Julian Harris v Parmalat Food Products Pty Ltd
[2014] FWC 3385
•2 JUNE 2014
[2014] FWC 3385 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Julian Harris
v
Parmalat Food Products Pty Ltd
(U2013/16321)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 2 JUNE 2014 |
Application for relief from unfair dismissal.
[1] On 27 November 2013, Mr Julian Harris (the applicant) applied for an unfair dismissal remedy in relation to the termination of his employment on 11 November 2013 by Parmalat Food Products Pty Ltd (the respondent). The matter was referred to me for determination and was heard on 10 and 11 April 2014.
[2] At the hearings, the applicant was represented by Mr C O’Callaghan from the Transport Workers’ Union (TWU) and the respondent by Mr B Cooper of Livingstones.
[3] Evidence was given by the applicant on his own behalf, together with Mr Stephen Davies (TWU official). Evidence was given on behalf of the respondent by:
- Mr Kristian Brennan (Coolroom Manager);
- Mr Michael O’Neill (Dayshift DC Coordinator); and
- Mr Harry Poeltl (NSW Warehouse and Distribution Manager).
[4] On the day his employment was terminated, Mr Harris was given a letter signed by Mr Gavan, (the respondent’s Human Resources Manager - NSW Operations). The letter included the following:
‘This letter confirms our discussion today in the presence of Stephen Davies (TWU Official), Harry Poeltl (NSW Warehouse & Distribution Manager) and Kristian Brennan (Coolroom Manager) at which you were required to show cause why your employment should not be terminated over a further incident of poor reliability and trustworthiness on Tuesday 5th November where you took an unauthorised extension to your meal break period. This incident occurred despite you being issued a Final Written Warning over your poor reliability on 22nd October 2013.
During today’s meeting you were reminded that there have been numerous informal and formal counselling meetings with you over the past 2 years in relation to poor attendance, punctuality, as well as poor reliability and attitude, which have resulted in you being issued a number of Written Warnings. The most recent of these meetings was on 22nd of October 2013 where you were issued a Final Written Warning and you were advised that an immediate and sustained improvement was required in your attendance, punctuality and reliability.
We have taken into account the things that [you] had to say at today’s meeting to show cause why your employment should not be terminated. Unfortunately, there was nothing you said in this meeting that indicated that your work performance would significantly improve in order to restore the Company’s faith in you being able to properly carry out your responsibilities. Unfortunately, despite our patience in the past and providing assistance to deal with your problems outside the workplace, your performance has not improved over time to an acceptable level. The unauthorised meal break incident on 5th November has led to the Company deciding that it will not continue your employment.
I must therefore confirm that your employment will be terminated with the appropriate level of notice...’
The applicant
[5] Mr Harris commenced working with the respondent as a Mechanical Loader at the Lidcombe Distribution Centre (DC) on 3 September 1996. He is 45 years old and has five children ranging from 8 to 24 years old. He lives with his two daughters aged 15 and 24 years (and his one year old grandson.) He separated from his partner in 2009. 1
[6] For a period of 18 months prior to his dismissal the applicant’s middle daughter then aged 14 resided with him. He said during his cross examination that his daughter actually came back into his care on 26 December 2011. 2 During this time he experienced difficulties with his daughter ‘as she came to the attention of the NSW Police on several occasions. During this time my daughter was involved in a number of crimes. My daughter also did not come home for several days on many occasions and I was unaware of her whereabouts’. The applicant was required to attend court with his daughter on approximately 19 occasions between November 2012 and November 2013. The alleged offences included robbery in company, larceny, possession or attempt to possess prescribed restricted substances, and malicious damage.3
[7] According to the applicant, as a result of his difficulties with his daughter he was on occasions late for work or unable to attend work. On some occasions he would be out looking for his daughter, or needed to stay home to resolve an issue with her before he left for work. This caused him to be late and he would miss his train and have to wait for a later train to travel to work. 4
[8] According to Mr Brennan, the applicant had notified him on a number of occasions that he had been unable to attend work because his daughter was missing or had been arrested. On other occasions, the applicant had notified him that he was ill or otherwise unable to attend work. The applicant had often exhausted his available leave and was required to take leave without pay at various times. 5 During his cross examination, Mr Brennan said he had invested a lot of time trying to help the applicant.6
