Cong Nguyen v IGA Distribution (Vic) Pty Ltd
[2011] FWA 1475
•16 MARCH 2011
Note: An appeal pursuant to s.604 (C2011/3913) was lodged against this decision - refer to Full Bench decision dated 9 September 2011 [[2011] FWAFB 4070] for result of appeal.
[2011] FWA 1475
The attached document replaces the document previously issued with the above code on 16 March 2011.
The phrase ‘unjust, unjust or unreasonable’ has been amended to ‘harsh, unjust or unreasonable’ at paragraph [124].
Rebecca Lee
Associate to Commissioner Bissett
Dated 12 May 2011
[2011] FWA 1475 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cong Nguyen
v
IGA Distribution (Vic) Pty Ltd
(U2010/13014)
COMMISSIONER BISSETT | MELBOURNE, 16 MARCH 2011 |
Application for unfair dismissal remedy.
[1] Mr Cong Nguyen (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) claiming his dismissal from IGA Distribution (Vic) Pty Ltd (IGA) was unfair.
[2] Mr Nguyen commenced employment with IGA in 1987. His employment was terminated on 23 September 2010 with payment in lieu of notice. The decision to terminate Mr Nguyen’s employment followed an investigation into an incident in which a forklift driven by Mr Nguyen collided with a forklift driven by another employee.
[3] The matter was referred for conciliation where it failed to settle. It was subject to arbitration on 20 and 21 January 2011.
[4] Mr Nguyen was represented by Mr Maas from the National Union of Workers. IGA was represented by Mr Johnson.
[5] Evidence was given by:
- Mr Nguyen (through Ms Te Bui, an interpreter);
- Mr Galea (warehouse employee);
- Mr Retallack (warehouse employee);
- Mr Baldwin (warehouse employee);
- Mr Meindl (Warehouse Manager);
- Ms Olsson (State HR Manager); and
- Ms Smith (Occupational Nurse).
Background
[6] Mr Nguyen was employed as a forklift driver at the IGA Distribution Centre in Laverton.
[7] The forklifts driven at the centre are described as ‘reach’ forklifts. To operate such a forklift the operator must stand sideways to the front of the forklift (the front being the direction of the tines). The forklift is always driven backwards (that is away from the direction of the tines). This requires the operator to look over his or her shoulder to see where he or she is going.
[8] The warehouse has a number of aisles with an established system for movement by the forklifts up and down the aisles. The aisles are lettered, with the aisles relevant to this matter being ‘S’ aisle and ‘T’ aisle. ‘T’ aisle is the last aisle in the warehouse. Both sides of each aisle have racks stacked with products. ‘Pickers’ work the aisles bundling orders ready for dispatch whilst the forklift drivers move goods around the warehouse and to and from higher reaches of the racks.
[9] On 22 September 2009 Mr Nguyen, while driving his forklift, collided with a forklift being driven by Mr Jimmy Deralas. The collision occurred in the vicinity of ‘T’ aisle. Immediately following the collision Mr Meindl, the Warehouse Manager, met with Mr Nguyen. In accordance with standard procedures in the Fitness for Work (FFW) Policy Mr Nguyen and Mr Deralas underwent a drug and alcohol test.
[10] Mr Nguyen then met again with Mr Meindl at which time he was advised he would be stood down with pay.
[11] On 23 September Mr Nguyen was asked to attend at the worksite at 11.00am. Once there he met with Mr Meindl and Ms Olsson, the State HR Manager (at that time). Darren Parkinson, a union site delegate was also present.
[12] Following the meeting which lasted (on and off) for approximately four and one half hours Mr Nguyen was notified that his employment was to be terminated. The letter of termination advised that he would be paid five weeks’ pay in lieu of notice and that he would receive an ex gratia payment equivalent to five weeks’ pay in recognition of his long service to the company.
The Evidence
[13] A substantial amount of evidence was provided in this matter. Whilst it may not all be mentioned below it was considered in reaching my decision.
[14] During his oral evidence Mr Nguyen was provided with an interpreter. Mr Nguyen’s written witness statement 1 whilst originally filed in English was translated and sworn by Mr Nguyen in Vietnamese. An affidavit verifying the translation of the English statement into Vietnamese was provided by the translator. The English and Vietnamese versions of Mr Nguyen’s statement were both admitted into evidence.
The Collision
[15] Mr Nguyen’s written evidence is that he
had to put away a pallet in T aisle. The aisles in the warehouse are quite narrow. There were three employees not on forklifts picking in Aisle T. There was also another reach forklift heading in the opposite direction driven by Jimmy Deralas I was waiting on the left hand side of the aisle. When one of the pickers moved away, I tried to move down the Aisle. To move down the aisle past the remaining two pickers I needed to do a reverse circle to face the prongless side of the fork in the right direction to move up the right hand side.
I believe that I must have misjudged how quickly my fork was moving, and I collided into the fork driven by Jimmy.
