Isileli Uoifalelahi v Teys Australia Southern Pty Ltd T/A Teys Australia Wagga

[2013] FWC 9560

[2013] FWC 9560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Isileli Uoifalelahi
v
Teys Australia Southern Pty Ltd T/A Teys Australia Wagga
(U2013/666)

COMMISSIONER DEEGAN CANBERRA, 5 DECEMBER 2013

Application for unfair dismissal remedy - dismissal not unfair - application dismissed.

[1] Mr Isileli Uoifalelahi (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) claiming that his employment with Teys Australia Southern Pty Ltd trading as Teys Australia Wagga (the respondent) had been unfairly terminated.

[2] The applicant was employed by the respondent for almost 6 years having been employed by the respondent’s predecessor, Cargill Meats, since March 1997. He was dismissed on 20 February 2013. The application was lodged on 6 March 2013 and was conciliated on 28 March 2013. A failure by the parties to comply with directions, the unavailability of representatives and an adjournment to allow the respondent to seek legal representation, caused a significant delay in the hearing of the matter. The hearing eventually took place on 9 October 2013.

Background

[3] The applicant was employed as a labourer and, at the time of the dismissal, was performing the function of scanning orders and stamping and sealing cartons for export before loading them onto trucks.

[4] On 20 February 2013 when the applicant arrived at work he was told to “go and see HR”. After waiting for some time he was asked to attend a meeting (the termination meeting) with Darren Reynoldson the Load Out Supervisor, Brad Mudge the Boning Room Manager and Sarah Taylor the Human Resources Officer. He was advised that there had been an allegation made that he had been seen urinating on a fence near the loading dock during his shift the previous night. The applicant denied the allegation.

[5] After a short break the applicant’s employment was terminated with immediate effect.

The Applicant’s Evidence

[6] In his statement of evidence 1, the applicant (who was known to his work colleagues as ‘Frank’) claimed to have been talking to a truck driver near the loading bay during his shift on 19 February. He also stated that he had attempted to enter the maintenance room near the loading dock to get something to clean the stamping ink from his hands. As the maintenance room was locked he returned to the loading area until the end of his shift.

[7] According to the applicant’s evidence, prior to the commencement of the termination meeting on 20 February 2013, Ms Taylor asked the applicant if he wished to have anyone accompany him. He had replied “no” as he did not think there was anything wrong.

[8] The applicant stated that when the allegation that he had urinated behind a shipping container was put to him he had denied it. When told there had been an eye witness he had asked who the witness was and “where’s the proof”. After the short break in the meeting the applicant was told that he was being given a second chance to tell the truth. He denied the allegation for a second time, claiming that he was not lying. He was then told that his record had been considered and that there was no option but to terminate his employment. He was handed a letter of termination and escorted from the worksite.

[9] When giving his oral evidence the applicant explained, by reference to the map included as an annexure to Exhibit T1, exactly where he was when he spoke to the truck driver and where the maintenance shed was located. He also described the position of the battery shed. The applicant claimed to have seen Mr Naseem, the Safety Officer, approach the battery shed shortly before he commenced his conversation with the truck driver. The applicant marked the map to indicate the various positions and the marked up map 2 was tendered in evidence.

[10] It was also the applicant’s evidence that the light between the loading dock and the maintenance shed was very poor. The only lighting is directed towards the loading dock.

[11] When questioned about the termination meeting the applicant agreed that he had been asked before the meeting if he wished to have a witness with him. He stated that he had been told during the meeting about the allegation that he had been urinating on the fence and that he had denied it. It was also his evidence that Ms Taylor, the HR officer, had mentioned during the meeting that he had been given a written warning and was on a good behaviour bond. He denied that he was told where he was supposed to have urinated.

[12] Under cross-examination, the applicant was shown a summary of his disciplinary record at Teys. He agreed that the record was correct with the exception of a suspension in the period 1998 to 2001. The matter of that suspension was not pressed by the respondent.

