John Ingham v Metro Quarry Group Pty Ltd

[2015] FWC 6472

[2015] FWC 6472 [Note: An appeal pursuant to s.604 (C2015/6831) was lodged against this decision - refer to Full Bench decision dated 4 February 2016 [[2016] FWCFB 47] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Ingham
v
Metro Quarry Group Pty Ltd
(U2015/7306)

COMMISSIONER BISSETT MELBOURNE, 29 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Mr John Ingham has made an application to the Fair Work Commission (the Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Ingham was employed by Metro Quarry Group Pty Ltd (MQG) as a maintenance worker.

[2] Mr Ingham commenced employment in 2005 with the predecessor of MQG. At about 6.37am on Friday 10 April 2015, following the morning pre-start meeting, Mr Ingham underwent a blood alcohol test. His blood alcohol content (BAC) measure was 0.013%. Mr Ingham was instructed to wait for 30 minutes when a second test was carried out. His BAC on the second test was 0.006%. Mr Ingham was consequently stood down and sent home for the day. His employment was terminated on 14 April 2014 without notice for breaching MQG’s Drug and Alcohol Policy.

[3] Mr Ingham seeks compensation.

[4] Mr Ingham was represented by Mr Chandler. MQG was represented, with permission, by Mr Aleksov of Counsel.

[5] Evidence was given for Mr Ingham by himself, Ms Sylvia Ingham (his wife), Mr John Chandler, and Mr Dale Smith. A witness statement of Mr Wayne Tierney was admitted into evidence without Mr Tierney being required to attend.

[6] Evidence was given for MQG by Mr Nigel McKinnon, Chief Financial Officer; Mr Andrew McManus, Maintenance and Production Manager; Ms Lauren Brigham, of Human Resources; Mr Paul Christensen and Mr Darrell Overton, OH&S Advisor for Pinnacle Safety.

Alcohol testing on 10 April 2014

[7] Mr Ingham agrees that he underwent a drug and alcohol test on Friday 10 April 2014. He says that his first blood alcohol reading was 0.01% and the second reading, taken 30 minutes later, was 0.00% 1. Mr Paul Griffin told him he could not work as it was not known how impaired he might be. At this time Mr Ingham told Mr Griffin and Mr McManus that he could legally drive a B-double truck with those readings.

[8] In his oral evidence Mr Ingham agreed that the blood alcohol readings were, in fact, 0.013% on the first test and 0.006% on the second.

[9] Mr Ingham’s evidence is that he came to work on the following Monday 13 April 2014 and worked as normal. He has no recollection of any meeting with Mr Griffin that day but agrees Mr McManus spoke to him about his car. When he arrived at work on the Tuesday he says he was called into the office of Mr Griffin and advised he was dismissed ‘because [he] had received a previous written warning for touching a machine outside [his] qualification.’ 2 In this meeting Mr Ingham said that he had done nothing wrong and repeated that, on the second reading, he would be fit to drive a B-double truck.

[10] Mr Ingham agrees that he was aware of the zero tolerance policy of MQG, that this had been raised at meetings of employees and that he was aware random testing was undertaken.

[11] Mr Ingham submits that the Drug and Alcohol Policy (the Policy) of MQG enforces a permissible level for blood alcohol content of 0.00%. 3 That is, he says that the Policy only requires a reading to be taken to two decimal places. As his second reading was 0.006%, taken to two decimal places he says this is in fact 0.00%, so the second reading is at the level required by MQG.

[12] Mr Ingham’s evidence is that he went out the night before the reading was taken to celebrate his forthcoming marriage. He agrees that he had alcoholic drinks over the course of the evening.

[13] Mr McManus gave evidence that he was present when Mr Ingham was tested on 10 April 2015. He says that Mr Griffin advised Mr Ingham that he would be stood down for the remainder of the day. Mr Ingham was also told that he would be required to attend a meeting about the incident on 13 April 2014 and that he could bring a support person with him. 4

[14] On 10 April 2014 Mr McManus sent an email to Ms Brigham advising her that Mr Ingham had failed a fitness for work test (the blood alcohol test) and seeking information from her as to what level of warning he was on and what penalty might be imposed.