The collision made a loud bang, but no one was injured and the fork lifts were not damaged... 2
[16] Mr Nguyen stated that each job to be done is allocated a number of minutes and if you don’t get the job done in the allocated time you get into trouble. He says he was delayed on the day of the collision by being called to the supervisor’s office, by a mix up as to where some empty pallets should be stored and by problems with the scanner on his forklift. 3 Each of these delays added to the pressure he felt to ‘catch up’.4
[17] Mr Retallack gave evidence that he was in the cross docking area, approximately 3-5 metres from the accident where he had an unobstructed view down ‘T’ aisle. He could see 3-4 pickers blocking the aisle and Mr Deralas at the end of ‘T’ aisle waiting to proceed down the aisle. He observed Mr Nguyen come around Mr Deralas, do a 90 degree turn and then hit Mr Deralas’ forklift. 5 The accident occurred, on Mr Retallack’s evidence, at the end of ‘T’ aisle, out in the open.6 In his written statement Mr Retallack stated that Mr Nguyen ‘deliberately rammed his forklift into Jim Deralas’ forklift with considerable force’7 although later in the same statement said that Mr Nguyen was ‘reckless’.8 Under questioning Mr Retallack said he believed the collision was deliberate because Mr Nguyen ‘would have had a view of Jimmy waiting there, and he - and of T aisle, and then he’s turned 90 degrees, straight into Jimmy. There was no reason for turning that way.’9
[18] Mr Retallack’s opinion was that Mr Nguyen had been reckless in driving his forklift into Mr Deralas’ forklift as he would have had full view that he could not proceed down ‘T’ aisle and ‘the way the forklift turned into the other one was just reckless...You don’t turn a forklift like that.’ 10
[19] Mr Baldwin gave evidence that at the time of the collision he was driving an Electric Pallet Jack and that he was approximately 15 metres from the end of ‘T’ aisle. He saw Mr Deralas stationary at the end of ‘T’ aisle and saw that the aisle was blocked by pickers. He heard Mr Nguyen yell at Mr Deralas to get out of the way before they collided. Mr Baldwin states that he ‘could not understand exactly what Cong was saying, because he seemed angry.’ 11 In his oral evidence he says he heard Mr Nguyen yell out “move, move”.12 When questioned about Mr Nguyen being angry, the following evidence was given by Mr Baldwin:
If I take you to paragraph 5 of your statement, the very last line, you indicate that in your opinion Mr Nguyen seemed angry. What do you mean by "he seemed angry"?---Probably more that he was frustrated that he was being impeded.
With respect, that's not really what I asked. I asked you about what made you form the view that he looked angry?---It was just that - more the tone of his voice.
Could you elaborate on that?---Probably the best way to describe it is like he was flustered, I guess. 13
[20] Mr Baldwin’s evidence is that he believed that the collision between Mr Nguyen and Mr Deralas was avoidable. 14
Oil on floor
[21] Mr Nguyen gave evidence that there was an oil spill on the floor where the collision occurred and that was part of the reason for the collision. 15 Further he said that even after an oil spill is cleaned up it leaves a residue.16
[22] Mr Retallack said that as the collision occurred at the end of ‘T’ aisle there would have been no oil on the floor 17 (a spill would occur in the aisle where goods were being placed on or taken off the racks rather than at the end of it) but even if there was an oil spill once it had been cleaned up while the surface might be a bit slippery it would be safe to drive on the area.18
[23] Ms Olsson and Mr Meindl gave evidence that Mr Nguyen had never mentioned an oil spill 19 and when the site of the collision was inspected the day following the collision there was no evidence of an oil spill.20 Mr Meindl gave evidence that if there had been a spill on the warehouse floor of the type referred to by Mr Nguyen Mr Meindl would have been made aware of it by pickers or forklift drivers as it would have been unsafe and would have required a cleaner.21
Mr Nguyen
[24] Mr Nguyen was concerned that he was not completing his work within an adequate time. His evidence is that each job was to be completed within a certain amount of time and ‘if you do not get the job done in the allocated minutes you get into trouble.’ 22 He maintained that he was in a hurry at the time of the collision and concerned about the delay. This was reflected in his answers when questioned by both Mr Meindl and Ms Olsson.
[25] Mr Nguyen also gave evidence that he understood that you are given three warnings and then you are sacked. 23 He was told this by Mr Meindl at a meeting ‘last year’ addressed to all employees.24 Mr Nguyen was concerned that if he did not get his work completed on time he would receive a warning and hence may be subject to the three warnings policy.
[26] Mr Nguyen’s English language skills are limited. This was not disputed by the witnesses in this matter. Mr Nguyen gave evidence that he wanted to ask for an interpreter in his first meeting with Mr Meindl (on 22 September) but was told to go for a blood alcohol test (see below) and then told to go home. 25 He also gave evidence that he did not think there would be enough time to arrange an interpreter26 and also that he asked for an interpreter but none was provided.27
[27] Mr Galea, who accompanied Mr Nguyen to the second meeting on 22 September, gave evidence that Mr Nguyen did not ask for an interpreter at that meeting. 28
[28] Ms Olsson’s evidence is that at the meeting on 23 September Mr Nguyen was not asked if he wanted an interpreter but he was asked if he understood and he said yes. 29 Ms Olsson stated she was aware of the need to ensure that workers from a non-English speaking background could understand her at all times and she did not form the opinion that Mr Nguyen did not understand.30
[29] Mr Nguyen was given the opportunity to demonstrate what had occurred at the time of the collision by walking through the events where they occurred at the end of ‘T’ aisle although he was not permitted to get into a forklift to demonstrate. 31
[30] Mr Meindl gave evidence that Mr Nguyen did not, at any of the meetings on 22 or 23 September 2010, ask for an interpreter. 32
[31] Mr Meindl had met with Mr Nguyen in his office a couple of times previously when Mr Nguyen felt he was being unfairly treated. Mr Meindl believed that Mr Nguyen could adequately articulate his case within reason (with the assistance of his union delegate) but did not feel there were issues associated with Mr Nguyen’s comprehension. 33
Blood alcohol test
[32] Immediately following the collision on 22 September Mr Nguyen and Mr Deralas were both sent for ‘cause’ testing for alcohol and drugs. Such testing is standard procedure if there has been an incident of this type. 34 The testing was carried out by Ms Smith, the Occupational Health Nurse at the site.
