Ian Cameron v Metecno Pty Ltd T/A Bondor

[2013] FWC 8902

[2013] FWC 8902 Note: An appeal pursuant to s.604 (C2013/7529) was lodged against this decision - refer to Full Bench decision dated 19 February 2014 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Cameron
v
Metecno Pty Ltd T/A Bondor
(U2013/7743)

COMMISSIONER DEEGAN CANBERRA, 13 NOVEMBER 2013

Application for unfair dismissal remedy - dismissal harsh - compensation ordered.

[1] On 21 March 2013 Mr Ian Cameron (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been unfairly dismissed from his employment with Metecno Pty Ltd trading as Bondor (the employer).

Background

[2] The applicant had been employed with the employer and its predecessor companies since 1977. He was an employee until 2001 at which time he changed his status to that of a contractor. His status reverted to that of employee in 2006. In late 2006 the applicant was promoted to the position of State Manager.

[3] In February 2011 the applicant ceased to be State Manager but acted in the position until April of that year when the new State Manager was appointed. The applicant then held the role of Operations Manager.

[4] The State Manager appointed in April 2011 held the position until late October 2012. In early November 2012 a new State Manager, Corey Harris was appointed. For the majority of November 2012, Mr Harris was undergoing training and only in the office intermittently.

[5] On 27 November 2012 the applicant directed two employees from the factory to attend a worksite with some contractors to dismantle a cold store (the pull-down job). During the operation one of the contractors was injured. The incident was the subject of a Workplace Standards Investigation. After the incident Mr Harris gave a direction that no worker was to be onsite without a proper induction.

[6] In early January 2013, Mr Harris discovered a contractor onsite in the factory who had not undergone an induction. After raising the matter with the applicant he reported the incident to the General Manager of the employer, Mr Marsdon.

[7] A meeting was held with the applicant on 29 January 2013 to discuss the incident on 27 November 2012. At the end of the meeting the applicant was stood down on full pay and provided with a letter outlining a number of allegations to which he was asked to respond.

[8] The applicant’s employment was terminated on 7 February 2013.

The Applicant’s evidence

[9] The applicant filed a statement of evidence 1 outlining his work history and noting that he had been employed by the maker of insulation panels since 1977 albeit that the company had changed hands a number of times over that period.

[10] It was his evidence that the change to his status from employee to contractor between 2001 and 2006 had only affected the manner in which he had been remunerated and that his job did not alter otherwise.

[11] According to the applicant he resigned as State Manager in 2011 as there had been a number of problems with some contracts for which he had quoted and which resulted in large losses to the company. He felt unsupported by the company and was suffering stress. Once replaced as State Manager he continued to perform most of his previous duties, including providing quotations for work but was not required to seek work or construct budgets.

[12] The applicant’s evidence was that he had quoted for some work in late 2012, and that in the process he had agreed, as part of a quote for the installation of new insulation panels for a new building, the company would dismantle and remove insulation panels from a cold store in the building that was being vacated.

[13] The removal work was commenced by a contracting firm performing work for the employer in late November. The contractor was then required for another urgent job and was unable to finish the work. As the dismantling of the cold store was time critical, the applicant directed the factory supervisor, Ben Yole and another worker from the factory floor to complete the task with the help of two contractors.

[14] When the applicant visited the site he was unable to go to the area where the cold store was being dismantled as he had forgotten his hard hat and ‘the safety policy is strict and (he) did not enter’ 2. He checked on progress with Mr Yole and was informed that a third contractor, John McKenzie, who had turned up at the factory by mistake that day, was also assisting with the task.

[15] Later that day the applicant was telephoned by Mr Yole who informed him that Mr McKenzie had fallen from a ladder and was injured. The applicant informed the office manager of the accident and went to the pull-down site. At the site he told Mr Yole to inform Workplace Standards and to call Mr Harris, the State Manager.

[16] It was the applicant’s evidence that during his working life the only warnings he had received had occurred in October 2012 at about the same time his mother had passed away.

He stated that he had delegated the pull-down job to Benjamin Yole, the factory foreman, to be performed by him, another factory worker and two contractors. Further it was his evidence that Workplace Standards had been informed of the accident at the pull-down site and had conducted an investigation. To his knowledge there had been no outcome of the investigation, but the applicant maintained that he was not responsible.

[17] So far as the matter of the uninducted contractor being onsite at the factory in January was concerned, the applicant denied being aware that the person was there until Mr Harris ‘blew his stack’ at the applicant. The applicant claimed that Mr Harris had asked him why the contractor had not been inducted and that he had replied ‘I don't know, mate. You tell me’ 3.

[18] The applicant noted that he had spoken to the employer’s national OHS person, Mr Lund, in late January 2013 and about a week later had been suspended by Mr Marsdon.

