Clint Griffiths v Boral Australian Gypsum Ltd

[2010] FWA 7445

[2010] FWA 7445

FAIR WORK AUSTRALIA

DECISION AND ORDER

Fair Work Act 2009
s.394—Unfair dismissal

Clint Griffiths
v
Boral Australian Gypsum Ltd
(U2010/9445)

DEPUTY PRESIDENT IVES MELBOURNE, 27 SEPTEMBER 2010

Termination of employment.

Introduction

[1] This decision relates to an application, pursuant to s.394 of the Fair Work Act 2009 (Cth) (The Act), by Mr C. Griffiths (the Applicant) alleging that the termination of his employment on 4 June 2010 by Boral Australian Gypsum Ltd (the Respondent) was unfair within the meaning of s.385 of the Act.

[2] After due consideration of the requirements of s.399 of the Act, the matter proceeded by way of hearing on 9 and 10 September 2010.

[3] Evidence, both written and oral, was adduced from the following persons:

• The Applicant;



• Mr R. Frisina, Union Delegate at the Respondent’s plant;



• Mr D. Seymour, Manufacturing Manager for the Respondent;



• Mr R. Krunic, Bulk and Make-up Manager of Distribution for the Respondent;



• Ms M. Papas, Regional Health Safety and Environment Manager for Victoria/Tasmania for Boral Building Products;



• Mr B. Flavell, Production Manager for the Respondent

The Factual Background

[4] The Applicant commenced employment with the Respondent in August 2007. Among his regular duties was the operation of forklifts.

[5] At the time of the termination of his employment the Applicant had held the appropriate licence and had had experience over a period of 28 years in the operation of forklifts.

[6] Additionally and in prior employment the Applicant had had both experience at a supervisory level and experience as a workplace Health and Safety Representative.

[7] The Applicant had received regular training in the safe operation of the type of forklift relevant to the termination of his employment and was aware of relevant safety policies and procedures relating to the operation of this type of forklift. No question of the Applicant’s competence to operate the forklift arises.

[8] On 25 May 2010 at approximately 3.00 a.m the Applicant was found by his Team Leader not to be wearing the seatbelt fitted to the forklift he was operating.

[9] It is a requirement, known by the Applicant, that the seatbelt must be worn whilst operating the forklift.

[10] The Applicant responded to his Team Leader, according to his evidence, 1 by immediately properly attaching the seatbelt and apologising.

[11] At the time the Applicant was found not to be wearing the seatbelt, the belt was looped around the back of the forklift seat and fastened.

[12] On the particular type of forklift that the Applicant was operating it is necessary, because of a safety system involving an electronic interlock, that the seatbelt be fastened to enable operation of forklift controls.

[13] The Applicant denies looping the seatbelt around the forklift seat back and fastening it as a means of bypassing the safety system.

[14] The Applicant took over from the previous operator of this forklift, approximately three hours prior to being found not wearing the seatbelt, at or about 12.00 midnight.

[15] The previous operator also denied looping the seatbelt around the seat back and fastening it.

[16] It is relevant to note that the Applicant acknowledges in his evidence 2 that he mounted and dismounted the forklift approximately 20 times during the approximate three hour period he was operating the forklift prior to being found to be not wearing the seatbelt.

[17] Later on 25 May 2010 the Applicant was advised by the Respondent that he was to be stood aside from duties pending an investigation into the circumstances of the incidence of his failure to wear the requisite seatbelt.

[18] On 1 June 2010 the Applicant, accompanied by Mr Frisina, attended a meeting with Mr Seymour and Mr Flavell as part of the Respondent’s investigation of the incident.

[19] On 4 June 2010 the Applicant, accompanied by Mr Frisina, attended a further meeting with Mr Seymour and Mr Flavell. During the course of this meeting the Applicant’s employment was terminated for reasons which ‘include your serious breaches of Company policies and procedures, including site safety requirements.’ 3

[20] The Respondent did not include in its reasons for termination that the Applicant had looped the seatbelt around the back of the forklift seat and fastened it as a means of bypassing the interlocked safety system. The Respondent’s investigation into this aspect of the circumstances of the incident was inconclusive.

