Kamaldeep Singh v Fenner (Australia) Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions

[2015] FWC 5583

[2015] FWC 5583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kamaldeep Singh
v
Fenner (Australia) Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions
(U2015/3762)

COMMISSIONER GREGORY MELBOURNE, 25 AUGUST 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Kamaldeep Singh commenced employment with Fenner (Australia) Pty Ltd (“Fenner Dunlop”) as a mill operator in August 2013. The business operates under the trading name of Fenner Dunlop Engineered Conveyor Solutions. Mr Singh was initially employed on a casual basis but after completing some initial training and a probation period was engaged as a full-time employee in November 2013.

[2] Mr Singh was dismissed following an incident in the weaving room on 4 February 2015. It is alleged he intentionally placed his hand close to the rotating drum of a machine that was operating at high speed. He was subsequently dismissed on the basis that his actions constituted serious misconduct. Mr Singh denies he acted in this way and lodged an unfair dismissal application claiming his dismissal was harsh, unjust and unreasonable. He seeks to be reinstated to his former position. This decision deals with that application.

[3] The application was dealt with in a hearing on 4 June 2015. However, at the conclusion of that hearing Mr Singh’s representative requested to be able to provide further written closing submissions. The Commission agreed to that request and further written submissions were received from both parties in accordance with a timeframe set down by the Commission.

[4] Mr Patrick Mulligan from Taylor and Preston Lawyers was granted permission to appear on behalf of Mr Singh pursuant to s.596(2)(b) on the basis his involvement would allow Mr Singh to be represented more effectively. Mr Tony Dalton from the Australian Industry Group appeared on behalf of Fenner Dunlop.

The Issue to Be Determined

[5] There is no dispute that at the time of his termination Mr Singh was a person protected from unfair dismissal under the terms of s.382 of the Fair Work Act 2009 (“the Act”).

[6] Section 385 of the Act continues to provide:

“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.” 1

[7] In considering whether a dismissal is “harsh, unjust or unreasonable” the Act also provides that the Commission must take into account the criteria in s.387. It states:

“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.” 2

[8] Therefore, having regard to the considerations contained in s.387, was Mr Singh unfairly dismissed in that the Commission is satisfied his dismissal was “harsh, unjust or unreasonable.”

The Evidence and Submissions

[9] Mr Singh submits, in summary, that he did not place his hand close to the rotating drum of the warper machine. He also submits in the alternative that even if the Commission finds he did place his hand in close proximity to the rotating drum, his actions were not intentional. He also submits his behaviour did not constitute serious misconduct, but even if he is found to have acted inappropriately his dismissal was harsh because summary dismissal was a disproportionate response. Other options were available including counselling, retraining or being provided with a warning.

[10] Mr Singh states in his witness statement that he commenced with Fenner Dunlop in August 2013. He worked as a mill operator and was initially employed on a casual basis. After completing a period of training he obtained a full-time position in November 2013.

[11] In May last year he fractured his left arm and wrist when his hand was caught in a winder machine. However, he said he was not found to have been at fault in this incident. He subsequently returned to work on light duties and reduced hours on 27 July while he continued to receive further treatment for his injury. He returned to full-time work in December but still continued to perform light duties. He also said he continues to take painkillers to assist in dealing with his injury.

[12] On 4 February 2015 he said he went to the weaving room where the warper machine is located to talk to one of the machine assistants, Mr Phil Smith. He said Mr Smith had also been injured at work in a previous incident and the two men often had discussions about their recovery, and their experience with the return to work coordinator. Mr Singh said he had met with his rehabilitation provider earlier that day. He also said he recalls standing next to the warper machine and for most of his conversation with Mr Smith stood with his back to the machine. He said another machine operator, Mr Mark Roberts, was working at the other end of the machine and Mr Singh did not speak to him.

[13] Mr Singh said he stood in a position that he considered to be a safe distance from the machine, being approximately one metre away. He said his conversation with Mr Smith lasted for approximately five minutes and during this time neither Mr Smith nor Mr Roberts said anything to him about placing his hand in a dangerous position, or otherwise doing anything that put him at risk.

[14] Mr Singh said at no stage did he place his arm or hand in or near the rotating drum of the warper machine and at no stage did he put himself, or anyone else, at risk of serious injury. He also states that at no time during his conversation with Mr Smith did the safety laser guard of the drum activate and bring the machine to a stop.