[19] It was also the evidence of the applicant that about 20 weeks after the termination he had gained new employment.

[20] Under cross-examination, the applicant was questioned about ‘Work Procedure’ documents 4 tendered on his behalf. He agreed those documents were, and had been for some time, in force at the factory in Tasmania. He also conceded that it was his view that the employer took safety issues very seriously. His attention was drawn to one of the documents which dealt with the risks associated with ‘Lowering and Demolishing Freezer/Chiller Structure’. He agreed that two of the hazards identified in the document as requiring management were ‘falls from height resulting in body injuries’ and ‘falls from ladders’ and that such risks were to be anticipated and prepared for when doing that kind of work.

[21] When asked what steps he had taken on 26 and 27 November to make certain such things did not occur, the applicant replied that he had ‘ensured that the branch health and safety officer was working on the job’ 5. The applicant stated that he had delegated the job to Mr Yole but conceded that he was senior to Mr Yole and was the Project Manager. The applicant also agreed that none of Mr Yole’s work experience prior to joining the factory suggested that he had any particular experience managing a construction site or a site where things would be assembled or dismantled. It was also the applicant’s evidence that one of the contractors working on the site, Andy Booth, was experienced in doing pull-downs and that Mr Yole was there to oversee the job and to perform the health and safety role.

[22] The applicant agreed that he was aware that the company had a requirement that a project risk assessment be prepared in respect to each job but claimed that the job safety analysis (JSA) for the pull-down job was undertaken by the contractor who had started the pull-down. The applicant did not have a copy of the JSA and had not seen it at the time Mr Yole was sent to the pull-down site. The applicant also noted that at the time he was unaware that John McKenzie would be working onsite. He also reiterated that the original plan was for the contractors to perform the pull-down but that they could not complete the task.

[23] When questioned about the presence at the factory of an uninducted contractor in early January 2013 the applicant agreed that in December 2012 Mr Harris had directed that any contractor wishing to be on-site at the factory had to undertake an induction before commencing work. The applicant also agreed that the contractor in question had not been inducted and had not been wearing the correct Personal Protective Equipment (PPE). He stated that Mr Harris had told him about the contractor, was upset and had held him responsible for the presence of the contractor despite the applicant being unaware that the contractor was onsite.

The Employer’s evidence

[24] Evidence was given for the employer by:

• Mr Corey Harris - former State Manager



• Mr Benjamin Yole - Factory Supervisor



• Ms Sharon Rice - Production Manager



• Mr William Lund - National OHS Manager



• Mr Asad Basit - Chief Financial Officer



• Mr Geoff Marsdon - General Manager

[25] By his statement of evidence 6, Corey Harris noted that he was employed as State Manager of the employer from 1 November 2012 and resigned that employment on 31 March 2013. Due to interstate meetings and training Mr Harris only commenced full-time work at the office of the employer from about 22 November 2012. His primary responsibilities were business growth and development, health and safety, company policy compliance and maintaining the financial viability of the business.

[26] It was the evidence of Mr Harris that the contracts that had included the arrangement for the pull-down had been entered into by the applicant before Mr Harris became State Manager so he was unaware of the details.

[27] Mr Harris stated that he had been informed of the accident at the pull-down site by a phone call from Mr Yole. It was his evidence that Mr Yole had told him that the applicant had directed him not to telephone as the applicant has said he would handle it himself.

[28] Following the accident Mr Lund, the National OHS Manager visited Tasmania and liaised with Workplace Standards about the investigation. Mr Marsdon also visited and spoke with the applicant and Mr Harris about the accident.

[29] According to his evidence, after the accident Mr Harris directed Mr Yole to perform an induction on every individual on site before Christmas. He also made it clear that nobody was to commence work onsite without undergoing an induction.

[30] The factory closed down over Christmas but it was agreed that one contractor, Andy Booth, would be onsite during the close down to finish some doors that were needed urgently. Both Mr Harris and the applicant also attended at the factory in early January. When Mr Harris arrived he discovered that another contractor was onsite working with Mr Booth. The second man was unknown to him and was not wearing the correct PPE. When asked by Mr Harris if he had undergone a site induction the second contractor advised that he had not.

[31] It was the witness’s evidence that he had immediately stood the contractor down and then asked the applicant why a second contractor had been put on. The applicant responded ‘to get the work done’.

[32] Mr Harris then phoned Mr Marsdon to inform him about the contractor being onsite.

[33] Mr Harris also attended the meeting with the applicant and Mr Marsdon on 29 January 2013 when the applicant was given a letter containing the allegations against him and was stood down pending his response. He had no further direct communication with the applicant.