[15] Mr McManus’ evidence is that on Monday 13 April 2015 he and Mr Griffin met with Mr Ingham who chose not to bring a support person. His says Mr Ingham was asked to explain why he presented to work when he was not fit to work. He says that Mr Ingham played down the significance of the result and stated that he could legally drive a B-double truck with the reading. Mr Griffin told Mr Ingham that the matter would be referred to more senior management and that there would be a further meeting the following day where he would be advised of the disciplinary outcome. 5

[16] Mr McManus says that he and Mr Griffin again met with Mr Ingham on Tuesday 14 April 2015. Mr Ingham was informed at this meeting that his employment was terminated. Mr Ingham questioned why his employment was terminated given he could drive B-double truck with a reading of 0.006% and was told by Mr Griffin that he had ‘continued to demonstrate [an] inability to comply with Metro Quarry Group’s safety standards, [and] he presented an unacceptable risk to himself and others onsite.’ 6 Mr McManus says he then waited for Mr Ingham to collect his belongings and drove him home. His evidence is that on the drive home Mr Ingham could not accept that he had done anything wrong.

[17] Mr McKinnon’s evidence is that he was the decision maker in deciding to terminate Mr Ingham’s employment. He states that if Mr Ingham did not have an earlier warning on his file he probably would not have dismissed him. He also says that if Mr Ingham had taken some responsibility for his actions this would have influenced his decision. Mr McKinnon says the report he received was that Mr Ingham believed he had done nothing wrong.

[18] Mr Paul Christensen gave evidence of his qualification to operate the alcohol testing machine. 7

Other matters

The bagging machine - first and final warning

[19] On 4 August 2014 Mr Ingham was given a first and final warning for ‘failing to follow safety directions’ and ‘failing to comply with [his] duties, as per the OHS Act, 2004, Part 3, paragraph 25.’ 8

[20] The issue of the warning followed an incident where Mr Ingham allegedly failed to isolate a faulty bagging machine.

[21] Mr Ingham’s evidence is that he was asked by his supervisor, Mr Vawdrey, to look at the machine as it was not working. Mr Ingham says he went to the machine, plugged in the air supply connector and power and turned the machine on. When he put a weight on the scale however nothing happened. Mr Ingham says he isolated the machine by disconnecting the power and air supply. He opened the machine up and saw dislodged wires at the ‘low volt (24 volt)…transformer fuse holders.’ 9 He says he approached his supervisor who asked if there was a soldering iron. Mr Ingham replied that what was needed was a ‘sparky’ (electrician). At the end of his shift Mr Ingham went home but says he worried that the machine should be fixed so took his own soldering iron into work the next day and soldered two of the three wires. He says he again approached Mr Vawdrey and said that an electrician was needed to fix the machine.

[22] Mr Ingham says that he told his co-workers not to use the machine until it had been fixed. He says he did not have a tag or lock to ‘tag-out’ the machine so that others would know not to use it but he did tell everyone not to use it.

[23] Mr Ingham’s evidence is that he is qualified to work on low voltage machinery and that the bagging machine was low voltage.

[24] Later that week Mr Ingham was called to a meeting with management. He took Mr Chandler as his support person.

[25] Mr Overton gave evidence that, prior to doing any work on a machine, it should be tagged. The purpose of tagging is to ensure the equipment is fully isolated from any type of hazard and that no one else attempts to use the equipment. Mr Overton says that all employees of the QMG have tags and personal locks with their pictures on them.

[26] He says that if an employee did not have a tag and lock they should make the equipment as safe as possible and report the fault.

[27] An incident report form dated 31 July 2014 held on the files of MQG in relation to the incident was tendered during proceedings. 10 That report indicates that Mr Vawdrey asked Mr Ingham to identify the fault in the bagging machine on Monday 28 July 2014 and that when he reported a broken wire Mr Vawdrey arranged for an electrician to come in on Friday 1 August 2014. When the electrician arrived it was found that Mr Ingham had attempted to fix the machine himself and that it was plugged in ready to use. The machine was then immediately isolated and tagged.