[15] Mr Singh said he first heard about the alleged incident when he was advised by his supervisor, Mr Darren Santospirito, that Mr Smith and Mr Roberts had made a complaint. Mr Singh said he then told Mr Santospirito about the discussion with Mr Smith and denied he had done anything wrong.

[16] Mr Singh states he was then called into a meeting on 9 February, five days after the incident, with Mr Santospirito and Mr Frank Spina, the National Human Resources Manager. His union representative, Mr Craig Guy, also attended. He said he was told by Mr Spina that it was claimed he had acted dangerously and had been told to stop acting in that way by the two Machine Operators in the weaving room. Mr Singh said he responded by providing his version of what occurred. He said Mr Spina ended the discussions by suggesting it appeared Mr Singh was either guilty of serious misconduct and would likely be dismissed, or he was blameless and no further action would be taken.

[17] Mr Singh said he was then asked to attend a further meeting on 16 February with Mr Spina, Mr Santospirito and Mr Robert Hoskin, the Plant Manager. Mr Guy was also present. Mr Singh said he was asked to sign a statement detailing his version of the incident. Mr Singh said he was then told his employment was terminated, effective immediately, and on the following day this was confirmed in a letter provided to him.

[18] Mr Singh also denied in cross examination that Mr Roberts and Mr Smith had both yelled at him to stop placing his hand close to the machine. He also denied he had changed his story from a version provided previously. He also stated in response to a question from the Commission that even though there were significant noise levels in the weaving room, and he was wearing hearing protection, he would still have heard if someone had shouted at him.

[19] Mr Singh also submits that despite the alleged seriousness of the incident the two machine operators did not report the matter until the following day. He also submits it is inconceivable that he would place himself in danger of injury, given the serious injury he sustained nine months earlier.

[20] He also submits the evidence indicates he had not been trained on the machine where the alleged incident occurred, apart from a brief period of three hours on one day, and there is no proof he was adequately trained to the extent he knew about the laser guard and other safety features of the machine. He also submits the evidence indicates the laser guard did not activate and it is highly probable this was because he was at least one metre away from the rotating drum, as he states in his evidence.

[21] Mr Singh also submits the evidence of Fenner Dunlop, indicating re-enactments were carried out as part of the process of investigating the incident, were flawed. He was not present during those re-enactments to be able to provide his version of what occurred, and the intent appeared to be about establishing how a person’s hand could be placed close to the drum without activating the laser guard.

[22] Mr Singh submits, in summary, it is inherently unlikely he intentionally placed himself in danger as alleged by Fenner Dunlop and, accordingly, his dismissal was harsh, unjust and unreasonable. He also submits if this finding is made, and his version of events is accepted, then there is no reason why he cannot be reinstated.

[23] Fenner Dunlop submits Mr Singh was terminated on grounds of serious misconduct in that he was involved in a serious and wilful breach of its safety rules, which could have resulted in a serious safety incident. In this context it refers to the meaning of “serious misconduct” contained in regulation 1.07 of the Fair Work Regulations 2009, which states in sub clause (2):

“(2) For sub regulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.” 3

[24] Fenner Dunlop submits the witness evidence establishes it had a valid reason for Mr Singh’s termination which was directly related to his serious and wilful misconduct.

[25] Mr Darren Santospirito is the Production Supervisor at Fenner Dunlop and responsible for overseeing and supervising the day shift operation. His responsibilities extend to production, quality and safety. He states that on 5 February 2015 at around 7 a.m. he was approached by Mr Mark Roberts, a Leading Hand in the Weaving Department, who said he wanted to report a near miss incident involving Mr Singh that occurred at approximately 2 p.m. on the previous day.

[26] Mr Santospirito said he responded by commencing an investigation and subsequently interviewed the two warper Machine Operators, Mr Roberts and Mr Smith, as well as Mr Singh. He said he took statements from each employee and asked them to sign the statements confirming their version of events.

[27] Mr Santospirito said Mr Roberts told him he believed Mr Singh’s behaviour had placed him in danger, and had also exposed the business to significant cost and production delays if the emergency stop had been activated. He also said Mr Roberts told him he yelled at Mr Singh at the time, asking him to stop, after which Mr Singh walked away.