Submissions

[21] Briefly summarised, the case on behalf of the Applicant is as follows:

[22] The termination of the Applicant’s employment was a disproportionate response to his admitted breach of failing to wear a seatbelt.

[23] In terminating the Applicant’s employment the Respondent’s action was inconsistent with actions taken by it previously in cases involving a similar breach.

[24] To the extent that the termination of the Applicant’s employment was partly grounded upon an alleged statement by the Applicant on 3 March 2010 that he ‘didn’t take much notice’ 4of his Team Leader and about which, at least partly, the Applicant received a warning on 4 March 2010, the Applicant was denied procedural fairness as he had no opportunity to respond to this as a reason or part of the reason for the termination of his employment.

[25] Further, the conclusion that the Respondent drew from this alleged statement (a statement that the Applicant denies having made), that warning the Applicant about his failure to wear a seatbelt was inadequate because, given his statement, he may reoffend, 5 was not open to it on the facts.

[26] On the basis of the foregoing and other factors in relation to both the Applicant’s personal circumstances and his immediate response on being found not to be wearing a seatbelt, it is the Applicant’s contention that the termination of his employment was harsh, unjust or unreasonable, hence unfair.

[27] For its part, the Respondent argued that the Applicant’s failure to wear a seatbelt over an extended period of time, in circumstances where he was mounting and dismounting from the forklift on numerous occasions and where he must have been aware that the forklift’s safety system had been bypassed by the improper looping and fastening of the belt around the seat back, was a deliberate and gross breach of safety with the potential, for serious consequences including a fatality.

[28] The Respondent’s past treatments of breaches of a similar nature by other employees were matters each of which turned upon its own facts and circumstances which are readily distinguishable from those pertaining to the incident involving the Applicant.

[29] Given the Applicant’s lengthy experience as an operator of forklifts, the regular and relevant training with which he had been provided and his admitted knowledge of the Respondent’s relevant safety policies and procedures, there was no basis upon which his conduct on 25 May 2010 could be excused given the potential consequences of that conduct for both his own safety and that of others, and no basis for a lesser sanction than termination of employment to apply.

[30] In essence it is the Respondent’s case that the Applicant’s conduct in failing to wear a seatbelt and continuing to operate a forklift in circumstances where an important safety system had been obviously and improperly bypassed constitutes a valid reason for the termination of his employment and a proper consideration of all other relevant circumstances does not render it otherwise unfair.

The Applicant’s evidence

[31] Before turning to a consideration of the material before me in the light of the particular provisions of the Act to which I must have regard it is appropriate to consider particular aspects of the Applicant’s evidence.

[32] Under cross examination by counsel for the Respondent about when the Applicant became aware of the looping and fastening of the seatbelt around the forklift seat the Applicant attests as follows:

‘You had been operating the stacker forklift since about midnight?---That's correct.

For three hours?---That's correct.

So you had jumped on and off the vehicle in that three hours 20 times at least?---Yes, well I suppose, yes.

You don't know who did that I take it your evidence is it was connected that way at the start of the shift?---That's right.

Were you aware of that at the start of your shift?---I did notice it but I didn't take too much notice of it.

You noticed it had been connected - do I take that, that's a yes?---Well, not straight away, I didn't notice it straight away.

When did you notice it?---When my STL came up to me and said, "Why haven't you got your seatbelt on?"

For three hours, between 12 midnight and three o'clock you have jumped on and off this forklift 20 times or more or less or thereabouts?---Thereabouts.

It was about three o'clock you realised oops, the seatbelt is around the back?

THE DEPUTY PRESIDENT: You need to answer yes or no, Mr Griffiths, it's being recorded?---Sorry, your Honour, yes, that's correct.’ 6

[33] Under further cross examination regarding the investigation of the incident the Applicant responded:

‘You were told the company was going to investigate the incident?---That's right.

In that telephone call when Mr Flavell contacted you to inform you about that, you said to him that the seatbelt had been attached at the commencement of your rotation on the stacker forklift that way?---That's right.

