Jason Hansen v Ceres Natural Foods Pty Ltd T/A Pure Harvest
[2018] FWC 1052
•19 FEBRUARY 2018
| [2018] FWC 1052 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Hansen
v
Ceres Natural Foods Pty Ltd T/A Pure Harvest
(U2017/11638)
| DEPUTY PRESIDENT GOOLEY | MELBOURNE, 19 FEBRUARY 2018 |
Application for an unfair dismissal remedy.
Mr Jason Hansen was employed by Ceres Natural Foods Pty Ltd from November 2008 until his employment was terminated on 26 October 2017. While initially employed as a casual he became a permanent employee on 27 June 2016.
Prior to the hearing of the matter, a telephone conference was held and I advised the parties that I would grant permission for both parties to be represented as I accepted that neither party would be able to represent themselves effectively. Further, having conferred with the parties, I determined to conduct the matter by way of hearing.
Mr Hansen was employed as a production packaging operator on the night shift. Mr Hansen’s letter of termination noted that he was, at the date of his dismissal, on a performance and conduct improvement plan. It further noted that on 25 October 2017 Mr Hansen was verbally warned not to have his mobile phone whilst on the forklift. It further stated that within approximately two hours Mr Hansen was found to be texting with his mobile phone whilst on a forklift. Mr Hansen‘s employment was terminated and he was paid two weeks’ pay in lieu of notice.
It was not disputed that the relevant company policy provided rules for mobile phone use. The policy provided that:
“Use of mobile phones is prohibited whilst performing operational tasks. In this context, ‘use of mobile phones’ should be taken (but not limited to) mean talking/chatting, texting, playing games, using Applications etc. Consider this document as a ‘warning’ in disciplinary terms.
….
This policy covers you during the performance of all working tasks, whether you are on a production line or using any form of machinery or equipment.”
It further provides that employees must “keep personal calls to a minimum, both in number and time.”
The first forklift incident on 25 October 2017
Mr Hansen gave evidence that when he attended work on 25 October 2017 he needed to attend to a palletizer immediately and did not place his bag in the usual place. He immediately jumped on the forklift.[1] He stopped the forklift to have a discussion with his supervisor Mr Terry Parker and said he had not noticed that his mobile phone had fallen out of his pocket.[2] Mr Parker noticed the phone and said “no phones on the fork lift. I can only assume that you had been using it.” Mr Hansen replied “No worries, it’s fallen out of my pocket, I’ll put it away.” Mr Parker said “No worries.”[3]
Mr Parker’s evidence about this incident was that Mr Hansen stopped his forklift. “As he raised his right arm to put his hand on the steering wheel [he] saw [Mr Hansen’s] mobile phone drop down onto his seat and fall onto the platform of the forklift.”[4]
Mr Parker said he asked Mr Hansen “what is this?” and Mr Hansen replied “it must have fallen out of my pocket.”[5]
Mr Parker said that Mr Paul Golby, Mr Hansen’s supervisor, was approaching and he said “I’m sorry guys but mobile phones and forklifts cannot co-exist. Everyone knows this and that Health and Safety takes priority.”[6]
Mr Hansen repeated that he had not been using the phone and it fell out of his pocket. Mr Parker said he gave Mr Hansen the benefit of the doubt because he had not seen him use the phone. He then said words to the effect of “Make sure in future you are not using the phone while on the forklift” and Mr Hansen replied “yeah yeah I know.”[7]
Mr Hansen told him that he had not had time to put his phone away but he would put it in his bag.
