Derek Goldsmith v CSR Limited T/A Viridian New World Glass

[2014] FWC 157

[2014] FWC 157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Derek Goldsmith
v
CSR Limited T/A Viridian New World Glass
(U2013/10849)

COMMISSIONER BISSETT MELBOURNE, 9 JANUARY 2014

Application for relief from unfair dismissal.

[1] Mr Derek Goldsmith (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Mr Goldsmith was employed by CSR Ltd T/A Viridian New World Glass (the Respondent) at its Dandenong facility where he was employed as a glass worker.

[2] The Applicant commenced employment with the Respondent in November 2002. His employment was terminated on 3 June 2013 following an incident at work on 29 May 2013. The incident involved the Applicant using a broom to make contact with a 16 tonne forklift while a driver was being trained on that forklift. The contact resulted in a broken window in the door of the forklift.

[3] Prior to working for the Respondent the Applicant worked for Tenix Defence Systems as a Security and Occupational Health and Safety Officer for over eight years and prior to this had worked for H&G Glass as a safety officer.

[4] Prior to the commencement of proceedings I was advised that both the Applicant and the Respondent would seek permission to be represented. In accordance with s.596(2)(a) I granted permission. The Applicant was represented by Mr Fetter of counsel and the Respondent by Mr Vernier of counsel.

Evidence

Mr Goldsmith

[5] The Applicant provided a signed witness statement in accordance with the directions of the Fair Work Commission (the Commission). He did not adopt it in the proceedings although did state that, at the time he signed it, it was true and correct. 1

[6] From 2003 to 2012 the Applicant was a union delegate at the site.

[7] At the time of the incident Mr Van Cuong Huynh 2 was being trained on the use of the 16 tonne forklift by Mr Gavin Gardner.

[8] The Applicant’s evidence is that, at the time of the incident, the forklift had backed out of the loading bay and that it was stationary with the engine off. 3 He says that the driver and the trainer were talking at the time. The Applicant says he had a broom and was standing somewhere between 12 inches (30 centimetres) to 1 metre from the forklift towards the rear of the forklift4. He says the broom handle is about 5 feet (1.5 metres) long.5 He says that the forklift was dirty so he moved the broom in a sweeping motion along the rear metal section of the forklift6 moving from the rear towards the front and that the broom hit something and jumped forward, shattering the glass window in the door of the forklift.

[9] The Applicant’s says that he cannot be sure if the door to the forklift was ‘locked’ into the open position 7 although it possibly could have been.8 He says that it was open but not ‘locked’ open after the incident.9

[10] The Applicant agreed that he moved the broom in a pendulum motion from his right to left and only swept it forward once¹⁰ (that is he did not swing it forward and backward and forward again).

[11] The Applicant agrees that what he did was ‘tom-foolery’ 11 but says he moved the broom in a slow sweeping motion.12

[12] The Applicant says that the incident occurred around 9.30am although in his written statement says it was around 11.45am. When questioned on this inconsistency the Applicant says these times are around the same.

[13] The Applicant says he apologised to Mr Huynh after the incident.

[14] The Applicant attended a meeting about the incident on the afternoon of 29 May 2013 with Mr Brad Gething, Mr Robert Wells and a union representative. The Applicant denies that he used the words ‘hit’ and ‘bang’ to describe his actions with the broom on the side of the forklift, and that the forklift was not reversing but was stationary with the engine off at the time he ‘swept’ it with the broom. Otherwise he says that Mr Gething’s notes of what he said at the meeting on 29 May 2013 are accurate. 13

[15] The Applicant’s evidence is that the words ‘bang’ or ‘brush’, when describing his actions, are similar. 14

[16] The Applicant says he offered to pay for the damage to the forklift.

[17] The Applicant agrees that on 31 May 2013 he was given a letter which set out the allegations against him 15 but says that he does not agree he hit the forklift or that he ‘smashed’ the side window. Rather he maintains that he swept the side of the forklift and that the broom edge hit the glass accidently and the glass shattered.