[33] The FFW Policy mandates that all employees in ‘safety sensitive’ areas - which includes fork lift areas - must have a blood alcohol reading at all times not exceeding 0.00%. 35
[34] Ms Smith’s evidence is that, on being contacted by Mr Meindl, she attended the first aid room and tested Mr Deralas who returned a negative result for drugs and a 0.00% blood alcohol reading. 36 She then tested Mr Nguyen who tested negative for drugs but returned a reading of 0.01% blood alcohol.37
[35] The FFW policy requires that, if a blood alcohol reading is returned above the required limit the person should be re-tested 20 minutes later. As a precaution Ms Smith says she tested Mr Nguyen 10 minutes after the first test and then a further 10 minutes later. At each test Mr Nguyen had a blood alcohol reading of 0.01%. Ms Smith’s evidence is that at the completion of each test she showed the reading on the screen to Mr Nguyen and also showed it to a supervisor who was waiting outside the room. 38
[36] Ms Smith’s says that she asked Mr Nguyen if he could explain his reading and he replied that he had some drinks the night before but not much. 39 She also gave evidence that Mr Nguyen frowned at her and seemed angry about the result40 although conceded that her assessment that Mr Nguyen was angry was her interpretation of the look on Mr Nguyen’s face.41
[37] Mr Nguyen’s evidence is that he was only tested twice - not three times 42 and he was not shown the results of the tests.43 He also gave evidence that he had not had beer or alcohol for three months.44
[38] After he was stood down Mr Nguyen gave evidence that he attended the Sunshine Police Station where he requested to be breath tested. Once tested he completed a statutory declaration stating that he had been tested with a result of 0.00% blood alcohol. A copy of the statutory declaration is attached to Mr Nguyen’s witness statement. 45
[39] Ms Smith attached to her witness statement a calibration report for the blood alcohol testing equipment she used but could not provide any evidence as to what that report showed 46 beyond that the last service date had been 29 March 2010.
[40] Some evidence was given by Mr Galea with respect to faulty breath testing equipment 47 however it transpired that this was not the equipment used by Ms Smith.
Collisions between forklifts
[41] Mr Nguyen’s evidence is that collisions involving forklifts are quite normal and can be distinguished between serious and non-serious incidents. 48
[42] Mr Galea gave evidence that accidents between forklifts are frequent and normal but they are a serious matter, 49 that the forklifts had been slowed down50 and if it is thought a driver is driving too fast management will have a quiet word (not a formal warning) asking that the driver ‘ease off’.51
[43] Mr Meindl’s evidence is that it is not acceptable for forklifts to collide under any circumstances and that all incidents are to be reported. 52 He would however only be aware of those accidents that were reported53 (whether it was a forklift/forklift accident or a forklift hitting racking or some other part of the warehouse). He provided no evidence of mandated requirements to report incidents involving forklifts.
[44] Mr Baldwin’s evidence was that ‘minor’ or miscellaneous accidents happen where wheels might clip as forklifts pass. No-one would say anything when there is a wheel tap. 54
Meeting on 22 September 2010
[45] Mr Nguyen’s evidence is that following the collision the supervisor - Dragi - started yelling at Mr Nguyen and told him (and Mr Deralas) to get out of the forklifts. Mr Nguyen then followed Dragi to see Mr Meindl. Mr Nguyen’s evidence is that at this meeting he could not understand what Dragi was saying to Mr Meindl as Dragi was talking very quickly. 55 Mr Nguyen agrees that he was aggressive to Dragi and says this is because he was frustrated and hot tempered.56
[46] Mr Meindl’s evidence is that as Dragi was telling him about the collision Mr Nguyen was aggressive and was hand pointing and shaking and called Dragi a liar when Dragi said Mr Nguyen had deliberately driven his forklift into that of Mr Deralas. 57
[47] Mr Nguyen was then sent for the drug and alcohol test referred to above.
[48] Following the drug and alcohol test Mr Nguyen again met with Mr Meindl. At this meeting Mr Nguyen had Mr Galea as a support person. Mr Everard, another supervisor, is said to have also been present. 58
[49] Mr Galea’s evidence is that Mr Reid had been asked initially to attend the meeting as a support person for Mr Nguyen but Mr Reid had asked Mr Galea to attend instead as Mr Reid found it difficult to understand Mr Nguyen. 59 Mr Galea’s evidence is that Mr Nguyen was not given an opportunity to tell his side of the story because ‘it’s very hard to defend yourself when you can’t understand what you’re trying to defend.’60 Mr Nguyen was however given an opportunity to respond and an opportunity to give a short statement.61
[50] Mr Meindl’s evidence is that the only reason Mr Nguyen gave for the collision was that he was in a hurry. 62
[51] Mr Meindl says that during the meeting he asked Mr Nguyen for a statement which Mr Meindl then typed up, read back to Mr Nguyen and asked Mr Nguyen if he wanted to add anything. No evidence was given of Mr Nguyen’s answer. This statement was not in evidence.