[34] Under cross-examination, Mr Harris agreed that for the first three weeks of November while he was interstate and settling into the position, the applicant carried on as though he was managing the business. He stated that he had instituted regular meetings with the applicant and the factory supervisor. He agreed that there was a whiteboard in the applicant’s office where the meetings were held and that there were some notes about jobs being undertaken or coming up on that board. At the first meeting on 22 November, Mr Harris was aware that two jobs were being undertaken one at Spreyton and one for Statewide. He was not aware of the subcontractors engaged for those jobs. He was unaware of the pull-down job and could not recall any notes being on the whiteboard in relation to the pull-down job.

[35] It was the evidence of the witness that, prior to 22 November 2012, there was a formalised process for the induction of employees of the employer in Tasmania but that the process was not applied consistently. He claimed that there were no training records or records of the inductions. After the incident on 27 November, Mr Harris had checked for induction records and found that there was no record of anybody having been inducted in the previous twelve months.

[36] Mr Harris stated that he was aware that the applicant was the Operations Manager, had been State Manager and believed that he had the authority to enter into contracts for the employer. He was also aware that the business had a policy requiring formal approval by State Managers for contracts worth in excess of $200,000. He understood that process to have been established before he joined the company.

[37] It was Mr Harris’s evidence that on 27 November he was informed by Ben Yole of the accident at the pull-down site. He noted that after having been made aware of the incident the applicant had left the office without informing him. Mr Harris reiterated his evidence that Ben Yole had told him that the applicant had advised him not to call him. He claimed to have sent the applicant back to the office as two managers were not required at the site of the accident. Both he and the applicant had made statements to Workplace Standards. Mr Harris was not aware that the applicant had directed Mr Yole to contact Workplace Standards. It was his evidence that the investigation had not been completed. He stated that one of the first questions asked by Workplace Standards was whether the workers had been inducted.

[38] Mr Harris agreed that as at the time of the Christmas shutdown there was no suggestion that the applicant would be subject to disciplinary proceedings over the 27 November incident. He noted that the investigation was ongoing at that point.

[39] It was the evidence of the witness that when he discovered the second contractor at the factory on his return after the Christmas shutdown he was told by the applicant that an ‘extra pair of hands’ was needed. 7 He did not recall the applicant saying that he did not know the other contractor was there. He stated that when he asked why the second contractor was there the applicant had responded ‘we need to make doors’. When the contractor requested that he be inducted, and the applicant had repeated the request, Mr Harris responded that he could not be inducted.

[40] Mr Harris agreed that when he informed Mr Marsdon that an uninducted contractor had been onsite at the factory, Mr Marsdon indicated that that fact might give rise to proceedings. He claimed that Mr Marsdon was genuinely shocked that the person had been onsite. Mr Harris agreed that he had informed Mr Marsdon that he had not authorised the contractor to be there and that he had assumed that the applicant had given the authorisation. He had not asked the applicant if he had authorised it but had sent an email to Mr Marsdon stating that an uninducted contractor had been onsite and that he, Mr Harris, had not authorised it.

[41] Mr Harris stated that it was apparent that Mr Marsdon considered the matter as serious given the incident on 27 November. Mr Harris had taken part in the meeting held with the applicant on 29 January but had not taken any notes of the meeting.

[42] It was the evidence 8 of Benjamin Yole that he had been the factory supervisor for the employer since 2009. He was also the Occupational Health and Safety Officer. The factory performed fabrication and storage work and there were five staff and preferred contractors who were called in when required. Mr Yole oversaw the work performed in the factory but did not have specific technical skills in the area. He was not involved in the construction of cold stores and had no construction skills.

[43] According to Mr Yole, he was not aware of the pull-down job as no product was required to be prepared in the factory for that job. The day of the accident was the first time Mr Yole had ever been to the pull-down site. The applicant had requested Mr Yole to organise a team of contractors and employees from the factory to complete the pull-down job when the contractors who had commenced the job were unable to finish it. Mr Yole had telephoned the principal contractor to determine what he would need to do the job as he did not know what was required. The applicant had not given him any ideas about how to do it.

[44] Mr Yole arranged for two contractors, including one with relevant experience, and another employee from the factory to perform the task. An additional contractor, John McKenzie, who had mistakenly arrived for work at the factory that day, also joined the group. Upon arriving at the site Mr Yole convened a toolbox meeting to determine how to approach the job. He then assigned tasks and commenced the pull-down. The applicant arrived at the site later in the morning but could not enter as he had forgotten his hard hat. After the applicant had left the site, and when work commenced after ‘smoko’, John McKenzie fell from a ladder. He had moved to another area of the factory contrary to Mr Yole’s directions.

