Christian Guillemain v Woolworths Limited T/A Melbourne Liquor Distribution Centre
[2017] FWC 6961
•21 DECEMBER 2017
| [2017] FWC 6961 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christian Guillemain
v
Woolworths Limited T/A Melbourne Liquor Distribution Centre
(U2017/5477)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 21 DECEMBER 2017 |
Application for an unfair dismissal remedy.
[1] On 23 May 2017, Mr Christian Guillemain (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Woolworths Limited T/A Melbourne Liquor Distribution Centre (Respondent) (MLDC).
[2] Mr Guillemain was dismissed from his employment on 12 May 2017 at the initiative of the employer. The dismissal took effect immediately. Mr Guillemain submits his dismissal was unfair.
Procedural Background
[3] The matter was listed for conciliation on 9 June 2017 however was unable to be resolved. It was subsequently listed for a determinative conference before me on 28 September 2017.
[4] On 15 August 2017 I issued a decision 1 in which I declined the applications by both Mr Guillemain and MLDC to be represented by a lawyer or paid agent pursuant to section 596 of the Act.
[5] Mr Guillemain attended the determinative conference and gave evidence on his own behalf.
[6] Mr Daniel Tan, Employee Relations Specialist – Supply Chain, appeared on behalf of MLDC. Ms Stacey Mienis, Operations Manager, gave evidence on behalf of MLDC.
Preliminary Matters
[7] Section 396 of the Act requires that the following matters be decided before the merits of Mr Guillemain’s application may be considered:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 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;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code);
(d) whether the dismissal was a case of genuine redundancy.”
[8] Mr Guillemain’s application was filed within the period required by section 394(2) of the Act. 2
[9] During his employment with MLDC, Mr Guillemain was covered by the Woolstar Pty Limited Melbourne Liquor Distribution Centre Enterprise Agreement 2014 - 2017. 3 He wasemployed by MLDC from 25 June 2007 until his dismissal on 12 May 2017.4 I find Mr Guillemain to be person protected from unfair dismissal.
[10] As at 12 May 2017, MLDC employed approximately 190,000 employees. Therefore the Small Business Fair Dismissal Code does not apply in this case. 5
[11] No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy. 6
[12] Therefore the issue for me to consider is whether Mr Guillemain’s dismissal was harsh, unjust or unreasonable.
Background and facts not in dispute
[13] Mr Guillemain was employed as a full-time afternoon shift team leader in a large liquor distribution centre owned by MLDC. He had been the afternoon shift team leader for at least 5 years and was responsible for between 40-120 employees at the Laverton site. 7
[14] Mr Guillemain reported to the shift manager, Mr Shannon Sinfield. Mr Nathan Dawson was the relief Shift Manager at the time of the incident that led to Mr Guillemain’s dismissal. The shift manager reports to the operations manager, Ms Stacey Mienis, who in turn reports to the site manager, Mr Damien Johnson. 8
[15] Mr Guillemain was dismissed without notice or payment in lieu of notice on 12 May 2017 for an alleged serious safety breach. 9
[16] The incident that led to Mr Guillemain’s dismissal occurred on the afternoon shift of 9 March 2017, when a Linfox truck that had been loaded earlier that day returned to the MLDC Laverton because the truck had been overloaded, causing the rear roller door to become jammed. 10
[17] The truck had been overloaded by 2 pallets and the cargo bars were thrown on top of the load. Sometime between the loading of the truck and it arriving at its destination the cargo bars had moved, jamming the rear roller door of the truck preventing it from opening. 11
[18] Mr Guillemain was requested to go to door 17 by Sinafoni Vai, the dispatch clerk. 12 When he arrived, the door of the truck was being held halfway open by the tines of a forklift. A number of the boxes containing alcohol had fallen. One of the employees was inside the truck removing boxes and the truck driver was instructing employees on what to do.13
[19] The events that happened next are a matter of contention between the parties and led to Mr Guillemain being investigated for a series of safety breaches. I will return to those events later in this decision.
[20] On 18 April 2017 Mr Guillemain was interviewed by Mr Shannon Sinfield and Ms Stacey Mienis. Mr Guillemain declined to have a support person present. 14 During the interview, Mr Guillemain was shown CCTV footage of the incident that occurred on 9 March 2017 and was invited to provide an explanation as to what had happened. Mr Guillemain was suspended on full pay pending the completion of an investigation into the alleged safety breach.15
[21] On 24 April 2017 MLDC sent Mr Guillemain a letter setting out the allegations against him and inviting him to respond to those allegations in a meeting scheduled to take place on 26 April 2017. 16
[22] On 26 April 2017 Mr Guillemain attended the meeting and was interviewed by Ms Mienis. Present at the meeting were Ms Wendy Mitchell from Human Resources and Mr Guillemain’s support person, equity officer Mr John DePetro. Mr Guillemain provided responses to the allegations at that meeting. 17
[23] On 8 May 2017 Mr Guillemain was sent a letter to attend a show cause meeting to be held on 9 May 2017. Mr Guillemain attended the show case meeting as scheduled and declined to have a support person present. 18
[24] On 12 May 2017 Mr Guillemain attended another meeting where he was informed that he was being dismissed from his employment.
[25] The key facts in dispute in these proceedings relate to the events of 9 March 2017 and, in particular, whether Mr Guillemain:
• Failed to follow proper procedures and direct staff to stop what they were doing immediately upon arrival at the incident;
• Placed himself under the forklift tines and allowed other team members to do the same;
• Failed to follow the MLDC risk assessment process and consult with the health and safety representative (HSR) on site prior to addressing the hazard; and
• Failed to follow up on immediate corrective actions.
