Gavin O'Neill v Alcoa of Australia Ltd
[2021] FWC 761
•12 FEBRUARY 2021
| [2021] FWC 761 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gavin O’Neill
v
Alcoa of Australia Ltd
(U2020/9212)
DEPUTY PRESIDENT BEAUMONT | PERTH, 12 FEBRUARY 2021 |
Application for an unfair dismissal remedy.
1 INTRODUCTION
[1] This decision concerns an application made by Mr Gavin O’Neill under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Alcoa of Australia Ltd (the Respondent) dismissed Mr O’Neill on 24 June 2020. Mr O’Neill disputed his dismissal under the terms of the Respondent’s enterprise agreement, but the decision to dismiss Mr O’Neill remained unchanged. Consequently, Mr O’Neill filed his application on 7 July 2020.
[2] In short, the contentious issues can be reduced to two. Both essentially centre on whether there was a valid reason for Mr O’Neill’s dismissal. The first issue is whether Mr O’Neill manually handled items that were heavy items, outside of the scope of the relevant policies and procedures that applied to him in his employment. The second, whether during the course of his participation in the investigation process that followed, including on 28 May 2020 and probably, more relevantly, on 3 June 2020, Mr O’Neill changed his version of events and was therefore dishonest when providing information to the Respondent for consideration as part of its investigative process.
[3] Detailed versions of events were provided, and the witnesses were many. Whilst the reasons for the decision are long, in short, I can say that I am unable to conclude that Mr O’Neill’s dismissal was harsh, unjust or unreasonable, and as such, I have dismissed his application. In doing so, I am satisfied that this outcome has ensured a ‘fair go all round’ is accorded to both Mr O’Neill and the Respondent.
2 BACKGROUND
[4] Before embarking on the background to this matter, which is an amalgam of the witnesses’ evidence, it is timely to set out who those witnesses are. On behalf of Mr O’Neill the following witnesses gave evidence:
a) Mr Gavin O’Neill - Stores Officer;
b) Mr Daniel McCaig - Organiser with the AWU;
c) Mr Stuart Allen - AWU Convenor; and
d) Mr Bazil D’Monte - AWU Pinjarra Site Delegate.
[5] The cast for Alcoa included:
a) Mr Gary Cresswell - Senior Safety Consultant and Emergency Services Superintendent;
b) Mr Cameron Gibb - Stores Supervisor;
c) Mr Roger Gibson - WAO Workshop and Stores Manager;
d) Ms Ridwana Moola - HR Consultant;
e) Mr Simon Gladman - Warehouse Superintendent; and
f) Mr Mark Hodgson - Refinery Manager.
[6] Mr O’Neill has had an extensive work history with Alcoa. He started there as a process worker back in 2005. Through perseverance, he was thereafter appointed to the position of kiln operator and later to the position of relief control attendant. Having sustained an injury to his elbow at the Pinjarra refinery in 2007, he was moved to different departments as part of his rehabilitation. However, in June 2009 he was appointed to the position of stores officer in the Main Stores (Stores) at the refinery and remained there until he was dismissed.
[7] In February 2016, all stores officers were placed on a nine day fortnight. 1 The usual workday for Mr O’Neill commenced at 7.00 am and concluded at 3.30 pm.2
[8] Come May 2016, Mr O’Neill injured his right shoulder during the course of his duties. 3 The injury necessitated shoulder surgery and subsequent rehabilitation.4 Therefore, whilst Mr O’Neill was working, what he referred to as his full duties, he nevertheless reported restricted movement when reaching and lifting in addition to experiencing some pain intermittently.5
[9] Since sustaining the initial injury in 2007, Mr O’Neill’s job grade had been reduced due to the roles he occupied. Therefore, workers’ compensation payments made up the shortfall between his pre-injury position and the positions that he subsequently occupied - noting that shift penalties were reduced and thereafter removed when the nine day fortnight was introduced.
[10] Mr O’Neill’s terms and conditions of employment were set out in his employment contract, the Alcoa of Australia Limited WA Operations AWU Enterprise Agreement 2019 6(Agreement) and, said the Respondent, Alcoa’s Code of Conduct.7
2.1 Disciplinary history
[11] Mr O’Neill gave details of having received a ‘Record of Conversation’ in 2015 for gossiping, and in 2018 stated that he was involved in a safety breach. The safety breach warrants traversing. It involves subject matter not dissimilar to the conduct Mr O’Neill engaged in, which, in part, led to his dismissal.
[12] Concerning the safety breach, Mr O’Neill explained he was under pressure to get more work done and had acted unsafely when exiting a forklift. He had put one foot on the ‘tine of the forklift’ he was operating and one foot on the bottom shelf of a rack thereafter lifting a rubber-lined ‘throat bush’ onto a higher shelf by hand. The estimated weight of the ‘throat bush’ was 15 kg. After an investigation had been conducted and Mr O’Neill had been provided with the opportunity to speak of his mitigating circumstances and respond to a ‘Show Cause Letter’, the Respondent issued Mr O’Neill a two-week suspension without pay and a final written warning. 8
2.2 The incident on 15 May 2020
[13] Turning now to more recent events. On 15 May 2020, Mr O’Neill presented for work as was the usual course. He attended a morning toolbox and checked his job allocation. Job allocations were undertaken by the supervisor for that day.
[14] On this particular day, Mr O’Neill was allocated to the ‘inside general forklift’. This was a job he had performed for a number of months. 9 Having completed a ‘SafeStart Task Review Checklist’ and a prestart check of the forklift, Mr O’Neill said he proceeded to collect tickets for the ‘WAO Workshop’ and then picked the items from racks with the forklift.10
[15] Mr O’Neill clarified that any bin items that could be collected by hand were allocated to the person on the Stores’ front counter. However, his tickets were for rack items that required the forklift to pick them. 11 There were 26 ticketed items listed on the tickets collected from the front counter, which constituted in part, Mr O’Neill’s allocated tasks for the day. The same 26 items also appeared in a ‘picklist’. However, that Picklist was absent of the 13 line-items left over from the previous day. Mr O’Neill said he discussed these items with Mr Gladman and Mr Gibb the day before and they were in effect carried forward for him to action on 15 May 2020.
[16] Having collected the morning cases from the truck and then delivered them to the ute delivery area using the forklift, Mr O’Neill said he continued picking Workshop items. The first item, listed 14th on the Picklist, was a disk assembly weighing 120 kg according to the Picklist (120 kg disk). 12 It was located at Rack 10, Bay E, Level 3, at approximately 2.1 metres height off the floor.13
[17] Mr O’Neill reports that when he arrived at this location, he found there were two disks each strapped to its own separate skid sitting on the floor. 14 He said that he picked up one of the disks using the forklift. He slid the forklift tines into the skid and then using the forklift, lifted the skid containing the disk onto a standard empty pallet. Mr O’Neill said that there was no need to remove the strapping as the disk and skid were moved as a unit. Clarification was provided concerning the term ‘skid’. It was said to be a small timber pallet used instead of a full-sized standard pallet to carry single items.15
[18] Following the first disk, Mr O’Neill was charged with picking two disk valves. They were listed thirteenth on the Picklist and were described by Mr O’Neil as ‘disk valve No.1, weight according to the list was 76 kg each, locate at Rack 9, Bay S, Level 1, at approximately 450mm height from the floor. 16
[19] Mr O’Neill explained that each disk valve was on its own separate skid, sitting on the rack on top of a pallet with four of the same disks strapped to it. He said that he used the forklift to move each disk valve which was strapped to its skid and placed each one on the same pallet as the first disk, in the same manner. 17
[20] Whilst Stores usually has around nine officers carrying out their duties at any one time, Mr O’Neill reported that on moving the disks there was no one around who could have seen him picking the items. 18
[21] All three disks were now on one pallet and Mr O’Neill took them outside to the collection area of the yard using the forklift. He notes that he did not get off the forklift. 19
[22] Having attended to other picking duties during the course of the day, Mr O’Neill then proceeded to pick a ‘stem’. His evidence was such that he believed ‘someone alleged I manually handled’ the stem, which according to Mr O’Neill was set out on the Picklist as being approximately 2.2 metres in length and weighing 50 kg. 20 It was locate at Rack 10, Bay N, Level 3, and was therefore sitting approximately 1.2 metres off the floor.21
[23] Mr O’Neill described having picked up the stem by using the forklift. He slid the forklift tines between the top of the stem and the one beneath it. He said a number of stems were stacked on top of each other. He then tilted back the tines to prevent the stem from rolling forward and raised the forklift tines above the metal stops on the pallet, which thereafter allowed the stem to roll back to the headboard of the forklift. 22 Mr O’Neill then recounted having moved the stem to an empty pallet. He gave evidence that he:
…lowered the forklift to the top of the pallet, then slowly tilted the tines forward so the stem rolled gently onto the pallet and laid between two of the slats. 23
[24] It is timely to note that Mr O’Neill responded to the assertion that this manoeuvre was not possible or could not be done. It was Mr Gibson - you may recall he was the Workshop Manager, who was said to have made this claim during an investigation of the ‘incidents’. Contrary to this, Mr O’Neill gave evidence that it could be done and that most personnel in Stores move these items in this manner on a regular basis. 24
[25] There were further smaller disks and stems that Mr O’Neill said he picked and placed on the pallet on the morning of 15 May 2020. 25 Concerning some of those smaller items, he estimated that the weight of these items probably ranged from 5 to 20 kgs. He said that he moved them manually by first, placing a stack of empty pallets at waist height, then picking the pallet containing required items from the rack with the forklift. Mr O’Neill said that the forklift then placed the pallet alongside and slightly higher than the empty stack of pallets.26 The pallet remained on the forklift tines, allowing items to be slid from one pallet to the empty pallet.27
[26] After lunch, Mr O’Neill used a forklift to pick up two items listed as ‘Stem Alcoa Valve’. The stock was located sitting approximately 3 metres off the floor. The two stems were identified on the Picklist as being 25 kg each. 28 Mr O’Neill once again detailed using the forklift to retrieve the stems, stating:
…I used the forklift to retrieve the pallet from Level 4 and moved it to ground level. These stems were sitting on a pallet within the pallet stops, but not strapped. I then slid the forklift tines underneath the two stems an tilted the tines backwards, then lifted the tines slowly above the pallet stops so the stems gently rolled against the headboard of the forklift. I then placed the stems on an empty pallet by lowering the tines to the other pallet and slowly tilting the tines forward so the stems rolled gently, resting in the gaps of the pallet. I then placed smaller hand-picked items on the same pallet, then all items were strapped to the pallet for delivery. 29
[27] Mr O’Neill gave evidence that around 1.30 pm to 2 pm, he started to feel a slight niggling in his lower stomach. 30 While Mr O’Neill’s stomach pain increased slightly over the remainder of the shift, it was not sufficiently painful to warrant taking pain medication. At the end of the shift he reported it to Mr Gibb, who acknowledged Mr O’Neill’s comment but did not express anything in response.