[45] After attending to Mr McKenzie, Mr Yole called an ambulance and then telephoned the applicant who advised that he would be there in a minute. It was his first instinct to call the applicant rather than Mr Harris as the applicant had been with the company for so long.

[46] According to the witness, the only OHS training he had had while with the employer was a one day off-site course and a two day course concerning health and safety representatives. He raised any health and safety issues he had with Mr Lund the National OHS Manager.

[47] He did not believe that the applicant told him not to tell anyone about the incident involving Mr McKenzie.

[48] Apart from the day of the incident, Mr Yole had never been involved in the dismantling of a cold store. He did not generally go onsite to assist with installations or dismantling. He had attended sites once or twice to see how things were going.

[49] Under cross-examination, Mr Yole stated that he had been employed in a factory making flyscreens in his early working life. He conceded that the job required him to handle tools and machinery and was ‘fairly dangerous work’ similar to that he performed at the factory. He also agreed that of his former positions, working with horses, had also been dangerous.

[50] It was Mr Yole’s evidence that he had been responsible for OHS in the factory since he commenced employment and reported to Mr Lund in respect of OHS issues. He stated that he used toolbox meetings and regular OHS meetings in performing his functions. Up until the incident with Mr McKenzie, Mr Yole was aware of one other employee who had injured his back and an employee who sliced his finger in a guillotine. He could not recall any other injuries to employees on the factory floor during his employment. A contractor, that had been inducted, had also injured his hand. As OHS officer Mr Yole was in charge of inductions and also performed induction refreshers.

[51] It was the evidence of Mr Yole that there was a rule that anybody engaged in the factory or off-site had to be inducted.

[52] According to the witness his work was performed predominantly on the factory floor but that he went off-site about once every six months, usually to deliver materials. He did not assist in the erection or removal of panels. His first and only hands-on off-site job was the one at which Mr McKenzie was injured.

[53] The only instruction the applicant had given Mr Yole was to get some contractors and employees and do the pull-down. Mr Yole had a basic understanding of what was required and the applicant had told him that it was easy to work out how to do it. He was to drill the rivets holding the panels and remove and stack the panels. There was no discussion about the removal of the ceiling panels.

[54] At the toolbox meeting held prior to commencing the pull-down work the contractor, Andy, had had a lot of input as he was the one with experience.

[55] According to Mr Yole it was his brother Tim who raised the question of phoning Workplace Standards and that the applicant had concurred with the suggestion. Mr Yole claimed that when the ambulance, the police and Workplace Standards had arrived he had said to the applicant “I need to ring Corey” and the applicant had agreed.

[56] Mr Yole’s evidence was that at the time the accident occurred he had not had to consider how to remove the ceiling panels. Had they given it consideration he would have realised that they would need a scissor lift to do it. He was aware that scissor lifts were often used onsite but was not aware of any protocols for their use as he worked in the factory.

[57] Mr Yole restated his evidence that the applicant did not tell him not to tell anyone about the accident.

[58] Since the incident, Mr Yole had been onsite to supervise and prepare job safety analyses.

[59] According to her statement 9, Sharon Rice was the Office Manager of the employer’s Tasmanian office at the relevant time. Her evidence covered the meetings instituted by Mr Harris, at which she was the notetaker. Ms Rice also stated that on 27 November 2012 the applicant, who was leaving the office, informed her that there had been an accident and that ‘Johnnie’ had fallen from a ladder. Ms Rice was not sure whether to inform Mr Harris as the applicant had not requested that she do so. After some time she decided to inform Mr Harris. He was ‘incredibly angry’ that he had not been told earlier. Mr Harris then left the office to go to the pull-down site.

[60] When cross-examined, Ms Rice stated that she informed Mr Harris of the incident within minutes of the applicant leaving the office.

[61] William Lund, the National Occupational Health and Safety Manager filed a statement of evidence 10. Mr Lund has been employed in his position since 2009. He described the employer’s national OHS policy and its manner of implementation. As part of his duties he travelled to Tasmania about 4 times each year. It was his evidence that the applicant had demonstrated that he understood the company’s obligations with regard to health and safety. The applicant had completed ‘work method statements’ for construction jobs. Attached to Mr Lund’s statement was an example of a ‘work method statement’ job completed by a contractor for a construction job undertaken by the employer. Although that work method statement was for the particular contract that the applicant claimed included the pull-down job at which the incident occurred on 27 November, there was no mention of the pull-down job on the statement.

[62] According to Mr Lund’s evidence, the applicant was well aware of the importance of a Project Risk Assessment and had completed them for many jobs. It was company practice that such a document be supplied to the principal contractor prior to the commencement of work.