Submissions and Evidence
[26] Mr Guillemain’s submission is that when he arrived at door 17 he instructed the employees to cease what they were doing 19, assessed the situation, removed the obstruction and then followed the proper process, creating an incident report in the Pulse system (MLDC’s incident reporting system). He submitted that the forklift had been switched off from the time he arrived.20
[27] Mr Guillemain denies placing himself under the tines of the forklift whilst they were holding the rear roller door of the truck up. Mr Guillemain disputes that there is a safety risk to an employee placing themselves under tines of a forklift whilst loaded. He further disputes that he failed to follow the correct Occupational Health & Safety (OH&S) procedures. 21
[28] MLDC submits that Mr Guillemain placed himself and others safety at risk by placing himself under the tines of an operating forklift which was under an unknown load capacity. They submit Mr Guillemain failed to notify and consult with the HSR and failed to conduct a Risk Assessment at the time of the incident. 22
[29] They submit Mr Guillemain failed to follow the most basic and rudimentary of OH&S procedures, making critical OH&S failures by not immediately stopping the work, isolating the area and removing the team members from the risk. 23
[30] Further, MLDC submit Mr Guillemain did not properly describe or fully explain the incident in his Pulse report. The full extent of the incident was only realised after a member of senior management reviewed the CCTV footage some weeks later. 24
Did Mr Guillemain fail to follow proper procedures and direct staff to stop what they were doing immediately upon arrival to the incident?
[31] Mr Guillemain’s evidence is thatupon arriving at the incident he observed around 5 staff attending to the situation. 25 One staff member was inside the truck unloading boxes and the driver was instructing the staff on what to do. Mr Guillemain submitted that he spoke to the truck driver and then instructed all the employees to stop what they were doing.26
[32] Mr Guillemain’s evidence was that in similar incidents they would attempt to open the door manually and, if that failed, they would send the truck back to Transport for them to deal with. 27 It was his experience that if a fully loaded truck had a jammed door then something has fallen down inside the truck causing the door to jam.28 When Mr Guillemain arrived at the incident he submitted he was faced with unfamiliar circumstances and the usual process had not been complied with. 29
[33] As there was no other direct process in place to inform him of how to deal with the matter, Mr Guillemain submitted he viewed the incident, assessed it and made a call. He described the steps of assessing a situation essentially as;
• Assess how they had arrived at the stage they were at when he arrived
• Identify the hazard
• Stop everything
• Review the situation
• Remove the hazard30
[34] Mr Guillemain submitted that the forklift had been switched off from the time he arrived, so there was no danger from forklift movement. 31 His evidence was that he went to the truck, bent down and looked in and could see that two cargo bars were pushing down on the door and a box.32
[35] Mr Guillemain also submitted that at this time the forklift tines were next to him and there were boxes on the tines. 33 He stated that the forklift driver could not have seen that he was lifting boxes as he tried to lift the door, and the door was open to approximately 1.2 metres.34
[36] Mr Guillemain submitted that he then crouched to look into the truck, reached in to remove the box and cleared the obstruction. After this the forklift started up, dropped its tines and backed away from the door. 35
[37] Mr Guillemain believed that it was within his duties to rectify the hazard and that he did so safely. He submitted he had done what was expected in assessing the situation and removing the hazard in a safe manner where nobody was hurt or put at risk. 36
[38] Mr Guillemain’s oral evidence was that when he arrived at the incident the driver explained why the door had become jammed. The driver was standing in a location in which he shouldn’t have been when a truck was being loaded or unloaded, which meant he had placed himself in a position of danger. Mr Guillemain gave evidence that he told the driver “Okay, you know what, just leave this alone. You need to go”.37 He then instructed the team members to stop as he needed to understand what was causing the hazard. There were boxes falling down and the “guys” had been picking them up.38
[39] Mr Guillemain’s evidence was that the forklift driver could not see what was going on because his forklift tines were raised obstructing his view. The raised tines were pushing the boxes sideways and landing under the tines.39 Mr Guillemain explained that whilst the forklift tines were holding the door up the employees were climbing under the door and removing the boxes that were falling.40
[40] Mr Guillemain’s oral evidence was that he then told the forklift driver “Can you please switch off your fork and stay where you are because I need to see what’s going on”.41 He submitted he directed the forklift driver “Stay in your forklift. Do not move”. His evidence was “having driven a forklift for 30 years or so I saw no danger there that anybody was going to get crushed or get hurt, because I’m far more comfortable having a forklift driver on the forklift sitting there, the forklift switched off, foot on the brake and handbrake on, because I actually saw the handbrake on.”42
[41] In cross-examination, Mr Guillemain’s evidence was that the forklift handbrake was located on the left hand side of the driver43. This factor becomes relevant when the CCTV footage of Mr Guillemain entering the incident was viewed.
[42] Ms Mienis referred to the CCTV footage of the incident in which there was a flashing light on the rear bar of the forklift. 44 Ms Mienis submitted that this light only operates when the forklift is powered on.45 The light on the forklift remained flashing for the entire period of the incident.
[43] Ms Mienis’ evidence was that each driver uses a scan card to start and stop a forklift, with the data from the scan card recorded into a system used for recording vehicle activity. The log report for the forklift shows that the forklift was actively powered on during the period of the incident in question. 46 Since the incident Ms Mienis had conducted a test on the actual forklift used during the incident. Her evidence is that the forklift lights on the back of the forklift, which were visible as flashing in the CCTV footage, could not operate without the forklift being powered on.47
[44] When provided with a copy of the vehicle activity report and shown the CCTV footage of the incident, Mr Guillemain conceded that the forklift had not been switched off during the period of the incident. 48
[45] Ms Mienis’ evidence was that Mr Guillemain had been adequately trained in the process of hazard identification back in 201049, which was supported by the MLDC training records. Mr Guillemain completed further safety training in 2012 and 2014. Ms Mienis evidence was that Guillemain had undertaken the Hazard Reporting & Risk Assessment training for Site Operational Leaders. 50 When there is a hazard identified the first step is to isolate the hazard, stop and pause.51
[46] The Woolworths Code of Conduct also required Mr Guillemain to “immediately stop any job or task that presented as unsafe”.52 Mr Guillemain does not dispute the accuracy of the training records and was familiar with both the Code of Conduct and Hazard Reporting & Risk Assessment training documents presented as evidence. 53
Did Mr Guillemain place himself under the forklift tines and allow other team members to do the same?
