Kevin Heffernan v Tabro Meat Pty Ltd

[2010] FWA 8192

[2010] FWA 8192

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Heffernan
v
Tabro Meat Pty Ltd
(U2010/9843)

COMMISSIONER BISSETT MELBOURNE, 28 OCTOBER 2010

Application for unfair dismissal remedy.

[1] This decision concerns an application by Mr Kevin Heffernan (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Tabro Meat Pty Ltd (Tabro) (the Respondent) was harsh, unjust or unreasonable.

[2] The application was subject to conciliation where it was not settled. It was subsequently referred for arbitration.

[3] The Applicant was represented by Mr Buckley and the Respondent by Mr McKenna

Background

[4] Mr Heffernan commenced employment with Tabro on 18 December 1998.

[5] On 10 June 2010 he was summarily dismissed for serious and wilful misconduct.

[6] On 10 June Mr Heffernan was operating a forklift placing pallets of frozen meat into the freezer. In doing so he noticed two pallets, stacked on top of each other, slightly blocking the entrance to the freezer. He used the forklift to shift the pallets a very short distance. Mr Heffernan is aware that he should move the pallets one at a time. In this instance he breached this requirement.

[7] Whilst he was moving the two pallets Mr Brorsen, the owner of Tabro, came into the area and saw him. There was an exchange between the two men (the content of that exchange is in dispute). It is not disputed that at some stage, during the exchange, Mr Heffernan called Mr Brorsen a ‘fucking idiot’.

[8] Mr Brorsen then asked Mr Heffernan to accompany him to the office where they met with Mr Victorsen, the assistant general manager.

[9] Upon hearing from Mr Heffernan and Mr Brorsen, Mr Victorsen terminated Mr Heffernan’s employment.

[10] The disputed issues go to the extent to which the matter related to occupational health and safety; the exact nature of the exchange between Mr Brorsen and Mr Heffernan; and what was said in Mr Victorsen’s office.

The disputed matters

[11] Mr Brorsen says that, on coming across Mr Heffernan shifting two pallets stacked on top of each other he said ‘how many times do I have to tell you people that you must not carry more than one pallet at a time?’ to which Mr Heffernan replied ‘you are a fucking idiot’. 1

[12] Mr Brorsen says he was appalled and asked the Applicant to come to Mr Victorsen’s office. On the way to the office - a distance of some 40-50 metres - Mr Brorsen said to Mr Heffernan that the forklift was only meant to lift 1.5 tonne and two pallets weighed more than this. He also raised the issue of the bone-carting truck with Mr Heffernan referring to an issue some weeks earlier. 2 Mr Brorsen admitted that on the walk to the office he said to Mr Heffernan ‘you’ll fuck my forklift like you fucked my truck’.3

[13] Upon arrival at Mr Victorsen’s office, Mr Brorsen’s evidence is that he said:

“Kevin is leaving.” Brian [Victorsen] said, “Why?” I said, “Because he called me a fucking idiot because I pulled him up on lifting two pallets.” Brian then asked [Mr Heffernan], “Did you say that?” And he said, “Yep.” Then Brian asked, “Why did you say that?” “Because he is a fucking idiot.” 4

[14] In this respect, Mr Victorsen’s version of what was said at the meeting in his office generally accords with that of Mr Brorsen. Mr Victorsen took notes shortly after the meeting. 5

[15] Mr Victorsen took the decision to terminate Mr Heffernan’s employment in part because of Mr Heffernan’s ‘aggressive and confrontational rejection of Mr Brorsen’s approach.’ 6

[16] Mr Heffernan agrees that he shifted two pallets stacked on top of each other even though he knew he should not do it. 7 He was aware Mr Brorsen might ‘chew you out’ if you did something wrong.8

[17] Mr Heffernan’s version of events is that Mr Brorsen did say he should not be moving two pallets at once, to which he replied ‘Okay no problems’. 9 He says Mr Brorsen then said ‘or you’ll fuck my forklift like you’ve already fucked my truck’ to which Mr Heffernan replied ‘I didn’t fuck your truck you fucking idiot’.10

[18] Mr Brorsen told Mr Heffernan to come with him to Mr Victorsen’s office. During the walk to the office Mr Brorsen continued to swear at him, abuse him and accuse him of damaging the truck. 11 Once there Mr Heffernan says that Mr Brorsen told Mr Victorsen that he wanted Mr Heffernan sacked because he had called Mr Brorsen a fucking idiot. Mr Heffernan admitted to Mr Victorsen that he had done that but also complained of double standards at the plant.12 Mr Victorsen agreed that Mr Heffernan may have said something about two sets of rules13 although he did not include this in the notes he took of the meeting.

