Heath Stephenson v Patties Foods Ltd

[2015] FWC 5900

[2015] FWC 5900

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heath Stephenson
v
Patties Foods Ltd
(U2015/5060)

COMMISSIONER RYAN MELBOURNE, 30 SEPTEMBER 2015

Application for relief from unfair dismissal – valid reason – misconduct.

[1] At the conclusion of the hearing of this matter on 20 August 2015 I issued a decision 1 in which I found that the dismissal was harsh, unjust or unreasonable and that it was appropriate that a remedy be granted to the Applicant and the appropriate remedy was reinstatement. I also decided that it was appropriate to grant the Applicant an order for lost remuneration. The matters required to be determined under s.396 were also dealt with in the decision. I advised the parties that the orders would be issued with the reasons for decision and that the effective date of the orders would be 22 days after the day on which the reasons for decision were issued. Following are the reasons for the decision issued on 20 August 2015.

Background

[2] The Applicant was employed on a permanent part-time basis as a Storeman at the Respondent’s Bairnsdale plant. He was dismissed on 2 April 2015 and the termination letter sets out the reasons for termination as being:

“The reason for termination is due to continuing safety breaches following the completion of a formal investigation into the most recent incident which occurred on Friday 27^th March 2015. The findings of this investigation concluded that you did not adhere to the site speed limit and on the balance of probability were driving in an unsafe manner. The determination of an appropriate outcome from this investigation had to take into account that you are currently on a final formal warning for breaching the Company OHS Policy and Bairnsdale Code of Conduct due to the unsafe operation of a forklift.”

Consideration

[3] Consideration of whether the dismissal is fair or unfair is to be determined in accordance with the requirements of s.387 of the Act which is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

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) - S.387(a)

[4] The Respondent must have a valid reason for the dismissal which should be "sound, defensible and well founded" and should not be "capricious, fanciful, spiteful or prejudiced" Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

[5] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination Brinks Australia Pty Ltd v Transport Workers Union of Australia 2at paragraph [7]. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

[6] The reason for the dismissal was fourfold, non adherence to the site speed limit on 27 March 2015 and driving in an unsafe manner on 27 March 2015, continuing safety breaches and an existing Final Formal Warning.

The context in which the incident occurred

[7] The Respondent’s manufacturing operations at Bairnsdale occur in several very large buildings on a single site. A car park for employees is at the rear of the site and is accessed by employees entering the site through the same entry/exit point as is used by the semi-trailers bringing into the plant the raw materials for production and by the semi-trailers taking out the frozen food products. Semi-trailers bringing in the raw materials enter through the main entry point and then turn left to the receiving area. Semi-trailers picking up finished product enter through the main gate and then turn right and after about 20 metres the road turns left and follows the eastern boundary of the site for about 50 metres before turning left and the road proceeds towards and then past the loading area for the semi-trailers which is on the left side of this roadway some 50 metres from the bend. Employee car parks are opposite to the loading area and are on the right side of the roadway. The roadway has two speed humps installed on the main straight section. Speed signs advising of a 10km speed limit are placed at several points along the road both before and after the main entry gate.

[8] For the purposes of this matter the relevant parts of the roadway are the straight section along the eastern boundary of the site and the final left hand bend from the straight and the roadway from the left hand bend to the employee car park area.

[9] Relevantly the incident involving the Applicant occurred at about 10.30pm on 27 March 2015 when the Applicant arrived early for work. The Applicant’s commencement time for work that evening was 11pm.

[10] There were no semi-trailers in the loading area at that time nor were there any other vehicles on the road at that time.

[11] At night time the area in question is relatively quiet. The Applicant’s car is noisier than most cars. The Applicant’s car is an ex-NSW Police vehicle with a noticeable note to the exhaust. The Applicant’s car sits low to the road surface. It is the type of car which attracts attention, whether wanted or unwanted.

Rodney Burr’s evidence

[12] Mr Burr, Stores Supervisor for the Respondent sent the following email to the General Manager, Denis Gerrard, at 10.44pm on 27 March 2015 about the incident in the car park:

“David, walking back from cardboard at 10.30pm I witnessed Heath driving at unreasonable dangerous high speed. Not only was this easy to see, also could hear his tyres chirping as he came around the bend nearest to office hear (sic). Was very plain that his speed was outright dangerous. This needs addressing promptly with him before someone gets hurt. When I tried to speak with him, he raised his head and walked of (sic) without speaking. Rod”  3

[13] The problem with Mr Burr’s evidence is that there is no evidence that he put the claim to the Applicant that he was driving at an “unreasonable dangerous high speed” or that his driving was “outright dangerous” in the conversations he had with the Applicant a short time after he witnessed the incident.

