Helene Adams v SUEZ Recycling and Recovery (No.1) Pty Ltd

[2017] FWC 2825

[2017] FWC 2825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helene Adams
v
SUEZ Recycling & Recovery (No.1) Pty Ltd
(U2016/15243)

DEPUTY PRESIDENT DEAN SYDNEY, 31 JULY 2017

Application for an unfair dismissal remedy.

[1] On 21 December 2016 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was filed by the Transport Workers’ Union of Australia (TWU) on behalf of Ms Helene Adams for a remedy in respect of her alleged unfair dismissal by SUEZ Recycling & Recovery (No.1) Pty Ltd (SUEZ). Ms Adams was dismissed on 8 December 2016 following an investigation into allegations of misconduct which resulted in a finding by Suez that she had engaged in the unauthorised removal of materials from the work site, including electronic waste and scrap metal. The misconduct was referred to as ‘scavenging’ in the evidence and throughout the proceedings.

[2] The matter was the subject of conciliation on 9 February 2017 but remained unresolved. It was then listed for arbitration in Sydney on 11 April 2017. Final written submissions were provided by the parties by 11 May 2017.

[3] At the hearing, Ms de Plater of the TWU appeared for Ms Adams and Mr Dunne appeared, with permission, for SUEZ.

[4] Ms Adams gave sworn evidence on her own behalf. Statements provided by the following persons in support of Ms Adams’ application were admitted into evidence without being required for cross-examination:

a. Ms Traecy Martin (Weighbridge Operator);

b. Mr Michael Williams (Driver);

c. Mr Craig Ramaker (Side Loader Operator);

d. Mr Stephen Burley (Driver);

e. Mr Jeffrey Oudsen (Side Arm Operator); and

f. Mr Grant Rodger (TWU Official).

[5] The following witnesses provided statements and gave sworn evidence on behalf of SUEZ:

a. Ms Sheree Dalton (Weighbridge Operator);

b. Mr Gavin Burns (Site Supervisor);

c. Mr Rupeni Muwai (Machine Operator);

d. Mr David Muir (Site Manager);

e. Mr Steven Marcon (Divisional General Manager);

f. Ms Tarin Davis (Human Resources Coordinator);

[6] For the reasons set out below, I find that Ms Adam’s dismissal was for a valid reason and was not unfair, and accordingly this application must be dismissed.

Background

[7] Ms Adams commenced employment with SUEZ as a weighbridge operator in November 2014 on a casual basis. She became a permanent part-time employee in January 2015 and was engaged as a Grade 3 Operator. In her role, Ms Adams was involved with weighbridge operations and other floor duties. She was based at Belrose Resource Recovery Centre (RRC) but was required to work at other locations.

[8] The RRCs operated by SUEZ collect many types of material including domestic kerbside waste, council & commercial waste, e-waste, oil, batteries, cardboard, plastics, metal and garden organics. According to SUEZ, after waste material is deposited at the RCCs it becomes the property of the company and is subsequently recycled, reused or disposed of by SUEZ for profit.

[9] On 14 November 2016, Ms Adams had a verbal altercation with Mr Muwai, a machine operator, at Ryde RRC. Mr Muwai reported the incident to the Site Manager, Mr Muir, by telephone and later submitted a written letter of complaint. It was alleged in Mr Muwai’s complaint that Ms Adams had been scavenging items stored onsite then removing them from the site without authorisation and that she had been involved in this practice for some time.

[10] Following Mr Muwai’s complaint, SUEZ conducted an investigation into the allegations against Ms Adams. On 23 November 2016, Ms Adams was required to attend a meeting with Mr Muir and Mr Marcon. Whilst the terms of the discussion that took place between the parties at the meeting are disputed, it was not disputed that the conclusion of the meeting, Ms Adams was handed a letter which confirmed her suspension from duties on full pay from that day to allow SUEZ to complete an investigation. She was told to attend a further meeting on 25 November 2016 to which she could bring a support person.

[11] The meeting scheduled for 25 November 2016 was later postponed to 29 November 2016. Ms Adams attended with Mr Rodger of the TWU. Also attending were Mr Muir, Mr Marcon and Ms Davis. Ms Adams was told during that meeting that there were allegations made against her that she had breached SUEZ’s policies and procedures by engaging in scavenging. Ms Adams was also told that there was video surveillance of her scavenging materials from Ryde RRC. The meeting ended after it was concluded that Ms Adams would be given a show cause letter in relation to the allegations.