[47] Mr Guillemain’s evidence was that he had not personally seen anyone go under the tines of the forklift nor did he personally go under the tines.54
[48] Ms Mienis submitted evidence of two file notes, the first being the investigation interview conducted on 18 April 2017 in which Mr Guillemain is recorded to have stated that when he arrived at the incident he had witnessed employees going under the tines of the forklift. 55 The file note also records Mr Guillemain as accepting that it is not acceptable behaviour for employees to place themselves under the tines of a forklift. The second was the interview with Mr Guillemain on 26 April 2017 in which Ms Mienis recorded Mr Guillemain’s response to be that he had placed himself under the tines of the forklift.56 Mr Guillemain disputes the content of the file notes and contends that he did not say the employees were placing themselves under the tines of the forklift.57
[49] During the hearing Mr Guillemain was shown CCTV footage of when he and the other employees were alleged to have placed themselves under the tines of the forklift. It was not disputed that the evidence showed the outer edge of the forklift tines ran parallel with the outer edge of the forklift. 58 The CCTV footage showed Mr Guillemain placing his body in front of the forklift with only the outer edge of his shoulder visible. The rest of his body was not visible from the outer edge of the forklift.
[50] Ms Mienis’ evidence was that the CCTV footage was conclusive in presenting that Mr Guillemain was under the tines of the forklift. On review of the footage Mr Guillemain conceded that it may have shown other employees going under the tines, however his evidence was that from his point of view the footage shows him reaching across under the tines and holding onto the tines, he was very close to the tines but at no stage did he place his body under the tines. 59
[51] Whilst Mr Guillemain maintained that he did not place his body under the tines, he also contended that no one at MLDC had ever told him not to go under the tines of the forklift and further, that an employee’s safety was not placed at risk from going under the tines of a forklift. 60
[52] He relied on the WorkSafe Victoria handbook: Forklift Safety Reducing the Risk from February 200661 stating that there is nothing within the handbook that mentions you should not go underneath forklift tines. He also submitted that MLDC training had never specifically told him not to go under the forklift tines.62
[53] Inconsistent with this position, Mr Guillemain also gave evidence that “if a person goes underneath the tines and they are actually in the middle of the tines, both tines, looking at the forklift, if the fork moves for some reason, yes, they’re putting themselves in danger”.63
[54] In cross examination Mr Guillemain was shown section 10 of the handbook which specifically states that forklifts and pedestrians don’t mix and forklifts are one of the most dangerous pieces of equipment found in the workplace. 64 Mr Guillemain agreed with the contents of section 10 of the handbook, however his evidence is that there was no danger to employees as there was no load on the forklift.65
[55] His evidence to support this was that there were 5 boxes that fell sideways, each of which contained 24 stubbies of beer and weighed an estimated 12 to 13 kilograms. 66 Two of those boxes were resting on the tines.67
[56] Mr Guillemain’s evidence was that the two boxes resting on the tines, and the door being held up by the tines, were not to be considered as a load because the door was jammed, therefore there was no weight resting on the tines, even if the tines were required to hold the door up. 68
[57] If the boxes moved, he submitted they would fall sideways and the height they were falling from (1.2 meters) would not cause harm if it fell on someone. It was Mr Guillemain’s evidence that if a box containing 24 stubbies (which we agreed would be commonly termed as a slab) had fallen onto someone it would have been a minor first aid injury only. 69 He further stated in evidence that you cannot be hurt by a roller door coming down on you.70
[58] In cross-examination Mr Guillemain added that the cargo bars were also jamming the door causing resistance and this would equate to a load of approximately 50kg. 71 I understood Mr Guillemain’s evidence to be that only the cargo bars and the boxes were to be considered as load and not the actual door itself as it was on rollers which would hold it up at any height you raised it to.
[59] Ms Mienis’ evidence was that prior to her position as Operations Manager she had previously held roles as a Safety Coordinator and a Safety Manager as well as Maintenance and Facilities Manager. 72 Ms Mienis considered herself to be sufficiently experienced and well trained in the area of safety. Ms Mienis’ evidence was that Mr Guillemain had received adequate training in Incident/Injury & Hazard Reporting and Investigations73 and provided examples of where Mr Guillemain had previously been involved in the appropriate reporting and management of a number of forklift incidents.74 Mr Guillemain did not dispute this evidence.
[60] Mr Guillemain’s evidence was that there have been other safety incidents where he has been required to go under the forklift tines and there is no clear instruction as to when they can do this or when they can’t. Mr Guillemain provided an example from December last year when he was called to an incident in which some boxes had fallen from a height and he had to go under the forklift tines to remove the boxes. Mr Guillemain’s evidence was that they stopped the work they were performing, assessed the situation and consulted with the HSR. 75
[61] Ms Mienis’ evidence was that in this previous incident Mr Guillemain had been using the scissor lift, and the scissor lift would not physically have fitted into the space between the forklift and the racks, allowing Mr Guillemain to go under the tines of the forklift. 76 Mr Guillemain conceded that this was correct and stated that he had reached across to remove the boxes from the scissor lift, which meant that his body was placed under the tines, and that they had conducted a prior assessment to ensure it was safe to perform the task and that this was done with the aid of the HSR.77
[62] The WorkSafe Victoria handbook: Forklift Safety Reducing the Risk 78 that Mr Guillemain relies on, at section 10 states that almost half of all people injured by a forklift are pedestrians, with crushing being the most common form of forklift-related injury sustained by pedestrians. Half of the pedestrians killed were crushed by forklifts that were barely moving. At section 5 of the handbook it states;
“Even without a load, forklifts are heavy. Just like heavy vehicles (dump truck) they are weapons when not used correctly.”