[52] Mr Nguyen was suspended on pay and sent home. He was advised he would be contacted as to when he should return. Mr Galea stated that it took some time to explain to Mr Nguyen that he had been suspended with pay and that he was still employed. 63
[53] Mr Meindl said that later that day he was given a signed hand-written statement from Mr Baldwin which stated that he had seen the collision and that, in his view, it was avoidable by Mr Nguyen. 64 Mr Baldwin’s evidence is that he does not believe he said in that statement that Mr Nguyen had deliberately hit Mr Deralas’ forklift.65
Meeting of 23 September
[54] Mr Nguyen was contacted and asked to attend a meeting on 23 September 2010. In attendance at that meeting were Mr Meindl, Ms Olsson (HR Manager), Mr Nguyen and Mr Parkinson, the union site delegate.
[55] The meeting started at 11.00am and continued until about 4.30pm although there were a number of breaks as various people were consulted and advice sought.
[56] Mr Retallack provided an oral statement to Mr Meindl and Ms Olsson of what he had observed the previous day. 66 Ms Olsson said Mr Meindl made her aware of the written statement made by Mr Baldwin the day before although she did not see it.67 Mr Deralas said no more than that Mr Nguyen had run into him and that he thought it was an accident.68
[57] Ms Olsson’s evidence is that Mr Nguyen was made aware of what the witnesses had said. 69
[58] Mr Nguyen said he tried to explain what had occurred but could not express himself well. 70 At the suggestion of Mr Parkinson an ‘inspection’ was held at the site of the collision. While Mr Nguyen was not allowed to get back on the forklift to demonstrate what had occurred he walked through the incident.71
[59] Mr Meindl’s evidence is that, on the basis of the demonstration, he formed the view that the collision could not have been accidental.
[60] Ms Olsson’s evidence is that the only explanation given by Mr Nguyen for the collision was that he was in a hurry. 72 She also formed the view that, based on the evidence they had, the collision was deliberate73 although Mr Nguyen was not asked directly if it was avoidable.74
[61] Ms Olsson could not recall if Mr Nguyen was told that a possible outcome of the investigation was the termination of his employment. 75 At some stage during the meeting Mr Parkinson was made aware that the penalty being considered against Mr Nguyen was termination of his employment. Mr Parkinson then asked for time to consult with the union organiser.76 Mr Stutz, the union organiser, subsequently attended the warehouse and joined the meeting.
[62] Ms Olsson’s evidence is that she could not recall if Mr Stutz raised any issues about Mr Nguyen’s ability to understand the disciplinary process although he may have raised questions around Mr Nguyen’s English comprehension. Ms Olsson’s evidence is that, primarily, Mr Stutz was looking to minimise the effect of the potential termination. 77
The decision to terminate
[63] The decision to terminate Mr Nguyen’s employment was made by Ms Olsson during the course of the meeting on 23 September 2010. The reason for termination of Mr Nguyen’s employment was based on the potential consequences of the collision and because it was a health and safety incident. The decision to terminate was not based on Mr Nguyen’s blood alcohol reading of 0.01% although this was taken into account. 78
[64] Ms Olsson came to the conclusion that termination was appropriate because:
Based on the evidence that we were given, there was no - there was nothing in there that indicated it was just an accident. He deliberately drove his forklift into the other forklift because he was in a hurry. The other forklift driver did not move quick enough for him. He was very concerned about losing time and that he’d be penalised for that. We were just really fortunate there was no - nobody was injured in the accident, and due to the seriousness of an OH&S accident like that, we had to consider what possible outcomes could have been there. If there had been an injury, we would definitely have terminated. There were a lot of OH&S issues that led us to that decision. It was not the fact that he had an alcohol reading; it was purely around the fact that the accident was not an accident, it was deliberate. 79
[65] Ms Olsson was questioned on the breadth of matter she considered in making her decision:
I put it to you that there was no consideration taken into account on his lack of English or his ability to communicate. He wasn’t allowed to demonstrate or draw pictures, he wasn’t allowed to hop into the forklift. I put it to you that he wasn’t offered a translator or an interpreter. These things weren’t taken into account, and I put it to you that there was no consideration of that. I put it to you that there was no consideration of the material effect of this safety breach, as there was no material consequence from the accident, and I put it to you that there was no consideration of his prior good work history. He has been there for some 23 years with the company, including its predecessor, a very loyal employee. Can I ask you, in my final question, how you respond to all of that?---I don’t agree that we didn’t take any of those factors into consideration, because we did. That was indicated, why it took so long to come to the decision that we did. Given the nature of the accident, yes, there were no injuries, there was no damage to the material, but the seriousness of the accident, should somebody have been injured, would have been a huge risk for the company. We’ve had a number of forklift accidents in the past. We have to be considerate about the safety of the employees, and if it there were other factors involved in it, that it was a genuine accident, you’d take a lot of that into account. However, I was given nothing to base my decision on other than, “I was in a hurry.” That was the only explanation that I was given for him going into the forklift: because the other individual hadn’t moved quick enough for him, and he was in a hurry. If a forklift driver has genuinely not seen somebody else and gone into them accidentally, and you can see that it was an accident, you’d certainly take that into account. There was nothing in the evidence that I was presented with or that Mr Nguyen gave me that made me see it in any other different light. The whole conversations I had with him, I did not get any indication that he did not understand what I was talking about. He gave no indication at any stage, even through his delegate, that he didn’t know what I was talking about. He understood the seriousness of the conversation, which is why I repeated a number of questions to him. So I disagree that none of that was taken into account. 80