[12] The show cause letter provided to Ms Adams on 30 November 2016 says, in part:

“This letter confirms as of Wednesday 23 November 2016, you have been suspended on full pay pending an investigation that was undertaken by SUEZ which examined the allegations made regarding the scavenging of waste.

As discussed with you yesterday, the investigation has revealed your involvement in activities which are in breach of SUEZ policies and procedures, SafeWork NSW requirements, and regulations concerning the tracking, movement and handling of waste. These activities include, but are not limited to; numerous occasions of scavenging waste, failing to take reasonable care for you own health and safety and putting the business at risk of a possible breach of legislative conditions.

You were presented with an opportunity at the meeting held 29 November 2016 to provide a verbal response and you are now presented with the opportunity to provide a written explanation regarding the findings of the investigation. You are required to show just cause in writing regarding your ongoing future employment at SUEZ and why you engaged in these activities.

Please send your response to me no later than close of business today.

You will continue to be suspended on full pay where you will be required to meet with Steve Marcon and myself on Friday 02 December 2016 at 12:00pm at Chullora Cottage … Please do not hesitate to bring a support person to this meeting.

Should you fail to attend this meeting without notifying me, a decision regarding your continued employment with SUEZ may be made in your absence …” 1

[13] On behalf of Ms Adams the TWU requested an extension of time to provide a response. A revised show cause letter was later given to Ms Adams which allowed her to respond by 1 December 2016. Ms Adams provided a detailed written response on 1 December which, in summary, states:

a. ‘I made a serious error in judgement & I will never do it again. I did not take the No scavenging as a serious issue. To expand further requires me to be a whistle blower & at this time I am not comfortable doing that. There was no malice, deception or even financial reward in my actions. I scavenged openly believing I was doing no wrong.’

b. If she had known that scavenging was wrong, she would not have done it.

c. The legitimate reasoning and legislative obligations as to why scavenging is not allowed was not distributed or contained in any policy or correctly ‘tool boxed’ to ensure employees understood the ‘No scavenging’ rule.

d. Scavenging is a culture of the business and she had seen others including management employees scavenging materials before.

e. She was unable to locate a scavenging policy and unable to find a definition of scavenging in any SUEZ policy.

f. She had not received any formal training in SafeWork NSW requirements by SUEZ or previous companies.

g. ‘My actions as seen on the security footage were stupid. Again it is no excuse yet again it is a practice I have copied from others at many sites.’

h. Her actions were ‘an example of how SUEZ Procedures, policies and safework requirements can be breached unconsciously and innocently unaware of potential consequences. We are all human and make mistakes.’

i. She had seen breaches of other safety rules at the sites but no one had been disciplined.

j. She was ambushed into a meeting on 23 November 2016 with no warning and afforded no support person. She was not informed of the details of the alleged misconduct. ‘At no time at the meeting was I told I was being accused of scavenging. … At this meeting the real allegations was alluded to.’

k. Whilst being asked not to make contact with other employees during suspension, SUEZ did not afford her the same confidentiality. She had received numerous calls and messages from other staff as they were told that she was stood down.

l. She had been singled out for the activity and this was unfair.

m. Employees were given multiple forms and policies to sign without explanation or training. ‘Toolboxes at most sites are just sign this document. Toolboxes are commonly referred to as the tick & flick throughout Infrastructure & Collections as it is something you are made to sign. There is no actual toolbox or employee participation.’

n. Instances of fraud and theft by another employee were substantiated and the person was not disciplined and instead was awarded with a full time position.

o. She is an honest, hardworking and conscientious employee and has never received any warning nor been counselled about inappropriate behaviour or actions in the past.

p. She would participate in retraining and counselling and should be given the same chance as other employees.

[14] Further meetings were held on 2 and 6 December 2016. Prior to the meeting on 6 December, Ms Adams sent an email to Mr Marcon in which she indicated that she could identify other employees who regularly scavenged; reiterated that she is an honest and trustworthy employee and stated that she would not scavenge again. At the meeting on 6 December, Ms Adams was told that SUEZ required more time to consider her response and would meet with her again on 8 December 2016.

[15] At the final meeting on 8 December 2016, Ms Adams was issued with a letter which stated that her employment was terminated for misconduct with immediate effect.