[28] Mr Vawdrey did not give evidence in the proceedings.

[29] The file notes from the meeting held with Mr Ingham in respect of this incident were tendered during the proceedings. The notes of the discussion indicate ‘John Ingham opening the power box on the older bagging machine…John whilst having this open went about rewiring the machine without detaching the main power supply, John also failed to tag out and call in the appropriate trade qualified people…John also agreed he had done the wrong thing…John accepted the warning and agreed that he needed to follow company procedures better.’ 11

[30] Mr Chandler was the only other person, in addition to Mr Ingham, who was available to give evidence of what occurred at the meeting with Mr Ingham on 4 August 2014. Mr Chandler’s evidence accords with Mr Ingham’s version of events. He says that MQG ‘pursued the issue regardless [of what Mr Ingham said] and issued John with an official warning and insisted he no longer undertake this type of inspection or repair in the future. John agreed to comply with the request.’ 12

[31] A first and final warning was issued to Mr Ingham as a result of this incident.

Other safety issues

[32] Mr McKinnon gave evidence that in January 2015 he witnessed Mr Ingham performing work without wearing the required personal protective equipment (PPE), in particular he was not wearing safety glasses. This, he says was a clear breach of safety rules for the site. He says that he approached Mr Ingham and tapped his own temple. He says he did not issue a warning at this time.

[33] Mr Overton’s evidence is that he was with Mr McKinnon at the time he saw Mr Ingham without his PPE and he saw Mr McKinnon approach Mr Ingham.

[34] Mr Ingham says this incident did not happen.

[35] Mr Overton gave evidence that on 5 February 2015, whilst doing an inspection of the work area, he saw Mr Ingham standing on a metal bracket at height without using a Fall Restraint (safety harness). He says he approached Mr Ingham and told him to move away from the unprotected edge. Mr Ingham refused. Mr Overton instructed him again but Mr Ingham again refused. The job was then stopped until Mr Ingham complied with the safety requirements. 13 Mr Overton says the other workers were not in a hazardous position.

[36] Mr Ingham says that he was on the walkway (a safe area) when Mr Overton spoke to him about putting on a safety harness. He says he did not stop work because he had not yet started the job and because he was in a safe area.

[37] Mr Overton also gave evidence that, as part of the training of workers on health and safety matters, he spoke to the maintenance group about the new safety direction at MQG. He says that Mr Ingham’s attitude was ‘very negative’. He says that Mr Ingham said he had been doing this type of work for over 40 years and knew all about safety. Mr Ingham also wiggled his fingers in Mr Overton’s direction and said something to the effect that, as he had all 10 fingers, he knows how to be safe. 14

[38] Mr Ingham’s evidence is that he did not clash with Mr Overton in this meeting, he agrees he did wiggle his fingers bur says he said that they were still all there and they were the only tools he could not replace.

[39] Mr McManus gave evidence that around 7 April 2015 he had a discussion with Mr Ingham around safety systems and the need to undertake a hazard assessment before starting a task. He says that Mr Ingham wiggled his fingers at him, said he had been involved in maintenance for 40 years and, as he still had all his fingers, believed he was safe.

The Drug and Alcohol Policy

[40] The MQG Drug and Alcohol Policy (the Policy) was attached to the submissions of Mr Ingham and the witness statement of Nigel McKinnon. 15

[41] Section 1 of the Policy states that ‘We are committed to the elimination of all injuries and work-related illnesses for all people associated with our activities.’

[42] Section 3 states that:

The following minimum mandatory requirements shall be implemented to ensure workplace compliance in relation to drug and alcohol management:

● MQG has a zero tolerance to drugs and alcohol in the workplace.
● To that end, MQG shall enforce a permissible level for blood alcohol content of 0.00%.
● No one shall be permitted access to any MQG site whole under the influence of drugs or alcohol.
● …
● Anyone suspected of being under the influence of drugs or alcohol will not be permitted to perform work until such time as they are shown to be able to perform that work in a safe manner…
● …
● No person shall be permitted to operate any vehicle or equipment if they are found with a blood alcohol content above 0.00%.

