Christopher Squires v Opal Packaging Australia Pty Ltd
[2021] FWC 1143
•3 MARCH 2021
| [2021] FWC 1143 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Squires
v
Opal Packaging Australia Pty Ltd
(U2020/10680)
DEPUTY PRESIDENT BINET | PERTH, 3 MARCH 2021 |
Application for an unfair dismissal remedy.
[1] On 6 August 2020, Mr Christopher Squires (Mr Squires) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Opal Packaging Australia Pty Ltd (Opal).
[2] On 17 August 2020, Opal filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[3] On 26 August 2020 and 21 September 2020, the parties participated in a conciliation, but the issues in dispute could not be resolved.
[4] Taking into account the parties wishes and circumstances, it was determined that a Hearing rather than a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 26 November 2020 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 24 September 2020 (Directions).
Permission to be represented
[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[7] Both parties sought permission to be represented at the Hearing.
[8] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[9] At the hearing Mr Squires was represented by Mr Patrick Mullally, a paid agent and Opal was represented by Mr Robert French, of Counsel.
Evidence
[10] At the Hearing, Mr Squires provided written and oral evidence on his own behalf.
[11] The following witnesses provided written and oral evidence on behalf of Opal:
a. Mr Mark Goddard – Second in Charge Corrugator (Mr Goddard);
b. Mr Trevor Herdsman – Corrugator Operator (Mr Herdsman);
c. Mr Steve Fay – Grab Driver (Mr Fay);
d. Ms Elena Rorie – Human Resource Manager WA/SA (Ms Rorie); and
e. Mr Simon David Hickmott – Site Manager (Mr Hickmott)
[12] The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit 1. Mr Squires also tendered a USB containing CTV footage of the incident which led to his dismissal which was marked Exhibit 2. A photograph of the area in which the incident which led to Mr Squires dismissal is alleged to have occurred was admitted and marked as Exhibit R1. Pay and leave records of Mr Goddard’s supervisor were also admitted and marked as Exhibit R2.
[13] Final written submissions were filed on behalf of Mr Squires on 17 December 2020. Final written submissions were filed by Opal on 4 January 2021.
[14] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
[15] Opal operates a factory in Bibra Lake producing fibre packaging.
[16] Mr Squires commenced employment with Opal on 1 May 20202 as part of a transfer of business in accordance with section 311 of the FW Act. Consistent with the transmission of business provisions contained in the FW Act, Opal recognised Mr Squires prior service with his previous employer Orora Packaging Australia Pty Ltd (Orora), with a start date of 28 July 1993. 3
[17] The enterprise agreement applicable to Mr Squires’ employment prior to transfer, the Orora Fibre Packaging National Enterprise Agreement 2019 (Orora Agreement), became a transferable instrument as defined by section 312 of the FW Act, in respect of Mr Squires’ employment with Opal. 4
[18] Mr Squires is 62 years old and has been driving Fork-Lifts and Reel-Grabs for most of his working life. 5 Mr Squires duties at the time of his dismissal included operating a Reel-Grab to move reels of paper.6 A Reel-Grab is akin to a forklift and is used to move large reels of paper approximately 1750mm high and weighing around 1,900kgs.7
[19] At the time he commenced employment with Opal, Mr Squires had an open workers’ compensation claim in relation to a work-related injury which occurred during his employment with Orora. Mr Squires suffered the injury on 28 March 2019. On 26 September 2019, he had surgery on his shoulder and commenced a lengthy period off work on personal leave. Mr Squires commenced a return-to-work program on 3 February 2020. His return-to-work program allowed him to drive three days per week. Mr Squire’s first day back driving the Reel-Grab was on 4 June 2020. 8
[20] At the time he commenced employment with Opal, Mr Squires also had, on file, a first and final warning dated 18 September 2019 in respect of a serious safety incident. The incident involved Mr Squires loading three reels of paper on a Reel Grab and one reel falling off, subsequently hitting the cage of the Reel-Grab. 9
[21] It is a safety rule at Opal’s site that a Reel-Grab may only be used to move one reel of paper at any one time. The evidence is that moving more than one reel of paper at any one time poses a serious safety risk that could potentially endanger the lives of workers at the site. 10 Mr Squires was most recently trained in this safety rule in Verification of Competency (VOC) training conducted by Equip Safe on 3 June 2020.11
[22] It is alleged that Mr Squires engaged in misconduct on Thursday 25 June 2020 by moving two reels of paper with a Reel-Grab at the same time. 12