[66] Ms Olsson further stated that the decision to terminate Mr Nguyen’s employment was not taken lightly but it was a decision that needed to be made taking into account the safety of other employees. 81
[67] With respect to the potential for serious injury Ms Olsson referred to an accident (in another warehouse) involving a forklift where a warehouse employee not in a forklift had their foot crushed. 82
[68] Mr Nguyen was not dismissed for serious misconduct warranting instant dismissal. On termination Mr Nguyen was paid out his notice and also given an ex-gratia payment of five weeks’ pay taking into account his age and length of service. 83
[69] Mr Meindl’s evidence is that, upon the request of Mr Stutz (the union organiser) they considered other positions for Mr Nguyen prior to reaching the decision to terminate his employment but there were no such positions available. He could not work as ‘picker’ because of a previous injury, jobs cleaning were reserved for workers who were injured and he was not suitable for office based work. 84
Was Mr Nguyen unfairly dismissed?
[70] The Act provides:
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.
[71] Mr Nguyen has been dismissed. IGA is not a small business employer such that the Small Business Dismissal Code would apply and the dismissal was not a case a genuine redundancy.
[72] The issue to be determined is if the dismissal was harsh, unjust or unreasonable. In determining this the Act provides:
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.
Was 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)?
[73] The evidence of Ms Olsson is clear. Mr Nguyen’s employment was terminated because of the health and safety implications of the collision in which he was involved. Ms Olsson, the decision maker, reached the conclusion that the collision was deliberate.
[74] The relevant consideration is not however whether the employer considers that the conduct occurred. It is necessary for Fair Work Australia to determine if the conduct occurred 85 and, if it did, if it constituted a valid reason for the termination of employment. The issue is not whether the conduct in question amounted to serious misconduct at common law but whether it gave rise to a valid reason for termination of employment.86
[75] For the reason for the termination of employment to be valid it must be sound, defensible or well founded. 87 In Rode v Burwood Mitsubishi88a Full Bench determined that
the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason. 89
(emphasis added)
[76] I am satisfied and find that Mr Nguyen collided with Mr Deralas’ forklift and that the collision was strong enough to create a loud ‘bang’. I also find that the collision did not result in damage to stock, damage to the forklifts or injury to any person.
[77] It is not clear from the evidence the extent to which accidents involving forklifts occur. All that can be discerned is that about one accident per month is reported to Mr Meindl. It is clear however that there is a range of accident types from feather touches to serious events that can result in serious injury.
[78] The evidence of Mr Retallack and Mr Baldwin is that Mr Deralas was stationary at the end of ‘T’ aisle at the time of the collision, while Mr Nguyen says Mr Deralas was both moving 90 and stationary.91 Mr Nguyen maintains that the collision was accidental.
[79] On this issue I prefer the evidence of Mr Retallack and Mr Baldwin to that of Mr Nguyen. I find that Mr Deralas was stationary when Mr Nguyen collided with him. I also find that the collision could have been avoided had Mr Nguyen not been in a hurry.
[80] Mr Retallack’s evidence is that the collision was reckless. Mr Baldwin’s evidence is that it was avoidable. Whilst both at various times also described the accident as ‘deliberate’ in my opinion the evidence shows they have used the word ‘deliberate’ interchangeably with reckless and avoidable.
[81] Mr Baldwin’s evidence with respect to what he heard changed from not being able to hear what Mr Nguyen said to having heard Mr Nguyen shout ‘move, move.’ In his written statement he said Mr Nguyen appeared angry but later said he was frustrated or flustered. The use of quite different words to describe the one event suggests that the literal meaning cannot be ascribed to the words used by Mr Baldwin to describe Mr Nguyen’s words or actions. It makes his evidence in this respect unreliable.
[82] Mr Nguyen was in a hurry that day. He does not deny this. On his written evidence he felt he had been delayed by matters outside his control on a number of his tasks. He was fearful that he would receive a warning and this may lead to dismissal. At the time of the accident the pressure continued - ‘T’ aisle was blocked by pickers and Mr Deralas was in his way. Mr Nguyen’s frustration I believe caused him to behave in a manner that caused the collision.
[83] There is of course a difference between having an accident and having deliberately collided. A deliberate act is one which is ‘weighed or considered, studied, intentional’ 92 whilst to cause the collision suggests an action (not necessarily deliberate) which contributed to or resulted in the collision. An accident, in the context of this matter, is ‘anything that happens unexpectedly, without design, or by chance.’93
[84] Ms Olsson drew the conclusion that the collision was deliberate because nothing indicated it was an accident. It appears that she only considered two options - either there was no blame to apportion to anyone for the collision - it was purely by chance - or that Mr Nguyen deliberately ran into Mr Deralas. In my view there are gradations in between these two extremes.
