Metro Quarry Group Pty Ltd v Ingham

[2016] FWCFB 47

[2016] FWCFB 47

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Metro Quarry Group Pty Ltd
v
John Ingham
(C2015/6831)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 4 FEBRUARY 2016
COMMISSIONER JOHNS

Appeal against decision [2015] FWC 6472 of Commissioner Bissett at Melbourne on 29

September 2015 in matter number U2015/7306 – Permission to appeal – Whether termination

harsh and unjust – Consideration of criteria for considering harshness etc – Whether

appealable error – Significant mistake of fact – Fair Work Act 2009, ss. 387, 394, 400 and

604.

Introduction

[1]        This decision concerns an application for permission to appeal and an appeal against a

decision of Commissioner Bissett handed down on 29 September 2015.The decision of the

Commissioner concerned an unfair dismissal application made by John Ingham on 1 May

2015 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his

employment by Metro Quarry Group Pty Ltd (Metro Quarry).

[2]        The Commissioner found that Metro Quarry had a valid reason for terminating Mr

Ingham’s employment and that while Mr Ingham had a dismissive attitude to attempts by

Metro Quarry’s management to implement improved health and safety standards, the

termination of his employment was nevertheless harsh and unjust.

[3]        The Commissioner found that reinstatement was not an appropriate remedy in the

circumstances and ordered that compensation amounting to $11,507.16 be paid to Mr Ingham.

[4]        Permission to appeal was granted on transcript at the conclusion of the hearing before

the Full Bench held on 28 October 2015. Directions were subsequently issued for the filing of

written submissions in relation to the appeal on the basis that the matter was to be determined

on the papers. Mr Ingham did not file submissions in accordance with the directions issued.

Metro Quarry requested that the appeal be listed for an oral hearing to determine the matter as

it was not clear whether Mr Ingham had provided adequate consent to the determination of the

appeal without an oral hearing. The appeal matter was listed for hearing on 16 December

2015.
[2016] FWCFB 47

[5]        At the hearing of both the permission to appeal application and the appeal Mr A.

Aleksov, of counsel, appeared on behalf of Metro Quarry. There was no appearance on behalf

of Mr Ingham at either hearing before the Full Bench.

Background

[6]        Metro Quarry operates a sand mining operation at Nyora in the South Gippsland

region of Victoria and a related sand distribution business at Devon Meadows on the south

eastern outskirts of Melbourne. Approximately 70 employees are employed across the two

sites. Metro Quarry acquired the operations from a previous owner, TGS, in 2013. According

to Metro Quarry the previous owner had a “lackadaisical” safety culture with many

compliance issues. In 2010 a well-liked and long serving employee was killed while operating

an excavator when it was engulfed in a land slip when working beneath an unstable slope. The

previous owner directed employees to continue work the next day before the body of their

workmate was recovered. This incident resulted in legal sanctions against the owners of the

business and its managers.

[7]        After the acquisition of the TGS business, Metro Quarry put in place a new

management and created an in-house safety manager role to embed best practices of safety in

the business. It established new policies regarding personal protective equipment and zero

tolerance for drugs and alcohol. However it considered that the lackadaisical and casual

attitude to work safety among the workforce prevailed and there was significant resistance to

change from some individuals.

[8]        In January 2015 Metro Quarry appointed an external safety advisor to assist in

developing a safety culture at the worksites. A heavy focus was placed on behavioural issues

and attitudes towards safety that are known to contribute to safety incidents. The Board

directed the Chief Financial Officer to take a more active oversight in safety given his

background in roles with a heavy emphasis on safety and change management. Significant

effort was put into the development of new procedures with an emphasis on safety.

Employees were retrained on key safety competencies and Metro Quarry engaged in constant

dialogue with its workforce about the imperative to improve its safety culture. It also

deliberately hardened its position toward continued breaches of any safety policy or of

expected safe behaviours.

[9]        Mr Ingham was employed by a predecessor of Metro Quarry in 2005. His employment

was terminated on 14 April 2015. At the time of the termination of his employment, Mr

Ingham was employed as a maintenance worker.

[10]      Metro Quarry led evidence before the Commissioner that it considered that Mr Ingham

had demonstrated that he was not prepared to adjust to the new safety-first culture through

five incidents that were either a deliberate or reckless breach of safety requirements. These

incidents were:

“ The bagging machine incident in July 2014, which led to Mr Ingham receiving a first

and final warning. MQG relied on documentary evidence in the form of a letter sent

to Mr Ingham dated 4 August 2014 (AB 189), the file notes of a disciplinary meeting

between management and Mr Ingham (AB 180) and the incident report prepared by

Mr Chris Vawdry (AB 188). This evidence was to the effect that Mr Ingham had

opened the power box on a sand bagging machine, re-wired the machine without
[2016] FWCFB 47

detaching the main power supply (such that the machine had live electricity at 240V

running through it at the time), and failed to “tag out” the machine as being out for

repair and call in appropriately qualified personnel to repair the machine in a safe

manner.

