"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch v Berri Limited T/A the Daily Drinks Co

[2016] FWC 9015

[2016] FWC 9015

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch
v
Berri Limited T/A The Daily Drinks Co
(C2016/5933)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 16 DECEMBER 2016

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) notified a dispute pursuant to s. 739 of the Fair Work Act 2009 (the Act) on 4 October 2016.

[2] The parties have agreed that, following a full hearing on the merits, I would issue a Recommendation as to the appropriate disciplinary action to be taken against an employee of Berri Limited t/a The Daily Drinks Co. (Berri) for an alleged breach of safety and safety related policies on 23 August 2016.

[3] As a result of that alleged breach Berri proposed to terminate the employment of Mr Kodak.

[4] The AMWU submitted that termination of employment would be a disproportionate outcome.

[5] The AMWU pursued all merit issues and mitigating factors. I have considered those merit issues and mitigating factors.

[6] I have considered the extensive evidence provided by Berri and taken into account the detailed forensic cross-examination of its witnesses by Mr Howe as to the training in, and communication of, its relevant policies. I am satisfied that Berri has made it abundantly clear to its employees, including Mr Kodak, as to when LOTO and JSRA must be applied and has communicated that information properly and effectively.

[7] I am satisfied that Mr Kodak’s actions were a breach of safety and Berri’s safety related policies.

[8] I have concluded that the disciplinary action of termination of Mr Kodak’s employment, as proposed by Berri, is an appropriate outcome in all the circumstances.

[9] I recommend to the parties that:

A. Mr Kodak be offered the opportunity to resign his employment.

B. If Mr Kodak does not resign that Berri implement its decision to terminate the employment of Mr Kodak with notice.

[10] I will issue reasons for my Recommendation if requested to do so by the parties.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Howe of the Australian Manufacturing Workers’ Union for the applicant.

Mr L Izzo of Australian Business Lawyers for the respondent.

Hearing details:

2016

November 4 and 16

Sydney

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