[23] The incident was allegedly witnessed by Mr Goddard, Mr Herdsman and Mr Fay. Mr Goddard, Mr Herdsman, Mr Fay and Mr Squires work in the same part of the Bibra Lake site and all report to Mr Shaun Anderson (Mr Anderson). Mr Fay has worked with Mr Squires for twenty-five (25) years, Mr Goddard has worked with Mr Squires for twenty (20) years and Mr Herdsman has worked with him for seventeen (17) years. 13
[24] Mr Fay says that it was he who first saw Mr Squires moving two reels at once and that he pointed it out to Mr Goddard, who then alerted Mr Herdsman. He says that at the time he was standing near the Corrugator and had an unobstructed view of Mr Squires. 14
[25] Mr Goddard agrees that Mr Fay alerted him to the incident. He says standing in his position outside of the ‘50E machine’ he had a clear view to the Reel Store and personally observed Mr Squires moving two reels at once. 15
[26] Mr Herdsman agrees that Mr Goddard alerted him to the incident and that he also personally observed Mr Squires moving two reels at once. 16
[27] On or before Monday 29 June 2020, Mr Goddard reported the incident to Mr Anderson. Mr Anderson says this was not the first occasion that it had been reported to him that Mr Squires was moving more than one reel at a time. According to Mr Anderson, both Mr Goddard and Mr Fay had previously reported witnessing Mr Squires on separate occasions moving two reels at once. No further action had been taken at the time because there were no other witnesses to the alleged conduct. 17
[28] Mr Anderson reported the incident to the Site Manager Mr Hickmott. Mr Hickmott and Ms Rorie (the HR Manager for Opal who is based in Adelaide) instructed Mr Maddison the Production Manager to collect witness statements from each of the witnesses. Ms Rorie also asked that Mr Hickmott obtain a statement from Mr Anderson. 18
[29] At the start of his shift on Wednesday 1 July 2020, Mr Squires was called to a meeting with Mr Hickmott and informed of the allegation that he had been witnessed moving more than one reel at a time with the Reel-Grab. Mr Squires was told that he would be stood down from driving duties pending an investigation into the allegation. 19
[30] Mr Squires says that later the same day Mr Anderson told him that three witnesses had seen him moving two reels of paper at once with the Reel-Grab. Mr Squires says that he then had a chance to speak with Mr Herdsman who admitted that he was one of the three witnesses. 20
[31] Mr Squires says he told Mr Herdsman that the allegations could cost him his job. According to Mr Squires, Mr Herdsman told him that he hadn’t intended to make a statement but was asked by Mr Maddison to do so. Mr Squires insists that Mr Herdsman told him that he wanted to retract his statement, but he could not because he would be letting his best mate down. 21
[32] Mr Herdsman denies that he told Mr Squires that he hadn’t intended to make a statement or that he wanted to retract his statement. Mr Herdsman says that in fact when Mr Squires raised the incident with him, he interrupted Mr Squires and told him that he had provided a statement which he stood by. Mr Herdsman denies that Mr Goddard is his best mate. 22
[33] As part of the investigation into the incident, Ms Rorie interviewed Mr Squires on 8 July 2020 with a union delegate present as a support person for Mr Squire. 23 At the interview Mr Squires denied the allegations and told Ms Rorie that he had recently done his VOC training so he was well aware that he should not carry two reels at once.24 Mr Squires questioned whether any witnesses could have had visibility of what he was doing. To resolve this issue, Ms Rorie agreed that Mr Squires’ union representative could take photos of the relevant area and mark up a diagram indicating Mr Squries’ location and provide these to her, which he did.25
[34] Mr Maddison provided copies of the witness statements he collected from Mr Goddard, Mr Henderson and Mr Fay to Mr Hickmott. Given the brevity of the statements, Mr Hickmott decided to meet with each witness separately and have them demonstrate where they were standing at the time the alleged incident occurred. Mr Hickmott says that the version of events provided by each witness was consistent in terms of type of paper being moved, the location of the area in which the witness was located and the location of the area in which the incident occurred. Mr Hickmott stood in the locations that each witness claimed to have been at the time of the alleged incident and satisfied himself that the witness would have had the visibility they alleged they had. Mr Hickmott says that nothing led him to believe that the witnesses were colluding against Mr Squires. 26
[35] On 21 July 2020, Opal issued Mr Squires with a letter headed “opportunity to respond” (Show Cause Letter). The Show Cause Letter invited Mr Squires to provide any further information in relation to the alleged misconduct prior to Opal reaching a final decision in relation to the proposed termination of his employment. The Show Cause Letter also invited him to attend a meeting on 24 July 2020. The meeting was subsequently rescheduled by agreement to 27 July 2020. 27