 Not wearing a fall-restraint (harness) whilst working at a height of four metres, and

refusing to redress this safety violation after being directed to do so. This forced a

complete work stand-still in the work area until Mr Ingham remedied the safety

violation.

 Failing to wear safety glasses (PPE) as directed.

 Impertinently wiggling his fingers and stating to MQG officers that because he still

has all his fingers, he knows how to be safe and knew all about safety.

 Presenting for work impaired by alcohol, contrary to the zero tolerance alcohol

policy. Mr Ingham presented for work at 6.00am and undertook a BAC test at

6.40am, which returned a reading of 0.013. He then undertook a second test at

7.10am which returned a reading of 0.006.”

[11]      Mr Ingham was notified of the company’s concerns regarding his conduct and given

an opportunity to respond to the allegations of misconduct involved. Metro Quarry decided to

terminate his employment because of a loss of trust in Mr Ingham’s ability to maintain

appropriate safety standards on site. Nigel McKinnon, Chief Financial Officer, who made the

decision to dismiss said that in making his decision he considered:

“ Mr Ingham [had] breached [the] drug and alcohol policy;

 The company had been trying for 18 months to get Mr Ingham on board with [its]

vision for safety;

 [his] previous safety interactions with Mr Ingham…;

 Advice by managers that they had had unfavourable safety interactions with Mr

Ingham;

 As a qualified tradesman, [Mr Ingham] was a poor role model for [the company’s]

other employees and in particular [the company’s] young apprentices on site;

 It would be a breach of [his] duty of care to Mr Ingham and other employees to

allow Mr Ingham to continue to work at [the] site. [As].. it was just a matter of time

before Mr Ingham hurts himself or someone else;

 Mr Ingham [was] apathetic and prideful, both of which [could] be fatal in an

inherently dangerous work environment;

 The resources to actively supervise Mr Ingham at all times during the work day to

make sure that he did the work he was hired to do safely and in accordance with

[MQG’s] policies. [Mr McKinnon] fundamentally did not trust Mr Ingham to

comply with [MQG’s] safety rules when unsupervised; and

[2016] FWCFB 47

 Most critically, Mr Ingham displayed a clear tendency for resisting change because

he thought his way was best.”

The Decision under Appeal

[12]      The Commissioner considered the criteria for considering fairness in s.387 of the Act

and made the following findings in relation to these factors:

“(a) whether there was a valid reason for the dismissal

[74] Mr Ingham’s employment was terminated for breaching MQG’s Drug and

Alcohol Policy in conjunction with a first and final warning.

[75] I am satisfied that this provides a valid reason for the dismissal of Mr Ingham.

(b) whether the person was notified of that reason

[76] I am satisfied that Mr Ingham was notified of the reason for his dismissal in

respect of the breach of policy prior to the decision being made to terminate his

employment.

[77] I am not satisfied that he was advised of the multitude of reasons relied on by Mr

McKinnon as the reasons for his dismissal prior to the decision being made to

terminate his employment. There is no evidence before me that those matters set out in

paragraph (sic) were directly raised with Mr Ingham prior to his dismissal.

(c) whether the person was given an opportunity to respond

[78] I am satisfied that Mr Ingham was given an opportunity to respond to the reason

for his dismissal in relation to the breach of policy on Monday 13 April 2014 when he

attended a meeting with Mr McManus and Mr Griffin.

(d) unreasonable refusal to allow a support person

[79] I am satisfied that Mr Ingham was invited to have a support person with him in

the meetings of 13 and 14 April 2015. Mr Ingham does not say he sought to have a

support person and this was denied to him.

(e) unsatisfactory performance

[80] The dismissal of Mr Ingham did not relate to performance. I do not need to

consider this issue.

(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

[81] No evidence was given that the size of the enterprise impacted on the procedures

followed in effecting the dismissal.

[2016] FWCFB 47

(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

[82] I note that MQG has access to human resource staff. This was not raised as a

matter I should consider.

(h) any other matters

[83] Mr McManus spoke to Mr Ingham of the view of the company that Mr Ingham’s

role did not warrant the use of a company car. This conversation also took place on 13

April 2015. Mr Ingham sought some compensation for loss of the car. Despite Mr

Ingham’s submissions to the contrary I do not consider that this played any role in the

decision to terminate his employment.

[84] I have considered the email of Mr McManus to Ms Brigham on 10 April 2015

with respect to Mr Ingham. In that email Mr McManus said:

I’ve talked to Paul and he’s unsure if John has any current disciplinary actions?

