Colin Makin v GlaxoSmithKline Australia Pty Ltd
[2010] FWA 2211
•29 MARCH 2010
Note: An appeal pursuant to s.604 (C2010/3419) was lodged against this decision - refer to Full Bench decision dated 23 July 2010 [[2010] FWAFB 5343] for result of appeal.
[2010] FWA 2211 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Colin Makin
v
GlaxoSmithKline Australia Pty Ltd
(U2009/13041)
COMMISSIONER BISSETT | MELBOURNE, 29 MARCH 2010 |
Application for unfair dismissal remedy.
[1] Mr Makin was employed by GlaxoSmithKline Australia Pty Ltd (GSK) as a storeman at their Boronia facility from 2 July 2001 to 16 October 2009 when his employment was terminated by GSK.
[2] Mr Makin’s employment with GSK was terminated because Mr Makin:
- Failed to abide by GSK procedure for accessing the high-rise warehouse in the correct manner on 3 October 2009, as documented in SOP10752-01;
- Failed to activate the E-stop button on the conveyors;
- Used cardboard to cover sensors into the high-rise warehouse; and
- Failed to abide by the Living Safety program and conveyor training. 1
[3] Mr Makin claims he was unfairly dismissed as his dismissal was harsh, unjust or unreasonable. The matter was not resolved in conciliation.
BACKGROUND
[4] GSK is a global company involved in the research and development, production, marketing and distribution of pharmaceutical products. GSK’s headquarters and largest Australian manufacturing facility are located at Boronia in Victoria.
[5] The high-rise warehouse at the site is used to store and distribute pharmaceutical products. Heavy machinery is used in the warehouse. 2 The machinery includes automated high rise cranes and shuttles.3 The cranes and shuttles deliver goods to and from the high-rise warehouse to conveyors leading (relevantly) to the production supply area. The area in which the cranes and shuttles operate is a restricted area. There are access gates that employees use to gain entry to the high-rise warehouse when equipment breaks down or maintenance is required.
[6] On 3 October 2009, Mr Makin entered the high-rise warehouse to fix a fault caused by a pallet not sitting correctly on a shuttle. He did this initially by entering the area through the correct gateway. 4 When he determined he could not fix the fault from there he then entered through the centre entry or air curtain.5
[7] The entrance used is relevant to these proceedings – entry through the correct entry shuts down the shuttle. Entry through the centre entrance leaves the shuttle-car in an operational mode but it does not move. 6
[8] These events took place on 3 October 2009, 6 days before new instructions for entering the high-rise warehouse safely came into operation on 9 October. It is GSK’s contention that entry through the centre entrance was in breach of this new instruction - SOP10752-01 (the Standard Operating Procedure or SOP).
[9] It was this entry through the centre entrance and associated matters that led to the termination of Mr Makin’s employment following an investigation into the incident.
[10] Mr Makin does not dispute that he entered the high-rise warehouse through the centre entry nor that he failed to activate the E-stop button nor that he used cardboard to cover the sensors. Mr Makin claims however, that at the time of the incident, he believed that it was permissible to enter the high-rise warehouse in the way he did to fix the particular fault.
[11] Mr Makin’s termination took place after training and assessment on Standard Operating Procedure.
THE EVIDENCE
The Standard Operating Procedure (SOP)
[12] The SOP contains instructions by which employees at GSK are to enter the high-rise warehouse. The SOP came into effect on 9 October 2009 – 6 days after the incident that led to Mr Makin’s dismissal.
[13] The SOP was developed to cover gaps in detail in a pre-existing procedure which included instructions on entering the high-rise warehouse. 7 The pre-existing procedure – the Departmental Procedure (DP) came into effect on 14 February 2006.8
[14] A near miss in the warehouse in August 2009 led to a review of safety practices in the high-rise warehouse. This brought to light some deficiencies in practices and procedure with respect to entry into the high-rise warehouse, prompting a full review of practices in the area. 9
[15] The events surrounding this review, including the training provided to staff, the information provided to warehouse staff during the review and the changes in content from the DP to the SOP and are pertinent to this matter
Department Procedure (DP) to Standard Operating Procedure (SOP)
[16] There are differing views as to the extent to which the changes to the DP (that led to the SOP) were minor or major in nature.
[17] The SOP is attached to the statement of Mario Tucci. Mr Tucci is a Warehouse and Distribution Co-ordinator at the Boronia site.
[18] Page 3 of 9 of the SOP provides the revision history of the document and, under reason for revision, states that it is a ‘major change’ and that the change ‘from DP_00095 to SOP_10757 to reflect on how to enter HRWH areas safely, and re-set safety access control systems upon exiting [sic].’ 10
[19] Mr Tucci gave evidence that the SOP was a major change from the DP:
Its more in-depth about the maintenance, you know, how you isolate the cranes whilst you go in there while we're doing maintenance repairs or repairs for the contractors in there as well too. 11
[20] Mr Tucci stated that the SOP provided ‘more enlightenment about the operation’ of the whole system:
How the out-feed conveyor works, how the east-west conveyor works, how the shuttle car works, how the conveyor works and also the isolation when you're doing maintenance, more about the captured keys, how to enter the blue gates as well too - more in-depth. 12
[21] The development of the SOP was done in consultation with the staff in the area concerned through a meeting ‘two weeks or three weeks before the SOP was implemented, or effective date of the SOP.’ 13
[22] Mr Tucci’s evidence was that the procedures for entry through the centre gates had not changed between the DP and the SOP. 14
[23] The DP is also attached to the statement of Mr Tucci. 15 A review of the DP and the SOP shows that they differ from each other in length, detail and layout. Some of these differences are:
- The DP is 12 pages long while the SOP is 19 pages in length;
- Details on entering and exiting the high-rise warehouse are much more extensive in the SOP than the DP;
- The SOP contains very detailed instructions on manual operation or maintenance, much of which was not in the DP.