[85] I find that Mr Nguyen caused the collision by his recklessness and carelessness, driven by his belief that he needed to make up lost time or he might be subject to a warning. I find that he did not deliberately hit the forklift driven by Mr Deralas.
[86] Mr Nguyen claimed that there was oil on the floor where he collided. The oil spill was not raised at the time of the collision, although Mr Nguyen says this was because he did not have a chance to speak. Mr Nguyen did not tell Mr Meindl or Ms Olsson of it in any of the interviews held with him. The evidence of Mr Meindl and Ms Olsson is that there was no sign of an oil spill when they attended the demonstration of the accident on 23 September 2011.
[87] If there had been an oil spill it is inevitable that others in the warehouse, including Mr Meindl, would be aware of it. On this matter I prefer the evidence of Ms Olsson and Mr Meindl over that of Mr Nguyen. I find that there was no oil spill on the warehouse floor that could have contributed to the collision.
[88] The collision does raise health and safety issues which cannot be overlooked. It is not to the point that an injury did not occur but whether, by driving the forklift in the manner he did, Mr Nguyen could have affected the safety or welfare of other employees.
[89] IGA take their health and safety responsibilities seriously. The FFW Policy, evidenced in the proceeding, 94 indicates that the operation of forklifts is a ‘safety sensitive’ matter. An accident involving a forklift in another warehouse resulted in serious injury to a worker.
[90] The reach forklifts are substantial and potentially dangerous machines. On Mr Galea’s evidence they have been tooled down to slow them down. Operated inappropriately they have the potential to cause serious injury.
[91] Mr Nguyen was immediately sent for a blood alcohol test where, over a 20 minute period, he tested three times at 0.01% blood alcohol. The acceptable blood alcohol reading is 0.00% in safety sensitive areas. The FFW Policy however does not mandate termination of employment for a reading of 0.01%. Mr Nguyen insists he had not had anything to drink for a week or so (or some months) while Ms Smith insists he said he had a drink the night before. In response to Ms Olsson Mr Nguyen repeated that he had not had anything to drink. Whilst the blood alcohol reading was not the reason for the termination of his employment, it contributed to the decision.
[92] Mr Nguyen was so concerned about the blood alcohol reading that he went to the Sunshine Police Station and asked to have his breath tested. He completed an affidavit where he stated his BAC on this test was 0.00%. There is no basis to dismiss this affidavit as not true. Whilst I have found the evidence given by Mr Nguyen unreliable on some points this does not mean the affidavit is not reliable. The affidavit raises sufficient doubt as to Mr Nguyen’s blood alcohol reading, such that I cannot conclude in all probability that the reading of 0.01% was accurate.
[93] Whilst Ms Smith gave evidence that Mr Nguyen was angry at the result of the blood alcohol test she administered she agreed that she assumed this as a result of Mr Nguyen’s facial expression. There is nothing to suggest that she read his facial expression correctly and no evidence that he displayed anger about the reading at any other time.
[94] IGA is entitled, and was correct, to treat the collision seriously. That they acted promptly is to their credit. Where an incident with health and safety implications occurs it may well provide a valid reason for dismissal but just because there are health and safety implications does not, in and of itself, provide a valid reason for the dismissal. The surrounding circumstances must be assessed. In this case Mr Nguyen felt pressured to make up time he had lost. He was concerned that he might be given a warning and he was frustrated at the delays.
[95] On the basis of the evidence before me and the findings I have made with respect to the conduct of Mr Nguyen and the circumstances of the collision I do not find that IGA had a valid reason to terminate Mr Nguyen’s employment in that the decision is not, in my finding, defensible.
[96] This does not, however, exonerate Mr Nguyen. He was careless and reckless in the matter. His carelessness may have had serious consequences. He should have been subject to appropriate disciplinary action and training. Termination of his employment was however in these circumstances not justified.
Was the person was notified of that reason
[97] Mr Nguyen was notified of the reason for the termination of his employment in a letter dated 23 September 2010.
Was the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[98] Whether a person was given the opportunity to respond to the reasons for the termination of their employment requires that they understand the reason for the termination. The opportunity to respond when there is no comprehension is meaningless.
[99] Mr Nguyen has a limited grasp of English. Witnesses, when asked, suggested that on a range of poor to good Mr Nguyen’s English was ‘fair’ and that it could be difficult to understand him. I take this to include his spoken English and his capacity to comprehend what is being put to him in English. There is no doubt that Mr Nguyen’s English-language skills are not good. He gave his evidence through an interpreter and swore his written witness statement in his native language.
[100] Submissions were made that Mr Nguyen should have been given access to an interpreter and the lack of such access affected his capacity to engage in the process.
[101] A number of witnesses assumed Mr Nguyen could understand what was being said to him because he nodded or answered yes to their questions. At no stage was he asked to repeat back what had been said to him to verify that he did truly understand. Caution needs to be exercised in assuming comprehension on the part of a person - particularly one whose first language is not English - just because they nod their head or say yes. To attribute meanings to a nod or ‘yes’ in circumstances where English is not the first language is to run the risk of doing an injustice through ignorance.
