Francis Mackole v Hanson Construction Materials Pty Ltd

[2020] FWC 2165

[2020] FWC 2165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francis Mackole
v
Hanson Construction Materials Pty Ltd
(U2020/220)

COMMISSIONER YILMAZ MELBOURNE, 4 MAY 2020

Application for an unfair dismissal remedy – application dismissed.

[1] On 7 January 2020, Francis Mackole made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Hanson Construction Material Pty Ltd (Hanson). Mr Mackole seeks Reinstatement. 1

[2] It is not in dispute that Mr Mackole’s application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act). It is not in dispute that Mr Mackole’s employment was terminated on 18 December 2019 for misconduct, with the payment of two weeks’ notice, and that Hanson is not a small employer.

[3] Mr Mackole was represented by Unfair Dismissals Australia until it filed a form F54 Notice of representative ceasing to act on 10 March 2020.

[4] Hanson was represented by a lawyer prior to arbitration, and I granted leave to appear for the hearing pursuant to s.596 (2) (a) to enable the matter to be dealt with more efficiently given the complexity of the matter and (b) that it would be unfair to require the Respondent to represent itself because it would be unable to do so.

Background

[5] Mr Mackole commenced employment on 23 August 2017 in the position of full-time cement tanker driver located at the Lysterfield Transport Depot. The role requires collection of cement products from various depots and delivery to varied sites.

[6] On 11 December 2019, Mr Mackole unloaded a full load of slag into a dedicated general-purpose cement silo at the Dandenong plant. He was stood down with pay while an investigation took place and the meeting scheduled for 16 December 2019 was postponed to the following day because Mr Mackole was unavailable.

[7] Mr Mackole brought two support people to his meeting with his employer on 17 December 2020.

Submissions of the Applicant

[8] Mr Mackole gave oral evidence at the hearing under affirmation that after 1.5 years as a night shift tanker driver, the administrative arrangements for collection and delivery changed from a manual procedure to “trimble”, an onboard software system. He submits that trimble had been unreliable and on 11 March 2020, he alleged that when he arrived at the Dandenong depot that trimble incorrectly recorded that he had general-purpose product instead of slag. During the hearing he stated that he did not know what product he was transporting, that he relies on the trimble screen and that he texted his leading hand before he poured the load into the silo. He submits the purpose of the text was to avoid pouring the wrong product into the silo as he is required to text the content and time. 2

[9] Mr Mackole submits there was no valid reason for his termination of employment because the company’s trimble system was faulty, his leading hand did not instruct him after he sent his text before he commenced pouring, and as soon as he realised his error he reported it to his leading hand. He submits that his leading hand did not make any complaint about his performance.

[10] In relation to the procedure of the investigation and termination, Mr Mackole submits that Hanson failed to follow its own obligations in its enterprise agreement. Mr Mackole referred to the Hanson Melbourne Metropolitan Area Truck Driver Enterprise Agreement 2015/16/1 7. Hanson submitted the correct enterprise agreement is the Hanson Melbourne Metropolitan Area Truck Driver Agreement 2018 – 2020. 3

[11] Mr Mackole referred to clause 14.4 (f) of the Hanson Melbourne Metropolitan Area Truck Driver Enterprise Agreement 2015/16/1 7. While the clause relating to termination is from the wrong agreement, the wording is similar, requiring the employer to:

I. Inform the employee that the termination of employment is being considered,

II. Advise the employee of the reason for the termination, and

III. Provide the employee with an opportunity to show cause why their employment should not be terminated.

[12] In addition, Mr Mackole submitted that the clause requires that an employee be provided with details of any relevant material and the employee is entitled to be represented by a person of their choosing.

[13] Mr Mackole submits that Hanson failed to comply with its obligations in respect to process except for allowing him to have representation at his meeting. He submits he was entitled to 4 and not 2 weeks’ notice.

[14] In relation to the consequences of using contaminated cement, Mr Mackole dismissed the concern raised by Hanson as he submits that “non of the consequence happed because I informed my leading hand as soon as I realised my mistake” 4.