- The SOP shows a photograph of the centre entrance, or light curtain, and outlines procedures for using this entrance. It is labelled as an alternative entry to the high-rise warehouse when the shuttle is blocking access. This is not in the DP.
- A statement in the DP to ‘not access these areas by climbing on conveyors’ 16 is not replicated in the SOP.
[24] The evidence of Mr Muttiah (Warehouse and Distribution Manager) is that a change was made from the DP to the SOP covering the circumstances under which you could enter the high-rise warehouse through the light curtain 17 (or centre entrance).
[25] A statement to the effect that deviation from the procedure will result in disciplinary action is contained in both the SOP and the DP. It is found at the bottom of page 16 of 19 of the SOP under a section headed Manual Operation or Maintenance of Racking and/or Materials Handling Equipment and page 9 of 12 of the DP under a section similarly named.
Entry to the high-rise warehouse
[26] Mr Makin’s evidence is that he had entered the high-rise warehouse through the centre entrance on a number of occasions prior to the incident of 3 October 2009 and that he is ‘aware of other employees…that have had to access the High Rise Warehouse so as to fix the same shuttle fault.’ 18 Mr Makin also stated that as far as he was concerned:
…entering the warehouse in this way, while technically not the correct way to enter the warehouse, was the only way to fix the problem of a trapped pallet on the shuttle. No one ever advised me how to rectify this problem without entering the High Rise Warehouse through the centre entrance. 19
[27] On the occasion in question Mr Makin gave evidence that he did place an appropriate sign which reads ‘Attention, crane operator attending to fault’ on the computer to ensure no-one operated the system while he was in the high-rise warehouse. 20 He also placed the shuttle into ‘a manual operation.’21
[28] Mr Makin recalls being told prior to the incident not to enter through the centre door, but gave evidence that he did not believe that this was an ‘under no circumstances’ instruction:
I can recall being told that we weren't to enter through the centre door, but it wasn't under no circumstances. I do remember being told that there were certain faults that you could go through for, and it was my belief that one of those faults was the fault that I went in to correct, and the fact that the shuttle was stopped, couldn't go anywhere, and it needed activation. At the given time of the SOP training we were told that it was now a two-person job; somebody should actually lock you in through the proper door, and you go in to the shuttle while they start the system up. 22
[29] Mr Makin agreed that he had been told prior to the incident on 3 October 2009 by Mr Muttiah and Mr Tucci that he should no longer enter the warehouse through the centre entrance. He maintained however during cross examination that he ‘believed that that was the only way I could fix that problem and that I was allowed to do that.’ 23
[30] In his written evidence Mr Makin stated that:
Some weeks before this incident occurred (I am unsure of the exact date) I was told verbally by a manager, Andrew Muttiah, and another employee, Mario Tucci (who provides some of the on-site training), that we should no longer enter the High Rise Warehouse through the “illegal” entry (meaning the centre entrance). I think that I was also told this by my line leader, Peter Tourian, at around the same time. I would not say that either of these were like a formal warning or direction but much more informal that that.
Neither of Andrew, Mario or Peter did in any way suggest that continuing to enter the warehouse in this would be serious misconduct or that it would be disciplined in any way. 24
[31] Mr Tucci’s evidence is that Mr Makin was told not to enter the high-rise warehouse through the centre entrance clearly and explicitly:
Mr Makin gave evidence this morning that the training on 4 September did not relate to access to the high-rise warehouse at all. Is that right?---Amongst the training, yes, it was raised the fact that, you know, do we enter? Because there has been occasions where they may have done that. I said, "Under no circumstances," and I keep repeating it, right, "Under no circumstances do you enter the actual - through the centre gate unless you open up that blue gate." 25
Training
[32] There was no dispute that Mr Makin had attended a number of training sessions during his employment with GSK. The training pertinent to this matter occurred on 11 April 2007, 4 September 2009 and 8 October 2009. It is worthwhile outlining what is known of each of these training sessions.
11 April 2007
[33] This training related to the DP.
[34] Mr Makin’s evidence is that he did not recall this training 26 although a training attendance sheet27 indicates that he did attend. The attendance sheet shows the title of the training as ‘Accessing the High-Rise Warehouse Safely’.
[35] Mr Tucci’s evidence is that there was no requirement to provide practical on-the-job training on the DP. 28
4 September 2009
[36] Training was conducted on 4 September 2009. This training concerned conveyor awareness. Mr Tucci gave evidence that this training was not about access to the high-rise warehouse or the soon to be released SOP. 29 This training was conducted in response to an earlier incident in the warehouse with staff not following correct procedures when standing on the conveyor.30
[37] The training was conducted by Mr Tucci at the coal front 31 and lasted 10-15 minutes.32 Mr Tucci gave evidence that this training:
…is to do with the conveyors and the isolation switches, E-stop button, also going through the actual PE cells or the centre gate as well, like going through the centre gate…Whilst I was doing the training I said to them, "Under no circumstances do you enter the crane area unless you go through the blue gates." I first mentioned about the E-stop buttons was all about the conveyance first. So I said to them, "What you need to do if you're going to walk on a conveyor, what you need to do is hit the E-stop button first." In this instance where you've got the shuttle car and you've got the twisted pallet on there, you open up the blue gate. Then if you can't get into the shuttle car for some unknown reason, whilst you've got this blue gate still opened up because it isolates the command on the shuttle car, right, you can then walk onto the conveyor, but before you walk onto the conveyor there an E-stop button, which is in hand's reach. There's no tripping hazards, it's in hand's reach, you hit the E-stop button and also isolate the actual conveyor. You can then step on the conveyor and walk into the shuttle car, providing you have two-way communications. So there's a spotter, he's observing you walk into the shuttle car, then if you need the power - because generally what the guys do if it's slightly twisted and it's too heavy for them to position it whilst their in the shuttle car, they then ask the actual spotter, who is the crane software operator, to "Please give me power again", once he's in the shuttle car. 33
[38] Whilst Mr Makin stated that the training had occurred in the classroom:
So where exactly was this training on 4 September, Mr Makin?---It was in the training room next to the canteen, the high-rise warehouse canteen, not the main canteen.