[63] Mr Lund was not aware of the pull-down job until the incident occurred on 27 November. Mr Lund investigated the incident and discovered that the injured contractor had been using a ladder not supplied by the employer but another contractor onsite. The applicant had attributed the accident to the use of the ladder on an unsafe (concrete impregnated with meat fat) surface. Mr Lund was told by Mr Yole that he had telephoned the applicant in a panic when the accident occurred and when the applicant arrived then called Mr Harris. Mr Yole also told Mr Lund that the applicant had told ‘Tim’ to call Workplace Standards.

[64] According to his evidence, Mr Lund discovered that the original contract for the relevant job did not include the pull-down of the cold store and that this was the subject of a separate arrangement with the applicant, who engaged a contractor to complete the pull-down. No documentation was provided by the applicant to the contractor regarding the work. The applicant had not inspected the site prior to the accident. He did not provide a work method statement or conduct a job safety analysis of the pull-down job. It was also Mr Lund’s evidence that the applicant did not ensure that the employees dismantling the cold store were adequately qualified to work on a construction site. Finally, it was Mr Lund’s evidence that the applicant failed to notify the State Manager, Mr Harris, of the accident.

[65] Under cross-examination, Mr Lund stated that he assisted, not supervised, Mr Yole in his OHS duties. He had regular contact with him and advised and coached him. When it was put to him that the applicant had never received OHS training, Mr Lund responded that he received training both from him and other managers. He stated that the applicant would have received on-the-job training and received numerous documents concerning policies and procedures for OHS, environment management and other company policies.

[66] Mr Lund was unable to recall any occasion when the applicant had been disciplined in relation to health and safety matters. When pressed about the applicant’s health and safety performance, Mr Lund stated that the applicant was not a good manager when it came to confrontation, in that he had a tendency to back away from an argument. He agreed that the applicant was a sensitive man.

[67] When asked about the work method statements prepared by the applicant that he had seen, Mr Lund was satisfied with the detail in those statements and believed they had good content.

[68] Mr Lund stated that he had never seen the contract for the job that included the pull-down, only the quotes for that job, which did not mention the pull-down. He was adamant that all his investigations, including talking to the safety officer for the main job, showed that the proper procedures including the job safety analysis and the work method statement were never followed for the pull-down part of the job. The procedures were carried out after the accident.

[69] When it was put to him that Ben Yole was a qualified occupational health and safety officer, this was denied by Mr Lund. He stated that Mr Yole was not qualified to go onto a construction site and supervise and work on a construction site. He did not have a construction induction card and should never have been on the site. As far as Mr Lund was aware only the subcontractors had undergone construction induction. This was a requirement for all contractors engaged by the employer. The employees were not qualified to work on construction sites. He stated that the applicant too was not qualified, nor expected, to work on construction sites. When asked if the employees going on to the site was contrary to the law or the employer’s policies, Mr Lund replied ‘Both’. 11 According to the witness this requirement was included in the employer’s documentation including the project risk assessment management statement.12 He explained that the document required all employees to comply with relevant laws and that it was a requirement of OHS laws that persons working on a construction site have a construction induction qualification (a ‘white card’). It was also Mr Lund’s evidence that the applicant would know that as he had worked on construction sites. When challenged about this claim Mr Lund replied,

I've know (sic) Ian Cameron for what, three and half to four years. I know his experience, I know what he's done, what work experience he's got. I know his level of aptitude in regard to safety. I have no doubt that he's aware that a construction safety card is required. He knows that definitely. You can call it an assumption if you like, but that's what my belief is. 13

[70] Mr Lund denied that a toolbox meeting could replace the requirement for a safe work method statement.

[71] Asad Basit is the employer’s Chief Financial Officer. In his statement of evidence 14 he noted that the employer did not take over the business which employed the applicant until 2001. He also noted that, at the time the employer acquired the business, existing employees from the former owner were transferred with the business and that these employees were named in the sale documents. The applicant was not named in the document as at the time he was engaged under a contracting arrangement.

[72] The final witness for the employer was the employer’s General Manager, Geoff Marsdon. In his statement of evidence 15, Mr Marsdon noted that he had been employed in the position since October 2008 and was responsible for six state managers together with a number of other specialist managers including Mr Lund and Mr Basit.

[73] At the time Mr Marsdon commenced employment the applicant was the Tasmanian State Manager. From that time the witness had concerns about the applicant’s performance and that of the operation in Tasmania. It was his evidence that the applicant lacked attention to detail and made mistakes with costings. Mr Marsdon tried to support the applicant by providing him with an Operations Manager and a salesman, neither position worked out as the applicant did not get along with the persons appointed. Due to his continuing dissatisfaction with the applicant’s performance, during a discussion in February 2011, Mr Marsdon demoted him to Operations Manager and appointed a new State Manager in April that year. The applicant’s salary was not reduced as a result of the demotion but the applicant was informed that there would be no immediate increases.

