributing factor to the incident.

[111] The Applicant maintained that he was pushing the trolley at the time of the incident. I reject that version of events. It is abundantly clear from a review of the video footage and I am satisfied that the Applicant was initially leading the trolley facing in the direction he was moving the trolley, not pushing it. Some 10 metres prior to the impact of the trolley with the structural column the Applicant moved into a position of pulling the trolley with his back to the column. The Applicant’s persistent claim that he was pushing the trolley does not withstand scrutiny, particularly when he gave evidence that his method of leading the trolley was contrary to the procedure in which he had been trained. The fact that he found it easier to steer the trolley by leading it is again no excuse for failing to follow the correct procedure in which he had been trained and was familiar.

[112] It is significant that despite undertaking training in manual handling including the use of trolleys only a short time before the incident, the Applicant departed from the required procedure of pushing the trolley, failed to undertake a Take 2 risk assessment and suffered a serious injury which also had an impact on his work colleagues. Given the weight of the trolley and given the manner in which the Applicant was pulling the trolley at the time of the incident, it is not difficult to imagine a far more serious crush injury could have occurred if it had been the torso of the Applicant caught between the trolley and structural column rather than his wrist/hand. Attempts by the Applicant to now downplay the Trolley Incident in his evidence by describing it as simple human error shows a lack of insight into the consequences of his conduct in ignoring safety procedures.

[113] I am satisfied that the Applicant was aware of the seriousness of the incident at the time, given that he again received a formal warning that highlighted that further safety breaches may result in the termination of his employment. It is also significant that he participated in a safety awareness training video following the incident in which he recognised the impact of the incident on himself and other employees.

[114] Turning now to the Clamp Incident, I am satisfied that the Applicant undertook the site delivery and clamp removal task without applying a proper risk assessment. While he completed a Site Delivery Hazard Identification Form, no hazards were identified, those being the presence of the gutter which he ultimately tripped over or other non-CSR employees that were in the vicinity at the time he was removing the clamp. Had the Applicant undertaken the risk assessment properly, it is reasonable to conclude that hazards would have been identified and measures taken to manage the identified risks. His defence that the person struck on the head was not wearing a hard hat was not raised in the Site Delivery Hazard Identification Form, which further supports an inference that his completion of the form was done without a proper evaluation of the risks present.

[115] The Applicant’s blaming of the injured non-CSR employee for his contributory negligence in not having a hard hat on, as well as his description of the incident as a “confluence of really unlucky events”, again reveals a lack of acceptance of appropriate accountability for his conduct.

[116] I am satisfied that the Applicant fully apprehended during the investigation and subsequent disciplinary process that he was at significant risk of being dismissed because of the Clamp Incident, prior incidents and warnings. His position as an off-site driver was, according to the Respondent, untenable. Further, the Applicant acknowledged in his evidence that his agreed transfer of roles from that of off-site driving to on-site only driving duties was taken as an alternative to his dismissal and that a significant factor in that decision was his length of service.

[117] The Confirmation of Written Warning dated 2 November 2018 again made clear that any further misconduct may result in termination of employment. I am consequently satisfied that the Applicant could have been under no misapprehension that further instances of safety breaches might lead to his dismissal.

[118] Now turning to the Driveway Incident, it is contended by the Applicant that the incident on its own was not sufficiently serious to establish a valid reason for dismissal, even if prior warnings were considered. In making this submission considerable reliance is placed by the Applicant on the Risk Rating of ‘Minor’ that was arrived at by Mr Tountas in completing the Driveway Incident – Incident Investigation Form. Before turning to consider the evidence, I will deal briefly with the submission of the Applicant that evidence was not led from Mr Smith whose unavailability was explained by personal health issues. It is unclear what additional evidence might have been adduced save for direct evidence as to the Applicant running over the sign which was not in contest. Mr Tountas was immediately and directly involved in the investigation of the incident and the disciplinary action that ultimately flowed. In these circumstances I am not persuaded that the absence of evidence from Mr Smith is a factor that weighs either for or against the Applicant’s case.