Contentions of the parties

[16] According to SUEZ, the decision to terminate Ms Adams’ employment was on the following basis 2:

a. video evidence obtained from the CCTV footage and Ms Adams’ own admission that she had engaged in scavenging which was prohibited by SUEZ;

b. the fact that scavenging presented significant safety issues and risks to herself and potentially other employees;

c. she was aware of the prohibition on scavenging despite her denial, as she had completed the Induction approximately seven months before her scavenging was discovered, and had attended regular tool box talks; and

d. her conversation with Ms Dalton on 23 November 2016 confirmed not only that she was aware that scavenging was prohibited but also that she was not honest during the meeting on 23 November 2016 and during the subsequent investigation and disciplinary process.

[17] SUEZ contended that Ms Adam’s actions in scavenging were contrary to its lawful instructions to her. It argued that the inherent safety risks her actions posed and her lack of honesty during the investigation and disciplinary process resulted in a breakdown of trust and confidence, and this provided a valid reason for her dismissal.

[18] Ms Adams put forward a number of matters in her defence:

a. The importance of the ‘no scavenging rule’ was not ‘stressed’ or otherwise emphasised to employees of SUEZ. There was no reference in the Induction that any such breach would result in termination of employment.

b. She had never attended a toolbox talk or was otherwise ‘tool boxed’ on the topic of scavenging.

c. Although ‘no scavenging’ is part of the Site Safety Rules, other Site Safety Rules were often not adhered to by staff and management without consequence. There is no apparent reason why a breach of the ‘no scavenging’ rule would attract the penalty of termination whilst breaches of other rules would not.

[19] Ms Adams further contended that the real reason for her dismissal was her role as a union delegate. Ms Adams said that SUEZ was hostile towards TWU delegates and she believed she was dismissed for being an outspoken delegate.

The evidence

[20] Although I have considered all the evidence and submissions presented by both parties, the matters set out below are confined to the issues I need to determine.

Scavenging

[21] SUEZ’s definition of ‘scavenging’ is set out in ‘Unit 2: Site Safety Rules’ in SUEZ’s National Safety and Environment Induction (the Induction) as ‘the removal of material to retain it for personal use or benefit’. It is one of the Site Safety Rules that ‘Scavenging from any waste stream and retaining it for personal use or benefit is not permitted’. ‘Scavenging of waste’ is also listed as one of the offences in SUEZ’s Site Rules Warning Policy 3 which warrants a warning.

[22] Mr Marcon said in his statement 4 that scavenging for personal benefit or use is prohibited by SUEZ through instructions contained in the Induction and reinforced by ‘tool box talks and site signage’. He said that after items are deposited at the RRC they become SUEZ’s property. He also said that there are significant safety risks associated with scavenging which SUEZ must avoid.

[23] Mr Marcon gave reasons why scavenging by employees is prohibited. Those reasons include:

a. Whilst items deposited at the RRC may be considered ‘waste’, they are in fact material which may be recycled or otherwise processed by SUEZ;
b. SUEZ can generate revenue from the material (this is the case with steel).
c. There are serious safety issues associated with scavenging.
d. There are chains of custody issues with respect to product destruction as per agreement and/or commercial arrangements which SUEZ has entered into with its clients.

[24] Ms Adams argued that she had seen other staff including management engage in scavenging and believed the practice was commonplace. She gave examples that management was aware of such practice in the past. She stated that she had previously been offered scavenged items by other staff which she refused to take as she had ‘no use for it’.

[25] Ms Adams’ contention that scavenging was a common practice was broadly supported by Ms Martin, Messrs Williams, Ramaker, Burley and Oudsen who all claimed in their statements 5 that they were not aware of any policy of SUEZ dealing with scavenging. Ms Adams and her witnesses gave examples of what they said to be scavenging by other staff, including management.

[26] On the other hand, Mr Muir stated that during his employment with SUEZ, the prohibition against scavenging was enforced if SUEZ became aware of it and was able to establish that scavenging had taken place.

[27] It was stated by Mr Marcon that there was a distinction between an employee taking or retaining items for personal use and benefit, which is not permitted, and items being identified and used by SUEZ on that site. Mr Marcon said that some of the examples raised were not examples of scavenging as they did not involve unauthorised removal of items from SUEZ’s sites, or retention by employees for personal use or benefit.

[28] In responding to the assertions made by Ms Adams and her witnesses that other employees who had scavenged were not disciplined, SUEZ contended that it can only take action where it becomes aware of, and can substantiate, that scavenging has taken place.