You knew at the commencement of your shift did you that it had already been attached that way?---Well, I'd known since it was pointed out to me.’ 7

[34] Mr Flavell gives evidence, with which no issue was taken, as follows:

‘Mr Griffiths said to me that he had found the forklift with the seatbelt attached [around the back of the seat] at the commencement of his rotation on the stacker forklift.’ 8

[35] This latter evidence receives support from a File Note which appears to have been written by Mr Flavell on 31 May 2010 about a conversation he had with Mr Van der Linden, the operator who had been operating the forklift immediately prior to the Applicant, at 8.30 a.m. on 25 May 2010. The File Note records as follows:

‘Following up on Clint’s claims he “found the forklift that way”, I telephoned Steve Van der Linden, who operated the Stacker Forklift immediately before Clint.

Steve was happy to talk to me, although he had just had his wisdom teeth removed.

I told Steve that Clint had claimed that he found the seatbelt that way (looped around the back of the seat and plugged in) and his response was:

No, I wouldn’t use it that way. I told him I was having a bit of trouble with it because it was frayed. In fact, Nelson told me the same thing at the shift change. We could have tagged it out but this would leave us with only 1 fork. It was actually Clint that reported it was frayed.’ 9

[36] In Mr Seymour’s apparently contemporaneous ‘Notes for Discussion with Clinton Griffiths 1/6/10’ he records as follows:

‘The Company wishes to discuss with you its concerns about an incident on 25 May 2010 in which your STL, Scott Meredith, found you operating a forklift without you wearing the seatbelt. Your seatbelt had been looped behind the seat of the forklift and plugged in.

Response

Clint acknowledges that he did breach the safety requirements of the FLT seatbelt.

As you know, the forklifts are interlocked and will not work if the seatbelt is not plugged in.

When I discussed the matter with you on Tuesday 25th May you stated that you did not put the seatbelt in that position yourself and that you found the forklift that way. Is that correct?

Response

Clint confirmed that the FLT was found in this condition.

As you know, operating a forklift without a seatbelt is a serious breach of the site safety requirements. In addition, attaching the seatbelt behind you so that the forklift continues to operate is considered a deliberate interference with the safety mechanism which the Company views very seriously.

The Company has discussed your statement with Steve Van der Linden who was the previous operator on that forklift and he has stated that he would not use the forklift that way. In any event, as you know as the operator of the forklift at the time, it is incumbent on you to ensure the safe operation of the forklift in accordance with site requirements. You acknowledged this in my discussion with you on the 25th.

Is there anything you wish to say about this?

Response

Brent stated that he discussed with Steve Van der Linden about the seatbelt and Steve stated that he wouldn’t do that. Clint apologised for the action and acknowledged that he was not thinking and has learnt a lesson and say that it will not happen again.’ 10

[37] I turn now to the statement of the Applicant allegedly made on 3 March 2010 that he ‘didn’t take much notice’ of his Team Leader. Any reliance placed on this alleged statement as a basis for termination of the Applicant’s employment is a matter I will address later in this decision. For the moment it is sufficient to consider the relevant evidence.

[38] In his first Witness Statement, undated but filed with the Tribunal on 1 August 2010, the Applicant takes issue with other aspects of the Respondent’s warning letter of 4 March 2010 (in which the alleged statement forms part of the subject matter) but takes no issue with the alleged statement. 11

[39] In a further Witness Statement, dated 8 September 2010 and handed up at the hearing on 9 September, in which the Applicant responds to certain materials filed by the Respondent, the Applicant states,

‘I never stated to Brent Flavell that I did not take notice of Scott because he was wrong, in a meeting on 3/3/10.’ 12

[40] When it was put to the Applicant under cross examination that he had made the alleged statement he replied: ‘I did not say those words.’ 13

[41] Other than a statement in his initial Witness Statement in relation to the warning of 4 March 2010 that he ‘strongly disagreed with the accusations that were being made against me’ 14 and noting that he ‘refused to accept the warning on the advice of The Union Representative’15 because it was ‘wrong’,16 and aside from the issue taken in his further Witness Statement and under cross examination (both referenced above) there is no evidence of the Applicant having previously taken issue with the Respondent about its allegation that he made the statement on 3 March 2010.

[42] It is worth noting, that the ‘Union Representative’ (referred to above), namely Mr Frisina, was not present at the meeting between Mr Flavell and the Applicant on 3 March 2010.

