Kadir Ozturk v Dnata Catering Australia Subsidiary 1 Pty Ltd

[2021] FWC 4229

[2021] FWC 4229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kadir Ozturk
v
Dnata Catering Australia Subsidiary 1 Pty Ltd
(U2021/3899)

DEPUTY PRESIDENT COLMAN MELBOURNE, 19 JULY 2021

Application for an unfair dismissal remedy – damage to aircraft – breach of safety standards – allegations substantiated – valid reasons for dismissal – final warnings – dismissal not unfair

[1] This decision concerns an application made by Mr Kadir Ozturk under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Mr Ozturk commenced employment with Dnata Catering Australia Subsidiary 1 Pty Ltd (company) in 2011 and was employed in the role of ‘airline services officer driver / marshaller’ at Tullamarine airport. On 16 April 2021, Mr Ozturk was dismissed in connection with an incident that had occurred on 12 April 2021, in which a catering vehicle that Mr Ozturk was marshalling caused damage to an aircraft, rendering it unusable for three days. Mr Ozturk was also found to have contravened safety standards by not wearing a harness while working at height on a platform between the catering vehicle and the aircraft. Mr Ozturk submits that he was not responsible for the damage to the aircraft, that he forgot to wear the harness, and that there was no valid reason for his dismissal, such that in all the circumstances his dismissal was unfair. He seeks reinstatement and payment of lost wages.

[2] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Ozturk’s application. There is no dispute, and I am satisfied, of the following. First, Mr Ozturk’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Ozturk was a person protected from unfair dismissal, as he earned less than the high-income threshold (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, the company is not a small business for the purposes of the Act, and therefore no question of compliance with the Small Business Fair Dismissal Code arises.

Factual setting

[3] The company provides catering services to airlines. Mr Ozturk’s job involved operating catering vehicles that deliver food and drinks to aircraft. Mr Ozturk usually worked in teams of two. One worker would drive the catering vehicle to the aircraft, while the other would direct, or ‘marshal’, the vehicle into position adjacent to the aircraft.

[4] On 12 April 2021, Mr Ozturk and another employee, Mr Vince La Rocca, were assigned to work on a catering truck servicing a B717 aircraft at Terminal 1. Mr La Rocca was driving the truck. Mr Ozturk was the ‘marshaller’. The elevated platform of the truck made contact with the aircraft door and became stuck. Engineers were called to inspect the aircraft. They determined that the aircraft had sustained damage in the form of a one centimetre kink in the door, and that it was unsafe to fly. All of the passengers and baggage had to be moved to another aircraft. The B717 was unusable for three days.

[5] Mr Anthony Templeton, the company’s customer delivery manager in Melbourne, said that on the morning of 12 April 2021 he was notified of the incident by the leading hand, and that after inspecting the aircraft he viewed CCTV footage of the incident, which showed Mr Ozturk standing on the elevated platform between the truck and the aircraft without wearing a safety harness. Later that day, Mr Templeton gave Mr Ozturk a letter, advising him that the company was investigating allegations of misconduct involving failure to follow standard operating procedures (SOPs), and that Mr Templeton wanted to discuss the allegations with Mr Ozturk and provide him with an opportunity to put forward his version of events.

[6] On 13 April 2021, Mr Ozturk attended a meeting with Mr Templeton, together with a representative from his union, the Transport Workers Union (TWU), to discuss the events of the previous day. At the conclusion of the meeting, Mr Templeton gave Mr Ozturk a ‘show cause’ letter, which stated that the company’s investigation had concluded that Mr Ozturk had failed to guide the truck to the aircraft correctly, resulting in damage to the aircraft, and that he had failed to wear a safety harness while working on the platform. The letter noted that on 27 October 2020 Mr Ozturk had received a final written warning for failing to adhere to safety requirements, and that he had received an earlier final written warning on 17 January 2020 for causing damage to an aircraft. The letter stated that the company was considering disciplinary action, including termination of employment, and that Mr Ozturk was invited to provide a written response.

[7] In his letter of reply dated 15 April 2021, Mr Ozturk stated that he understood his obligation to observe safety procedures and that he believed he had done so in this instance. He said that he had been experiencing personal issues, but did not say what these were. Mr Ozturk stated that he had always endeavoured to observe policies and procedures and that this was reflected in what he described as his unblemished record. Later that day, Mr Templeton met with Mr Ozturk and his TWU representative to discuss the company’s disciplinary decision. Mr Templeton told Mr Ozturk that the company had determined that the allegations against him were substantiated and that it had decided to terminate his employment.

[8] On 16 April 2021, Mr Ozturk was handed a letter stating that his employment with the company would terminate that day, and that he would be paid five weeks in lieu of notice. The letter stated that the investigation into the incident on 12 April 2021 had determined that, due to his having incorrectly positioned the truck, the platform had become wedged on the aircraft door, resulting in damage that rendered the aircraft unsafe to fly. The letter further stated that Mr Ozturk had failed to wear a safety harness and had wilfully placed himself in a situation that posed a threat to his safety.