[15] Mr Mackole’s responses to prior incidents which Hanson rely on together with the incident of 11 December 2019, to justify termination of employment for unacceptable performance, were either that other drivers had made the same mistake, that a tipper was incorrectly parked when he hit it, that a bin he hit was incorrectly placed, that he was bullied or yelled at, that plant or equipment was faulty and the ABS brakes failed on his vehicle when he rear ended a vehicle that collided into another on the freeway. 5

[16] Mr Mackole submits the witness statement of Mr Liacopoulos is false. 6

Submissions of the Respondent

[17] At the hearing, Mr Dimitrios Liacopoulos, Transport Manager for Hanson gave oral evidence under affirmation.

[18] Hanson submits it had a valid reason to dismiss Mr Mackole for his lack of attention to his duties notwithstanding prior counselling and warnings 7. The letter of termination refers to Mr Mackole’s history of incidents of inattention leading to counselling or warnings.8

[19] Mr Liacopoulos attached to his witness statement the letter extending Mr Mackole’s probationary period of employment, the certificate of capacity clearing Mr Mackole for pre-injury duties, the written warning of 1 November 2019, data from trimble, the text message to the leading hand, the delivery docket of 11 December 2019 and the driver daily log sheet.

[20] Hanson submits that Mr Mackole’s explanation for the incident on 11 December 2019 was not accepted because the trimble message was in relation to his next load and not the current load, trimble recorded the message sent to Mr Mackole was after he had started to offload the slag, the text message was sent prior to the message for the next job from trimble, he had in possession his delivery docket which clearly indicated that the load was slag, and his own driver log sheet completed by Mr Mackole confirms that slag was collected from the SCL site.

[21] Further, Hanson submit that the load collected by Mr Mackole was from SCL, which only supplies slag. 9

[22] Hanson submits Mr Mackole was notified of the reason for the termination of employment, that he was given an opportunity to respond to the reason relating to his termination, that he was counselled and warned relating to his prior performance and that Mr Mackole was untruthful in his responses regarding the incident of 11 December 2019. 10

[23] Hanson submits it terminated Mr Mackole’s employment with the required two weeks statutory notice period. During cross examination by Mr Mackole, of Mr Liacopoulos, Mr Liacopoulos stated that the Agreement provides for 2 weeks’ notice in lieu which was paid and that the 4 weeks’ severance pay, Mr Mackole thinks applies, relates only to situations of redundancy.

[24] In response to Mr Mackole’s submission that due to his injury that he is unable to work being the reason he has not sought employment, Hanson provided a medical certificate dated 23 October 2019, which cleared him for pre-injury duties.

[25] Mr Liacopoulos submits in response to Mr Mackole’s statement of evidence, where he claims the vehicle accident was caused by faulty brakes and his left knee injury, that Mr Mackole did not report any issue with the brakes in the daily pre-start log, or in the Truck Fault Report Book preceding or following the accident, and that following the accident, he continued driving the vehicle for a distance of some 150km without any incident, and that he uses his right leg to operate the brake. Mr Liacopoulos submits the vehicle’s brakes were examined by a mechanic following the incident and no fault was found. 11

[26] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[27] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.

[28] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 12

Consideration

Was there a valid reason for the dismissal related to capacity or conduct?

[29] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 13.

[30] I find Hanson’s reason for termination of employment is sound and defensible. Mr Mackole did not deny offloading slag into the general-purpose silo. I find Mr Mackole’s explanation for his mistake disingenuous. Mr Mackole in his oral evidence stated in response to my question, that the position of cement tanker driver is a skilful role where analytical skills are necessary 14. I accept that the role requires care and skill which Mr Mackole repeatedly failed to apply. Instead of accepting responsibility, he provided nonsensical excuses for his poor performance.

[31] Mr Mackole was provided with counselling and warnings, the most recent being on 1 November 2019. This warning clearly states that Mr Mackole is to be vigilant and focussed on the job and that reoccurrence of the behaviour may result in termination of his employment.