[43] Section 8 of the Policy relevantly states that ‘MQG has established a policy of ZERO Tolerance for drugs and alcohol in the workplace. In order to meet [this] goal, MQG has set the requirement for all workers, contractors and visitors who may endanger themselves or others by their actions to have a Blood Alcohol Content (BAC) of 0.00% while on the MQG work place.

[44] The permissible level for alcohol is set out in section 9 at 0.00%.

[45] Section 10 requires that any testing be carried out by an accredited assessor.

[46] Section 11 sets out the testing regime and states that if a reading of other than 0.00% is recorded a follow-up test will be carried out in 20 minutes. If that reading is above 0.00% the results will record a positive reading and the person will not be allowed to work.

[47] The Policy does not specify dismissal (with or without notice) for breach of the policy or that a breach will be considered gross misconduct. In fact the MQG Alcohol Breath test Flow Chart 16 indicates that an employee will be stood down for 24 hours following a positive breath test and, on return, will be subject to counselling or disciplinary action. The only circumstances in the Policy that will result in termination of employment is a refusal to undergo a drug or alcohol test.

Findings

Breach of Drug and Alcohol Policy

[48] Whilst the Policy talks of a requirement of employees to have a blood alcohol content of 0.00% this must be read in conjunction with the remainder of the Policy which clearly indicates that MQG has a ‘zero tolerance’ policy. Zero tolerance must be taken to mean what the words say. Zero means zero, whether it is taken to two or five decimal points.

[49] I find that the 0.00% permissible alcohol level, when read in conjunction with zero tolerance and with the specific wording of the Policy, makes it clear that an employee with any blood alcohol content in his or her system will be subject to the outcomes of the policy.

[50] Even if it was that Mr Ingham’s second reading should only be taken to two decimal places, the actual reading of 0.006% needs to be rounded. You cannot just drop off what occurs after the two decimal places. The accepted rounding rules are that where the final digit is greater than ‘5’ the figure will be rounded up. That means that a reading of 0.006 will be rounded to 0.01. It is not appropriate, as suggested by Mr Ingham, to ignore the third decimal point completely in the reading.

[51] I am satisfied that Mr Ingham had a blood alcohol reading (on the second reading) of 0.006%. I am also satisfied that this reading constitutes a breach of Policy.

[52] I prefer the evidence of Mr McManus over that of Mr Ingham that a meeting was held with Mr Ingham on Monday 13 April 2015 to discuss his blood alcohol reading of Friday 10 April 2015, that Mr Ingham was asked for an explanation of the reading, that he was dismissive of the matter and that he was advised the matter would be referred to senior management. I also find that a further meeting was held with Mr Ingham on Tuesday 14 April 2015 and he was advised that his employment was terminated.

[53] I am satisfied that Mr Christensen has the relevant competencies to operate the blood alcohol testing machine. I reject the claims of Mr Ingham that Mr Christensen was not qualified to do so.

Bagging machine

[54] The only direct evidence presented with respect to the bagging machine is that of Mr Ingham. I also have the business record of the incident report made by Mr Vawdrey and the business record of the notes of the meeting held with Mr Ingham about the incident.

[55] I put little weight on the witness statement of Mr Chandler as to what occurred at the meeting with Mr Ingham about the incident. It is not clear on the evidence if Mr Chandler is recounting what occurred in the meeting he was at or some conversation he had with Mr Ingham. His evidence to this extent has little probative value as to what occurred in the meeting. I am satisfied however, based on Mr Chandler’s oral evidence, that the management representatives at the meeting insisted Mr Ingham no longer undertake the type of work he had on the bagging machine and Mr Ingham agreed to this.

[56] Much of the evidence surrounding the bagging machine is contradictory and does not allow any findings to be made with confidence about the incident. None of those present at the meeting with Mr Ingham were involved in the incident with the bagging machine itself.