[18] The Applicant’s evidence is that, at the time he was given the letter of 31 May 2013 he was told that if he agreed with what had occurred he would get a first and final warning, although he cannot remember if he was told this by his union representative or by management. He also says that, prior to the meeting with management, he met with union representatives who told him that if he showed remorse he might receive a first and final warning. 16

[19] The Applicant says that he attended a further meeting with management on 3 June 2013. He was accompanied at the meeting by two union representatives. He says that the notes of Mr Gething of that meeting are accurate. 17 His evidence is that he also raised his illness as he had recently had tests and was waiting for the results and that his wife was travelling overseas as it related to an illness she had recently suffered18 although this illness was two years ago.19

[20] During the meeting management took a break. When they returned management put to him three serious issues that arose from the incident. They were horseplay, safety breaches and damage to company property. Management told him they were considering summary dismissal but offered him the opportunity to resign with four weeks’ notice (although the union said this should be five weeks’ as he was over forty-five years of age). The Applicant’s evidence is that the next day the union told him his employment had been terminated.

[21] The Applicant agreed that he was aware of the content of the induction manual 20 and agreed with his training record.21

[22] The Applicant agrees that he has undertaken ‘enormous amounts of training’ on safety and conduct issues in the workplace and that he is aware of safety and conduct issues on the site. 22 The Applicant cannot recall however if he had seen the specific page in the induction manual that deals with expected behaviours and specifically indicates that ‘horseplay’ is prohibited.23

[23] He says that he did not mean to shatter the glass and he is not really sure of what he meant to do.

Mr Brad Gething

[24] Mr Gething is the Human Resources Manager Primary Products for the Respondent. His evidence is that he heard about the incident on the day it occurred and commenced an investigation on the same day by interviewing those involved.

[25] He interviewed Mr Huynh, Mr Peter Soultanidids, Mr Gavin Gardner and the Applicant. He took notes during each of the interviews. These notes are attached to his witness statement. 24 The Applicant (and others interviewed) had access to a support person. The Applicant was accompanied by a support person at the time he was interviewed. He says that, at the time he interviewed the Applicant, the Applicant did not mention that he was using a sweeping motion on the forklift but that the Applicant said he ‘hit’ the forklift and ‘went to bang’ the forklift.

[26] Mr Gething agrees that the Applicant offered to pay for the damage to the forklift.

[27] Mr Gething’s evidence is that the Applicant volunteered the word ‘hit’ and ‘bang’ to describe the action of the broom on the forklift. Mr Gething accepts that the Applicant attempted to hit the side of the forklift but that he miscalculated and hit the glass instead. He does not, however, believe that the hit on the forklift was accidental.

[28] Mr Gething says the Applicant did not show any remorse when he was interviewed on the day of the incident, that he was smiling through the meeting and did not appear to take the matter seriously.

[29] A letter was given to the Applicant on 31 May 2013 that clearly set out the allegations against him. A further meeting was held with the Applicant on 3 June 2013 to provide the Applicant with an opportunity to respond to the allegations. The Applicant had union representatives with him at that meeting. Mr Gething gave evidence that at this meeting the demeanour of the Applicant had changed and the Applicant appeared to understand the significance of what had occurred.

[30] After hearing from the Applicant Mr Gething and Mr Seal spoke privately of the disciplinary options available. The options ranged from a warning to dismissal. A decision was taken during this private meeting that the actions of the Applicant warranted dismissal.

[31] Mr Gething says that when the meeting resumed it was put to the Applicant that his actions warranted summary dismissal but that the Respondent was prepared to allow him to resign and would pay him four weeks pay in lieu of notice. When the union representatives indicated the Applicant was over 45 years of age this was increased to five weeks’ pay in lieu of notice. The Applicant was given 24 hours to consider what he wanted to do. If the Applicant did not resign his employment would be terminated.

[32] On 4 June 2013 Mr Gething says he had a conversation with Mr Riley from the union who indicated to Mr Gething that the Applicant did not intend to resign. Mr Gething told Mr Riley that, on that basis, the Applicant’s employment would be terminated.

[33] Mr Gething’s evidence is that the Applicant would have been aware of the standards of behaviour required in the workplace as he had undergone induction training and refresher training. He says that he understood that the Applicant would have had access to the intranet where the policies were available.

[34] Mr Gething says the decision to terminate the Applicant’s employment had nothing to do with the Applicant’s activity as a union delegate at the site.

Mr Warren Seal

[35] Mr Seal is the Manufacturing Manager at the Dandenong site for the Respondent. He was present at the meeting of 3 June 2013 and was involved in separate discussions, during the break in that meeting, with Mr Gething.

[36] Mr Seal’s evidence is that he has been involved in the glass industry for 24 years. 25 His evidence is that toughened glass of the type in the window of the forklift but would not shatter with a glancing blow but rather would require considerable force.26 He says that he knew the glass in the forklift was toughened glass as toughened glass always shatters as is shown in the photograph of the shattered window on the forklift. He says he is not aware of tempered (toughened) glass shattering if hit by the corner of a broom.