‘I took several phone calls from Julian whilst at home outside of work, work hours, whilst I was at home with my own family, I guess being an ear so he could talk to me about, I guess, the concern he had about his daughter, chasing his daughter around. I spent considerable time with him, formal discussions at work looking at ways to try and help him, to try and I guess, just be a support person for him because he was considerably stressed about the whole situation. And as I said previously continued to offer a roster change so he could spend time at home with his daughter and try it, I guess, build a relationship. He said that on numerous occasions that the relationship with his daughter was quite fractured as well. So I just tried to provide that support.’ 7
The applicant’s disciplinary history
[9] According to his statement the respondent discussed his lateness and/or non attendance on or around the following occasions:
a) 15 January 1999;
b) 13 November 2000;
c) 12 March 2002;
d) 21 March 2002;
e) 7 January 2010;
f) 17 November 2011;
g) 5 June 2012;
h) 26 October 2012;
i) 8 November 2012;
j) 14 March 2013. 8
[10] The applicant said in his written statement that his lateness for work was sometimes due to delays with public transport but mostly due to family difficulties he had been experiencing with his daughter. He agreed that he had been told by the respondent that it was his responsibility to make sure that he was at work on time. 9
[11] The applicant was absent from work on 4 September 2013. The applicant at first said he rang Mr Brennan on 3 September 2013 and asked not to have to come in to work that night but to take accrued time in lieu. 10 Mr Brennan asked him if he had been drinking and he answered ‘yes’.11 However it was then put to him that on 4 September he not only had failed to turn up at the designated start time for his rostered shift but it was left to his supervisor to call him to find out his whereabouts and ask if he was going to attend for work. He responded ‘yes, yes. I recall all that....I recall that and I had been drinking, yes. Yes, I had been drinking. Was drinking a problem for me? As far as it did cause a problem as I fell asleep and I had been out looking for my girl and...I had full intentions to call Krishna and as I had my phone in my hand when I fell asleep on the train. I think he called me about half past 10. I had the phone in my hand about, I don’t know, sometime after 9 o’clock when I was going to call him before the shift commenced.’12
[12] The applicant agreed that he had a meeting with the respondent on 6 September 2013 where it was put to him that his attendance at work was unacceptable. 13 He also agreed that he had been unable to attend work on 4 September 2013 because he had been drinking.14
[13] On 17 September 2013, the applicant received a Final Written Warning. This included the following:
‘This letter is to confirm the discussion we had with you on 6th September 2013 in relation to your poor reliability arising from continuing excessive use of Personal Leave and unpaid leave (LWOP) from recent months, and also recent breaches of procedure in relation to notify absence from the workplace. An analysis of your leave usage has led to significant concerns arising about your ability to carry out the duties required under your contract of employment.
There have now been a number of discussions with you both formally and informally over the past few years in relation to absences; your failure to call and advise absence from duty (i.e. “no shows”); and your failure to produce medical certification required to support your absences.
The recorded conversations have been as follows:
Date | Issues Discussed | Outcome |
7th January 2010 | Failing to notify Supervisor of lateness for shift | First Written Warning |
17 November 2011 | Excessive absence - Personal Leave and Leave Without pay | Written warning |
5th June 2012 | Excessive absence - (Personal Leave and Leave Without Pay) | Record of Discussion |
In addition to the above formal records there have also been a number of unrecorded discussions during 2012 and 2013 related to absences and your poor reliability to attend work that would have otherwise been formally recorded had it not been for the family-related problems outside of work. We have been tolerant around many of the absences you have had duty or family problems. We have also had several discussions with you now and offered assistance through the Company’s Employee Assistance Plan (EAP) provider in an attempt to help you through these problems.
We have done our best to accommodate your family problems. However, we note that you have again recently been absent from work (Leave Without Pay) on 9th July 2013, 31st July 2013 and 4th September 2013. You have also been late for work on 5 occasions during the same period.
On 4th September 2013, not only had you failed to turn up at the designated start time for your rostered shift, but it was left for your Supervisor (Vikash Krishna) to call you to find out your whereabouts and ask you if you are going to attend for work. It was only when Mr Krishna called you that you told him he would not be coming in to work that night. We place you on notice that this behaviour is unacceptable, and will no longer be tolerated, particularly in the light of previous discussions regarding your poor reliability and attendance. It should not be necessary for anyone to “chase” you to find out if you will be attending your rostered shifts.
