Michael Craven v Best Bar Pty Ltd T/A Best Bar Reinforcements

[2013] FWC 2064

[2013] FWC 2064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Craven
v
Best Bar Pty Ltd T/A Best Bar Reinforcements
(U2012/13495)

COMMISSIONER WILLIAMS PERTH, 10 APRIL 2013

Termination of employment.

[1] This matter involves an application made by Mr Michael Craven (the applicant or Mr Craven) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Best Bar Pty Ltd T/A Best Bar Reinforcements (the respondent).

[2] This matter was dealt with by a Fair Work Conciliator however it was not resolved and the applicant has asked for the application to be determined.

Background

[3] The applicant was employed in 2009 and dismissed in September 2012.

[4] The applicant was employed as an Operator on the respondent’s mesh machine. The machine produces steel mesh which is used in the building industry as reinforcing for concrete. The machine is run by two machine operators.

[5] The mesh machine is computerised and automatically assembles, welds and batches the mesh into packs. The machine having cut then welded and assembled a sheet of reinforcing mesh then continues to make additional sheets until the desired numbers are made up into a pack. The machine then ejects the completed pack of mesh sheets onto a bed of rollers which is also known as the strapping table.

[6] The machine then continues to produce the next pack and whilst doing so the two machine operators attach ties to the already completed pack of mesh to keep it stable for loading and for transport to the construction site.

[7] Whilst working on night shift on 5 September 2012 the applicant disconnected and removed a switch from the mesh machine. The respondent viewed the switch as a critical safety device; the removal of which created a serious hazard to employees working on the machine.

[8] Accordingly the respondent terminated the applicant because he had removed the switch.

The evidence and factual findings

[9] The applicant gave evidence on his own behalf and also called as witnesses Mr Smith, Mr Brough and Mr McDonell.

Mr Craven

[10] The applicant’s evidence was that following the night shift on the morning of 6 September 2012 he was asked to come in to attend a meeting. Mr Slattery the respondent’s Production Manager met with him and asked him whether he knew anything about a flap being removed from the mesh machine strapping table. Mr Craven readily agreed that he had taken it off. He says he tried to explain that in his view it was not a safety switch or a safety device but this was ignored.

[11] He was told in that meeting that he had removed part of a safety device and that an investigation was going to happen and he was to be stood down.

[12] Under cross examination Mr Craven agrees he removed the switch in question and explained that he removed it because it was intermittently sticking in the down position. He checked the device when it was stuck in the down position to see if he could lift it up but it would not stay in an upright position. He decided that the weight of the flap was holding the mechanism closed so he took the flap off with the intention of informingMr Steve Lovell the night shift Supervisor after the shift and to let Maintenance know.

[13] The machine was still in operation when he removed the switch.

[14] The applicant’s evidence was that he meant to tell his Supervisor what he had done but he forgot. He didn’t tell Mr Brough the other Operator he was working with on the machine that night that he was removing the switch nor did he tell him afterwards that he had removed it.

[15] Mr Craven didn’t tell any other operators at handover at the end of shift that he had removed the switch. His evidence was that he didn’t inform anybody that he had removed the switch.

[16] The applicant is aware of the function of the switch and understands that it prevents the mesh machine ejecting a second pack of mash on to the roller bed when there is already a first pack of mesh sitting on the rollers 1.

[17] The applicant did not during the meetings and interviews ask to be allowed to have someone else present 2.

[18] The applicant’s evidence was that he did not know that the switch was a safety device and he would not have removed it if he had known it was a safety device.

[19] He says that he was not told what the first meeting was about and so was not able to represent himself properly. His evidence was that he asked to appeal the decision to terminate his employment to the Chief Executive Officer but this was denied and he believed he had that right under the company’s enterprise agreement.

[20] His evidence was that he felt his termination was based more on a personality clash between himself and Mr Slattery.

[21] His evidence was that there have been other incidents on machines where operators had interfered with machine switches and no action had been taken to dismiss them.

Mr Smith

[22] Mr Smith’s evidence was that his impression was that the applicant and Mr Slattery did not like each other.