[28] Mr Santospirito said he interviewed Mr Singh on the morning of 5 February in the presence of his support person, the elected site safety representative. He initially asked Mr Singh if he recalled entering the Weaving Department at the time of the alleged incident and his initial response was that he could not recall doing so. However, he then said he did remember entering the Department to talk with Mr Smith, but denied being in close proximity to the warper machine. He also could not recall being asked to take his hand away from the spinning drum.

[29] Mr Santospirito said at the conclusion of the interview he specifically instructed Mr Singh not to go back into the Weaving Department, however, Mr Roberts later told him Mr Singh had returned to the room and approached both Machine Operators, protesting his innocence and asking why they had reported the incident.

[30] In cross-examination Mr Santospirito acknowledged Mr Singh had limited knowledge of the operation of the warper machine, having only spent half a day working in that area. However, he also said the first things he would have been shown were the safety devices, and therefore he would have some knowledge of them. He also said he could not provide any explanation for Mr Singh’s actions, particularly as he had suffered a previous workplace injury. However, both of the Machine Operators had provided him with a similar version of events and were, in his words, “horrified at what took place.” 4

[31] Mr Santospirito said that after interviewing the two Machine Operators he was satisfied there was clear evidence of a serious safety breach in that Mr Singh had “intentionally placed his hand within very close proximity of the rotating drum.” 5 He proceeded to provide an update to the Plant Manager, and also decided to seek advice from HR on how to proceed.

[32] He said Mr Frank Spina, the National Human Resources Manager, then proposed that a performance counselling meeting be held with Mr Singh and this took place on 9 February. Mr Singh again attended with a support person and after the meeting a decision was made to stand him down while further investigations were conducted.

[33] Mr Mark Roberts is employed by Fenner Dunlop as a leading hand and has worked with the company since April 2006. He said that one of the machines he operates is the warper machine in the Weaving Department.

[34] He said that on Wednesday, 4 February 2015 at around 2 p.m. he was working with another operator, Mr Phil Smith, when Mr Singh suddenly came into the area. He said he saw Mr Singh place his hand very close to the spinning drum of the machine. It appeared he had done this deliberately as he put his hand under the laser safety cut-off. Mr Roberts said the drum was spinning fast at the time and if Mr Singh’s hand had been caught the consequences would have been very serious. He said he instinctively yelled at Mr Singh to stop and then asked him why he did that. He said Mr Singh did not reply and walked away.

[35] Mr Roberts said he then went to the Production Supervisor at the start of his next shift to report what he considered to be a near miss incident. He was later interviewed as part of the investigation process and provided the Production Supervisor with a written statement.

[36] Mr Roberts said he took issue with a number of matters in Mr Singh’s witness statement. He did not agree that he did not take notice of Mr Singh when he came into the area, but states instead that he yelled at him to stop when he observed him place his hand close to the spinning drum. He also disagreed that Mr Singh was standing a safe distance from the machine, and did not observe Mr Singh having a conversation with Mr Smith, let alone for a period of five minutes. He said both he and Mr Smith had instead yelled at Mr Singh to stop when he walked into the room and put his hand close to the spinning drum. He also said Mr Singh appeared to act intentionally in a way that placed him at risk of serious injury.

[37] He said Mr Singh again came into the weaving area on the following day and asked why both men had reported him to the Plant Supervisor.

[38] Mr Roberts also stated he had been involved in training Mr Singh during the half day he had previously spent working on the warper machine. This had occurred in January 2015. He said this training commenced by going through the safety features of the machine, including the pressure mat and the laser light barrier that prevents an operator from leaning forward into the machine. However, after an initial half day training session Mr Singh said he was not interested in working on the machine and would speak further with the Plant Supervisor about this.

[39] Mr Roberts also denied in cross-examination he had been told or pressured in any way to make his statement about the incident involving Mr Singh.

[40] Mr Philip Smith works as a Machine Operator with Fenner Dunlop and has been employed since July 2013. He said he works on various machines at different times and on 4 February 2015 was operating the warper machine in the weaving area.

[41] He said he was working on the warper machine with Mr Roberts when Mr Singh came into the area. He said Mr Singh then placed his hand underneath the laser guard and close to the spinning drum. He estimated his hand was within one to two centimetres of the drum. He said Mr Singh’s actions appeared to be quite deliberate and he had placed his hand under the laser safety cut-off. He said his actions could have been very serious, possibly fatal.