[36] Mr Squires attended the meeting on 27 July 2020 with Mr Jason Chrimes, Mr Hickmott, Ms Rorie and the on-site AMWU delegate, as his support person. 28 At the meeting he read a statement (Show Cause Response).29
[37] Opal took into account the verbal and written information provided by Mr Squires at the 27 July 2020 meeting, prior to making the decision to terminate Mr Squires’ employment. 30
[38] On 29 July 2020, Opal issued Mr Squires with a letter giving written notice of the termination of his employment on the grounds that the investigation had found that he had committed the alleged misconduct. 31
[39] The termination of employment took effect on 29 July 2020 and Opal made a payment to Mr Squires of five weeks’ pay in lieu of notice. 32
[40] At the time of termination, Mr Squires hourly rate of pay was $39.44. 33
[41] At the time of termination, Mr Squires was not medically fit to perform ordinary full-time hours of 35 ordinary hours per week in accordance with clause 9.2(b)(i) of the Orora Agreement. Mr Squires was medically fit to perform only 22.5 hours of work per week, and accordingly was in receipt of a weekly wage from Opal of $887.40. 34
[42] The parties agreed that since termination, Mr Squires has not suffered any loss in respect of the $887.40 weekly wage he was receiving at the date of his dismissal, as Orora’s workcover insurer has increased its payments to cover the amount no longer being paid to Mr Squires as wages by Opal. 35
[43] Mr Squires submits it would be appropriate for the FWC to order his reinstatement and continuity of service.
Is Mr Squires protected from unfair dismissal?
[44] An order for reinstatement or compensation may only be issued if Mr Squires was unfairly dismissed and Mr Squires was protected from unfair dismissal at the time of his dismissal.
[45] Section 382 of the FW 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.
[46] For the purposes of Part 3-2 of the FW Act an employer means a national system employer and an employee means a national system employer. Opal is a national system employer 36 and Mr Squires is a national system employee.
[47] If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:37
a. the time when the person is given notice of the dismissal; or
b. immediately before the dismissal.
[48] There is no dispute, and I am satisfied, that Opal is not a small business employer for the purposes of section 383 of the FW Act.
[49] Mr Squires commenced employment with Opal on 1 May 2020, however, Opal recognised his prior service with Orora commencing on 28 July 1993. Mr Squires was dismissed on 29 July 2020.38
[50] I am therefore satisfied that, at the time of dismissal, Mr Squires was an employee who had completed a period of employment of at least the minimum employment period.
[51] There is no dispute, and I am satisfied, that the Orora Agreement applied to his employment at the time of his dismissal.39 Consequently, I am satisfied that Mr Squires was protected from unfair dismissal.
Was Mr Squires unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
Was Mr Squires dismissed?
[52] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[53] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[54] There was no dispute, and I find, that Mr Squires’ employment with Opal was terminated at the initiative of Opal.40
[55] I am therefore satisfied that Mr Squires has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Squires’ dismissal a case of genuine redundancy?
[56] Pursuant to section 389 of the FW 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.
[57] It was not in dispute, and I find, that Mr Squires’ dismissal was not due to Opal no longer requiring his job to be performed by anyone because of changes in Opal’s operational requirements.
[58] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Was Mr Squires’ dismissal consistent with the Small Business Fair Dismissal Code?
[59] Section 388 of the FW Act provides that a person’s dismissal is consistent with the Small Business Fair Dismissal (SBFD)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 SBFD Code in relation to the dismissal.
[60] It was not in dispute, and I find, that Opal was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.
[61] As Opal is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Squires’ dismissal.
Was the Application made within the period required?
[62] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
[63] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.
[64] It is not disputed, and I find, that Mr Squires was dismissed from his employment on 29 July 2020 and made the Application on 6 August 2020. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
Was the dismissal harsh, unjust or unreasonable?
[65] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ 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.”41
[66] Section 387 of the FW Act provides that, 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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;
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.
[67] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.42
Was there a valid reason for the dismissal related to Mr Squires’ capacity or conduct?