[119] I will now deal with the Applicant’s submission regarding the Driveway Incident – Incident Investigation Form risk rating as there was a contest between the parties as to the appropriate rating. The risk assessment matrix used by the Respondent is a standard tool of a type used throughout industry that seeks to assess risk by reference to a matrix of Potential Consequence and Likelihood of the Potential Consequence arising from an incident subject to investigation. Mr Tountas, while subsequently seeking to revise his assessment of ‘Potential Consequence to Serious’, initially assessed the potential risk as ‘Significant’. ‘Significant’ is relevantly defined under the category of ‘Health and Safety’ in the matrix as;

“An event resulting in an injury requiring less than one week away from normal duties” 106

[120] Contrary to a point put to Mr Tountas by the Applicant’s representative during cross-examination, reference to the category of ‘Environment’ is irrelevant as the Driveway Incident was clearly one of a Health and Safety nature. I am satisfied that the starting point for the risk rating assessment of the incident is by reference to the potential, not actual consequence of the incident. If it were the latter, any incident that did not cause injury would be assessed as ‘Minor’ in terms of Potential Consequence which would then result in the downplaying of the significance or reporting of near misses.

[121] I am further satisfied that the assessment of the Potential Consequence of an incident is necessarily directed at what could have occurred as a result of an incident rather than what actually occurred. Given the admissions made by the Applicant to which I have referred to at [96] above, as to the potential for serious injury arising from reversing a truck, it is inconceivable in my view that the Potential Consequence in the present case could be properly assessed as less than ‘Significant’ at the very least, and there is a strong argument given the evidence of the Applicant that the Potential Consequence could be assessed at least as ‘Serious’, if not higher. Relevantly a ‘Serious’ Potential Consequence is defined within the Risk Matrix in the following terms;

“An event resulting in an injury requiring more than one week away from normal duties.” 107

[122] It follows from the above that I do not accept the Applicant’s contention that the Potential Consequence of the incident should have been more properly assessed by Mr Tountas as ‘Minor’, bringing the Risk Score down to ‘1’. Such an outcome cannot be reconciled in my view with the potential consequences of a failure to undertake a proper assessment of the area prior to reversing the truck. Nor do I accept there was any evidence that Mr Tountas approached the investigation of the Driveway Incident - Incident Investigation Form completion with preconceived ideas as to the Applicant’s culpability arising from Mr Tountas being personally affected by the Trolley Incident aftermath. The proposition was put to Mr Tountas, he denied it, and there was no other evidence that would support the inference the Applicant sought to be drawn.

[123] Further, I do not accept the submission that the location and size of the sign was problematic or hazardous. Mr Thickens evidence as to the views of other drivers was hearsay whereas Mr Tountas gave clear and direct evidence as to how long the sign had been in place, that there had been no complaints raised by other drivers and no other incidents were recorded where the sign had been reversed over. I prefer the evidence of Mr Tountas. The simple fact of the matter is that had the Applicant carried out the Take 2 and walked around the truck to check the area it is most unlikely he would have collided with the sign.

[124] The Applicant also submits that the Mr Tountas’ evidence was that the whole reason for the Applicant’s dismissal was that the Applicant showed a lack of remorse and this resulted in a lack of trust. I do not accept that characterisation of Mr Tountas’ evidence. A proper reading of the relevant evidence to which the Applicant refers is that Mr Tountas was certainly concerned at the Applicant’s untruthfulness during the meeting of 21 May 2019 108, he had lost trust in the Applicant109, the dismissal was not because he had run over the sign110 but was due to the repeated unacceptable safety behaviours of the Applicant in spite of training the Applicant had received111.

[125] Turning now to the Respondent’s submission that the Applicant was dishonest in his responses during the disciplinary meeting on 21 May 2019. I accept that the evidence reveals repeated questioning of the Applicant by Mr Tountas as to whether he had done a Take 2 and a walk around the truck before the Applicant finally conceded that he had not done so. The Applicant concedes in his evidence that he had repeatedly stated that he had done a Take 2 and a walk around despite not having done so, but he attributed his false statements to distress and confusion.

[126] I accept that the Applicant may have been distressed by the events that led to the disciplinary interview on 21 May 2019 but I note that the interview occurred 7 days after the Driveway Incident, the Applicant had time to prepare for the interview and he was also supported by site delegates in the meeting. I also note that the Applicant had received a formal warning in November 2018 and knew how close to dismissal he had been in 2018 arising out of the Clamp Incident. In these circumstances it is in my view more likely that the Applicant sought, by his initial responses to questioning by Mr Tountas, to conceal his failure to undertake a Take 2 or a walk around the truck prior to reversing it. That lack of initial candor does not however alter my conclusions on the substantive reason for dismissal which follow below.