Did the training require you to enter the high-rise warehouse? Did it relate to entry to the high-rise warehouse in any way?---No, absolutely not. 34
8 October 2009
[39] The training provided on 8 October 2009 was subject to an assessment of those who participated in the training. A copy of the assessment of Mr Makin formed part of his written evidence. 35 The evidence shows that, in answering a question about entry to the high-rise warehouse through the centre entrance Mr Makin initially gave the incorrect answer (‘true’) but then crossed this out and gave the correct answer (‘false’).
[40] The evidence of Mr Tucci is that on-the-job or practical training would only have been given to Mr Makin if he had asked for it, even though he had answered the question on entry to the high-rise warehouse incorrectly:
But you can confirm that practical training wasn't a requirement necessarily of the new SOP or the old DP?---Of the new SOP the practical assessment had to be performed if the understanding of the people that joined the classroom were not aware of the actual process. If they didn't quite understand because it was more, you know, a lot more attached to the SOP, if they did not understand their process then they would be taken down to the production supply area and run through the operation, and we've got screen shots of each process. 36
[41] In considering Mr Makin’s assessment sheet Mr Tucci explained that Mr Makin would be given practical training only if he, Mr Makin, requested it, even though he appeared not to understand the correct process. 37
[42] The training of 8 October was delivered by Mr Archibald although he gave no evidence in the proceedings. 38
[43] No evidence was given on the content of the training.
Information session on the proposed SOP
[44] The other related activity potentially relevant to these proceedings is the information sessions it is said occurred around the time of the development of the SOP.
[45] Mr Tucci gave evidence that employees were shown the proposed SOP two to three weeks prior to its introduction on 9 October and were asked for their input as to whether it was accurate, etc. 39
[46] Mr Makin’s written testimony is that during this information session he does ‘remember a discussion taking place about accessing the warehouse through the centre entrance and being told that it was acceptable to do so if necessary to fix a shuttle fault.’ 40
[47] It is not clear from the evidence who delivered these information sessions.
Cardboard in front of light sensors
[48] There was a variety of evidence on the extent to which others, besides Mr Makin, may have used cardboard to block the light sensors.
[49] Mr Muttiah testified that the use of cardboard had come to light during an investigation into an incident in August of 2009. 41
[50] Mr Laidlaw, while not stating that cardboard had been placed over the sensors, did testify that there was evidence of people doing it.
[51] Mr Makin gave evidence that he put cardboard over the light sensors at the centre entrance. This was done to ‘trick’ the system. 42 Otherwise an intrusion into the area would result in the system shutting down.
[52] Evidence was given by Mr Muttiah of an email he sent to line-leaders in the high-rise warehouse where he requested that they ensure that cardboard not be put in front of the light sensors. 43 This email was sent on 12 September 2009. One of the recipients of the email was the line-leader on Mr Makin’s shift. Evidence was given by Mr Muttiah that the line-leader on Mr Makin’s shift had advised him, Mr Muttiah, that he had shown the details of the email and explained it to his team.
Log book
[53] Following entry into the high-rise warehouse through the centre entrance, Mr Makin entered into the log book that he had entered the high-rise warehouse ‘illegally’. He did not resile from this in his evidence to FWA though he did suggest that he had used the word ‘illegal’ much as he would use the word ‘improper’. 44
Contrition
[54] Much was made of whether or not Mr Makin was sorry for what he had done and whether or not he showed contrition.
[55] Mr Makin’s evidence remains that at the time of the incident, he did not believe he had done anything wrong. 45 He indicated that he was sorry for what happened but that he ‘tried to fix a problem that had been fixed the same way many, many times before, by many different people’.46
Living Safety guidelines
[56] Whilst I was provided with material on the Living Safety procedure very little was put concerning the program and how Mr Makin had failed to abide by it.
[57] The program is a behavioural based program which ‘focuses on three different levels - so employee, team leader and management level - and really talks about what's expected in terms of a behavioural focus from employees in that area.’ 47
Other incidents in the warehouse
[58] There was evidence given of three other incidents occurring in the warehouse.
[59] The first of these cases involved Ian Archibald. The evidence of Mr Vogt, Senior HR Consultant, was that the incident was very serious. The review of the DP arose from this incident:
You've just mentioned the incident with Ian Archibald, and you did that incident before. Do you think what Ian did was dangerous? Was there a potential for death or injury with that incident occurring?---Yes, there was.
Would you say it was more dangerous that what Mr Makin did on 3 October?---I think the possible result - well, I think you would have to say yes, primarily because there was two people in the warehouse whereas Colin was placing himself at risk and that's one. In terms of consequence risk, I think both could have resulted in fatality.
Did Mr Archibald - did he have a prior history of warnings or discipline at GlaxoSmithKline?---No.
No history?---No. 48
[60] Mr Muttiah also gave evidence about the Archibald matter:
Going now just quickly to the incident that happened in August 2009 with Ian Archibald. What is your understanding of what happened with that incident?