[9] Mr Ozturk gave evidence that he considered Mr La Rocca to have been responsible for the incident, because he was the one who had driven the truck. Mr Ozturk denied that he had failed to comply with the company’s instructions and maintained that he had followed the procedures for positioning the truck next to the aircraft. He also said that, when he opened the door of the aircraft, the platform of the truck was in the correct position and that the aircraft must have moved, which was a common occurrence. During his oral evidence Mr Ozturk said, for the first time, that the truck on which he was working on 12 April 2021 did not have a functioning ‘emergency switch’, and that when the platform became stuck on the door of the aircraft, he was unable to press the switch to lower the platform.

[10] Mr Ozturk gave evidence that he believed that he had been singled out for dismissal, because no disciplinary action had been taken against Mr La Rocca. Mr Ozturk said that the company’s approach to accountability for accidents involving damage to aircraft was inconsistent. He said that following a similar incident in January 2020, when he had been the driver of the truck, he had received a final warning for having caused damage to an aircraft; but in the incident on 12 April 2021, when he was the marshaller, he was again blamed for the damage to the aircraft, while no disciplinary action was taken against the driver.

[11] In relation to his failure to wear a safety harness, Mr Ozturk said that most trucks used by the company did not require a harness to be worn, and that he had simply forgotten about the requirement to wear a harness while working on the platform on this particular truck.

[12] Mr Templeton gave evidence that he considered Mr Ozturk to be responsible for the damage to the aircraft because he was the marshaller who had guided the truck, and that the driver relies on the marshaller to do this properly. He said that Mr Ozturk had been trained how to guide the truck next to the aircraft door in a manner that ensures that, if the aircraft moves up or down, the platform will not be in its way. Mr Templeton said that the accident on 12 April 2021 occurred because Mr Ozturk had incorrectly guided the truck to the aircraft, and then failed to reposition it so that if the aircraft moved, it could not make contact with the platform.

[13] Mr Templeton said that as recently as 27 February 2021, Mr Ozturk had received training on the SOPs for servicing aircraft, including the SOPs for ‘Dock to Aircraft’ (SOP CD-02) and ‘Service Aircraft’ (SOP CD-03), and had completed a test. The SOPs and Mr Ozturk’s test were tendered in evidence. SOP CD-02 provides work instructions for driving the catering truck and positioning it next to the aircraft. At point 3.2, it states that the co-driver (marshaller) must provide direction to the driver and line up the ‘hi-loader’ of the truck with the aircraft. At point 3.3 the SOP states that the co-driver must visually check to ensure the hi-loader will clear the aircraft when raised and that there is a 100mm horizontal gap between the platform and the aircraft. The SOP states that if the hi-loader is not positioned correctly, it must be repositioned.

[14] Mr Templeton said that either the marshaller or the driver can open the door of the aircraft. In this case it was Mr Ozturk who did so. Mr Templeton said that one can clearly see, when opening an aircraft door, whether it will miss the platform if the aircraft moves, and that it was Mr Ozturk’s responsibility to make sure that the platform could not come into contact with the aircraft door.

[15] Mr Templeton gave evidence that working without a harness on the platform of the catering truck in question was a breach of safety standards, as it contravened SOP CD-02, on which Mr Ozturk had recently been trained. In this regard, point 5.2 of the SOP states that a harness ‘must be used for Hi-Loaders with a narrow platform and ½ cabs’. Mr Templeton said that the platform is at a height of at least 1.92 metres from the ground, and that every catering truck with a narrow platform has two harnesses on board.

[16] As to the role of the driver in the incident on 12 April 2021, Mr Templeton said that he counselled Mr La Rocca about the need to be observant as he too was catering the aircraft and could have noticed that the platform was in the wrong position, but that the fault for the incident lay with Mr Ozturk. Mr Templeton also said that the particular truck on which Mr Ozturk was working on 12 April 2021 did not in fact have an ‘emergency switch’ to lower the platform, but instead was a model which required the platform to be put into ‘home’ position in order for it to be lowered. However, because the platform had become stuck on the door of the aircraft, it could not be put into the home position.

[17] Two final written warnings previously given to Mr Ozturk were tendered in evidence. The first was dated 17 January 2020 and concerned two incidents that had occurred on 3 and 4 December 2019. On 3 December 2019, Mr Ozturk, in his role that day as a driver of a catering truck, had positioned the platform adjacent to an aircraft. Mr Ozturk said in his evidence that the truck he was driving at the time was an older vehicle, and that the platform shook when he was lowering it, which caused it to come into contact with the door of the aircraft. This resulted in damage to the aircraft, which had to be repaired by engineers. The flight was delayed by 30 minutes. On 4 December 2019, Mr Ozturk reversed his truck into a parked vehicle and then failed to report the matter. Mr Ozturk was given a final written warning stating that if his conduct did not improve, his employment might be terminated.