[127] I am satisfied on the evidence that the Applicant engaged in a course of safety related misconduct over several years which exposed himself and his colleagues to the risk of accident and injury. I am further satisfied that a clear pattern of behaviour is evident in which the Applicant failed to undertake core safety requirements of his role, including that of following work procedures in which he had been trained, and also in failing to conduct required safety risk assessments referred to in the Respondent’s business as a Take 2.

[128] The incident that ultimately led to the Applicant’s dismissal, that of the Driveway Incident was not an isolated incident. It was regrettably, a continuation of a series of safety incidents that the Applicant was involved, which had resulted in formal written warnings and led to a loss of trust and confidence of the Respondent in the Applicant. I am satisfied that the Applicant was clearly on notice as to what was required of him in relation to compliance with safety policies and procedures.

[129] To suggest as the Applicant has, that the prior incidents are not relevant to the consideration of whether there was a valid reason or if they were relevant the final incident was not serious enough to justify dismissal, is rejected. That is because of the potential consequences of persistent safety related misconduct in circumstances where all witnesses, including the Applicant, agreed that the Clayton Site was a hazardous work environment. I do not regard the Applicant’s reliance on Australia Post as standing for authority that I must ignore the Applicant’s prior conduct and warnings he received in assessing the misconduct. That is so because as I have stated above, the Driveway Incident that culminated in his dismissal was a continuation of a pattern of relevant safety related misconduct over several years which the Respondent was not only entitled but, in my view, bound to consider in the circumstances.

[130] I now turn to briefly deal with the Applicant’s allegation that his employment was terminated to avoid a future redundancy liability. This allegation was based on no more than speculation and guesswork arising from the sale of the business by CSR to CCP in January 2019 and the foreshadowed reductions in other areas of the Respondent’s operations. As to the Applicant’s submission that the Respondent bore an onus to disprove the allegation, I note that the application for a dismissal remedy was not made based on a general protections breach under s 365 of the Act. I do not accept the reverse onus arises in the present matter.

[131] No probative evidence was adduced by the Applicant that lent weight to his assertion that redundancies at the Clayton Site were likely in the medium term. The allegation was strongly countered by the evidence of Mr Tountas and Mr Khanna as to the investment currently being made by CCP into the Clayton Site. I find the claim of the Applicant that his dismissal was motivated by a desire of the Respondent to avoid a redundancy obligation without merit.

[132] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal based on the Applicant’s failure to undertake core safety requirements of his role, including that of following safe work procedures in which he had been trained, and also in failing to conduct required safety risk assessments. These repeated failures placed the Applicant and his work colleagues at risk of accident and injury and led to a loss of trust and confidence of the Respondent in the Applicant. Such a finding weighs in favour of a finding that the Applicant was not unfairly dismissed.

Was the Applicant notified of the valid reason?

[133] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 112 and in explicit113 and plain and clear terms.114

Submissions

[134] The Applicant submitted that that there were procedural deficiencies in the Respondent’s process. Specifically, the Respondent relied on a course of misconduct tied to an earlier disciplinary meeting in respect of the Clamp Incident at the conclusion of which meeting held on 13 July 2018 the Applicant allegedly agreed to use a spotter in the future. 115 According to the Applicant, reliance on that prior meeting and the Applicant’s alleged agreement to use a spotter was a critical consideration of the Respondent in effecting the dismissal.

[135] In relation to the Respondent’s reliance on the Applicant’s agreement to use a spotter the Applicant submits that;

• The Applicant did not believe he was required to use a spotter.

• The Respondent relied on an alleged requirement for the Applicant to use a spotter in circumstances where it was the CFMMEU organiser Mr Ross who made the statement to the Applicant to the effect that he should use a spotter.

• No evidence was adduced in the proceedings to confirm the accuracy of the minutes of the meeting of 13 July 2018.

• There was no explicit directive from the Respondent requiring the use of a spotter by the Applicant recorded in the meeting minutes.

• Nothing in the revised contract of employment mentions the use of a spotter but includes other requirements such as;

“you agree that if you perform driving duties that Management may pair you with another driver or require appropriate supervision” 116

[136] The Applicant gave evidence in his witness statement that he did not recall and did not believe it was the case that he had been told to use a spotter during or subsequent to the meeting of 13 July 2018 in relation to his new on-site driver role. 117 He subsequently conceded however during cross examination that he recalled the exchange with Mr Ross during the meeting of 13 July 2018 referred to at [92] above.118 He also agreed that a spotter is required when reversing out of the factory, that being consistent with how all other drivers operate.119

[137] The Respondent submitted that the Applicant was notified of the valid reason on the basis that he received the Termination Letter.

