James Corrigan v WesTrac Pty Ltd

[2015] FWC 3138

[2015] FWC 3138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Corrigan
v
WesTrac Pty Ltd
(U2014/15178)

COMMISSIONER WILLIAMS PERTH, 12 MAY 2015

Termination of employment.

[1] This matter concerns an application made by Mr James Corrigan (Mr Corrigan or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent identified on the application is WesTrac Pty Ltd (WesTrac or the respondent).

Background

[2] Mr Corrigan was first employed in January 2013 and was dismissed in October 2014. The letter of termination provided to Mr Corrigan on 27 October 2014 explained that the termination was the result of a serious safety breach. Mr Corrigan was dismissed with two weeks payment in lieu of notice.

[3] At the hearing of this matter the applicant was self represented and the respondent was represented by Mr Ben Stocks the Human Resources Operations Manager.

[4] The applicant gave evidence on his own behalf and the respondent called Mr Darryl Biffin (Mr Biffin) the Workshop Coordinator of WesTrac’s Small Engines Department, Mr Michael Bracken (Mr Bracken) an Apprentice Diesel Mechanic, Mr William Sugrue (Mr Sugrue) the respondent’s Human Resource Advisor and Mr Samuel Law (Mr Law) the respondent’s Health Safety Environment and Quality Advisor.

Findings

[5] Considering the witness evidence in this case I find as follows. The applicant was first employed in January 2013. The applicant is a mature aged Apprentice in his second year with WesTrac.

[6] In March 2014 Mr Corrigan was provided with a copy of WesTrac’s lifesaving rules. One of those lifesaving rules is that only a trained and competent Dogman or Rigger is permitted to sling or rig a load.

[7] Prior to rotating into the respondent’s Small Engines Department Mr Corrigan had worked for 10 weeks in the neighbouring Final Drives Department. Mr Corrigan moved into the Small Engines Department on 29 September 2014.

[8] Mr Corrigan advised Mr Biffin the Workshop Coordinator at the time that he had an overhead crane ticket but not a dogman ticket. The evidence of Mr Biffin which I accept is that he advised Mr Corrigan at that point that if any dogging or rigging was required for a lift that it had to be completed by a fully trained Rigger or Dogman. Mr Corrigan was not a Rigger or a Dogman.

[9] On Friday, 10 October 2014 at the pre-start meeting Mr Biffin informed the attending employees that under WesTrac’s policy all employees needed to have a rigger or dogman ticket in addition to an overhead crane ticket if they were required to dog and lift a load. Mr Corrigan was in attendance at that meeting. 1

[10] Mr Corrigan’s evidence which I accept is that at this time Mr Biffin was accompanied by the Supervisor of the Final Drives Department. They came out and told everyone in the respective sections that they needed a dogman license to use the crane. Mr Corrigan did not believe this was correct and questioned Mr Biffin about this because he had been using the crane in his daily work for approximately two weeks prior in the Small Engines Department and for 10 weeks prior in the neighbouring Final Drives Department. Mr Corrigan explained to Mr Biffin his contrary understanding of crane usage and dogging requirements.

[11] Mr Corrigan believed Mr Biffin seemed satisfied that Mr Corrigan knew what he was talking about and Mr Corrigan says he assumed Mr Biffin went to check up on the rules himself. Mr Corrigan accepts in hindsight that he was incorrect regarding his understanding of these rules.

[12] Thereafter Mr Corrigan carried on working and some time later that day was lifting a turbocharger weighing approximately 60kg onto a small pallet using the crane. Mr Biffin came across the floor and yelled “What did I just say?” Mr Corrigan’s evidence was that Mr Biffin went on to say that even though he had an overhead crane license he couldn’t move the crane with a load on it. Mr Corrigan challenged this explaining to him that during the practical test to obtain the crane license he had been required to move the crane with a load on it.

[13] Mr Corrigan’s own evidence is that Mr Biffin then walked away saying “It’s your call, but it’s not worth losing your job over.”

[14] The following Monday, 13 October 2013 Mr Biffin again conducted a pre-start meeting attended by Mr Corrigan, 2 where he repeated the instruction to all employees that they were not to use a crane if they did not have a crane ticket and they were not to hook up a load without a dogman ticket.

[15] Mr Corrigan agrees he understood the instruction from Mr Biffin but disagreed with him 3. Mr Corrigan’s evidence was that he was frustrated because often the work scope required a crane to be used and having to ask workmates who were qualified to dog the load was inconvenient to them and meant at times he had to wait from 10 to 30 minutes to get a lift done. He did however follow this course of action for some time and asked qualified workmates to dog a load for him in accordance with Mr Biffin’s direction.4

[16] Mr Corrigan’s evidence was that he started to feel like others were thinking he was slow. There was no evidence that Mr Corrigan was ever criticised by the respondent about the speed of his work or for any delays.

[17] Mr Corrigan spoke with several other employees and some were of the same understanding as him that if a load has a designated lifting point a dogman license isn’t needed. He however did not pursue the issue further with Mr Biffin. Further Mr Corrigan did not speak to any other Supervisors or Leading Hands about this issue. He also did not speak to anybody in the Safety Department about this issue.