[68] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”43 and should not be “capricious, fanciful, spiteful or prejudiced.”44 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.45
[69] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.46 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.47
[70] Mr Squires was dismissed for moving two reels of paper at the same time on 25 March 2020 in breach of safety rules. 48
[71] Mr Squires denies that he moved two reels of paper at the same time. In the Show Cause Response, he asserted that he would not have done so because he had recently undergone training and was aware that moving two reels at once was prohibited and he was conscious that he was already on a final written warning. He claimed that allegation was falsely made by three work colleagues who are close friends and that the allegations lacked veracity because: 49
a. it was improbable that he would engage in the alleged conduct given his length of service and that he was aware that it would put his job and the income for his family in jeopardy;
b. the witnesses had an obstructed view of the alleged incident;
c. his workload on that day would not have caused him to act in haste;
d. if the incident had occurred the witnesses would have taken immediate steps to prevent it continuing given that the incident would have constituted a serious safety breach;
e. there was a delay in the alleged incident being reported which suggested that the witnesses conspired to invent the incident;
f. there was an absence of independent witnesses; and
g. Mr Goddard had been performing the Reel-Grab driving during Mr Squires absence on personal leave and had been relegated to other duties upon Mr Squires return to work and therefore was motivated to have Mr Squires removed from driving duties.
[72] In addition, at the Hearing and in Closing Submissions, Mr Mullally raised a number of additional matters in support of the assertion that the incident did not occur which were not raised by Mr Squires in the investigation process or by Mr Mullally in submissions which were filed in advance of the Hearing. These included that:
a. a lack of precision in the evidence as to the timing of the incident was evidence that the incident was concocted;
b. Mr Squires did not have time to move the reels to the location he is alleged to have moved them because his return to work program limited the length of time which he was permitted to drive;
c. the witnesses could not have been concerned about safety because the CCTV footage reveals they entered an area which they were barred from entering for safety reasons;
d. Mr Goddard’s evidence that he was wearing earplugs at the time of the incident means he could not have had the discussions with the other witnesses that he alleges he had; and
e. the Grab-Reel driven by Mr Squires at the time of the incident could not lift two reels at the same time.
[73] CCTV footage, which was marked as Exhibit 2, does not cover the area in which the incident was alleged to occur. 50 It does reveal that Mr Squires was engaged in moving reels on the day in question and that the reels that he moved within the range of the CCTV were moved singularly. It also reveals that he moved reels in locations beyond the range of the CCTV.
[74] Mr Goddard, Mr Herdsman and Mr Fay each gave evidence to the effect that they observed Mr Squires moving two reels of paper on a fork-lift reel-grab near the 50E area. 51 This evidence was consistent with the statements taken by Mr Maddison in the days shortly after the incident.52
[75] Mr Squires asserts that the view of the witness to the location in which the incident was alleged to have occurred would have been blocked by reels.
[76] In the course of the investigation, Mr Hickmott met with Mr Fay and Mr Herdsman separately and had them demonstrate where they were standing at the time the alleged incident occurred. Mr Hickmott says that the version of events provided by each witness was consistent in terms of type of paper being moved, the location of the area in which the witness was located and the location of the area in which the incident occurred. Mr Hickmott stood in the locations that each witness claimed to have been at the time of the alleged incident and satisfied himself that the witness would have had the visibility they alleged they had. Mr Hickmott says that nothing led him to believe that the witnesses were colluding against Mr Squires. 53
[77] Each of the witnesses indicated on a map where they were standing relative to the 50E area and where they were standing vis-a-vis Mr Squires, demonstrating that they had a clear line of sight to observe Mr Squires in the location they say the incident occurred. 54 Mr Fay and Mr Goddard each gave evidence that there were reels to be loaded onto the machine but that those reels did not obscure their view of Mr Squires driving the Reel-Grab.55 Mr Fay drew a picture of how the reels were configured by the machine on to the photograph at page 61 of the DCB.56 Mr Goddard gave evidence that there was one reel near the machine, on the left side, where the men were standing, which was on its side and when configured that way was 1.5m high.57
[78] The reels when stacked in the Reel-Grab on top of one another, as it is alleged they were, would be very tall and therefore the view of them would not easily be totally obstructed.
[79] Based on the evidence before me, I accept that it was possible for the witnesses to have observed Mr Squires in the location they say the incident occurred.