[102] Management at IGA did not offer Mr Nguyen the services of an interpreter, although I accept that they did believe that Mr Nguyen understood what was happening and what was being asked of him. Ms Olsson indicated awareness of the need to speak clearly and without using complex words. Mr Meindl, having had discussions with Mr Nguyen in the past, believed he understood what was being said. That said, additional caution should have been exercised by management given the potential outcome of loss of employment for Mr Nguyen.
[103] Whilst Mr Nguyen had a support person present at all times following his blood alcohol test, none of these people spoke Vietnamese. Further, Ms Olsson could not remember if Mr Stutz, the union organiser, raised issues about Mr Nguyen’s comprehension.
[104] Whilst I do find, in all of the circumstances, that Mr Nguyen was given an opportunity to respond it is not without reservation.
[105] The provisions of the Act with respect to the making of agreements require that the terms of the agreement, and the effect of those terms, should be explained to employees in an appropriate manner taking into account the particular circumstances and needs of the employee. The kinds of employees whose particular circumstances should be taken into account include employees from culturally and linguistically diverse backgrounds. 95 This requirement is to ensure employees do know what it is they are being asked to approve. Such matters, in my opinion, should also be taken into account when providing an employee with an opportunity to respond to allegations of misconduct, particularly in circumstances where the result may well be termination of employment. Whilst it was appropriate to deal with the matter expeditiously there was nothing to suggest that allowing time to have an interpreter found and present would have had an adverse impact on the business or the decision making process. Mr Nguyen’s cultural and linguistic situation should have been taken into account.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[106] Mr Nguyen had access to a support person at the meeting with Mr Meindl on 22 September and at the meeting with Mr Meindl and Ms Olsson on 23 September 2010.
[107] It should be noted that the provisions of this paragraph are not that a person not be refused access to a union representative but that they not be refused access to a support person to assist at any discussions. As discussed above, Mr Nguyen was not given access to an interpreter who may well have assisted in the discussions.
[108] Mr Nguyen did have access to Mr Galea on 22 September and Mr Galea did assist in the discussions. Mr Nguyen also had the support of the site delegate and Mr Stutz on 23 September.
[109] I find that Mr Nguyen was not refused access to a support person.
The size of the employer’s enterprise and access to human resource specialist
[110] These are not relevant considerations in this matter.
Any other matters that FWA considers relevant.
[111] There are a number of other issues that warrant consideration.
[112] Mr Nguyen was fearful that if he did not complete his work within the specified time he would get into trouble. He was aware, he says, from a meeting of staff addressed by Mr Meindl that you could be given three warnings and then be sacked.
[113] Mr Meindl agreed that the discipline procedure in the relevant enterprise agreement could be described as a ‘three strikes and you’re out’ type procedure though says he never said this to Mr Nguyen. The procedure is set out in the collective agreement that applies at the site. It is likely, in the colloquial sense, that this is how the procedure has been explained to employees, how it is generally referred to, and how it had been explained to Mr Nguyen by others.
[114] Mr Nguyen was aware that there were time limits for completing tasks. He was concerned that he would not meet these. Whilst evidence was given that no-one has been disciplined for not meeting these times for tasks there is no evidence that Mr Nguyen was aware that he would not be subject to disciplinary action if he did not meet the times set. It was reasonable, in these circumstances, for Mr Nguyen to draw a connection between the discipline process of ‘three strikes and you’re out’ and that he was behind in the work he was required to complete.
[115] Mr Nguyen is Vietnamese. English is not his first language. It is reasonable to infer that he did not grow up in an environment where the nuances of the English language were known or were part of everyday conversation. This must have implications for Mr Nguyen’s capacity to comprehend and converse in English.
[116] Mr Nguyen does not have a history of forklift accidents.
[117] Mr Nguyen is 50 years old and has been employed by IGA for 23 years. There is no evidence of any previous disciplinary action against him or of him being counselled. He appears to have had a good work history for those 23 years. Mr Nguyen has worked as a storeman for the period of his employment with IGA.
[118] The effect of the termination of his employment is substantial. Mr Nguyen’s attempts to secure employment are hampered by his lack of English and by his age.
[119] The evidence of Mr Meindlis that they did consider the capacity to place Mr Nguyen in other parts of the organisation. It was not possible to do however as an earlier injury meant Mr Nguyen could not work in picking, cleaning jobs were generally reserved for injured workers and he did not have the skills to work in the office.
[120] Mr Nguyen has not denied his fault in the collision and has expressed remorse for it.
Was the termination of Mr Nguyen’s employment harsh, unjust or unreasonable?
[121] The concept of harsh, unjust or unreasonable was discussed in Byrne & Frew v Australian Airlines Limited 96where it was found that
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 97
[122] I have found that there was no valid reason for the termination of Mr Nguyen’s employment. It follows therefore that the termination was unjust.
[123] Even if I had found that the reason for the termination was valid there are compelling reasons to consider that the termination of Mr Nguyen’s employment was harsh. This is so from both the personal effect of the termination on Mr Nguyen but also because of the disproportionate nature of the punishment (termination of employment) following 23 years unblemished service compared to the gravity of the misconduct - that is a collision that was caused by careless or reckless behaviour of Mr Nguyen but has been found by me not to be deliberate.
[124] In all of the circumstances I find the termination of Mr Nguyen to be harsh, unjust or unreasonable. He has been unfairly dismissed from his employment with IGA.