[43] Mr Flavell attests as follows:

‘On 3 March 2010 Scott Meredith, Mr Griffiths’ STL and I met with Mr Griffiths for the purposes of discussing the Company’s concerns about Mr Griffiths’ performance and conduct. In this meeting I discussed with Mr Griffiths the recent counselling he had received. In the course of the meeting Mr Griffiths said that he “didn’t take much notice” of his STL because he “thought he was wrong”. This statement was inappropriate and caused me concern.’ 17

[44] In his apparently contemporaneous ‘Notes for Discussion with Clinton Griffiths 3/3/10’ Mr Flavell records the following interchange:

‘BF: [presumably Brent Flavell] Yes, I agree that some of those are outside your restrictions, but what about monitoring the edges and the ironing bars, and dressing score wheels.

CG: [presumably Clint Griffiths] When Scott approached me I didn’t take any notice because I thought he was wrong.’ 18

[45] Affording Mr Flavell’s notes due weight and taking into account all of the relevant materials before me I find, on the balance of probabilities, that the Applicant did, on 3 March 2010, make the statement alleged of him.

The Act

[46] The Act relevantly provides as follows at section 385:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[47] And at section 387:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.’

Valid reason

[48] It seems to me that Mr Seymour is correct in his assertion that the Applicant ‘deliberately bypassed’ the safety system on the forklift he was operating on 25 May 2010. 19 He did so by failing, during a period of approximately three hours, to detach the seatbelt from around the back of the seat and attach it, as he well knew it should be, around his body.

[49] I do not accept the Applicant’s evidence that he did not notice the seatbelt’s position until his Team Leader pointed out to him that he was not wearing it.

[50] The relevant evidence is laid out earlier in this decision and it may readily be seen that the Applicant provides contradictory versions.

[51] Having considered all of the evidence on the point, I am persuaded that, if the Applicant did not, himself, loop the seatbelt around the seat and fasten it (and I make no finding on that issue) then he knew it was so placed ‘at the start of the shift’ as he, at least initially, confirmed. 20

[52] In his cross examination of Mr Seymour, the Applicant’s representative explored the possibility that another person, apparently unseen, looped the seatbelt around the seat and fastened it during one of the periods the Applicant was dismounted from the forklift over the three hour period.

[53] Notwithstanding that Mr Seymour conceded the possibility, 21 I am unable to accept that this occurred. The Applicant makes no claim that it did and his evidence, insofar as it suggests that the seatbelt was so looped from the beginning of the shift, is directly contrary. There is no evidence of anyone having done so and little, if any, imaginable motive. Finally, had the Applicant previously had his seatbelt properly fastened then he surely would have noticed that the seatbelt had been improperly placed when he remounted the forklift. The notion is fanciful and, on the balance of probabilities, did not occur.

[54] In my view, and based upon evidentiary issues I have previously canvassed in this decision, there are real and significant issues that impinge negatively upon the Applicant’s credit as a witness.

[55] In light of that finding, it is not going too far to say that it strains credibility that the Applicant, a forklift operator of longstanding experience, having an employment history that included both supervisory and occupational health and safety roles and having been in uncontested receipt of regular and relevant training, could have, over a three hour period, climbed on and off the forklift over 20 times without noticing that he was failing to put on the seatbelt or that the forklift, an item of equipment with which he was intimately familiar, did not require him to fasten the seatbelt in order to provide power to the controls.

[56] Credibility is even further stretched if the forklift, as was suggested by the Applicant’s representative in his cross examination of Mr Seymour, 22 is equipped, with a ‘dead man switch’ causing the forklift to completely shut down each time the Applicant dismounted and therefore obviously necessitating a restart after remounting.

[57] It perhaps belabours the credibility point to draw attention to the Applicant’s evidence that he did the required pre-start check of the forklift before starting to use it albeit ‘not thoroughly’ 23 and that the seatbelt was ‘probably the one thing I didn’t check.’24

[58] On this latter point of the condition of the seatbelt, it is the Applicant’s evidence that the belt was frayed and he is at pains to point out that it did not properly retract. 25

[59] It is put on the Applicant’s behalf that this somehow mitigates in favour of the Applicant in that it demonstrates a company intent on enforcing the Applicant’s obligations with regard to safety whilst countenancing the continued use of faulty, and hence, potentially unsafe equipment.