[18] The second final written warning was dated 27 October 2020. It related to an incident in which Mr Ozturk had failed to adhere to the ‘aviation circle of safety’, part of which requires the marshaller to exit the truck outside the wingtip and guide it to the aircraft. Mr Ozturk was found to have exited the truck only once it was two metres from the aircraft. He was also found to have failed to use two-wheel chocks to secure the truck, as required by the client airline. Mr Ozturk was given a final written warning for misconduct, which stated that if there were any further instances of misconduct, it might result in the termination of his employment.

Findings

[19] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. Where allegations of misconduct are made, the standard of proof is the balance of probabilities. However, as the High Court said in Briginshaw v Briginshaw (1938) 60 CLR 336, the nature of the relevant issue affects the ‘process by which reasonable satisfaction is attained’ (per Dixon J at p 363) and where serious allegations are made, such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion’ (per Dixon J at p 362, and Rich J at p350). In my view, the allegations that Mr Ozturk caused damage to an aircraft and failed to observe an important safety rule are serious matters that attract the Briginshaw standard.

[20] I make the following factual findings, applying the standard in Briginshaw. First, I find that Mr Ozturk failed to follow the correct marshalling procedures in SOP CD-02. These require the high-loader to be lined up adjacent to the aircraft with a gap between the platform and the aircraft, and for the catering truck to be repositioned if it is not in the correct place. I find that Mr Ozturk did not do these things. I do not accept Mr Ozturk’s evidence that the platform was in the right position when he opened the door. Had it been in the right position, the aircraft would not have come into contact with the platform. That is what the SOP is designed to ensure. The high-loader was incorrectly positioned, and not repositioned, in contravention of the SOPs.

[21] Secondly, I find that Mr Ozturk was responsible for the damage to the aircraft that was caused on 12 April 2021. As the marshaller, Mr Ozturk was required to guide the truck to the aircraft. Further, he was the one who opened the aircraft door. I accept the evidence of Mr Templeton that it should have been apparent to Mr Ozturk that the door could make contact with the platform of the truck if the aircraft moved. In this regard, I note that Mr Ozturk acknowledged that it is common for the body of the aircraft to move up and down during loading. Mr Ozturk’s claim that the platform was in the correct position when he opened the door suggests that the aircraft somehow moved laterally closer to the platform. This is improbable. As to the role of Mr La Rocca, he was the driver following Mr Ozturk’s marshalling guidance. He did not open the door of the aircraft. While Mr La Rocca might also have been able to notice the problem once he commenced to service the aircraft, he was not the one at fault for the truck being in the wrong position.

[22] Thirdly, I accept Mr Templeton’s evidence about the operational features of the truck. I find that it did not have an emergency switch of the kind referred to by Mr Ozturk, and that in order to lower the platform it was necessary for it to be put into home position, which was not possible once the platform had become stuck on the aircraft door. I find that the truck was not defective. I further find that in any event, Mr Ozturk had already failed to adhere to the SOPs before the platform became stuck on the aircraft, because he had not guided the truck to the correct position, and had not ensured that the aircraft could not make contact with the platform.

[23] Fourthly, I find that by failing to wear a safety harness while working on the platform at a height of nearly two metres, Mr Ozturk acted in contravention of SOP CD-02. The possibility for serious injury when working at height without a harness requires no explanation. The photograph taken by the company from the CCTV footage of the incident shows Mr Ozturk standing on a platform bridging the catering truck and the aircraft door with no harness. He was obviously working in an unsafe manner. Had he fallen, he could have been killed. During the assessment phase of the SOP training on 27 February 2021, Mr Ozturk had answered questions demonstrating that he understood that wearing a harness was not optional, and that it was required for his own safety.

[24] Fifthly, I find that Mr Ozturk’s conduct on 12 April 2021 contravened the final written warning that had been given to him in the letters dated 27 October 2020.

[25] Sixthly, I find that the final written warning issued to Mr Ozturk on 27 October 2020 was warranted, because the conduct in questioned occurred, and it was appropriate that he receive a final written warning in relation to this conduct. Mr Ozturk did not contend that the incident had not occurred, or that the warning was improperly issued. He did not say in his response to the show cause letter that the company should not rely on the warning.