---Basically we did an investigation. Ian Archibald started up the system from - started the high-rise warehouse crane system and there were two employees inside the high-rise at the time, but as part of the investigation it was revealed that two employees who were inside the high-rise warehouse didn't enter through the aisle gate, which should have prevented the system being started up at the back end of the warehouse. Also the conveyors, the two staff who were inside the high-rise warehouse, one was actually standing on the conveyor and it came to light that that didn't follow the procedure that needs to be followed when standing on a conveyor. So we as part of that, we updated the departmental procedure and carried out conveyor training.
What happened to the employee concerned, Ian Archibald?---He was demoted. He was the team leader at the time and he was demoted to a W4.
Would you say what Ian did was dangerous?---It was dangerous, but as part of the investigation it was highlighted that all three employees concerned were not following procedure. There was a lack of understanding of the procedure and there was a lack of detail in the procedure.
So all three employees weren't following procedure. What happened to the other two employees?---Basically the other two - so what we did with the other two is we - not just the other two, all production supply staff were refresh trained on working with conveyors and then as part of that we updated the procedure as well.
That was the conveyor training that was conducted by Mario Tucci on 4 September?---Yes. 49
[61] Mr Muttiah also gave evidence that this was not the first incident that had led to disciplinary action against Mr Archibald:
Thank you. Are you aware of any prior disciplinary history that Ian had before this incident?---Ian?
Yes, Ian Archibald?---Yes.
Can you tell us more about that?---I know that he was demoted. He was the acting team leader going back a few years and he was demoted because he gave some stock to another employee.
Okay. Do you know what the result of that disciplinary history was? Was he given a warning or a final warning?---He was demoted from his team leader role. 50
[62] The second of the matters concerned Mr Jim Bertram:
Moving along to the issue involving Jim Bertram, occurring in I believe March 2009, you've mentioned the smoking of the cigarettes or the rolling of the cigarettes on site. Is that the only issue that led to the discipline of Jim Bertram?---Yes, that's correct, so it was all GMP. 51
[63] The third issue concerned Michael Stokes:
And you've mentioned another employee, Michael Stokes, who was terminated for driving a forklift in a dangerous manner?---Yes.
How long was Michael Stokes at GlaxoSmithKline for?---Well, he was actually still on probation, so it was within six months.
Okay, and did he have a disciplinary history as well or not?---I think he had been supervised driving unsafely once before and was verbally told by his manager to wear a seat belt when driving his forklift. 52
SUBMISSIONS
[64] Both the applicant and the respondent provided written outlines of their submissions. They are not repeated here save to say that the applicant argues that there was no valid reason for his dismissal and, in the alternative, his dismissal was harsh considering all of the circumstances of the case. The applicant also argued that Mr Makin believed that the method by which he entered the high-rise warehouse was correct. The respondent on the other hand says that the applicant’s conduct was in clear breach of standards for safety and behaviour and that this, along with all the relevant circumstances provides a sound, defensible and well-founded reason for the termination. In addition they say that he has shown no contrition and they could not have faith in him in the workplace.
[65] Whilst not replicating the submissions of the parties 53 I have taken the full extent of those submissions into account in reaching my decision.
FINDINGS
[66] On the basis of the evidence presented and as is pertinent to the determination of this matter I make the following findings.
The Standard Operating Procedure
[67] The SOP was a substantial change from the DP in many respects. A review of the DP and the SOP shows that there are substantial differences across the two documents. The SOP is much more detailed than the DP. The SOP includes matters relating to the procedure for correct entry through the light curtain (the centre entrance) that had not been in the DP. The review of the DP that led to the SOP came about following an incident in the high-rise warehouse and the identification of deficiencies in procedures.
[68] That the SOP includes procedures for entering the high-rise warehouse through the centre entrance that were not included in the DP suggests that (1) the SOP was a major change from the DP and (2) the centre entrance was used in the past and the process for using it needed to be formalised in the SOP. If it was not an entrance otherwise used it is inexplicable why a procedure for using it needed to be developed.
[69] The SOP has relevance to these proceedings even though it came into effect after Mr Makin’s incident. The assessment undertaken by Mr Makin following training on the SOP on 8 October 2009 indicates a lack of understanding by him of procedures that, on the evidence of the witnesses for GSK, may or may not have changed substantially from the DP (as they related to procedures for entering through the centre entrance). Mr Makin’s knowledge of the SOP process indicates his knowledge (or lack thereof) of the DP process in terms of the correct entry to the high-rise warehouse.
[70] If there was a major change in using the centre entrance from the DP to the SOP then evidence on the SOP procedure is not relevant to the incident subject to these proceedings, and at least part of the conduct complained of in Mr Makin’s termination letter is not relevant.
[71] If there was no substantial change in these proceedings from the DP to the SOP then Mr Makin has not known of the correct procedure for quite some time.
[72] The evidence provided by GSK on the extent of change from the DP to the SOP can only be taken as it is given. However, I was not taken to details of the extent of the change by the witnesses. On reviewing the written evidence of the DP and SOP however it does suggest to me that there was a substantial change between the documents. In addition, the GSK witnesses had differing views of the extent of change between the DP and SOP. I do not accept claims of their similarity.
Training
[73] Training on the DP took place in April 2007. This training was classroom based with no need for practical, on-the-job training.
[74] The training provided with respect to safely entering the high-rise warehouse in April 2007 is the training relevant to Mr Makin’s actions on 3 October 2009.
[75] If the procedure for using the centre entrance had not changed from the DP to the SOP and, at the time of the October training, had Mr Makin believed that you could enter through the centre entrance then this suggests Mr Makin held this belief for some time.