What level of warning are we able to issue for this? The only other issue is we

had another (more useful) employee go over 0.05 on the same day. Do we

leave ourselves open if the punishment is more severe for the lesser

infringement? I’ve also told him previously that he will be losing use of

company vehicle, so hopefully this will aid him in going.

[85] On being questioned on this email Mr McManus said that the comment,

‘hopefully this will aid him in going’ was a clumsy reference to him relinquishing the

vehicle. In providing this response Mr McManus’ evidence remained consistent. I do

find it difficult to read the statement as Mr McManus explains it but nothing was made

of this in submissions so I do not rely on it in my decision.

[86] I note that Mr Ingham is close to retirement and had intended to remain with

MQG until he retired. He has worked in the industry for over 40 years. He has, since

his dismissal, been seeking work and has not been successful.

[13] The Commissioner’s conclusion regarding the fairness of the termination of

employment is expressed in the following passage from her decision:

“Consideration

[87] I have considered Mr Ingham’s employment history, particularly in regard to

health and safety matters. My findings above indicate a generally dismissive attitude

by Mr Ingham of attempts by MQG management to implement improved health and

safety standards. This is evidenced by his response to his blood alcohol content

reading where he continually indicated that he could legally drive B-double truck with

a reading of 0.006% (which, despite Mr Ingham’s view, he could not legally do).

[88] Mr Ingham’s evidence that there were clashes between management and the

maintenance team, because management tried to tell the team how to use tools they

[2016] FWCFB 47

were competent on, supports the contention that he was not open to the new health and

safety regime being sought to be introduced by management.

[89] I am satisfied that, in wiggling his fingers at Mr Overton and at Mr McManus Mr

Ingham sought to convey that he was aware of health and safety issues but that he was

dismissive of them and the matters they sought to raise.

[90] Mr Ingham’s attitude as demonstrated by these matters supports a conclusion that

he considered he knew best on the safety standards that should be applied in the

workplace. His attitude is a reasonable consideration in determining if the dismissal

was harsh, unjust or unreasonable.

[91] I am satisfied that Mr Ingham was aware of the safety requirements of MQG, that

this was reinforced through regular discussions with employees at the beginning of the

day and through regular discussions in the workplace. It does appear, however, that he

chose to ignore these requirements on at least two occasions (in relation to the safety

glasses and the safety harness). In this respect Mr Ingham’s views of his knowledge of

how to work safely are not relevant. MQG had health and safety standards, there is no

suggestion that these were unreasonable and there was no reason why Mr Ingham

should not comply with them.

[92] I have taken into account Mr Ingham’s age and prospects of further employment.

Whilst his age might be considered a mitigating factor I do not accept it as such. Given

his age and experience I would have thought that Mr Ingham would be well aware of

the effect of lax health and safety standards in the workplace. He would have seen for

himself the improvements in workplace standards brought about by tighter health and

safety rules.

[93] Mr Ingham received a first and final warning in 2014 in relation to the bagging

machine incident. In deciding to terminate Mr Ingham’s employment following the

blood alcohol reading MQG relied on the existence of this to justify the summary

dismissal. The reliance on the bagging machine issue to justify the decision to dismiss

requires a consideration of whether the bagging machine incident warranted the first

and final warning and hence could validly be relied upon in the dismissal.

[94] If the first and final warning in relation to the bagging machine was not warranted

then reliance on it to justify the decision to terminate Mr Ingham’s employment might

not be reasonable.

[95] I have found above that I do not consider the bagging machine incident warranted

a first and final warning. Mr Ingham says he isolated the machine but that he had no

tags with which to tag it. He also says he told other workers not to use it. Mr Overton

agrees that if there are no tags then the machine should be isolated and staff informed

not to use the machine, which is what Mr Ingham did. Much of the remaining

evidence before me was contradictory. I accept that Mr Ingham however should not

have attempted to do any soldering on the electrical wiring of the machine. To this

extent he deserved some sanction, but the disciplinary outcome should bear some

relationship with the severity of the misconduct.

[2016] FWCFB 47

[96] A first and final warning is a harsh penalty to impose on an employee,

particularly where, as in this case, it is a first incident of misconduct. Having given

such a harsh sanction, I do not consider that it can be relied on to terminate

employment for a second incident of misconduct in circumstances where it was not

warranted in the first place.

[97] If the bagging machine incident did not warrant a first and final warning

(although certainly a warning) the question is whether the decision to terminate Mr

Ingham’s employment where that warning was relied upon, was harsh, unjust or

unreasonable.

[98] There is no evidence that Mr Ingham breached the drug and alcohol policy at any

other time and, on any measure, his reading on 10 April 2015 was low. Whilst he had

been subject to disciplinary action in the past I am not convinced that this justifies the

dismissal in this case. I have accepted other evidence of issues with Mr Ingham

respect of health and safety but he had not been given any written or oral warning with

respect to what was a growing body of evidence of his poor attitude.