Workers’ compensation claim and medical attendance
[28] The stomach pain persisted over the weekend, causing Mr O’Neill to schedule an appointment with his doctor on the Monday. He obtained a medical certificate for the Monday, which was provided to Mr Gibb when he attended work the next day on the Tuesday. Mr O’Neill stated that he was allocated truck driving that day and because he thought it would aggravate his stomach pain he asked to be moved. 31 Instead, he was directed to attend the onsite medical centre and from there was sent home by the Alcoa nurse (at 8.45 am).
[29] On 20 May 2020, Mr O’Neill’s doctor diagnosed an abdominal strain injury, issued a First Workers’ Compensation Medical Certificate (the Certificate), and gave Mr O’Neill one week off work to recover. 32 Mr O’Neill notified Mr Gibb of the one week absence and emailed him the Certificate.
[30] On 27 May 2020, Mr O’Neill was cleared to return to work on light duties (less than 5 kg). The following day he returned to work but was first required to see Alcoa’s doctor onsite before commencing duties. 33 Mr O’Neill said that he returned to Stores at approximately 0900hrs and was met by Mr Gibb who ushered him into a meeting with Mr Cresswell.
2.3 Meeting on 27 May 2020
[31] According to Mr O’Neill, the meeting on 27 May 2020 was for the purpose of an incident investigation. 34 Mr O’Neill noted that he was not offered a support person, union representative or safety representative, and was asked about the use of lifting aids.35 Mr O’Neill gave evidence that he assumed that Mr Cresswell was referring to something other than the forklift he was operating. Therefore, he replied, ‘[N]o, I am not a dogman and am not qualified to use the overhead crane, as Alcoa’s training department requires’.36
2.3.1 Mr Cresswell’s evidence
[32] Mr Cresswell gave evidence that both he and Mr Gibb met with Mr O’Neill, presumedly on 27 May 2020. 37 He said that as part of a safety investigation, there would usually be an employee safety representative in attendance.38 However, the appointed Safety Representative for Stores was on leave.39 Mr Cresswell noted that Mr O’Neill did not raise any concern about the absence of an employee safety representative.40
[33] Setting the scene for the meeting, Mr Cresswell said he informed Mr O’Neill that he was looking into what had occurred on 15 May 2020, with a view of identifying what had happened and what could be done to prevent it happening again. 41 He worked with Mr O’Neill to prepare a timeline of events for that day on a whiteboard.42
[34] Once the timeline had been prepared, Mr Cresswell said he discussed with Mr O’Neill the casual factors section of the Investigation Worksheet (Alcoa Preliminary Investigation Worksheet). Mr Cresswell gave the following evidence at paragraphs [23] to [26] of his witness statement:
23. The first causal factor raised by Mr O’Neill was that he had been manually handling multiple heavy items without lifting aids.
24. Mr O’Neill advised me and Mr Gibb that he had, on 15 May 2020, manually lifted several discs and explained, when I asked, that each disc weighed around 40-50 kilograms. He said to us that the discs come 3 or 4 to the pallet and they have to be manually handled to put them onto another pallet for delivery.
25. In response, I asked him whether he understood safe working limits and he responded with words to the effect of “I understand the requirements for lifting, I’ve done the training. You can’t lift above 70% of your capacity”.
26. I am aware that Mr O’Neill has claimed that he was confused during our discussion and thought that we were discussing manual handling with a forklift. In my view that cannot be the case. Mr O’Neill clearly explained that he had manually handled discs and stems himself without the use of any lifting aid, irrespective of whether it was a forklift or crane…
[35] At hearing, it was noted to Mr O’Neill that the Alcoa Preliminary Investigation Worksheet, which Mr Cresswell had completed, included the following:
Casual Factor | Manual handling multiple heavy items without lift aids |
Why | No trained in lifting aid |
Why | Other personnel qualified to complete the task by not used |
Why | Perceived pressure to get the task done without assistance |
Why | Metrix seen as driver to complete tasks as per daily requirement |
[36] At hearing, it was proposed to Mr O’Neill that he had suggested the first causal factor. He replied that he did not agree with that, noting that the factors were read back to him and the word ‘heavy’ was not there.
[37] Mr Cresswell gave evidence that he continued to discuss with Mr O’Neill the causal factors for ‘Manual Handling multiple heavy items without lift aids’. 43 When working through the ‘why’ section under the causal factors in the Investigation Worksheet, Mr Cresswell said Mr O’Neill made a broad statement to the effect that he had lifted heavy items a lot in the past because it was part of what he has to do to get the job done.44 Mr Cresswell recalled that Mr O’Neill wanted the following recorded:
a) ‘[N]ot trained in lifting aid’ – as he stated that he had not been able to use a crane to lift the discs because he did not have the dogman qualification required to operate that equipment;
b) other personnel were qualified to complete the task but were not used – as he did not want to disturb them from their work;
c) there was perceived pressure to get the task done without assistance; and
d) metrics were seen as a driver to complete tsks as per the daily requirement as he was expected to complete all tasks each day. 45
[38] Mr Cresswell said that after he had worked through the causal factors section of the Investigation Worksheet with Mr O’Neill they looked at ‘Corrective Actions’. Mr Cresswell’s evidence was that he and Mr O’Neill agreed that the two corrective actions that could be implemented were, in short, a review of material movement of heavy items versus the personnel trained to use lifting aids, and reinforcing the manual handling and buddy lift requirements with the team. 46
[39] Mr Cresswell completed the ‘Corrective Actions’ section and sought confirmation from Mr O’Neill that he agreed with that section and was happy with the content of the Investigation Worksheet. Mr Cresswell gave evidence that Mr O’Neill confirmed that he was. 47
[40] It was Mr Cresswell’s account that when he sent the Investigation Worksheet through to Mr Gladman and Mr Gibson, he also set out in the same email that he had concerns regarding comments made by Mr O’Neill about manual handling during the investigation. Mr Cresswell said he considered it was important for them to be made aware so they could follow up to ensure that work was performed safely.
2.3.2 Mr Gibb’s evidence
[41] Mr Gibb has held his position as a supervisor in Stores since March 2020. Mr Gibb said Mr Cresswell led the safety investigation interview, noting that Mr O’Neill was informed that Mr Cresswell was looking into what had happened on 15 May 2020 to prevent it from occurring again. 48
[42] Similar to Mr Cresswell, he recounted the preparation of a timeline using the whiteboard and working through the Alcoa Preliminary Investigation Worksheet with Mr O’Neill. 49
[43] Mr Gibb gave evidence that when Mr Cresswell started discussing with Mr O’Neill the root cause of the injury, Mr O’Neill had said to him and Mr Cresswell:
…that the movement of large and heavy items had contributed to the injury because he had to move them manually. He advised that he had moved stem and discs which he said could weigh up to 50kg.