[63] The handbook goes on to say that when a forklift has a raised load it becomes less stable. The handbook later states “Ensure pedestrians are not present during forklift operations.” Although the handbook does not specifically state that an employee should not place themselves under the tines of a forklift whilst in operation, it is reasonable to infer from its content that it would not be safe for someone to place themselves under the tines whilst the forklift is operating. This is consistent with Mr Guillemain’s earlier evidence.
Did Mr Guillemain fail to follow the MLDC risk assessment process and consult with the HSR on site prior to addressing the hazard? Did Mr Guillemain fail to follow up on immediate corrective actions?
[64] MLDC has a Supply Chain Safety Management system in place. MLDC submit they are regularly audited against this system to validate compliance. Within the system MLDC has an online national incident and hazard reporting system called Pulse. 79 Team Leaders hold fortnightly designated work group meetings with their HSRs to discuss any outstanding or new safety issues.80 There are monthly site safety meetings and safety is the first agenda item discussed at all fortnightly team meetings.81
[65] MLDC submits that Mr Guillemain failed to isolate the incident and direct employees to cease what they were doing when arriving at the incident. 82 They also submit he showed a lack of candour in filing out the Pulse Incident Report, characterising the incident inaccurately as a low grade incident, and failed to include all relevant details in the report, particularly that both he and other employees had placed themselves under the tines of the forklift.83
[66] It is not in contention that Mr Guillemain had received training in hazard reporting and risk assessment. He had also undergone specific training on working together with HSRs. Mr Guillemain’s argument centres on his submission that there was no specific process to deal with the unusual situation that he faced on 9 March 2017, therefore there was no breach of MLDC’s policies.
[67] Ms Mienis’ evidence was that, whilst Mr Guillemain may not have previously dealt with the specific hazard he faced on that day, he had been trained in dealing with hazards and in the absence of any set procedure he was aware there was a requirement to conduct a risk assessment in consultation with a HSR. Ms Mienis’ evidence was that Mr Guillemain acknowledged this in his interview. 84
[68] Ms Mienis’ evidence was that, although it was evident in the interviews conducted during the investigation that Mr Guillemain was aware of the processes, by not taking steps to immediately isolate the area and call a HSR to assist in assessing the risk and how to safely manage the issue he had not followed those processes. 85
[69] Ms Mienis’ evidence was that had Mr Guillemain accurately stated the facts in the Pulse report this would have alerted senior management to the seriousness of the incident. 86 Mr Guillemain categorised the incident at a CAT 4 which was a low severity rating and described the incident in the following terms;
“Truck overloaded with pallets which caused door to jam and truck coming back to DC to get unloaded.”87
[70] The incident details were described as follow;
“Fox781 truck came back on site at around 19:30 this afternoon and driver advised that door was jammed and not opening and he had to bring the truck back to the DC. Door was still jammed and could not be open by hand and forklift had to be sued to lift up door. One case was damaged as a result” 88 (sic)
[71] Ms Mienis’ evidence was that when she did receive the report, given the way Mr Guillemain had downplayed the severity of the incident, she did not act on it immediately. 89 It was Ms Mienis’ evidence that if Mr Guillemain had disclosed in the Pulse report that team members had placed themselves under the tines of the forklift the incident would have been more appropriately rated higher than a CAT 4, and this would have triggered an immediate escalation to a higher level of management and an investigation.90 The fact that Mr Guillemain did not fully disclose or accurately describe the incident in the Pulse report meant that senior management were not alerted to the seriousness of the incident.91
[72] Ms Mienis’ evidence was that Mr Guillemain further attempted to mislead management by not suspending the team members involved. 92 Ms Mienis provided evidence of previous incidents involving forklifts in which Mr Guillemain had taken immediate action to suspend employees from their forklift duties whilst an investigation was underway.93 Ms Mienis’ submission was that, should Mr Guillemain have suspended the employees, this would have drawn management’s attention to his conduct and he would have then also been investigated.94
[73] Ms Mienis’ evidence was that Mr Guillemain had stated in the Pulse report that he had consulted a HSR about the incident which was intentionally misleading. 95 However Mr Guillemain had later stated in the 26 April 2017 meeting that he could not remember there being a HSR on site and did not see one.96 Mr Guillemain has, since reviewing the footage of him talking to the HSR after the incident, again changed his story to include that the HSR was not on site earlier in the shift.97
[74] Mr Guillemain gave evidence that there was an earlier incident at around 5:30pm and they had attempted to call the HSR, however he was not on site at that time. 98 As he was unable to contact a HSR at the time of the earlier incident, Mr Guillemain submitted he did not attempt to contact a HSR when the second incident occurred some 2 hours later.99 It was not until later that he became aware the HSR had gone to the doctor to collect a certificate and had returned to the site. He then spoke with the HSR later in the shift after the incident had occurred.100
[75] Mr Guillemain’s evidence was as follows:
“I just fully had to report the typical incident. So I don’t have to put extreme details in there because I don’t know exactly what happened before that. Okay, it clearly stated that there was a hazard, I removed it. I clearly stated there on the next day that I informed the HSR was the day shift HSR, all right, not the afternoon HSR.” 101
“No, I did speak to an HSR because when we were reloading the truck he came around and I said “What are you doing here?” and he said “Oh, I had to go to the doctor and I came back” and I said “Well, I didn’t know you were here, but I’m not going to report it to you but this is what happened briefly. A door” - “a forklift was used to open a truck, some boxes fell down, we had to go in and clean it up. The cause of it, two cargo bars, was holding the door up and that was a hazard. I went in there, I fixed the hazard”. He said “Okay, no problems” and that’s it. That’s all he said.” 102