[76] This casts doubt over the training provided in April 2007 and whether it covered this issue. This is supported by Mr Makin’s view as late as September 2009 that entry through the centre entrance was a legitimate method of entry to the high-rise warehouse to rectify the type of fault he was attending to.
[77] If the procedure had changed for entering the high-rise warehouse through the centre entrance then it is still the training in April 2007 that is relevant. Nothing was put to suggest that the 2007 training covered procedures for entering the high-rise warehouse through the centre entrance and there is nothing in the DP that was applicable at the time of the incident to suggest Mr Makin had breached procedures.
[78] I do accept that people’s recollection of training delivered in 2007 may be a bit hazy.
[79] It is difficult to draw any conclusions about the adequacy or content of the training that was delivered in April 2007. This is not to suggest that GSK mangers and trainers did not reinforce expected practice during discussions with staff. The extent that these instructions or statements to staff formed a narrative whole on procedures for using the centre entrance is not clear.
[80] With respect to the training in September 2009 I find that this training related to conveyors and did cover using the E-stop button. For training that went for 10-15 minutes it appeared very extensive in the matters it sought to cover. Whilst not a lot was said of this training it did come about because of a near miss in the warehouse.
[81] It should be mentioned that Mr Makin is also aware that under the SOP the fault he was attending to must now be dealt with by two people and not a person acting on their own.
Did Mr Makin enter the warehouse incorrectly?
[82] Mr Makin agrees that he entered the warehouse incorrectly and conceded as much at the time by entering in the log book that he had entered ‘illegally.’ There were a number of occasions when employees were told not to enter through the centre entrance.
[83] Mr Makin firmly held the view that using the centre gate was the only way to enter the warehouse to attend to the fault he had identified. He did enter the warehouse through the ‘correct’ gate in the first instance and only entered through the centre gate when he found he could not fix the fault by using the correct gate. The extent to which the procedure followed by Mr Makin accords or otherwise with the (new) SOP for entering through the centre gate – save for not using the E-stop button – is not clear.
[84] Mr Makin’s belief in the circumstances under which using the centre gate was required are supported by the error he made in his assessment on the SOP on 8 October 2009.
[85] Mr Makin claimed that he took steps to minimise risk to himself by placing the sign on the computer keyboard to warn other staff that he was in the high-rise warehouse. I have viewed the evidence in the video 54 but find this inconclusive. In considering the demeanor of the witness, I consider that Mr Makin did put such a sign on the keyboard.
[86] The DP, operational at the time of the incident, while not covering entrance to the high-rise warehouse through the centre, did contain procedures for entering the high-rise warehouse ‘safely’. Staff were advised not to use the centre entrance.
[87] I find that Mr Makin did enter the high-rise warehouse in the incorrect manner.
Did others enter the high-rise warehouse incorrectly?
[88] The DP was reviewed following the identification of deficiencies in practice and procedure with respect to entering the high-rise warehouse. These deficiencies came to light following the investigation into a near miss in the warehouse.
[89] The evidence of Mr Vogt is that, in the Archibald matter, other employees had not entered the high-rise warehouse through the aisle gate as is required.
[90] There was evidence given that evidence existed of the placement of cardboard in front of the light sensors.
[91] That the SOP contained, and the DP did not, procedures for entering through the centre entrance leads me to conclude that this was an area of deficiency in practice and procedure sought to be rectified by the SOP.
[92] On the evidence, I find that others besides Mr Makin had entered the high-rise warehouse through the incorrect entrance and/or using incorrect procedures.
[93] In this matter I find that there was lack of understanding of procedures and a lack of detail in procedure in the DP with respect to using the centre entrance.
Living Safety program
[94] I am satisfied that GSK has a strong commitment to health and safety on their sites. I am also satisfied that they have implemented a range of programs to reduce health and safety risks. However, little evidence was presented to me on the Living Safety program. The material that was provided was broad in nature.
[95] I therefore make no findings with respect to the Living Safety program.
WAS MR MAKIN UNFAIRLY DISMISSED?
[96] The issue for determination is whether the termination of Mr Makin’s employment was harsh, unjust or unreasonable. There is no question that he was dismissed and there is no redundancy involved. GSK is not a small business.
[97] In determining if Mr Makin’s dismissal was harsh, unjust or unreasonable s.387 of the Act requires that I 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.
[98] I shall consider each of these matters in turn.
Was there a valid reason?
[99] For a reason to be valid ‘it must be sound, defensible or well-founded.’ 55 In determining if a reason is valid:
It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct… 56
[100] Mr Makin was dismissed because he:
- Failed to abide by GSK procedure for accessing the high-rise warehouse in the correct manner on 3 October 2009, as documented in SOP10752-01;
- Failed to activate the E-stop button on the conveyors;
- Used cardboard to cover sensors into the high-rise warehouse; and
- Failed to abide by the Living Safety program and conveyor training.
[101] On the evidence before me the procedures for accessing the high-rise warehouse detailed in the SOP were not operational at the time of the 3 October incident. The DP was the operative procedure. I have found that the procedures detailed in the DP were not understood and there was a lack of detail in the procedure (certainly in comparison to the SOP). The incident involving Ian Archibald and two others is apposite. It was this incident that led to a review of the DP. Importantly however that reviewed procedure – the SOP – had not yet been implemented at the time of the Makin incident.
[102] The DP did not contain procedures for entering the high-rise warehouse through the centre entrance/light curtain. The DP did however contain instructions for entering the high-rise warehouse areas safely. This included the need to turn off the master switch and so on prior to entering the area.
