Daniel Palmer v USG Boral Building Products Pty Ltd
[2017] FWC 147
•9 JANUARY 2017
| [2017] FWC 147 [Note: This decision and the associated order has been quashed - refer to Full Bench decision dated 12 April 2017 [[2017] FWCFB 1929] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Palmer
v
USG Boral Building Products Pty Ltd
(U2016/6326)
COMMISSIONER CIRKOVIC | MELBOURNE, 9 JANUARY 2017 |
Application for relief from unfair dismissal.
Introduction
[1] On 20 April 2016, Mr Daniel Palmer (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by USG Boral Building Products Pty Ltd (Respondent).
[2] On 10 May 2016, the Respondent filed a response to Mr Palmer’s application.
[3] On 13 May 2016, the application was listed for conciliation before a Commission Conciliator, but remained unresolved at the end of the conciliation.
[4] Consequently the matter was listed for hearing.
[5] On 7 September 2016, the Commission received an application for an order requiring production of documents from the Applicant. On 8 September 2016, the Respondent wrote to the Commission and objected to the granting of the order. The matter was listed for a telephone mention on 9 September 2016. On 9 September 2016, prior to the telephone mention, the Applicant withdrew the application for an order requiring production of documents.
[6] Mr Palmer’s application was heard on 14 and 15 September 2016. Closing submissions were filed by the parties and the parties requested that the closing submissions be considered on the papers without a further hearing for the purpose of making oral submissions. Mr Palmer gave evidence on his own behalf. The following witnesses also gave evidence for the Applicant:
- Shannon Morgan, Product Handler;
- Robert Bye, Product Handler.
The following witnesses gave evidence for the Respondent:
● Vicki Neal, Distribution Manager;
● Paolo Spinetti, Environmental health and Safety National Manager;
● Mike Gibson, Regional Manager;
● Sheri Tarr, Human Resources Manager;
● Andrew Chalmers, Leading Hand;
● Nicole McGillivray, Operations Manager.
[7] The Applicant revisited the application for an order requiring production of documents at the hearing on 14 September 2016. 1 The Respondent undertook to obtain the documents sought.2 On 23 September 2016, the Respondent wrote to the Commission advising that despite making detailed searches, no documents existed, as referred to in the draft order of the Applicant.
Background
[8] The Applicant was employed as a Product Handler. 3
[9] The Respondent is a plasterboard, compounds, cornice, and other gypsum related building products manufacturer. The Respondent has three manufacturing plants in Australia. 4
Incidents of 3 December 2015
[10] The evidence of Mr Chalmers is that on or about 3 December 2015, he notified Ms McGillivray on two occasions that he had seen the Applicant perform unsafe forklift manoeuvres. 5
[11] The evidence of Ms McGillivray is that on 3 December 2015 a Leading Hand for the Respondent informed her that he had seen the Applicant performing an unsafe forklift manoeuvre. 6 Her evidence is that she had a conversation with the Applicant about this incident after which she filled out an Incident Notification & Summary Details Form.7
[12] Ms McGillivray’s evidence is that later that shift, on 3 December 2015, the Leading Hand approached her again and informed her that he had just seen the Applicant performing another unsafe forklift manoeuvre with a high load. 8 Ms McGillivray’s evidence is that she had a conversation with the Applicant about this incident, filled out an Incident Notification & Summary Details form and prepared a letter inviting the Applicant to attend a formal meeting on 7 December 2015 to discuss the two safety incidents.9
[13] Ms McGillivray’s evidence is that she handed the letter to the Applicant the following day, that the Applicant said that he was not accepting the letter and handed it back. 10 Her evidence is that later that day she handed him the letter again and this time he accepted it.11 The letter stated:
“We write to you regarding the two safety breaches that occurred at USG Bora! Port Melbourne. It was reported that on 03. 12. 15 at 2:23pm you lifted and drove forward with a pack of 4.2metre long plasterboard over a parked semi at the holding bay gate.
It was also reported that on 03.12.15 at 7:35pm you had lifted a 6metre pack over the stacker fork that the operator inside was having trouble starting.
Daniel, you and I had two discussions on 03.12.15 regarding the above incidents and you had admitted to both. I require you to attend a meeting to review the safety breaches, discuss the procedures for operating a loaded mobile plant and raise improvement opportunities to ensure this conduct is never repeated. The meeting will be held on 07.12.15 at 2:15pm at Turner st meeting room. It will be attended by Stuart Simpson and me. You may bring a support person with you to the meeting. The role of that person is to provide support to you and not to act as your advocate or answer questions on your behalf.
You should treat this matter very seriously and it may result in disciplinary action being taken against you, up to and including the termination of your employment if the conduct is continued. USG Boral will provide further training if it is deemed by yourself as necessary.
These matters are confidential and you are not to discuss them with anyone other than myself. Please remember that USG Bora! provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300 00 2327)” 12
[14] Ms McGillivray’s evidence is that the Applicant called in sick on 7 December 2015, the date of the scheduled meeting. 13 Her evidence is that on 9 December 2015 she handed the Applicant a revised letter, inviting the Applicant to attend a formal meeting on 14 December 2015.14
Meeting of 14 December 2015
[15] The evidence of Ms McGillivray is that on 14 December 2015 she and Mr Stuart Simpson, Shift Supervisor, had a meeting with the Applicant. 15 Her evidence is that the safety risk of the Applicant’s actions of 3 December 2015 were raised with him and that he was shown the Mobile Plant Policy, specifically clause 8.2 ‘Carrying Safe Loads’ and extracts from relevant WorkCover publications.16 Ms McGillivray’s evidence is that the Applicant’s response was that there is not enough room to navigate long lengths of plasterboard up the driveway from door four to door eight, that there wasn’t enough room to navigate long lengths of plasterboard because of the tight space and as such he had to create space by lifting the load, however that he hadn’t done it again and he wouldn’t do it again in the future.17 Her evidence is that she told the Applicant the processes around door four would be reviewed and that he would need to undergo a forklift refresher training course in the new year.18 Ms McGillivray’s evidence is that later that day she saw Ms Neal and told her that she had had a positive discussion with the Applicant and that he seemed to understand what he needed to do in the future.19
Incident of 18 December 2015
[16] The Applicant submits that at approximately 3:00pm on 18 December 2015, when the Applicant was unloading pallets of cornice from a truck he inadvertently knocked a pallet of cornice off the truck. 20 Present at the time were the truck driver and jockey.21 The Applicant submits that at the time he engaged his forklift to unload the pallets; the driver and jockey were in the safety zones as per the guidelines on site.22 The Applicant submits that when he drove around the truck to collect the pallet, the jockey was already there. The Applicant submits that he did not know when the jockey left the safety zone. 23 Further, the Applicant submits that the jockey did not tell him that the pallet of cornice nearly hit him or anyone else.24 Video footage of this incident was submitted as an attachment to the witness statement of Ms Neal.25 The footage was viewed during the hearing, to the extent that what was provided was very limited, the footage matched the witness evidence of the incident.