[42] He said both he and Mr Roberts instinctively yelled at Mr Singh to stop and both then asked him why he did that. He said Mr Singh then just walked away. He also stated that Mr Roberts then said he was going to report the incident as “a near miss.” He said he was later interviewed by the Production Supervisor and provided a written statement about the incident. He also said Mr Singh later returned to the weaving area and asked where Mr Roberts was. He said he wanted to speak with him because he had reported him to the Production Supervisor.

[43] Mr Smith also acknowledged he had been involved in previous discussions with Mr Singh because both men had previously suffered injuries at work. However, he said he did not have a conversation with Mr Singh at the time of the alleged incident, and the only communication with him on that day was to yell at him in response to his actions in placing his hand close to the spinning drum. He also said it was not easy to have a conversation in the weaving area as there is too much noise, and the operators are wearing hearing protection. The only way to communicate was to yell. He also said he believed Mr Singh’s actions were deliberate and disputed his version of events when Mr Singh said he was standing a safe distance from the machine.

[44] Mr Smith was also asked in cross-examination about a text message he had sent to Mr Singh on 16 February. It read, “I signed it but never wrote it. Don’t even remember what it said. How could I say anything else. No win situation for me. I wish you never went there that day.” 6 Mr Smith was asked whether he had sent that message to Mr Singh and, if so, did it mean he was forced to provide his statement about the alleged incident. Mr Smith indicated in response he did send the text to Mr Singh but it did not mean he had been forced to provide his statement to the Plant Supervisor. He said, “It means that Kam should never have come there, otherwise I wouldn’t have had to make that statement. That’s what that means.”7 He also stated in re-examination he had sent the text to Mr Singh after he had asked him to help him get his job back. He said when he stated “I can’t help you” he meant there was nothing he could do because Mr Singh had already been dismissed and Mr Smith was on sick leave at the time.8

[45] Mr Frank Spina is the National Human Resources Manager at Fenner Dunlop and has been employed since June 2011. He states he was advised by the Production Supervisor on 6 February 2015 about the alleged safety incident reported by Mr Roberts. He said he was also provided with copies of the signed statements from the Machine Operators and the Production Supervisor, who also said Mr Singh had gone back into the weaving area on the following day after being instructed to keep out of the area.

[46] Mr Spina said he told the Production Supervisor he would like to interview the employees involved and met with Mr Santospirito and Mr Hoskin to advise them of his initial view that the incident could be a serious breach of the Fenner Dunlop’s risk protocols and safety standards, and further investigation was accordingly required.

[47] He said he then interviewed the employees involved again, and also reviewed Mr Singh’s training records. He also checked his height as he believed this was relevant to the issue of whether Mr Singh had breached the safety area deliberately or accidentally. He then scheduled a further meeting on 9 February with Mr Singh, who attended with a support person. He put the allegations to Mr Singh that he had intentionally placed his hand close to the rotating drum, and indicated if this was true Fenner Dunlop may proceed with disciplinary action up to and including possible termination of employment. He then asked Mr Singh to respond.

[48] He said Mr Singh reiterated that he walked into the weaving area, after a meeting with his return to work coordinator, to speak to Mr Smith. He spoke with him for approximately 5 minutes and then left the area. He said he could not recall placing his hand near the spinning drum, but the two Machine Operators may have been confused because he often gestures with his hands and arms when he speaks. Mr Singh said he could not recall anyone telling him to stop what he was doing. He also said Mr Roberts did not speak to him during the time he was in the room. He also said “Why would I do such a thing”, 9 given the previous work related injury he had sustained. He could not explain why the two Machine Operators had a different version of events, and had reported the incident, when they were standing within one to two metres away from the incident when it allegedly occurred. Mr Spina said the meeting then adjourned and he and Mr Santospirito subsequently decided, given the potential seriousness of the incident and Mr Singh’s failure to follow the instruction to not re-enter the weaving area, that he should be stood down on full pay while further investigations were completed.

[49] Mr Spina said it was then decided, in conjunction with the Plant Manager and the Plant Supervisor, to again examine the machine and to endeavour to re-enact the incident to attempt to validate the statements made by Mr Singh and the other witnesses. He said this examination concluded it was not possible for someone of Mr Singh’s height to get their hand as close to the drum, without activating the laser safety mechanism, unless there was a deliberate intent to do so.