[13] The applicant’s evidence was that he approached the truck driver near the loading dock about 11 to 11.15pm and had a conversation with him for about five minutes about a reptile. He had not advised his supervisor or his colleagues about his movements but claimed that it was standard practice. According to the applicant he had seen Mr Naseem before he started his conversation with the driver and claimed that Mr Naseem was “always hiding in corners, waiting for us to do something wrong to write us up” 3.

[14] The applicant was questioned about his claim that the area between the container and the fence is poorly lit and that he had been in that area at the time the containers were in position. He denied that he had been urinating in the area as alleged.

The Respondent’s evidence

[15] The respondent called four witnesses:

• Mr Naseem Naseem, Workplace Health & Safety Officer;



• Mr Adam John Hughes, Quality Assurance Manager;



• Mr Aaron Allen Collins, Night Shift Load Out Supervisor; and



• Ms Sarah Taylor, then Human Resources Officer.

[16] Naseem Naseem is the Workplace Health & Safety Officer and has been employed by the respondent since August 2011. In his statement of evidence 4, Mr Naseem noted that at the time of the incident he had been conducting nightly checks looking for people smoking, as cigarette butts had been found in the area near the container. He was aware that the applicant was a smoker and was suspicious when, after checking the battery room, he saw the applicant walk behind the container. He followed the applicant and observed him urinating between the container and the fence. Although he had a camera with him he did not take a photo out of respect for the applicant’s privacy. After the applicant left the area Mr Naseem photographed the area where the applicant had been standing. He then advised Aaron Collins, the night shift load out supervisor, about the incident and showed him the affected area. Mr Naseem completed a safety report for management detailing the incident.

[17] Under cross-examination, the witness stated that at the time of the incident his hours of work were 2pm until 12.30am. He also explained the reason for his nightly checks on the battery room. He claimed that he did not hear the applicant call out prior to checking the battery room but did observe him talking to the truck driver as he passed by on his way to the battery room. According to Mr Naseem, he had observed the applicant walk behind the container when moving from the battery room on his way to the boning room. He disagreed that the area where he claimed to have observed the applicant urinating was dark, stating that there were lights in the vicinity. It was his evidence that, although it was a serious incident, he did not approach the applicant at the time as he was concerned that the applicant may have physically threatened him.

[18] Mr Naseem agreed that he had, on other occasions, challenged the applicant about safety breaches, including a failure to wear ear plugs in the loading dock, but reiterated that although the breach on 19 February was serious he did not feel in a position to challenge the applicant at the time, given the circumstances.

[19] When re-examined, Mr Naseem agreed that he was ‘absolutely adamant’ that he saw the applicant urinating through the fence. 5

[20] Adam John Hughes, the Quality Assurance Manager for the respondent, filed a statement of evidence 6 noting that he had been employed by the respondent since June 2010.

[21] Paragraphs 4 to 6 of Mr Hughes statement are as follows:

4. Teys Australia is a food processing facility governed by minimum standards of hygiene and sanitation law outlined in the AS4696:2007 Australian Standard for the hygienic production and transportation of meat and meat products for human consumption.

5. There is also a potential loss of accreditations such as Woolworths Quality Assurance (WQA) British Retail Commission (BRC) McDonalds (MAC) and Aldi, if an external auditor was to observe or be advised that an employee was urinating on site. Losing these accreditations would severely affect the Company financially by potential closure of plant and loss of jobs.

6. The Company would also have serious concerns as to the hygiene of the person, with the potential for cross contamination of product. 7

[22] Under cross-examination, Mr Hughes stated that his role as QA Manager meant that he was responsible for all food safety matters at the plant and for ensuring all regulations were met. He conceded that the policies or standards relating to food hygiene were not made freely available in the plant but the standard was kept in his office. He noted, however, that the standards were referenced in all employee induction processes.

[23] When re-examined, the witness explained that all employees go through an induction process on commencement and that in that process personal hygiene, including all procedures and processes, are discussed. All employees go through a safety induction, are taken on a walk through the plant and shown where all the amenities, such as locker rooms, meal rooms and toilet facilities, are located. It was his evidence that all employees were required to sign off on individual work instructions, which referenced personal hygiene standard operating procedures and their requirements before being allowed to commence work.