[37] Mr Seal says that he saw the photograph of the shattered window prior to the meeting with the Applicant on 3 June 2013 and formed an opinion that it would take some force to cause the window to shatter as shown.

[38] Mr Seal took contemporaneous notes during the meeting with the Applicant of 3 June 2013. He says that the Applicant was given an opportunity to respond to the matters that had been raised with him. His notes indicate that the Applicant said that he had a ‘brain snap’. The Applicant also said that he had recently had a colonoscopy testing for cancerous polyps and that his wife wanted to travel overseas. Mr Seal’s evidence is that the Applicant did not indicate why his wife wanted to travel overseas. Mr Seal considered that the Applicant was remorseful at this meeting.

[39] Mr Seal’s evidence is that he and Mr Gething took a break from the meeting with the Applicant and discussed a range of options available to them. He says that he considered the incident holistically and not as a series of three separate matters. 27

[40] Mr Seal’s evidence is that the safety breach was scaring a trainee when the trainee was driving the forklift, that while he accepts that the damage to the forklift was not intentional the horseplay was ‘not at the lower end of the scale’.

[41] In determining the penalty to be applied he considered that Applicant’s length of service, age and health. He says that the potential for the resignation of the Applicant was considered.

[42] On return to the meeting Mr Seal says that the Applicant was told that his actions were serious and, on the basis of the facts it was decided that termination of employment was appropriate. The option to resign was put to the Applicant and the Applicant was given 24 hours to respond. He says that the decision was to summarily dismiss the Applicant so when the Applicant rejected the option to resign the dismissal was executed.

Mr Robert Wells

[43] Mr Wells is the Laminating and Vinyl Line Manager for the Respondent. He is the Applicant’s ‘overall manager’ but not his direct supervisor.

[44] He says that the Applicant called him on 29 May 2013 and told him there had been an incident involving the Applicant, a broom and a forklift. The Applicant said he would come to see Mr Wells after lunch.

[45] Mr Wells says that at about 1.30pm on 29 May 2013 Mr Darek Duszniak and Mr Gardner came to his office and reported the incident. Mr Wells says he was told that while Mr Huynh was reversing backwards and turning the forklift around the Applicant ‘picked up a large broom and hit the side of the forklift causing the window to shatter. His intention was to scare Cookie. This had the desired effect as Cookie thought he had run into something and caused serious damage to something or someone.’ 28 He was also told that when the Applicant saw Mr Huynh at lunch time he said to Mr Huynh that the incident was Mr Huynh’s fault.

[46] Mr Wells called Mr Gething after hearing from Mr Duszniak and Mr Gardner. Mr Gething came over straight away and, after hearing a report on the incident, proceeded to interview those involved.

[47] Mr Wells attended the meetings on 29 May 2013 conducted by Mr Gething. He says that the Applicant said that he ‘picked up a broom and hit the side of the forklift’ but that he missed the side of the forklift and ‘hit the window of the forklift causing the window to shatter’. 29 He says that Mr Gething explained to the Applicant that he had broken three company rules - horseplay, wilful damage to company property and serious safety breach. Mr Wells says the Applicant explained that it was a practical joke that had gone wrong.

[48] Mr Wells also attended the meeting on 31 May 2013 when Mr Gething went through the incident with the Applicant, pointed out its seriousness and advised the Applicant he should take time over the weekend to come up with reasons as to why his employment should not be terminated. Mr Wells says that at this meeting the Applicant appeared remorseful and said it would not happen again.

[49] Mr Wells also attended the meeting with the Applicant on 3 June 2013. He says that at this meeting the incident was again discussed, the rules broken by the Applicant were pointed out and the Applicant was told that such behaviour could not be tolerated. The Applicant was remorseful and said that it would not happen again. The Applicant outlined ‘some health and family issues’ and the union, who were present with the Applicant, requested leniency. Mr Wells says that the meeting broke for a while. Mr Gething and Mr Seal met. Mr Wells says he cannot remember much of the discussion during the break although in his written statement he said he did not participate in this discussion.

Mr Van Cuong Huynh

[50] Mr Huynh is known by the nickname ‘Cookie’ at work.

[51] Mr Huynh’s evidence is that he was being trained by Mr Gardner on the 16 tonne forklift on 29 May 2013. He had placed a frame on the vinyl table and was reversing. He stopped reversing and was about to move forward when he heard a loud bang which was the noise of glass breaking. His evidence is that when he heard the bang he hit the brake pedal. He looked to where the noise came from behind him and saw a broken window on the forklift he was driving and when he turned he saw the Applicant holding a broom. He says the Applicant was laughing and said ‘it was your fault Cookie’.