[19] Mr Heffernan’s employment was then terminated.

[20] The lack of any witnesses to what occurred at the time Mr Brorsen approached Mr Heffernan makes the determination of the matters in dispute difficult. The natural tendency in cases such as this of each party to marshal the facts in the most advantageous way to their own cause adds to this difficulty.

[21] The presence of a third party provides some certainty to what occurred at least in Mr Victorsen’s office.

[22] The evidence of Mr Heffernan and Mr Brorsen does not align with respect to the events leading up to arriving in Mr Victorsen’s office. In such circumstances I prefer the evidence of Mr Heffernan. He was at all times straight forward and consistent in his testimony. He admitted things that he did wrong without hesitation and did not try to temper those things he was responsible for or that he had done wrong. Mr Brorsen had an excellent recollection of those matters that supported his view that Mr Heffernan should have his employment terminated but on matters or events that would appear to add weight to or support Mr Heffernan’s evidence he was vague and non-committal (including matters relating to the bone-carting truck and Mr Heffernan’s employment history).

[23] I therefore find that Mr Brorsen said to Mr Heffernan ‘how many times do I have to tell you people not to carry more than one pallet at a time’ and that in reply Mr Heffernan said ‘Okay, no problems.’ Mr Brorsen then said ‘or you’ll fuck my forklift like you’ve already fucked my truck’ to which Mr Heffernan replied ‘I didn’t fuck your truck you fucking idiot’.

[24] Mr Brorsen admits that he made the comment ‘you’ll fuck my forklift like you’ve fucked my truck’ 14 although says he made this statement while walking to Mr Victorsen’s office. Mr Brorsen says that the incident with the bone-carting truck was two or four or six weeks earlier15 and had nothing to do with the termination of employment.16 If this is the case it is unclear why he raised it. It could have no effect but to inflame the situation and perhaps explains some of what happened in Mr Victorsen’s office.

[25] Once in Mr Victorsen’s office I find that Mr Heffernan agreed he called Mr Brorsen a fucking idiot and, when asked why, said ‘because he is a fucking idiot’.

[26] I find that Mr Heffernan was not aggressive in attitude in his initial response to Mr Brorsen. I do accept that this attitude, as it was, developed as Mr Brorsen raised issues about the truck on the walk to the office. Mr Victorsen cannot know, except by what he was told, of Mr Heffernan’s stance at the time Mr Brorsen first approached Mr Heffernan. Mr Victorsen was not at the forklift and only saw Mr Heffernan after the incident at the forklift and after the walk to his office.

[27] The incident with the truck refers to a bone-carting truck which is used to take bones from a conveyer belt to the back of the site. 17 When the truck is taking the bones to the back a bin is placed under the conveyor18 minimising the time the conveyor is required to stop. Some weeks prior to the date of the termination of his employment, Mr Heffernan moved the bin under the conveyor belt by pushing it with the front of the truck.19 Whilst this would normally have been done with a forklift there was, on Mr Heffernan’s evidence, no forklift available at the time.20 Mr Heffernan says that this incident was not raised with him by Mr Brorsen until Mr Heffernan raised safety issues associated with the brakes on the truck with Mr Brorsen.21 Mr Brorsen denies that Mr Heffernan ever raised issues related to the truck with him.22

[28] Mr Brorsen agreed that the bone-carting truck was not roadworthy but insisted that was not an issue because it never went on the road. 23 The road worthiness issues of concern to the OH&S representative (who put a provisional improvement notice on the truck) and Mr Heffernan went to cracked windscreen, broken windscreen wiper, lack of lights including reversing lights, no reversing ‘beep’ etc24. It is inexplicable as to why Mr Brorsen was suddenly aggressive about what Mr Heffernan was alleged to have done to the truck some weeks earlier if it was in such poor repair, was not road worthy and ‘never went on the road’. In any event there is no evidence before me as to damage to the truck or indeed that Mr Heffernan ‘fucked the truck’.