[99] In these circumstances I am satisfied that the decision to terminate Mr Ingham’s

employment is harsh and unjust.

[100] Even if the bagging machine incident did warrant a first and final warning that,

in conjunction with Mr Ingham’s other infractions in relation to health and safety and

his lack of understanding of the problems in coming to work with a positive blood

alcohol reading, might justify dismissal with notice. But that is not what occurred in

this instance. Mr Ingham’s employment was terminated without notice. There is

nothing in his conduct to suggest that it was ‘wilful or deliberate and…inconsistent

with the continuation of the employment contract.’ Further, whilst it was beach of the

Policy Mr Ingham did not cause serious and imminent risk to the health and safety of

employees of the Respondent. He had not commenced work and the Policy envisages

an employee, who fails such a test, not being subject to dismissal but rather being sent

home for the shift.

Conclusion

[101] For the reasons outlined above I consider that the decision to terminate Mr

Ingham’s employment was harsh and unjust.

[102] I therefore find that Mr Ingham was unfairly dismissed.

[103] This decision should not be seen to condone the conduct of Mr Ingham in any

way. His attitude to attempts by MQG to improve health and safety standards in the

workplace is not acceptable. Health and safety standards are of the utmost importance

in guarding the safety and welfare of workers. Employers such as MQG who are

committed to improving health and safety at work should be applauded. Their efforts

deserve more than the derisory wiggling of fingers offered by Mr Ingham.”

Grounds of Appeal

[14]      Metro Quarry’s grounds of appeal allege that the Commissioner erred in:

[2016] FWCFB 47

 Finding that a positive blood alcohol content test would lead to a stand down of an

employee and not a dismissal under the company’s Drug and Alcohol Policy;

 Refusing to accept Metro Quarry’s documentary evidence in relation to the bagging

machine incident on the basis of purported inconsistencies in it;

 Treating numerous other safety breaches by Mr Ingham as not available for the

company to rely on in the dismissal because he was not given formal warning in

relation to those incidents; and

 Failing to appreciate that the decision to dismiss Mr Ingham was based on a loss of

trust and confidence in his ability to comply with all safety policies, rather than a

sanction for breaches of safety policies.

[15]      Metro Quarry additionally submits that even if the bagging machine incident did not

warrant a final warning, then the subsequent breach of the Drug and Alcohol Policy justified

summary dismissal.

[16]      The company also submits that the Commissioner’s finding that 12 weeks’ pay was an

appropriate amount of compensation was based on no evidence.

Permission to Appeal

[17]      Permission to appeal was granted on transcript at the hearing of that application on 28

October 2015.

[18]      An appeal in relation to an unfair dismissal matter is governed by the provisions of

sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These

requirements are modified with respect to unfair dismissal appeals by section 400 of the Act

which provides that the Commission must not grant permission to appeal from a decision

made by the Commission arising from the unfair dismissal provisions unless it considers that

it is in the public interest to do so.

[19]      In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with

whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent

1

one’ . The Commission must not grant permission to appeal unless it considers that it is ‘in

the public interest to do so’

2

[20]      The test for determining the public interest has been described as follows:

“[26] Appeals have lain on the ground that it is in the public interest that leave should

be granted in the predecessors to the Act for decades. It has not been considered useful

or appropriate to define the concept in other than the most general terms and we do not

intend to do so. The expression ‘in the public interest’, when used in a statute,

classically imports a discretionary value judgment to be made to be made by reference

to undefined factual matters, confined only by the objects of the legislation in question.

[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing

O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although the public interest might be attracted where a matter raises issues of

importance and general application, or where there is a diversity of decisions at first

instance so that guidance from an appellate court is required, or where the decision at
[2016] FWCFB 47

first instance manifests an injustice, or the result is counter intuitive, or that the legal

principles applied appear disharmonious when compared with other recent decisions

dealing with similar matters, it seems to us that none of those elements is present in

this case.”

[21]      It is also important to note that the decision under appeal is of a discretionary nature.

Usually, such a decision can only be successfully challenged on appeal if it is shown that the

3

discretion was not exercised correctly. It is not open to an appeal bench to substitute its view

on the matters that fell for determination before the Commissioner in the absence of error of

an appealable nature in the decision at first instance. As the High Court said in House v The

4

King:

“The manner in which an appeal against an exercise of discretion should be determined

is governed by established principles. It is not enough that the judges composing the

appellate court consider that, if they had been in the position of the primary judge, they

would have taken a different course. It must appear that some error has been made in

exercising the discretion. If the judge acts upon a wrong principle, if he allows

extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he

does not take into account some material consideration, then his determination should

be reviewed and the appellate court may exercise its own discretion in substitution for

his if it has the materials for doing so. It may not appear how the primary judge has

reached the result embodied in his order, but, if upon the facts it is unreasonable or

plainly unjust, the appellate court may infer that in some way there has been a failure

properly to exercise the discretion which the law reposes in the court of first instance.