[103] Mr Makin did not enter the high-rise warehouse in accordance with the DP. Mr Makin failed to activate the E-stop button on the conveyors and used cardboard to cover the sensors to enter into the high-rise warehouse. In a general sense he failed to abide by the ‘Living Safety’ program.
[104] Having found that the conduct occurred I must decide if it was sufficiently serious to justify termination.
[105] The question for consideration is whether this breach of policy is such to make the resulting termination of employment valid.
[106] GSK took me to Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd. 57 In her decision, Deegan C determined that:
Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination. 58
[107] The applicant’s representative referred me to the decision in Woolworths Limited (t/as Safeway) v Cameron Brown. 59 In that matter a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,60considered when failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:
In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with a employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable. 61
[108] Failure to abide by policy should not be taken lightly. Company policy, such as that in this matter, is designed to ensure uniformity of approach to issues and methods of work. It protects both the employer and employees from unfounded or speculative claims of breach of procedure, it sets reasonable standards to be observed in the workplace. Policy, as in this case, is also often designed to ensure the employer and employees meet statutory requirements and the general duty of care with respect to safety.
[109] Mr Makin chose to enter the high-rise warehouse incorrectly. He knew it was incorrect through his entry in the log book. He breached the procedure in the DP.
[110] I therefore find that there was a valid reason for the termination of Mr Makin’s employment.
Whether the person was notified of that reason
[111] Mr Makin was notified of the reason for his dismissal.
Whether the person was given an opportunity to respond
[112] Mr Makin was given an opportunity to respond to the reasons for his dismissal. He accorded himself of this opportunity and provided a response to GSK on 14 October.
Allowed to have a support person
[113] Mr Makin was allowed to have a support person with him at all relevant times.
Warned about that unsatisfactory performance before the dismissal
[114] Mr Makin had not been previously warned of unsatisfactory performance.
The size of the employer’s enterprise
[115] GSK is a large multinational employer. There is no reason why the size of the employer would impact on their procedures for dealing with such a matter.
The absence of dedicated human resource management specialists
[116] GSK has dedicated human resources personnel.
Any other matters that FWA considers relevant
[117] There are a number of matters that are relevant in considering this matter.
[118] Mr Makin truly believed that the method by which he was entering the high-rise warehouse to rectify the fault he had found was the only way of attending to that particular fault. That he still considered this to be the case at the training on the SOP of 8 October indicates that this belief had not been properly addressed by his managers or through training.
[119] That the training of April 2007 was not practical but class room based, without any assessment of the type carried out in the October 2009 training, suggests that no action was taken to determine if there was a clear understanding of requirements for accessing the high-rise warehouse in all circumstances.
[120] Mr Makin appears to have been unaware of the correct procedure for fixing the type of fault he encountered. The process for entering the high-rise warehouse was formally established in the SOP in October 2009. It was established that the 2007 training was not practical on-the-job training and that in 2009 Mr Makin would have to request practical training.
[121] The indication from Mr Tucci that Mr Makin would only be given additional training ‘if he requested it’ is not, to me a satisfactory approach by those providing the training or management to what can only be seen as a substantial misunderstanding of procedure such that it should lead to dismissal.
[122] The purpose of training is not to deliver it for its own sake but rather to improve the skills, knowledge and understanding of those being trained. This requires, in my view, that trainers and managers take responsibility to ensure those being trained understand the information being given to them. It is not enough to correct incorrect answers on an assessment – the incorrect knowledge needs to be corrected. This is the responsibility of the trainer and relevant managers. That Mr Makin would only be offered practical training if he requested is not a satisfactory approach to training. Mr Makin thought he was entering the high-rise warehouse correctly for the type of fault identified. Clearly he was wrong but no practical training was offered to rectify this misunderstanding.
[123] It is imperative that those delivering training have the requisite skills to undertake that role. Having skills and knowledge in the matters subject to the training is only part of the skills of a trainer. They must also have the technical skills and knowledge associated with delivering training.
[124] The training on the conveyors of September 2009, which, in 10-15 minutes, covered an extensive range of other information with respect to conveyor safety suggests that some training on what is dangerous machinery may not be as detailed as is warranted. The speed with which this training appeared to be delivered was surprising given that the conveyor was involved in one of the incidents that led to the review of the DP.
[125] Whilst Mr Makin’s conduct is not what was expected of him by GSK, on the evidence before me I find that he acted in a way that he considered appropriate in the circumstances. He took actions to minimise risk by placing the sign on the computer. That, even after the incident, he believed that he could enter the high-rise warehouse in the manner he did suggests that this method of entering the high-rise warehouse has never been specified as explicitly being unacceptable for the purpose of rectifying the fault Mr Makin sought to address. In addition he had raised this method of entering the high-rise warehouse in the briefings during the development of the SOP, again indicating a belief that this was an acceptable method of entering the high-rise warehouse to fix the particular fault. It suggests that GSK did not take all steps necessary to ensure Mr Makin knew or fully understood the policy that was operational at the time of the incident. The obligation of GSK in this respect has not been met.
[126] Mr Makin had an unblemished record of over 8 years service with GSK. Mr Makin is 53 years old.
[127] Other incidents at GSK in the high-rise warehouse vicinity have not led to dismissal although appropriate disciplinary action has been taken. One of these incidents related directly to the health and safety of other employees while the other potentially affected the quality of the product.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
[128] The question of whether there was a valid reason for termination of employment is not the only question to be answered in determining whether the termination was contrary to the Act. Whether there was a valid reason is only one of the specified matters which I must have regard to.
[129] That there is a valid reason for terminating employment does not necessarily mean that the termination was not harsh, or unjust or unreasonable.