[57] The notes of the meeting with Mr Ingham say that the Mr Ingham worked on the machine without disconnecting the power supply yet the incident report of Mr Vawdrey says no such thing. The minutes suggest that Mr Ingham was responsible for calling the electrician and failed to do so yet the incident report indicates that Mr Vawdrey called the electrician and suggest no delay in him doing so. Further, the notes of the meeting indicate that the meeting ‘discussed the issue regarding the first and final warning’ suggesting that the decision to give such a warning was decided prior to Mr Ingham being given an opportunity to respond to the issues raised.

[58] I am not convinced that the error by Mr Ingham with respect to the bagging machine deserved a first and final warning. I prefer, in respect to this incident, the evidence of Mr Ingham to the inferences I would otherwise be required to draw from the written material produced by MQG. Whilst Mr Ingham’s conduct in regard to the incident – he does admit to soldering the wiring and that he had ‘done wrong’ (although the extent or his admission is not clear) – undoubtedly deserved some admonishment or warning I am not convinced it should have been of the severity of a first and final warning. In regard to the decision I must make II have taken into account that the bagging machine incident warranted a warning but I have not taken into account that he was on a ‘final’ warning. I would note in passing however that a ‘first and final warning’ appears to have become the disciplinary tool of choice in many workplaces, regardless of the severity of the transgression of the employee.

Other matters

[59] On other matters raised during the hearing I prefer the evidence of Mr McKinnon and Mr Overton to that of Mr Ingham.

[60] I am satisfied that Mr McKinnon raised with Mr Ingham the wearing of safety glasses at least by his actions if not verbally.

[61] I am also satisfied that Mr Ingham was working in an unsafe position without wearing a safety harness and that he refused a request to put one on until the work had been directed to stop.

[62] I am also satisfied that Mr Ingham, on at least two occasions, wiggled his fingers indicating that the still had them all and knew how to work safely.

Serious misconduct and the reason for dismissal

[63] Mr Ingham’s employment was terminated for serious misconduct. He was neither provided with notice nor paid in lieu of notice.

[64] The obligation to provide notice or pay in lieu of notice is only extinguished it an employee’s employment is terminated for serious misconduct. The letter of termination given to Mr Ingham stated that his employment was terminated for:

• Arriving for work and testing positive for alcohol on Friday 10 April 2015



• Testing 0.013 for alcohol at 6.37am



• Testing 0.006 for alcohol at 7.07am



• Breaching the Company’s Drug and Alcohol Policy as per the above.

[65] Mr Ingham was also found to have breached s.25 of the Occupational Health and Safety Act 2004 (Vic) which sets out the duties of an employee whilst at work in respect to health and safety. Mr Ingham was found to have endangered himself and other workers and failed to cooperate with MQG in establishing a safe workplace for all employees. 17

[66] Mr McKinnon was the person who made the decision to terminate Mr Ingham’s employment. He says that, prior to making the decision, he considered:

• Mr Ingham [had] breached [the] drug and alcohol policy.



• The company had been trying for 18 months to get Mr Ingham on board with [its] vision for safety.



• [his] previous safety interactions with Mr Ingham…;



• Advice by managers that they had had unfavourable safety interactions with Mr Ingham.



• As a qualified tradesman, [Mr Ingham] was a poor role model for [the company’s] other employees and in particular [the company’s] young apprentices on site.



• It would be a breach of [his] duty of care to Mr Ingham and other employees to allow Mr Ingham to continue to work at [the] site. [As}.. it was just a matter of time before Mr Ingham hurts himself or someone else.



• Mr Ingham [was] apathetic and prideful, both of which [could] be fatal in an inherently dangerous work environment



• The resources to actively supervise Mr Ingham at all times during the work day to make sure that he did the work he was hired to do safely and in accordance with [MQG’s] policies. [Mr McKinnon] fundamentally did not trust Mr Ingham to comply with [MQG’s] safety rules when unsupervised



• Most critically, Mr Ingham displayed a clear tendency for resisting change because he thought his way was best. 18

[67] MQG considered Mr Ingham’s conduct unsatisfactory and ‘in reviewing [his] first and final warning’ decided to immediately terminate his employment.