In cross examination, Mr Hansen said that Mr Parker said to him “no mobile phones while driving a forklift.”[8] He subsequently said Mr Parker said something to the effect of “no mobile phones on forklifts. I don’t know whether that was the exact words.” He accepted that Mr Parker may have said something like mobile phones and forklifts cannot co-exist to Mr Golby.”[9] He subsequently said that he should not be using the mobile phone while driving a forklift not while on a forklift.[10]
In cross examination, Mr Parker was very clear that he told Mr Hansen that he was not to use his phone while on the forklift not while driving the forklift.[11]
While Mr Parker conceded that there would be no potential danger if someone was sitting on a forklift that was turned off, however it was his view even if the forklift wasn’t going if someone was sitting on the forklift that “you’re still on the forklift so still in possession of the forklift. And again can I be sure that he won’t be using the forklift? So I would have to say no. I’d have to say, “You’re on the forklift. You’ve got a mobile phone. Can you please get off the - off the forklift or stop using the equipment” would be my call.”[12]
Mr Golby, in cross examination, said that Mr Parker told Mr Hansen that he was not allowed to have his phone or be using his phone on the forklift.[13] He said he heard Mr Parker say “no phones on the forklift. I can only assume you’ve been using it.” He said words to the effect of “under no circumstances should you have your phone on the forklift.”[14] He recalled that Mr Hansen said it had fallen out of his pocket.[15] He subsequently said Mr Parker said “under no circumstances should you be using your phone on the forklift, or having your phone on - I can’t remember the exact words but it was words to that effect.”[16]
Mr Golby said it was his view that mobile phones were not allowed on forklifts[17] but he did not produce any documents to back up this claim.
Findings
I am not satisfied that there is sufficient evidence to establish that on this occasion Mr Hansen used his phone whilst on the forklift.
I am however satisfied that Mr Parker told Mr Hansen not to use his mobile while on the forklift. I prefer Mr Parker’s evidence to Mr Hansen’s. Mr Parker’s evidence is consistent with Mr Hansen’s evidence in chief[18] and it is consistent with Mr Golby’s evidence. Mr Golby while he could not precisely remember what words were used as he could not recall whether Mr Golby said using or having the phone but he did not hear Mr Parker refer to the prohibition being limited to when the person was driving the forklift.
The second forklift incident on 25 October 2017
Mr Hansen said that just after 7pm he jumped on his forklift. He said it was not switched on and was not moving. He said he had the ignition key in his hand. His phone was in his pocket.[19]
His phone vibrated and he picked up his phone to see if it was his wife as one of his children has serious medical issues. He said Mr Golby said “you’re on the phone again.” Mr Hansen said he jumped off the forklift which was not running and said “sorry” and put his phone away.[20]
Mr Golby said that he saw Mr Hansen “fiddling with, or otherwise texting, on his mobile phone whilst sitting on a running forklift.[21]
Mr Golby said he immediately spoke to Mr Hansen and said “Jason what are you doing. On the phone again. I can’t believe it was less than two hours ago you were told by Terry Parker that under no circumstance should anyone use their mobile phone on a forklift.”[22]
He said Mr Hansen replied “the tines are lowered and the handbrake is on. It’s safe.”[23]
Mr Golby said he said “it’s not safe you still have it running and Terry told you about this less than two hours ago. I’m going to speak to Don about this.”[24]
He said Mr Hansen replied “I’m putting it away now dude.”[25]
In cross examination, Mr Hansen said he did not look at the phone because Mr Golby saw him.[26] He accepted that he did not have permission to take out his mobile phone whilst on the forklift.[27] He said he unconsciously had a look at it but denied reading it or fiddling it. He just looked at it and hit the power button. He then said he “barely pushed the button. Went to push the button.”[28] He said the screen lit up but he hadn’t unlocked the phone or read anything when Mr Golby said something.[29] He just jumped off and put it in his bag.
Mr Hansen said he showed Mr Golby the forklift was in neutral, his foot was on the brake and the key was in his hand and the tines were on the floor.[30] Mr Hansen reiterated that the forklift was not turned on.[31]
In cross examination, Mr Golby said that Mr Hansen was on the forklift with the handbrake on and the tines lowered as he was waiting to take a pallet from the end of the line.[32]
Mr Golby said he knew the forklift was running because he was standing next to it and he could hear it running.[33]
Mr Golby further said that after Mr Hansen was dismissed he said “you’ve only caught me on the phone once” and “yes I fucked up but you could have just told me to put the phone away.”[34] These statements were included in a note Mr Golby sent to Mr
Ritchie on 30 October 2017. Mr Hansen denied making those statements.