[80] The evidence of Mr Fay, Mr Goddard and Mr Herdsman was consistent in terms of the sequence in which they observed the alleged incident. Their evidence is that it was Mr Fay who first observed Mr Squires moving the two reels, who indicated to Mr Goddard to look in the direction of the bay, Mr Goddard then observed the same thing and he indicated to Mr Herdsman who, in turn, observed Mr Squires moving two reels. 58
[81] Mr Squires says that the incident was concocted because Mr Goddard in cross examination gave evidence that the witnesses were all wearing earplugs. 59 The other witnesses were not expressly examined or cross-examined on this point. While it may support Mr Squires assertion that the incident did not occur, it may be that they did not all have earplugs, that they did and removed them to speak, that they could still hear with the earplugs in or that they communicated by gesture rather than words.
[82] The evidence is unclear as to precisely what time the incident occurred on 25 March 2020. Mr Squires says that a lack of precision as to timing indicates that the incident was concocted. The witness statements which were initially gathered during the investigation were relatively brief and did not capture that level of detail. The defence that Mr Squires raised during the course of the investigation into the allegations primarily centred around the question of whether the witnesses had visibility of the alleged event. Opal therefore focused its investigation on establishing. in some detail, where each person was standing and what they could see from their location. This included inviting Mr Squires’ union representative to take photos and provide plans. Given the delay between the events occurring and the Hearing, the lack of precision as to an issue not ventilated at the time of the investigation is not entirely unsurprising. In fact, the lack of consistency might suggest that the witnesses did not ‘rehearse’ or script their allegations, as is alleged by Mr Squires.
[83] The witnesses concede that they did not interrupt Mr Squires when they say that they observed him moving the two reels at once, even though they were aware it was unsafe. Failing to report the incident may well be in breach of their own occupational health and safety duties, but does not of itself prove that the incident did or did not occur.
[84] At the Hearing and in Closing Submissions, Mr Squires submitted that he was using the smaller Reel-Grab at the time of the alleged incident and could not have therefore moved two reels at once. The evidence of Mr Fay and Mr Goddard is that the smaller Reel-Grab, is in fact, capable of moving two reels at once. 60 The evidence is also that there had been a practise of moving or dragging two reels for some years in order to unload and stack reels faster, until the practise had been prohibited on safety grounds.61 If it were the case that he was driving the smaller Reel-Grab and he could not have lifted the reels with it then this would have been an obvious defence during the show cause process. Given it was not raised by Mr Squires in the Show Cause Response, I favour the evidence of the Opal witnesses, that if Mr Squires was operating the smaller Reel-Grab he could have still moved two reels at once, as alleged.
[85] At the Hearing and in Closing Submissions, Mr Squires submitted that because he was on a return-to-work program with a limited driving window he did not have time to have moved the reels as alleged and/or his duties on that day only involved unloading. The evidence from the CCTV footage is that his tasks on the day in question were not limited to unloading the reels in the loading dock, and did include moving reels to the storage bays near the 50E machine where the incident is alleged to have occurred. 62 The evidence is that reels may be required to be moved forward so that older stock is used first.63 It is not therefore impossible that he moved two reels at once in the area off camera as alleged by the witnesses.
[86] There is inconsistency in the evidence as to when Mr Goddard reported the incident to his supervisor. In a statement dated Tuesday 30 June 2020, Mr Goddard said that he reported the alleged incident to Mr Anderson on Friday 26 June 2020. In a statement of the same date, Mr Herdsman says that Mr Goddard had indicated that he would report the matter to Mr Anderson after he returned from leave. On 8 July 2020, Mr Anderson stated that Mr Goddard reported the incident to him on Thursday 25 June 2020. At the Hearing Mr Goddard said that he reported the incident on Monday 29 June 2020.
[87] Payroll and leave records indicated that Mr Anderson was absent on leave on Thursday 25 June 2020 and at work on Friday 26 June 2020. 64 It appears most likely that Mr Goddard’s contemporaneous statement that he reported the matter on Friday 26 June 2020, was accurate. Mr Squires says that the lack of consistency indicates that the allegations were fabricated, however a lack of consistency might equally suggest that the witnesses did not ‘rehearse’ or script their allegations, as alleged by Mr Squires.