[74] In October 2012 the State Manager was removed and in November Mr Harris appointed to the position. At about the same time Mr Marsdon had a discussion with the applicant and issued him with a written warning. That warning referred to the applicant’s lack of attention to detail and a serious mistake he had made in a quote for a job.

[75] Attached to Mr Marsdon’s statement was a copy of the correspondence between the applicant and Vos Constructions relating to the dismantling of the cold store.

[76] Mr Marsdon visited Tasmania and spoke to the applicant and Mr Harris after the November 27 incident. He also instructed Mr Lund to investigate and prepare a report. He received the report shortly before commencing Christmas leave and was concerned about what appeared to be a reckless disregard for safe processes.

[77] On his first day back after Christmas leave, Mr Marsdon received a call from Mr Harris who informed him that the applicant had engaged a contractor who had been onsite without any induction process. Mr Harris had directed the contractor to leave the site. Mr Marsdon stated that he had ‘more or less come to the conclusion that (the applicant’s) mistakes around the (pull-down job) had amounted to misconduct sufficiently serious to justify dismissal’ 16. In light of the advice about the contractor Mr Marsdon took further advice as to how to proceed and arranged to meet with applicant.

[78] At that meeting on 29 January he outlined the allegations to the applicant, made clear the seriousness of the breaches and gave him a letter to the same effect. The applicant was stood down on pay and asked to provide a response. A written response was received the next day. Mr Marsdon sent a letter in response on 4 February advising the applicant that his employment would be terminated immediately if he did not provide a satisfactory response by the next day. Mr Marsdon did not consider a letter received from the applicant’s solicitor on 5 February a sufficient response. As a consequence of the failures of the applicant in relation to the pull-down job, Mr Marsdon terminated the applicant’s employment.

[79] When cross-examined about the applicant’s change of status to Operations Manager, Mr Marsdon agreed that he had not wanted to terminate the applicant’s employment as, although he thought the State Manager job was beyond him, he believed the applicant could still be a valuable part of the team by taking a step back and concentrating on other areas. He considered it important to try and keep people in the business wherever possible and the applicant had work skills that were relevant to the industry.

[80] Mr Marsdon agreed that the formal warning had been provided to the applicant in October 2012 because the applicant was unsuccessful, as he had not complied with the client’s specifications, in a quote that he had provided. He also stated that the warning was also brought about by the applicant’s failure to quote in accordance with the code of practice.

[81] When questioned about the pull-down job, Mr Marsdon replied:

I don't know - it wasn't an original part of that contract. That's something that Ian has agreed to do subsequently, and using our production crew to do it, which I still have trouble getting through my head, how any manager can take guys off a production line to pull down a freezer without training, work that they're not skilled for. It's just - I'm just totally flabbergasted by it and it upsets me every time I even have to think about it. 17

[82] When it was put to him that, assuming they were qualified and properly supervised, the applicant had the authority to take the men off the production line, Mr Marsdon responded:

I thought that it would be something he would want to ask his manager about if he was going to take guys off a production floor and send them to a facility, that would be - you know, I would think in the normal scheme of things where you're taking people from one particular job to do another you'd want to talk to you (sic) state manager. Tasmanian branch is not that big that a casual conversation couldn’t be had around those things, the problem is the guys weren't qualified to do it. 18

Submissions for the Employer

[83] The employer filed written submissions and expanded on these by reference to the evidence. It was put that the applicant was dismissed for serious misconduct arsing from his conduct in relation to the dismantling of the cold store on 27 November 2012 together with the matter of the contractor being permitted onsite without an induction in early January 2013.

[84] It was submitted that these matters should be viewed in the context of the history of the applicant’s employment since 2008 including his demotion from the position of State Manager.

[85] So far as the events of 27 November 2012 were concerned, it was submitted for the employer that the following matters were relevant:

• The applicant agreed to do additional work for a company, which was not part of the original quote, and at no additional cost to that company;



• The applicant claimed that he agreed to the additional work so as not to jeopardise another more lucrative contract negotiation that was occurring at the time;



• It was the employer’s position that the applicant did not have the authority to agree to the additional work and should have sought approval from the State Manager at the time, the Victorian Manager or Mr Marsdon;



• The applicant had tried to shift the blame for the incident on 27 November to Mr Harris as State Manager claiming that Mr Harris was aware of the job when that was clearly untrue;



• The applicant also attempted to shift the blame to Mr Yole as he was the health and safety officer when he was well aware that Mr Yole did not have the knowledge or experience to perform the task;



• The applicant did not complete even the most basic safety checks before sending unqualified and inexperienced employees to compete a hazardous task.