[17] The Applicant submits that he filled out an incident report and left it on the desk of Mr Simpson. 26 The incident report stated:
“When retrieving cornice off top of pack on truck it fell on corresponding side” 27
“Jockey told he must stay in green zone.” 28
[18] The Applicant submits that he left a record of the damaged product on Mr Simpson’s desk with the incident report. 29
[19] The Applicant submits that it is not his responsibility to ensure the truck driver and jockey stay in the correct safety areas. That he cannot be expected to concentrate on loading/unloading from a great height whilst also looking around to ensure the truck driver and jockey are staying in the safety zone. 30
[20] The evidence of Ms Neal is that the incident related to the loss of nearly 5 tonne of product and that in such circumstances the first thing that should happen is the area should be sectioned off and photos should be taken to enable an investigation. 31 Her evidence is that the Applicant filled out an incident report after being advised by Mr Simpson to do so and that the report did not hold much information.32 Her evidence is that the record of damaged product that the Applicant submits he left on Mr Simpson’s desk was never found.33
Meeting of 22 December 2015
[21] The Applicant submits that on his following shift, Monday 21 December 2015, he was not approached about the incident on 18 December 2015. 34 That it was not until his next shift, Tuesday 22 December 2015 that he was told to go see Ms Vicki Neal, Distribution Manager.35
[22] The Applicant submits that Ms Neal asked him if he wanted a support person present, to which he replied “What for?”. 36 The Applicant submits that he was told he was being stood down pending an investigation into the incident of 18 December 2015.37 The Applicant submits that he could not believe he was being stood down for such a minor incident.38 The Applicant submits he was given a letter39, this letter stated:
“We write to formally advise you that an allegation has been made with regards to your conduct as a USG Bora! employee. It is alleged on Friday, 18 December 2015 you
● Failed to report the seriousness of a near miss
● Withheld information relating to the investigation of the incident
● Failed to follow processes in relation to recording damaged product
● Failed to ensure compliance to the 3m rule and exclusion zones of a forklift in your control
We are in the process of investigating these allegations and require you to attend a meeting to explain your conduct and/or respond to the allegations. The meeting will be held on Wednesday, 23rd December 2015, at 12:00PM at Turner Street Meeting Room, 17-47 Turner Street, Port Melbourne. lt will be attended by Stuart Simpson and myself. You may bring a support person with you to the meeting. The role of that person is to provide support to you and not to act as your advocate or answer questions on your behalf.
You are stood down on full pay immediately until the investigation has concluded. During this time you are not to attend the workplace or to contact any employee of the business without the prior written approval of your Manager.
You should treat this matter very seriously as if it is determined that you did engage in the alleged conduct, it may result in disciplinary action being taken against you, up to and including the termination of your employment.
These matters are confidential and you are not to discuss them with anyone other than myself. Please remember that USG Boral provides a free and confidential counselling service for staff and family. REAP can be accessed by free call to 1300 00 REAP (1300 00 2327)”
[23] The evidence of Ms Neal is that, on or about 22 December 2015, Mr Simpson notified her of the incident of 18 December 2015, that the same day she called the Applicant to let him know he was being stood down whilst the safety incident was investigated and asked him to come in for a meeting the following day, telling him that he could bring a support person. 40
Meeting of 23 December 2015
[24] The Applicant submits that the following day he attended a meeting with his CFMEU organiser Mr Dean Dando, his CFMEU delegate and support person Mr Jason Page, Ms Neal and Mr Simpson. 41 The Applicant submits that Ms Neal asserted the Respondent had watched the CCTV footage of the incident and that the pallet of cornice nearly hit the jockey.42 The Applicant submits that he tried to dispute the letter but that no progress was made and as it was almost Christmas he felt he would sort it out in the new year with the help of the CFMEU.43
Meeting of 14 January 2016
[25] The Applicant submits that he returned to work 14 January 2016 and attended a further meeting with his support person Mr Page present. 44 The Applicant submits that Ms Neal said the investigation was complete and gave him a letter as a first and final written warning45 outlining the findings, the letter stated:
“First and Final Written Warning
I refer to our meeting on 14th January 2016, attended by yourself, your support person Jason Page, Ralph Frisina, Dean Dando, and Mike Gibson.
The purpose of the meeting was to discuss with you allegations that on 16 December you:
● Failed to report the seriousness of a near miss
● Withheld information relating to the investigation of the incident (of the near miss)
● Failed to follow processes in relation to recording damaged product
● Failed to ensure compliance to the 3m rule and exclusion zones of a forklift within your control.
We confirm we have now concluded the investigation. We are satisfied that you did engage in the conduct alleged.
This conduct is unacceptable and will not be tolerated. In having engaged in this conduct you have breached:
● OHS Act 2004, Section 25 — Your Duties
● Port Melbourne USG Bora! Site Induction - Truck Loading & Traffic Management
● HSEP0504 Traffic Management Plan Port Melbourne
● SOP Incident Report — Port Melbourne
● SOP Record Stock Adjustment — Port Melbourne
● SOP Loading Trucks —3.1.4
A decision has been made to provide you with a first and final written warning.
You should treat this matter very seriously. If you engage in further safety breaches, unsatisfactory conduct and/or performance, you will be subject to further disciplinary action which may include the termination of your employment.
Please remember that USG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300 00 2327).”