In such a case, although the nature of the error may not be discoverable, the exercise of

the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[22]      Metro Quarry submits that it is in the public interest for the Commission to grant

permission to appeal as it manifests an injustice, is counter-intuitive, and raises important

questions about the importance of safety in the workplace and the application of the concept

of “first and final warnings”. For reasons that we will explain in further detail in relation to

the appeal itself we are of the view that the decision discloses appealable errors and unless

reviewed on appeal will manifest an injustice in relation to the treatment of safety at the

workplace. We consider that it is in the public interest to grant permission to appeal.

Consideration of Fairness Criteria

[23]      It is well established that the obligation to take into account factors, as far as they are

relevant, requires findings of fact and the decision maker to have regard to those facts as

5

matters of significance in the overall decision-making process. Importantly, as the wording

of the legislation makes clear, the ultimate question is whether the dismissal was harsh, unjust

or unreasonable. As was said by McHugh and Gummow JJ in Byrne and Frew v Australian

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Airlines Limited.

“128. Clause 11 (b) is aimed at the situation where the termination of employment

brought about by the dismissal, rather than the steps leading up to the dismissal, or

lack of them, is harsh, unjust or unreasonable.

…

[2016] FWCFB 47

130. That is not to say that the steps taken, or not taken, before termination may not

in a given case be relevant to consideration of whether the state of affairs that was

produced was harsh. unjust or unreasonable. Thus, it has been said that a decision

which is the product of unfair procedures may be arbitrary, irrational or unreasonable.

But the question under cl 11 (a) is whether, in all the circumstances, the termination of

employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That

is not answered by imposing a disjunction between procedure and substance. It is

important that matters not be decided simply by looking to the first issue before there

is seen to be any need to enter upon the second.”

[24]      The criteria for assessing fairness, although not exhaustive, are clearly intended by the

legislature to guide the decision as to the overall finding of fairness of the dismissal and are

essential to the notion of ensuring that there is “a fair go all round”. This is particularly

important in relation to safety issues because the employer has obligations to ensure the safety

of its employees, and commitment and adherence to safety standards is an essential obligation

of employees – especially in inherently dangerous workplaces. The notion of a fair go all

round in relation to breaches of safety procedures needs to consider the employer’s

obligations and the need to enforce safety standards to ensure safe work practices are applied

generally at the workplace.

[25]      It is also well established that an assessment of whether a dismissal is harsh, unjust or

unreasonable does not involve the Commission member putting themselves in the shoes of the

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employer and determining what he or she would have done in the circumstances . Findings of

fact need to be made in relation to the specified criteria and other relevant factors. An overall

assessment then needs to be made in relation to the statutory test of whether the dismissal is

harsh, unjust or unreasonable. The task is not to review specific elements of the employment

history to determine whether a discrete element may be unfair or unjustified.

[26]      Although findings were made by the Commissioner in the extracts set out above

regarding Mr Ingham’s conduct that suggested the dismissal was a reasonable response to his

conduct and constituted a valid reason for dismissal, these considerations do not appear to

have been properly taken into account when weighing all of the relevant circumstances and

reaching an overall decision on the fairness of the termination.

[27]      In the analysis of the Commissioner, the breaches of safety procedure, the poor

attitude towards safety and the loss of trust of the employer are significant findings against Mr

Ingham. Clearly the company wanted to change the unsatisfactory attitude towards safety that

it inherited from the previous owner. As the Commissioner noted, this is commendable. The

company was obviously exasperated by aspects of employee behaviour and Mr Ingham’s

behaviour in particular. It deliberately demonstrated a lower tolerance threshold for poor

safety practices. In this context, Mr Ingham was found to have engaged in unacceptable safety

conduct combined with an element of defiance of the company’s tougher stance. However, in

the reasoning of the Commissioner, these findings appear to have been overridden by a

perceived defect in relation to a 2014 warning, and suggestions that he had not been

sufficiently warned that his attitude to safety risked termination of his employment.

[28]      There does not appear to be a clear link between the findings made by the

Commissioner and the outcome reached. The Commissioner’s ultimate decision appears to us

to be counter-intuitive. We do not consider that the Commissioner properly had regard to all

of the findings of fact in relation to the specified criteria, properly weighed those factors in the
[2016] FWCFB 47

context of a fair go all round nor reached a decision which was reasonably open. In our view,

if the significant factors were properly taken into account, a different outcome would have

been reached. The decision, with respect, appears to us to be unreasonable and plainly unjust.