[24] The witness statement 8 of Aaron Allen Collins noted that he had been the night shift load out supervisor since May 2012 and had direct responsibility for 16 employees. He was aware that the applicant had worked at the plant for 15 years but considered his service “far from meritorious”9. It was his evidence that the applicant had been given numerous warnings, and his performance breaches included forklift damage and disregard for OH&S practices and policies. He stated that the applicant’s role, which consisted mainly of electronically scanning and sealing products, was largely autonomous with little direct supervision.

[25] The witness stated that he had accompanied Mr Naseem to the site of the urination and observed the wet patch on the ground. He did not raise the matter with the applicant that night as it was close to the change of shift and there was a lot of work to complete.

[26] Further, at paragraphs 11 to 13 of his statement Mr Collins said:

11. All load out employees are fully aware of their food safety obligations and protocols. All of them know that urination within the workplace aside from obvious breach of basic decency standards, is a potentially serious threat to the integrity of product and the licence conditions of the entire plant.

12. All employees know where their allocated and designated ablution facilities are located within the load out building and on occasions, do leave their workplace during rostered hours of work to attend human toileting needs. They do not necessarily need to seek permission to do this nor are such needs only to be attended to during specified work breaks.

13. There was no valid reason which would require or permit Frank to have been away from his work station when Naseem saw him talking to the TOLL driver at approximately 11 pm on 19 February 2013.

[27] When cross-examined, Mr Collins agreed that he had a close relationship with the applicant, spoke to him every night and raised issues with him. He also agreed that he had, in the past, raised safety issues with him, including failure to wear ear plugs and seat belts.

[28] It was Mr Collins’s evidence that he had accompanied Mr Naseem to the area behind the container and that the light was “fine” as there is a light “just around the corner” 10. According to the witness he could see clearly. He agreed that after looking at the area and prior to the end of the shift he did not approach the applicant although he did see him walk past the window. He stated that he did not raise the matter with the applicant “because of the seriousness of it”11.

[29] Mr Collins did not give a statement to Ms Taylor during her investigation as he had “instructed Naseem to put it in the safety report” 12 and had responded to that report. In responding Mr Collins had said that the matter was serious and his recommendation was termination.

[30] In her witness statement 13, Sarah Elizabeth Taylor, then HR Officer at the plant, stated that she knew the applicant and had, on 20 February 2013, received from Mr Naseem, by email, the safety report14 annexed to her statement. She had discussed the report with the General Manager, the Assistant General Manager and the Plant Manager. She had requested security to ask the applicant to report to administration when he presented for his shift that afternoon. When he did so she advised him that there was to be a meeting and asked him whether he wanted a witness or representative with him. He refused the offer. When the meeting commenced about 4.15pm, Ms Taylor again offered the applicant the opportunity to have someone at the meeting with him and he again refused.

[31] According to the evidence of Ms Taylor, the allegation against the applicant was put to him and he was asked to respond. The applicant had said that he had been talking to the truck driver and then had headed to the canteen walking near the fence line. Ms Taylor’s handwritten notes 15 taken at the interview records this response from the applicant. He denied, a number of times, that he had urinated. The applicant was then told that there had been an eye witness.

[32] After about 15 minutes the management representatives had adjourned the meeting and discussed the matter, including the applicant’s previous work and disciplinary history. The issue was also discussed with the Assistant General Manager. It was determined that, despite the applicant’s denial the incident had occurred and, given the serious nature of the misdemeanour, the possible consequences of the applicant’s actions, his previous work and disciplinary history and the fact that he had been put on a good behaviour bond in November 2012, that termination of employment was appropriate. That decision was then confirmed with Mr John Salter, the General Manager Workplace Relations. When the meeting reconvened at 4.45pm, the applicant was advised that his employment was to be summarily terminated for serious misconduct.

