Hunter Douglas v SSX Services Pty Ltd T/A the Australian Reinforcing Company

[2010] FWA 2693

[2010] FWA 2693

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Hunter Douglas
v
SSX Services Pty Ltd T/A The Australian Reinforcing Company
(U2009/1007)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 14 APRIL 2010

Unfair dismissal; breach of health and safety procedures.

[1] On 7 October 2009, Mr Hunter Douglas (the applicant) filed an application for a remedy in relation to his dismissal by SSX Services Pty Ltd t/as The Australian Reinforcing Company (ARC, the respondent) on 24 September 2009. Following an unsuccessful conciliation conference and some preliminary proceedings concerning representation 1 the matter was heard on 2, 3 and 19 March 2010. At these hearings the applicant was represented by Mr S Crawford of the Australian Workers Union, Greater NSW Branch (AWU) and the respondent by Mr Y Shariff of counsel.

[2] During the hearings evidence was given on the applicant’s behalf by the applicant himself (through an interpreter, Mr D Lee) and Mr L Heaney (AWU Organiser at ARC). Evidence was given for the respondent by Mr G McCallum (Operations Manager), Mr D Buttfield (Production Coordinator, Day-Shift) and Mr S Corbett (Factory Hand).

[3] The applicant was dismissed following an incident on 21 September 2009 when he breached safety rules by manually handling product on an off coil machine (known as ‘Concept 4’) while standing on a conveyor. The conveyor had been installed in early 2008 so that employees could operate the machine hands free. This had been done after an employee had lost part of his finger while operating the machine in July 2007. In deciding to dismiss the applicant, the respondent took into account a number of previous warnings that had been given to the applicant for breaches of safety procedures. In particular, reference was made to two ‘first and final’ warnings issued to the applicant in 2004 and 2005, a written warning in 2006 and a verbal counselling in August 2009. According to notes taken at the meeting where the applicant was notified of his dismissal, he was told by Mr McCallum that:

“due to the previous history and this safety breach, it has been demonstrated that Hunter had been provided with opportunities to improve his safety performance. The company has no confidence that improvement can be achieved and on this basis, Hunter’s employment is being terminated effective immediately. This information demonstrates that there is ongoing abuse of safety rules for which the company is not prepared to consider any other form of disciplinary action.” 2

[4] The applicant does not deny the incident on 21 September 2009; however Mr Crawford submitted that there are a number of mitigating circumstances that need to be considered when determining the objective severity of the safety breach. First, the applicant had been effectively directed to complete a “job” on the Concept 4 machine that could not be physically completed using the standard operating procedure (SOP) for that machine. Secondly, the applicant had initially tried to complete the task in accordance with the SOP for the machine. Thirdly, when it became clear that the task could not be completed using the SOP he tried to find his supervisor. It was only after being unable to locate a supervisor that the applicant decided to stand on the conveyor and handle the product in order to complete the job. Fourthly, the respondent’s procedures for dealing with problems such as that encountered by the applicant remain ‘a work in progress.’ In particular, there has been some use of sticks to assist when employees have difficulties in completing the task, even though such use has not been incorporated into the SOP. Finally, it was submitted that the applicant’s actions in handling the product had been the SOP prior to the workplace injury that occurred in July 2007.

‘Handling product was apparently considered to be a sufficiently safe practice in 2007 yet in 2009 it is considered dangerous enough to warrant dismissing an employee with over 9 years service.’ 3

[5] The evidence is clear that the applicant’s conduct was in breach of the SOP for the work in question and was contrary to the respondent’s safety procedures. Moreover it is clear that the applicant was trained in those procedures and was aware of them. It is also clear that it was not that unusual for employees to be given tasks that it turned out could not be completed on the machine they were in charge of 4. It is not in dispute that the applicant at this point should have sought assistance from a supervisor. Based on Mr Buttfield’s evidence this type of situation would be dealt with by the supervisor either arranging for the job to be allocated to another machine or altering the dimensions so the product could be safely produced5. Mr Hunter’s oral evidence is that he tried to locate a supervisor but could not find one. He then took what can only be described as the reckless step of standing on to the conveyor belt and manually handling the product. Mr Crawford’s submission that this had been the SOP ‘prior to the workplace injury that occurred in mid 2007’ rather underlines the point made by the respondent’s representative:

‘Mr Douglas’ actions were particularly serious given that he was aware that a co-worker had a finger sliced by operating the Concept 4 machine in close proximity to the cutter blade and that this incident had caused ARC to invest in re-fitting of all Concept machines to remove the risk of harm…’ 6

[6] The Occupational Health and Safety Act 2000 (NSW) places responsibility upon an employer to provide a safe and healthy workplace, and upon employees to act in a proper and safe manner towards other workers. Section 20(2) of that Act provides:

“An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act for the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.”

[7] Employees who commit breaches of health and safety procedures in a wilful, negligent or reckless manner can reasonably be held to have committed misconduct. Indeed, the definition of ‘serious misconduct’ in Regulation 1.07 of the Fair Work Act 2009 (the Act) expressly includes conduct that causes serious and imminent risk to the health and safety of a person.

[8] Not all breaches of health and safety procedure will automatically entitle an employer to dismiss an employee. The severity of the breach needs to be considered. Moreover an employee’s previous record may well be a relevant consideration. In this case, as already noted, the respondent, in deciding to terminate the applicant’s employment, had regard to a number of prior warnings concerning breaches of health and safety procedures.

[9] On 7 June 2004 the applicant was issued with a formal warning regarding a ‘near miss’ he was involved in on 31 May 2004. During this incident he lifted a two tonne coil of steel by the tie wire, which subsequently snapped. The applicant’s evidence is that he had never been trained in this task and that he had learnt to lift the coil by the tie wire. I find this evidence unconvincing. It is clear from the evidence of Mr McCallum 7 that the tie wires are very thin and could not reasonably be expected to lift a two tonne coil of steel.

[10] On 18 July 2005 Mr Douglas was issued with a final written warning for failing to check that all four lifting points had engaged when using a coil grab.  8 This occurred after a coil being lifted by the applicant slipped from a grabber and fell on to a safety fence. The applicant’s evidence is that he had checked all four grab points. The warning was issued after an incident investigation report had been prepared9. The author of the report was not called to give evidence. It seems that the coil diameter was too large to allow the grabber hooks to engage the coil correctly. Even without the author of the report being available to give evidence I consider that it is more likely than not that the incident would not have occurred if the applicant had properly ensured that the points had properly engaged.

[11] On 26 May 2006 the applicant was issued with a formal warning for not wearing his personal protective equipment (PPE). 10 The applicant conceded that he had not been wearing his safety glasses while in the workshop.11

[12] In August 2009, the applicant was counselled about his general attitude to safety. This was in response to an incident where the applicant had been operating his mobile phone in a restricted area where a large machine was operating. 12

[13] Mr Buttfield was the applicant’s supervisor before he was dismissed. In response to some questions from the tribunal he gave some compelling evidence about the applicant’s general attitude.

‘… I got along with him very fine. But with Hunter, if there was a hazard alert, safety, somebody got injured on another site, we’d have to address it to the operators, and let them know what happened, you know, so it doesn’t occur at our site. He’d just laugh about it, you know, and you’d have to pull him to the side and say “What are you doing that for?” you know….It got to the stage, because he was going from shift to shift to shift, it got to the stage where he just didn’t care, you know. He didn’t care about nobody else and, you know, he just had no respect for anything.

So it wasn’t just about safety? --- It wasn’t just about safety. It was about everything you. It was his way or no way, that’s it.

But was he doing the work? --- Don’t get me wrong; great operator, but he always wanted to cut corners, you know, Yeah, he was a great operator. I never had an issue with Hunter as a person. Like I said, sitting down at lunchtime and talking to him and things like that, but when it came to safety, you know, he didn’t care about no-one else’s safety. It was about him. He was a great operator.