[130] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) 62 Sheppard and Heerey JJ observed:
Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in particular circumstances of an individual case, be harsh, unjust and unreasonable. 63
[131] In Jupiters, a Full Bench of the AIRC found that, while there was a valid reason for the termination of the employee, the termination was nevertheless harsh. In this matter the employee was ignorant of the prohibition contained in the policy of the employer. 64
[132] In Woolworths v Brown, a Full Bench of the AIRC found:
Even where a breach of policy (or failure to comply with a direction to observe a policy) provides a valid reason for termination of employment, it is well established that the termination may nevertheless be harsh, unjust or unreasonable. For example:
• the employee may establish ignorance of the policy;
• termination of employment may be a disproportionate response to the breach having regard to its nature and the employee’s length of service and prior history;
• the employee may demonstrate prior non-enforcement or inconsistent application of the policy which, in the particular circumstances, render termination for breach of the policy harsh, unjust or unreasonable (although it should be noted that “…merely because in the past, another employee in breach of the policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh.”);
• the evidence may disclose that the policy is being applied in a discriminatory fashion or is used as a pretence to disguise a real reason that is impermissible (eg union membership or non union membership).
This list is not intended to be exhaustive and each case will turn on its own facts. 65
[133] This approach however needs to be balanced against the importance of policies and particularly those that go to matters of occupational health and safety.
[134] In Van Stavel v Pauls Victoria 66 Eames C found:
OH&S must not be compromised. Employees must be protected and must follow appropriate, agreed, and safe work practices.
… and all persons both management and employees must continue to uphold safe working practices. To reverse that trend would be catastrophic.
The Respondent had a legitimate duty and responsibility to uphold O.H. & S. working policy and procedures. The final warning after the effluent pit issue to the Applicant should have been heeded. It wasn't and he lost his job over the chain incident. 67
[135] GSK put that they have lost trust in the employee’s ability to work safely and his lack of contrition adds to this lack of trust.
[136] In Peluso v Cadbury Schweppes Limited, 68 Foggo C found:
There is nothing more important than the safety of employees and the employee’s responsibility to look after themselves and to expand that responsibility to others. There is only one issue to be considered. You only get one chance and if I thought that Mr Peluso wilfully ignored what Mr Kincaid said and was reinstated I would not want to be responsible for “looking after” an employee who is a danger to work with and I put it no more plainly than that.
I am not convinced that until these proceedings, Mr Peluso really appreciated the potential severity of his actions. I do not believe that his response was as it should have been and that the reason why it was not is because there seems to be a view that because no one was hurt then the dangerous act does not have as much significance. That is a view with which I totally disagree. In evidence Mr Peluso relied on previous occasions when breaches of safety by other employees had occurred and the difference in the disciplinary measures which had occurred.
[137] The authorities provide a range of views in a variety of circumstances on the approach that should be adopted with respect to a breach of policy. They are all relevant to these proceedings in providing some guidance as to the approach that should be adopted. But no two sets of circumstances are the same and the factors that weigh on the decision are unique in each case. I have considered these authorities that each party has taken me to in reaching my decision.
[138] Taking into account all of the material before me, the circumstances of the case and the requirements of the Act, I am satisfied that the termination of Mr Makin’s employment was harsh, unjust or unreasonable.
[139] I consider in particular that the termination was harsh taking into account:
- Mr Makin’s unblemished record.
- Practice in the high-rise warehouse by other staff.
- Period of time since training on the DP.
- The obligation apparently placed on Mr Makin to indicate if he required additional training.
- Apparent ignorance of the correct way to rectify the identified fault.
- Other incidents in the warehouse.
[140] Whilst there was a valid reason to terminate Mr Makin’s employment I find the termination disproportionate to the conduct of the employee for the reasons outlined.
[141] This is not to condone the breach of appropriate procedures and health and safety practices in the workplace. However, to sustain a position that such a breach warranted dismissal I would need to be convinced of a more systematic approach to operating procedures and training associated with those procedures in the area concerned.
[142] That additional practical training would only be offered to an employee ‘if they sought it’ fails to recognise the responsibility of management to take positive action to ensure the training delivered is truly understood.
REMEDY
[143] The relevant provision of the Act provides:
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[144] I am satisfied that Mr Makin was protected from unfair dismissal at the time he was dismissed and that he has been unfairly dismissed.
[145] The next matter I need to consider is whether reinstatement of Mr Makin is the appropriate remedy.
[146] Reinstatement is the presumptive remedy when a dismissal has been determined to be unfair. This is clear from the wording of ss.390(1) and 390(2) of the Act. It is also clear in the explanatory memorandum for the legislation. 69 The first approach is to consider reinstatement and not to consider compensation unless I am satisfied that reinstatement is inappropriate.
[147] Mr Makin seeks reinstatement.
[148] GSK oppose reinstatement and, on my reading of their submission, also oppose any compensation. I should comment that the submission made on behalf of GSK on this point is a slightly confusing. They suggest that ‘…should FWA find that the termination was harsh, unjust or unreasonable, FWA should not make an order for reinstatement and an amount in respect of lost remuneration.’ They then go on to say that ‘FWA must be satisfied that any remedy ordered is appropriate having regard to the factors in section 392(2) and all the circumstances of the case’ 70 (emphasis added).
[149] The factors in s.392(2) are relevant only to the payment of compensation where it is in lieu of an order for reinstatement to the employer at the time of the dismissal. Those factors are not relevant to a consideration of an order for reinstatement or an amount with respect to lost remuneration.
[150] GSK oppose reinstatement on the basis that there has been an irreconcilable break down in the employment relationship and they say Mr Makin has failed to show any contrition regarding his conduct. In addition they say they are concerned Mr Makin would pose a risk to health and safety were he reinstated.