[50] Mr Spina was also asked in cross-examination about whether the fact the laser safety mechanism did not activate could be explained by the fact Mr Singh had not placed his hand close to the machine, but was standing more than a metre away from it, as he claimed. Mr Spina said this explanation did not accord with the accuracy and consistency of the statements provided by the two Machine Operators. He also said the investigation had taken account of Mr Singh’s possible explanation, being that he waves his hands and arms around when he is speaking, but this did not provide an explanation of how his hand could have been close to the rotating drum without triggering the laser activation.

[51] Mr Spina also acknowledged in cross examination that there were no records of Mr Singh’s training on the warper machine, but there were training records kept in regard to the critical risk protocols that applied across the workplace.

[52] A further meeting was then held with Mr Singh on 16 February to discuss the outcome of the further investigation. Mr Spina said Mr Singh was told in that meeting Fenner Dunlop had concluded his actions were considered to constitute serious misconduct, and the final decision in response was likely to be termination of his employment. He said Mr Singh was asked whether there was anything further he wished to add before a final decision was made. He said Mr Singh advised he had been taking medication as part of his treatment for the previous workplace injury and this may have caused him to not be able to accurately recall what had occurred. Mr Spina said this response was taken into account and the meeting then adjourned. He said he and Mr Santospirito then undertook an evaluation of all of the available information. They also took into account Mr Singh’s length of service, experience and training. He said it was concluded, firstly, that no reason could be found to doubt the accuracy of the statements provided by Mr Roberts and Mr Smith and, secondly, there appeared to be no reason or rationale as to why they would be motivated to fabricate those statements.

[53] He said it was decided that Mr Singh’s actions were a breach of the safety rules and his actions had placed himself at risk of serious injury by potentially becoming entangled, entrapped or crushed by the machine. It had also been decided that he could no longer be trusted to act safely in the workplace, and that termination of his employment was justified. Mr Singh was subsequently informed of this decision in a further meeting that took place on that day, and a letter confirming his termination was mailed to him on the following day.

[54] Fenner Dunlop submits in conclusion that it had a valid reason for termination based on the consistent evidence of the two employees that witnessed the incident. It also submits this evidence conflicts with the evidence provided by Mr Singh in a number of aspects. In this context it refers to the length of the conversation, where Mr Singh was standing, and what was said to him in the weaving room at the time.

[55] It also submits Mr Singh was initially evasive and noncommittal when first interviewed, and had previously ignored an instruction not to return to the weaving area after the alleged incident occurred. It also submits a thorough process of investigation was gone through before the decision was made to terminate his employment, and the decision was only made after Fenner Dunlop had evaluated all available information.

[56] It also submits Mr Singh was provided with adequate notice of the reason for his termination and was provided with various opportunities to respond. He also attended these discussions with a support person. In addition, he had not previously been involved in disciplinary action during his employment with Fenner Dunlop, but the present matter involved a single instance of serious and wilful misconduct.

[57] It also submits Mr Singh has not been able to satisfy the burden of proof that requires him to establish Fenner Dunlop’s actions were harsh, unjust or unreasonable. It submits instead that the evidence demonstrates he has been provided with a “fair go all around” in terms of its response to what occurred, and his application should be dismissed.

Consideration

[58] As indicated, s.387 of the Act sets out the criteria the Commission must take into account when assessing whether Mr Singh’s dismissal was “harsh, unjust or unreasonable.” What falls within that description has also been considered in previous decisions of the Courts and this Tribunal, including in the High Court decision in Byrne v Australian Airlines Limited 10 when McHugh and Gummow JJ concluded:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 11

[59] I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.387 that I must take account of.

(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);

[60] The decision in Selvachandran v Peteron Plastics Pty Ltd 12 makes clear that the reason for dismissal should be “sound, defensible or well founded” and, conversely, should not be “capricious, fanciful, spiteful or prejudiced” if it is to be a valid reason for dismissal.13

[61] The nature of the evidence in this matter requires that two separate issues be considered in the context of this consideration. Firstly, was there a reason existing at all related to Mr Singh’s capacity or conduct that warranted action in response, including the possibility of dismissal? Secondly, if such evidence does exist, was the decision to dismiss Mr Singh a proportionate response?