Was Ingham unfairly dismissed?

[68] I am satisfied that Mr Ingham has been dismissed and is protected from unfair dismissal.

[69] Section 385 of the Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[70] It is not claimed that MQG is a small business or that the dismissal was a redundancy.

[71] In determining if Mr Ingham was unfairly dismissed it is necessary to determine if the dismissal was harsh, unjust or unreasonable.

[72] Section 387 of the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[73] I now consider each of these matters.

(a) whether there was a valid reason for the dismissal

[74] Mr Ingham’s employment was terminated for breaching MQG’s Drug and Alcohol Policy in conjunction with a first and final warning.

[75] I am satisfied that this provides a valid reason for the dismissal of Mr Ingham.

(b) whether the person was notified of that reason

[76] I am satisfied that Mr Ingham was notified of the reason for his dismissal in respect of the breach of policy prior to the decision being made to terminate his employment.

[77] I am not satisfied that he was advised of the multitude of reasons relied on by Mr McKinnon as the reasons for his dismissal prior to the decision being made to terminate his employment. There is no evidence before me that those matters set out in paragraph [66] were directly raised with Mr Ingham prior to his dismissal.

(c) whether the person was given an opportunity to respond

[78] I am satisfied that Mr Ingham was given an opportunity to respond to the reason for his dismissal in relation to the breach of policy on Monday 13 April 2014 when he attended a meeting with Mr McManus and Mr Griffin.

(d) Unreasonable refusal to allow a support person

[79] I am satisfied that Mr Ingham was invited to have a support person with him in the meetings of 13 and 14 April 2015. Mr Ingham does not say he sought to have a support person and this was denied to him.

(e) unsatisfactory performance

[80] The dismissal of Mr Ingham did not relate to performance. I do not need to consider this issue.

(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

[81] No evidence was given that the size of the enterprise impacted on the procedures followed in effecting the dismissal.

(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

[82] I note that MQG has access to human resource staff. This was not raised as a matter I should consider.

(h) any other matters

[83] Mr McManus spoke to Mr Ingham of the view of the company that Mr Ingham’s role did not warrant the use of a company car. This conversation also took place on 13 April 2015. Mr Ingham sought some compensation for loss of the car. Despite Mr Ingham’s submissions to the contrary I do not consider that this played any role in the decision to terminate his employment.

[84] I have considered the email of Mr McManus to Ms Brigham on 10 April 2015 with respect to Mr Ingham. In that email Mr McManus said:

I’ve talked to Paul and he’s unsure if John has any current disciplinary actions? What level of warning are we able to issue for this? The only other issue is we had another (more useful) employee go over 0.05 on the same day. Do we leave ourselves open if the punishment is more severe for the lesser infringement? I’ve also told him previously that he will be losing use of company vehicle, so hopefully this will aid him in going. 19

[85] On being questioned on this email Mr McManus said that the comment, ‘hopefully this will aid him in going’ was a clumsy reference to him relinquishing the vehicle. In providing this response Mr McManus’ evidence remained consistent. I do find it difficult to read the statement as Mr McManus explains it but nothing was made of this in submissions so I do not rely on it in my decision.

[86] I note that Mr Ingham is close to retirement and had intended to remain with MQG until he retired. He has worked in the industry for over 40 years. He has, since his dismissal, been seeking work and has not been successful.

Consideration

[87] I have considered Mr Ingham’s employment history, particularly in regard to health and safety matters. My findings above indicate a generally dismissive attitude by Mr Ingham of attempts by MQG management to implement improved health and safety standards. This is evidenced by his response to his blood alcohol content reading where he continually indicated that he could legally drive B-double truck with a reading of 0.006% (which, despite Mr Ingham’s view, he could not legally do).

[88] Mr Ingham’s evidence that there were clashes between management and the maintenance team, because management tried to tell the team how to use tools they were competent on, supports the contention that he was not open to the new health and safety regime being sought to be introduced by management.