[14] Mr Burr’s witness statement sets out his recollection of the incident as follows:

“11. At approximately 10:30 pm on 27 March 2015, I was walking at the back of the Warehouse, conducting the end of shift checks. As I was doing so, I heard a car coming down the driveway which approaches the Warehouse. This driveway has a straight section, which runs parallel to the wall of the freezer warehouse, with two speed bumps before a left hand turn (almost 90 degree angle) which takes the driveway past a loading zone and the warehouse tearoom. Now shown to me and marked RB-1 is a copy of a map of the Warehouse which shows the driveway.

12. On this occasion, I heard the car revving excessively, slowing down, revving excessively and then slowing down again. In this respect, it sounded as though the car had accelerated up to the first speed bump, slowed down for the speed bump, accelerated quickly between the speed bumps and then slowed down for the second speed bump.

13. The sounds described above prompted me to look up to where I knew the car would soon appear. As the car rounded the final corner of the driveway, it came into my sight. I saw the car come around the corner at an excessive speed. As the car came around the corner, it was leaning towards one side and looked like it was almost out of control. The car exited the corner very widely and at least two thirds of the car was on the wrong side of the road. I could also hear the tyres screeching as they went around the corner.

14. The speed limit on the driveway is 10km/hour. On this occasion, it was clear to me that the car was travelling well in excess of 10km/hour as it rounded the corner. Based on the noises which I heard the tyres make and the way the car came around the corner, almost out of control, I estimate that the car was travelling at approximately 30-40km/hour.

15. I recognised the car to be that belonging to Mr Stephenson. I watched Mr Stephenson enter the car park and park his car.

16. As Mr Stephenson entered the office to the Warehouse, I attempted to speak with him regarding the incident. I said words to the effect of 'Don't you think you were going a bit fast down the driveway, Heath?'. Mr Stephenson ignored me and walked down the hallway in the direction of the tearoom.

17. As it was nearing the end of my shift, I attended the locker area to pack away my things. After doing so, I attended the smoking area to speak with Mr Stephenson.

18. I said to Mr Stephenson words to the effect of 'Don't you think you were travelling a bit fast down the driveway, Heath?' Mr Stephenson replied to me with words to the effect of 'No faster than you, or anyone else would be, Rod.'

19. I was unsure of the exact speed at which Mr Stephenson was travelling, but I could tell that it was well in excess of 10km/hour. I therefore considered that it needed to be reported to management. As indicated above, I have previously reported incidents of employees driving too quickly on the driveway to management. However, I have never seen anyone travelling at the excessive speed at which I saw Mr Stephenson turn the corner.” 4

Driving in an unsafe manner

[15] The respondent concluded from its investigation that the Applicant, on the balance of probability, was driving in an unsafe manner. This was based on the evidence of Mr Burr and Mr Bittner, Storeman. Although it has been established in cross examination of Mr Bittner that he did not actually see the Applicant driving, he only heard his car.

[16] Mr Burr was adamant in his evidence that he saw the Applicant’s car come around the final bend with the car tyres making a chirping or screeching noise and with the car leaning to the right. Mr Burr’s evidence was that the car coming around the corner sounded fast. As Mr Burr described it: “Body roll of car and noise could tell excessive speed”.

[17] This aspect of Mr Burr’s evidence is at odds with his evidence as to what he heard. Mr Burr clearly described what he heard as:

“On this occasion I heard the car revving excessively, slowing down, revving excessively and slowing down. In this respect it sounded as though the car had accelerated up to the first speed bump, slowed down for the second speed bump, accelerated quickly between the speed bumps then slowed down for the second speed bump. The sounds described above prompted me to look up to where I knew the car would soon appear. As the car rounded the final corner of the driveway it came into my sight.”