He confirmed to us that he had moved these items himself as he wasn’t trained to use the crane and because there is consistent time pressure to complete the work, which resulted in him regularly moving those items himself rather than seeking help. 50
[44] Following the investigation interview, Mr Cresswell and Mr Gibb spoke to Mr Gladman. They told him that Mr O’Neill had confirmed that he had manually handled heavy items on multiple occasions, being stems and discs, including on 15 May 2020, but that Mr O’Neill had not been able to pinpoint an exact time of injury. 51 Mr Gibb stated that Mr Gladman requested that they both provide written statements confirming that to him.52
[45] Mr Gladman confirmed that he met with Mr Gibb and Mr Cresswell to discuss what was said following the above-mentioned interview. 53 After that discussion, he spoke with Mr Gibson to provide him with an update. It was agreed between the two of them that they needed to look into the items that might have been manually handled by Mr O’Neill.54
[46] A meeting was held on 29 May 2020 between Ms Moola, Mr Gibson, Mr Duncan and Mr Gladman. A decision was made to make further enquiries into the incident. Mr Gladman said that he investigated the work that had been allocated to Mr O’Neill on that day to identify any heavy items that Mr O’Neill might have manually handled. He prepared a ‘run sheet’ with the list items that were picked by Mr O’Neill on 15 May 2020. 55 The run sheet had been generated from the records management system used in Stores, and he had typed in or hand written weights of items.56
[47] Mr Gladman reported that through his review of the items picked by Mr O’Neill on 15 May 2020, he identified four he thought would be appropriate to investigate because Mr O’Neill had referred to stems and discs during the safety investigation and in his statement of 20 May 2020. 57 Mr Gladman listed those items, and in his witness statement included an annotation for each:
a) Item No. 700286174 – being disc valves with an average weight of 76 kilograms. I noted that Mr O’Neill had moved two of those on 15 May 2020.
b) Item No. 701156050 – being a disc valve assembly with an average weight of 120 kilograms. I noted that Mr O’Neill had moved one of those on 15 May 2020;
c) Item No. 701043966 – being a valve stem with an average weight of 50 kilograms. I noted that Mr O’Neill moved one of those items on 15 May 2020; and
d) Item No. 700793576 – being a valve stem with an average weight of 25 kilograms. I noted that Mr O’Neill had moved two of those items on 15 May 2020. 58
[48] Having spoken to Ms Moola on 1 June 2020, Mr Gladman said that it was decided to commence a formal investigation given he had identified a range of items concerned.
[49] On 2 June 2020, Mr O’Neill was advised there would be a further meeting to request more information about his ‘injury’.
2.4 Meeting on 3 June 2020
[50] That subsequent meeting was held on 3 June 2020 and present at the meeting was Mr Gladman, Ms Moola and Mr D’Monte. At the meeting, Mr O’Neill was handed a letter titled ‘Investigation into Allegations of Misconduct’.
2.4.1 Evidence of Mr O’Neill
[51] Mr O’Neill gave evidence that the Respondent alleged that of the items on the Picklist for 15 May 2020, he had manually handled four of those items without lifting aids. 59 Mr O’Neill said that he denied manually handling the items.60
[52] In response to the first allegation that he undertook manual handling of items without lifting aids which exceeded the safe manual handling weight, Mr O’Neill said in his witness statement, ‘[N]o, I didn’t manually lift those items, I used the forklift,’ adding that on the day of the investigation, when asked if he used lifting aids, he assumed that Mr Cresswell was referring to the pedestal crane, which he was not qualified to operate.
[53] Mr O’Neill’s witness statement went on to detail that in response to the allegation that he had sustained an injury during the manual handling of items in excess of 40 kg and failed to report the injury, he had informed Mr Gibb about his stomach pain at the afternoon of the toolbox in front of the Stores team. 61
[54] During the meeting, Mr O’Neill recalls there being a break at some point. As recounted in his witness statement, his evidence was that both he and Mr D’Monte took the break so that they could walk through the racks and look at the heaviest items (identified on the Picklist), with a view to refreshing Mr O’Neill’s memory. 62
[55] The meeting resumed after the break. In response to the third allegation about failing to report for a rostered shift, Mr O’Neill said he advised that he had contacted Mr Gibb immediately after returning from the doctor's appointment on 20 May 2020. 63 He further advised having sent Mr Gibb his medical certificate and that Mr Gibb had acknowledged its receipt whilst copying Mr Gladman into that same email.64
[56] Mr O’Neill set out in his witness statement that he also explained in the meeting how he had moved each heavy item that Mr Gladman had tabled on the Picklist (details of which can be found at paragraphs [13] to [26] of this decision).
[57] At hearing Mr O’Neill elaborated on the information he had conveyed to Mr Gladman, noting he had informed Mr Gladman that he had moved the two 76 kg valves on their single skids: ‘[T]here was – there was two of these valves. They’re the 174s and they were on single skids in the rack on top of other discs’. 65 Mr O’Neill then gave evidence in respect of being questions about a 50 kg stem:
I was getting agitated, because I said to Simon Gladman that – he made a comment, when he asked me how I picked them I said I used the forklift. He said, “You said in the 28th you did not use a lifting aid”. Right. And at that moment it clicked up there in my head that nobody’s viewed the forklift as a lifting aid and I’m trying to clarify, not change my story but trying to clarify that, yes, I now realise that the forklift is a lifting aid. 66
2.4.2 Evidence of Mr D’Monte
[58] As noted, Mr D’Monte was present in the meeting on 3 June 2020. He gave evidence that Mr Gladman had tabled four items in particular that Mr O’Neill allegedly lifted on 15 May 2020 – the weights next to those items were said to have been sourced from the stickers on the items. It was these items that were said to be in issue.
[59] Mr D’Monte said that Mr O’Neill became frustrated during the meeting as he appeared not to be able to get through to Mr Gladman how the items in issue were lifted. 67 Mr D’Monte gave evidence that at several times Mr Gladman had communicated that he did not know how Mr O’Neill had done certain lifts.68 Mr D’Monte said that both he and Mr O’Neill informed Ms Moola that Mr Gladman was fully aware of how things were done in Stores.69 It was Mr D’Monte’s evidence that Ms Moola proposed a short break.
[60] Mr D’Monte said that in the break both he and Mr O’Neill returned to the racks to view each item in question (four items with weights against them), and Mr O’Neill explained to him how they were lifted. 70
[61] Mr D’Monte recounted that Mr O’Neill informed Mr Gladman and Ms Moola that all the discs were on a skid and it was a straight lift with the forklift in both cases, with no manual handling. 71 Mr D’Monte elaborated:
[W]hen we viewed the stock of the two types of discs, the entire current stock of one type was on skids, and the entire current stock of the other type was on a pallet. This is the new excepted [sic] standard by Alcoa from its suppliers for this type of item at present. 72
[62] It was Mr D’Monte’s evidence that previously there was a standard where all discs above a certain weight were to be supplied on single skids. 73 That had changed, and now the same type of discs were supplied on skids of varying sizes and on pallets by the new supplier.74 Mr D’Monte expressed that there was no set standard of how discs were packaged and sent to the Respondent.75
[63] Mr D’Monte said that with regard to handling heavy discs in general, the Respondent had moved from a standard of lifting single skids to one that was governed by weights and quantities booked out. 76 Continuing with his evidence, Mr D’Monte stated that with no set standard, the operator’s choice on the day determined how it was done.77
2.4.3 Evidence of Mr Gladman
[64] Mr Gladman gave evidence that after Ms Moola had made introductions, he provided Mr O’Neill with a letter setting out the allegations. After providing Mr O’Neill with a break to read the letter, Mr Gladman said that he raised the first allegation about manually handling without lifting aids. 78 Mr Gladman set out in his witness statement:
…Mr O’Neill confirmed that he had been manually handling items. I asked him if he had been manually handling valve discs and he confirmed that he had and that he had been manually handling valve discs to move them from one pallet to another.
I asked him what weight the valve discs were because my list referred to a range of discs, he stated that he didn’t think any were in excess of 40 kilograms.
I then asked him explained [sic] the second allegation about Mr O’Neill failing to report an injury sustained by manually handling items in excess of 40kg.
He advised that he hadn’t felt any pain until after lunch and that he had thought he had been constipated.
I then pulled out the run sheet that I had generated so that I could talk to Mr O’Neill about each of the items and raised the 120 kilogram valve assembly.
By that stage, Mr O’Neill was getting upset. Mr D’Monte asked if they could have another break and asked for a copy of the run sheet I had generated, which I gave to him.
After they came back to the meeting, Mr O’Neill told us that he had reviewed the run sheet and that all of the heavy items listed had been lifted by forklift and that he had been confused about what we had meant when we referred to manual handling. This was very surprising to me because he had clearly told us only shortly beforehand that he had been moving valve discs himself from one pallet to another. 79
[65] Mr Gladman said that he again tried to raise the individual items and referred to the 120 kg valve disc. 80 Mr Gladman said that Mr O’Neill explained that this equipment was on a single skid and that he had used a forklift.81 It was Mr Gladman’s account that at this stage Mr O’Neill became upset and started ‘accusing us of not accepting his explanation’.82
[66] Because of Mr O’Neill’s upset, Mr Gladman said he moved on to the third allegation that traversed Mr O’Neill’s failure to report his absence on 21 May 2020. Having received a response from Mr O’Neill, the meeting was ended. 83
[67] At hearing, Mr Gladman gave the following clarification about the items that Mr O’Neill was alleged to have manually handled:
The next item, the valve stem of 50 kilos, how did Mr O'Neill indicate that he moved that?---During the investigation we didn't get to that particular item where you basically had the first two items. That's where we got to. We didn't get past the discs.
They were never explained to you, how he moved them?---No.