[29] The workplace in question is a meat works. On all accounts the language used in the workplace is robust. Mr Brorsen agreed that it was common for people to swear at work 25 and it was acknowledged that Brorsen himself uses colourful language at work.26

[30] It is agreed that Mr Brorsen is a ‘hands on’ manager/owner of the business who is around the premises every day. 27

[31] There is no dispute that Mr Heffernan did lift two pallets in contravention of what was acceptable practice. He admits this although says he only shifted the pallets a couple of feet. I accept that forklift drivers had been told not to lift more than one pallet at a time. The forklifts were not rated to lift the weight of two pallets. Aside from the safety issues (in particular the potential instability of the load and the loss of visibility if two pallets are lifted) the potential damage to the machinery would be enough for Mr Brorsen to want to ensure the forklifts were not abused in such a way.

Was Mr Heffernan unfairly dismissed

[32] In determining if Mr Heffernan was unfairly dismissed it is necessary to determine if the dismissal was harsh, unjust or unreasonable. In making such a determination it is necessary that I consider each of the matters in s.387 of the Act.

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) (s.387(a))

[33] Mr Heffernan’s employment was terminated, according to Mr Victorsen, because of his abusive response to the business owner when first spoken to; his reiteration of that abuse in Mr Victorsen’s office and a breach of health and safety standards by loading two pallets at the same time on the forklift. 28

[34] It is agreed that this is a workplace where colourful language is used - including by Mr Brorsen. I do not find that there was an aggressive approach to the language used in the first instance by Mr Heffernan. As I have found this may have changed by the time the parties reached Mr Victorsen’s office given the exchange that occurred on route. It should be noted that there is no suggestion that Mr Heffernan was physically aggressive - the reference to aggression is to the style of his language. 29

[35] On the basis of my findings above I do not consider that the language used by Mr Heffernan nor his reiteration of this constituted a valid reason for his dismissal. I find that the language used was not out of place in the context of the workplace 30 and Mr Brorsen contributed to the exchange with Mr Heffernan by raising the issue of the bone-carting truck that on Mr Brorsen’s own evidence had nothing to do with the issue at hand. Further, there is no evidence of a repetition of the language except in direct response to questioning by Mr Victorsen. The repetition of the language must be seen in the context of being directly asked what he, Mr Heffernan, had said and the exchange between Mr Heffernan and Mr Brorsen prior to reaching Mr Victorsen’s office.

[36] This is of course not to excuse the language used. Mr Heffernan’s employment history would not excuse some disciplinary response.

[37] However, Mr Heffernan did drive a forklift in an unsafe manner. In particular he loaded two pallets onto the forklift to shift them out of the way in circumstances where the forklift was not rated to carry such a load and two pallets would adversely affect visibility of the driver. I have considered that driving of the forklift in this manner could have posed a danger to the health and safety of others.

[38] Safety in the workplace cannot be compromised and Mr Heffernan deserves the strongest rebuke for his actions. Speed of task should never be at the expense of health and safety. There is no evidence that Mr Heffernan was being pressured to get his work done more quickly or in a manner that encouraged him to breach health and safety requirements. The use of the forklifts clearly was an issue in the workplace. Mr Brorsen gave evidence that he had ‘had a go at others’ 31 and spoken to other forklift drivers about the issue.32 Mr Heffernan knew on his own admission that he was wrong in moving two pallets at once.33

[39] Mr Heffernan was a workplace health and safety representative. He had concerns with respect to the bone-carting truck and the standard it was in. He raised these with management. He clearly was cognisant of health and safety issues in the workplace. He knew that lifting two pallets was wrong, yet he chose to do it anyway. There was no excuse for his actions.

[40] In all of the circumstances I find that there was a valid reason for the termination of Mr Heffernan’s employment relating to his conduct in that is that he drove forklift in a manner that he knew to be unsafe and that was a potential risk to other employees.

Whether the person was notified of that reason (s.387(b))

[41] Mr Heffernan was told that his behaviour was unacceptable. 34 Mr Victorsen says he was terminated in part because of his aggressive and confrontational rejection of the approach of Mr Brorsen.35

[42] The evidence suggests that the issue on which Mr Victorsen based his decision went to whether or not Mr Heffernan called Mr Brorsen a fucking idiot and the tone of this exchange. This was put to Mr Heffernan when Mr Victorsen told him that abusive language towards the managing director/owner was unacceptable and would not be tolerated. 36

[43] I find, on the basis of the material before me, that the manner in which he drove the forklift and the related health and safety issues was not put to Mr Heffernan as a reason for the termination of his employment.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s.387(c))

[44] Mr Heffernan was given an opportunity to explain why he had called Mr Brorsen a fucking idiot.