[18] The combined effect of what Mr Burr said he heard and saw means that once the Applicant slowed down and passed over the second speed hump the Applicant did not rev his car excessively whilst driving into the bend yet nevertheless managed to have his car lean to the right and to have his tyres make a chirping sound as the car went around the bend. As the evidence shows, Exhibit R7, and as the Commission and the parties observed by walking along the roadway, there is a relatively short distance from the last speed hump to the final left hand bend. It seems highly improbable that the Applicant could have reached a speed sufficient to make his car lean to the right as he was going around a left hand bend and to make his tyres chirp unless he had applied excessive acceleration to his car immediately after crossing over the second speed hump. If the Applicant had done so the noise of excessive revving would have been heard by Mr Burr for a third time. Yet Mr Burr does not suggest that he heard the Applicant’s car revving excessively after it crossed over the second speed hump.

[19] There is real doubt as to the evidence of Mr Burr in relation to the Applicant’s car entering and leaving the last left hand bend.

[20] Even if it could be proved that the Applicant was travelling at a speed of between 30-40 km per hour (which I do not accept), it does not necessarily follow that this constitutes driving at an “unreasonable dangerous high speed” (as described by Mr Burr) or driving in an unsafe manner (as described in the letter of termination).

[21] It is the Applicant’s evidence, which was not challenged, that there was no other traffic nor any pedestrians on the driveway at the time of the alleged conduct. The evidence of Mr Burr was that he had a clear view of the roadway upon which the Applicant was driving even though he was some 50 metres or more from the roadway upon which the Applicant was driving before the Applicant approached the left hand bend which led to the position where Mr Burr was. The evidence of Mr Burr makes clear that just as Mr Burr could see the Applicant’s vehicle so could the Applicant see along the roadway on which he was driving as well as the same roadway after it made a left hand bend. Given that the evidence also establishes that there was no other vehicular or pedestrian traffic on the roadway and no semi-trailers in the loading area it would appear to be a leap too far to conclude that even driving at 30 – 40 kph was driving in an unsafe manner.

[22] To the extent that a reason for the dismissal of the Applicant was driving in an unsafe manner this is not a valid reason for dismissal.

Non adherence to a site speed limit in car park on 27 March 2015

[23] There is no objective evidence which establishes the speed of the Applicant’s vehicle whilst driving on the Respondent’s site towards the employee car park. Mr Burr who was the only witness to the Applicant’s alleged misconduct gave evidence that his estimation of the speed travelled by the Applicant being between 30km and 40 km was based on “the body roll and the noise” of his car. 5 As previously discussed this evidence is questionable.

[24] I do not have the confidence that the employer can prove that the Applicant was travelling at a speed in the vicinity of 30-40 km per hour. I am mindful of what Dixon J said in Briginshaw v Briginshaw 6:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

[25] The Applicant gave evidence that he was travelling at about 7 or 8kph whilst driving along the roadway.

[26] The Commission in the presence of both parties had the opportunity of visiting the Respondent’s site to view the roadway leading to the employee car park. The first occasion was about 10am on the first day of hearing and the second occasion was at 8pm on the same day. What was obvious to the Commission and noted by the Respondent’s representatives was that vehicles were observed travelling on the roadway at speeds which appeared to be in excess of the 10kph speed limit.

[27] The Commission has real doubts as to the veracity of the Applicant’s evidence that he was travelling at 7 or 8kph. Exhibits R5 and R6 show the speedometer in the Applicant’s car. There is no digital display of the vehicles actual speed.

[28] The truth of the matter of the speed of the Applicant’s car lies somewhere between the Applicant’s evidence and the evidence of Mr Burr and Mr Bittner. The Applicant acknowledged in his witness statement, Exhibit A1, that on Monday 30 March 2015 when interviewed by Mr Dave Woolven, the Acting Warehouse Supervisor about the incident on the preceding Friday evening he said: “I might have been going a bit quick but how could I be speeding when there are two speed humps in place?” The Applicant answered a question from the Commission as follows:

“THE COMMISSIONER: How do you assess seven or eight Ks on a speedometer that goes from zero to 260 where it would be a very small gap between zero and 10?  How do you know it was seven or eight?---MR STEPHENSON: I was aware that I wasn't - as I said, I wasn't aware of - I didn't look at my speedometer, but I was aware of my surroundings. And like I just said, I might have gone a little bit quick, I was seven or eight Ks.” 7

[29] For the Applicant to describe “a little bit quick” as 7 or 8kph must be accepted as a concoction to explain away the comment made on 30 March 2015. It is far more plausible to accept that when the Applicant admitted to Mr Woolven that he “might have been going a bit quick but how could I be speeding when there are two speed humps in place” he was accepting that he was exceeding the 10kph speed limit but not excessively so.