[76] In cross examination Mr Tan put to Mr Guillemain that he had previously suspended employees after incidents involving forklifts and that he knew that this was the procedure to follow. Mr Guillemain gave evidence that he knew to do this however hadn’t on this occasion because it was a completely different incident for which there was no procedure. 103
[77] Mr Guillemain gave evidence that, as he wasn’t there at the beginning of the incident, he requested to review the footage of the incident to see what had happened. 104 This point is in contention. Ms Mienis’ evidence is that Mr Guillemain requested to view the footage of the earlier incident so he could see what caused the door of the truck to jam and at no time had he requested to view the footage of the incident at door 17.105
[78] Mr Guillemain’s evidence was after the incident he completed the Pulse report, however because it was an unusual incident he rated it as a CAT 4 until he had the opportunity to sit down and discuss the incident with his shift manager. Mr Guillemain evidence was three weeks later, after Mr Sinfield had returned from holiday, he gave him the investigation report and requested assistance. Mr Guillemain approached him again three days later and requested a response as to what was happening and Mr Sinfield told him he would look at it straight away.106
[79] Mr Guillemain’s evidence was that he had not suspended the forklift driver, when he put the report in and because no one from management came back to him he did not conduct an investigation.107
[80] Mr Guillemain’s evidence was the only incidents he rates as high risk straight away are falls from heights, a serious injury or a collision because there are actual procedures that require him to do that. All other incidents are rated as low risk until he has an opportunity to make an assessment as to the risk.108
Consideration
[81] In considering whether there was a valid reason for a dismissal under s.387(a), the reasons being considered are the employer’s reasons. In cases relating to alleged conduct, the Commission must make a finding, whether, on the balance of probabilities, the conduct occurred not whether the employer has reasonable grounds to believe that it occurred. 109
[82] The Fair Work Regulations 2009 (the Regulations) define serious misconduct for the purposes of the Act as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[83] MLDC submit the reason for the dismissal of Mr Guillemain was for serious safety breaches being that he placed both himself and the safety of other employees at risk by going under the tines of a forklift whilst it was still in operation. As the team leader he failed in his duties by not directing other employees to stop what they were doing and allowing them to go under the tines of the forklift. Mr Guillemain’s failure to instruct employees cease what they were doing and isolate the incident was a breach of the MLDC policies and procedures, specifically the code of conduct and the Hazard Reporting and Risk assessment procedure.
[84]
The first task of the Commission is to establish whether there was a ‘valid’ reason for the dismissal. The meaning of ‘valid’ reason can be found in the words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 110;
“in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common sense way to ensure that” the employer and employee are each treated fairly ...”
[85] It is necessary for the Commission to decide whether the misconduct actually occurred. Mr Guillemain denies going under the tines of the forklift and denies that he failed to instruct employees to cease all activity upon his arrival at the incident. Mr Guillemain then submits that there is no actual procedure on how to deal with the incident he encountered on 9 March 2017, and subsequently he cannot be guilty of misconduct.
[86] In Northey v Bradken Resources Pty Limited 111 the Deputy President emphasised the following;
“[177] However, at this point, it needs to be emphasised that conduct which can cause a serious and imminent risk to the health and safety of a person may not be wilful, malicious, intentional or deliberate to constitute a valid reason for dismissal. Carelessness , skylarking or taking short cuts, readily spring to mind as examples of circumstances where the safety of others might be imperilled and such conduct would still constitute serious misconduct. Nevertheless, each case must be decided on its own specific set of facts and circumstances within the rubric of the legislative provisions and relevant authority.”
[87] In the Appeal by B, C and D 112 [2013] FWCFB6191Full Bench of the Commission observed;
“[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
…
[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.”
Harsh, Unjust Unreasonable
[88] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[89] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.113 McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”114
[90] I will now consider each of the matters set out in s.387 of the Act.
Was there a Valid Reason for the dismissal- s.387(a)
[91] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 115 The reason for the dismissal should be “sound, defensible and well founded”116 and should not be “capricious, fanciful, spiteful or prejudiced.”117
[92] 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. 118 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).119
[93] MLDC’s evidence included training records and training materials for the training which Mr Guillemain had undertaken. MLDC’s evidence was that there was a strong safety culture which included monthly and fortnightly safety meetings, daily hazard identification and various other safety awareness activities that Mr Guillemain was involved in. This evidence was not disputed by Mr Guillemain. Rather, Mr Guillemain acknowledged he was familiar with both the Code of Conduct and the Hazard Reporting and Risk Assessment procedure.
[94] I have viewed the CCTV evidence and considered all of the evidence put before me by the parties. It was Mr Guillemain’s evidence that the situation he faced on 9 March 2017 was unusual. Given the situation was unusual, on the evidence before me I am of the view Mr Guillemain was aware that he should have stopped work and isolated the incident, and then consulted the HSR before taking any further action.
[95] Mr Guillemain’s awareness of this requirement was demonstrated in both his evidence and his responses given to Ms Mienis during the investigation of the incident. As a shift team leader with significant experience Mr Guillemain failed to take the first step in ensuring his fellow workers were conducting their duties in a safe manner at all times. His conduct had the effect of placing his fellow employees and his own health and safety at risk.
[96] Although Mr Guillemain’s evidence is that there was no clear process established to deal with the particular incident he faced at the time, it is clear from the evidence that Mr Guillemain at the very least was required to direct employees to stop what they were doing and isolate the incident.