[26] Finally, I find that the company did not act inconsistently in its enforcement of SOPs by taking disciplinary action against Mr Ozturk both as the driver of the truck involved in the incident on 3 December 2019 on the one hand, and as the marshaller of the truck involved in the incident on 12 April 2021 on the other. The two incidents were quite different. First, in the earlier incident, the damage to the aircraft occurred while Mr Ozturk, as the driver, was lowering the platform, which made contact with the aircraft. By contrast, Mr La Rocca, the driver during the incident on 12 April 2021, had no direct involvement in the damage to the aircraft. Secondly, the incident on 12 April 2021 was much more serious than the earlier incident. It rendered the aircraft unusable for three days, whereas the earlier incident caused a delay of 30 minutes. In this regard, I note Mr Templeton’s evidence that the company incurs penalties for delays caused to client airlines, and that penalties accrue by the minute. Finally, and importantly, during the incident on 12 April 2021, Mr Ozturk also committed a serious breach of safety standards.

Was the dismissal unfair?

[27] In order for a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387(a) to (h).

[28] Section 387(a) requires consideration of whether there was a ‘valid reason’ for the dismissal. A valid reason is one that is a good or sufficient reason for dismissal, and which is based on facts that the Commission considers to be substantiated. The company relied on two valid reasons: that Mr Ozturk failed to correctly position the truck, resulting in damage to the aircraft; and that he breached safety requirements by failing to wear a harness. I have found each to be proved to the requisite civil standard of proof, applying the considerations in Briginshaw. Each was a serious matter involving contraventions of the SOPs. The conduct was sufficiently serious to constitute misconduct. Mr Ozturk queried why, if his conduct was so serious, he was allowed to continue working on 12 April 2021. The answer is that the company needed to investigate the matter and determine whether the allegations were substantiated. The seriousness of the conduct is underscored by the fact that it occurred against a background of Mr Ozturk having received two final written warnings relating to breaches of operating and safety procedures. But even if there had been no final written warning, the two reasons upon which the company relied for its decision to dismiss Mr Ozturk were each plainly valid ones. I note that my ultimate conclusion in this matter would have been the same had either of these reasons been the only valid reason for dismissal.

[29] Sections 387(b) and (c) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal and afforded an opportunity to respond to any reasons related to capacity or conduct. Mr Ozturk was informed of the matters that would constitute the reasons for his dismissal during the meetings on 13 April 2021 and 15 April 2021. He received particularised allegations of the misconduct in writing and was invited to attend a meeting to discuss them. He was given an opportunity to respond in writing to the company’s conclusion. His responses were considered by the company prior to its decision to dismiss him.

[30] The Commission is required to consider whether there was any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal (s 387(d)). There was no such refusal. Mr Ozturk was accompanied to both meetings by a representative of the TWU.

[31] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. The reasons for the dismissal in this case can be regarded as relating to unsatisfactory performance. Clearly, Mr Ozturk was warned about his performance. The final written warning of 27 October 2020 referred to Mr Ozturk’s breach of safety requirements and SOPs and warned him that if his conduct did not improve his employment might be terminated.

[32] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). The company is a large organisation and has dedicated human resources specialists. The considerations in ss 387(f) and (g) therefore do not carry weight in the analysis of whether the dismissal of Mr Ozturk was unfair.

[33] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). Mr Ozturk contended that his dismissal has had a significant effect on his personal and economic situation. I accept this. He said that he was well respected by his colleagues and line managers and that he had a good performance record. Mr Ozturk may have been well regarded by his colleagues, but he did not have a good performance record, at least in recent times. He had received two final written warnings in respect of incidents that had involved damage to aircraft and breach of safety requirements.

[34] Mr Ozturk said that the company had been inconsistent in its treatment of misconduct by employees. I do not consider this to be the case. As I have explained, Mr Ozturk bore responsibility for the damage to the aircraft on 12 April 2021, and had committed a serious safety breach. The company’s differential disciplinary treatment of Mr Ozturk and Mr La Rocca was justified. Mr Ozturk was not singled out. I accept the company’s contention that, on the contrary, the company gave Mr Ozturk a fair go and every chance to succeed. It was only after two final written warnings that his employment was finally terminated.

[35] Mr Ozturk said that the process surrounding his dismissal was unfair. I disagree. The company’s concerns about Mr Ozturk’s conduct were investigated. The allegations were clearly explained to him. Mr Ozturk had a reasonable opportunity to respond to them. The process adopted by the company was fair. It reached a well-founded decision to dismiss him, which was proportionate to the conduct in question.

[36] Mr Ozturk failed to follow SOPs. He caused damaged to an aircraft that rendered it unusable for 3 days. He failed to wear a harness in breach of clear safety standards and put his safety at risk. He had previously received final warnings and been told that further misconduct could result in dismissal. The termination of his employment was not disproportionate. It was a predictable and reasonable response to his conduct.

[37] Taking into account all of the circumstances and the matters in s 387, I consider that the dismissal of Mr Ozturk was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair. Mr Ozturk’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

K. Ozturk for himself
G. Bergman for Dnata Catering Australia Subsidiary No 1

Hearing details:

2021
Melbourne
15 July

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