[26] The Applicant submits that he felt that he could not challenge the conclusion of the investigation at this meeting without losing his job. 46
[27] The evidence of Ms Neal is that she informed the Applicant of the findings of her investigation, including his breaches of the Respondent’s safety policies. 47 Her evidence is that the Applicant did not take ownership for the incident of 18 December 2015.48 The evidence of Mr Gibson is that he thought there was a clear lack of acceptance and ownership of the incident by the Applicant and that the Applicant appeared to refuse to acknowledge the severity of what could have happened.49 Ms Neal’s evidence is that after a discussion with Ms Tarr and Mr Gibson a decision was made to give the Applicant a first and final warning.50
Incident of 3 February 2016
[28] The evidence of Ms Neal is that on 4 February 2016, she received an email from Mr Chris Dillon, Health and Safety Manager for the Respondent, the email stated:
“Yesterday I had to speak to one of your product handlers with regards to him not wearing his safety glasses while leaving the driver toilets. I had to explain more than once that even I[f] he was leaving the toilets or in that region [h]e still should be wearing site mandatory PPE. I eventually got a confirmation that he understood my point but his attitude was argumentative rather than accepting of site policy. Can you chase up the individual to reinforce the mandatory site PPE requirements as well as pushing the message to all the crews.
The product handlers name was Daniel Palmer.” 51
[29] The Applicant submits that he does not know who Mr Dillon is and that he does not recall someone speaking to him on or about 4 February 2016 about not wearing his safety glasses. 52
Incidents of 15 and 16 March 2016
[30] Mr Chalmers’ evidence is that on or about 15 March 2016 he saw the Applicant had his safety glasses resting on his head whilst operating a forklift in the loading bay. 53 His evidence is that he told the Applicant to put his safety glasses on and that the Applicant did so.54 Mr Chalmers’ evidence is that later that shift he saw the Applicant wearing his safety glasses on top of his head again.55 His evidence is that he saw this again on or about 16 March 2016.56
[31] The evidence of Ms Neal is that she received an email on 16 March 2016, from Mr Chalmers, it included two previous emails in the chain. The first email from Mr Chalmers to Mr Simpson and Ms McGillivray, of 15 March 2016, stated:
“As I expected I had to ask Daniel to put his safety glasses on at about 15:15 he drove off without a word with his glasses on”
The second email from Mr Simpson to Mr Chalmers, Ms McGillivray and Ms Neal, of 16 March 2016, stated:
“Thanks for the report Andrew, don’t forget to CC Vicki as well.
We will speak to him this afternoon.”
The third email from Mr Chalmers to Mr Simpson, Ms Neal and Ms McGillivray, of 16 March 2016, stated:
“I presume you spoke to him but it didn’t matter the glasses were more off than on again today.” 57
Incident of 17 March 2016
[32] The Applicant submits that at approximately 9:00pm on 17 March 2016 he had acquired dust on his safety glasses whilst loading a truck. 58 The Applicant submits that as he was finding it difficult to see through his glasses, after he had finished the load and driving back to the office he removed them and put them on his head.59 The Applicant submits that Ms Neal asked him why he wasn’t wearing his safety glasses. The Applicant submits that he showed Ms Neal the dust on them and that Ms Neal told him he should be wearing them all the time.60 The Applicant submits that he walked away and cleaned his glasses.61 The Applicant submits that Ms Neal notified him via telephone the next morning that he had been stood down pending an investigation into an alleged safety breach.62
[33] The Applicant submits that it is custom and practice on site that employees do not wear their safety glasses at all times because of the accumulation of dirt. Further, the Applicant submits that although it may be a safety breach, employees are often observed not wearing them and are simply reminded by supervisors to put them on. The Applicant submits that it is common knowledge that an employee will not be disciplined for not wearing safety glasses because they get dirty and it is hard to see. 63
[34] The evidence of Ms Neal is that on 17 March 2016, she witnessed the Applicant and another employee, Mr Phillip Jogis, driving forklifts with their safety glasses on top of their heads. 64 Her evidence is that she had separate conversations with each employee and that when asked why he wasn’t wearing his safety glasses correctly, the Applicant replied that they got dusty and that he was on his way to clean them.65 Her evidence is that when she asked if he was aware that he was on a first and final warning the Applicant replied that he hadn’t done anything wrong and that in response she had said that PPE is not optional, that it must be worn at all times. 66
[35] Ms Neal’s evidence is that on 18 March 2016, she called the Applicant and informed him that he was being stood down on full pay whilst the incident of the previous day was investigated, that a meeting would take place the following Wednesday to which he could bring a support person. 67 Her evidence is that she sent a letter to the Applicant later that same day, the letter stated:
“We write to formally advise you that an allegation has been made with regards to your conduct as a USG Boral employee. It is alleged on 17/03/16 at 9pm you:
Failed to adhere to site PPE regulations by not wearing safety glasses.
We are in the process of investigating these allegations and require you to attend a meeting to explain your conduct and/or respond to the allegations. The meeting will be held on Wednesday 23 March, 2016- 2.30pm. at Turner Street, Port Melbourne. It will be attended by Mike Gibson, Regional Manager Vic/Tas and me. You may bring a support person with you to the meeting. The role of that person is to provide support to you and not to act as your advocate or answer questions on your behalf.
You are stood down on full pay immediately until the investigation has concluded. During this time you are not to attend the workplace or to contact any employee of the business without the prior written approval of your manager.
You should treat this matter very seriously as if it is determined that you did engage in the alleged conduct, it may result in disciplinary action being taken against you, up to and including the termination of your employment.