[97] On this matter I find it somewhat difficult to reconcile that Mr Guillemain’s evidence in defence is that he did instruct employees to cease activity, which demonstrates he has acknowledged a requirement to cease all activity upon entering an incident which had the potential to be a safety risk, and he acknowledged the existence and his previous compliance with the Hazard Reporting and Risk Assessment procedure, yet on the other hand he contends that no such a procedure exists.
[98] I am not satisfied on the evidence before me that upon his arrival at the incident, or at any stage during the incident, Mr Guillemain instructed the forklift driver to turn the forklift off. Nor am I satisfied that Mr Guillemain was able to establish that the handbrake was in fact on. Mr Guillemain entered the incident approaching from the rear right hand side of the forklift, in considering his evidence on the location of the handbrake, it was physically not possible for him to be able to confirm the handbrake was on at the time he began to deal with the incident.
[99] I am satisfied that he directed the truck driver to remove himself from the area however I am not satisfied that Mr Guillemain directed any other staff member to cease what they were doing, nor did he take any steps to isolate the incident.
[100] I am not satisfied that the evidence establishes that it is common practice for employees to place themselves under the tines of a forklift. The evidence provided by Mr Guillemain to support this proposition included examples of risk assessments being performed with a HSRs involvement prior to performing such a task. I accept the evidence of Ms Mienis that MLDC does not condone any such task being performed without a risk assessment.
[101] I am not satisfied that Mr Guillemain’s evidence goes to establishing that an employee is not placing their health and safety at risk by placing themselves under the tines of a forklift whilst it is loaded and operating. Loaded or not loaded, an employee should not stand or squat down under the tines of a forklift whilst it is switched on and operating without doing an appropriate risk assessment. It is simply not safe to do so. The WorkSafe Handbook states quite clearly that forklifts and pedestrians don’t mix.
[102] I am also satisfied that the footage shows Mr Guillemain placing himself directly under the tines of the forklift. The CCTV footage shows Mr Guillemain crouching down, he then moved his body in front of the forklift, under the tines and, other than the outside edge of his shoulder, he was barely visible. When it was put to Mr Guillemain that the CCTV footage clearly showed he was under the tines of the forklift, Mr Guillemain was considered in the words he chose in his response stating it was ‘his point of view that he wasn’t completely under the tines’120.
[103] I am not persuaded by Mr Guillemain’s evidence that he had not admitted to doing so in the interviews with Ms Mienis. There is no evidence before me that would persuade me to believe that Ms Mienis, for some reason unknown to Mr Guillemain or anyone else, would have inaccurately recorded this one single component of her interview with Mr Guillemain during the investigation into the incident. Mr Guillemain did not seek to challenge the accuracy of any other component of the interview records presented as evidence by Ms Mienis.
[104] Further, I am satisfied that Mr Guillemain was present whilst other employees were under the tines of the forklift. Given that it was his view that there was no risk to an employee’s safety it is plausible that he did not instruct the employees to not place themselves under the tines of the forklift, thus allowing them to put their safety at risk. Therefore I am satisfied, upon arrival at the incident, Mr Guillemain failed to instruct the employees to cease their activities and not place themselves under the tines of the forklift.
[105] Mr Guillemain’s evidence was that upon arriving at the incident he assessed the risk and proceeded to manage the risk, however later in cross-examination about the Pulse report Mr Guillemain’s evidence was somewhat conflicting. His reasons for rating the incident as low risk and not including the details of his or the other employees’ actions in the Pulse report was because he had not yet had the opportunity to assess the potential risk of that particular incident. However in his evidence Mr Guillemain was clear that his responsibility was to assess the hazard, control the hazard and remove the hazard. Mr Guillemain was able to cite on a number of occasions throughout the hearing the requirements of a risk assessment.
[106] Therefore I am satisfied that Mr Guillemain had received sufficient training in hazard identification and management and was aware that he was to stop what was going on upon arrival at an incident and isolate the incident, which he failed to do on this occasion.
[107] Although he was trained in how to rate the severity of incidents Mr Guillemain rated the incident as a low severity incident. The effect of the low rating was that management were not alerted to the potential severity of the incident at the time of the, thus causing an explainable delay in the initiation of an investigation into Mr Guillemain’s conduct. It is important to note that once management had become aware of the severity of the incident, the investigation was conducted without delay.
[108] In the current circumstances Mr Guillemain argues that, in filling out the Pulse report the way he did, there was no intention to mislead management about the severity of the incident. Unless there is a fall from heights or a collision, he simply rates all incidents as low until after he has had the opportunity to conduct a full investigation. The evidence before me suggests Mr Guillemain was simply taking a number of short cuts in circumstances where he should not have been and he was aware by taking those shortcuts he was not following the correct procedures.
[109] The evidence establishes that Mr Guillemain failed to follow the code of conduct by failing to immediately stop both himself and other employees from performing a task whilst the risk of harm was unknown. Although Mr Guillemain was aware of his responsibilities he failed to isolate the incident, conduct a risk assessment and he failed to consult with the HSR about the incident, which was a breach of the site’s risk assessment and hazard reporting process. I consider the conduct in question amounts to a valid reason for termination of Mr Guillemain’s employment, in that it was a sound, defensible and well-founded reason.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
[110] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 121, and in explicit122 and plain and clear terms.123 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[111] 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. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 124 Where an 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 of this section.
[112] I find that Mr Guillemain was notified of the reasons for his dismissal in a meeting with Ms Mienis at the time of his dismissal and had previously been provided with a letter containing the allegations against him on 24 April 2017. Mr Guillemain’s evidence was that he was provided with the reasons. The reasons were confirmed in writing on 12 May 2017.
[113] I find that Mr Guillemain had an opportunity to respond to each of the reasons relating to his conduct prior to his dismissal.