[18] On the morning of 23 October 2014 Mr Corrigan was working with Mr Bracken in stripping an earthmoving diesel engine. Mr Corrigan had got to the point of removing the front engine cover. He noticed that the cover looked like it would be too heavy to remove without the assistance of a lifting aid. He attached a lifting chain hook to the engines designated lifting point which was fixed to the top of the front cover. He then checked the manufactures removal procedure on the computer and confirmed the weight of 70kg to be too heavy to lift without a lifting aid from a height of about 1.5m to the ground.

[19] Mr Corrigan returned to the engine and removed the cover ensuring the crane took the weight and lowered the cover onto a pallet a metre from where he was working.

[20] At this point Mr Biffin approached and said “What did I tell you?” Mr Corrigan asked him what he meant, and Mr Biffin replied “I told you, weren’t allowed to lift anything with the crane.”

[21] Mr Corrigan responded by telling Mr Biffin flatly he was wrong. Mr Biffin became angry and started yelling. Mr Corrigan said “F... this” and started packing up his tools. Mr Biffin calmed down a little and asked Mr Corrigan if “These were the cards you want to play?” Mr Corrigan responded “yes” and went outside.

[22] Before he left Mr Biffin asked him who had rigged the load. Mr Corrigan responded that it was Mr Bracken. Mr Corrigan says he replied this way because Mr Bracken was a licensed Dogman and was present during the lift.

[23] The evidence is that Mr Bracken was qualified to rig the load. The evidence of Mr Bracken however which was not challenged and which I accept is that he was working on the rear of the engine at the time of the incident while Mr Corrigan was disassembling the front. Mr Bracken was busy with his work and not really looking at what was going on at the front of the engine. Mr Bracken did not rig the load for Mr Corrigan nor give him any instructions on that or supervise him in doing so.

[24] Mr Corrigan concedes that he took it upon himself to rig the load even though he understood the respondent’s requirements to hold a rigger or dogman ticket to do so.

[25] The respondent then carried out an investigation into what had occurred. Mr Corrigan was involved in the investigation and was given an opportunity to provide his version of the relevant events. He was also given a further opportunity at a meeting to explain his actions and provide any further evidence before a final decision was made.

Consideration

[26] Mr Corrigan argues that there was some confusion in his mind because for some time he had been using the overhead crane in a manner contrary to that of the Supervisors’ directions to him and all other employees given on 10 and 13 October 2013. Mr Corrigan submits that complying with the directions of the Supervisors made it difficult to carry out his work and he perceived it put pressure on him.

[27] What is clear from the evidence is that Mr Corrigan was quite clear on the direction from his Supervisors that he could not rig a load because he did not have a dogman or rigger ticket. Mr Corrigan disagreed with this direction and believed it was incorrect, inefficient and was slowing him down in his work. There is no evidence however that WesTrac was at any time critical of Mr Corrigan’s productivity.

[28] The applicant was not a trained Rigger or Dogman.

[29] The applicant undertook a lift of an engine cover which could only be undertaken under WesTrac’s rules by a trained Rigger or Dogman. The applicant was fully aware of WesTrac’s rules in this regard. This particular WesTrac rule had been reinforced with him on three occasions, all less than two weeks before the incident, initially at two pre-start meetings which he attended and then separately in discussion with his Supervisor in circumstances where he had been seen breaking the rule. In Mr Corrigan’s own evidence at that time he was advised it was not worth losing his job over. I do not accept that at the time of the incident on 23 October 2013 there was any confusion in Mr Corrigan’s mind as to what WesTrac’s requirements were. Mr Corrigan simply disagreed with the rule and because he thought it was inefficient chose to ignore it.

[30] Consequently I am satisfied that his conduct in rigging the load contrary to WesTrac’s rules, which he was aware of and bound to follow, was a valid reason for his dismissal which potentially put at risk the safety and welfare of himself and other employees.

[31] Mr Corrigan was notified of the reason he was dismissed and was aware during the investigation period that WesTrac were considering dismissing him for this conduct.

[32] Mr Corrigan did have an opportunity to respond to the reason he was ultimately dismissed for.

[33] There was no unreasonable refusal to allow Mr Corrigan to have a support person present to assist at any discussions relating to his dismissal.

[34] The procedures followed were consistent with the fact that the respondent is a large enterprise which does have dedicated human resource management specialists.

[35] Mr Corrigan is remorseful about his actions and agrees in hindsight his actions were ill considered.

[36] Mr Corrigan had been employed for less than two years.

[37] In all these circumstances there is no basis to conclude that the dismissal in this case was harsh, unjust or unreasonable. The dismissal of Mr Corrigan was not unfair and this application will be dismissed.

[38] An order will be issued to that effect.

COMMISSIONER

Appearances:

J Corrigan on his own behalf.

B Stocks on behalf of the respondent.

Hearing details:

2015.

Perth:

April 8.

 1   Exhibit R1, Attachment DB1.

 2   Ibid., Attachment DB2.

 3   Transcript at PN54.

 4   Ibid., at PN60.

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<Price code C, PR567104>