Consideration

[138] It is clear on the evidence, despite submissions to the contrary by the Applicant, that the Applicant did recall the discussion of 13 July 2018 in which he agreed in response to a statement from the CFMMEU organizer Mr Ross, to use a spotter when engaged in on-site driving in his new role. Having conceded to a recollection of the discussion the Applicant has failed to rebut the accuracy of the meeting record.

[139] It is also clear that the Respondent did not explicitly direct the Applicant to use a spotter and in what circumstances. Nor was the requirement referred to by the Respondent in any subsequent correspondence confirming the Applicant’s transfer to his new role or the disciplinary action that flowed from the Clamp Incident. The specific circumstances in which the Applicant was required to use a spotter were not detailed by the Respondent.

[140] The Applicant clearly understood he was required to use a spotter when reversing out of the factory. He acknowledged this in his evidence. What is unclear however from the evidence is whether the requirement to use a spotter to reverse out of the factory was confined to reversing onto the road as opposed to reversing down the driveway. The absence of explicit direction by the Respondent weighs against a conclusive finding that the Applicant was required to use a spotter in all circumstances. It must be said however that given the Applicant’s prior agreement to use a spotter when engaged in on-site driving, it would have been prudent if not expected of him to have done so given his long history of safety related incidents and multiple warnings.

[141] It is clear that from the Allegation Letter dated 14 May 2019 that the Applicant was advised of the specific allegations made against him in relation to the Driveway Incident. These relevantly included that he had not undertaken a Take 2, he had not used a spotter and these breaches had occurred against the history of previous safety conduct related incidents and warnings. Those allegations were restated in the Show Cause Letter dated 21 May 2019 along with the responses of the Applicant to the allegations. The Termination Letter of 23 May 2019 confirmed the decision of the Respondent to dismiss the Applicant which can be summarized as the Respondent having lost trust in the Applicant based on his previous warnings and repeated disregard for OH&S duties, policies and procedures.

[142] I am not persuaded that a critical consideration of the Respondent was the failure to of the Applicant to use a spotter. As I have found above, the valid reason for the Applicant’s dismissal was that of the Applicant’s course of safety related misconduct over several years in which he had repeatedly failed to comply with safety policies and procedures.

[143] Notwithstanding my findings regarding the requirement to use a spotter, the Respondent put the Applicant on notice regarding the reasons for termination in the Allegation Letter which included reference to the spotter. The Applicant was given an opportunity to respond which is recorded in the Show Cause Letter. The confirmed reason for termination was not communicated as being because of the failure to use a spotter but was because of the Applicant’s repeated failure to follow required safety procedures.

[144] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit, plain and clear terms. This weighs in favour of a finding that the dismissal was not unfair

[145] In all the circumstances, I find that the Applicant was notified of the reason for his dismissal. This weighs in favour of a finding that the Applicant was not unfairly dismissed.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[146] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 120

[147] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 121 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.122

[148] I am satisfied on the evidence that the Applicant was afforded an opportunity to respond to the valid reason for his dismissal related to his safety related conduct in a meeting held on 21 May 2019, and was given a further opportunity in a Show Cause meeting on 23 May 2019 to respond to the proposed termination of his employment.

[149] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made. This weighs in favour of a finding that the Applicant was not unfairly dismissed.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[150] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[151] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”123

[152] There were two meetings held in relation to the Applicant’s dismissal, on 21 & 23 May 2019. The Applicant was advised of his right to be accompanied by a support person in both the Allegation Letter sent to him on 20 May 2019 and in the Show Cause Letter sent to him 22 May 2019. The Applicant was accompanied by support persons in both meetings.

[153] I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. This weighs in favour of a finding that the Applicant was not unfairly dismissed.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[154] It was not disputed that the Applicant had received multiple warnings relating to previous OH&S incidents however those warnings related to misconduct rather than performance. As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[155] It was not disputed that the Respondent is not a small business and that it has resources and procedures in place to manage disciplinary processes. In these circumstances I find that the size of the Respondent’s enterprise was not likely to impact on the procedures followed in effecting the dismissal. It is therefore a neutral consideration.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[156] It was not disputed that the Respondent has dedicated in-house human resources and management specialist expertise to support the conduct of disciplinary processes. In these circumstances I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. It is therefore a neutral consideration.