Were you basing the manual handling on the valve stem weighing 50 kilos? Are you saying that he manually handled that?---I'm basing it more on the fact that the 76-kilo discs physically were never delivered on skids and so that is the only one that we believe is manually - we can realistically prove was not used - a forklift wasn't used.
Just please let me be very clear on this: you are saying, I think, that the 120 kilo item, the 50 kilo item being the valve stem, and the 25 kilo valve stems are not part of your claim about Mr O'Neill manually handling heavy items?---No, that's not what I said. The 120-kilo item is definitely off the table. That is definite, I have put that in my statement that that one, we accept that was actually moved by a forklift. The others, we never got to the stems so I have never actually questioned Gavin as to how they were actually moved. Our belief is that potentially they were manually handled to get them from one pallet to another as Gavin explained earlier on in his statement. But the 76-kilo one is irrefutable. It's just - there is no way that it ever came in on anything other than a pallet. So the fact that Gavin claimed that it came on a skid is the bit that we can't see and that's the one that we got to as far as the investigation. We didn't get any further with the investigation on the 3rd with Ridwana and me. We got to there, basically.
Again, are items C and D - do they form part of the allegation, the proven allegation in your view or Alcoa's view that Mr O'Neill manually handled the 50 kilo valve stem?---We believe that he would have had to have manually handled them, yes.
But you never got an explanation from him because the meeting was terminated?---No, well, the meeting basically - after he came back from the session where we handed him this sheet he came back and claimed that everything was done with the forklift, whereas prior to that, he said he had manually handled things. So we didn't get any further because then he got slightly agitated about it all and we had to - we moved on. 84
2.4.4 Evidence of Ms Moola
[68] Ms Moola gave evidence that on 3 June 2020 she met with Mr O’Neill, Mr D’Monte and Mr Gladman. Ms Moola recounts a letter being provided to Mr O’Neill which set out the allegations. Having been provided time to consider the contents of the letter, Ms Moola recollects that Mr Gladman initiated a discussion about the allegations, confirming that the first allegation referred to the manual handling of discs. 85
[69] According to Ms Moola, Mr O’Neill responded to the first allegation stating to the effect that he had been manually handling discs on 15 May 2020 and that he had done it the way it was normally done. 86 Ms Moola said that Mr O’Neill further explained that he had an extra workload on 15 May 2020 and that his day had involved picking stems and discs that he had manually handled by sliding them from one pallet to another.87
[70] When asked how heavy the discs were, Ms Moola recalls that Mr O’Neill responded that the weights were variable, but he did not think them more than 40 kgs. 88 Mr O’Neill had added that all employees moved the discs the way he had, and that he had done nothing different to anyone else and that he knew he could not go beyond 70% of this lifting capacity.89
[71] Ms Moola said that Mr Gladman next stepped through the second allegation with Mr O’Neill, and then returned to discuss a run sheet that specified the items' weights. 90 Ms Moola described that on the presentation of the run sheet Mr O’Neill’s demeanour became ‘quite agitated’. Ms Moola said that Mr D’Monte requested a break and a copy of the run sheet, which was provided.91
[72] It was Ms Moola’s evidence that when Mr D’Monte and Mr O’Neill returned, Mr O’Neill explained that he had reviewed the run sheet and that he had lifted all the identified heavy items by forklift. 92
[73] Ms Moola recalled that Mr O’Neill said to the effect that Stores’ employees all use forklifts to lift heavy items and that he had been confused about what had been meant by manual handling. 93 Ms Moola continued, noting that Mr O’Neill passed comment to the effect that now he had seen the items on the run sheet, only a forklift had been used.94 Ms Moola said that when Mr Gladman attempted to raise individual items on the run sheet with Mr O’Neill, Mr O’Neill became more agitated and the discussion became quite heated with Mr O’Neill simply repeating that he had used the forklift for the lifting.95
2.5 Instruction not to attend work on 4 June 2020 and subsequent meetings
[74] On 4 June 2020, Mr O’Neill was performing his duties as allocated. 96 At 3 pm he stopped worked as Mr Gladman had informed him there was a further meeting in the conference room with Mr Gibb and Mr D’Monte in attendance. Mr O’Neill said that he was handed a second letter titled ‘Investigation into Misconduct – Safety Breach’. The letter informed him he was stood down on full pay pending the outcome of the investigation.97
[75] On 16 June 2020, Mr O’Neill received a phone call from Mr Gladman asking him to attend a meeting on site the next day. Having received that call, Mr O’Neill said he called Ms Moola requesting answers to the questions he had sent in emails to her on 6 June 2020 and 9 June 2020. Mr O’Neill explained that he had informed Ms Moola that he needed to know more information on the allegations prior to the meeting and was informed that the answers would be provided at the meeting. 98 Mr O’Neill notes that the answers were not provided at the meeting.99
2.6 In preparation for the meeting of 17 June 2020
[76] Mr Gibson gave evidence that on 15 June 2020 there was a discussion held between him and Ms Moola, Mr Duxbury, Production Manager, and Mr Griffin, Maintenance Manager. At that meeting, it was decided that Mr Gibson would be involved in the investigation from that point onward, thereby replacing Mr Gladman. In preparation for the meeting with Mr O’Neill on 17 June 2020, Mr Gibson reviewed the Picklist that Mr O’Neill had relied upon on 15 May 2020. He identified four items he thought should be discussed with Mr O’Neill. Those items included the following:
a) Item No. 700042259 – being a 67 kilogram pulley which had been moved by Mr O’Neill on 15 May 2020;
b) 2 x Item No. 700286174 – being a 76 kilogram valve disc which had been moved by Mr O’Neill on 15 May 2020;
c) 2 x Item No. 701043966 – being a 23 kilogram stem which had been moved by Mr O’Neill on 15 May 2020; and
d) Item No. 700187754 – being a 40 kilogram rake arm which had been moved by Mr O’Neill on 15 May 2020. 100
[77] Mr Gibson gave evidence that he also went to Stores and took photos of the items in storage. 101
2.7 Meeting of 17 June 2020
2.7.1 Mr O’Neill’s evidence
[78] On 17 June 2020, an investigation meeting was held with Mr Stuart Allen, Ms Moola, and Mr Gibson. 102 Mr Gibson was said to have questioned Mr O’Neill about how he had moved the four items on the day of the alleged injury.103 Four photographs were produced by Mr Gibson which were not of the items on the day in question but represented the items that Mr O’Neill allegedly manually handled. According to Mr O’Neill, the photos showed the following:
a) 72 kgs discs on a pallet (four on one pallet and one disk on a single skid sitting on top of the four disks;
b) rake arm with no pivots or bearings;
c) a number of long shafts each approximately 2.2m long by 50mm in diameter, staked on a racked pallet with restraining metal stops; and
d) fan belt pulley on a racked pallet, not strapped.
[79] In response to Mr O’Neill asserting that the disks were on skids, Mr Gibson reportedly commented to Mr O’Neill that the disks in question were never supplied on site strapped to single skids. 104 Mr O’Neill said he replied by saying that one of the skids in the photograph was on a skid – Mr Gibson was said to have retorted, it was an anomaly.105
[80] Mr O’Neill said that he received a ‘Show Cause’ letter via email on 19 June 2020, to which Mr O’Neill responded in writing on 22 June 2020. On 23 June 2020, a meeting was held, and Mr O’Neill notes he was advised of the termination of his employment. 106 The matter was placed into dispute under the relevant industrial instrument notwithstanding that Mr O’Neill had not received a letter of termination at that time.107
2.7.2 Mr Gibson’s evidence
[81] Mr Gibson explained he informed Mr O’Neill that he was investigating the allegation that on 15 May 2020, Mr O’Neill had manually handled heavy items which exceeded safe manual handling weights in breach of Alcoa’s safety policy and manual handling procedures. 108
[82] Starting with Item No. 700042259, a 67 kg pulley, Mr Gibson showed Mr O’Neill a photo of it and asked him to explain how he had moved. In short, Mr O’Neill recounted having moved it with a forklift by tightening the tines of the forklift against the sides of the pulley and lifting it. 109
[83] Turning to the 76 kg valve discs, Mr Gibson showed Mr O’Neill a photo and again asked how the discs had been moved. 110 Mr Gibson reported that he had moved the two items on single skids (the one in the photo was on a skid), with the forklift.111
[84] Mr Gibson next showed Mr O’Neill two photographs take for Item 7010423966 being the 23 kg stems. Having asked Mr O’Neill how he moved them, Mr Gibson said that Mr O’Neill relayed initially that he had pushed the tines of the forklift into the storage bay until the tines were underneath a stem and had then tilted those tines back until the stem could be rolled back for transport to the pallet and then lowered and angled the tines to all the stem to roll onto the pallet. 112 Mr Gibson said he asked Mr O’Neill how had he had done that when there were three different stock numbers in the same bay.113 At this point, Mr Gibson said that Mr O’Neill changed his version of the event to say he had picked two stems and only put the correct one on the pallet.114
[85] The last item was shown to Mr O’Neill, namely the 40 kg rake arm. When asked how that was moved, Mr O’Neill purportedly responded that he slid the end of the tines between the rake arm and the pallet it was sitting on to move it to another pallet. 115
[86] After the meeting with Mr O’Neill, Mr Gibson discussed Mr O’Neill’s responses with Ms Moola. 116 Mr Gibson said that the two of them agreed that Mr O’Neill’s explanations on 17 June 2020 were not likely to be truthful because: (a) Mr O’Neill had previously confirmed that he had manually handled various items during the safety investigation and the meeting on 3 June 2020, and (b) his explanations for how he had moved the items were either not possible at all or highly improbable and/or very unsafe.117
2.8 Movement of the disks and stems – explanations given by Mr O’Neill tested
[87] Mr Gibson said that although he had ruled out Mr O’Neill’s explanation about moving the valve discs and the rake arm, he considered it would be appropriate to have another experienced forklift operator attempt to lift the stems and the rake arm. 118 Having made several attempts to lift a stem as requested, the forklift driver was finally able to get the tines underneath a stem, but it became very unstable and Mr Gibson said the exercise was stopped.119 The forklift driver explained to Mr Gibson that moving the stems always involved a two person lift.120
[88] At the hearing, I questioned Mr Gibson about the movement of the stems and discs. The following passage records what was said:
…The first thing that she actually said to us is, "We always do a two-person lift for this item", so - - -
Because I was wondering how one identifies out of those cylinder things - how you identify which one you need to pick?---There is stock numbers written on the actual covers and there's stock numbers provided on the valve stems, as well, with labels or - -
So it strikes me that you have to be able to see the label on the valve stem?---That's correct.