These matters are confidential and you are not to discuss them with anyone other than myself. Please remember that USG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300 00 2327)” 68
[36] Ms Neal’s and Mr Gibson’s evidence is that it is not custom and practice for employees to not wear their safety glasses because of the accumulation of dirt and that it is not common knowledge that employees escape disciplinary action for not wearing them. 69
[37] The evidence of Mr Chalmer’s is that if he sees an employee not wearing the correct Personal Protective Equipment (PPE) (including safety glasses) he will tell the employee to put on the correct PPE. 70 Further, it is his evidence that if he sees an employee not wearing the correct PPE he escalates that to a more senior manager.71
[38] The evidence of Mr Spinetti is that it is not uncommon for safety glasses to become dusty or fog up in the heat. Further, it is his evidence that the safest way for a forklift driver to travel to a cleaning station is to stop the forklift and turn it off; take off the safety glasses and give them a cursory clean on a cloth or the drivers shirt; the driver then has the option to walk, or drive if visibility is clear enough, to the cleaning station. 72
[39] The evidence of Mr Bye and Mr Morgan is that the custom and practice on site, because of the accumulation of dirt or dust from the plaster board loaded onto trucks, is that employees do not wear their safety glasses at all times. 73 Their evidence is that despite it technically being a safety breach it is not strictly enforced on site and that in the past employees have not been disciplined when they are observed not wearing their safety glasses.74 Their evidence is that if a supervisor observes an employee not wearing their safety glasses they will remind them to put them on and that they have seen Mr Simpson and Ms Neal remind employees from time to time.75 Mr Morgan’s evidence is that he has been reminded by Mr Harry Harris, USG Boral Supervisor and Mr Simpson to put his glasses on numerous occasions and that he has never been formally disciplined.76 Mr Bye’s evidence is that about a month prior to the Applicant’s dismissal, Ms Neal had asked him to remind the Applicant to put his safety glasses on.77 Mr Bye’s evidence is that he has filed site notes on employees and managers not wearing their safety glasses, to his knowledge they have not been disciplined.78 Their evidence is that sometimes the safety glasses cause double vision, that this has been discussed at training sessions yearly and that during those training sessions the instructor has always advised it is more important to have clear vision and that if you cannot see through your glasses you should remove them.79 Mr Bye’s evidence is that Ms Neal has said at a tool box meeting that it is okay to remove your safety glasses if your vision is impaired.80
[40] Ms Neal’s evidence is that she had said it was okay for forklift drivers to raise their glasses when they are looking up into the third level of racking, as the drivers had said that it is slightly blurry because they are looking through the plastic rim of their glasses and the plastic of the forklift. 81
Meeting of 23 March 2016
[41] The Applicant submits that he attended a meeting 23 March 2016 with his support person Mr Page present. 82 The Applicant submits that he explained that he hadn’t been able to see through the safety glasses on 17 March 2016.83 The Applicant submits that the Respondent told him that an outcome of the investigation may include termination of his employment and that he had until 5:00pm the following day to provide any information or material to them for consideration in relation to his employment.84 The Applicant submits that the Respondent gave him a letter85, the letter stated:
“Notification of Consideration of Termination of Employment
I refer to our meeting on 23/03/16 attended by Vicki Neal (Distribution Manager), Mike Gibson (Regional Manager), yourself and your support person.
The purpose of the meeting was to discuss allegations that on 17/03/2016 you:
Failed to adhere to the correct wearing of mandatory site PPE regulations.
During this meeting you were given the opportunity to respond to the allegations and to provide us with any information or material that you would like us to consider.
We have now concluded our investigation and are satisfied that you did engage in the conduct alleged.
This conduct is unacceptable and will not be tolerated. In having engaged in this conduct you have breached our mandatory PPE regulations: Safety glasses, Hi Viz vest and safety shoes are the minimum PPE for the site.
We are satisfied that your conduct amounts to misconduct, as you were provided with a First & Final written warning on 12/01/2016, we are considering whether to terminate your employment.
Prior to us making this decision, we are providing you with the further opportunity to provide us with any information or material you would like considered in respect of why we should not proceed to terminate your employment. If you would like to provide any such information or material, please do so by 24/03/16/ 5:00pm and this will be taken into consideration by us.
Please remember SG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300 00 2327).
If you have questions in relation to this letter, please contact me immediately.”
[42] Ms Neal’s evidence is that she reminded the Applicant he was on a first and final warning for safety breaches and that he had been caught not wearing his safety glasses whilst driving a forklift, she then gave him an opportunity to respond. 86 Her evidence is that she did not think the Applicant fully understood the seriousness of the situation and that he did not take responsibility for the incident or acknowledge the safety implications.87 Further, her evidence is that after discussing this with Mr Gibson and Ms Tarr, it was decided that a letter would be given to the Applicant a ‘show cause letter’.88
[43] The Applicant submits that the following day Mr Dando sent an email 89 to the Respondent, the email stated:
“I am writing a submission to you behalf of CFMEU member Daniel Palmer.
In the notification letter you provided to Daniel yesterday, you gave us the opportunity provide further information for the reason that Daniel's employment shouldn't be terminated with USG Boral.
I ask that you to take into account that Daniel has been employed for some 4 years at Boral. He has a very good work history whilst working there. I understand that recently there has been a safety issue that you addressed and I believe Daniel has learnt a lot for that process. The circumstance that Daniel finds himself in at the moment is in no way as serious as the previous incident.
By terminating Daniel's employment in this circumstance I believe is manifestly unjust. The punishment should fit the crime. In Daniel's statement to you in the meeting, he explained that he was on his way to clean his safety glasses when you approached him. As you noted yesterday he was wearing the safety glasses but at the time they were on top of his head. As a matter of safety I would not encourage any forklift driver to drive with dirty glasses as I believe you wouldn't either.
So Vicki I ask that you allow Daniel to keep working at USG Boral, as I believe he will continue to show you that he will be able to work in a safe manner.”
Termination letter
[44] The termination of the Applicant’s employment was confirmed by letter dated 30 March 2016 (the termination letter). 90 The termination letter stated:
“On the 23rd March 2016, I met with you in respect to being observed not correctly wearing safety glasses as required at the Port Melbourne manufacturing site.
The meeting was also attended by your support person/delegate — Dean Dando and Ralph Frisna. Company support person was Mike Gibson.
In our correspondence to you on the 23rd March, we advised you that we had concluded our investigation into these allegations and are satisfied you did engage in the conduct alleged. You were given the opportunity to supply us with any additional information to be considered prior to the business determining to terminate your employment.
On the 24th March, an email was received from Dean Dando on your behalf, asking we reconsider the termination, stating:
- This incident was not as serious as previous
- Considers termination to be manifestly unjust
- You were on your way to clean your glasses
- You were wearing your safety glasses but on top of your head
A First & Final Warning was issued to you on the 15th January 2016 for a number of Safety breaches demonstrating a pattern of breaching safety requirements.
We have considered all the above matters and a decision has been made to proceed to terminate your employment, effective 31 March 2016.
Upon termination you will be paid statutory leave entitlements.
A separation certificate will be forwarded to you by our corporate payroll team, once your final payment is made.