[52] Mr Huynh’s evidence is that at the time he heard the bang the forklift engine was turned on. 30

[53] Mr Huynh says that he felt scared when the incident occurred as he was a learner on the forklift.

[54] Mr Huynh’s evidence was not contested.

Mr Gavin Gardner

[55] Mr Gardner is an assistant team leader for the Respondent and a trainer.

[56] Mr Gardner’s evidence is that he was training Mr Huynh on the 16 tonne forklift on 29 May 2013. Mr Huynh had finished reversing and was about to move off when he heard a loud bang. He saw that the window of the forklift was broken and the Applicant was standing with a broom in his hand. As there was no one else in the vicinity he assumed the Applicant had broken the window on the forklift. He says that the forklift was running at the time the glass broke. He says that the forklift door was locked open at the time ‘against the cabin so it can’t move around, otherwise you wouldn’t – you just wouldn’t be able to drive around because it would be just flapping around in the wind. It would be dangerous’. 31 His evidence is that Mr Huynh is a cautious person and he was visibly upset by the incident.

[57] Mr Gardner says he did not hear any exchange between Mr Huynh and the Applicant at the time of the incident.

[58] Mr Gardner’s evidence is that it was well known that there was no ‘mucking around’ in the work area. He says that they ‘deal with glass so it’s a dangerous industry’. 32

Mr Peter Soultanidis

[59] Mr Soultanidis is a glass worker at the factory. He was working in the vicinity of where Mr Huynh was being trained on the forklift on 29 May 2013. He says he saw the Applicant ‘grab a broom’. He turned away and then heard a noise when the window broke. He says he heard Mr Huynh say to the Applicant ‘why did you do that for’ to which the Applicant replied ‘I was only mucking around and didn’t mean to do it.’

Findings

[60] A great deal of evidence was put before me in this matter. In reaching my conclusions both as to what did occur on 29 May 2013 and in subsequent meetings I have weighed all of the evidence.

[61] Generally, where there is a conflict in the evidence between that of the Applicant and others, I do not accept the evidence of the Applicant as being reliable. The Applicant submitted a written statement to the Commission as required by the directions issued for the hearing of the matter. This statement was not tendered as evidence. The Applicant, in this statement and in his oral evidence, has adopted language to describe his actions which does not accord with anyone else’s recollection of what he said at the time of the incident or the contemporaneous notes that were taken in the meetings with him. The Applicant would have me accept those notes of Mr Gething were accurate in every respect except that the Applicant did not use the word ‘bang’ or ‘hit’ to describe his actions. The weight of evidence does not support the Applicant in the respect.

[62] I consider that the Applicant has adopted more moderated language and version of the incident so as to make the incident appear less serious than it might otherwise. His attempt to suggest that ‘sweeping’ and a ‘bang’ are similar is disingenuous to say the least. The Applicant’s demonstration of the ‘sweeping’ action he says he used does not explain the damage done to the forklift. The unreliability of the Applicant’s evidence in describing his actions casts doubt over other aspects of his evidence where it is not supported by others who were present at the time and have given evidence in these proceedings.

[63] On the basis of the evidence of the witnesses and material before me relevant to the matter to be decided I make the following findings.

[64] Firstly I find that, at the time of the incident, Mr Huynh had finished backing up the forklift and was about to move forward with the engine was running. The weight of evidence and description of the task being undertaken by Mr Huynh support such a conclusion. In this respect I prefer the evidence of Mr Huynh, Mr Gardner and Mr Soultanidis to that of the Applicant.

[65] I find that at the time of the incident the door to the forklift was locked in the open position. To this extent I prefer that evidence of Mr Gardner to that of the Applicant. It makes no sense that a forklift would be driven with the door swinging and not latched open or shut. To the extent the Applicant suggest otherwise I do not accept his version of events.

[66] I find that the Applicant was standing on the left hand side and to the rear of the forklift as shown on both the hand-drawn diagram attached to the Applicant’s unsworn statement 33 and in the photograph of the forklift.34 I find that the Applicant was standing one half to one metre away from the forklift. Whilst the Applicant gave varying distances I do not take this as an attempt to mislead or obfuscate but rather an indication of the difficulty in estimating distances. I also find that the Applicant had the broom in his hand.