[62] To deal first with the initial consideration. The evidence of the parties about what occurred in the Weaving Department on 4 February 2015 is starkly contrasting. The key aspects relied upon by each party have been summarised already and are not restated in detail now. However, Mr Singh submits, in summary, that he went into the Weaving Department to talk to Mr Smith because the two men had a shared interest in their progress in recovery from work related injuries each had previously sustained.

[63] Mr Singh’s evidence is that his discussion with Mr Smith lasted for approximately five minutes. During that time he remained, at all times, at least one metre away from the spinning drum of the warper machine, and for most of that time he actually had his back to the machine. In addition, he is adamant he did not, at any time, get close to the machine and did not deliberately place his hand close to the rotating drum in a way that deliberately avoided triggering the safety laser beam mechanism.

[64] As indicated, the evidence relied upon by Fenner Dunlop is very different. The two Machine Operators in the Weaving Department both deny any conversation took place with Mr Singh. Their evidence is that Mr Singh came into the area, walked straight up to the warper machine, and then deliberately placed his hand and arm under the safety laser guard to a point where his hand was within one or two centimetres from the rotating drum. Their evidence is also that rather than a five minute conversation taking place they both immediately yelled at Mr Singh to stop what he was doing, before they then asked him why he had done that, at which point Mr Singh immediately left the area. Both Machine Operators also state that, in any case, the combination of noise levels in the room and the fact ear protection is being worn, means conversation at any time is difficult, and any discussion can only be had by yelling at the other person.

[65] I have decided on balance that the evidence of the two Machine Operators is to be preferred. The following considerations, in particular, have led me to this conclusion. Firstly, the evidence of the two Machine Operators is corroborated, at least by the evidence of each other. Mr Singh’s evidence is uncorroborated. Secondly, there is no strong evidence of any reason or rationale as to why the two Machine Operators would seek to concoct or manufacture their version of events. Mr Singh did submit that evidence of text messages between him and Mr Smith suggested Mr Smith had been pressured by management to provide the statement he did. However, Mr Smith provided an explanation for the text message he sent to Mr Singh. He said at the time he was approached by Mr Singh for assistance the matter had progressed beyond his control and, in any case, Mr Singh was off work on sick leave at the time. Mr Smith also indicated he generally had a friendly relationship with Mr Singh and bore him no ill will. The evidence also indicates the noise levels in the area make it difficult for a casual five minute conversation to take place in the way Mr Singh said occurred.

[66] Mr Singh also submits he had only ever been trained in the operation of the warper machine for half a day and therefore could not be expected to have known about the operation of the machine, or its safety features. However, Fenner Dunlop submits in response any initial training to do with the operation of the machine focused on its safety features and, in any case, the generic training provided to employees emphasises the potential dangers associated with any machine operation, including issues to do with entanglement.

[67] There are also some apparent inconsistencies in Mr Singh’s evidence. When questioned about the alleged incident he initially denied going into the Weaving Department on the day in question. He also then denied being told not to go back into the area after the alleged incident occurred.

[68] I have also had regard to the submissions provided on behalf of Mr Singh which assert there was no reason for him to have acted in the way Fenner Dunlop alleges, particularly as he was still recovering from a previous injury sustained at work and, as a consequence, he would be only too well aware of the potential of being injured at work. It was also suggested the medication he was taking for his injury might have affected his judgement and/or behaviour, although no medical evidence was provided in support of this contention. It was also submitted that Mr Singh often gesticulates when speaking, and these actions could have been what the Machine Operators observed, rather than any deliberate act to place his hand close to the rotating drum. However, the subsequent re-enactments and other work done by Fenner Dunlop to establish what might have occurred indicate it would be almost impossible to unintentionally place one’s hand close to the rotating drum without activating the laser alarm.

[69] It is acknowledged that there is no obvious reason or evident explanation for why Mr Singh acted in the way Fenner Dunlop submits he did, and I have taken this into account in coming to a decision in this matter. Nevertheless, I am not satisfied this consideration alone can account for the weight of evidence relied upon by Fenner Dunlop.

[70] As indicated at an earlier point in this decision Mr Singh submits, in the alternative, that if he is found to have acted in the way Fenner Dunlop alleges his behaviour did not constitute serious misconduct, and his dismissal was therefore harsh because summary dismissal was a disproportionate response. He submits other options were available including counselling, retraining, or being provided with a warning.