[29]      The conclusion we have reached regarding the proper consideration of criteria is

reinforced when considering the grounds of appeal in relation to the bagging machine

incident, the drug and alcohol policy and discussions about safety compliance.

The Bagging Machine Incident and Warnings

[30]      Mr Ingham received a first and final warning in 2014 for performing work on a

bagging machine contrary to proper safety requirements. The seriousness of the bagging

machine incidence was contested in the proceedings before the Commissioner. The

Commissioner made a finding that turned out to be significant to the overall decision, that the

notes of a meeting regarding this incident did not reflect the incident report made by the

company about the incident. The Commissioner said: at [57] and [95] that:

“[57] The notes of the meeting with Mr Ingham say that the Mr Ingham worked on the

machine without disconnecting the power supply yet the incident report of Mr

Vawdrey says no such thing. The minutes suggest that Mr Ingham was responsible for

calling the electrician and failed to do so yet the incident report indicates that Mr

Vawdrey called the electrician and suggest no delay in him doing so. Further, the notes

of the meeting indicate that the meeting ‘discussed the issue regarding the first and

final warning’ suggesting that the decision to give such a warning was decided prior to

Mr Ingham being given an opportunity to respond to the issues raised.

…

[95] I have found above that I do not consider the bagging machine incident warranted

a first and final warning. Mr Ingham says he isolated the machine but that he had no

tags with which to tag it. He also says he told other workers not to use it. Mr Overton

agrees that if there are no tags then the machine should be isolated and staff informed

not to use the machine, which is what Mr Ingham did. Much of the remaining

evidence before me was contradictory. I accept that Mr Ingham however should not

have attempted to do any soldering on the electrical wiring of the machine. To this

extent he deserved some sanction, but the disciplinary outcome should bear some

relationship with the severity of the misconduct.”

[31]      The notes of the meeting provide: “… [Mr Ingham] opening the power box on the

older bagging machine on the far side of the plant. [Mr Ingham] whilst having this open went

about rewiring the machine without detaching the main power supply…” (AB 180). The

incident report provides: “…it was found [Mr Ingham] had attempted to fix and machine was

plugged in and ready to use” (AB 188). This was in a context where it was accepted that Mr

Ingham was qualified only as a fitter and turner, and not as an electrician (PN 105-106, AB

27-28).

[32]      Metro Quarry submits that the notes and the incident report were consistent. It

contends that the notes and the incident report record that Mr Ingham had attempted to work

on the bagging machine whilst it was connected to the power supply. Metro Quarry contends

that the Commissioner was in error in finding an inconsistency and as this became a
[2016] FWCFB 47

significant factor in determining that the dismissal was unfair, it was a significant error of

fact.

[33]      On our review of the evidence it appears to us that the finding of the Commissioner

was in error. The incident was a clear breach of the policy as to who may work on electricity

supply. This was admitted by Mr Ingham and his representative at the meeting to discuss the

matter and is properly viewed as conduct warranting a serious warning. This reinforces our

view that assessing the fairness of a dismissal in 2015 by reference to the circumstances of a

first and final warning in 2014 distorted the consideration of the criteria relevant to the finding

of fairness. On receipt of a first and final warning Mr Ingham was on notice that further

breaches of safety procedures could result in his dismissal.

[34]      The Commissioner also found (at [98]):

“… I have accepted other evidence of issues with Mr Ingham respect of health and

safety but he had not been given any written or oral warning with respect to what was a

growing body of evidence of his poor attitude.”

[35]      The evidence appears to be inconsistent with this finding. The Maintenance and

Production Manager, Andrew McManus said:

th

“7. In around Tuesday 7 April 2015, I had a discussion with John around the

safety systems and requirements for hazard/risk assessment prior to tasks starting. John

expressed to me that he didn't need to do them. He held his fingers up in the air and

wiggled them explaining that he had been involved in maintenance for 40 years and

still had all his fingers, so he believed he was safe enough.

8           I explained that the procedures and systems we were putting in place were

legal requirements, brought about ultimately by incidents and accidents in our industry

John's attitude rang alarm bells with me, as it didn't matter what systems we put in

place, if people wouldn't comply with them, we couldn't guarantee their own and

other's safety.

9.          Other informal chats were had with John around the non-wearing of company

provided mandatory PPE, for example, dear safety glasses, while in workshop area.

The poor safety attitude wasn't common across the maintenance crew, with others

even being recognised by onsite Safety Consultant for the way they took on board

safety focus.”

[36]      The OH&S Advisor, Darrell Overton said:

“4. During the course of my duties, I have had several encounters with John in

relation to safety issues. Two of these encounters were of such a serious nature that

they resulted in me escalating the reports to the Nyora Quarry Manager, who at that

time was Paul Griffin, for further action.