[67] I do not accept the Applicant’s evidence that he merely attempted to ‘sweep’ the broom on the metal rear panel of the forklift and that it slipped or jumped and hit the glass window in the door which then shattered.

[68] If the Applicant was standing where he said and was ‘sweeping’ the broom ‘gently’ from his right to left, it is difficult to see how the broom could have done the damage it did. It is apparent from the photographs in evidence 35 that the forklift door, when fully opened or closed, sits recessed from the rear panel (which sits flush with the rear wheel) of the forklift. There is, on that evidence, a considerable additional distance between the rear panel of the forklift and the glass in the door such that, for the broom to have hit the door it would have to have been moving towards the door and not across it as described by the Applicant. Whilst there may be disagreement as to how the sweeping motion might be described, the demonstration given by the Applicant during his evidence of the motion he made with the broom (of sweeping from his right to left) just does not explain how the broom could have hit the window with such force that it caused the window shatter. On the Applicant’s version of what occurred the broom would have been moving away from the forklift at the time it neared the glass door. If the Applicant was standing still (and that is the evidence) the broom would have described an arc as it moved across the rear panel of the forklift and would have moved past the point where the broom met the forklift by the time it was level with the door. Given the basic geometry of the movement of the broom it is difficult to see how it could have been travelling towards the window in the door and hit it with such force as to shatter it on the version of events given by the Applicant in evidence.

[69] I accept the evidence of Mr Seal that toughened glass, such as that used in the forklift window, requires considerable force to break. I also accept the evidence and contemporaneous notes of Mr Gether that the Applicant said that he went to ‘bang’ the metal panel and ‘hit’ the door. Neither of these words indicates a sweeping motion as the Applicant later described it. I accept the evidence of Mr Gething and Mr Seal that the Applicant never used the term ‘sweeping’ when he was interviewed about the incident.

[70] I find that the Applicant attempted to hit or bang the rear panel of the forklift and that this action was deliberate. I find that he missed the metal part of the forklift and hit the window in the door instead and shattered the glass. Whilst it was not his intention to break the glass the act that resulted in the breaking of the glass was a deliberate act.

[71] I am satisfied and find that the Applicant was engaged in horseplay, that his actions were a threat to health and safety and that he damaged property of the Respondent. The Applicant himself admits to the horseplay in saying that it was a bit of ‘tom foolery’ and he was ‘mucking around’. As to the threat to health and safety the Applicant is an experienced glass worker, the person on the forklift was not an experienced 16 tonne forklift operator and the Applicant was aware of this. The environment within which they work is inherently dangerous, involving, as it does, glass and large and heavy machinery in the form of the 16 tonne forklift. The Applicant admits he wanted to frighten Mr Huynh. He should, in his position, with his experience and with his background in health and safety, have been aware of the potential dangerous position he was putting himself, Mr Huynh and other workers in the area in. He could not have known how Mr Huynh was going to react. That the incident did not result in a serious safety event is down to good luck. The damage to company property is evident by the broken window in the forklift.

Unfair dismissal

[72] I find, and it was not in contention, that the Applicant is protected from unfair dismissal. The application was made within the requisite period, the Small Business Fair Dismissal Code is not relevant, and this was not a case of redundancy.

[73] In determining if the Applicant was unfairly dismissed it is therefore necessary to determine if the dismissal was harsh, unjust or unreasonable. The matters to be considered in making such a decision are set out in s.387 of the Act.

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)

[74] In Selvachandran v Peteron Plastics Pty Ltd 36 Northrop J held that:

the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct... Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly... 37

[75] I have found above that the applicant did deliberately hit the forklift. I am satisfied, therefore, that the conduct complained of did, in fact, occur. I am satisfied that the Applicant engaged in horseplay, that his actions were a threat to health and safety of others and that he damaged property of the Respondent.

[76] It should be noted that the Applicant, in his unsworn statement, indicated that he had previously trained Mr Huynh on the 15 tonne forklift. That he was entrusted to train employees on such equipment would suggest that he is well aware of health and safety requirements when utilising the equipment. That he ignored all that he must surely know about health and safety on the site during a brain snap makes his conduct even more regrettable.