[32] There was no sensible explanation why Mr Mackole ignored his own daily driver log sheet, the delivery docket and the fact that he collected the slag from SCL which he knew was the only site slag is collected from. Further, Mr Mackole submits his trip on that day may have been 30-45 minutes, yet he did not rely on his recall of what he collected. The driver daily log sheet shows that he entered the SCL site at 6.00pm and left at 6.15pm. He arrived at 7.27pm at the Dandenong site to offload. This is a period of time that any reasonable person would recall what was loaded into the cement truck, regardless of the apparent fact that the load was collected from a site that supplies no other product except slag.

[33] I do not accept the oral evidence of Mr Mackole that the purpose of the text to the leading hand is to ensure the load is poured in the correct silo. Mr Liacopoulos in evidence confirmed that the leading hand performs the same work as the driver, and it is not his responsibility to instruct drivers via text messaging what they are supposed to do. Mr Mackole’s explanations lack merit and are not believable.

[34] I am satisfied that the conduct occurred and that it justified termination. This consideration does not weigh in Mr Mackole’s favour.

Was Mr Mackole notified of the valid reason?

[35] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 15 and in explicit16 and plain and clear terms17.

[36] Mr Mackole was required to attend a meeting to explain why he poured slag into the general-purpose silo. He was given the opportunity to bring a support person and he received a clear warning the previous month. While Mr Mackole submits he didn’t think the meeting was serious, but rather to merely to ‘explain what actually happened’ 18. Any reasonable or diligent person would understand the serious nature of the meeting.

[37] Mr Mackole was asked for his explanation and he was informed that he would be advised of the outcome following completion of the investigation.

[38] The letter dated 18 December 2019 was clear that Mr Mackole’s employment was terminated following investigation of the incident of 11 December 2019 when he admitted to unloading a full load of slag into the general-purpose cement silo, thereby contaminating its entire contents. This incident being a further instance of his ongoing lack of attention to his duties.

[39] I am satisfied that Mr Mackole was notified of the valid reason for his dismissal.

Was he given an opportunity to respond to any valid reason related to his capacity or conduct?

[40] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment 19.

[41] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 20 Where the 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.21

Did Hanson unreasonably refuse to allow Mr Mackole to have a support person present?

[42] Hanson instructed Mr Mackole that he may bring a support person to his meeting. In fact, it is not in dispute that the delay in the meeting enabled Mr Mackole to bring along two support people to his meeting.

Was he warned about unsatisfactory performance before the dismissal?

[43] Mr Mackole received a clear warning on 1 November 2019 after he caused an accident when he rear ended a vehicle that then collided with another vehicle in front. The explanation provided by Mr Mackole was not accepted by Hanson as it was another example of his inattention on the job. I am satisfied that Mr Mackole has been subject to numerous counselling sessions and at least the one formal written warning on 1 November 2019.

[44] I am satisfied that a reasonable person would accept that the warning conveys the reason for concern to the employer and that employment is at risk unless the conduct or performance is addressed. 22

[45] Mr Mackole was dismissed for misconduct and paid two weeks’ notice plus his entitlements.

[46] Unfortunately for Mr Mackole, he did not take his counselling sessions and prior written warning seriously.

To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?

[47] Neither party addressed this consideration, although I am satisfied from the witness evidence of Mr Liacopoulos that Hanson was aware of their obligations in relation to affording Mr Mackole a fair and reasonable process.

What other matters are relevant?

[48] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[49] Mr Mackole held his position for a period of two years completing 3-4 loads per shift and by his own admission the position requires skill. In that two years, Mr Mackole would have driven to the SCL site numerous times knowing what product SCL supplies. Even if Mr Mackole did not have in his possession the delivery docket, or his daily log sheet, he ought to have known what he had in his cement truck before he poured it into the general-purpose silo. If at all confused, Mr Mackole failed to check against either document before he connected his truck to the silo and poured slag.

[50] Hanson submit that pouring slag into the general-purpose silo contaminates its entire contents and should it go unnoticed, use of the unsound product in construction projects would cost Hanson over a million dollars in rectification work, lost customers and reputational damage. Fortunately for Hanson, the error was picked up and rectification work only related to the silo. Mr Mackole dismisses the submission relating to potential cost and damage to the business because the financial and reputational risk raised by Hanson did not occur.