Please remember that USG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (130000 2327),
If you have any questions, please do not hesitate to contact me.”
[45] The evidence of Ms Neal was that Mr Jogis’ employment was also terminated on 30 March 2016, for similar serious and repeated safety breaches. 91
Protection from Unfair Dismissal
[46] Section 382 of the Act sets out the circumstances where a person is protected from unfair dismissal. Section 382 of the Act is as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[47] The Respondent is a large employer with hundreds of employees. 92 The Port Melbourne site employees around 60 employees in manufacturing and 37 in distribution.93 The Applicant commenced his employment with the Respondent in November 2013 and his employment was terminated 30 March 2016 taking effect on 31 March 2016, being a period of more than two years.94 Therefore, I am satisfied that the Applicant has completed a period of employment with the Respondent of at least the minimum employment period pursuant to s.383(a) and s.382 of the Act.
[48] The Applicant was covered by the USG Boral & CFMEU Port Melbourne Production & Distribution employees Enterprise Agreement 2015-2016 and the sum of his annual rate of earnings is less than the high income threshold. 95 Consequently, I am satisfied the Applicant was protected from unfair dismissal.
[49] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.
Was the dismissal unfair?
[50] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[51] I am satisfied that the Respondent dismissed the Applicant from his employment on 30 March 2016 within the meaning of s.386(1)(a) of the Act.
[52] I am satisfied that the Small Business Fair Dismissal Code does not apply to the Applicant’s dismissal.
[53] The Respondent has not submitted that the Applicant’s dismissal was a case of genuine redundancy. Regardless, I am satisfied that the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable
[54] Having been satisfied of each of the matters prescribed by s.385(a), (c)-(d) of the Act, I now must consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[55] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. McHugh and Gummow JJ explained as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 96
[56] I will now consider each of the matters set out in s.387 of the Act. 97
Valid Reason – s.387(a)
[57] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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). 98 When considering whether a reason is a valid reason for the purpose of s.387(a) of the Act, the reason must be “sound, defensible or well founded”. 99 A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason. 100
[58] The Commission will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer. 101 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).102
[59] This is not a matter which concerns whether there was a valid reason for the Applicant’s dismissal which related to his capacity to perform the role of Product Handler as was required by the Respondent. There is currently nothing before the Commission which I consider demonstrates otherwise. This matter concerns whether there was a valid reason for the Applicant’s dismissal which related to his conduct.
[60] In cases relating to alleged misconduct, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. It is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it. 103 The reason is valid where the Commission finds that the conduct occurred and justified termination of employment. The reason might not be a valid reason where the conduct did not occur or where it did occur but did not justify termination. 104
[61] The Respondent submits that there is a valid reason for the Applicant’s dismissal related to his conduct. The Respondent submits that it cannot be disputed that the Applicant engaged in a repeated series of safety breaches and that each of the breaches were in respect of clear and unambiguous requirements put in place by the Respondent to protect the health and safety of the Applicant and others. 105 The repeated series of safety breaches being the incidents of:
● 3 December 2015;
● 18 December 2015; and
● 17 March 2016.
Incidents of 3 December 2015
[62] The Applicant submits that these incidents cannot be relied upon as a basis for a finding of a valid reason, as the Respondent had failed to put the incidents to the Applicant during cross-examination and further, the incidents were not relied upon when the decision was taken to issue a first and final warning to the Applicant. 106 The Applicant submits that Browne v Dunn107 implicationsarise from the failure to put the incidents to the Applicant during cross-examination.108 The Respondent submits that as the Applicant was on notice from at least the time at which he was served the Respondent’s evidence, he cannot raise a Browne v Dunn submission with regard to this aspect of the evidence.109 Further, the Respondent submits that the Applicant’s representative did not cross-examine Ms McGillivray, Ms Neal or Mr Chalmers in relation to the incidents of 3 December 2015 and that if the Applicant sought to challenge the Respondent’s evidence the onus was on his representative to do so.110
[63] The Applicant was on notice as early as 4 July 2016, when it received the Respondent’s witness statements and outline of arguments, that the 3 December 2015 incidents were being agitated as a basis for a finding that there was a valid reason for termination. Had the Applicant wished to respond it may have done so by either putting its own evidence to the contrary or by cross examination of the Respondent’s witnesses. Rather, apart from a brief reference to the 3 December incidents during the hearing, it chose to remain quiet on this issue until its final submissions. 111 As the rule in Browne v Dunn is fundamentally a rule of fairness in relation to the manner in which factual evidence is adduced, I do not accept the Applicant’s submission that the Respondent is prevented from relying on the evidence.112
[64] I reject any assertion by the Applicant’s that incidents of 3 December 2015 cannot contribute to a finding as to a valid reason for the termination of the Applicant.
[65] On the balance of probabilities I accept that the incidents of 3 December 2015 involving unsafe forklift manoeuvring by the Applicant occurred and that these issues were discussed with the Applicant extensively during the meeting of 14 December 2015.