[71] However, Fenner Dunlop submits Mr Singh’s actions were a serious breach of its safety protocols and requirements, and placed him at risk of serious injury by potentially becoming entangled, entrapped, or crushed by the machine. It concluded he could no longer be trusted to act safely in the workplace and the significance of his actions warranted summary dismissal. While acknowledging that the health and safety of its employees is the overriding consideration Fenner Dunlop also submits that if Mr Singh’s actions had caused the machine to be stopped, either through activation of the laser safety guard or for any other reason, the disruption to its production process would have resulted in an extended period of downtime and significant additional cost.

[72] Having come to the conclusions that I have about what occurred in the Weaving Department on 4 February, and the processes of investigation and review that followed, I am satisfied Mr Singh’s summary dismissal was not an inappropriate response. The potential implications of his actions have already been described, both in terms of serious injury, if not worse, and significant cost resulting from disruption to the production process. As a consequence Fenner Dunlop submits it can no longer be satisfied Mr Singh will, at all times, act in a safe manner in the workplace.

[73] The obligation to provide and maintain a safe and healthy workplace must be the paramount consideration in any workplace. It is also self-evident that the requisite safety protocols and requirements are made known and understood by employees from the outset through appropriate guidance, training, instruction and other mechanisms. It is also acknowledged that the appropriate response to some safety breaches can involve counselling, retraining, or the provision of a warning.

[74] However, it is also clear that simply providing a warning and, in effect, a second chance, cannot be the appropriate response in every case involving a safety breach, particularly if the importance of establishing and maintaining a safe and healthy workplace is to be emphasised and supported. In some cases the nature of the breach will warrant summary dismissal. I am satisfied that this is the case in the present matter, given the nature of the safety breach involved, and its potential consequences. I am also satisfied it has led to a situation in which Fenner Dunlop can no longer have confidence Mr Singh will act, at all times, in accordance with its safety requirements and protocols.

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

[75] This matter is not at issue in the proceedings. Mr Singh was notified of the reason for his dismissal after an extensive process of investigation and review. Fenner Dunlop’s decision was finally conveyed to him in a meeting on 15 February 2015, and confirmed in a letter provided to him on the following day.

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

[76] The processes of review and investigation that took place after the incident on 4 February was brought to the attention of management have been detailed at length in this decision and are not restated now. I am satisfied Mr Singh was given adequate opportunity on more than one occasion to respond to the allegations made about his conduct. Again, this is not a matter at issue in these proceedings.

(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;

[77] Mr Singh had a support person present at various times in the discussions about the incident that finally led to the decision to dismiss him. There is nothing to indicate that at any stage he was denied the opportunity of having a support person present in any of these discussions.

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

[78] This consideration is not relevant in the circumstances of this matter.

(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;

[79] I am satisfied that it is appropriate to deal with each of these considerations together. Nothing was put in the proceedings to suggest the size of the business or the absence of any dedicated human resource management expertise impacted on the procedures followed in Mr Singh’s dismissal. Fenner Dunlop is a relatively large organisation with dedicated human resource management expertise, and an extensive process was gone through involving various management representatives, including the National Human Resources Manager, before the decision was taken to dismiss Mr Singh.

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

[80] I am not satisfied that anything further requires to be considered in this context.

Conclusion

[81] Having considered each of the matters in s.387 that the Commission is required to take into account, and the authorities I have referred to, I am satisfied in all the circumstances that Mr Singh’s dismissal was not harsh, unjust or unreasonable. In coming to this decision I have had particular regard to the conclusions reached in respect of s.387(a). The application is dismissed.

COMMISSIONER

Appearances:

Mr P Mulligan of Taylor and Preston Lawyers appeared on behalf of Mr Singh.

Mr A Dalton from the Australian Industry Group appeared on behalf of Fenner Dunlop.

Hearing details:

2015.

Melbourne:

4 June.

Final written submissions:

The Applicant filed final submissions on 11 June 2015.

The Respondent filed final submissions on 17 June.

 1   Fair Work Act 2009 (Cth) at s.385

 2 Ibid at s.387

 3   Fair Work Regulations 2009 at 1.07

 4   Transcript at PN658

 5   Exhibit FD1 at para 16

 6   Transcript at PN809

 7   Ibid at PN817

 8   Ibid at PN820

 9   Exhibit FD4 at para 17

 10 (1995) 185 CLR 410

 11   Ibid at 465

 12 (1995) 62 IR 371

 13   Ibid at 373

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