[60] I do not accept this submission. The Applicant had ample opportunity, including at the time he was found not to be wearing it, to raise the condition of the seatbelt. He did not do so. There is no basis for a finding that had he done so it would not have been addressed. In any event the Applicant’s experience and training was sufficient for him to be well aware that in circumstances where he had a genuine concern about occupational health and safety with regard to his duties he was entitled to make a significant issue of it. He did not do so albeit that there is some suggestion that he had made a prior report to someone unnamed that it was frayed. 26

[61] There is no contest about the Applicant’s experience, training and awareness of relevant policies and procedures.

[62] There was a valid reason for the termination of the Applicant’s employment, being a serious and wilful breach of an important safety policy. The Applicant knew that the forklift had a safety system designed to prevent it being operated without the seatbelt properly fastened around the operator. He continued to operate over an extended period with that system knowingly bypassed. This is not a case of the Applicant having had a momentary and absent minded lapse of judgement.

Consistency

[63] A significant aspect of the Applicant’s case to establish that the termination of his employment was harsh, unjust or unreasonable and therefore unfair according to the Act was that the termination was inconsistent with the Respondent’s response to circumstances of similar breach by other employees.

[64] The Tribunal was taken to a number of cases, particularly in the context of Mr Frisina’s evidence, where the Respondent, in instances where an employee had been found not to be wearing a seatbelt, had not terminated the employee’s employment but, particularly in relation to a first offence, had instead issued a warning.

[65] I do not intend here to rehearse at length Mr Frisina’s evidence in respect of the employees concerned. Suffice to say that even Mr Frisina’s own evidence recognised differences of substance between those cases and the matter before me. 27

[66] One example of an issue of substance that differentiates this matter from previous instances of employees failing to wear seatbelts on forklifts is the evidence that this is the first occasion that the Respondent has had to deal with an employee failing to wear a seatbelt on a forklift equipped, as it was in this matter, with an inter-locked safety system from the seatbelt to the forklift controls.

[67] It is generally accepted that the consistency of an employer’s response to a particular circumstance occurring on multiple occasions involving different employees may well be an issue, even a significant issue, in determining unfairness. The caveat is that care must be taken to ensure like is being compared with like. In that regard it is apposite to quote the Full Bench in Darvell v Australian Postal Corporation in its reliance on two single member decisions that addressed the consistency issue:

‘The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

We respectfully concur with their Honours.’ 28

[68] I am not able to discern in any of the evidence of prior cases dealt with by the Respondent and brought before me, sufficient like for like circumstances that would give rise to a valid comparison.

Notification of Reason and Opportunity to Respond

[69] Two issues arise. The first is specifically related to the above sub-heading. The second is more properly a consideration under the sub-heading of Valid Reason. It is convenient however to deal with both issues here.

[70] Mr Seymour, the primary decision-maker in respect of the termination gave the following evidence:

‘In my view the deliberate and wilful conduct displayed by Mr Griffiths meant that his behaviour was not likely to be rectified by a warning, particularly in circumstances in which he had previously stated that he did not take must notice of his supervisor’s instructions. On this basis I decided that termination of his employment was appropriate.’ 29

[71] It was submitted on behalf of the Applicant and conceded by Mr Seymour that the Applicant was not notified nor given an opportunity to respond to the statement referred to above to the extent that it formed part of the reason for the termination of the Applicant’s employment. 30

[72] In my view, and I have found accordingly, there was a valid reason for termination regardless of the statement. A proper reading of Mr Seymour’s evidence (quoted above) indicates that he was of a similar view.

[73] A consideration of all the circumstances, including the Applicant’s ultimate denial of having made the statement and Mr Seymour’s evidence, quoted above, makes it extremely difficult to envisage a different result even if the Respondent had advised that it relied upon the statement as a reason for termination and provided the Applicant with an opportunity to respond.

[74] In my view the Applicant, in the circumstances, was adequately notified of the reason for the termination and was afforded adequate opportunity to respond. If there is a deficiency in the Respondent’s advice to the Applicant it is insufficient, in these circumstances, to render the termination of his employment unfair.