5.          The first incident involving John took place on 5 February 2015. I had been

tasked to audit all non-routine work before the work was performed. This task was

assigned to me by Jim Shergold, the Metro Quarry CEO and this had been

communicated to all

[2016] FWCFB 47

workers and supervisors personally by Mr. Shergold, at a morning pre-start meeting.

6.          On 5 February 2015, the maintenance team was preparing to perform repairs

on the Wash Plant Dewatering Screen. The job contained the added, high-risk element

of Working at Heights. All workers had been briefed as to the added risk involved and

the need to ensure personal fall-restraints (harnesses) were used. While conducting an

inspection of the work area, I discovered John Ingram standing on a metal bracket

attached to the side of the Dewatering Screen. This bracket was located immediately

next to an unprotected edge which presented the risk of falling a distance of

approximately between 4 to 5 meters. John was not wearing Fall Restraints at that

time.

7.          I immediately approached John and directed him to move away from the

unprotected edge. At that time, John ignored my direction and began to engage me in a

debate as to his ability to judge safety for himself. After telling John a second time to

come down with no results, I informed the Area Supervisor. Paul Christensen that I

was stopping the job until John complied with the safety requirements.

8.          John came down at Paul's direction. John continued to argue and approached

the Site Health and Safety Representative, Dean Russell. Dean informed me that he

had told John that John was wrong and needed to ‘pull his head in’.

9.          As a worker trained in Working at Heights, John should have been aware of

the risk at which he was placing himself, that this was a violation of the OHS Act 2004

and Victoria Code of Compliance, and really, was a violation of his most basic Duty

of Care under the OHS Act 2004.

10.        The second encounter with John was a direct extension of the first incident. As

part of my work at Metro Quarry Group involved training and coaching the workers

on safe work practices, I conducted an informal talk in around mid-February with John

Ingram, Geoff Gladstone and Phil Gardiner, the site maintenance team and we

discussed the new safety direction at Metro. During this meeting, John's attitude

toward the changes in Metro Quarry Group's safety direction was very negative. I

remember specifically him wiggling his fingers and stating something to the effect that

the fact that he has all his fingers proves he knows how to be safe. He also stated that

he had been doing this type work over 40 years and knew all about safety.

11.        It was during this meeting that John made the comment that we were going

over-board with safety and that he would simply stop reporting incidents since, in his

opinion, it was all simply being used to get people in trouble. Because of the

seriousness of this attitude and the implied intention to violate OHS Regulations by

not reporting incidents, I informed Paul Griffin about the situation, then afterwards

informed John that I had spoken with the Site Manager about the incident.

12.        One other incident with John Ingram occurred at the Metro Quarry Industrial

Sands Site. While conducting a safety walk-around of the site with Nigel McKinnon,

the Chief Financial Officer for Metro and my Senior Management point of contact, I

observed Nigel have a discussion with John Ingram concerning him not wearing

Safety Glasses, which was a site safety requirement.

[2016] FWCFB 47

13.

14. We made many attempts to work with John in helping him to understand the

purpose behind Metro Quarry Group's efforts to improve the safety culture of the

organization, and I have personally delivered training sessions on Risk Management

with the emphasis being on not taking unnecessary risks. Despite these efforts, I had

serious doubts that John would ever willingly accept the new safe work practices that

have been introduced.”

[37]      The final breach of safety procedure needed to be assessed in this context. The prior

breaches and poor attitude to safety clearly were the subject of formal and informal warnings

that a further breach risked dismissal. To the extent that he needed to be aware of those

obligations and the significance of further breaches he was clearly on notice. It is consistent

with fairness and an appropriate approach towards safety obligations that an employer be

permitted to take strong disciplinary action in those circumstances. In our view, the

Commissioner did not make correct findings of fact on the existence of warnings that were the

proper basis for assessing the ultimate breach. In this respect the Commissioner fell into error.

Breach of the Drug and Alcohol Policy

[38]      In relation to the drug and alcohol policy the Commissioner said:

“[47] The Policy does not specify dismissal (with or without notice) for breach of the

policy or that a breach will be considered gross misconduct. In fact the MQG Alcohol

Breath test Flow Chart indicates that an employee will be stood down for 24 hours

following a positive breath test and, on return, will be subject to counselling or

disciplinary action. The only circumstances in the Policy that will result in termination

of employment is a refusal to undergo a drug or alcohol test.”

[39]      However the policy states:

“Each incident of a breach of the [policy] will be considered on a case-by-case basis.

Employees who breach this policy will be subject to review under relevant Metro

Disciplinary Procedures.”