[30] The Commission accepts that on the balance of probabilities that the Applicant was driving at a speed greater than the 10kph speed limit.

[31] Even if the Applicant travelled on the roadway at a speed in excess of 10km, is this a valid reason for dismissal?

[32] In the context of the facts of the present matter mere breach of the 10kph speed limit would not constitute a valid reason for dismissal.

Continuing safety breaches

[33] The conduct of the Applicant on the evening of 27 March 2015 was considered by the Respondent in the context of previous safety breaches and a reason for the dismissal of the Applicant was the existence of previous safety breaches. Whilst the letter of termination refers to “previous safety breaches” as if there were several, the Respondent only identified one previous safety breach committed by the Applicant.

[34] In December 2014 the Applicant was involved in a collision between his forklift and another forklift which was stationary at the time. The incident was summarised in the witness statement of Ms Johansen, 8 the Respondent’s People and Organisation Manager of Operations at Bairnsdale as follows:

“14. Mr B (name redacted) confirmed that his forklift was stationary at the time of the incident and that he did not hear Mr Stephenson beep the horn on his forklift as he turned the corner (which was standard operating procedure in such a scenario). Mr B informed me that he considered that the accident was due to Mr Stephenson's failure to concentrate as he turned the corner.

15. During the investigation, Mr Stephenson admitted that he should have been travelling more slowly at the time of the incident, that he did not see Mr B when conducting visual checks before turning the corner and that he should have looked more carefully before entering the aisle in which Mr B was stopped.

16. Ultimately, we concluded that the collision on 10 December 2014 was a result of Mr Stephenson operating the forklift in an unsafe manner. This was a serious breach of the Code of Conduct and OH&S Policy.”

[35] The Respondent considered the conduct of the Applicant in driving his forklift in an unsafe manner to constitute a serious safety issue and for which the Applicant was given a Final Formal Warning.

[36] The only clear link between the unsafe driving of a forklift incident and the exceeding of the speed limit on the roadway incident is the Final Formal Warning.

[37] The Respondent drew attention to the decision of Booth C in Dent v Halliburton Australia P/L 9 and contended that there was a direct parallel between the circumstances in that matter and the circumstances in the present matter. Whilst there are some parallels between that case and the present matter there are significant differences between the factual circumstances in the two matters and these differences are very clear and outweigh any similarities.

[38] The evidence establishes that compliance with the speed limits on the internal roadway within the Respondent’s site was brought to the attention of employees and that some disciplinary action had been taken against employee’s who were found to have breached the speed limit. Equally it was clear that no employee had been dismissed for breaching the 10kph speed limit 10 and, as the Commission and the parties saw, both an outgoing semi-trailer and employee cars travelled in excess of the 10kph speed limit with apparent impunity.

[39] Whilst it is clear that the Applicant engaged in two breaches of safety rules the continuity between the two events only exists because there are two safety breaches. There is no continuity in relation to the nature of the breaches. There is no continuity in relationship to the seriousness of the breaches. There is no continuity in relation to the performance of work of the Applicant. To the extent that a reason for the dismissal was “continuing safety beaches” that reason, on its own, does not provide a valid reason for the dismissal of the Applicant.

The Final Warning

[40] The termination letter made it very clear that a reason for the dismissal of the Applicant was that he had received a Final Formal Warning. The Applicant had been issued with a Final Forming Warning from the Respondent in relation to the unsafe operation of a forklift on 10 December 2014. The Final Formal Warning letter recounted the incident and continued with the following:

“The unsafe operation of a forklift will not be tolerated and is a serious breach of the Company OHS Policy and Bairnsdale Code of Conduct. During our meeting we agreed that the following action will be implemented in order for the above issue to be resolved:

• Prior to operating a forklift on site again, you will complete a targeted training program with regards to the safe operation of forklifts. The training program will include a competency assessment

The Company is committed to taking all reasonable measures to ensure satisfactory conduct and performance by employees. If you feel there is any further support that Patties can offer to assist you with meeting the expectations listed above, please discuss this with a member of the P&O team.