What other matters are relevant?

[157] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

Submissions

[158] The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

• The Applicants age is 57 and he is still well short of intended retirement.

• The Applicant intended to continue working for the Respondent until his retirement.

• The Applicant is the primary care giver for his infirm parents and his mother is presently terminally ill.

• There are and were genuine options for redeployment within the Clayton Site that the Respondent did not consider. Mr Thickens gave evidence as to the ability to transfer the Applicant to the Custom Laminate area.

• The Applicant’s length of service with the Respondent of 33 years.

• The Applicant was never wilfully reckless or grossly negligent, nor did he engage in serious misconduct.

[159] The Respondent submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

• The Respondent’s operations carry inherent OH&S risk due to the nature of the materials and process.

• The efforts of the Respondent to establish a safe workplace.

• The OH&S regulatory framework of Victoria that applies to the Respondent and the Applicant.

• The Applicant’s history of prior safety related incidents and warnings.

• Issues of the Applicant’s credibility.

• Limited warnings issued to the Applicant prior to 2012 reflect less stringent safety standards having been in place.

[160] As regards the Applicant’s length of service the Respondent concedes that service is a consideration but does not serve to outweigh other considerations.

Evidence

[161] The evidence reveals that the Applicant is 57 years old, has 33 years’ service on the Clayton Site and is the primary care giver for his elderly parents. 124 As regards there being alternative roles that the Applicant could have been moved into, Mr Thickens identified a role in Custom Laminate or a role of Quality Assessor.125 He further states that the Custom Laminate role would be a good fit, would be less demanding and would be easier for the Applicant to learn than other roles within the business126. He conceded during cross examination that there is no Quality Assessor role on the Clayton Site as such responsibility lay with operators and supervisors127. He also accepted that he was not in a supervisory role nor did he have any responsibilities in relation to staffing decisions.

[162] As to whether the Respondent considered alternate roles for the Applicant Mr Thickens states a belief that the Respondent was more interested in dismissing the Applicant rather than re-training or utilising his skills and experience elsewhere on the Clayton Site 128. He did however acknowledge that the Applicant’s role had already been changed following the Clamp Incident in 2018.129 Mr Tountas gave evidence as to the matters he took into account in reaching the decision to dismiss the Applicant which relevantly included the Applicant’s length of service and that his role had already been changed and despite that change he failed to follow safety procedures130.

[163] It is not contested that the Respondent’s operations at the Clayton Site involves high-risk activities and that the Respondent has implemented a safety system, including policies and procedures which relevantly include Take 2, Step Back 5 risk assessment procedures and Cardinal Rules that employees are trained in and required to comply with. 131 It is also self-evident that the Respondent and its employees are covered by the Occupational Health and Safety Act 2004 (Vic)(the OH&S Act) which imposes duties and obligations, breach of which can exposes individuals to penalties.

[164] The Applicant’s history of prior safety related incidents and warnings, on which I have made findings, has been traversed at length in this decision and I don’t propose to repeat the evidence here.

[165] As to the issue of the Applicant’s credit I have made specific findings as to the reliability of the Applicant’s evidence in respect of the Trolley Incident, the Clamp Incident and in respect of his initial lack of candour in his responses to Mr Tountas during the disciplinary meeting on 21 May 2019 over the Driveway Incident 132. The Respondent also refers to other instances of alleged dishonesty including;

• The Applicant states in his witness statement that he had looked for work 133 which was contradicted by his responses during cross-examination where he stated that he had not looked for work as he had been looking after his parents134.

• The Applicant initially stated that he had not claimed workers compensation arising from the Trolley Incident 135. That evidence was however contradicted by a letter dated 14 April 2016 from CSR accepting the Applicant’s workers compensation claim in relation to the injuries he sustained in the Trolley Incident136. The Applicant attributed the contradiction in his evidence to his confusion137.

Consideration

[166] I accept that the age, length of service and caring responsibilities of the Applicant, the facts of which were not contested, are significant matters to be considered. Those matters in the circumstances of this case weigh in favour of a finding that the Applicant’s dismissal was harsh. There are however other relevant factors that must also be considered.

[167] As to the Applicant’s submission that the Respondent failed to consider alternate roles, I do not accept that submission. The evidence is clear that the Respondent had previously considered mitigating factors such as the Applicant’s length of service when it changed his role, by agreement, following the Clamp Incident in 2018. The Applicant also accepted that the change in role in 2018 was implemented as an alternative to his dismissal following the Clamp Incident.