[75] The second more general issue is the submission that the Respondent erred in forming the view that the Applicant was more likely, in light of his statement, to reoffend if given a warning and that led it to erroneously choose termination of employment as the sanction to apply. It is claimed that the Applicant’s immediate compliance with his Team Leader’s requirement that he should put on his seatbelt gives the lie to the idea that he would in future fail to follow instructions.

[76] Mr Seymour quite obviously took account of the Applicant’s statement in coming to a view about the termination. I have insufficient evidence of the context in which the statement was made to find that he was entitled to do so.

[77] In any event it seems tolerably clear in Mr Seymour’s evidence quoted above that, whilst regard was had by Mr Seymour to the statement, it was not a determinative factor in the termination. It therefore could not have resulted in the erroneous choice of termination rather than warning that the Applicant claims it did.

[78] I should add that, in coming to the views and making the findings herein, I have had regard to the Applicant’s statement only insofar as his denial of it is, in my view, another negative indicator of his credibility as a witness.

Access to Support Person

[79] There was no unreasonable refusal by the Respondent to allow the Applicant access to a support person to assist at any discussion relating to the dismissal.

[80] Any discussion which took place in which the Applicant did not have a support person to assist was consequential upon a choice of the Applicant and not a result of refusal by the Respondent.

Unsatisfactory Performance

[81] S.387(e) of the Act requires me to have regard to whether the Applicant was warned in relation to unsatisfactory performance before the dismissal if that is what the dismissal related to.

[82] The termination of the Applicant’s employment was for serious misconduct not unsatisfactory performance in the way that particular basis for termination is normally construed in connection with applications pursuant to s.394 of the Act.

Size of Enterprise and Availability of Human Resource Expertise

[83] I consider that neither the size of the Respondent’s enterprise nor its availability or otherwise of human resource management expertise were relevant factors in the procedures adopted by the Respondent leading to the termination of the Applicant’s employment.

Other Matters

[84] I have considered the Applicant’s age and prospects for future employment as well as, to the extent that I have been apprised of them, his personal and financial circumstances.

[85] Additionally, I have had regard to the significant amount of material handed up or filed by the Respondent emphasising the importance of adhering to policies requiring the wearing of seatbelts whilst operating forklifts and the consequences, including fatalities, that potentially flow from failure to wear them. In this latter respect I have had particular regard to the documented attitude of the relevant statutory authority with responsibility for workplace health and safety.

[86] I consider that a rational balancing of all of these factors does not render the termination of the Applicant’s employment harsh, unjust or unreasonable.

Conclusion

[87] Having considered all of the relevant material before me in the light of the requirements of the Act I find that the termination of the Applicant’s employment by the Respondent was not harsh, unjust or unreasonable and therefore not unfair according to the terms of the Act.

[88] Pursuant to s.381(2) of the Act I am satisfied that a ‘fair go all round’ has been accorded to both the Applicant and the Respondent.

[89] The Applicant’s application is dismissed.

[90] I order accordingly.

DEPUTY PRESIDENT

Appearances:

R Wainwright for the Applicant

J Forbes of Counsel for the Respondent

Hearing details:

2010.

Melbourne: September 9.

 1   Transcript, PN 215

 2   Transcript, PN 196, 201

 3   Exhibit R3, Attachment DS3

 4   Exhibit R6, Attachments BF3 and BF4

 5   Exhibit R3, PN12

 6   Transcript, PN 194-203

 7   Transcript, PN 311-313

 8   Exhibit R6, PN9

 9   Exhibit R6, Attachment BF5

 10   Exhibit R3 Attachment DS1

 11   Exhibit A1

 12   Exhibit A2, PN7

 13   Transcript, PN270

 14   Exhibit A1 PN17

 15   Ibid, PN19

 16   Ibid

 17   Exhibit R6, PN4

 18   Exhibit R6, Attachment BF3, see also Transcript PN 1007-1009

 19   Transcript, PN 657-659

 20   Transcript, PN 197

 21   Transcript, PN 661

 22   Transcript, PN 663

 23   Transcript, PN 220

 24   Transcript, PN 223

 25   Transcript, PN 323-327

 26   Exhibit R6, Attachment BF5

 27   Transcript, PN 510-531

 28   Darvell v Australian Postal Corporation [2010] FWAFB 4082, at 21-24

 29   Exhibit R3, PN12

 30   Transcript, PN 700-703

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