This letter is a final formal warning in regards to the performance issues listed above. This warning will last for a period of six months and will be kept on your personal file. I strongly recommend that you endeavour to improve your performance in this area without delay. I encourage you to discuss with your supervisor or a member of P&O any further support that you feel you need to achieve the expected outcomes listed above. Further breaches of the Company OHS Policy and Bairnsdale Code of Conduct will lead to further disciplinary action which will result in termination of your employment with Patties Foods Ltd.” 11

[41] All but the last sentence of the Final Formal Warning relate to the Applicant’s driving of forklifts. The original conduct complained of, the retraining, the warning itself, the future expectations on the Applicant and the offer of further support, all relate to the Applicant in his role as a forklift driver.

[42] Critically, the final sentence of the Final Formal Warning goes beyond the forklift driving activities of the Applicant and extends to any “breaches of the Company OHS Policy and Bairnsdale Code of Conduct” and mandates the action that would occur for any “breaches of the Company OHS Policy and Bairnsdale Code of Conduct”.

[43] The Respondent bound itself and the Applicant to a single outcome for any “breaches of the Company OHS Policy and Bairnsdale Code of Conduct” committed by the Applicant and that outcome was termination of employment.

[44] The Respondent introduced into evidence its Disciplinary and Termination Policy, 12 which contains the following headings:

1. Policy Statement

2. The Formal Disciplinary Process

2.1 Counselling/Verbal Warning

2.2 Written Warnings

2.3 Suspension and Termination for Breach of Code of Conduct

2.4 Termination on grounds of Poor Performance

3. Serious Misconduct/Summary Dismissal

4. Resignation

5. References

[45] Section 2.3 of the Disciplinary and Termination Policy of the Respondent states:

“2.3 Suspension and Termination for Breach of Code of Conduct

When the above warnings and counselling procedures have failed to result in the achievement of satisfactory improvement or when a serious violation of the Patties Foods Code of Conduct has occurred, suspension or termination may result. The Manager may put the employee on notice that any further misconduct during a specified period of time will result in termination. Suspension (with pay) may occur if it is alleged that an employee has engaged in an act of serious misconduct and Patties Foods would prefer the employee to be away from the workplace during investigations.” 13

[46] The relationship between Exhibit R11 and the termination letter, Attachment SJ4 to Exhibit R8, was explored by the Commission with Ms Johanesen, People and Organisation Manager of Operations for the Respondent:

“The Commissioner: If you go to paragraph 2.3 in the policy.  I’ll start off with the policy. The third line of paragraph 2.3, no, the fourth line, there’s a sentence that reads:

The manager may put the employee on notice that any further misconduct during a specified period of time will result in termination.

The Commissioner: Is that the basis upon which there is a paragraph in SJ4, immediately above your signature?---Ms Johanesen: Yes.

The Commissioner: So the paragraph directly above your signature in SJ4 is an example of the manager putting the employee on notice that any further misconduct during this specified period of time will result in termination?--- Ms Johanesen: Yes.

The Commissioner: Now, the paragraph in SJ4 reads, and it’s the fifth line, the sentence reads:

Further breaches of the company OHS policy and Bairnsdale code of conduct will lead to further disciplinary action which will result in termination of your employment with Patties Foods Limited.

The Commissioner: That is the warning that is consistent with the policy being given to the applicant?--- Ms Johanesen: Yes.

The Commissioner: Both the policy and the warning make it clear that any breach will lead to termination?--- Ms Johanesen: Yes, they do.

The Commissioner: Is that the intention of the company in having the policy and in giving the warning that any breach, regardless of size or importance, any breach will lead to termination?--- Ms Johanesen: Yes, I believe so.” 14

[47] The effect of the Final Formal Warning was that any breach of the Code of Conduct, no matter how minor or how serious would, if found to have occurred, result in the termination of the Applicant. In the present matter it was irrelevant if the Applicant was driving at 30 or 40kph in a 10kph speed zone or if the Applicant was driving at 11kph in a 10kph speed zone, the outcome would be the same – termination of employment.