[89] I am satisfied that, in wiggling his fingers at Mr Overton and at Mr McManus Mr Ingham sought to convey that he was aware of health and safety issues but that he was dismissive of them and the matters they sought to raise.

[90] Mr Ingham’s attitude as demonstrated by these matters supports a conclusion that he considered he knew best on the safety standards that should be applied in the workplace. His attitude is a reasonable consideration in determining if the dismissal was harsh, unjust or unreasonable.

[91] I am satisfied that Mr Ingham was aware of the safety requirements of MQG, that this was reinforced through regular discussions with employees at the beginning of the day and through regular discussions in the workplace. It does appear, however, that he chose to ignore these requirements on at least two occasions (in relation to the safety glasses and the safety harness). In this respect Mr Ingham’s views of his knowledge of how to work safely are not relevant. MQG had health and safety standards, there is no suggestion that these were unreasonable and there was no reason why Mr Ingham should not comply with them.

[92] I have taken into account Mr Ingham’s age and prospects of further employment. Whilst his age might be considered a mitigating factor I do not accept it as such. Given his age and experience I would have thought that Mr Ingham would be well aware of the effect of lax health and safety standards in the workplace. He would have seen for himself the improvements in workplace standards brought about by tighter health and safety rules.

[93] Mr Ingham received a first and final warning in 2014 in relation to the bagging machine incident. In deciding to terminate Mr Ingham’s employment following the blood alcohol reading MQG relied on the existence of this to justify the summary dismissal. The reliance on the bagging machine issue to justify the decision to dismiss requires a consideration of whether the bagging machine incident warranted the first and final warning and hence could validly be relied upon in the dismissal.

[94] If the first and final warning in relation to the bagging machine was not warranted then reliance on it to justify the decision to terminate Mr Ingham’s employment might not be reasonable.

[95] I have found above that I do not consider the bagging machine incident warranted a first and final warning. Mr Ingham says he isolated the machine but that he had no tags with which to tag it. He also says he told other workers not to use it. Mr Overton agrees that if there are no tags then the machine should be isolated and staff informed not to use the machine, which is what Mr Ingham did. Much of the remaining evidence before me was contradictory. I accept that Mr Ingham however should not have attempted to do any soldering on the electrical wiring of the machine. To this extent he deserved some sanction, but the disciplinary outcome should bear some relationship with the severity of the misconduct.

[96] A first and final warning is a harsh penalty to impose on an employee, particularly where, as in this case, it is a first incident of misconduct. Having given such a harsh sanction, I do not consider that it can be relied on to terminate employment for a second incident of misconduct in circumstances where it was not warranted in the first place.

[97] If the bagging machine incident did not warrant a first and final warning (although certainly a warning) the question is whether the decision to terminate Mr Ingham’s employment where that warning was relied upon, was harsh, unjust or unreasonable.

[98] There is no evidence that Mr Ingham breached the drug and alcohol policy at any other time and, on any measure, his reading on 10 April 2015 was low. Whilst he had been subject to disciplinary action in the past I am not convinced that this justifies the dismissal in this case. I have accepted other evidence of issues with Mr Ingham respect of health and safety but he had not been given any written or oral warning with respect to what was a growing body of evidence of his poor attitude.

[99] In these circumstances I am satisfied that the decision to terminate Mr Ingham’s employment is harsh and unjust.

[100] Even if the bagging machine incident did warrant a first and final warning that, in conjunction with Mr Ingham’s other infractions in relation to health and safety and his lack of understanding of the problems in coming to work with a positive blood alcohol reading, might justify dismissal with notice. But that is not what occurred in this instance. Mr Ingham’s employment was terminated without notice. There is nothing in his conduct to suggest that it was ‘wilful or deliberate and…inconsistent with the continuation of the employment contract.’ 20 Further, whilst it was beach of the Policy Mr Ingham did not cause serious and imminent risk to the health and safety21 of employees of the Respondent. He had not commenced work and the Policy envisages an employee, who fails such a test, not being subject to dismissal but rather being sent home for the shift.

Conclusion

[101] For the reasons outlined above I consider that the decision to terminate Mr Ingham’s employment was harsh and unjust.