The Investigation Process and Report

[29] Mr Muir gave evidence that after Mr Muwai’s complaint, he reviewed some CCTV footage which showed that Ms Adams had placed several items of waste from the metal yard aside for no operational reasons. This suggested to him that she was segregating those items for later removal from the site.

[30] Mr Muir said that as a result of Mr Muwai’s complaint, and the CCTV footage which seemed to support the allegation, he decided to further investigate the matter. He then contacted Mr Marcon and advised him about the complaint by Mr Muwai and the allegation against Ms Adams. He was asked by Mr Marcon to investigate and report back to him.

[31] After reviewing the CCTV footage of a number of days during October and November 2016, Mr Muir formed the view that Ms Adams had engaged in scavenging on a regular basis.

[32] After the meeting on 23 November 2016, Mr Muir prepared an Investigation Report 6 (the Report) which comprised a written report together with CCTV footage and photographs. Mr Muir said that apart from scavenging, the Report also revealed that Ms Adams was engaged in numerous unsafe activities whilst scavenging including:

a. using a crate to climb up to a waste bin;

b. precariously balancing over a waste bin to scavenge material; and

c. adopting unsafe methods of lifting heavy and awkward objects.

[33] Mr Muir said: “The element of the risk of safety that Helene exposed herself, and potentially other employees, was a factor that I considered important in subsequent meeting with Helene regarding her conduct.” 7

[34] Ms Adams was cross-examined about the safety issues arising from her scavenging. When shown a photo (included in the Report) taken from the CCTV footage of her climbing up and balancing on the edge of a large waste bin, she agreed that it was ‘a totally unsafe operation’, and it would not have taken much for her to ‘lose balance, topple forward and land in the bin’. She also agreed that had she fallen, she would have potentially put herself and others (who may have had to come to her assistance) at risk of injury.  8

[35] In cross-examination, Ms Adams was referred to her email of 6 December 2016 in which she stated that ‘I have broken the scavenging site rule and often recklessly’. She agreed that this particular unsafe act of climbing up and balancing on the edge of a large waste bin was an example of the reckless behaviour she had referred to in her email. She further agreed that there was no legitimate work role or activity that would have required her to put herself in such an unsafe position. 9

[36] Ms Davis, Mr Muir and Mr Marcon all gave evidence that the details of the Report were discussed at the meeting on 29 November and that at no time during the meeting had Ms Adams raised any issue with respect to the video footage.

[37] During further cross-examination, Ms Adams also conceded 10 that:

a. there was a large sign at the front entrance to RRC that included the words ‘no scavenging’;
b. that the investigation had revealed that she had covered a CCTV camera located on site with a plastic bag which had the effect that the camera could no longer record; and
c. prior to her dismissal, she was aware that another employee was disciplined for scavenging.

Meeting on 23 November 2016

[38] As noted above, the parties are in dispute as to what took place during and after the meeting on 23 November 2016.

[39] Ms Adams says that the allegation of scavenging was not raised at the meeting and the letter handed to her at the end of the meeting did not specify the nature of the investigation.

[40] Mr Muir and Mr Marcon both gave evidence that apart from having discussions about Mr Muwai’s complaint, Ms Adams was also asked at the meeting whether she had removed material from the site and Ms Adams responded that she had not done so. Mr Marcon asserted that he said to Ms Adams during the meeting words to the effect of: ‘so you had no intention of removing these items off site and you have never removed any items from site?’ to which Ms Adams responded words to the effect of: ‘That’s correct’ and ‘I have never taken anything from site’.

[41] Ms Adams denied such an exchange took place. She claimed that her comments were by way of explanation to Mr Marcon of what she had planned to do with a Perspex box which Mr Muwai had crushed. Accordingly, her comments were in the context of a discussion about her altercation with Mr Muwai and not in response to any direct allegations or questioning about whether she had removed items from site.

[42] The parties are also in dispute as to the aspects of a conversation between Ms Adams and Ms Dalton at the weighbridge after the meeting.

[43] Ms Dalton stated in her statement that she had a conversation with Ms Adams after the November 23 meeting during which Ms Adams said that:

a. she was ‘busted for scavenging’;

b. ‘Rupeni had dobbed me in for scavenging’;

c. she was going to get the Union involved as she thought it was an unfair dismissal as she could name various other employees who have also taken items from across the majority of SUEZ sites;

d. she doesn’t know ‘whether to dump everyone else in it and save myself’.