And that requires manoeuvring that?---That is correct.
So there will notably be manually handling in that part of the process - - -?---That is correct.
- - - because you need to turn to see where the label is?---Yes, that is correct.
And that is usually done by two persons?---That's usually done by two people.
Step me through further. One identifies what valve stem you need?---Yes.
Then what happens?---So then they would actually take the pallet and place it on the ground, I believe, and then as a pair they would actually then seek to actually grab the right stem, lift it together and then place it onto the next pallet, strap it and then move it.
Right, okay. When you're looking at the discs, how would one usually move those?---So with the discs it's the use of the crane at the front of the store.
How do you get it to the crane?---With a pallet. So the forklifter will actually place the tines into the pallet, move it up to the crane at the start of the stores.
If the disc is on a skid, I take the tines are still able to go into that mini type of pallet and still lift up a skid or how does that work?---Yes - no, they are able to do that, but as per the preceding and issuing information there weren't two skids as described to us.
Yes. I don't take issue with that. I'm just trying to understand when you've got a smaller version of the pallet does the infrastructure of the forklift allow for the tines to go into a skid to lift it?---Yes, it does.
Right, okay?---Yes.
That's what I wanted to understand. Any other questions arising from what I have asked?
MR YOUNG: No, your Honour.
MR VALLENCE: Thank you, your Honour. 121
[89] Mr Gibson gave evidence that he had also asked the forklift driver to try and lift the rake arm off the pallet, but the forklift driver was unable to get the tines to go under the rake arm to lift it. 122 Mr Gibson also asked Mr Gladman to attempt the same, which, said Mr Gibson was equally unsuccessful.123
2.9 Meeting on 19 June 2020
[90] Mr Gibson gave evidence that both he and Ms Moola met with Mr O’Neill and Mr Allen on 19 June 2020 to provide Mr O’Neill with a ‘show cause’ letter. 124 Mr Gibson said that he informed Mr O’Neill that the Respondent had concluded:
a) he undertook manual handling of items which exceeded the safe manual handling weight in breach of Alcoa’s manual handling procedures on 15 May 2020;
b) had not been honest during the investigation; and
c) the substantiate allegations involved conduct in breach of Alcoa’s Code of Conduct and safety policy. 125
[91] Thereafter Mr O’Neill was informed that Alcoa was considering terminating his employment and that he was to be provided with an opportunity to respond in a meeting on 23 June 2020. 126
[92] On 22 June 2020, Mr O’Neill submitted to Mr Gibson a written response to the ‘show cause’ letter. 127
2.10 Dismissal meeting on 24 June 2020
[93] A meeting was held on 23 June 2020 between Mr Gibson, Ms Moola, Mr O’Neill and Mr Allen. In that meeting Mr Gibson confirmed that a decision had been made to terminate Mr O’Neill’s employment, after which, Mr Allen formally disputed the decision under the relevant industrial instrument. 128
2.11 Meeting on 29 June 2020
[94] On 29 June 2020, a ‘Stage 2 Dispute’ meeting was held involving Mr McCaig, Mr Allen, Mr Griffin, Mr Duncan, HR Manager, Ms Moola, Mr Gibson and Mr O’Neill. Mr McCaig purportedly asked the company to provide evidence of the alleged misconduct; it was not provided. Mr McCaig was then said to have informed the company representatives that he had pre-approval to take Mr O’Neill’s case to the Fair Work Commission if the ultimate outcome was termination.
[95] The Respondent did not make a decision about Mr O’Neill’s dismissal and the dispute raised on 29 June 2020. Mr Duncan was said to have informed the Union representatives and Mr O’Neill, that the Respondent required more time to discuss it between themselves (meaning the Respondent’s representatives). 129 However on 30 June 2020, Mr Duncan informed the Union that the Respondent was proceeding with the dismissal and on 1 July 2020, Mr McCaig was said to have advised Mr O’Neill of the same. Mr O’Neill received a termination letter later in the day on 1 July 2020.130
[96] Mr O’Neill said that on 24 July 2020, he was advised by the Respondent’s Workers’ Compensation department that liability for his stomach strain was denied. 131
3 Relevant policies and procedures
[97] Mr Cresswell gave evidence that employees in Stores were required to comply with the following three documents:
a) Manual Handling Guidelines (WAO), which confirms that employees should lift a maximum of 18kg where a two hand lift is possible (and less for greater distances) and 10kg where a one handed lift is required (and less for greater distances);
b) Warehouse Materials Handling and Safe Storage Practices (AOA), which notes that manual handling items can lead to injury, including muscle strains and back injuries, and that if possible, a forklift should be utilised instead of manually handling even medium weight items; and
c) Picking Stock for Issue (AOA), which requires that heavy items must not be lifted without assistance. 132
[98] He added that all employees of the Respondent were required to comply with manual handling procedures and regularly undertake a manual handling related training package. 133
[99] The Manual Handling Guidelines appear to make it clear that pursuant to those guidelines an employee should generally not lift anything on their own that weighs more than 18 kgs, if it has handles or handgrips and it's a two-handed lift. Otherwise, if there is no handle or handgrips or it is a single-handed lift then, generally speaking, there is a 10 kg limit.
4 Mr O’Neill’s submissions
[100] Counsel for Mr O’Neill identified that the first issue in dispute arose from the safety investigation meeting which had been conducted on 28 May 2020. At the end of the investigative process an Investigation Worksheet was completed including the causal factor section. Counsel continued that in that particular document, in respect to Mr O’Neill’s conduct, it was stated, ‘[M]annually handling multiple heavy items without lifting aids’. Counsel submitted that the Respondent appeared to have adopted the view that what was said by Mr O’Neill in the meeting was an admission that he had manually handled multiple heavy items without lifting aids.
[101] However, Mr O’Neill’s position was that while he had manually handled items on 15 May 2020, and that was not in dispute, what was in dispute was whether he had handled heavy items. Counsel continued that in one sense, this was not in dispute because Mr O’Neill had picked, on the day, heavy items. But the question to be asked was whether he had picked them without lifting aids.
[102] The second issue identified by Counsel concerned whether in the course of the investigation Mr O’Neill had changed his story or rendition of the facts from what he had conveyed in the safety investigation meeting on 28 May 2020, compared to what he had said in the meeting on 3 June 2020.
5 The Respondent’s submissions
[103] From the Respondent's perspective, there were limited areas of contention requiring consideration. Broadly speaking, it accepted Mr O’Neill’s position was correct insofar as the issues in dispute were concerned, but noted the exception that what really needed to be considered was whether there was a valid reason for the termination of Mr O’Neill’s employment.
[104] Elaborating on the issues in dispute, counsel for the Respondent submitted that the key issue was whether Mr O’Neill actually manually handled heavy items beyond the scope of what was contemplated within the relevant policy and procedure, and therefore, in a manner which was inconsistent with the expectations set out in a final written warning issued to him in August 2018. Further, if so, did that constitute a valid reason for dismissal in that regard.
[105] Counsel for the Respondent traversed the second issue of whether there was a change in position, on the part of Mr O’Neill, across the meetings of 28 May and 3 June 2020, where Mr O’Neill, at first instance had asserted, as witnessed by four of the Respondent's witnesses, that he had been manually handling items which he, himself, noted were between 40 to 50 kgs. Having then been identified by Mr O’Neill that this could lead to some disciplinary outcomes, particularly having regard for his earlier warning, he changed his position to state that he hadn't manually handled any such items at all.