As you know, your leave anniversary date is 15th January. The current practice is for 10 days Personal/Carer’s Leave to be credited to you on this day each year, with the expectation that this provides adequate Personal Leave for you to utilise as required each year. Some years this may mean you utilise all of your Personal leave and on others it may mean you use less. Where the latter occurs, any remaining Personal Leave is of course rolled over into the next year for ongoing use.
A review of leave taken by you to date during 2013 until now has found the following:
Within 2 months of your anniversary date (January to March 2013), your entire quota of 10 personal leave days (Personal leave) had been exhausted. Further to that we note that you have also had seven (7) days of Leave without Pay since March 2013. We also note that in most cases medical certificates are not supplied to support your absences (as required under the site Enterprise Agreement). This pattern of absence is similar to previous years whereby you have utilised all of your paid leave soon after it falling due; and then falling into a pattern of high levels of absence treated as Leave Without Pay for the balance of the year.
As we have previously discussed with you, the above patterns of leave are unacceptable and once again extremely concerning. Your annual Personal leave entitlement should at a minimum, provide you with enough paid Personal leave to cover the normal day-to-day illnesses experienced by us all from time to time. Parmalat employs you on a full-time permanent basis so that it can rely on you to be at work for your rostered shifts in order to cover the daily workloads of the Lidcombe Operations. Your excessive use of personal leave and unpaid leave demonstrates to Parmalat that you are not taking these obligations seriously.
At Parmalat we have a way of working that helps ensure a safe, productive and positive environment for our team, customers, suppliers, communities and everyone else we interact with. Team Members are required to comply with the Parmalat Lidcombe Distribution Centre policies and procedures and the site Enterprise Agreement, in particular the following clauses:
25. Personal Leave
(vi) An employee who has exhausted his or her entitlement to paid personal leave and who is then unable to attend for duty because of personal illness or injury shall furnish to Parmalat a certificate of a duly qualified medical practitioner in respect of all unpaid absences.
(vi) An employee shall furnish to Parmalat a certificate of a duly qualified medical practitioner in order to be entitled to payment for personal leave claimed in the following circumstances:
(b) Where there is an absence on a rostered working day either side of a public holiday or either side of a rostered day off (RDO) or rostered days off (RDOs).
26. Personal Leave Monitoring
(e) If the results of two consecutive periods show unsatisfactory attendance and reasons for absence in the following actions may be taken:
Bring in the employee for a discussion with the Manager, or the Manager’s delegate, in the presence of his/her supervisor.
If the discussion in respect to the absences does not provide satisfactory reason for the absences then a written warning may be issued to the employee and/or proof of illness or a medical certificate may be required for all future absences.
The employee concerned may request the presence of a witness or Union delegate at any stage of the above process. If the above action still results in unsatisfactory attendance at work then good grounds have been established for termination of employment.
Code of Conduct:
We create a positive working environment
There have now been many discussions in the past few years (both on the record and off the record;) and several Written Warnings issued to you in relation to your poor reliability due to abuse of personal and unpaid leave, and also failing to notify and provide proof of absences as required under the site Enterprise Agreement.
The pattern of leave usage you have established over recent years is extremely disturbing and requires your immediate attention as it is seriously affecting your overall productivity and your ability to meet the requirements of your role. Please be aware that your poor reliability also has a negative effect on the productive operation of the small team of your night shift colleagues as they often have to work harder to compensate for your absences. In addition, your poor reliability also has an adverse effect on Parmalat’s ability to operate an efficient distribution business from the Lidcombe site.