Unreasonable Refusal of a Support Person – s.387(d)
[114] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.125 With respect to this consideration, the Explanatory Memorandum states:
“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.126
[115] There was no unreasonable refusal of a support person. Mr Guillemain elected to have a support person at the meeting of 26 April 2017. Mr Guillemain was offered the opportunity to have a support person present at the meetings of 9 and 12 May 2017, however he declined to take up that opportunity.
Warnings regarding Unsatisfactory Performance – s.387(e)
[116] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.127 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.128 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.129
[117] This was a case of summary dismissal, therefore subsection (e) of s.387 is not applicable to these circumstances. However, it was recognised that Mr Guillemain had not received any warnings prior to the incident.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[118] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.130 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.131
[119] MLDC is a large employer with an established human resource function and considerable expertise in this area. I do not consider that the matters dealt with in s.387(f) and (g) affect the circumstances in this matter.
Other Relevant Matters – s.387(h)
[120] Mr Guillemain made a further submission that MLDC’s failure to immediately investigate the incident of 9 March 2017 meant that they had effectively condoned his behaviour. 132 It was Mr Guillemain’s submission that management were aware of the CCTV footage and continued to allow him to perform his role.133
[121] In his witness statement Mr Guillemain states that he had made request to Mr Dawson, the relief shift manager, to view the footage of the incident to see what had happened before he arrived at the truck. Mr Guillemain’s statement was that another staff member had told him that management had viewed the footage sometime around 13 March 2017. 134 Mr Guillemain did not call that witness to give evidence.
[122] MLDC do not dispute that Mr Dawson, who is a peer of Mr Guillemain, was informed of the incident. However given the lack of detail expressed by Mr Guillemain as to the severity and nature of the incident, and the difficulty with the way the Pulse report reflected the incident, Mr Dawson did not act on the matter and was counselled for his failure to make further inquiries. 135
[123] Ms Mienis’ evidence was that the other staff member referred to by Mr Guillemain only viewed incident 1, involving the loading of the truck earlier that day, as Mr Guillemain wanted to understand how the truck had come to be overloaded. She had no involvement with incident 2, being the incident at door 17 later that day. 136
[124] On 20 March 2017 Mr Callaghan, safety manager, returned from leave. Mr Guillemain’s evidence was that he informed him that there had been an incident and that he had not seen the footage. He requested Mr Callaghan view the footage and come back to him. 137
[125] Mr Guillemain submitted that he then approached Mr Sinfield and asked him to view the footage. Mr Guillemain’s statement was that he viewed part of the footage with Mr Sinfield and then had to leave a short time later. 138 Mr Guillemain, the Safety Manager and the Shift Manager had a meeting the following day and decided on a course of action, which included conducting an investigation, however as it was now close to Easter this was delayed.139
[126] Ms Mienis’ evidence was that again, Mr Guillemain only requested to view the footage of the first incident in which the truck was incorrectly loaded. 140
[127] Mr Guillemain’s oral evidence was that he discussed the incident with the Safety Manager when he returned from leave, gave him the Pulse report number and, sometime around 28 March 2017, the Safety Manager told him to investigate the incident. Mr Guillemain stated that the Safety Manager advised him that he thought the forklift driver should get warning. 141
[128] Mr Guillemain’s oral evidence was that at the 28 March 2017 meeting he had discussed the entirety of the footage with the Safety Manager and that he had asked the Safety Manager what actions they would like him to take. 142 This was inconsistent with Mr Guillemain’s evidence that he had not had the opportunity to discuss the footage and that nobody had come back to him after repeated requests.
[129] Ms Mienis’ evidence was that Mr Guillemain had raised the incident with the Safety Manager sometime later. However, due to the way Mr Guillemain presented the information, the Safety Manager did not think the matter was critical. 143
[130] Ms Mienis’ evidence is that Mr Guillemain was intentionally being evasive about the incident when he reported it to management. There were two incidents on 9 March 2019. The earlier incident was when the truck was overloaded, and Mr Guillemain had requested to see the footage of the first incident to establish how the truck had come to be overloaded, not the second. 144
[131] Ms Mienis’ evidence is that neither herself nor any other member of management had viewed the footage of the second incident until around 13 April 2017 when Mr Johnson, Supply Chain Manager, called her to his office after viewing the footage himself. 145 This was just prior to Easter weekend and the decision was to suspend Mr Guillemain and investigate the incident.146 The investigation identified 4 other employees who were involved in the incident and each had union representation.147
[132] Ms Mienis’ evidence was that, of the 5 employees involved in the incident, only 2 employees retained their employment. 148 She submitted the circumstances differed for these employees for reasons including that they were remorseful, acknowledged their behaviour and acknowledged how they could do things differently in the future. Further, one of the employees who retained their employment had reported the incident to Mr Guillemain in the first place, and the other had been trying to stop boxes falling on an employee who had placed himself under the tines of the forklift.149
[133] It is evident that Mr Guillemain had raised ‘an incident’ with a number of other staff members. However it is not evident from Mr Guillemain’s evidence that he informed any of those individuals about the severity of the issue. Simply telling people that a truck returned to the warehouse with its door being jammed shut due to it being overloaded does not give any indication as to the true nature of the incident.
[134] The Pulse report does not spell out in detail that the incident had the potential to cause a serious risk to the health and safety of the employees who were involved in the incident. Further, Mr Guillemain had chosen to rate the incident as being of low risk. This would then not raise any red flags with management and therefore the incident remained off the radar for some time.
[135] Once management became aware of the severity of the incident, there was no time wasted in investigating the situation. Meetings were scheduled within a reasonable time frame and each interview participant was afforded the opportunity for representation. Ms Mienis’ evidence was that each participant, other than Mr Guillemain, was represented by their union.