[44] Ms Dalton said that Ms Adams then told her that she was not supposed to say anything to anyone with regard to the matter and that she should leave the site immediately. Ms Adams left the site about 15 minutes later. Ms Dalton later told Mr Burns and Mr Muir of her conversation with Ms Adams.

[45] While Ms Adams disagreed with the statement of Ms Dalton as to what was said in their conversation, she agreed in cross-examination that she did say words to the effect of ‘I think I’m getting into trouble for scavenging’ 11.

[46] Ms Adams also claimed that it was only after she had spoken with Ms Dalton that she opened the suspension letter and realised that she was not allowed to have discussions with other staff. She contends that she was not verbally told at the meeting to keep the discussion confidential.

[47] SUEZ disputed the claim of Ms Adams that she was not informed at the meeting on 23 November 2016 of the allegation of scavenging. SUEZ contended that Ms Adams would not have made the statement to Ms Dalton that she had ‘been busted for scavenging’ (or words to that effect) if she had not been given notice of allegations of scavenging at the meeting, and she did not think there was anything wrong with scavenging.

[48] SUEZ contended that the evidence of Ms Dalton was particularly important in establishing that:

a. the issue of scavenging was discussed at the 23 November meeting;

b. Ms Adams was aware that scavenging was prohibited; and

c. Ms Adams was therefore not honest at the meeting on 23 November.

National Safety and Environment Induction and Toolbox Training

[49] Employees of SUEZ are required to complete the Induction annually and receive a certificate upon successful completion.

[50] SUEZ submits that Ms Adams completed Inductions on 17 November 2014, 9 April 2015 and 17 April 2016 and therefore was aware that scavenging was prohibited conduct.

[51] Attached to Ms Davis’ statement 12 are copies of Induction Checklist dated and signed by Ms Adams on 30 March 2016 and 17 April 2016; E-Learning Certificate of Completion issued to Ms Adams dated 17 November 2014, 9 April 2015 and 17 April 2016.

[52] Ms Adams argued that although she had completed induction checklists during her employment, she only completed them by signing and dating in the required places and that she had never been taken through the induction by any person.

[53] Ms Adams says that the Induction training involved logging on to a website via an email received from SUEZ and by clicking through 41 pages of polices and rules. Ms Adams says that the reference to the removal of waste and the retaining of it for personal benefit being ‘not permitted’ comprised a single line in 41 pages of material and amongst other Site Safety Rules which included ‘appropriate clothing and footwear must be worn’ and ‘banning pets on site at any time’. Ms Adams argued that she had seen other employees breaking these rules by bringing a dog to the site and not wearing appropriate clothing and therefore she did not regard scavenging to be an issue that was taken seriously by SUEZ, despite the fact that it was referred to in the Induction.

[54] Ms Adams denied that the prohibition against scavenging was a topic regularly discussed at toolbox talks and says ‘there are occasionally Toolbox Talk Minutes which are left in the weighbridge for employees to sign’.

[55] In contrast, the evidence of SUEZ was that scavenging was discussed during toolbox meetings. Mr Muwai gave evidence that he recalled one occasion during a toolbox meeting where Ms Adams was present and scavenging was discussed.

Differential treatment

[56] Ms Adams asserted that she was treated differently to other employees who were previously found to have engaged in scavenging. Ms Adams said that she was aware of an employee at Artarmon site being given a written warning about scavenging and another who was given a letter of warning for scavenging and was made a site supervisor six months later at Chullora.

[57] In this regard, Mr Marcon gave evidence that the employee at Artarmon was not given a verbal or formal warning after allegations were made against him for scavenging. Mr Marcon said an investigation was carried out and during the course of the investigation the employee chose to resign rather than be dismissed by SUEZ. Mr Marcon said the second person referred to by Ms Adams was a site supervisor at the time he was given a written warning for scavenging and was not promoted to one six months later as asserted by Ms Adams. Mr Marcon also argued that the circumstances of the latter case were vastly different to Ms Adams’.

Submissions on behalf of Ms Adams

[58] In summary, the grounds relied upon by the TWU on behalf of Ms Adams that there was not a valid reason for her dismissal are:

a. Ms Adams had ‘openly and honestly’ admitted that she had engaged in scavenging but argued that this conduct is engaged in on a widespread and common basis by SUEZ employees including management, without interference despite management’s awareness of this fact.

b. Ms Adams had never received training or ‘tool boxing’ on the conduct nor did SUEZ have any applicable policy which dealt with the conduct.

c. The Commission would not be satisfied that the conduct so described constituted a valid reason to dismiss in circumstances where the conduct was engaged in on a widespread and common basis by employees and management of SUEZ.

d. The reason given for the dismissal was ‘capricious’ in the sense that there were no discernible rules with regard to the conduct and it could not have been predicted that engaging in such conduct would result in disciplinary action given that many employees engage in it on a regular basis with no ramifications.

e. Ms Adams’ dismissal was in reality a response to her being an outspoken TWU delegate.