[33] Under cross-examination, Ms Taylor stated that she had not gone outside at night to look at the area near the container in order to satisfy herself that Mr Naseem would have been able to see what he claimed. She interviewed Mr Naseem but did not believe she had discussed the matter with Mr Collins. She did not agree that it was necessary for her to inspect the location of the alleged incident to perform a proper investigation. When asked, it was her evidence that Mr Naseem had submitted a statement to her and she questioned him on it. Mr Naseem had also shown her two photographs he had taken of the site of the incident.

[34] According to Ms Taylor it had been a collective decision of senior management that the applicant’s employment should be terminated.

[35] When asked what allegation she had put to the applicant, Ms Taylor responded that he had been told that during his night shift he had been found outside an area near the container on the fence line, urinating. Ms Taylor stated that there had been some discussion about the applicable health and safety standards with the applicant but conceded that nothing was handed to him in that regard.

[36] When it was put to her that after the meeting had been adjourned and then resumed she had told the applicant that they would give him a second chance, Ms Taylor stated that the applicant was told that they would give him another chance to ‘tell the truth’ about the urination.

[37] Ms Taylor denied having drafted the letter of termination that morning stating that she had done so during the adjournment of the meeting with the applicant.

[38] Ms Taylor conceded that the applicant had never before committed an act such as the one alleged against him. It was suggested to her that in those circumstances he was not in breach of his good behaviour bond. She explained that the bond covered a failure to follow any lawful direction or any incidents not ‘in line with company standards’ 16.

[39] The witness agreed that she had considered the reason for the termination of the applicant’s employment to be gross misconduct. She disagreed with the proposal that there had been no risk, imminent or serious, to the reputation, viability or profitability of the employer’s business. She also disagreed that the matter was less serious than if the action could have been witnessed by the public.

[40] When re-examined, Ms Taylor explained that hygiene standards were covered in every induction process. She continued, “(t)here's eating in designated areas, there's smoking in designated areas, anything outside these areas is completely not allowed and not acceptable and obviously there's toilet areas and wash room areas, during the induction every person is shown exactly where they are and that's made extremely clear and definitely we have different cultures on site so even down to the point where we have to say to people any going outside or going to the toilet anywhere else besides these areas is not acceptable” 17.

[41] Ms Taylor stated that the hygiene protocols and procedures are important as the plant is a food processing facility. It was her evidence that she had been involved in external audit programs of the plant in which they need to prove to their major customers that they are following hygiene procedures. She was also aware that the business is regulated by the Australian Quarantine Inspection Service who are present at the plant and are responsible for internal audit processes on employee hygiene standards.

Submissions

[42] It was put for the applicant that there was no dispute that he was a person protected from unfair dismissal at the time of the termination, or that his employment had been terminated by the respondent.

[43] It was put that the incident, if it in fact occurred, occurred in a private, not public, place. In those circumstances it was argued that there was no evidence that the reputation or the viability of the employer's business was put in peril or serious and imminent risk of being put in peril.

[44] While it had been the evidence of Ms Taylor that the respondent was worried about what customers might do if they found out, it was contended that there was no evidence that any customer had found out. In addition, it was put that the nature and location of the task performed by the applicant meant that the hygiene standards were of less importance as he was very much at the end of the process, merely stamping and loading boxes. The applicant was not involved in meat processing or packaging at the plant.

[45] Further, it was argued that the investigation conducted was inadequate.

[46] It was submitted for the respondent that there was a valid reason for the applicant’s dismissal and that he had been given an opportunity to respond to the reasons for that dismissal. It was the respondent’s case that the applicant had absented himself from his work station without permission and had then been observed urinating against the fence. It was also put that the applicant had an appalling work record and that the nature of that record was essentially unchallenged.

[47] It was the respondent’s contention that matters of hygiene are serious matters and not to be trivialised. In a major export food processing plant it is no less serious if conduct such as that alleged against the applicant was committed outside or at night. It puts the license of the premises at serious risk. In this respect, it was noted that the evidence of Mr Hughes in this regard was unchallenged.