[48] The Applicant conceded in his evidence that he understood the nature of the Final Formal Warning and in particular that he understood the consequence that would flow from any further breach of the Code of Conduct. The Applicant didn’t agree with either the giving of the Final Formal Warning or the consequence that would flow from any further breach of the Code of Conduct but he understood what the Respondent intended. 15

[49] The Final Formal Warning does not of itself provide a valid reason for the dismissal of the Applicant. By predetermining the outcome of any further breach by the Applicant of the Respondent’s Code of Conduct the Respondent was creating a reason for dismissal which simply did not have to be defended nor did any resultant dismissal have to be rationalised or explained or justified. Dismissal was simply going to occur. The very fact that the Respondent bound itself to dismiss the Applicant if he engaged in further breach of the Code of Conduct deprives this reason for dismissal from having any validity.

Whether the person was notified of that reason - s.387(b)

[50] It is clear from the evidence of the Applicant, and this was not challenged by the Respondent, that the Applicant was notified of the reason for his dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person - s.387(c)

[51] The Applicant was given an opportunity to respond to the reasons relied on for the dismissal and there was no refusal to allow a support person.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[52] The Applicant was supported by Rob Dent, union delegate at the meeting on 31 March 2015.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal - s.387(e)

[53] This criteria is not relevant as the Applicant’s dismissal was for misconduct and not unsatisfactory performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal - s.387(f); and

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal - s.397(g)

[54] Patties Foods is a large enterprise with dedicated human resources expertise available and with an extensive and comprehensive policy framework in which it operates.

Any other matters that the FWC considers relevant - s.387(h)

[55] As discussed earlier it is clear that the outcome for the Applicant was always going to be dismissal once the Respondent found him guilty of having breached the 10kph speed limit on the roadway to the employee car park. The Respondent, through both its Disciplinary and Termination Policy and the Final Form Warning, relieved itself of the need to look at and take into account all of the circumstances of any breach of the Code of Conduct by the Applicant. The Respondent, through both its Disciplinary and Termination Policy and the Final Form Warning, mandated an outcome, namely dismissal. No extenuating circumstances were considered, no issues of proportionality were considered, the absence of any link with the conduct leading to the Final Formal Warning was not considered. It was impossible for any disciplinary action other than dismissal to have been applied to the Applicant for exceeding the 10kph speed limit on the roadway to the employee car park.

[56] By mandating the outcome of dismissal for any further breach of the Code of Conduct the Respondent was blinding itself to the possibility that dismissal for a breach of the Code of Conduct would be a harsh outcome for the Applicant, or that dismissal would be an unjust outcome for the relevant breach of the Code of Conduct or that it would be unreasonable to dismiss the Applicant for a particular breach of the Code of Conduct.

[57] In other words any consideration as to whether the dismissal of the Applicant was fair or unfair was not going to occur because there was only one possible outcome if the Applicant committed a further breach of the Code of Conduct and that was dismissal.

[58] Unlike the Respondent the Commission has to be satisfied as to whether the dismissal of the Applicant is or is not either harsh or unjust or unreasonable or any combination of the three.

[59] The concept of what is harsh, unjust or unreasonable was neatly exampled by the decision of McHugh and Gummow. JJ in Byrne v Australian Airlines Limited, 16 at para 128:

“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.”

[60] I am satisfied, having taken into account each of the relevant criteria of s.387, that the dismissal of the Applicant was harsh and unjust and unreasonable.

[61] The dismissal was harsh because the punishment in this case simply didn’t fit the crime. It was extremely harsh to dismiss the Applicant and deny him his livelihood because of an inflexible position adopted by the Respondent.

[62] The dismissal was unjust because once the Respondent mandated dismissal as the penalty for any further breach of the Code of Conduct the Respondent was never going to consider whether dismissal was the appropriate penalty or whether a penalty less than dismissal was more appropriate. The Applicant was denied the opportunity of addressing the issue of penalty for a breach of the Code of Conduct.

[63] The dismissal was unreasonable because in all of the circumstances of the matter the level of breach of the Code of Conduct committed by the Applicant did not warrant or justify dismissal when other employees had breached the Code of Conduct in the same way without the same penalty being imposed.

Remedy

[64] The provisions of Division 4 of Part 3-2 of the Act deal with remedies for unfair dismissal.

[65] Section 390 provides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[66] The Commission is satisfied that the Applicant was protected from unfair dismissal and that the Applicant has been unfairly dismissed.