Remedy
[125] 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.
[126] I am satisfied that Mr Nguyen is protected from unfair dismissal at the time he was dismissed and that he has been unfairly dismissed.
[127] The next matter I need to consider is whether reinstatement of Mr Nguyen is the appropriate remedy.
[128] Reinstatement is the presumptive remedy when a dismissal has been determined to be unfair. This is clear from the wording of s390 of the Act. The first requirement is to consider reinstatement and not consider compensation unless I am satisfied that reinstatement is inappropriate.
[129] Mr Nguyen seeks reinstatement.
[130] There is no evidence to suggest that there has been such a break down in trust and confidence between IGA and Mr Nguyen that reinstatement should not be considered. This much is clear from the evidence. Mr Meindl, in response to questioning from Mr Stutz of the NUW, indicated Mr Nguyen could not do picking because of a shoulder injury, was not suitable for office work and positions of cleaning were reserved for injured workers.
[131] From the evidence of Ms Olsson it is apparent that there is more than one warehouse at the Laverton site under the control of IGA or the parent company (Metcash).
[132] I see no reason why Mr Nguyen should not be reinstated. I do not consider however that I have adequate information before me on which to determine if he should be reinstated into the position he held prior to the termination of his employment or if there are other employment options for him at the site at Laverton with IGA or associated entities.
[133] It is my intention therefore to relist the matter to hear from the parties on all matters associated with ss391(1)-(4). A separate notice of listing and directions shall be issued shortly.
COMMISSIONER
Appearances:
G. Maas, for the Applicant.
G. Johnson, for the Respondent.
Hearing details:
2011.
Melbourne:
20 & 21 January.
1 Exhibit NUW2.
2 Exhibit NUW2, paragraphs 9-11.
3 NUW2, paragraphs 5-7.
4 NUW2, paragraph 8.
5 Transcript PN639, 642, 644-5.
6 Transcript PN704.
7 Exhibit IGA1, paragraph 7.
8 Exhibit IGA1, paragraph 14.
9 Transcript PN646.
10 Transcript PN716.
11 Exhibit IGA5, paragraph 5.
12 Transcript PN1371.
13 Transcript PN1374-6.
14 Transcript PN1390.
15 Transcript PN130.
16 Transcript PN285.
17 Transcript PN654.
18 Transcript PN662.
19 Transcript PN891, 1159.
20 Transcript PN901, 1157.
21 Transcript PN1160-4.
22 Exhibit NUW2, paragraph 4.
23 Transcript PN217.
24 Transcript PN315-22, 334-6.
25 Transcript PN362.
26 Transcript PN356.
27 Transcript PN366, 368.
28 Transcript PN564.
29 Transcript PN957-9.
30 Transcript PN942.
31 Transcript PN956.
32 Transcript PN1111.
33 Transcript PN1101-3.
34 Transcript PN768-70.
35 Exhibit IGA2, paragraphs 4-5.
36 Exhibit IGA2, paragraph 9.
37 Exhibit IGA2, paragraphs 10-11.
38 Transcript PN824.
39 Exhibit IGA2, paragraph 12.
40 Transcript PN805.
41 Transcript PN831.
42 Transcript PN383-4.
43 Transcript PN371-4, 381-2.
44 Transcript PN213.
45 Exhibit NUW2, paragraph 19 & Appendix A.
46 Transcript PN818.
47 Exhibit NUW4.
48 Transcript PN223.
49 Transcript PN576-8.
50 Transcript PN584.
51 Transcript PN583.
52 Transcript PN1167-8.
53 Transcript PN1214.
54 Transcript PN1464.
55 Exhibit NUW2, paragraph 12-13.
56 Transcript PN339-40.
57 Transcript PN1085-9.
58 Transcript PN1234.
59 Transcript PN513.
60 Transcript PN569.
61 Transcript PN569-71, 516.
62 Exhibit IGA4, paragraph 11.
63 Transcript PN516.
64 Exhibit IGA4, paragraph 13.
65 Transcript PN1450.
66 Transcript PN667.
67 Transcript PN961.
68 Exhibit IGA3, paragraph 13; Exhibit IGA4, paragraph 8.
69 Transcript PN914.
70 Transcript PN232-3.
71 Transcript PN1122, 1135.
72 Transcript PN908.
73 Transcript PN912.
74 Transcript PN1256.
75 Transcript PN911.
76 Transcript PN911.
77 Transcript PN987-9.
78 Transcript PN985.
79 Transcript PN912.
80 Transcript PN1017.
81 Transcript PN935.
82 Transcript PN1024-30.
83 Transcript PN930-1.
84 Transcript PN1140-4.
85 Edwards v Justice Giudice and others [1999] FCA 1836 at pg 7.
86 Potter v WorkCover Corporation, PR948009, [53].
87 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
88 AIRC Print R4471 (11 May 1999).
89 AIRC Print R4471 (11 May 1999) at 9.
90 Exhibit NUW2, paragraph 9.
91 Transcript PN280-1.
92 Macquarie dictionary (5th ed.).
93 Macquarie dictionary (5th ed.).
94 See Exhibit IGA2, attachment NS-1.
95 Section180(5)-(6).
96 (1995) 185 CLR 410.
97 (1995) 185 CLR 410, [128].
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