Incident of 18 December 2015
[66] The Applicant submits that the Respondent’s primary concern regarding this incident is that the Applicant lost sight of the jockey. 113 The Applicant submits that he has consistently maintained that he was unaware that the jockey had moved out of the safe zone whilst he was performing the forklift manoeuvre and that he was unaware at the time of the incident that a near miss occurred.114 The Applicant submits that the Respondent concluded that he continued the manoeuvre despite losing sight of the jockey and failed to report the near miss.115 Further, the Applicant submits that the decision as to the outcome of the investigation was arrived at prior to the meeting of 14 January 2016 and as such the Respondent failed to consider the submissions made by the Applicant and his representatives at the meeting.116 The Applicant submits that this incident was not a proper basis for the issuing of the first and final warning.117
[67] The Respondent submits that Ms Neal and Mr Gibson gave detailed and considered evidence of their concerns about the Applicant’s lack of accountability in relation to the incident, particularly that he should have known that the manoeuvre was inherently dangerous and should have been carried out in a different manner. 118 Further, they expressed concerns about his honesty in the way the incident was reported and his responses when interviewed.119
[68] The Respondent submits that the Applicant’s contention that he was unaware that the jockey had moved out of the green zone when he was performing the manoeuvre and/or that he was unaware a near miss occurred at the time of the incident is not sustainable based on the incident report completed by the Applicant. 120 The Respondent submits that it simply beggars belief that the Applicant was unaware that the jockey could at least have nearly been hit, let alone that neither the jockey, nor the truck driver told the Applicant that the jockey was nearly hit immediately following the incident.121 The Respondent submits that it was the Applicant’s responsibility to ensure the jockey was in the green zone or at the very least it should have been an immediate concern for the Applicant as soon as he lost sight of the jockey, and that the Applicant should not have commenced the loading manoeuvre without being certain of where the driver and the jockey were.122
[69] The Respondent submits that there is no justification in the evidence for any suggestion that Ms Neal had pre-determined the outcome of the process at any stage. 123 The Respondent submits Ms Neal gave compelling evidence that the situation weighed heavily on her over the Christmas break and that she was under significant pressure from other senior managers to dismiss the Applicant.124
[70] Whilst the Applicant cannot be expected to take full responsibility for the 18 December 2015 incident and it is apparent that the jockey was partially to blame for the ‘near miss’, it was in my view incumbent on the Applicant to demonstrate ownership as to his role in this incident. It involved both damage to product of at least 5 tonne and more importantly the potential for an employee to suffer serious injury if not fatality. I also have concerns about the manner in which the Applicant dealt with the reporting of the incident. Whilst there is insufficient evidence before me to find that the Applicant acted dishonestly, I am satisfied that the Applicant failed in his duty to take a proactive and rigorous approach in reporting this serious incident fully to his superiors immediately after it occurred. In my view to simply leave a report about an incident of this significance on Mr Simpson’s desk without any further action displays a level of nonchalance by the Applicant towards safety requirements and the reporting of them in the workplace. Further, I concur with the Respondent’s conclusion that after the Applicant became fully aware of the incident, including viewing the footage, he failed to display the requisite contrition and failed to acknowledge the seriousness of the incident. In my mind, these failures display a fundamental lack of appreciation of the requirement to adhere to safety practices in the work place.
Incident of 17 March 2016
[71] The Applicant submits that it is not disputed that the glasses incident occurred, however that it did not, of itself, provide a valid reason for the Applicant’s dismissal. 125 The Applicant submits that the Respondent’s policy in relation to the wearing of safety glasses was confusing and inconsistently applied and that prior to the termination of the Applicant’s employment alleged breaches of the policy were not met with formal disciplinary action.126
[72] The Respondent submits that the Applicant’s submission fails to take into account that on two occasions the Applicant was verbally warned that he should be wearing his safety glasses in designated areas. 127 The Respondent submits that there is no basis for the contention of the Applicant that the Respondent’s policy was confusing and inconsistently applied.128 Further, the Respondent submits that there is no probative evidence to support the Applicant’s theory of non-compliance with PPE requirements and follow up from management.129
[73] I consider that the Respondent is entitled to impose reasonable safety rules and directions upon its employees and expect that they will be observed. Having regard to the evidence I am satisfied that the Applicant understood that a number of workplace safety policies are applicable to him including the wearing of safety glasses. 130 In some cases the Applicant admits to breaches of the Respondent’s policy and procedures but maintains that what he was doing was common practice and that he was being singled out. The concerning aspect of the Applicant’s behaviour is that he has continued to breach rules and directions over a period of time. In relation to the safety glasses, the Applicant suggests that the Respondent’s policy was applied inconsistently. Given the Applicant’s previous counselling in relation to safety incidents, despite repeated requests to comply with the requirement to wear safety glasses, and given that he was on a first and final warning for other safety breaches, it is unacceptable for him to continue to display a disregard for the Respondent’s safety policies.
[74] The level of commitment to safety rules and procedures should not be approached in an ad-hoc manner.
[75] The evidence of Ms Neal is that the Respondent has a very dedicated approach to safety nationally and at its Port Melbourne site. 131 The evidence of Mr Gibson and Ms Tarr is that the Respondent places workplace safety as a priority when running its business.132 The evidence of Mr Spinetti is that the Respondent has a dedicated approach to workplace safety in which it is constantly seeking to develop improvements in conducting its business in a safe and productive manner.133 Ms Neal’s evidence is that she is responsible for ensuring that the employees who work in distribution are able to perform their roles without jeopardising the safety of themselves and others.134 Ms Neal’s evidence is that between March and April 2014, the Applicant underwent forklift and safety training and on 29 January and 17 November 2015 the Applicant underwent refresher training.135
[76] Different minds will form different views on what disciplinary action is appropriate in a given set of circumstances. The nature of the safety breaches, the circumstances surrounding them and the paramount importance of safety in the workplace meant that the Respondent reasonably made the decision to terminate the Applicant’s employment.
[77] What is most concerning about the Applicant’s attitude and conduct is his failure to accept responsibility and ownership of the several safety incidents that the Respondent raised with him. Rather than accept the safety requirements imposed by the Respondent the Applicant appears to be challenging the requirements, and displaying an attitude of denial of responsibility.
[78] The Applicant had consistently demonstrated that he could not or would not comply with reasonable and fundamental site rules, directions and procedures, particularly those relating to safety, despite warnings he received along the way. I am satisfied that this conduct was ultimately inconsistent with the trust and confidence required in a continuing employment relationship. I am satisfied that his conduct was in breach of the Respondent’s safety policies and that there is a valid reason for terminating the Applicant’s employment.
Notification of the Valid Reason – s.387(b)
[79] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 136 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment. 137 The notification of the valid reason must be in explicit, plain and clear terms. 138
[80] The Applicant was notified when he was handed the first letter on 3 December 2015 that disciplinary action was being considered by the Respondent. He was subsequently notified in the letters of 9 and 22 December 2015, 14 January 2016 and 18 January 2016. The Applicant was notified in the letter of 23 March 2016 that the Respondent was considering whether to terminate his employment, he was offered an opportunity to respond to the Respondents proposal that his employment was to be terminated. The reasons for termination were further confirmed in the termination letter of 30 March 2016.
[81] I am satisfied that the Applicant was notified of the reason for his dismissal.
Opportunity to Respond – s.387(c)
[82] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 139 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made. 140 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 141 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section. 142
[83] The Respondent held meetings with the Applicant on 14, 22 and 23 December 2015 and 23 March 2016 providing the Applicant opportunities to respond to the allegations relating to the incidents of 3 and 18 December 2015 and 17 March 2016. Following the meeting of 23 March 2016 the Applicant was provided an opportunity to respond to the ‘show cause’ letter.