[45] He was not told that his use of the forklift was a reason for his termination and hence was not given an opportunity to respond on that matter when he was interviewed by Mr Victorsen. The use of the forklift was put by the Respondent in the hearing as a valid reason for the termination. Mr Heffernan was asked during his evidence if it was embarrassing being caught doing something unsafe to which he replied ‘Yes I accept responsibility that I shouldn’t have done it.’ 37

[46] Mr Heffernan was not asked at any stage whether he had ignored a safety instruction. 38

[47] I find that Mr Victorsen did not make any effort to further investigate the events surrounding or leading up to the arrival of Mr Brorsen and Mr Heffernan in his office. Mr Victorsen made his decision to terminate Mr Heffernan’s employment ‘in a few minutes.’ 39 When Mr Heffernan tried to explain about the bone-carting truck Mr Victorsen cut him off because he did not consider it relevant.40 From the evidence of Mr Brorsen and Mr Heffernan, clearly it was relevant. As such, I find Mr Victorsen did not give Mr Heffernan an opportunity to respond. The bone-carting truck is an integral part of the events surrounding the incident with the forklift and the language.

[48] I find that Mr Heffernan was not given an opportunity to respond to a number of matters associated with the reasons put for the termination of his employment.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s.387(d))

[49] I accept that Mr Heffernan was aware he could have had a support person present. He was, or had been, the union delegate on the site. He was aware of his rights in this respect. He did not seek to exercise that right. The employer did not unreasonably refuse to allow him to have a person present.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f))

[50] I do not find that the size of the employer’s enterprise would impact on the procedures to be followed. Tabro have approximately 170 employees. 41

[51] On the evidence of Mr Victorsen the company had terminated the employment of other employees and it was a task for which he and others in the company had authority. 42 I do not find the size of the employer’s enterprise would be likely to impact the procedures followed in terminating Mr Heffernan’s employment.

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 (s.387(g))

[52] Whilst Tabro does not have a dedicated human resource management person Mr Victorsen’s responsibilities included the ‘office function, which includes shipping, purchasing, payroll, HR, those sort of things.’ 43 Mr Victorsen has responded in the past to requests by Mr Brorsen that he ‘look into someone’s employment’ and discuss this with Mr Brorsen.44

[53] I do not consider that the absence of dedicated human resources management has impacted on the procedures followed in the termination of Mr Heffernan’s employment.

Any other matters that FWA considers relevant (s.387(h))

[54] Mr Heffernan has worked for Tabro for over 11 years. He has, by all accounts, been a dedicated employee who has demonstrated a willingness to take on a range of jobs and, when the company could not find a cleaner, took on that role in addition to his regular job at the plant - working a double shift for a period of about 12 months. There is no evidence of past incidents or disciplinary action against him.

[55] Such loyalty and good record should not be ignored without good cause.

[56] Mr Heffernan showed contrition in relation to driving the forklift in appropriately when it was put to him during cross examination. 45 He understood and accepted he was wrong. I consider that if this matter had been put to him in his interview with Mr Victorsen then contrition would have been displayed at that time.

Harsh, unjust or unreasonable?

[57] In Byrne and Frew v Australian Airlines Pty Ltd 46 McHugh and Gummow JJ observed:

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.

[58] In this case the termination is not unjust - there is a valid reason for the termination of Mr Heffernan’s employment.

[59] However, the actions of the Respondent in not allowing Mr Heffernan to provide his version of events, in particular with respect to the bone-carting truck, and the reliance of Mr Victorsen on what Mr Brorsen told him had occurred at the fork-lift as a reason for the termination lead me to find that the decision to terminate Mr Heffernan’s employment was unreasonable. A proper consideration of all of the relevant circumstances and information may well have resulted in a different outcome.

[60] The Respondent suggested that the conduct engaged in by the Applicant was enough to warrant instant dismissal. I reject this submission. This is a workplace where robust language is common. The language used was perhaps intemperate in response to the employer but the employer cannot use such language with employees and be surprised when they use it back. Further, on the Respondent’s own submission there was no imminent risk to health and safety of the Applicant’s actions.  47

[61] The initial response of Mr Heffernan to Mr Brorsen was ‘OK’. It was only after the bone-carting truck was brought up did the language descend to an unfortunate level. Mr Brorsen contributed to this. I do not consider that when Mr Heffernan called Mr Brorsen a ‘fucking idiot’, he was responding to a direction with respect to health and safety.