[106] The Respondent said that the reasons for termination were limited to the two matters. Firstly, Mr O’Neill had manually handled items that were heavy items, outside of the scope of the relevant policies and procedures that applied to him, in his employment. Secondly, during the course of his participation in the investigation process, included on 28 May and probably, more relevantly, on 3 June 2020, he had changed his position and was therefore dishonest in the information that he was providing to the Respondent for consideration, as part of its HR investigation process. This conduct was inconsistent with the Respondent's Code of Conduct, which was also a further breach of the conditions that had been imposed on Mr O’Neill, insofar as set out in the final written warning issued to Mr O’Neill issued on - in August 2018.
[107] Quite correctly, counsel for the Respondent pointed out that in respect of the meeting on 3 June 2020, and the subsequent meeting on 17 June 2020, there were two different sets of items that were discussed. 134 Mr Gladman raised four items, one of which was common with the items that were discussed on 17 June, but otherwise, there were three new items. It was specifically the feedback, in relation to 17 June 2020, said Counsel, that caused the Respondent’s concern in relation to manual handling and that having occurred.
6 Evidential matters
[108] Given the circumstances of this matter, the evaluation of witness credibility is quite pivotal. Much turns on whether I believe the account of Mr O’Neill or the accounts provided by the Respondent’s witnesses.
[109] During the hearing, Mr O’Neill was asked what his understanding was of the term ‘manual handling’. The relevant passage is recorded as follows:
Before I ask you any questions in relation to that, can I ask you how you would describe manual handling to us, Mr - - -?---Manual handling I would describe as lifting objects.
So the physical moving of an item by a person?---Yes.
So that wouldn't include the movement of an item by a forklift or other lifting aid?---No, not in my interpretation. 135
[110] One of the pressing issues that has arisen in this case is whether Mr O’Neill’s account can be believed when he advances that he did not appreciate that a ‘lifting aid’ included a forklift, and that he did not manually handle ‘heavy’ items on the Picklist.
[111] In the interview of 28 May 2020, Mr Cresswell gave evidence that when working through the causal factors of the Investigation Worksheet, Mr O’Neill raised that he had been manually handling multiple heavy items without lifting aids. 136 Mr Cresswell continued by stating that Mr O’Neill had advised him and Mr Gibb that on 15 May 2020, he had manually lifted several discs and explained, when asked, that each disc weighed 40-50 kg.137
[112] Mr Gibb gave evidence that when discussing the root cause of the injury on 28 May 2020, Mr Cresswell had asked Mr O’Neill broad questions to illicit what it was that Mr O’Neill was doing on that day. Mr Gibb stated:
I don’t think he specially asked him that because what the whole point of the investigation was is to find out in Gav’s words what he was doing. It wasn’t about asking him whether he moved something specifically. It was asking him, “What were you doing? What were you doing across the day?. 138
[113] Mr Gibb gave evidence that Mr O’Neill said that:
‘he had a lot of manual - a lot of heavy items to move, such as stems and discs, and that he would have to move them himself because there was no dogman available and he didn't have a dogging ticket to be able to move them with the crane so he would have to move the items on to the pallet himself’. 139
[114] In cross-examination, Mr Gibb was asked why he had not said something to Mr O’Neill that he was driving the forklift and was of course using a lifting aid. Mr Gibb responded:
Well, that's not relevant to what has caused his injury here. The lifting aids that weren't being used was the crane. It wasn't the forklift.
So you're saying he injured himself because he didn't use the crane?---Well, that's the way it seemed from the investigation, from Gavin saying that he moved heavy items himself. 140
[115] When asked in re-examination whether Mr O’Neill had said he had personally moved the heavy items, Mr Gibb responded, ‘yes’. 141 Mr Gibb gave evidence that Mr O’Neill made the comment that he regularly moved items up to 50 kgs, and in that in respect of 15 May 2020, and what he had moved, Mr O’Neill made reference to the stems and discs – making an extra comment that ‘I regularly move items up to 50 kilograms’.
[116] When, at hearing, it was proposed to Mr O’Neill that he had suggested the first causal factor, he said that he did not agree with that. Noting that the factors were read back to him and the word ‘heavy’ was not there.
[117] The first meeting on 28 May 2020 was for the purpose of conducting a safety investigation. Mr Cresswell and Mr Gibb were responsible for identifying with Mr O’Neill, the causes of his injury and the steps that might be taken to preclude further such incidents. At this stage, there was nothing to suggest the matter would culminate in a disciplinary enquiry. The milieu favoured candour, an environment where Mr O’Neill clearly thought he could speak ‘freely’ about what had occurred. In this respect, I am persuaded that more likely than not that the accounts provided by Mr Cresswell and Mr Gibb reflected what was said, and what had occurred. Mr Gibb and Mr Cresswell both gave accounts that Mr O’Neill had informed them that he had manually handled items on 15 May 2020, those items included stems and discs, and the discs were said to weigh 40-50 kgs or 50 kgs.
[118] Having heard from Mr O’Neill and appreciating the environment in which he works, in addition to his experience in Stores, I am unpersuaded by his narrative that he was confused about the term ‘lifting device’ and did not understand that he had informed Mr Creswell and Mr Gibb that he had manually handled the discs.
[119] Come to the second meeting on 3 June 2020; it was evident that the tone of the enquiry had markedly shifted from safety to discipline. Mr O’Neill now faced a series of allegations about and related to, the events of 15 May 2020. It was at this meeting that Mr O’Neill’s narrative changed.
[120] In cross examination Mr Gladman was asked about the meeting on 3 June 2020. He acknowledged that while Mr O’Neill had referred to manually handling material, Mr O’Neill had not indicated the items which had been handled as he had not been provided with a list. 142 However, Mr Gladman further noted that Mr O’Neill ‘had been provided with material that exceeded the safe working limits for himself, as per the statement’.143 In short, Mr Gladman conceded that Mr O’Neill may have referred to manually handling items less than 18 kgs.144
[121] However, in re-examination, Mr Gladman responded to the question ‘are you certain that during the meeting on 3 June 2020, Mr O'Neill had stated that he had manually handled discs?’:
Yes. He spoke about the fact that he had manually handled them by moving them from pallet to pallet and sort of said that that's the way he has always done it, so, yes. 145
[122] Ms Moola gave the following evidence at hearing:
Then Mr Gladman read out the first allegation and, broadly speaking, do you remember what that was?---The first allegation, yes. So the first allegation was in relation to Mr O'Neill - I'm paraphrasing - not using lifting aids when he had undertaken that task.
That's the manual handling allegation?---Mm-hm.
The allegation has been read out; what did Mr O'Neill say?---So Mr O'Neill's response to that allegation?
Yes?---So Mr O'Neill had confirmed that he had been manual handling items and he specifically had expressed that he had lifted or slid the items across from one pallet to another.
He said, "Yes, I've manually handled items and I've moved them between pallets", but he didn't provide any weights?---Not at that point, no.
What happened then?---Mr Gladman then proceeded to read the second allegation and we took Mr O'Neill's response.
What was the second allegation?---The second allegations was in relation to - and paraphrasing again - in relation to lifting items in excess of 40 kilos.
What did Mr O'Neill say in response to that allegation?---Okay, he had suggested that the items were not in excess of 40 kilos and then he had referenced a 70 per cent capacity.
Was he asked a question what was the weight of the discs and did he say something like, "Variable but up to 40 kilos"?---He could have done, I can't recall a hundred per cent.
But he could have said that?---He could have said that.
Then I think that Mr Gladman provided the so-called pick list?---That's correct.
There was then another break?---Correct.
There was about a 15-minute break?---Mm-hm.
Then Mr O'Neill and Mr D'Monte returned?---That's correct.
What happened then? So they've come back into the room after the second break; what happened then?---Mr O'Neill then changed his version of events. So, he had claimed that he was confused and that he did not manual handle items, he used a forklift like anyone else would. 146
[123] Mr Gladman and Ms Moola, much like Mr Gibb and Mr Cresswell similarly gave accounts that Mr O’Neill referred to manually handling items on 15 May 2020. While counsel for Mr O’Neill cited the possibility that Mr O’Neill had manual handled items that were not ‘heavy’ items, the responses Mr O’Neill gave prior to the break in the meeting on 3 June 2020, were provided in the context of responding to the first allegation. That allegation set out:
1. [I]t is alleged that on Friday, 15 May 2020 you undertook manual handling of items, without lifting aids, which exceeded the safe manual handling weight. In doing so, it is further alleged that you have breached Alcoa’s Safety Policy and Manual Handling Procedures. 147
[124] In response to the first allegation cited above, Mr O’Neill said in his witness statement, ‘[N]o, I didn’t manually lift those items, I used the forklift,’ adding that on the day of the investigation (safety investigation), when asked if he used lifting aids, he assumed that Mr Cresswell was referring to the pedestal crane, which Mr O’Neill said he was not qualified to operate.
[125] Regrettably, I have little confidence in the evidence of Mr O’Neill. I say regrettably, because it was not the case that Mr O’Neill presented as a disingenuous or disrespectful witness. He was a polite gentleman, and clearly his employment meant much to him. Upon him rested the responsibility for providing for an extended family. And it struck that he held a palpable belief in the narrative he was providing – much, after all was dependent on it. Yet, I was unconvinced by that narrative, to the point that where there was conflicting evidence between Mr O’Neill and Ms Moola, Mr Gladman, Mr Gibb and Mr Cresswell, it was the evidence of the latter witnesses I preferred.