[40]      It appears to us that properly interpreted the policy does not preclude summary

dismissal for a breach of the policy and there is an element of misstatement in the comment

that the policy did not contemplate dismissal for a breach. However this matter needs to be

considered in relation to the stated reasons for termination which extended far beyond the

single breach of the policy and were held to be a valid reason. Mr Ingham was not dismissed

for this reason alone. This breach was the last straw. Against the history of non-compliance, it

was a valid reason for dismissal as the Commissioner found. The wording of the drug and

alcohol policy does not suggest that the dismissal was harsh or unjust. It was the totality of the

circumstances that Metro Quarry was considering. It appears to us that insofar as this matter

led to the Commissioner’s conclusion it was an unwarranted finding. It was inappropriate to

conclude that it contributed to a finding of unfairness.

[2016] FWCFB 47

Appealable Errors

[41]      We do not find it necessary to consider the other grounds of appeal. In our view, the

failure to properly consider the factors relevant to fairness, exacerbated by key errors of fact,

leads us to the conclusion that the discretion vested in the Commissioner miscarried. It is

necessary that we consider the question of fairness which we propose to do on the basis of the

material before us.

Was there a valid reason for the dismissal?

[42]      We agree with the Commissioner’s finding, for the reasons given, that there was a

valid reason for the dismissal.

Was Mr Ingham notified of that reason?

[43]      We agree with the Commissioner’s finding that Mr Ingham was notified of the reasons

for his dismissal relating to the breach of the drug and alcohol policy. His defence that he did

not do anything wrong brought his general attitude into play. Although he was not told of the

overall concerns of the company in a formal written warning, we consider that they arose

from the various discussions with him and the debate about the breach of the drug and alcohol

policy.

Was Mr Ingham given an opportunity to respond?

[44]      We agree with the Commissioner’s finding that Mr Ingham was given an opportunity

to respond to the reason for his dismissal in relation to the breach of policy on Monday 13

April 2015 when he attended a meeting with Mr McManus and Mr Griffin.

Was there an unreasonable refusal to allow a support person?

[45]      We agree with the Commissioner’s finding that Mr Ingham was invited to have a

support person with him in the meetings of 13 and 14 April 2015. Mr Ingham does not allege

that he sought to have a support person and this was denied to him.

Was Mr Ingham warned about unsatisfactory performance?

[46]      Although the termination was a summary dismissal the basis for termination was

repeated breaches of safety requirements about which he had been counselled and warned.

We find that Mr Ingham had been warned about these matters and it is a relevant

consideration to the overall fairness of the dismissal.

The degree to which the size of the employer’s enterprise would be likely to impact on

the procedures followed in effecting the dismissal

[47] We do not consider that the size of the enterprise impacted on the procedures followed

in effecting the dismissal.
[2016] FWCFB 47

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

[48]      Metro Quarry has access to human resource staff.

Other matters

[49]      Mr Ingham is close to retirement and had intended to remain with Metro Quarry until

he retired. He has worked in the industry for over 40 years. Since his dismissal he has been

seeking work and has not been successful. Although the dismissal was a result of a last straw

and a history of lack of commitment to the company’s health and safety policies the

termination was effected by a summary dismissal.

Was the dismissal harsh, unjust or unreasonable?

[50]      Metro Quarry terminated Mr Ingham’s employment after a series of safety breaches

culminating in testing positive to an alcohol test when he attended work in April 2015. In the

context of his work history there was a valid reason for the dismissal. Proper procedures were

adopted to allow Mr Ingham an opportunity to respond to the allegations against him. In all of

the circumstances we are not of the view that the dismissal was harsh, unjust or unreasonable.

Conclusions

[51]      We have concluded for the reasons above that it is in the public interest to grant

permission to appeal and that the decision of the Commissioner was attended by appealable

errors. We therefore grant permission to appeal and allow the appeal.

[52]      On re-determining Mr Ingham’s application we have decided that his dismissal was

not harsh, unjust or unreasonable. His application is therefore dismissed.

VICE PRESIDENT

Appearances:

Mr A. Aleksov, of counsel, on behalf of Metro Quarry.

No appearance on behalf of Mr J. Ingham.

[2016] FWCFB 47

Hearing details:

2015.

Melbourne.

16 December.

Final written submissions:

Metro Quarry Group on 20 November 2015.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575722>

1

(2011) 192 FCR 78 at paragraph 43.

2

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

3

House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

4

Ibid.

5

ALH Group Pty Ltd trading as the Royal Exchange Hotel v Mulhall (2002) 117 IR 357 [51]. See also Smith v

Moore Paragon Australia Ltd (PR915674) at [92]; Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

6

[1995] HCA 24.

7

Per Moore J in Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685: I should, however, make plain - and

this has been made plain in many cases decided by this court- that it is not the court's function to stand in the shoes of the

employer and determine whether or not the decision made by the employer was a decision that would be made by the court

but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or

conduct, and in these proceedings I have concluded it did.