[59] It was further submitted that even if the Commission found there was a valid reason, the dismissal was harsh, unjust and unreasonable for the following reasons:

a. Ms Adams was not given a full opportunity to respond prior to her dismissal.

b. Ms Adams was not allowed a support person at the meeting on 23 November 2016.

c. SUEZ’s handling of the disciplinary process with its procedural pitfalls fell short of the standard that could reasonably be expected of SUEZ in all the circumstances.

d. Ms Adams’ differential treatment compared to other employees, the impact of the dismissal on her personal and economic situation, her long and satisfactory work performance and history and the fact that termination was disproportionate to the conduct and therefore harsh. Ms Adams was not given a ‘fair go’.

e. Ms Adams has suffered financial and personal hardship as a result of her dismissal. She was dismissed shortly before Christmas and has been unable to find commensurate work and has experienced significant stress and difficulty sleeping as a result of the termination.

[60] The TWU relied on the case of Byrne v Australian Airlines Ltd 13in support of its submission that a termination of employment may be harsh because it is disproportionate to the gravity of the misconduct, and there were other options available to SUEZ other than the termination, including issuing a warning letter or directing Ms Adams to attend training.

[61] The TWU submitted that there is no evidence that an order for reinstatement would be inappropriate. There has not been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

[62] In the final written submissions made on behalf of Ms Adams, it was argued that despite Ms Adams engaging in the conduct of scavenging and doing so in a potentially unsafe manner, it did not constitute a valid reason for dismissal that would satisfy the requirement in s.387(a) of the Act.

Submissions on behalf of SUEZ

[63] SUEZ submitted that in deciding to terminate Ms Adams’ employment, it:

a. held five meetings with her;

b. commenced and completed an investigation into the allegations of scavenging;

c. allowed her additional time to respond to the show cause letter;

d. gave proper and due consideration to the responses given by her at the meetings, in her response to the show cause letter and her email of 2 December 2016; and

e. considered her conversation with Ms Dalton, and the lack of honesty she displayed in the investigation and disciplinary process.

[64] SUEZ argued that Ms Adams commenced employment as a casual employee with SUEZ and at the date of her dismissal on 8 December 2016 she had been employed for just over two years, a relatively short period of time. SUEZ rejected that Ms Adams had a ‘long and satisfactory work performance and history’ with SUEZ.

[65] SUEZ disputed Ms Adams’ submission with respect to the timing of the dismissal occurring just before Christmas being capricious and argued that it arose after the completion of the investigation and disciplinary process.

[66] SUEZ submitted that Ms Adams’ lack of honesty at the commencement of and during the investigation and disciplinary proceedings had resulted in a breakdown of trust and confidence in her.

[67] SUEZ submitted that the Report clearly revealed that Ms Adams engaged in regular and systematic scavenging, at least over the period of time revealed in the investigation. It also revealed significant safety issues and risks posed by Ms Adams’ activities.

[68] SUEZ submitted that the prohibition on scavenging was a lawful instruction from SUEZ to its employees. Ms Adams’ lack of honesty during the investigation and disciplinary process also provided a further valid reason for termination.

Consideration and Findings

[69] Ms Adams does not dispute that she engaged in scavenging as alleged by SUEZ, and so I am satisfied that the conduct occurred.

[70] I accept the distinction drawn by Mr Marcon between SUEZ utilising materials around its sites on the one hand, and the unauthorised removal of material by employees from site. In this case, Ms Adam’s was not authorised to remove the materials that she removed from the site, and obtained the materials in an unsafe manner.

[71] I accept that there are good and cogent reasons why scavenging is prohibited, not least of which is the importance of safety at work. I find that Ms Adam’s actions, as demonstrated by the photographs and CCTV footage that formed part of the Report, were unsafe and completely inappropriate. She put herself and potentially her colleagues at risk of injury.

[72] I accept Ms Adams’ evidence that she did not take the No Scavenging rule seriously. However, in my view this does not undermine or diminish the fact that she had engaged in prohibited conduct and was aware, or should have reasonably been aware, that her conduct was in breach of the site safety rules.