[88] The witnesses have all worked with Mr Squires for between sixteen (16) and twenty-five (25) years. Given the length of time they have worked together it is unsurprising that they are ‘friends’. There is no evidence of any animosity between any of the men and Mr Squires. In fact, Mr Goddard gave evidence that he supported Mr Squires with respect to the 2019 incident in relation to which Mr Squires received a final written warning arguing that the incident occurred because of management pressure to complete work quickly. 65 On his own admission, Mr Squires admits he was friends with Mr Goddard.66 While Mr Fay, Mr Goddard and Mr Herdsman may well be friends there is no evidence and nothing was conceded in cross-examination that might suggest that the witnesses colluded together to fabricate the incident.
[89] Mr Squires alleges that Mr Goddard fabricated the incident in order to have Mr Squires dismissed so that Mr Goddard could take over Reel-Grab driving duties. However, the evidence is that the business employs more than one employee capable of driving the Reel-Grab. 67 Therefore it was not necessary for Mr Squires to leave the business in order for Mr Goddard to have the opportunity to drive the Reel-Grab. The assertion that Mr Goddard would fabricate evidence to have Mr Squires dismissed is inconsistent with the evidence that Mr Goddard defended Mr Squires in relation to the incident in which Mr Squires received his final written warning.
[90] I accept Mr Herdsman’s evidence that he did not tell Mr Squires that he hadn’t intended to make a statement or that he wanted to retract his statement. Mr Herdsman provided consistent evidence during the investigation, in his witness statement and in his oral evidence at Hearing. There is nothing which might suggest that this evidence was given reluctantly on any of these occasions and certainly that did not appear to be the case at Hearing.
[91] It is always difficult as a decision maker to determine what in fact occurred in ‘she said’ ‘he said’ situations. Mr Fay, Mr Goddard and Mr Herdsman, consistent with their oath, appeared to give honest evidence to the best of their recollections. There are some inconsistencies in the detail of their evidence, however, the key elements of their evidence are consistent and the differences explainable by the imperfect nature of the human memory. Relevantly, there is no compelling evidence of either collusion or fabrication or of ill will, material gain or some other motivation for the witnesses to collude or to fabricate evidence.
[92] The evidence is that moving two reels at a time had occurred in the past. 68 However, the practise had been prohibited due to the dangers associated with it. Notwithstanding that the practise had been banned, Mr Squires had previously moved three reels at once resulting in his first and final warning.
[93] The evidence of Mr Anderson is that even after receiving the final written warning Mr Squires had persisted with moving more than one reel at a time. The evidence is that Mr Goddard and Mr Fay had each previously, separately, reported that Mr Squires had moved more than one reel at a time, however, in the absence of corroborating evidence the allegation had not been progressed with Mr Squires. 69
[94] On the balance of the evidence before me, I find that Mr Squires did in fact move two reels at once in breach of safety procedures.
[95] The ability of an employer to enforce its safety procedures is well settled. It is also accepted that it is not necessary for someone to be injured or for there to be a near miss because of an employee’s failure to follow a safety procedure, for that failure to be viewed as a serious breach of the employee’s obligations. 70
[96] I find based on the evidence before me and the submissions of the parties, that Mr Squires’ safety breach constitutes a valid reason for his dismissal.
Was Mr Squires notified of the valid reason?
[97] 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,71 and in explicit,72 plain and clear terms.73
[98] The proposed reasons for the decision to terminate Mr Squires’ employment were communicated to him on 21 July 2020 in the Show Cause Letter and confirmed in the Dismissal Letter which was provided to him on 29 July 2020.
[99] It was not disputed,74 and I am satisfied, that Mr Squires was notified of the reasons for his dismissal.
Was Mr Squires given an opportunity to respond to any valid reason related to his capacity or conduct?
[100] 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.75
[101] 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.76 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.77
[102] Mr Squires was provided with an opportunity to respond to the reasons for termination through the provision of a response to the Show Cause Letter issued to him on 21 July 2020 and attendance at the meeting held on 27 July 2020.
[103] It was not disputed,78 and I am satisfied, that Mr Squires was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did Opal unreasonably refuse to allow Mr Squires to have a support person present to assist at discussions relating to the dismissal?
[104] 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.
[105] 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.” 79
[106] Mr Squires had a support person present during the discussions on 27 July 2020.
[107] There is no dispute,80 and I am satisfied, that Opal did not unreasonably refuse to allow Mr Squires to have a support person present at discussions relating to his dismissal.
Was Mr Squires warned about unsatisfactory performance before the dismissal?
[108] 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 Opal’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[109] Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.81
[110] Opal is a large business and no allegations of a denial of procedural fairness have been raised by Mr Squires.