Findings
I am satisfied that Mr Hansen was using his mobile phone on this occasion. When it vibrated he could have simply left it in his pocket. However he chose to take it out of his pocket and, even on his own evidence, he looked at it and attempted to turn it on. This supports Mr Golby’s version that Mr Hansen was fiddling with his phone.
I am also satisfied on the balance of probabilities that the forklift was turned on albeit stationary with the tines down. I prefer Mr Golby’s evidence over Mr Hansen’s evidence. Mr Hansen said he jumped on the forklift because he saw a pallet coming from the palletizer with a completely stacked pallet. He jumped onto the forklift seat as it was his job to get the pallets. It is inconceivable that he would not have immediately turned on the forklift. Further, Mr Golby told Mr Don Lazzaro, the Managing Director, that the forklift was on at the time he reported the incident. Mr Golby was not challenged on this evidence[35] and Mr Lazzaro was called as a witness for Mr Hansen and he was not questioned about this evidence. That the forklift was running is also consistent with the comments made by Mr Hansen to Mr Golby after his employment was terminated. Mr Golby made a record of those comments soon after they were made.
I am not satisfied that Mr Golby mistakenly thought the forklift was on. Mr Golby did not object to employees having or using their mobile phones except when the employee was operating the forklift or in other areas where it was prohibited. By contrast Mr Hansen had a reason to be mistaken. He knew that he had only recently been warned about this and he knew he was on a final warning.
The victimisation claim
Mr Hansen claimed to have been victimised by Mr Golby because others used mobile phones and are still employed.[36] He said he raised this with his manager Mr Michael Youngman. Mr Youngman provided a witness statement and was not required for cross examination. It was his evidence that his complaints against Mr Golby were not substantiated. That Mr Golby did not know that other employees had been reprimanded or disciplined did not mean it had not happened.[37]
There was no evidence before the Commission that would support a finding that Mr Hansen had been treated differently to other employees in the same situation.
Prior incidents
Mr Hansen was given a warning on 27 February 2017. The warning was signed by Mr Hansen and he agreed that it was his error and he accepted the warning.[38]
He received a further warning on 19 April 2017 which he refused to sign saying the mistake did not arise because of any carelessness on his part.
On 10 August 2017, Mr Hansen received a final written warning. That warning referred back to incidents that had occurred in July 2017. Again, Mr Hansen denied any responsibility for these incidents. As a result Mr Hansen was transferred from blending to the Transfer Lobby. He was advised that if he did not meet the requirements of this position it, may lead to further disciplinary action.[39]
In September 2017, on a Thursday, Mr Hansen contacted work late and advised that he would not be at work.[40] He was not sick and he had not applied for leave. He was not rostered on to work again until Monday. Mr Hansen went interstate and texted and told them he would be away longer than expected and was told his shift was covered.[41] In cross examination Mr Hansen said he rang the day supervisor and said he would not be back for his shifts the next week. Mr Hansen did not apply for leave for this period or provide any evidence to Mr Golby as to why he was absent from work.