[77] Both Mr Gething and Mr Seal say the Applicant had been summarily dismissed. The Applicant’s termination payment show however that his employment was terminated with notice and that he was paid 5 weeks’ pay in lieu of that notice. 38

[78] Serious misconduct is defined in Regulation 1.07 of the Fair Work Regulations 2009. It has been held however that where serious misconduct is alleged the test for a valid reason, set out above, does not change. Rather the summary dismissal (that is, without notice) may be an issue in determining if the dismissal was harsh. 39

[79] In IGA Distribution (Vic) Pty Ltd 40 a Full Bench of the Fair Work Commission found:

The characterisation of the Applicant’s conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable. 41

[footnote omitted]

[80] I agree with the conclusion of the Full Bench in IGA Distribution. That the Applicant meant the incident as a joke does not derogate from the seriousness of his actions or there potential consequences. There are no special contextual considerations surrounding this incident which would suggest I should not reach a conclusion that there was a valid reason for the dismissal of the Applicant.

[81] I have, further, taken into account that the Applicant was engaged in horseplay and that his actions caused damage to the Respondent’s property. Whilst these, on their own, might not provide a valid reason for the dismissal (although I do not make such a finding) they must be considered within the framework of actions and outcomes of the Applicant’s conduct.

[82] There was argument before me as to whether the actions of the Applicant warranted his dismissal. It is not up to the Commission to put itself in the shoes of management and decide what it would have done in such circumstances, but rather to decide if there was a valid reason for the dismissal.

[83] In all of the circumstances and based on my findings set out above I am satisfied that the Respondent had a valid reason for the dismissal of the Applicant.

Whether the person was notified of that reason

[84] The Applicant was given notice of the reason for his dismissal before the decision to dismiss him was made. He was stood down (with pay) on 29 May 2013. At the meeting prior to being stood down he was advised of the company rules he had broken.

[85] On 31 May 2013 the Applicant was given a letter detailing the incident; 42 was told that he may be subject to dismissal; and was told that he should consider the matter over the weekend.

[86] On 3 June 2013 another meeting was held with the Applicant where the reasons for his dismissal were spelt out.

[87] I am therefore satisfied that the Applicant was notified of the reason for his dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[88] I am satisfied that the Applicant was given an adequate opportunity to respond to the reasons for the termination of his employment prior to the decision to terminate his employment being taken.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[89] The Applicant was at no time refused access to a support person.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[90] The dismissal did not relate to performance matters.

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 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

[91] These matters were not at issue in the proceedings.

Any other matters that the Commission considers relevant

[92] There are a number of additional matters that are relevant.

[93] The Applicant submits that the treatment of the Applicant and disciplinary action are inconsistent to the treatment of other employees who have engaged in misconduct. While the Applicant initially contended that some of these employees have been promoted arising from the misconduct he indicated in final submissions that he no longer relied on this aspect of differential treatment. On this I would say that, based on the evidence before me, there were no grounds on which it could be concluded that others involved in incidents in the workplace had received promotions arising from those incidents. The Applicant does submit that the disciplinary action taken against him – the termination of his employment – is not consistent with how other employees engaged in misconduct have been treated.

[94] The Applicant raises three incidents which he submits demonstrate inconsistent conduct.

[95] The first involves an employee found sleeping on the job. The Respondent says that this employee was issued with a warning and moved to another work area. I accept that a warning was issued to the employee concerned.

[96] The second incident involved two employees and a knife. The Respondent says that it investigated the matter and that no-one was hurt. Following the investigation and taking into account the length of service of the employee (more than 22 years) and supporting, relevant medical evidence, the individual employee engaged in the misconduct was given a first and final warning.

[97] The third incident allegedly also involved a knife. I accept that management investigated the incident and could not ‘get to the bottom’ of it but moved one of the employees to another work area.

[98] I note that none of these incidents goes to a similar factual matrix to that in the matter before more. One incident involved sleeping on the job and two potentially involved knives. Apart from claiming that the employees involved in those incidents had been rewarded with promotion and that the Applicant suffered a different outcome, the Applicant has put little before me to enable me to conclude inconsistent treatment of employees engaged in misconduct. This is not to suggest that conduct involving knives should in any way be condoned. The circumstances of those incidents however have been scant such that I could not draw any conclusions that might be of use in determining the matter before me.

[99] The Applicant relies on clause 2.4.2 of the CSR Viridian Dandenong and AWU Enterprise Agreement 2010-2013 (the Agreement)in support of his submission that I should take into account the inconsistent treatment of the Applicant compared to others who have engaged in misconduct. Clause 2.4.2 states that ‘to ensure consistency and fairness is applied in the level of penalties and outcomes, the HR Manager and the AWU Site Delegate will confer on the matter prior to the final outcome.’ It is not clear that the decision to terminate the Applicant’s employment is contrary to this clause which requires a conference between the AWU Site Delegate and HR Manager. The uncontested evidence is that the AWU – including the organiser – were involved throughout the investigation and meetings in support of the Applicant. There is nothing to indicate that the requirements of clause 2.4.2 have not been met.