Julian, absence and poor reliability behaviours of the type you have demonstrated will no longer be tolerated. Parmalat requires an immediate and sustained improvement in your use of leave, particularly the current excessive level of personal leave and unpaid leave. Failure on your part to correct the current excessive and unacceptable level of Personal leave usage will expose you to further disciplinary action, including termination of employment.’ 15
[14] During his cross examination the applicant agreed that the final paragraph of the Final Warning letter meant that if he kept on being unreliable ‘They’ll show me the gate. I’ll be terminated.’ 16
[15] In his written statement Mr Brennan said on or about 18 October 2013 he was driving to the Gold Coast for a holiday when he took a call from Mr Harris who told him he would not be able to come into work that night. Mr Harris told him he had been drinking. 17 The applicant said he had made the call at around 5:00pm.18 He was scheduled to start work at 10:00pm that evening.19
[16] On 22 October 2013 the applicant attended a meeting with Mr Poeltl, Mr Gavan (the respondent’s Human Resources Manager, Mr Brennan and Mr Brown (union delegate). He was told by Mr Gavan that he was being moved from night shift to day shift to allow management ‘to keep an eye’ on him due to his unreliability, being late for work and not attending work on occasions. 20 He said during his cross-examination that he was ‘messed up’.21 While the applicant did not want to go on to day shift he said that he found that change was beneficial.22
[17] Mr Poeltl said during his cross-examination that they understood that Mr Harris was going through some difficult times, and that moving him to day shift would mean that he could be provided with more support. 23
5 November 2013
[18] On 5 November 2013 the applicant was working day shift from 6:00 am to 2:00 pm, as a frame fork operator picking orders in the distribution centre. 24 He worked in the coolroom.25
[19] Mr O’Neill’s evidence is that at or about 6:00am on 5 November 2013, John McCarthy, Dayshift DC Coordinator, and he spoke to the coolroom operators at a ‘team talk’ regarding the work expectations for the day. He saw Mr Harris at the team talk. 26
[20] Mr O’Neill advised the coolroom operators that, as it was Melbourne Cup Day, Parmalat would be providing sandwiches from Subway for lunch. According to Mr O’Neill he told the coolroom operators that they could swap over the long and short breaks. He reminded the coolroom operators that the allocated break times were still 10 minutes for the short break and 20 minutes for the long break. 27 The applicant agreed during his cross examination that he was not told that he could take a longer break than usual.28 Mr O’Neill said during his examination-in-chief that the first break was normally 9:00 am to 9:20 am and the second one 11:00 am to 11:10 am - though the actual times would be staggered and when employees were to take their break would normally be on the roster in the morning.29 However on the day in question everybody was to have lunch at the same time - between 11:00 and 11:20 am.
[21] In response to a question from the bench, Mr Brennan said his understanding was that on 5 November 2013 the staff were to take their 10 minute ‘short break’ between 8:30 and 9:00 am (when they would normally take their 20 minute ‘long break’) and that the longer break would be taken when the lunch was brought back. 30 He had told the coordinators at the 6:00 am start of shift talk to advise all the team that the lunch break would be taken upon lunch arriving, however he agreed during cross examination that it was possible that the lunch arrangements had not been conveyed to the staff.31
[22] According to the applicant’s statement:
‘At a tool box meeting prior to his shift, I was briefed that there would be two timeslots for breaks, 11am and 11:30am. My lunch break was not specifically scheduled for either slot, but I was entitled to a break that day.’ 32
[23] The applicant’s statement continued:
‘At approximately 10:55 am I went to the administration office to hand in my pick slip and fill in a cover sheet. The administration office is approximately 50 metres from the distribution centre where I was working.
I was advised by Christine, who works in the administration office that my mobile phone had been ringing... I checked my phone and believed it was for my former partner who was in New Zealand. I had three missed calls from the same number. I called my former partner in New Zealand as I was concerned because my youngest daughter lives there and my former partner’s mother has cancer. My former partner advised me that it was not her that called. We spoke for approximately 4 minutes....
At approximately 11:05 am I walked from the administration office to the kitchen which is approximately 10 metres away to see if Subway and pizza had arrived. Subway and pizza had not arrived.
At approximately 11:06 am I walked from the kitchen to the canteen to pay my account. This took approximately 5 minutes. The canteen is approximately 25 metres from the kitchen.
Shortly after this, I walked from the canteen to see if the food had arrived. As the food had not arrived I returned to my work station at the distribution centre and continued my duties.
At approximately 11:30 am I again went to the kitchen to see if Subway and pizza had arrived. It had not so I had a cigarette. Subway arrived at 11:40 am in the kitchen.
I ate lunch in the kitchen and returned to my workstation at approximately 12:05 pm.’ 33
[24] According to the applicant he was then approached by the day shift supervisor who told him that management would want to talk to him upstairs as he had ‘ busted’ his lunch break.