[62] The health and safety issues associated with the fork-lift were known at the time Mr Heffernan’s employment was terminated. It was not considered at that time to justify termination of employment. In my view to rely on it now would result in an unreasonable outcome. Mr Heffernan’s evidence is that he shifted the pallets a couple of feet. Mr Brorsen gave no evidence of the specifics. It warranted a severe reprimand.

[63] I therefore find that the termination of Mr Heffernan’s employment was unreasonable.

[64] There was no evidence from Mr Brorsen on exactly what it is he observed when he saw Mr Heffernan lifting two pallets on the forklift. Mr Heffernan’s evidence is that he ‘moved [the pallets] out of the way a couple of feet.’ 48 There is no evidence (and no submission) that the actions of Mr Heffernan created a dangerous or unsafe situation.

[65] The decision to terminate Mr Heffernan’s employment is, in all of the circumstances, disproportionate to the conduct complained of. Mr Heffernan has recognised he did the wrong thing in how he used the forklift and has not tried to hide his actions.

[66] In all of the circumstances I consider the termination of Mr Heffernan’s employment both unreasonable and harsh.

Remedy

[67] Mr Heffernan seeks reinstatement.

[68] The relevant provisions of the Act are:

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

[69] The Respondent submits that reinstatement is not appropriate in these circumstances. Mr Brorsen has indicated that he would be unable to work with Mr Heffernan. In the Respondent’s submission Mr Brorsen is a ‘hands-on, on the ground general manager, and the two of them would be in frequent contact with each other.’ 49 Mr Brorsen’s evidence was that he, Mr Brorsen would ‘have to go’ if Mr Heffernan was reinstated.

[70] The presumption in the legislation is that, should an application be made, reinstatement is the preferred remedy. Compensation is such cases will only be considered where Fair Work Australia is satisfied that reinstatement is not appropriate (s.390(3)(a)).

[71] Whilst Mr Heffernan has applied for reinstatement I do not, in the circumstances of this case, consider that an appropriate remedy. In this case the owner - and the person with whom Mr Heffernan had the exchange - is on the shop floor most of the time. It is inevitable that they will come across each other. This is not a satisfactory situation and I would be concerned, should I order reinstatement, it may lead to further issues between the two people in question.

[72] Having determined that reinstatement is not appropriate I must consider what compensation if any should be payable.

[73] I do not consider that I have enough information from the Applicant or Respondent to determine this matter.

[74] I shall therefore issue directions for further written submissions from the parties with respect to compensation that address those matters in s.392 of the Act. I would also draw the attention of the parties to the decision in Sprigg v Paul’s Licensed Festival Supermarket. 50

[75] Directions as to the filing of such submissions will be issued separately.

COMMISSIONER

Appearances:

C. Buckley for the Applicant.

J. McKenna for the Respondent.

Hearing details:

2010.

Morwell:

21 September.

 1   Exhibit R1 paragraph 4.

 2   Transcript PN341-343.

 3   PN452.

 4   PN353

 5   PN619-21, Exhibit R3.

 6   Exhibit R2 paragraph 4.

 7   Transcript PN137.

 8   PN148.

 9   Exhibit A1 paragraph 6.

 10   Exhibit A1 paragraphs 6-9.

 11   Exhibit A1 paragraph 11.

 12   Exhibit A1 paragraph 13.

 13   Transcript PN660.

 14   PN452, PN167.

 15   PN460.

 16   PN487.

 17   PN201.

 18   PN204.

 19   PN210.

 20   PN216.

 21   PN212.

 22   PN494.

 23   PN495-6.

 24   PN785-798

 25   PN584.

 26   PN671.

 27   Exhibit R1 para 2, Transcript PN222, PN518, PN926.

 28   Exhibit R4 paragraph 2.

 29  Transcript PN 758.

 30   See Dalziel v Bilfinger Berger Services (Australia) Pty Limited[2010] FWA 1129, (16 February 2010).

 31   Transcript PN315.

 32   PN322.

 33   PN137.

 34   PN192.

 35   PN672-3.

 36   Exhibit R3.

 37   Transcript PN142.

 38   PN768. See Exhibit R3.

 39   Transcript PN691.

 40   PN682-90, Exhibit R3.

 41   Transcript PN582.

 42   PN698.

 43   PN610.

 44   PN702.

 45   PN142.

 46 (1995) 185 CLR 140

 47   Transcript PN897.

 48   Exhibit A1 paragraph 5.

 49   Transcript PN926.

 50   AIRC Print R0235 (24 December 1998).

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