[100] In Sexton v Pacific National (ACT) Pty Ltd⁴³ Lawler VP cautioned that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ In this case I have been provided with little or no evidence that would allow me to conclude that this case is comparable with those put to me by the Applicant. For these reasons I do not find that there is inconsistent treatment.

[101] The Applicant also contends that the Respondent failed to take into account that he had recently undergone tests for cancerous polyps or his wife’s medical condition which resulted in her travelling overseas.

[102] With respect to these matters, while I accept that the Applicant may have been under some stress as he awaited the results of his tests he did not explain this to management nor indicate that this was a matter that made him behave as he did. As to the need for his wife to travel overseas the Applicant did not put before management that such travel was necessitated by a medical condition or that it was a matter that should be given particular attention by the Respondent in considering the Applicant’s conduct.

[103] I am not satisfied that there are any particular circumstances relating to the Applicant’s health or his wife’s travel that should have been, but were not, taken into account by the Applicant or that I should take this into account.

[104] The Applicant says that he was advised by his union prior to the meeting on 3 June 2013 that if he admitted to the misconduct he would be given a first and final warning. I accept the evidence of the witnesses for the Respondent that none of them had a conversation with the Applicant’s union or advised it or the Applicant that the Applicant would be given a first and final warning. I cannot know the basis of any conversation the Applicant had with his union representative. No union representative was called to give evidence by the Applicant in support of such a proposition. If the Applicant was given such advice by his union it was not on the authority of the Respondent.

[105] The Applicant says that the Respondent has not met the requirements of clause 2.4 of the Agreement in undertaking the disciplinary process and deciding to terminate the Applicant’s employment. I have dealt with clause 2.4.2 earlier in this decision.

[106] As to other provision of the clause, clause 2.4.5(ii) sets out not the totality of actions that may be taken against an employee (counsel, verbally warn or formally warn) but actions that may be taken. Clause 2.4.5(iii) 44 provides for termination of employment with notice and clause 2.4.5(iv)45 provides for circumstances where summary dismissal may be warranted.

[107] The Applicant suggests that the Agreement process indicates that termination of employment for disciplinary reasons should be a rare event and that the grounds for summary dismissal indicate a high threshold of misconduct.

[108] I accept the submissions of the Applicant that the threshold for summary dismissal as established by the Agreement is high. I note however that those matters listed as justifying summary dismissal are not just criminal offences but of what would be seen to be serious breaches of policies of the Respondent.

[109] I do not find that the processes of the Respondent in dealing with the incident were in breach of clause 2.4 of the Agreement. I have, however, taken these submissions of the Applicant into account in reaching my conclusion.

[110] The Applicant has been employed with the Respondent for just over 10 years. He has no history of misconduct.

[111] It was suggested by the Applicant, though not directly put, that the decision to terminate the Applicant’s employment was because he was, some years ago, a union delegate and that, as the delegate he took action to make the Respondent stop using a particular chemical that had caused an accident at work. Apart from the assertion by the Applicant there was no evidence to support such a conclusion. The claim was directly refuted by the witnesses for the Respondent. It was not an issue raised by the union in them supporting the Applicant during this process. It was not raised by the Applicant in any of the discussions he had between 29 May 2013 and the termination of his employment. I do not consider this a relevant matter, there being no evidence to support the claims of the Applicant.

[112] The Applicant says that he has tried but been unsuccessful in finding work in the glass industry. He indicated however that he had not made any written applications for work nor submitted his resume. The Applicant says that those companies he has contacted have indicated that it is close to Christmas and he should contact them after Christmas.

[113] The Respondent says that it responds to all incidents involving forklifts seriously. This arises from an incident a number of years ago that resulted in the death of an employee. That incident has made the Respondent sensitive to any issues relating to forklifts.

Conclusion

[114] It was held in Byrne v Australian Airlines Ltd 46 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...

[115] The Applicant has had 10 years employment with the Respondent. There is no evidence that this employment is blemished. Normally this would suggest some leniency in dealing with a first, substantial, breach of standards in the workplace. I also note that the Applicant did report the incident to his supervisor when it happened. I do not accept however that the Applicant was, at the time of the incident, remorseful for what he had done or that he truly apologised to Mr Huynh after the event. On any version of the apology the Applicant sought to shift some of the blame onto Mr Huynh, when it clearly had nothing to do with Mr Huynh’s actions, or to laugh it off as a joke.