[25] Mr O’Neill said that at about 11:10 am, Mr Brennan and he drove to Subway at Homebush to pick up the sandwiches and then returned to the workplace. As they came back into the workplace, they saw Mr Harris smoking in the outside smoking hut. He noticed that the time was 11:28 am. 34 Mr Brennan said during his cross examination that he could be so precise because he looked at his watch.35
[26] Mr Brennan mentioned to him that he had seen the applicant near the smoking area at 11:07 am. They then went to the kitchen and served the food. Mr O’Neill then went back to work in the supervisor’s office. 36 At 12:06 pm, Mr O’Neill noticed the applicant re-enter the coolroom. He called him aside and asked him when he had started his break. He was told by Mr Harris that he had started his break at 11:30 am. He asked Mr Harris why Mr Brennan had seen him heading to the smoking area at 11:07 am. Mr Harris said to him that he had been over that way to pay money to the canteen that he owed.37
[27] Mr O’Neill then said words to the effect of ‘You’ve told me that you started your break at 11:30 am. It’s now 12:06 pm. You’re allocated a 20 minute break so you’ve just told me that you’ve gone over by 16 minutes.’ According to Mr O’Neill’s statement, Mr Harris agreed that he had gone over by this time. 38 Mr Harris shook his head and said words to the effect of ‘you got me’. Mr O’Neill told Mr Harris that he had discussed the break times in the team talk at morning. He said that he would need to speak to Mr Brennan and said that ‘they would probably want to talk to him upstairs.’ He then told Mr Harris to return to work. According to Mr O’Neill Mr Harris did not say to him during this conversation that he had returned to between 11:07 am and 11:30 am. 39
[28] Mr Brennan’s evidence is that on 5 November 2013, he was walking to Mr Gavan’s office which is located about 60 or 70 metres away from the Distribution Centre. He noticed the applicant walking by. He checked the time and it was 11:07 am and he thought that it was early for Mr Harris to be away from the DC. 40
[29] After he had been to Mr Gavan’s office, he went back to the coolroom and got his car keys. Mr O’Neill and he then drove to pick up the Subway sandwiches. 41 When they returned at 11:28 am, they saw the applicant outside the smoking hut. Mr Brennan said to Mr O’Neill that it appeared that the applicant had been away from the coolroom for about 20 minutes.42 During cross examination he conceded that as he was not on site during that time he had no basis for forming that view, though he considered it a fair assumption.43 He then took the Subway sandwiches to the lunch room. During Mr Brennan’s cross examination he said that when he brought the lunch back he said to Mr O’Neill: ‘Mr Harris is out having a cigarette. It appeared that he’d been out of his work area for that period of time. Can you investigate further?’44At about 12:15 pm, he was advised by Mr O’Neill that Mr Harris had returned to the coolroom at 12:06 pm. He then advised Mr Poeltl ‘what had occurred’.45
[30] During his cross examination, Mr O’Neill said that ‘We were watching everyone come back in that was sitting outside with Julian and they all come back in on 20 minutes.’ 46 He did agree however that he had not seen everyone: ‘Some of them may have had 25...The guys that I did notice walking back in were all coming back in on their allocated times.47 He admitted that he was ‘keeping an eye and seeing when Julian would come back in because we’d thought the 20 minutes was already up....I wanted to see how far he would take it...Because he was obviously breaching what was spoken in the morning.’48He agreed that at that point they thought Mr Harris had been on a break since 11:07am.49
[31] In his statement Mr O’Neill said that the applicant did not have his approval to leave duty outside of his break time. Nor was he aware of the applicant having approval from anybody else to leave the floor. 50 Mr Brennan said during his cross examination that phone call the applicant made was ‘reasonable’.51 He did say however that Mr Harris should have told his supervisor when he left the building to pay a bill at the canteen. Mr O’Neill acknowledged that he was normally the person the applicant would have spoken to, but he was not there because he had left to get the food.52
[32] Mr O’Neill advised Mr Brennan of the conversation that he had had with Mr Harris. Around 15 to 20 minutes after that the applicant approached him and apologised for going over his allocated break time. He said that the change of shift had been good for him and he mentioned there was a review date coming up. Mr O’Neill advised the applicant that he had already told Mr Brennan about the matter. 53
6 November 2013
[33] On 6 November 2013, a meeting was held with the applicant, Mr Poeltl, Mr O’Neill, and Mr Brown (union delegate). Mr Poeltl asked the applicant to explain why he was late returning from his 20 minute break by approximately 15 minutes. He also indicated that Mr Brennan had seen Mr Harris at 11:07 am and ‘it appeared that he had been missing for approximately one hour.’ 54
[34] According to Mr Poeltl, the applicant stated that he had misunderstood the direction about the long break and said that he believed he could take longer than his usual break time. He also said that he had gone to the canteen to pay a debt that he owed. 55 Mr Poeltl said that the whole reason that Mr Harris was on day shift was because he was unreliable and that they needed to keep him in check. He said that he had just left his post for an extended period of time. He then advised Mr Harris that he was required to show cause as to why his employment should not be terminated. He was told that he would be suspended whilst the process occurred. The applicant was then issued with a show cause letter.56 This letter included the following:
‘I wish to draw your attention to your unacceptable behaviour in relation to the following matters:
It was observed that on Tuesday 05/11/2013 you took an excessive break over and above the allotted 20 minutes for a normal lunch break. Both the DC Manager and the Day Shift Coordinator witnessed you at different times during the duration and you have also upon questioning, stated they are taken more time than you were allowed.