Consideration

[48] 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 respondent is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[49] 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

[50] Having heard the evidence of the applicant and the evidence of Mr Naseem, I prefer the evidence of Mr Naseem. On the balance of probabilities, I accept that the applicant did urinate behind the container as alleged. I do not accept that Mr Naseem has any reason for fabricating the story, while the applicant has a vested interest in denying that the behaviour occurred. Mr Naseem’s evidence was clear and consistent. The applicant’s evidence was not consistent. At the meeting on 20 February the applicant claimed to be heading towards the canteen to explain his presence near the fence line while in his statement he said that he was going to the maintenance shed. Both Mr Naseem and Mr Collins stated that the lighting was sufficient for Mr Naseem to see the applicant behind the container while the applicant claimed that the area was dark. The applicant was in the area where the incident took place. Mr Naseem made an immediate report to the night shift load out supervisor about the incident and that person also witnessed the wet patch on the ground. In the circumstances I am satisfied that the incident occurred.

[51] I also accept the evidence of the seriousness of the applicant’s actions in the context of the respondent’s business. I accept that hygiene standards are paramount in an export meat processing plant and that breaches could seriously jeopardise the respondent’s contracts or even put the plant’s licence at risk of suspension. I do not accept the position put by the applicant that the matter is, somehow, less serious because the conduct, if it occurred, occurred at night and out of public view or that the position held by the applicant was not hygiene sensitive. For the reasons put forward by the respondent these matters do not, in any way, diminish the seriousness of the breach of the standards.

[52] I am satisfied that the length of the applicant’s service and the training provided to all employees was such that the applicant was not under any misapprehension as to the serious nature of the breach he committed.

[53] In all the circumstances, I am satisfied that there was a valid reason for the dismissal.

Notified of the reason

[54] The applicant was notified of the reason for his dismissal both at the meeting on 20 February 2013 and by the termination letter handed to him the same day.

Opportunity to respond

[55] The applicant was provided with an opportunity to respond to the allegation made against him on two separate occasions (before and after the break) at the meeting held on 20 February.

Support person

[56] The applicant was offered, but refused, the assistance of a support person at the meeting of 20 February. Given his disciplinary record, I am satisfied that he would have been well aware of his entitlements in this regard.

Unsatisfactory performance warnings

[57] The evidence was that the applicant had been given many warnings about his unsatisfactory performance in the past. His employment had been suspended on one occasion and, at the time of his dismissal, was on a good behaviour bond and subject to summary dismissal for any breach of the respondent’s policies.

Size of the employer’s enterprise

[58] The respondent 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

[59] There was no claim put for the respondent that a lack of dedicated human resources specialists had affected the respondent’s ability to properly deal with the matter of the applicant’s dismissal. The plant Human Resources Officer, Ms Taylor, managed the process that led to the termination process and Mr Salter, General Manager Workplace Relations, was consulted before the decision to terminate the applicant’s employment was taken.

Other matters

[60] I have had particular regard to the applicant’s lengthy period of service in the same employment. I have also had regard to his disciplinary record, the imposition of the good behaviour bond and the serious nature of the hygiene breach committed by the applicant, including the potential for such a breach to jeopardise the business of the respondent.

Conclusion

[61] In all the circumstances of this matter, I do not consider the termination of the applicant’s employment to have been harsh, unjust or unreasonable.

[62] As the dismissal was not unfair, the application is dismissed. An order [PR545365] to that effect is published separately.

Appearances:

Mr M. Cleary, of Counsel, for the Applicant.

Mr J. Salter, for the Respondent.

Hearing details:

2013.

Canberra:

October 9.

 1   Exhibit U6.

 2   Exhibit U5.

 3   Transcript PN428.

 4   Exhibit T1.

 5   Transcript PN690.

 6   Exhibit T2.

 7   Ibid, at Paragraphs 4-6.

 8   Exhibit T3.

 9   Ibid, at Paragraph 4.

 10   Transcript PN769.

 11   Transcript PN775.

 12   Transcript PN789.

 13   Exhibit T4.

 14   Ibid,, Annexure 3.

 15   Exhibit T4 Annexure 5

 16   Transcript PN963.

 17   Transcript PN1018.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR545364>