[102] I therefore find that Mr Ingham was unfairly dismissed.

[103] This decision should not be seen to condone the conduct of Mr Ingham in any way. His attitude to attempts by MQG to improve health and safety standards in the workplace is not acceptable. Health and safety standards are of the utmost importance in guarding the safety and welfare of workers. Employers such as MQG who are committed to improving health and safety at work should be applauded. Their efforts deserve more than the derisory wiggling of fingers offered by Mr Ingham.

Remedy

[104] Whilst Mr Ingham seeks reinstatement this is opposed by MQG.

[105] In the circumstances where there are on-going issues in relation to health and safety I am satisfied that reinstatement would not be appropriate.

[106] I shall therefore consider compensation. The determination of an amount of compensation is set out in s.392 of the Act.

[107] I am satisfied that the award of compensation will not adversely affect the viability of the MQG (s.392(2)(a)).

[108] Mr Ingham has worked for MQG (and its predecessor) for 10 years (s.392(2)(b)).

[109] In determining the remuneration that Mr Ingham would have received had he not been dismissed I am satisfied that he would have remained in employment with MQG for no more than a further 12 weeks. I reach this conclusion as it is evident that the relationship between Mr Ingham and MQG was deteriorating, particularly in relation to Mr Ingham’s attitude to attempts by MQG to improve health and safety standards within the workplace. I am satisfied that these issues would have led to either Mr Ingham leaving or MQG taking steps to terminate his employment.

[110] Mr Ingham’s employment was terminated on 14 April 2015. On my assessment he would have remained employed until 7 July 2015.

[111] Mr Ingham was earning $36.05 per hour at the time of his dismissal. For the period I estimate he would have remained in employment he would have earned $16,438.80 (s.392(2)(c)).

[112] Mr Ingham gave detailed evidence of attempts made by him to mitigate his loss. He has applied for a variety of positions and has cold called on businesses looking for work. He had not, at the time of hearing, gained employment. I am satisfied that he has attempted to mitigate his loss and make no deduction in this regard (s.392(2)(d)).

[113] Considerations of the amount of income likely to be earned are not relevant given my findings with respect to the expected period of employment (s.392(2)(e) & (f)).

[114] I am satisfied that Mr Ingham’s misconduct has contributed to the MQG’s decision to dismiss him. There were no other motivations in terminating his employment. For this reason I will reduce the amount of compensation otherwise rewarded to him by 30% (s.392(3)). This deduction reflects Mr Ingham’s overall apparent lack of commitment to attempts to improve health and safety and his conduct in respect of a number of health and safety issues detailed above.

[115] I have not included any payment for shock, distress or humiliation (s.392(4)) and the amount ordered does not exceed the compensation cap (s.392(5)).

[116] Mr Ingham is therefore to be paid an amount of $11,507.16 in compensation plus any superannuation payable on the amount into his superannuation fund.

[117] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

J. Chandler for the Applicant.

A. Aleksov of Counsel with C. Ni of MST Lawyers for the Respondent.

Hearing details:

2015.

Melbourne:

August 19.

 1   Exhibit A1, page 1, paragraph 1.

 2   Exhibit A1, page 1, paragraph 11.

 3   Policy, page 2 of 10.

 4   Exhibit R6, paragraph 15.

 5   Exhibit R6, paragraphs 18-21.

 6   Exhibit R6, paragraph 26.

 7   Exhibit R1.

 8   Exhibit R8.

 9   Exhibit A1, Warning letter OHS paragraph 8.

 10   Exhibit R7.

 11   Exhibit R5.

 12   Exhibit A3, paragraph 5.

 13   Exhibit R4, paragraphs 6-7.

 14   Exhibit R4, paragraph 10.

 15   Exhibit R3, annexure 1.

 16   Exhibit R3, Annexure 2.

 17   Applicant’s submissions, document 5.

 18   Exhibit R3, paragraph 32.

 19   Exhibit R6, attachment 2.

 20   Fair Work Regulations 2009, regulation 107(2)(a).

 21   Ibid, reg 107(2)(b).

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