[116] It is no excuse that the actions were a bit of tom-foolery. The Applicant had been through extensive training and refresher training. I do not accept that he was not aware that ‘horsing around’ was not acceptable in the workplace. It is basic common sense given the nature of the industry that horsing around was not acceptable.

[117] That the Applicant has a history in health and safety makes his actions less understandable than they otherwise might be. That a person who claims a strong commitment to health and safety, including in his role as a union delegate could do something so foolish is inexplicable.

[118] The tests recently undergone by the Applicant for health reasons do not provide any mitigation for his actions.

[119] I have considered the change in language used by the Applicant from the time of his interview to the hearing to describe his actions during the incident. Of this I can only conclude that he has sought to soften his language in an attempt to minimise the seriousness of his actions.

[120] I have considered this matter very carefully. I am aware of the effect the loss of his job has had on the Applicant’s income and the difficulty he says he has in finding alternative work. I am not convinced he has made every effort to find alternative work. That prospective employers have indicated it is close to Christmas indicates to me that the Applicant has done little to find alternative work in the six months since his dismissal at the beginning of June 2013. To this extent it is difficult to conclude that the dismissal is harsh because of the economic effect on the Applicant when there is little if any evidence that he has attempted to mitigate his loss.

[121] However, there is no reasonable excuse for the ‘brain snap’ experienced by the Applicant or for his decision to ‘frighten’ Mr Huynh. His actions were deliberate and this deliberate nature cannot be ignored.

[122] Whilst I have been mindful of the disciplinary action taken against other employees, that information does not lead me to conclude that the Applicant has been treated harshly in this case or has not been afforded a fair go in his dealings with the Respondent. To this end it seems to me the Applicant was given every opportunity to explain his actions and put forward any mitigating circumstances. Even when the Respondent reached a conclusion that the Applicant’s employment should be terminated he was given an opportunity to resign.

[123] For all of these reasons I find that the dismissal of the Applicant was not harsh, unjust or unreasonable.

[124] I therefore find that the Applicant was not unfairly dismissed.

COMMISSIONER

Appearances:

J. Fetter of counsel for the Applicant.

A. Vernier of counsel with B. Gething for the Respondent.

Hearing details:

2013.

Melbourne;

December 10-11.

 1   Transcript PN360.

 2   Mr Huynh is referred to by the nickname ‘Cookie’ in most material filed in these proceedings and by the witnesses. His proper name has been used in this decision.

 3   Exhibit R12.

 4   See exhibit R3 and exhibit R6.

 5   Transcript PN386.

 6   See exhibit R3. The area the Applicant says he was ‘sweeping’ is marked with the letter ‘B’.

 7   Transcript PN440.

 8   Transcript PN442.

 9   Transcript PN1132.

10 Transcript PN529-31.

 11   Transcript PN192.

 12   Transcript PN194.

 13   Exhibit R13, attachment BG4.

 14   Transcript PN805-6. See also PN821, 838.

 15   Exhibit R13, attachment BG5.

 16   Transcript PN859.

 17   Exhibit R13, attachment BG6.

 18   Transcript PN128.

 19   Transcript PN1007.

 20   Exhibit R13, attachment BG8.

 21   Exhibit R8.

 22   Transcript PN935-6.

 23   Transcript PN154. See exhibit R7.

 24   Exhibit R13, attachments BG1 - BG4.

 25   Transcript PN1870.

 26   Transcript PN1851.

 27   Transcript PN2062-3.

 28   Exhibit R15, paragraph 12.

 29   Exhibit R15, paragraph 20.

 30   Transcript PN2502.

 31   Transcript PN2580.

 32   Transcript PN2568.

 33   Exhibit R6. The standing position of the Applicant is identified by the letter ‘G’.

 34   Exhibit R3. The Applicant’s position is shown by the letter A.

 35   Exhibits R3 and R5.

 36 (1995) 62 IR 371.

 37   Ibid 373.

 38   See exhibit R13, attachment BG7.

 39   See Potter v Workcover Corporation (2004) 133 IR 458, [55].

 40   [2011] FWAFB 4070.

 41   Ibid, [14].

 42   Exhibit R13, attachment BG5.

43 Unreported, AIRC, Lawler VP, 14 May 2003 PR931440.

 44   The second paragraph numbered (iii).

 45   The second paragraph numbered (iv).

 46 (1995) 185 CLR 410.

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