[73] I do not accept that Ms Adams’ actions were ‘an example of how SUEZ Procedures, policies and safework requirements can be breached unconsciously and innocently, unaware of potential consequences’. The evidence is clear that Ms Adams was aware of the policy but in her own submission, did not take the policy seriously.

[74] I am satisfied that the evidence of Ms Dalton, combined with that of Mr Muir and Mr Marcon, establishes that the issue of scavenging was discussed with Ms Adams during the meeting on 23 November 2016. Had it not been discussed, then in my view Ms Adams would not have raised it in the conversation between her and Ms Dalton shortly after the meeting concluded.

[75] Despite Ms Adams’ criticism of the disciplinary process, I am unable to discern any substantial procedural flaws in the investigation and disciplinary process. The allegations against Ms Adams were clearly set out in the show cause letter and at no time during the disciplinary process had Ms Adams claimed that she was not aware of the nature of the investigation. She made no request to be shown the CCTV footage.

[76] I am satisfied and find that SUEZ properly conducted the investigation process which substantiated the allegations against Ms Adams, and that it was reasonable to discipline Ms Adams for misconduct in breach of a lawful and reasonable policy.

[77] I accept and find that it is reasonable for SUEZ to expect its employees to familiarise themselves with all workplace rules. It was Ms Adams’ responsibility to ensure she read and understood any induction checklists before signing off on them. The suggestion that it was treated as a ‘tick and flick’ exercise is in my view no excuse for failing to comply with site rules.

[78] I am further satisfied that SUEZ has a legitimate interest in ensuring that all employees strictly comply with all safety rules. Given Ms Adams’ admission, it was open to SUEZ to consider the appropriate disciplinary sanction.

[79] I accept the evidence of Mr Marcon that SUEZ can only take action in relation to scavenging when it becomes aware of, and can substantiate, that scavenging has taken place.

[80] Based on the evidence before me, I cannot find that Ms Adams was singled out or otherwise treated differently for scavenging. The evidence of her witnesses that scavenging was common practice at the site does not assist Ms Adams in circumstances where the evidence supports a finding that SUEZ acted (and could only act) when it became aware of such conduct. Ms Adams failed to substantiate her claim that there are cases of differential treatment comparable to her circumstances.

[81] Finally, Ms Adams’ contention that she was dismissed for being a union delegate was also unsubstantiated.

Protection from Unfair Dismissal

[82] There is no dispute and I am satisfied that Ms Adams was protected from unfair dismissal at the time of the dismissal 14.

[83] I will now consider if the dismissal of Ms Adams was unfair within the meaning of the Act.

Was the dismissal unfair?

[84] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[85] There is no dispute that Ms Adams was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[86] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

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.

[87] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 15as 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.”

[88] In considering the criteria for assessing fairness, a Full Bench in Metro Quarry Group Pty Ltd v John Ingham 16, said:

“[24] The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is ‘a fair go all round’. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.”

[89] I am under a duty to consider each of these criteria in reaching my conclusion 17, which I now do.

Valid reason - s.387(a)

[90] SUEZ must have a valid reason for the dismissal of Ms Adams, although it need not be the reason given to Ms Adams at the time of the dismissal. 18 The reasons should be ‘sound, defensible and well founded’19 or justifiable on an objective analysis of the relevant facts, and should not be ‘capricious, fanciful, spiteful or prejudiced’.20

[91] The question I must address here is whether there was a valid reason for the dismissal related to Ms Adams’ conduct (including its effect on the safety and welfare of other employees).

[92] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred 21. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it22.

[93] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason 23.

[94] In this case, Ms Adams was dismissed for prohibited conduct which she admitted she had engaged in. It is clear from the evidence that Ms Adams failed to comply with SUEZ policy. Further, the CCTV footage showed that Ms Adams’ conduct posed a serious threat to her own safety which clearly contravened safety rules.

[95] I am satisfied that it was a lawful and reasonable direction requiring Ms Adams to be familiar with the company policies and the failure of Ms Adams to comply with a site safety rule constitutes a valid reason for her dismissal.

[96] I do not accept Ms Adams’ evidence that she was not provided with support in understanding company policies and therefore not reasonably bound by them.

[97] I am satisfied and find that Ms Adams failed to comply with a lawful and reasonable instruction that is set out in company policies.