Your behaviour in this regard is viewed very seriously by Parmalat, especially in light of your history of unreliability.
You will note that over the past 18 months the business has on numerous occasions attempted to understand and help you with issues that were causing you to become unreliable in your daily activities. During our last meeting on 22/10/2013 I made it quite clear that any further indiscretions, no matter how slight, would not be taken lightly.
Julian, your actions in this regard are viewed as serious misconduct and seriously undermines our trust in you, as a consequence of your unacceptable behaviour, Parmalat is offering you the opportunity to show cause as to why your employment should not be terminated.
Please provide a written response to this letter by 10:00am Monday, November 11th 2013. It is important that you respond to this letter and explain any circumstances that you may wish to Parmalat to take into consideration.’ 57
11 November 2013
[35] On 11 November 2013, a further meeting was held with the applicant. Mr Harris provided a written response to the show cause letter. In that letter he said:
‘For the last 17 years working at the Lidcombe site is all I’ve known. Sitting here writing a letter is a major reality check. I’ve taken this job for granted over the last 18 months due to my family and over the last few days I’ve had off I’ve been able to reflect over the many years I have contributed to the company. I don’t think of it as work. I enjoy what I do, I’m good at what I do, I’m not done using my skills and knowledge of the milk industry, skills that I’ve acquired over the many years I have contributed to growth and expansion of the company, skills that I’m willing to learn and share and have shared. Parmalat I wish to continue my service to you and become once again that reliable person I once was. I thank you for the opportunity provided to me to try and hopefully convince you to preserve my employment and I asked that show compassion for me in return I would embrace Parmalat’s rules and policies and abide by them at all times.’ 58
[36] Mr Poeltl considered the applicant’s response but formed the view that the respondent would continue to see unauthorised absences from him. He concluded that he had lost trust in Mr Harris to work in accordance with the respondent’s requirements and the decision was taken to dismiss him. He advised the applicant that, although the taking of the extended break seemed relatively minor, in the context of the support that he had been provided by the respondent and his history they had lost trust in him and his reliability. Mr Brennan gave evidence during his cross-examination that he felt that the applicant’s performance continued to be poor despite changes that the respondent had made to try and help him. 59d For Mr Poeltl ‘it was the straw that broke the camel’s back’.60 The applicant was issued with the dismissal letter. He was paid in lieu of notice.
Consideration
[37] Section 387 of the Fair Work Act 2009 requires that 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.’
[38] All the witnesses - including the applicant - struck me as honest. The applicant was however sometimes confused about his evidence, and I am not confident that his answers were always accurate - particularly on matters of dates or details. On such matters I therefore generally prefer the evidence of the respondent’s witnesses - except where the facts in question are peculiarly in the knowledge of the applicant himself (for example, what he was doing between 10:55 am and 11:28 am on 5 November 2013)
[39] The incident that precipitated the applicant’s dismissal was relatively minor. I am satisfied that on 5 November 2013 Mr Harris took a lunch break from around 11:28 am (when Mr Brennan and Mr O’Neill saw him having a smoke) until 12:06 am (when Mr O’Neill saw him return to the coolroom) - a period of around 38 minutes. While the break arrangements for the day were somewhat different than usual, I am satisfied that the applicant was only entitled to a 20 minute break - and that nothing that had been said to him that morning by the relevant managers would have suggested anything else. Based on Mr O’Neill’s observations I am also satisfied that the other coolroom employees generally took only a 20 minute break.