[86] It was put for the employer that the applicant was responsible for the incident on 27 November and Mr Lund’s report made this clear.

[87] In relation to the incident in January 2013, despite his denials, the employer maintained that the applicant was aware of the contractor’s presence. The employer relied on the applicant’s responses to Mr Harris concerning the contractor to support the conclusion. It was put that while Mr Harris did not ask the applicant directly if he was aware of the contractor being onsite his response that the extra hands were needed to complete the doors was an indication that he was so aware. It was put that the applicant did not make any statement to Mr Harris to the effect that he was unaware of the presence of the contractor at the time he was questioned by Mr Harris.

[88] Finally it was put that, in light of the events leading up to the incident on 27 November and the problem with the contractor, Mr Marsdon was justified in arriving at the conclusion that the applicant ‘just didn’t get it’. It was for these reasons that Mr Marsdon determined that the applicant was guilty of serious misconduct and summarily dismissed him in February 2013.

[89] So far as the other requirements of s.387 of the Act were concerned, it was put for the employer that there were no issues in relation to subsection (e) through to (g) as the applicant was plainly aware of the reasons being addressed by the company and had ample opportunity to respond, he was certainly not denied in terms of the support person, and that there were previous warnings submitted. So far as subsection (h) was concerned it was put that the question of the applicant’s employment status and length of service raised no issues of relevance to the consideration.

Submissions for the Applicant

[90] It was submitted for the applicant that the lynchpin of the matter was the question of his knowledge concerning the contractor being onsite in January 2013 without induction or PPE. It was the applicant’s evidence that he was unaware of the contractor’s presence prior to the matter being raised with him by Mr Harris. It was put that the applicant had simply replied that the contractor should be inducted. In those circumstances it was put that the Commission could not be satisfied that this allegation against the applicant was made out.

[91] The applicant’s representative accepted that the incident that occurred on 27 November was serious. It was also accepted that a management direction that all workers should be inducted was reasonable. However, it was argued that, as the applicant was not responsible for the contractor being onsite in January, there was no valid reason for the dismissal as no dismissal had been deemed to be warranted on the basis of the incident of 27 November alone.

[92] It was put that the dismissal was harsh, given the consequences for the applicant, unjust because the applicant did not engage in misconduct in relation to the incident in January and unreasonable because the inferences drawn by the employer on the materials available to it (in regard to the contractor in January) were not reasonable.

[93] According to the applicant, the warning given in October 2012 was irrelevant to the termination as it dealt with fiscal matters and not related to matters of health and safety as were the matters relied upon for the termination.

[94] The applicant conceded that the events surrounding the incident on 27 November were not ‘best practice’ but it was put that these should be considered in light of the pressure on the applicant at the time to complete the job. Further it was argued that Mr Yole had health and safety training and that it was not unreasonable for the applicant to arrange for Mr Yole to perform the task. In addition it was put that Andy Booth, the other contractor onsite, had relevant qualifications and training and that Mr McKenzie’s accident itself was just unfortunate.

[95] It was also conceded for the applicant that the applicant had knowledge of occupational health and safety and had prepared templates relating to job safety analyses and had completed them in the past. It was also put that the fact that Mr Yole had conducted toolbox meetings onsite on 27 November could not be dismissed as irrelevant so far as health and safety was concerned.

[96] It was put that, as the 27 November incident did not give rise to the dismissal, and the employer relied upon a combination of that incident and the January incident involving the contractor, as the applicant was not responsible for the January incident then there was no valid reason for the termination. Further, it was submitted that, given the length of the applicant’s service, the 27 November incident alone was not sufficient reason for the dismissal.

Consideration

[97] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The employer is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[98] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable. I will now deal with each of those matters.

Valid reason

[99] According to the letters from the employer, the applicant’s employment was terminated as a consequence of his actions in directing employees to perform work dismantling the cold store on 27 November 2012 and failing to ensure even basic safety measures were taken. The applicant’s failure to offer any reasonable explanation for the unauthorised nature of the work concerned and his failure to ensure that it was carried out in a safe manner were relied upon. The letters did not rely on the company’s concern about the role the applicant may have had in permitting a contractor to be onsite in January in contravention of a direction that no worker be allowed onsite without an induction.

[100] I am satisfied that the applicant’s role in directing Mr Yole to both supervise and take part in the dismantling of the cold store on 27 November 2012 was a valid reason for his dismissal. I am satisfied that the applicant was under pressure to complete the job at the time but I do not accept that as an excuse for the major safety breaches that occurred as a result. I accept in full the findings in Mr Lund’s report. I find that the applicant directed Mr Yole to perform a task which he knew was beyond Mr Yole’s qualifications and experience. He was very familiar with Mr Yole’s role with the employer and would have been well aware that he had never either installed or dismantled a cold store and that his experience was almost exclusively factory-based. The applicant was either aware that no job safety analysis had been completed for the pull-down job or was negligent in not ensuring that such an analysis had been prepared.