Mr Golby met with Mr Hansen to discuss his absence when he returned to work. Mr Hansen said that Mr Golby told him he had not given enough notice and asked him why he was absent. It was Mr Hansen’s view that he was not legally required to tell Mr Golby why he was absent. Mr Hansen said he was suspended for two weeks. After he returned, he met with Mr Golby, Mr John McCarthy, Mr Youngman and Mr Lazzaro. He had his partner as his support person. He did not say what happened at this meeting but he did subsequently receive the 18 September 2017 letter.[42]
Mr Golby said that that Mr Hansen was absent when no request for any type of leave had been received. He said the told Mr Hansen that this was a serious disciplinary matter and that he could be dismissed if he did not provide a valid reason for being away. Mr Hansen said that he had been told it was OK when he said he would not be in. Mr Golby was of the view that the company had been given no choice. Mr Hansen said he was not applying for any kind of leave. He said he had told Mic he would not be in. Mr Golby told him that he had given them no option but to accept that he wouldn’t be in. Mr Golby said that Mr Hansen had sent a text message after his shift had started which said “may not be in tonight.” Mr Hansen said he had called at 6.20pm but had declined the opportunity to speak to Mr Golby. He said he messaged Mic on Sunday and then Mr McCarthy sent Mic a message saying that Mr Hansen wouldn’t be in on Monday or Tuesday because they were interstate. Mr Hansen said he had sent several messages to Mr McCarthy and tried to call him but got no response. He then spoke to Mr McCarthy on Monday and Mr McCarthy said he had covered Monday and Tuesday. Mr Hansen did not attend on Wednesday either. Mr Hansen claimed his partner had let Mr McCarthy know he would not be in.[43]
Mr Golby suspended Mr Hansen with pay and arranged a meeting between Mr Hansen and Mr Lazzaro. Mr Golby said that Mr Hansen became aggressive towards him and made allegations against Mr Golby. He denied Mr Hansen was suspended for two weeks as the meeting occurred on Wednesday prior to his normal shift.[44] Mr Lazzaro said he discussed this issue with Mr Hansen.[45]
As a consequence, Mr Hansen was placed on a four week performance and conduct improvement plan. The plan had been put in place on 18 September 2017.[46]
Mr Hansen was advised that during this time he would be provided with feedback and instruction to ensure he met requirements. He was advised that if at the end of the four weeks they found that his conduct and/or performance throughout the PCIP was unacceptable his employment would be terminated.[47]
There was little evidence of the steps taken by Ceres to monitor his progress during the four weeks. The four week plan expired on 17 October 2017. Mr Hansen was dismissed on 26 October 2017. Mr Golby said that he spoke to Mr Hansen about his performance when he came back from annual leave. He said he tried to speak to Mr Hansen before he went on leave but he “stormed off and didn’t want to hear about it.”[48] He said he told Mr Hansen that his performance was still not acceptable. He said that the four weeks was extended by a week because of Mr Hansen’s absence from work and while it was not formally documented he had another discussion with Mr Hansen in which he again told him that his performance was not satisfactory.[49] No further action was taken because he was dismissed.
The dismissal
Mr Golby said that shortly after the forklift incident he met with Mr Hansen in his office and offered him a support person. He said Mr Hansen replied “what’s the point.” Mr Golby said they discussed the safety breaches and Mr Hansen’s refusal to do what he was told. Mr Golby said they would consider his response.[50]
Mr Hansen said that Mr Golby came back to him and told him he had spoken to the owner and asked him what he wanted done about Mr Hansen. Mr Hansen told Mr Golby he could have just said “put the phone away.”[51]
In cross examination, Mr Hansen said he had a discussion with Mr Golby in the lobby area and in response to the question whether he was offered a support person he said he could not recall this or his response but he might have said “what’s the point.” He accepted there had been a discussion about the warnings and he said to Mr Golby “why couldn’t you just tell me to put the phone away?” That’s the first time I’ve ever used the phone on the forklift – sitting on a forklift, whether it be moving or stationary.”[52] He denied that Mr Golby raised with him his repeated breaches of policy but accepted that he did raise with him the warning from Mr Parker.[53] He could not recall Mr Golby telling him he would consider his response.[54]
On the following day Mr Golby met with Mr Hansen and gave him the termination letter.[55]
Post termination conduct
After Mr Hansen was given his termination letter Mr Golby said that Mr Hansen swore at him and became aggressive. In his witness statement, Mr Hansen described this as a verbal exchange.[56]
Mr Hansen denied some the allegations made by Mr Golby, though he accepted that he used the f word at Mr Golby. He denied that he became aggressive. Again, I prefer Mr Golby’s evidence about Mr Hansen’s conduct because Mr Golby reported the conduct in detail to both Mr Ritchie and Mr Lazzaro before Mr Hansen filed his unfair dismissal claim. Further, Mr Hansen’s conduct on this occasion was similar to Mr Hansen’s conduct when he was suspended and Mr Golby was not challenged about this evidence.
Was the termination of employment harsh, unjust or unreasonable?