[98] I have given careful consideration to all of the evidence in this matter. In light of all the findings set out in this decision, I am satisfied and find that there was a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[99] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 24 in explicit terms25 and in plain and clear terms.26 In Crozier v Palazzo Corporation Pty Ltd27 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 28

[100] Ms Adams was provided with the show cause letter of 30 November 2016 setting out the details of the allegations, being: ‘activities include, but are not limited to; numerous occasions of scavenging waste, failing to take reasonable care for you own health and safety and putting the business at risk of a possible breach of legislative conditions’.

[101] There is no doubt that Ms Adams was aware of the issues to be discussed at the meetings on 2, 6 and 8 December 2016.

[102] Ms Adams was given the opportunity to respond and attended several meetings. She was also represented by the TWU throughout the process, apart from the first meeting on 23 November 2016.

[103] The termination letter of 8 December 2016 clearly sets out the reasons for the dismissal.

[104] I am satisfied and find that Ms Adams was notified of the valid reason for her dismissal before the decision was made.

Opportunity to respond - s.387(c)

[105] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 29

[106] On the evidence in this case I am satisfied and find that Ms Adams had a number of opportunities to respond to the allegations against her. Ms Adams was represented by the TWU at the meetings on 29 November, 2, 6 and 8 December 2016. She provided a response to the show cause letter on 1 December 2016 and made a further submission by email to Mr Marcon on 6 December 2016.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[107] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[108] Although Ms Adams was not advised that she could have a support person at the meeting on 23 November 2016, I accept the reasons given by Mr Muir and Mr Marcon that discussions during that meeting did not relate to the dismissal. Ms Adams was allowed to have a support person at the subsequent meetings on 29 November, 2, 6 and 8 December 2016.

Warnings regarding unsatisfactory performance - s.387(e)

[109] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 30

[110] Given this is not a case in which the Applicant’s work performance was alleged to unsatisfactory, this consideration is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[111] I am satisfied that the size of the Respondent’s enterprise and its dedicated human resource expertise did not impact on the procedures followed by the Respondent in effecting the dismissal.

Other relevant matters - s.387(h)

[112] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[113] Ms Adams alleged that the real reason behind the decision to dismiss her was because she had been an outspoken union delegate. There is insufficient evidence before me to establish that this allegation has any foundation in fact.

[114] I have considered Ms Adams’ circumstances including the impact of the dismissal on her but am not satisfied that those circumstances outweigh the gravity of the prohibited conduct Ms Adams engaged in.

Conclusion

[115] Ms Adams engaged in prohibited conduct and I consider her conduct justified disciplinary action. Although I sympathise with Ms Adams as to the ramifications of the dismissal, the sanction of dismissal was reasonably open to SUEZ and I am unable to discern any fault by SUEZ in effecting the dismissal. Ms Adams’ actions shown in the CCTV footage were clearly in breach of the safety site rules and cannot be condoned.

[116] Having considered each of the matters specified in s.387 and for the reasons set out above, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable and I so find.

[117] Accordingly, I find that Ms Adams’ dismissal was not unfair. It follows that her application must be dismissed.

DEPUTY PRESIDENT

Appearances:

L de Plater for Helene Adams.

M Dunne for SUEZ Environmental Pty Ltd T/A SUEZ.

Hearing details:

2017.

Sydney:

April 11.

Final written submissions:

11 May 2017.

 1   See attachment HA-6 to Exhibit A1.

 2   See Outline of Submissions on behalf of the Respondent 3 April 2017

 3   See Attachment HA-7 to Exhibit A1.

 4   Exhibit R5.

 5   Exhibits A3, A4, A5, A6 and A7 respectively.

 6   See Attachment DM-4 of Exhibit R4.

 7   Exhibit R4.

 8   Transcript PNs 507-511.

 9   Transcript PNs 512-516.

 10   Transcript PNs 448 to 466.

 11   Transcript PN 119.

 12   Exhibit R6.

 13 131 ALR 422.

 14   Section 382 of the Act.

 15 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

 16   [2016] FWCFB 47.

 17   Sayer v Melsteel[2011] FWAFB 7498.

 18   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

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

 20   Ibid.

 21   Edwards v Giudice (1999) 94 FCR 561.

 22   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 23   Miller v University of New South Wales (2003) 132 FCR 147

 24   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

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

 26   Previsic v Australian Quarantine Inspection Services Print Q3730.

 27 (2000) 98 IR 137.

 28   Ibid at 151.

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

 30   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

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