[51] Mr Mackole lacks remorse and is devoid of any responsibility for any damage caused by his lack of attention on the job. This behaviour is extraordinarily reckless, and it is reasonable for the employer to be concerned.

[52] Mr Mackole’s story waivered on the day of the hearing and he was inconsistent with his application. In his application he states that while at the Dandenong depot, trimble indicated he had to return for GP 23 (general-purpose cement). During the hearing he stated that trimble showed MCF – GP – Dandenong before he commenced the pour. The evidence of Mr Liacopoulos was that records indicated no malfunction of trimble, and the message was to return to MCF (Melbourne Cement Facilities) to collect GP after Mr Mackole commenced offloading the slag and power take off was activated24. It is not plausible that the message MCF – GP can be confused to assume GP was in his truck, particularly since he had arrived from SCL and not MCF. Mr Mackole submits no records can be retrieved from trimble. Hanson tendered the trimble records that show the times of pour, when power was activated and the time of the message for the next collection. I accept the evidence of Mr Liacopoulos in its entirety.

[53] I do not accept that Mr Mackole made an error not of his making. Further, based on his unsubstantiated and improbable statements, I do not find Mr Mackole to be a credible witness.

Harsh, unjust or unreasonable?

[54] Hanson dismissed Mr Mackole for misconduct. They carry the evidentiary burden of proof, which they have satisfied. The evidence that Mr Mackole held the position for two years, that he understood his duties, had collected slag from SCL many times before, the evidence of trimble, the delivery docket, driver’s daily log sheet, prior counselling and written warning together with the consistent and credible evidence of Mr Liacopoulos satisfies me that Mr Mackole’s dismissal is not unfair.

[55] I have considered each matter specified in section 387 and in reaching my determination I have considered whether the dismissal was harsh, unjust or unreasonable, despite the valid reason. I have weighed up all of the circumstances of the case including the gravity of the reason for dismissal.

[56] Mr Mackole’s prior poor performance, repeated counselling and the written warning and lack of remorse or acceptance of responsibility for his wrongdoing was enough for Hanson to lose trust and confidence in Mr Mackole’s capacity to perform his job. Hanson dismissed Mr Mackole’s employment for misconduct, not summarily, but with two weeks’ notice.

[57] Mr Mackole was not denied procedural fairness.

[58] I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.

Conclusion

[59] I am satisfied that Hanson considered Mr Mackole’s conduct and his explanation was serious enough to warrant termination for misconduct. The object of the Act is a “fair go all round”, it is not for the Commission to stand in the shoes of the employer. In terms of the employer’s decision to terminate Mr Mackole’s employment for misconduct with notice, having considered all the relevant factors I do not consider the termination unfair.

[60] As the dismissal was not unfair, I am not required to consider issues of remedy.

[61] For these reasons, I will issue an order separate to this decision, that the application be dismissed.

Appearances:

Mr F Mackole for himself as the Applicant

Mr P Copeland on behalf of the Respondent

Hearing details:
2020
Melbourne.
24 April

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR718579>

 1   Applicant’s Outline of Argument Q7a.

 2 Respondent’s Statement of Evidence [2].

 3   Form F3 Q1.1

 4   Ibid [2 a].

 5   Ibid [9-24], oral evidence.

 6   Oral evidence.

 7   Exhibit R1- Respondent’s Outline of Argument [1], Exhibit R2 and oral evidence.

 8   Exhibit R2, attachment 8.

 9   Exhibits R1, R2 and oral evidence.

 10   Ibid.

 11 Exhibit R2 [6].

 12   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 13   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 14   Applicant’s oral evidence.

 15   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 16   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 17   Ibid.

 18   Oral evidence.

 19   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 20   RMIT v Asher (2010) 194 IR 1, 14-15.

 21   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 22   Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

 23   Form F2 Q3.2.

 24   Exhibit R2 [13], oral evidence and attachment 4 Trimble record.