What about his own safety? --- He didn’t care about his own safety either. He was, like I said, one of the best operators there, but you can’t keep cutting corners, because one day somebody is going to get seriously injured or somebody’s going to be killed. That’s what it was, you know. I spent time with him, you know, to go through things and everything else, but it’s just management don’t know nothing…’ 13

[14] Section 385 of the Act provides that

A person has been unfairly dismissed if FWA 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.

[15] There is no issue that the applicant has been dismissed. Nor do the issues of consistency with the Small Business Fair Dismissal Code or whether this is a case of genuine redundancy arise. The issue that needs to be determined therefore is whether the applicant’s dismissal was harsh, unjust or unreasonable.

[16] Section 387 states that:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

[17] I shall deal with each of these factors in turn. With regard to s.387(a) I find that there was a valid reason for the applicant’s dismissal. His breach of the respondent’s safety procedures on 21 September 2009 was both serious and reckless, and put his own safety at risk. Moreover this was far from an isolated incident. He had been warned and counselled on a number of previous occasions about safety breaches, and had generally displayed a poor attitude to safety.

[18] With regard to s. 387(b), a meeting was held on 22 September 2009 with Mr McCallum, the HR manager, a union delegate and an interpreter where the applicant was notified that the incident the previous day was being investigated. On 24 September 2009 the applicant was told of the results of the investigation and was advised that he was to be dismissed. I find that he was notified of the reasons for his dismissal.

[19] In relation to s.387(c), as already noted, the applicant had a meeting with Mr McCallum on 22 September 2009. During this meeting the applicant was given an opportunity to put his version of events about what occurred the previous day. To the extent that the events of that day were the primary reason for his dismissal, I am satisfied that the requirements of this sub section were met.

[20] I do not consider that the factors in s.387(d) – (g) have any relevance to this case. In relation to s.387(h) Mr Crawford submitted that there were a number of other relevant factors that should be taken into account. These were that first, the evidence indicates that the applicant was a highly productive employee. Indeed, it was put that the applicant’s apparent pride in being a productive employee is likely to have been a contributing factor in his decision to stand on the conveyor and complete the job that had been left for him on 21 September 2009. Secondly, the applicant’s difficulties with English are likely to present a significant barrier to him finding alternative employment. Thirdly, the applicant’s age (he is 50 years old) will make it more difficult for him to find another job. Fourthly, the applicant’s financial situation has been extremely negatively affected by his dismissal. Fifthly, the termination has had a significant personal impact on the applicant’s life, and sixthly, the applicant was a relatively long term employee with over 10 years’ service. Mr Crawford submitted that the decision to terminate the applicant’s employment was disproportionate to the gravity of the misconduct in respect of which the respondent acted.

[21] I have had regard to all these factors, including all those additional factors referred to by Mr Crawford. It is always sad when a long standing and hard working employee, such as Mr Douglas, loses his job. In his case his ability to find alternative employment will undoubtedly be reduced by his poor English skills. However, one must consider these factors in the context of the reason why he was dismissed. I have already found that the respondent had a valid reason for the applicant’s dismissal given his serious and reckless breach of the respondent’s safety procedures, thereby putting his own safety at risk, especially when viewed as part of a pattern of previous safety breaches. My conclusion is that the applicant’s dismissal was not harsh, unjust or unreasonable. His application is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Crawford for the applicant

Y. Shariff of counsel for the respondent

Hearing details:

2010

SYDNEY

15 February

2, 3 and 19 March

 1   See [2010] FWA 1139

 2   Attachment V, to Exhibit ARC 4

 3   Applicant’s closing submissions, paragraph 175

 4   Mr Buttfield gave evidence that such occurrences happened ‘a couple of times a day’ PN2341

 5   PN2341

 6   Respondent’s closing submissions, paragraph 4.11

 7   PN2185-7

 8   Attachment E, to Exhibit ARC 4

 9   Attachment F to Exhibit ARC 4

 10   Attachment H to Exhibit ARC 4

 11   PN359

 12   Exhibit ARC 5, paragraph 29

 13   PN2391-2394

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