[126] I saw no reason why Mr Cresswell and Mr Gibb would mislead this Commission, and it was evident to me that both were very clear that Mr O’Neill had informed them he had manually handled heavy items without the assistance of lifting aids. Mr O’Neill attempted to muddy the waters by drawing upon his perceived confusion as to what constituted a ‘lifting aid’, and that at least some of the items were not ‘heavy’. However, Mr O’Neill fully comprehended what was meant by manual handling. Furthermore, in the context of the discussion held on 28 May 2020, I am satisfied that Mr O’Neill volunteered a candid account of what had occurred. Mr Gibb after all had observed that the approach Mr Cresswell adopted was one where broad questions were asked for the purpose of eliciting from Mr O’Neill his account, in his own words. I am satisfied that Mr O’Neill was not asked leading questions and was not subjected to the advancement of conclusionary statements. In response to the questions asked he detailed why he thought he had sustained an injury.
[127] As to the confusion of whether the forklift constituted a lifting device, while Mr O’Neill argued that he did not appreciate it was, when he responded to Mr Cresswell, I am not so convinced. I am of the view that Mr O’Neill spoke not of the forklift because he had not used it in transferring the disks from one pallet to another. Again, Mr Cresswell and Mr Gibb expressed that Mr O’Neill had spoken of manually handling the heavy items, and it was for this reason, Mr Cresswell escalated the matter to the attention of Mr Gladman and Mr Gibson on that same day:
…I have concerns regarding comments made during the investigation. Gavin claimed he undertook manual handling of items that exceeded the safe manual handling weight on a regular basis because he doesn’t have a dogman ticket to operate the crane in the store and he does not want to ask others for assistance in order to use it. Gavin claimed he has manual handled 40 to 50kg items. I confirmed if Gavin knew the limits for safe manual handling and he advised he did know…
Further to the above Gavin was criticizing management through the investigation of making broad statement about putting production before safety etc.
[128] At this juncture it is important to also touch on the evidence of Mr O’Neill, Mr Gladman, 148 Mr Gibson149 and other witnesses150 about the 76 kg disc valves and whether or not they were on skids. Having considered the evidence of the parties, including the direct evidence of the inventory of disk valves delivered, and the spreadsheet generated from Alcoa’s stores management system recording the receipt and dispatch of valve discs, I consider it more likely than not that the disc valves in question were not on skids, as purported by Mr O’Neill.
7 Initial matters to be considered
[129] Section 396 of the Act requires that I decide four matters before considering the merits of Mr O’Neill’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21 day period required by s 394(2) of the Act. Second, Mr O’Neill was a person protected from unfair dismissal, as he earned less than the high income threshold, per s 382. Third, Mr O’Neill’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose.
8 Unfair dismissal
[130] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s 385(b)).
[131] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ 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.151
[132] In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. For ease of reading, I have used those criteria in s 387 to frame my consideration of the matter. However, before doing so, I observe that s 387 contemplates the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
8.1 Valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees)
[133] While the Commission is obliged to take into account whether there was a valid reason for dismissal, relating to the employee’s capacity or conduct,152 this provision should not be construed as requiring there to be a valid reason. Although, whether there is or not will have bearing on the decision reached.
[134] To explain further, ‘valid’ in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.153 The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.154
[135] In the context of termination of employment related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice,155 and numerous subsequent decisions of the Full Bench of the Commission.156 The question is whether the conduct took place, and the Commission determines the answer based on the evidence in the proceedings before it. The test is not whether the employer reasonably believed that the conduct occurred.
[136] The Commission’s function, however, is not to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.157
[137] Of course, a failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 158
[138] Mr O’Neill was required to comply with the Respondent’s Code of Conduct – Leading with Integrity. 159 It relevantly provided:
(a) On page 6 that:
“Violations of this Code will note be tolerated and may result in disciplinary action or termination of employment.”
(b) On page 8, that persons to whom the Code applies must be honest and professional; and
(c) On page 11, that persons to whom the Code applies must practice the six listed fundamentals every day, which are:
“1. Follow safe work practices and proactively seek to improve them.
2. Ensure that you and your colleagues are working in safe, reliable and controlled conditions.
3. Before you start work, make sure all safeguards are in place.
4. Adhere to all design plans, permits and safety operating limits.
5. Keep our work environment clean, orderly and safe.
6. Stop work, or stop others, and seek help when you recognise an at-risk situation”. 160
[139] In addition to complying with the Code, Mr O’Neill was required to act in compliance with the Manual Handling Guideline, Warehouse Materials Handling and Safe Storage Practices and the Picking Stock for Issue procedure, the contents of which have been detailed at paragraph [97] of this decision.
[140] Back in August 2018, Mr O’Neill received a first and final warning for conduct that breached the Respondent’s policies and guidelines, including the Manual Handling Guideline. The gravity of the misconduct had warranted a suspension. The steps taken by the Respondent in August, were said to be in lieu of terminating Mr O’Neill’s employment. While the final written warning was some two years’ old, its relevance in this context was that it had clearly placed Mr O’Neill on notice of the importance of the policies, procedures and guidelines in operation in his department. Working in Stores inevitably required a degree of manual handling. The Respondent in introducing and establishing the adoption of the aforementioned policies and procedures, had taken steps to minimise the harm arising from that requirement.
[141] It should be evident by now that I have found that Mr O’Neill, at a minimum, manually handled the 76 kg disc valves by transferring (lifting and/or sliding) them from one pallet to another absent a lifting aid. Further, it is evident that when Mr O’Neill became cognisant of the implications of such conduct, he changed the narrative that he had provided to Mr Cresswell and Mr Gibb – citing instead that he had used the forklift.
[142] In short, Mr O’Neill breached the Respondent’s Code of Conduct, Manual Handling Guideline, Warehouse Materials Handling and Safe Storage Practices and the Picking Stock for Issue procedure, when he manually handled the 76 kg disc valves absent the use of lifting aids on 28 May 2020. Further, the Respondent’s Code of Conduct was breached in circumstances where Mr O’Neill changed his narrative (version of events) in the meeting of 3 June 2020 - onwards, stating he was not involved in the manual handling of heavy items. Mr O’Neill made such assertions in a situation where the facts found, clearly demonstrated his assertion was implausible. In such circumstances, I have formed the view that Mr O’Neill had been dishonest.
[143] I hold no doubt that the directions in the Respondent’s Code of Conduct, Manual Handling Guideline, Warehouse Materials Handling and Safe Storage Practices and the Picking Stock for Issue procedure, were lawful and reasonable. An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable. 161 In addition, I am satisfied that Mr O’Neill was well versed in the requirements concerning manual handling in Stores, and understood the necessity of honesty in an employment relationship.
[144] I accept that there may be a point of conjecture with regard to whether Mr O’Neill manually handled the stems (see 2 x Item No. 701043966 – being a 23 kg stem which had been moved by Mr O’Neill on 15 May 2020). In short, Mr Gibson spoke of having had another forklift driver move the stems and observing that it could not be done with a forklift. Further, that forklift driver informed him that the stems were usually moved via a two person lift. I am not unpersuaded by Mr Gibson’s account in this respect but am appreciative of the submissions levelled by Mr O’Neill’s Counsel, that the witness was not called and am therefore reluctant to find that more likely than not Mr O’Neill manually handled the stems.
[145] However, in light of my findings regarding the manual handling of the discs and that Mr O’Neill changed his version of events during the course of the investigative processes, I remain satisfied there was a valid reason for his dismissal.
8.2 Notification of the reason and an opportunity to respond
[146] At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly. 162 The Full Bench in Royal Melbourne Institute of Technology v Asher163 observed that in Osman v Toyota Motor Corporation Australia Ltd,164 referred to the comments of Wilcox CJ in Gibson v Bosmac Pty Ltd165(approved in Selvachandran166), where Wilcox CJ had said:
Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical common sense way so as to ensure that the affected employee is treated fairly. 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 of the section.
[147] The reasons for the decision to terminate Mr O’Neill’s employment were foreshadowed in the ‘show cause’ letter issued to him on 19 June 2010 and were communicated during a meeting held that same day 167 – where it was communicated to Mr O’Neill that it had been concluded that:
(a) due to inconsistencies in his verbal and written responses, he had breached the Code by failing to act with integrity and failing to be honest during the course of the HR investigation; and
(b) had breached the Respondent’s safety policy and procedures as he had manually handled items in excess of 40 kilograms.
[148] At Mr O’Neill’s request, he was provided with the opportunity to respond to the ‘show cause’ letter in writing. 168 In all of the circumstances, I am satisfied that Mr O’Neill was notified of the reason and provided with the opportunity to respond.
8.3 Support person
[149] I am satisfied that Mr O’Neill had a support person present during the discussions on 3 June 2020, 4 June 2020, 17 June 2020, 23 June 2020 and 29 June 2020. While Mr O’Neill noted that he was not provided with the opportunity to have a support person at the meeting on 28 May 2020, I do not consider that this has bearing in respect to the particular criterion of s 387(d).