[136] The sheer absence of any action by management at an earlier stage was as a direct result of the failure of Mr Guillemain to communicate the actual facts of the situation and the misreporting of the severity in the Pulse system. Therefore it is not possible to draw the conclusion that MLDC condoned the behaviour of Mr Guillemain by failing to act earlier.
Finding
[137] When making my finding as to whether Mr Guillemain’s dismissal for misconduct was harsh, unjust or unreasonable, I have considered the broader context in the workplace in which the incident occurred as well as the fact that Mr Guillemain has not received any previous warnings throughout the term of his employment. I have also taken into account evidence as to any personal or private circumstances presented by Mr Guillemain that may have affected his conduct on that day.
[138] I have considered those matters together with the other matters dealt with in s.387 of the Act, and in all the circumstances I am not satisfied that the dismissal was harsh, unjust or unreasonable.
[139] MLDC has strict procedures for how safety incidents should be approached, and the Code of Conduct required Mr Guillemain to cease all activity at the incident upon arrival. He failed to do so. He allowed other employees to put their safety at risk by putting themselves underneath the tines of a powered on forklift and did the same himself. Further, Mr Guillemain was intentionally misleading in his reporting of the incident. I am therefore satisfied that MLDC were justified in dismissing Mr Guillemain for reasons of serious misconduct.
[140] Given the findings I have made, I find that Mr Guillemain’s dismissal was not unfair and the application for an unfair dismissal remedy is dismissed. An order 150 dismissing the application is attached to this decision.
COMMISSIONER
Appearances:
C. Guillemain on his own behalf;
D. Tan for the Respondent.
Hearing details:
2017
Melbourne
28 September
1 [2017] FWC 4236
2 PN175-176
3 PN918
4 PN191
5 PN192-193
6 PN194-195
7 PN196-197; Exhibit A2 [5]
8 PN203-215
9 PN216-218
10 PN219-223
11 Exhibit A2, [15]
12 PN225-230
13 Exhibit A2, [19] – [20]
14 PN234-238
15 PN239-244
16 PN248-251
17 PN253-268
18 PN283-284
19 Exhibit A2, [26]
20 Ibid, [36]
21 Exhibit A2, [64] – [69]
22 Exhibit R1, [6]
23 Ibid, [10]
24 Ibid
25 Exhibit A2, [21]
26 Ibid, [19] – [20]
27 Ibid, [28]
28 Ibid, [31]
29 PN340
30 PN629
31 Exhibit A2, [36]
32 Ibid, [32]
33 Ibid, [33]
34 Ibid, [34]
35 Ibid, [35] – [38]
36 Ibid, [42] – [43]
37 PN304-305
38 PN308
39 PN312
40 PN311
41 PN312
42 PN314
43 PN316
44 Exhibit R2, [77]
45 Ibid, [80]
46 Ibid, [79] and Annexure 7
47 Ibid, [80]
48 PN1360
49 PN1429
50 Exhibit R2, Annexure 1; PN1373-1396
51 PN1401
52 Exhibit R2, Annexure 5
53 PN787; PN770-773
54 PN347
55 Exhibit R2, Annexure 8
56 Ibid, Annexure 10
57 PN505; PN509;
58 PN1363-1368
59 PN1370
60 Exhibit A2, [66] and [69]; PN374
61 Exhibit A6
62 PN370-374
63 PN366
64 Exhibit A6; PN891-896
65 PN386-388
66 PN410-414
67 PN407-408
68 PN693
69 PN717-719
70 PN404
71 PN584-585
72 Exhibit R2, [3]
73 Ibid, [44]
74 Ibid, Annexure 4
75 PN1059-1060
76 PN1100
77 PN1102-1109
78 Exhibit A6
79 Exhibit R2, [24]
80 Ibid, [28]
81 Ibid, [27]
82 Exhibit R1, [6]
83 Ibid, [57]
84 Exhibit R2, [44]
85 Ibid, [47]
86 Ibid, [52] – [53]
87 Ibid, Annexure 3
88 Ibid
89 Exhibit R2, [56] - [57]
90 Ibid, [53]
91 Ibid, [55]
92 Ibid, [60]
93 Ibid, Annexure 4
94 Ibid, [61]
95 Ibid, [48]
96 Ibid, [93]
97 PN318
98 Ibid
99 PN320
100 PN471
101 PN469
102 PN471
103 PN604-609
104 PN609
105 PN1179-1181
106 PN466
107 PN610-614
108 PN681-791
109 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1
110 (1995) 62 IR 371 at 373
111 [2013] FWC 6423
112 B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191
113 (1995) 185 CLR 410.
114 Ibid at 465.
115 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
116 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
117 Ibid
118 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
119 Ibid.
120 PN1307
121 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
122 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
123 Previsic v Australian Quarantine Inspection Services Print Q3730
124 RMIT v Asher (2010) 194 IR 1 at 14-15
125 Fair Work Act 2009 (Cth) s.387(d).
126 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
127 Fair Work Act (Cth) s.387(e).
128 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
129 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
130 Fair Work Act (Cth) s.387(f).
131 Fair Work Act (Cth) s.387(g).
132 Exhibit A1, [10]
133 Exhibit A2, [50] – [51]
134 Ibid, [46] – [47]
135 Exhibit R2, [133] – [144]
136 Ibid, [136]
137 Exhibit A2, [52] – [53]
138 Ibid, [55]
139 Ibid, [56] – [58]
140 PN1180
141 PN861-871
142 PN877
143 Exhibit R2, [139]
144 Ibid, [68] – [72]
145 Ibid, [83]
146 Ibid, [87]
147 Ibid, [90]
148 Ibid, [104]
149 Ibid, [105] – [106]
150 PR599024
Printed by authority of the Commonwealth Government Printer
<Price code C, PR599023>
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