[111] I am satisfied that the procedures followed by Opal were appropriate having regard to the size of its enterprise.
To what degree would the absence of dedicated human resource management specialists or expertise in Opal’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[112] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”82
[113] Opal’s enterprise did not lack dedicated human resource management specialists and expertise.
What other matters are relevant?
[114] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.
[115] Mr Squires submits that the FWC ought to have regard to the improbability of him engaging in the conduct which resulted in his dismissal, given he was on a final written warning in relation to conduct of the same nature and that dismissal was a likely outcome of a subsequent breach. It is surprising that Mr Squires would choose to move two reels at once. However, the fact that he engaged in such conduct previously, not withstanding that he was aware that it was prohibited, suggests that he does not always make rational and sensible decisions.
[116] Sadly, the consequence on this occasion was the end of a particularly lengthy period of employment. As a consequence of his workers’ compensation status his financial loss is not immediate, however when he is fit to return to work, finding alternative employment may well be more difficult given his age and that he was dismissed from his employment with Opal.
[117] I have taken these matters into account and also the importance of enforcing safety rules to preserve life and minimise injuries in the workplace.
Conclusion
[118] I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.
[119] I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
[120] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Squires was not harsh, unjust or unreasonable.
[121] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Squires was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.
[122] An Order 83 to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
P. Mullally for the Applicant.
R. French for the Respondent.
Hearing details:
2020.
Perth.
November 26.
Final written submissions:
Applicant, 17 December 2020.
Respondent, 4 January 2021.
Printed by authority of the Commonwealth Government Printer
<PR727453>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book, 1 (‘DCB’).
3 Ibid.
4 Ibid.
5 Ibid 13.
6 Ibid.
7 Ibid 41.
8 Ibid 14.
9 Ibid 2.
10 Ibid 1.
11 Ibid.
12 Ibid.
13 Ibid 41, 45, 49.
14 Ibid 30, 49.
15 Ibid 32, 42.
16 Ibid 31.
17 Ibid 29.
18 Ibid 53.
19 Ibid 14.
20 Ibid 15.
21 Ibid.
22 Transcript of 26 November 2020 at PN 808.
23 DCB (n 2), 1.
24 Ibid 15.
25 Ibid 54.
26 Ibid 71.
27 Ibid 1.
28 Ibid 2.
29 Ibid 15.
30 Ibid 2.
31 Ibid.
32 Ibid.
33 Ibid.
34 Ibid.
35 Ibid.
36 Ibid 1.
37 Fair Work Act 2009 (Cth) s 383.
38 DCB (n 2), 2.
39 Ibid.
40 Ibid.
41 (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).
42 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
43 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
44 Ibid.
45 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
46 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
47 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].
48 DCB (n 2), 1.
49 Ibid 21 - 22.
50 Transcript of 26 November 2020 at PN 101.
51 Ibid PN220- 241, PN 603 - 604, PN 769 - 794.
52 DCB (n 2) 30 - 32.
53 Ibid 71.
54 DCB (n 2) 43, 47, 51; Transcript of 26 November 2020 at PN 603 - 620, PN 782 - 794.
55 Transcript of 26 November 2020 at PN 315, PN 398 - 414, PN 611.
56 Ibid PN 412 - PN 413.
57 Ibid PN 611.
58 Ibid PN 223 - 241, PN 603 - 604, PN 769; DCB (n 2) 41 - 42, 45 - 46, 49 - 50.
59 Ibid PN 690.
60 Ibid PN 382 - 394, PN 595 - 602, PN 723.
61 Ibid PN 588.
62 Applicant’s Closing Submissions,4.; Exhibit 2 USB Drive.
63 Transcript of 26 November 2020 at PN 577 - 586.
64 Exhibit R2.
65 Transcript of 26 November 2020 at PN 683.
66 DCB (n 2) 46; Transcript of 26 November 2020 at PN 146.
67 Transcript of 26 November 2020 at PN 577, PN 728 - 730.
68 Ibid PN 588 - 589.
69 Ibid PN 495 - 502.
70 Scoffern v The Griffin Coal Mining Company[2020] FWC 3201, [210].
71 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] (‘Crozier’).
72 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
73 Ibid.
74 DCB (n 2), 9.
75 Crozier (n 71), 151 [75]
76 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
77 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
78 DCB (n 2) 9.
79 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
80 DCB (n 2), 9.
81 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
82 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
83 PR727454.
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