[150] On any objective level, the initial meeting on 28 May 2020 did not involve discussions about dismissal. To have held such discussions at that stage would have been premature. The discussion led by Mr Cresswell was one where information was garnered from Mr O’Neill so as to permit the Respondent to better understand what had occurred from a safety perspective.
8.4 Warnings about unsatisfactory performance
[151] As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing Mr O’Neill. It follows that this criterion is not relevant to the assessment required.
8.5 Size of the Respondent’s enterprise and dedicated human resource specialists
[152] The Respondent is a large enterprise which employs dedicated human resource specialists. It submitted that the approach it adopted with respect to the investigation into the conduct of Mr O’Neill and its attendant disciplinary process, was appropriate having regard to its size and presence of human resource personnel. In this respect, I would agree with the Respondent’s contention that it carried out the dismissal process in a procedurally fair manner.
8.6 Any other matters considered relevant
[153] Mr O’Neill had been with the Respondent for some 15 years. During that time, he had sustained at least one work related injury, and at the time of his dismissal, it appeared uncontentious that he continued to receive ‘top-up’ workers’ compensation payments. However, there was nothing put before me to suggest that the Respondent had done anything but comply with its obligations under the relevant legislative framework for workers’ compensation.
[154] There was reference to Mr O’Neill suffering much stress at the time of the meeting on 28 May 2020. This in part, was due to the unknown aetiology of his stomach complaint and a purported reference by a medical practitioner that his pain may be due to bowel cancer. Mr O’Neill’s father was said to have passed from such illness hence Mr O’Neill’s sensitivity to the subject. However, I am unconvinced that such stress led to confusion which rendered Mr O’Neill unable to discern manually handling heavy items from lifting them with a forklift or lifting aid – in the meeting on 28 May 2020. The evidence, in my view, was unequivocal – he had manually handled heavy items (disc valves).
[155] I have no doubt that the loss of a regular income and access to other entitlements that come with full-time work will inevitably have an impact on Mr O’Neill. The evidence was such that Mr O’Neill had financial commitments to meet and as the only person in his household with an income, he supported not only himself but his wife and mother who lived with him.
[156] However, I have found that Mr O’Neill had breached the manual handling requirements of the Respondent and during the investigative processes had been dishonest. The gravity of the conduct was such that there was no issue regarding disproportionality – particularly in light of previous warning Mr O’Neill had received.
[157] I have taken into consideration Mr O’Neill’s length of service and have, in addition, observed that at the time of his dismissal, he was receiving workers’ compensation payments. While I have empathy for Mr O’Neill’s current situation, noting he was clearly troubled by the loss of ongoing employment and income, I am of the view that these factors do not amount to his dismissal being harsh. Mr O’Neill had been warned in the past about manual handling requirements and was therefore well positioned through both training and warning, to understand what was expected of him.
[158] It is not lost on me that the animus for Mr O’Neill’s change in narrative may have been his realisation that his candid account in the meeting on 28 May 2020, could see him lose his job. However, there was no assertion or argument pressed that the account provided under the auspices of a safety investigation was unable to be relied upon by the Respondent. While there was evidence given that Mr O’Neill was not accompanied by a support person for the purpose of that particular meeting on 28 May 2020, I do not consider that this detracts from the accounts he provided to Mr Gibb and Mr Cresswell, or otherwise renders the process followed procedurally unfair. Mr O’Neill could have declined to participate in the safety investigation meeting but did not do so.
[159] Insofar as compliance with the Agreement is concerned, there was no such deviation from its terms that warrants a finding that the Respondent’s processes were procedurally unfair.
9 Conclusion
[160] Having taken into account each of the matters specified in s 387 of the Act, I am satisfied that the Respondent had a valid reason for dismissing Mr O’Neill based on his conduct. Further, I am unable to conclude that Mr O’Neill’s dismissal was harsh, unjust or unreasonable and am satisfied that the outcome I have determined ensures a ‘fair go all round’ has been accorded to the parties. It therefore follows Mr O’Neill’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application. An order 169 to that effect is issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Gavin O’Neill, Applicant;
Mr Carl Young, for the Applicant;
Mr Mark Vallence, for the Respondent;
Hearing details:
Perth
22 October
2020
Printed by authority of the Commonwealth Government Printer
<PR726943>
1 Witness Statement of Gavin O’Neill (O’Neill Statement) [7].
2 Ibid [7].
3 Ibid [8].
4 Ibid.
5 Ibid.
6 [2019] FWCA 8496; PR715322.
7 Witness Statement of Ms Ridwana Moola (Moola Statement) [8(b)].
8 O’Neill Statement [14].
9 Ibid [15.7].
10 Ibid [15.13].
11 Ibid [15.14].
12 O’Neill Statement [16].
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid [17].
17 Ibid.
18 Ibid [16]-[17].
19 Ibid [17].
20 Ibid [19].
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid [20].
26 Ibid.
27 Ibid.
28 Ibid [22].
29 Ibid.
30 Ibid [23].
31 Ibid [30].
32 Ibid [31].
33 Ibid [33].
34 Ibid.
35 Ibid.
36 Ibid.
37 Witness Statement of Mr Gary Cresswell (Cresswell Statement) [14].
38 Ibid [12].
39 Ibid.
40 Ibid [13].
41 Ibid [16].
42 Ibid [20].
43 Ibid [31].
44 Ibid [31].
45 Ibid [33]–[36].
46 Ibid [45].
47 Ibid [46].
48 Witness Statement of Mr Cameron Gibb (Gibb Statement) [35].
49 Ibid [37], [38].
50 Ibid [42]-[43].
51 Ibid [57].
52 Ibid.
53 Witness Statement of Mr Simon Gladman (Gladman Statement) [35].
54 Ibid [36].
55 Ibid [40].
56 Ibid.
57 Ibid [42].
58 Ibid.
59 O’Neill Statement [38].
60 Ibid.
61 Ibid [39].
62 Ibid.
63 Ibid [40].
64 Ibid.
65 Transcript PN [1001].
66 Transcript PN [1006].
67 Witness Statement of Mr Bazil D’Monte (D’Monte Statement) [13].
68 Ibid [12].
69 Ibid.
70 Ibid [14].
71 Ibid.
72 Ibid.
73 Ibid [15].
74 Ibid.
75 Ibid.
76 Ibid [16].
77 Ibid.
78 Gladman Statement [54].
79 Ibid [54] –[61].
80 Ibid [62].
81 Ibid.
82 Ibid [63].
83 Ibid [64] – [65].
84 Transcript PN [1691] – [1696].
85 Moola Statement [25].
86 Ibid.
87 Ibid [26].
88 Ibid [27].
89 Ibid [28].
90 Ibid [31].
91 Ibid [32].
92 Ibid [34].
93 Ibid [35].
94 Ibid.
95 Ibid [36].
96 O’Neill Statement [42].
97 Ibid.
98 Ibid [46].
99 Ibid [46].
100 Gibson Statement [32].
101 Ibid [33].
102 O’Neill Statement [47].
103 Ibid.
104 Ibid.
105 Ibid.
106 Ibid [50].
107 Ibid.
108 Gibson Statement [33].
109 Ibid [39].
110 Ibid [40].
111 Ibid.
112 Ibid [41].
113 Ibid.
114 Ibid.
115 Ibid [42].
116 Ibid [50].
117 Ibid.
118 Ibid [51].
119 Ibid [53].
120 Ibid.
121 Transcript PN [2044] – [2060].
122 Gibson Statement [54].
123 Ibid.
124 Ibid [63].
125 Ibid [65].
126 Ibid [67].
127 Ibid [69].
128 Ibid [73].
129 O’Neill Statement [53].
130 Ibid [54].
131 Ibid [55].
132 Cresswell statement [28].
133 Ibid [2].
134 Transcript PN[81].
135 Transcript PN [471]–[472].
136 Cresswell Statement [23].
137 Ibid [24].
138 Transcript PN [1485].
139 Transcript PN [1490].
140 Transcript PN [1511]-[1512].
141 Transcript PN [1523].
142 Transcript PN [1560].
143 Transcript PN [1563].
144 Transcript PN [1565].
145 Transcript PN [1840].
146 Transcript PN [2131].
147 Moola Statement Annexure RM4.
148 Gladman Statement [76].
149 Gibson Statement [46].
150 Witness Statement of Daniel McCaig [12]–[17]; D’Monte Statement [14]–[19].
151 (1995) 185 CLR 411, 463.
152 Fair Work Act 2009 (Cth) s387(a).
153 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
154 Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].
155 (1999) 169 ALR 89, 92.
156 King v Freshmore (Vic) Pty Ltd, Print S4213, per Ross VP, Williams SDP, Hingley C.
157 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
158 B, C, and D vAustralia Postal Corporation t/as Australia Post[2013] FWCFB 6191 [36].
159 Moola Statement [8] Attachment 1.
160 Moola Statement [8] Attachment 1; Respondent’s Outline of Submissions [98].
161 R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601, 621-2.
162 Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, [26].
163 [2010] FWAFB 1200, [26].
164 PR948009.
165 (1995) 60 IR 1.
166 Selvachandran v Peteron Plastics Pty Ltd (1995) 61 IR 371.
167 Gibson Statement [65].
168 Gibson Statement [68].
169 PR717385.
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