Ken Wilcox v Komatsu Australia Pty Limited T/A Komatsu

[2016] FWC 5530

[2016] FWC 5530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ken Wilcox
v
Komatsu Australia Pty Limited T/A Komatsu
(U2016/6810)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 8 AUGUST 2016

Application for relief from unfair dismissal

[1] This is the edited text of an ex tempore Decision made in transcript during proceedings on 8 August 2016.

[2] The Applicant, Ken Wilcox has applied for an unfair dismissal remedy in relation to the termination of his employment by the Respondent, Komatsu Australia Pty Ltd.

[3] It is not in contention that the Applicant is a person protected from unfair dismissal, and I so find.

[4] Having had the opportunity to assess the evidence I make the following findings of fact:

[5] The Applicant has worked for Komatsu for two distinct and separate periods of engagement, having first started with the company in October 2005 and resigning from the company on 9 September 2010. He then resumed working for the company in 2011 until the date of his dismissal on 29 April 2016.

[6] Mr Wilcox was employed as a Service Technician at the Respondent’s Ingleburn branch.

[7] The Respondent places considerable focus on the obligation of all its employees to comply with Health, Safety and Environment standards. This is reinforced through structured training, position descriptions, signage within the workplace and through regular discussions at toolbox meetings.

[8] A key element of employees’ obligations in this area is to ensure the proper disposal of hazardous substances and to notify any hazardous spills. This is reflected in Komatsu’s Golden Rules philosophy. Golden Rule number seven specifically requires all employees to “properly dispose of hazardous substances and other waste”.

[9] Specific training in the Golden Rules, inductions and company policies require all employees to reasonably report and act on hazardous situations, including the proper disposal of hazardous substances. Mr Wilcox has received training in the relevant company policies.

[10] Mr Wilcox was dismissed for misconduct for a failure to dispose properly and to notify a hazardous spill in which a very large amount diesel was spilled onto the ground.

[11] I am satisfied that on 8 April 2016 Mr Wilcox was draining diesel from an excavator when he left the process unattended. In his own words:

‘… I had two drums and decided to go get another drum to fill up, but on the way in to get the other drum, I was distracted by another employee to assist him with work which I thought would take a few minutes but took a few hours.”

[12] It is clear that Mr Wilcox had been decanting diesel fuel from a 35 tonne excavator into a jerry can. He had left the area unattended and subsequently a large amount of diesel spilled onto the ground.

[13] The Yardsman, Paul Clancy, found the draining diesel and stopped the process. He told Mr Wilcox what had happened. However Mr Wilcox did not report the matter. Indeed the event went unreported for several days. It only came to light six days after the spill, on 12 April 2016 , when the rental coordinator asked Mr Clancy about the need to refuel the excavator.

[14] At the time Mr Carr, the Respondent’s health, safety and environment manager, arrived to conduct an investigation into the incident on 14 April 2016, the diesel had spread to an area of 6×8 m and a ground depth of approximately 200 mm. An extensive clean-up operation had to be conducted. Fortunately there had been no rain; otherwise the damage to the surrounding environment could have been serious.

[15] The total contaminated waste that had to be removed equated to 28.24 tons. The cost of the operation was nearly $18,000.

[16] Following an investigation Mr Wilcox was issued with a show cause letter on 18 April 2016. The letter included the following:

“I wish to draw your attention to your unacceptable behaviour and serious misconduct that occurred at the Ingleburn branch Friday, 8 April 2016. This unacceptable behaviour and misconduct is a direct result from you failing to pay attention when draining diesel from a PC 350-8 Excavator causing the 20 L fill container to overflow. This failure resulted in:

1. 435 L of diesel spilling onto the ground at the Ingleburn Branch.
2. A potential environmental incident which may result in legal ramifications.
3. Breach of the Golden Rules specifically Point 7 ‘Properly dispose of Hazardous Substances and other waste’.
4. Unduly bringing Komatsu’s brand into disrepute.
5. Damaged the landlord’s property causing significant clean-up costs to the business.

The investigation has determined the significant contributing factors to the event were as follows:

1. Failing to notify management of the spill soon as practicable and within a reasonable timeframe.
2. Failing to act on your peer’s notification of the spill on more than one occasion.
3. Failing to take reasonable steps to prevent a significant spill occurring.

This incident is further compounded by your previous final written warning dated 14 October 2015 and prior warnings dated 22 September 2015 and 15 August 2013, where you again failed to work in accordance with the Komatsu policies and procedures.