[168] I am satisfied that the Respondent considered the pattern of safety related behaviour displayed over a prolonged period before arriving at a decision to dismiss the Applicant. I accept Mr Tountas’ evidence that the decision was carefully weighed and not approached lightly, support for which is found in the approach adopted by the Respondent in dealing with the Applicant’s previous safety related incidents. There is no evidence that the Respondent rushed to dismiss the Applicant given the approach it had adopted towards the Applicant’s safety related breaches over several years. The alleged failure of the Respondent to consider alternate roles for the Applicant arising out of the Driveway Incident is not a factor that weighs in favour of a finding of unfairness.

[169] As to the Applicant’s submission that his conduct was not wilfully reckless or grossly negligent, this submission has no merit in my view and does not weigh in favour of a finding of unfairness in the dismissal. The behaviour of the Applicant over a prolonged period was that he repeatedly failed to follow required safety procedures. Whether the acts were wilfully reckless or grossly negligent was not argued before me and even if the acts did not fall into those categories of conduct, it does not mitigate the seriousness of the pattern of safety related breaches which ultimately led to the Applicant’s dismissal and which I have accepted established a valid reason for his dismissal. This factor does not weigh in favour of a finding of unfairness.

[170] The matters raised by the Respondent in relation to the Respondent’s efforts to establish a safe workplace and the Applicant’s history of warnings are certainly relevant matters to be considered. I have however already considered those factors in assessing whether there was a valid reason for the Applicant’s dismissal.

[171] As to the Applicant’s credibility, I have made findings and provided my reasons where I do not accept the Applicant’s evidence. Those findings do not lead me to conclude that the Applicant lacked credibility more generally. Balanced against the instances of alleged dishonesty of the Applicant, he also made numerous concessions and admissions during his giving of evidence, many of which were to his detriment. I am not persuaded that the Applicant’s credit is a matter that weighs either for or against a finding of unfairness. It is therefore a neutral consideration.

[172] The Respondent submits that a less stringent approach to safety prior to 2012 explains why there were not more warnings in place in that prior period. While it may be the case that the Respondent has necessarily adopted a more rigorous approach to OH&S matters since 2012 that is not a sound basis for me to conclude that the Applicant would have received more warnings had such an approach been adopted earlier. I place no weight on that submission.

[173] Finally, I accept that the OH&S duties of the Respondent and the Applicant under the Agreement, the Respondent’s policies and procedures and the OH&S Act are relevant factors in this matter, particularly given the hazardous work environment, which all witnesses agreed upon. I note however that all employers and employees have such obligations, although clearly some workplaces such as the Clayton Site, have more significant OH&S risks present. Considering the nature of the inherent OH&S risks present on the Clayton Site, I am satisfied that necessary compliance with OH&S policies and procedures and relevant OH&S laws are factors that weigh against a finding of unfairness in the present matter.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[174] I have made findings in relation to each matter specified in section 387 as relevant.

[175] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 138 Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

[176] In reaching the above conclusion I have carefully weighed the existence of a valid reason for the Applicant’s dismissal along with what was a procedurally fair process against which I have considered the Applicant’s age, length of service and caring responsibilities. Those latter factors which weigh in favour of a finding of harshness are not sufficient in the circumstances of this case to outweigh those other factors to which I have referred. Particularly relevant in this case is the criticality of safety in a high-risk work environment and the Applicant’s pattern of safety related misconduct over an extended period of time.

Conclusion

[177] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

C. Larkins on behalf of the Applicant

M. Douglas on behalf of the Respondent

Hearing details:

2019
Melbourne
25 September and 3 October

Printed by authority of the Commonwealth Government Printer

1 Exhibit R46, Witness Statement of Mr George Tountas, dated 6 September 2019, at [4]

2 Exhibit A1, Witness Statement of Mr Ashley Williams, dated 12 August 2019, at [4]

3 Exhibit R33

4 Exhibit R46 at [5], Exhibit R32

5 PR571860

6 Exhibit A1 at [6]-[7]

7 Exhibit R46 at [7], Transcript at PN88-PN90, PN1346-PN1348, PN922-PN924

8 Exhibit R46 at [9]-[10]

9 Ibid at [13]

10 Ibid at [11], Exhibit R1

11 Exhibit R2

12 Exhibit R3

13 Transcript at PN119-PN130

14 Exhibit R7

15 Exhibit R46 at [15]-[16]

16 Exhibit R6, Transcript at PN170-PN175,

17 Exhibit R15

18 Transcript at PN201

19 Exhibit R17

20 Exhibit R18, Transcript at PN214

21 Exhibit R20

22 Transcript at PN237

23 Exhibit R35

24 Ibid at PN 254

25 Exhibits R21 & R22

26 Exhibit R36

27 Exhibit R37

28 Exhibit R38

29 Exhibit R27

30 Exhibit R33

31 Exhibit R32

32 Exhibit R8

33 Transcript at PN 642

34 Exhibit A1 at [56]

35 Exhibit R44

36 Exhibit R12

37 Exhibit R46 at [31], Transcript at PN762

38 Transcript at PN763-PN767

39 Exhibit R46 at [32] & [35]-[36]

40 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

41 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

42 Ibid.

43 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

44 Edwards v Justice Giudice [1999] FCA 1836, [7].

45 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

46 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

47 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

48 [2013] FWCFB 6191 at [22]

49 Ibid at PN201

50 Ibid at PN207

51 Ibid at PN202, PN205-206

52 Ibid at PN209

53 Ibid at 208

54 Ibid at PN211-PN213

55 Ibid at PN214

56 Ibid at PN233

57 Ibid at PN237

58 Ibid at PN241

59 Ibid at PN242-PN247

60 Ibid at PN 261-PN270, Exhibit R3

61 Exhibit R23

62 Ibid, Transcript at PN274-PN280,

63 Exhibit R24, Transcript at PN 281-PN287

64 Transcript at PN286

65 Exhibit A1 at [29]

66 Transcript at PN309, PN315-PN325

67 Exhibit R41

68 Exhibit R46 at [62]-[63]

69 Exhibit R46 at [54]-[55]

70 Transcript at PN 1017-PN1020

71 Ibid at PN386-PN392

72 Exhibit R22 at page 9

73 Exhibit A1 at [32]

74 Ibid at [39]

75 Transcript at PN553

76 Exhibit R43

77 Transcript at PN538-PN556

78 Exhibit A1 [40]-[43]

79 Ibid at [49]

80 Exhibit R34

81 Exhibit R46 at [21]

82 Ibid at PN625-PN631

83 Exhibit A1 at [53]-[55]

84 Transcript at PN664

85 Ibid at PN668, PN670-PN671

86 Ibid at PN703

87 Ibid at PN656

88 Ibid at PN710-PN711

89 Exhibit A2, Witness Statement of Mr Rodney Thickens, dated 20 September 2019, at [5]

90 Transcript at PN1055-PN1067

91 Ibid at PN1055, PN1068

92 Exhibit R9

93 Exhibit R46 at [18]-[19]

94 Transcript at PN1163-PN1180

95 Ibid at PN1181-PN1184

96 Ibid at PN1219-PN1222

97 Ibid at PN973

98 Ibid at PN754

99 Ibid at PN973-PN977

100 Exhibit A1 at [9]

101 Ibid at [11]-[12], Annexures D & E

102 Ibid at [13]

103 Ibid at [14]

104 Exhibit R46 at [83]-[85]

105 Exhibit R45 at [10]

106 Exhibit R9 at Page 6

107 Ibid

108 Transcript at PN973

109 Ibid at PN974

110 Ibid at PN975

111 Ibid at PN976-PN977

112 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

113 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

114 Ibid.

115 See paragraph [92]

116 Exhibit R33

117 Ibid at [50]

118 Transcript at PN598-PN599

119 Ibid at PN613, PN618

120 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

121 RMIT v Asher (2010) 194 IR 1, 14-15.

122 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

123 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

124 Exhibit A1 at [1]-[2]

125 Exhibit A2 at [7], Transcript at PN1333

126 Ibid at PN1372-PN1377

127 Transcript at PN1350-PN1352

128 Exhibit A2 at [4]

129 Transcript at PN 1377-PN1378

130 Exhibit R46 at [33], Transcript at PN988-PN990

131 See [11]-[12] of this decision

132 See for example [111], [114] & [125]

133 Exhibit A1 at [62]

134 Transcript at PN800-801

135 Exhibit A1 at [31]

136 Exhibit R40

137 Transcript at PN154

138 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

Ashley Williams v Viridian Glass Limited

[2020] FWC 250

17 JANUARY 2020

DECISION

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?