[84] I reject any proposition that the Applicant’s response was not properly considered by the Respondent. There is insufficient evidence before me that would support that finding. The Respondent’s decision to terminate the Applicant’s employment was made after taking into account the Applicant’s oral responses and the email of Mr Dando following the meeting of 23 March 2016. For the reasons identified above, I find that the Applicant was given an opportunity to respond to the allegations made against him.
Unreasonable Refusal of a Support Person – s.387(d)
[85] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 143 With respect to this consideration, the Explanatory Memorandum to the Act states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 144
[86] The Respondent did not refuse to allow the Applicant access to a support person. The Applicant was provided an opportunity for a support person to attend the meeting following the incidents of 3 December 2015. The Applicant attended the meetings on 23 December 2015, 14 January 2016 and 23 March 2016 with his support person Mr Page. On that basis I find the Respondent allowed the Applicant to have a support person present.
Warnings regarding Unsatisfactory Performance – s.387(e)
[87] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 145 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than to their conduct. 146 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance. 147
[88] The dismissal of the Applicant did not relate to his performance. I consider this factor neutral.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f) – (g)
[89] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 148 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. 149
[90] The Applicant accepts that the Respondent is a large employer with dedicated human resources professionals. The Respondent did not contend that it was disadvantaged in relation to s387(f) of the Act, nor does it lack the resources in this regard. I do not consider that there are any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting the Applicant dismissal.
Other Relevant Matters – s.387(h)
[91] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 150
[92] There was some agitation by the Applicant that he had been victimised and bullied by Ms Neal prior to making the decision to dismiss him. 151 The Applicant submits that Ms Neal was aware of his limited access to his children and after his first and final warning had deliberately altered his hours of work to disadvantage and punish him.152 The evidence of Ms Neal is that she denies that she moved the Applicant’s shift to bully, victimise, disadvantage or punish him.153 The evidence of Mr Gibson is that Ms Neal spoke to him about the decision to move the Applicant’s shift so that he could be supervised and that he supported that decision.154 In the Applicant’s written closing submissions in reply it was submitted that following the hearing of evidence the submission as to Ms Neal’s motivation for dismissing the Applicant was not pressed.155 Accordingly, I have not taken this submission into account.
[93] The Applicant submits that his personal circumstances are a relevant consideration. 156 The Applicant submits that the Respondent was aware of his difficult circumstances, however that there is no evidence that the Respondent took those circumstances into account in reaching the decision to terminate his employment.157 The Applicant submits that the Applicant’s contrition in relation to the incident of 18 December 2015 was disregarded.158 The Applicant submits that to the extent that the Commission finds that he failed to sufficiently take ownership of the incident, that it must be acknowledged that the Applicant’s responses that gave rise to this perception were given in circumstances where he was forced to defend himself under threat of possible termination.159 Further, the Applicant submits that it was not his attitude and degree of ownership that were under investigation, rather, it was specific conduct allegations in response to which he was entitled to defend himself.160
[94] I have considered the Applicant’s personal circumstances including his length of service, the financial consequences for him and the matters raised above. In my consideration balanced against the factors that the Applicant submits support a conclusion that the dismissal was harsh, there are countervailing factors, including the fact the Respondent has a duty to minimise risks to employees. Further, that the Respondent is entitled to place a premium on safety in its workplace and take reasonable disciplinary action to ensure compliance with its safety policies.
Conclusion
[95] In taking into account all the matters set out above, including the personal circumstances of the Applicant I must now consider whether the termination of the Applicant was harsh, unjust or unreasonable.
[96] I find on the evidence before me on the balance of probabilities that the alleged incidents occurred; that they were in breach of policies that the Applicant either knew or should have known. Considering all the factors, including the particular consequences of the dismissal for the Applicant, I do not consider the dismissal was disproportionate to the gravity of the misconduct.
[97] In the circumstances of this case, having taken into account the considerations of s.387(a)-(h) I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable pursuant to s.385(b) of the Act. It follows from those findings that I dismiss the application.
[98] An order 161 to that effect will be published separately to this decision.
COMMISSIONER
Appearances:
J Maloney, of CFMEU for Applicant;
R Marshall, of FCB Workplace Law for Respondent.
Hearing details:
2016
14 and 15 September.
Final written submissions:
Applicant’s Final Submission, 18 October 2016
Respondent’s Final Submission, 2 November 2016
Applicant’s Final Submission in reply, 17 November 2016
1 PN26.
2 PN51-52.
3 Exhibit A3, par.3.
4 Respondent’s Outline of Submissions, par.3.
5 Exhibit R7, par.8.
6 Exhibit R8, par.9.
7 Exhibit R8, par.10.
8 Exhibit R8, par.12.
9 Exhibit R8, par.14, attachment NM3.
10 Exhibit R8, par.15-16.
11 Exhibit R8, par.15-16.
12 Exhibit R8, attachment NM3.
13 Exhibit R8, par.17.
14 Exhibit R8, par.18, attachment NM4.
15 Exhibit R8, par.14.
16 Exhibit R8, par.19, attachments NM5 & NM6.
17 Exhibit R8, par.19.
18 Exhibit R8, par.19.
19 Exhibit R8, par.21.
20 Exhibit A3, par.5-6.
21 Exhibit A3, par.5.
22 Exhibit A3, par 7.
23 Exhibit A3, par. 8.
24 Exhibit A3, par. 12.
25 Exhibit R1, attachment VN25.
26 Exhibit A3, par.16; Exhibit R1, attachment VN8.
27 Exhibit R1, attachment VN8.
28 Exhibit R1, attachment VN8.
29 PN947-948.
30 Exhibit A3, par. 9.
31 PN1903-1904 & 1908.
32 PN1905-1906.
33 PN1598.
34 Exhibit A3, par. 19.
35 Exhibit A3, par. 20.
36 Exhibit A3, par. 22.
37 Exhibit A3, par. 22.
38 Exhibit A3, par. 24.
39 Exhibit A3, Attachment DP-1
40 Exhibit R8, par.21-22.
41 Exhibit A3, par. 28.
42 Exhibit A3, par. 29-30.
43 Exhibit A3, par. 32.
44 Exhibit A3, par.34-35.
45 Exhibit A3, Attachment DP-2.
46 Exhibit A3, par.37.
47 Exhibit R1, par.31.
48 Exhibit R1, par.32.
49 Exhbit R5, par.17.
50 Exhibit R1, par.32-34.
51 Exhibit R1, par.46, attachment VN17.
52 PN1034-1041.
53 Exhibit R7, par.10.
54 Exhibit R7, par.11-12.
55 Exhibit R7, par.13
56 Exhibit R7, par.14.
57 Exhibit R1, par.47, attachment VN18.
58 Exhibit A3, par.67.
59 Exhibit A3, par.68.
60 Exhibit A3, par.75.
61 Exhibit A3, par.78.
62 Exhibit A3, par.80.
63 Exhibit A3, par.69.
64 Exhibit R1, par.48.
65 Exhibit R1, par.49.
66 Ibid.
67 Exhibit R1, par.51.
68 Exhibit R1, par.52, attachment VN20.
69 Exhibit R1, par.70; Exhibit R5, par.30.
70 Exhibit R7, par.5.
71 Exhibit R7, par.6.
72 Exhibit R4, par.22.
73 Exhibit A2, par.5; Exhibit A1, par.3.
74 Exhibit A2, par.6 & 11; Exhibit A1, par.4 & 8.
75 Exhibit A2, par.7-9; Exhibit A1, par.6..
76 Exhibit A1, par.7.
77 Exhibit A2, par.10.
78 Exhibit A2, par.15-16.
79 Exhibit A2, par.17-18; Exhibit A1, par.10-11.
80 Exhibit A2, par.19.
81 PN1484.
82 Exhibit A3, par.81.
83 Exhibit A3, par.82.
84 Exhibit A3, par.82-83.
85 Exhibit A3, Attachment DP-5.
86 Exhibit R1, par.54.
87 Exhibit R1, par.55.
88 Exhibit R1, par.55.
89 Exhibit A3, Attachment DP-6.
90 Exhibit A3, Attachment DP-7.
91 Exhibit R1, par.60.
92 F3 Employer Response to Unfair Dismissal Application, p.3.
93 Exhibit R1, par.6.
94 Applicant’s Outline of Submissions, par.2; F2 Unfair Dismissal application, p.2.
95 F3 Employer Response to Unfair Dismissal Application, p.2.
96 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)
97 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]
98 Fair Work Act 2009 (Cth) s. 387(a)
99 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
100 Ibid
101 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
102 Ibid
103 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24]
104 Edwards v Giudice (1999) 94 FCR 561, 565
105 Respondent’s Outline of Submissions, lodged 4 July 2016, par.30.
106 Applicant’s Closing Submissions, lodged 18 October 2016, par.7-8; PN2051-2059.
107 (1893) 6 R 67.
108 Applicant’s Closing Submissions, lodged 18 October 2016, par.8.
109 Respondent’s Closing Submissions, lodged 2 November 2016, par.18.
110 Respondent’s Closing Submissions, lodged 2 November 2016, par.19-24.
111 PN293.
112 Xiu Zhen Huang v Rheem Australia Pty Ltd, Print PR954993,par.21-28.
113 Applicant’s Closing Submissions, lodged 18 October 2016, par.14.
114 Applicant’s Closing Submissions, lodged 18 October 2016, par.14.
115 Applicant’s Closing Submissions, lodged 18 October 2016, par.17-18.
116 Applicant’s Closing Submissions, lodged 18 October 2016, par.19.
117 Applicant’s Closing Submissions, lodged 18 October 2016, par.20.
118 Respondent’s Closing Submissions, lodged 2 November 2016, par.26.
119 Respondent’s Closing Submissions, lodged 2 November 2016, par.26.
120 Respondent’s Closing Submissions, lodged 2 November 2016, par.27.
121 Respondent’s Closing Submissions, lodged 2 November 2016, par.30.
122 Respondent’s Closing Submissions, lodged 2 November 2016, par.34.
123 Respondent’s Closing Submissions, lodged 2 November 2016, par.35.
124 Respondent’s Closing Submissions, lodged 2 November 2016, par.36.
125 Applicant’s Closing Submissions, lodged 18 October 2016, par.21&26.
126 Applicant’s Closing Submissions, lodged 18 October 2016, par.22-23.
127 Respondent’s Closing Submissions, lodged 2 November 2016, par.37.
128 Respondent’s Closing Submissions, lodged 2 November 2016, par.39.
129 Respondent’s Closing Submissions, lodged 2 November 2016, par.48.
130 PN783, 862, 864, 886, 1057, 1065.
131 Exhibit R1, par.8.
132 Exhibit R5, par.9; Exhibit R6, par.4.
133 Exhibit R4, par.7.
134 Ibid.
135 Exhibit R1, par.14-15, attachments VN4 & VN5.
136 Fair Work Act 2009 (Cth) s. 387(b)
137 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Gooch v Proware Pty Ltd T/A TSM (The Service Manager)[2012] FWA 10626
138 Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730,
139 Fair Work Act 2009 (Cth) s. 387(c)
140 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151
141 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)
142 Ibid
143 Fair Work Act 2009 (Cth) s.387(d)
144 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]
145 Fair Work Act 2009 (Cth) s.387(e)
146 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237
147 Johnston v Woodpile Investments T/A Hog’s Breath Café - Mindarie [2012] FWA 2, [58]
148 Fair Work Act 2009 (Cth) s.387(f)
149 Fair Work Act 2009 (Cth) s.387(g)
150 Fair Work Act 2009 (Cth) s.387(h)
151 Exhibit A3, par.39.
152 Exhibit A3, par.41-46.
153 Exhibit R1, par.35-41 & 67.
154 Exhibit R5, par.20.
155 Applicant’s Closing Submissions in Reply, lodged 17 November 2016, par.5.
156 Applicant’s Closing Submissions, lodged 18 October 2016, par.33.
157 Applicant’s Closing Submissions, lodged 18 October 2016, par.34.
158 Applicant’s Closing Submissions, lodged 18 October 2016, par.35.
159 Applicant’s Closing Submissions, lodged 18 October 2016, par.36.
160 Applicant’s Closing Submissions, lodged 18 October 2016, par.36.
161 PR589201.
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