[67] The Applicant seeks the remedy of reinstatement. The Respondent opposes reinstatement.

[68] The decision as to whether any remedy should be granted by the Commission is at the discretion of the Commission. S.381 sets out the objects of Part 3-2 of the Act and is as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and
(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[69] Whilst the Commission has discretion to not grant a remedy, the very language of s.381 suggests that where a dismissal has been found to be unfair then a remedy will normally follow. In the present matter having regard to all of the circumstances of this matter I am of the view that it is appropriate that I exercise the discretion available to the Commission to order a remedy.

[70] As s.390 makes clear the primary remedy is reinstatement and compensation cannot be considered as a remedy unless the Commission decides that reinstatement is an inappropriate remedy. In all of the circumstances of this matter I am satisfied that reinstatement is an appropriate remedy in this matter.

[71] The witness statement of Ms Johanesen as filed with the Commission contained the following paragraph:

“Reinstatemnet (sic) not appropriate

58. If Mr Stephenson is considered to have been unfairly dismissed, reinstating him would be inappropriate. This is because Mr Stephenson has offered no indictation (sic) that he understands the seriousness of his conduct or that he is willing and able to comply with all health and safety requirements in the future. On that basis, Patties is not confident that Mr Stephenson can perform his duties in a safe manner.”

[72] Mr Dircks for the Applicant objected to the admission of this paragraph and after consideration the paragraph was excluded from the witness statement. However the Commission advised that the issue of the appropriateness of reinstatement could be explored with the witnesses by Ms Forsyth, the Respondent’s counsel. 17 Nothing was led from any of the Respondent’s witnesses which dealt with the inappropriateness of reinstatement as a remedy. The Respondent’s case as to the inappropriateness of reinstatement was limited to four paragraphs in its written submissions and to a very brief closing submission from the Respondent’s counsel.18

[73] Where an employer opposes reinstatement because of an alleged loss of trust and confidence it is necessary for the employer to lead some evidence to support its contentions. A Full Bench in Nguyen v Vietnamese Community in Australia, 19 summarised the law on this point as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. 
● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. 
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. 
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. 
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[74] In the present matter the contentions of the Respondent that there has been a loss of trust and confidence in the Applicant are unsupported by any evidence. In the present matter I am satisfied that a sufficient level of trust and confidence can be restored so as to make the employment relationship viable and productive. In the absence of evidence from the Respondent I have had regard to the evidence of the Applicant. 20

[75] Section 391 provides as follows:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[76] The generic nature of the Applicant’s position as a Storeman Level 3 means that there appears to be no reason why the Commission should not make an order under s.390(1)(a) to reappoint the Applicant to the position in which the Applicant was employed immediately before the dismissal. An order to this effect will be issued.

[77] The Applicant has also sought an order under s.390(3) for lost pay. Having considered all of the circumstances of this case I am satisfied that it is appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost because of the dismissal. The Applicant was employed on night shift and there is a night shift penalty provided by the relevant enterprise agreement. However as the Applicant has not in fact suffered any of the disabilities associated with night shift work since his dismissal I will limit the order for lost pay to payment of the ordinary time rate of pay without shift penalties.

[78] I am satisfied that an order to maintain the Applicant’s continuous service pursuant to s.391(2) should be made.

[79] The orders for reinstatement, lost remuneration and continuous service will be issued with these reasons and these orders will have an operative date 22 days after the date of these reasons.

COMMISSIONER

 1   [2015] FWC 5781.

 2   PR922612.

 3   Exhibit SJ5 at page 2.

 4   Exhibit R12.

 5   Transcript PN2492-2493.

 6 (1938) 60 CLR 336 at 361 – 362.

 7   Transcrip at PN868.

 8   Exhibit R8.

 9   [2014] FWC 5692.

 10   Transcript at PN2030.

 11   Exhibit R8, attachment SJ-4.

 12   Exhibit R11.

 13   Ibid at 2.3.

 14   Transcript at PN2294 – PN2302.

 15   Ibid at PN739 – PN740.

 16 [1995] HCA 24.

 17   Transcript at PN1958.

 18   Ibid at PN3457 – PN3458.

 19   [2014] FWCFB 7198.

 20   Transcript at PN1658 – PN1661.

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