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(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);
I am satisfied that there was a valid reason for the dismissal. The reason for the dismissal was Mr Hansen’s failure to follow the direction not to use his mobile phone whilst on the forklift. Forklifts are dangerous pieces of equipment. I am satisfied that using a mobile phone when on a forklift which is running is unsafe.
I have accepted that the forklift was running. As a consequence, taking his phone out of his pocket because it was vibrating breached the earlier direction of Mr Parker and the policy as he was operating the forklift at that time. Mr Hansen had been warned about this conduct barely two hours earlier. Even if I accepted that the policy was ambiguous, which I do not, Mr Hansen was clearly told he could not use his mobile phone when he was on the forklift.
In assessing whether there was a valid reason for the dismissal (my emphasis) I have had regard to the fact that Mr Hansen was on a final warning. That final warning, in part arose, because of Mr Hansen’s failure to comply with the requirement to apply for leave in advance or if that was not possible, because he required personal/carer’s/bereavement or community service leave because of an emergency, to provide evidence to support the leave. Mr Hansen acknowledged that he knew the correct procedures for applying for leave.[57]
Whatever criticism there may have been about some of the other matters relied upon by Ceres to place Mr Hansen on an improvement plan I am satisfied that Mr Hansen did not follow Ceres’ reasonable and lawful directions and that he had had sufficient opportunity to alter his behaviour.
It was put that Mr Hansen’s conduct after he was dismissed supported a finding that here was a valid reason for the dismissal. I do not accept that submission. By the time this conduct occurred Mr Hansen was no longer an employee. This is not a situation where conduct relied upon to justify termination was only discovered after termination. While I accept that this conduct would be a relevant consideration in determining an appropriate remedy, it cannot be relied upon to support a submission that there was a valid reason for dismissal.
s387(b) whether Mr Hansen was notified of that reason;
I am satisfied that Mr Hansen was notified about the reason for his dismissal before the decision was made to terminate his employment. Mr Golby met with Mr Hansen about the incident and Mr Hansen accepted that the incident and the previous warning were discussed.
s387(c) whether Mr Hansen was given an opportunity to respond to any reason related to the capacity or conduct of the person;
I am satisfied that Mr Hansen was given an opportunity to respond to the reasons and he did respond.
s387(d) any unreasonable refusal by the employer to allow Mr Hansen to have a support person present to assist at any discussions relating to dismissal;
I am satisfied that Mr Hansen was offered the opportunity to have a support person and he declined to have a support person.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Hansen had been warned about that unsatisfactory performance before the dismissal;
Mr Hansen was not dismissed because of unsatisfactory performance, though he had been warned about poor performance and it was one of the reasons he was on a final warning.
s387(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;
Both parties agreed that this was a neutral consideration.
s387(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;
Mr Dircks submitted that this was a neutral consideration. However, he submitted that Mr Hansen was entitled to a fair go notwithstanding the size of the respondent and the lack of human resource specialists.
Mr Richie submitted that there were no dedicated human resource management specialists and this should sway in the respondent’s favour.
I accept some of Mr Dircks’ criticisms of the management of Mr Hansen’s performance issues. The warnings did not with any real specificity detail the skills he needed to develop or improve and seemed to include a grab bag of complaints. For example the letter of warning given on 10 August 2017 made reference back to an incident in December 2016. There was no evidence that at that time as a result of this incident Mr Hansen was warned or counselled about this conduct. This was again raised in the final warning of 18 September 2017.
I am satisfied that, as Mr Hansen acknowledged, he was aware that his job was hanging by a thread.[58] I am satisfied that the procedures followed by Ceres in effecting the dismissal afforded Mr Hansen a fair go. He was clearly told what he had done and he was given an opportunity to respond.
s387 (h) any other matters that the Fair Work Commission considers relevant.
It was submitted that Mr Hansen was a long serving employee without any blemishes.[59] I am unable to accept that submission. Mr Lazzaro, who was called by Mr Dircks, gave evidence in response to the suggestion that there were no issues until early 2017 that there were and there had been discussions about those issues but that Mr Hansen had been given the benefit of the doubt.[60] Further, whatever criticism there may have been about how the performance issues were managed Mr Hansen’s performance in the blending areas was such that he was transferred to another area. This was after three separate incidents involving Mr Hansen.