[40] It almost goes without saying that viewed in isolation, taking an extra 18 minutes lunch break on Melbourne Cup day would not be a valid reason for dismissal. However it would be wrong to look at the events of 5 November 2013 in isolation. Certainly Mr Poeltl saw them as ‘a straw that broke the camel’s back.’
[41] Even on the applicant’s own evidence he had a serious problem with reliability. He largely put this down to the difficulties he was having with his daughter. There is no doubt that these difficulties were a significant factor. The respondent was not unsympathetic to his family circumstances and went to some lengths to help him deal with the challenges he was facing. However, not all the applicant’s problems with reliability were due to the difficulties with his daughter. For example, on 4 September 2013 he failed to turn up to his scheduled shift and it was left to his supervisor to contact him to find out if he was working. Based on his own evidence the applicant had been drinking and had fallen asleep. On 18 October 2013 - just after he had received a Final Written Warning - he contacted Mr Brennan and asked not to work his next shift - again because he had been drinking.
[42] The applicant was clearly on notice that his continued employment was in question due to his unreliability. Not only had he received a lengthy and detailed Final Written Warning in response to his poor attendance record but he had been moved to day shift so that - in effect - he could be more closely monitored. He knew - if he kept on being unreliable - that he would be ‘shown the gate’. Unfortunately he did not appear to take this message on board - as exemplified by his behaviour on 5 November 2013.
[43] I find that the pattern of unreliability on the part of the applicant gave the respondent a valid reason to terminate his employment.
[44] The applicant was given an opportunity to respond to Parmalat’s concerns - and indeed provided a written response on 11 November 2013.
[45] The applicant was not refused the presence of a support person at any of the relevant meetings.
[46] The applicant had numerous warnings about his unreliability, including a Final Written Warning and the meeting when he was told he was being moved to day shift. He could hardly have failed to know that the respondent had grave concerns about his poor reliability.
[47] The procedures adopted by the respondent were consistent with its relative size and sophistication.
[48] I have given consideration to the applicant’s long service and his family difficulties. However I do not consider these outweigh the negative effect his behaviour would have had on other members of the team and on the respondent. A ‘fair go all round’ applies to them as well as him. In the circumstances I find that the applicant’s dismissal was not harsh, unjust or unreasonable.
Decision
[49] For the foregoing reasons, the application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
C O’Callaghan from the Transport Workers’ Union for the Applicant
B Cooper solicitor for the Respondent
Hearing details:
2014
Sydney
10, 11 April
1 Exhibit H1, paragraphs 2-7
2 PN117
3 Exhibit P1, paragraphs 9-10, and attachment 1
4 Exhibit P1, paragraph 11
5 Exhibit P1, paragraphs 5-6
6 PN1027
7 PN1052
8 Exhibit P1, paragraph 42
9 PN138
10 PN197-205
11 PN206
12 PN233-242
13 PN244
14 PN245
15 Exhibit H1, attachment 8
16 PN265
17 Exhibit P1, paragraphs 15 - 21
18 PN285
19 PN291
20 Exhibit P1, paragraph 13
21 PN301
22 PN314
23 PN1443
24 Exhibit P1, paragraph 17
25 PN99
26 Exhibit P2, paragraph 10
27 Exhibit P2, paragraphs 11-12
28 PN350-355
29 PN1097-1099
30 PN898-904
31 PN934
32 Exhibit P1, paragraph 19
33 Exhibit H1, paragraphs 20 - 26
34 Exhibit P2, paragraphs 13-14
35 PN949
36 Exhibit P1, paragraphs 15-17
37 Exhibit P2, paragraph s 18-19
38 Exhibit P2, paragraph 20
39 Exhibit P2, paragraphs 20-23
40 Exhibit P1, paragraph 25
41 Exhibit P1, paragraph 26
42 Exhibit P1, paragraph 27
43 PN952-3
44 PN968
45 Exhibit P1, paragraphs 28-29
46 PN1204
47 PN
48 PN1231-1235
49 PN1246
50 Exhibit P2, paragraph 24
51 PN927-929
52 PN1185
53 Exhibit P2, paragraphs 25-29
54 Exhibit P3, paragraph 22
55 Exhibit P3, paragraphs 23-24
56 Exhibit P3, paragraphs 26-29
57 Exhibit P3, attachment 2
58 Exhibit H1, attachment 4
59 PN1055
60 Exhibit P3, paragraphs 32-40
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