[151] With respect to the risk to health and safety the only evidence that Mr Makin breached health and safety procedures (except to the extent that the SOP/DP related to safe procedures for entering the high-rise warehouse) was the tendering of material relating to the Living Safety program. No evidence was given that Mr Makin was, beyond this one incident, an unacceptable safety risk.
[152] On the matter of contrition I believe that Mr Makin is sorry for what happened while maintaining that he thought that what he did was the only way to fix the problem he sought to fix. He admitted in the log book that he entered the area ‘illegally’. GSK, I think, confuse contrition with an acknowledgement of error. Mr Makin believes that what he did at the time was the correct procedure to fix the fault. Mr Makin testified that, if reinstated, he would abide by all health and safety procedures and would not do again what he did on 3 October 2009. 71
[153] I consider that Mr Makin is suitably chastised over his actions and recognises that the SOP is to be followed at all times.
[154] In all the circumstances I consider that reinstatement is the appropriate remedy along with an order pursuant to s.391(2) of the Act that he maintain continuity of service.
[155] Having determined that reinstatement is appropriate I need to consider whether I should make an order restoring lost pay.
[156] I am mindful of the seriousness of the actions of Mr Makin in entering the high-rise warehouse through the centre entrance. Had he not been dismissed there is no doubt he would have been disciplined within the workplace.
[157] Mr Makin’s termination took effect on 16 October 2009. At the time of his termination Mr Makin was earning $26.98 per hour plus $242.84 per week in allowances. He was unemployed until he gained casual employment at $21.19 per hour. Whilst Mr Makin was working at the time of the hearing on this matter (3 March 2010) I am not aware of his current situation.
[158] There is however no doubt that Mr Makin has suffered a loss in income and that his actions at GSK have directly contributed to that loss.
[159] I am not required to make an order to restore lost pay and I do not intend to do so in the circumstances of this matter.
[160] In Paul L Quinlivan v Norske Skog Paper Mills (Australia) Ltd, 72 Lawler VP determined that the employer in that matter ‘should be entitled to deal with any further misconduct by the applicant as if he were on a final warning in relation to a failure to comply with an instruction from a supervisor in relation to observing safety practices.’73
[161] I intend to determine similarly. It would not be appropriate for Mr Makin to be reinstated without an appropriate warning. GSK in this matter is entitled to deal with any further misconduct by Mr Makin as if he were on a final warning with respect to failure to follow appropriate procedures on access to the high-rise warehouse, conveyor safety and the Living Safety program.
[162] The warning and loss of pay are, in my view, an appropriate sanction for the actions of Mr Makin.
[163] I will issue orders to the effect that:
- The applicant be reinstated to the position in which he was employed immediately prior to the dismissal with effect from the date of the order; and
- The applicant’s continuity of employment and period of continuous service with GSK be maintained.
COMMISSIONER
Appearances:
D. Mujkic for the Applicant
N. Ogilvie for the Respondent
Hearing details:
Melbourne.
2010:
3 March.
1 Exhibit R1.
2 Exhibit R2 paragraphs 8 & 10.
3 Exhibit R8, attachment MT6.
4 PN112.
5 PN112.
6 PN114.
7 Exhibit R6, paragraph 11.
8 Exhibit R7, attachment MT3.
9 Exhibit R6, paragraph 8.
10 Exhibit R7, attachment MT2.
11 PN724.
12 PN649.
13 PN661.
14 PN635.
15 Exhibit R7, attachment MT4.
16 Exhibit R7, attachment MT4, page 8.
17 PN537.
18 Exhibit A2, paragraph 10.
19 Exhibit A2, paragraph 14.
20 PN212.
21 PN214.
22 PN160.
23 PN199.
24 Exhibit A2 at para 12-13.
25 PN612.
26 PN124-5.
27 Exhibit R7, attachment MT4.
28 PN698.
29 PN681.
30 PN 563, 566.
31 PN 609.
32 PN 676.
33 PN610.
34 PN141-2.
35 Exhibit A2, attachment CM3.
36 PN707.
37 PN715-17.
38 Mr Tucci, PN 665.
39 PN655-661.
40 Exhibit A2, paragraph 15.
41 PN 548-9.
42 Exhibit A2, paragraph 8.
43 Exhibit R6, attachment M2.
44 PN159.
45 PN220 & PN173.
46 PN173
47 PN439.
48 PN414-417.
49 PN563-7.
50 PN569-72.
51 PN418. Note: GMP stands for ‘good manufacturing practice’, see PN397.
52 PN419-21.
53 See exhibits A1, A7, A8 & R1.
54 Exhibit R6, attachment AM3.
55 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
56 Walton v Mermaid (1996) 142 ALR 681 at 685.
57 [2009] AIRC 893 (16 October 2009).
58 Lion Nathan at [54].
59 PR963023 (26 September 2005) (footnotes excluded).
60 PR928970 (19 March 2003), at [14]
61 Woolworths v Brown at [34].
62 (1992) 36 FCR 20.
63 Bostik v Gorgevski (No 1) at [39].
64 Jupiters at [14].
65 Woolworths v Brown at [32] & [34] (footnotes omitted).
66 PR939640 (21 October 2003).
67 Van Stavel v Pauls Victoria at [138], [140]-[141].
68 Print Q0665 (8 May 1998).
69 Explanatory Memorandum, Fair Work Bill 2008 (Cth), paragraphs 1555-6.
70 Exhibit R1, paragraphs 44-45.
71 PN174-175.
72 [2010] FWA 883 (8 February 2010).
73 Ibid at [50].
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