It was also submitted that he would have difficulty finding well paid employment.[61] It was submitted that as a consequence the dismissal was harsh. Mr Hansen gave no evidence about the impact of this loss of employment on his personal situation. It was submitted that I should simply assume the impact because he had lost his job and had not been able to obtain equivalent employment. While I accept that the loss of employment will have a negative impact on any person, that is not enough to support a finding that a dismissal was harsh. It is necessary for evidence to be put before the Commission of the circumstances faced by the employee that make the particular termination harsh.
Conclusion
I am satisfied that there was a valid reason for the dismissal and that Mr Hansen was afforded procedural fairness. I have considered whether Mr Hansen’s personal circumstances make the dismissal harsh. Mr Dircks emphasised Mr Hansen’s length of service and that as a consequence of his dismissal Mr Hansen who had nearly seven years’ service did not have the opportunity to qualify for long service leave. Had it not been for the warning a mere two hours before I may have concluded that the dismissal was harsh. But Mr Hansen had choices when his phone vibrated. He could have ignored it. He could have got off the forklift and looked at this phone. He made a choice to get his phone out knowing of the warning and knowing he was on a final warning. In all the circumstances I am unable to conclude that the dismissal in those circumstances was harsh. Ceres was entitled to take the view that enough was enough.
Accordingly Mr Hansen’s application for an unfair dismissal remedy is dismissed and an order[62] to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
G. Dircks for the Applicant.
M. Ritchie for the Respondent.
Hearing details:
2018.
Melbourne:
29 January.
[1] Exhibit A1 at [53]-[55]
[2] Ibid at [57]-[59]
[3] Ibid at [60]-[62]
[4] Exhibit R2 at [7]
[5] Ibid at [7]-[8]
[6] Ibid at [10]
[7] Exhibit R2 at [12]
[8] Transcript PN 513
[9] Ibid PN 528
[10] Ibid PN 540-541
[11] Ibid PN 949-951
[12] Ibid PN 955
[13] Ibid PN 1047
[14] Ibid PN 1052
[15] Ibid PN 1053
[16] Ibid PN 1056
[17] Ibid PN 1057
[18] Exhibit A1 at [60]
[19] Ibid at [66]-[67]
[20] Ibid at [68]-[74]
[21] Exhibit R3 at [45]
[22] Ibid at [49]
[23] Ibid at [50]
[24] Ibid at [51]
[25] Ibid at [52]
[26] Transcript PN 586
[27] Ibid PN 601-602
[28] Ibid PN 603-606
[29] Ibid PN 607
[30] Ibid PN 614
[31] Ibid PN 615
[32] Ibid PN 1017-1018
[33] Ibid PN 1226, 1229-1230, 1236
[34] Exhibit R3 at PG8
[35] Transcript PN 1017-1018
[36] Exhibit A1 at [96]-[97]
[37] Exhibit R1 at [4]
[38] Exhibit A1 at [11]-[15]
[39] Ibid at JH4
[40] Ibid at [42]
[41] Ibid at [43]
[42] Ibid at [44]-[50]
[43] Exhibit R3 at [30]-[34]
[44] Ibid at [38]-[43]
[45] Transcript PN 1361
[46] Exhibit R3 at PG4
[47] Exhibit A1 at JH5
[48] Transcript PN 1290
[49] Ibid PN 1293-1299
[50] Exhibit R3 at [55]
[51] Exhibit A1 at [76]-[78]
[52] Transcript PN 636-638
[53] Ibid PN 644-655
[54] Ibid PN 649
[55] Ibid PN 669 and Exhibit R3 at [58]-[59]
[56] Exhibit A1 at [92]
[57] Transcript PN 477-481
[58] Ibid PN 495
[59] Ibid PN 1508
[60] Ibid PN 1349-1350
[61] Ibid
[62] PR600505
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