[101] In every respect the applicant failed in his duties in relation to the incident on 27 November. In the circumstances the outcome could have been much worse. I have no option but to find that the applicant’s failures in this regard provided a valid reason for the termination of his employment.

[102] I do not accept the submission put for the applicant that the contractor incident in January is the lynchpin of this matter. I have no doubt that the employer was galvanised to take action following that incident but do not accept that if the applicant was not in fact responsible for that breach there is no valid reason for termination. The incident of 27 November was sufficient of itself to justify the termination of the applicant’s employment. In those circumstances, I do not need to determine whether the applicant was aware of, or condoned, the presence of the contractor who had not been inducted.

Notified of the reason

[103] The applicant was notified of the reason for the dismissal in the letters of 4 and 7 February 2013.

Opportunity to respond

[104] The applicant was given every opportunity to respond to the allegations against him. The allegations were outlined at the meeting of 29 January and set out in writing in the letter given to him that day. He was given time to respond to the letter in writing and did so the next day by a letter dated 29 January 2013. When it became apparent that his employment was likely to be terminated the applicant was given a further opportunity to respond in writing to the proposed termination. His representative responded on his behalf.

Support person

[105] The applicant was accompanied by a support person, Ms Sharon Rice, at the meeting held on 29 January.

Unsatisfactory performance warnings

[106] The applicant’s termination was not for reasons of unsatisfactory performance.

Size of the employer’s enterprise

[107] The employer is a very large company and I am satisfied that the procedures adopted in effecting the termination were not adversely affected by the size of the organisation.

Absence of dedicated human resource management specialist or expertise

[108] There was no claim put for the employer that a lack of dedicated human resources specialists had affected the employer’s ability to properly deal with the matter of the applicant’s dismissal.

Other matters

[109] In determining whether the dismissal was unfair I have had particular regard to the applicant’s lengthy period of service in the same employment. Given my other conclusions in relation to this matter it is unnecessary for me to determine as a matter of law the applicant’s employment status throughout the period 1977 until 2013. It is sufficient for my purposes that the employer appears to have accepted the applicant as an employee with a long period of service in the same business, albeit with a number of changes of company operating that business.

Conclusion

[110] I have accepted that there was a valid reason for the termination. I do not consider that the decision to terminate the applicant’s employment either unjust or unreasonable. I do, however, consider that the manner in which it occurred was harsh. The applicant was summarily dismissed after 35 years of service in the same business. The dismissal was largely based on facts which were well known to the employer by mid-December 2012 yet the dismissal did not take effect until February 2013.

[111] If, as I have found to be the case, the circumstances surrounding the incident of 27 November amounted to serious misconduct and provided a valid reason for the applicant’s summary dismissal then it was incumbent upon the employer, in light of the seriousness of the applicant’s conduct, to suspend him from his position pending a full investigation.

[112] In my view, while the incident of 27 November incident was sufficient reason for the termination of the applicant’s employment, I do not consider that summary dismissal can be justified in circumstances where the applicant was permitted to continue to work as normal for a further two months.

[113] I find that the termination of the applicant’s employment was harsh in that he was terminated without notice. I decline to reinstate the applicant to the position and note that he has obtained other employment. The evidence was that the applicant was without employment for a period of twenty weeks.

[114] In lieu of reinstatement I intend to make an order for compensation. The applicant’s loss amounts to 20 weeks salary. I believe that any order for compensation should be discounted for the misconduct engaged in by the applicant in relation to the incident of 27 November which endangered other workers and exposed the employer to risk. In the circumstances I intend to order that the employer pay to the applicant an amount equal to five weeks’ remuneration.

[115] An order [PR544471] giving effect to this decision is published separately.

Appearances:

Mr D. Grey for the Applicant.

Mr D. Miller, with Ms D. Lamb, for the Respondent.

Hearing details:

2013.

Launceston:

September 12, 13.

 1   Exhibit C1.

 2   Exhibit C1 at Paragraph 67.

 3   Transcript PN329.

 4   Exhibit C3.

 5   Transcript PN395.

 6   Exhibit M1.

 7   Transcript PN1291.

 8   Exhibit M2.

 9   Exhibit M3.

 10   Exhibit M4.

 11   Transcript PN1951.

 12   Exhibit M4, WL-7.

 13   Transcript PN1984.

 14   Exhibit M5.

 15   Exhibit M6.

 16   Exhibit M6 at Paragraph 29.

 17   Transcript PN2461.

 18   Transcript PN2480.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544470>