Your ongoing misconduct highlights your inability to work as part of the Komatsu Team therefore your behaviour does not provide Management with confidence in your ability to conduct your current role. Komatsu considers your actions and behaviour to be serious misconduct and totally unacceptable. It is a necessary requirement of your position to comply with all company policies and procedures including but not limited to the Health, Safety and Environment Policy and Komatsu’s Golden Rules as well as follow all reasonable requests and instructions given by your peers, leading hand, supervisor and/or manager. As a consequence of your recent unacceptable behaviour and on-going misconduct Komatsu has no option but to give you the opportunity to show cause as to why your employment contract should not be terminated.

You are required to provide a written response to this letter by 3pm Friday, 22 April 2016. Whilst you are responding to this letter and we are considering your response, you will be suspended from duty on full pay. It is important that you respond and explain the circumstances, which you wish Komatsu to take into consideration prior to making a decision about your ongoing employment. If you do not respond and explain your behaviour satisfactorily, Komatsu may proceed to terminate your employment using the current information.”

[17] Mr Wilcox provided the following response on 26 April 2016:

“I’ve been employed on and off for about 10 years and if you give me another opportunity to stay with Komatsu I’ll give up my second job to focus on my job hundred per cent. I enjoy my job very much at Ingleburn. We have a great team there - especially training apprentices. I try to be head mechanic at times. I need to step back and just do my job. I’m very sorry about the oil spill as I think about the environment a lot. Over the 10 year my ability to work as a team has always been there that’s what caused the spill people are always getting to help them.”

[18] The Applicant was advised on 26 April 2016 requesting him to attend a meeting either Thursday, 28 April 2016 or Friday, 29 April 2016. The Applicant was told in advance that the purpose of the meeting was to discuss the outcome of the investigation and his response and to make a decision regarding the incident. The Applicant was told that he was entitled and encouraged to bring a support person.

[19] The Applicant met with the regional service manager of the Respondent, Andy Wiggan, on 29 April 2016. The Applicant refused the offer of a support person. The Applicant was given the opportunity to elaborate further on his response and the matters raised in the show cause letter. The Applicant did not offer up any additional material or comment.

[20] After considering the Applicant’s response to the show cause letter, and his previous performance related warnings which the Respondent considered related to a similar pattern of conduct namely neglect of duty, Mr Wiggan decided to terminate the Applicant’s employment effective 29 April 2016.

[21] At the request of the Applicant a review was conducted by the Respondent of the termination decision, however the review confirmed the original decision.

[22] Section 387 of the Fair Work Act sets out the criteria I must have regard to in determining whether a dismissal is harsh unjust or unreasonable. I will deal with each of these criteria in turn.

[23] I am satisfied that the Respondent had a valid reason for dismissing Mr Wilcox, in particular allowing a serious spill to occur of hazardous material, and then failing to report it in accordance with company procedures.

[24] I am satisfied that Mr Wilcox was notified of the reasons the employer was considering terminating his employment, in particular by means of the show cause letter.

[25] I am satisfied that Mr Wilcox was given an opportunity to respond to these reasons, both in writing and at the subsequent meeting.

[26] The company did not refuse to allow Mr Wilcox to have a support person present to assist him at the meeting held in relation to his dismissal.

[27] The employer is a large one and can be expected to adopt rigorous procedures in relation to dismissing its employees. I am satisfied that it did so.

[28] I have considered whether there are any other matters that are relevant.

[29] The Applicant gave evidence that he is 58 years old and the primary income support person for himself, his wife, his daughter and two grandchildren. He also showed a level of remorse for his conduct in his response to the show cause letter.

[30] However I must weigh the seriousness of the Applicant’s misconduct against the undoubtedly deleterious consequences for him and his family arising from his dismissal.

[31] I have also taken into account that the Applicant had received three previous written warnings for poor performance, including a Final Written Warning in October 2015. All of these warnings essentially relate to negligence on the part of the Applicant in performing his duties.

[32] In all the circumstances I do not consider that the decision to dismiss Mr Wilcox was harsh.

[33] In conclusion I find that Mr Wilcox’s dismissal was not harsh unjust or unreasonable. His application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr N Wilcox appeared for the Applicant

Mr A Powter, of the Australian Industry Group, instructed by Ms S Kanti-Paul of Komatsu Australia Pty Limited, appeared for the Respondent

Hearing details:

2016

Sydney

August 8

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