[23] Mr Smith recalled finding another machine where the operator had shoved a screwdriver into a safety switch to bypass it. The incident was reported and he believes the operator got a slap on the wrist and went back to work. His view was that the bypassing of the safety switch in that instance was serious.

[24] Mr Smith’s evidence was that it was usual on night shift for operators to carry out repairs to the mesh machines such as fixing broken bolts, rebuilding press cylinders and repairing split hoses.

[25] Under cross examination Mr Smith agreed that any repairs on machines during night shift would require the operator taking the machine out of use by using danger tags and that the types of repairs generally undertaken were routine.

Mr Brough

[26] Mr Brough’s evidence was that early in the morning on 6 September 2012 the applicant asked him whether he knew where Mr Lovell the night shift Supervisor was. Mr Brough pointed out that Mr Lovell’s vehicle wasn’t in the parking lot and said therefore he must have left.

Mr McDonell

[27] Mr McDonell’s evidence was that the switch in question was faulty and had given him problems in the past. He said it was common that the switch would jam in the down position. He is also employed as a mesh machine Operator.

[28] For the respondent evidence was given by Mr Styles, Mr Lawrence, Mr Lovell, Mr Slattery, Ms Arnold and Ms Pember.

Mr Styles

[29] Mr Styles has worked for the respondent since April 2008 originally as a machine Operator but took over the responsibilities of the Health Safety and Environment Coordinator in December 2010.

[30] His evidence was that the applicant at his induction was advised about the respondent’s safety training policies and further that the applicant had been appointed as an Employee Safety Representative and that the applicant participated actively in the Health and Safety and Environment Committee.

[31] Relevantly his evidence was that in response to safety concerns about the mesh machine in 2011 he proposed a solution to the Production Manager. This was taken up by the Maintenance Supervisor who came up with a safety device to be fitted to the mesh machine. The safety switch was installed in about April 2011. This is the same switch that the applicant removed.

[32] Mr Styles says the hazard identified was that if there was already a pack of mesh on the roller bed there was nothing preventing the mesh machine from sending another pack out on to the roller bed. Consequently you could have a situation where one pack would be sitting on the roller bed and another pack would be ejected by the mesh machine causing a possible crush situation between the two packs.

[33] His evidence was that the switch is a limit switch and it is also a safety device.

[34] If the safety switch is removed there is nothing telling the mesh machine that there is another pack on the roller bed and if an operator went between that gap and a second pack was then ejected that would pin the operator between two packs of mesh. His evidence was that such an accident would be likely to result in penetration wounds necessitating hospitalisation.

[35] His evidence was that he is in no doubt that it was conveyed to all operators of the mesh machine at the time the switch was fitted what the purpose of the switch was.

[36] Under cross examination Mt Styles says that at the time it was installed he went to every shift and the operators were told this information and he spoke to each crew individually. His evidence was that if the applicant had been on holidays at the time that he was sure it would have been conveyed to him when he returned because the switch would have been there and people would have informed him.

[37] Mr Styles gave evidence that there was a toolbox meeting on 24 April 2012 approximately six weeks before the applicant removed this switch. A key message of the training was about tagging out unworkable machinery and that under no circumstances were machine operators required to authorise to carry out repairs to machines that they operate. His evidence was that all such work is the responsibility of the Maintenance Supervisor.

[38] His evidence was that Mr Craven had been taught these lockout/tag out requirements along with the other operators on the mesh machine and he was certain that Mr Craven was aware of these requirements.

[39] Mr Styles confirmed there was a past incident where an employee had bypassed a safety mechanism and was not terminated. He was not on site at the time and not involved in the investigation. The employee in question was a Mr Karl Johnston who is the son of the Chief Executive Officer. Mr Styles agreed that Mr Johnston would have undertaken the same induction and attended the same safety meetings as the applicant. He also confirmed that Mr Johnston at the time did not report to anybody what he had done.

Mr Lawrence

[40] Mr Lawrence the Maintenance Supervisor also gave evidence for the respondent.

[41] His evidence was that he devised the safety switch in question and installed it after consultation with the machine operators including Mr Craven. His evidence was that Mr Craven and other operators were involved in the testing stages to commission the device and modify its operation and his evidence was there is no doubt that Mr Craven knew what the device was for and how it operated. He was unshaken on this under cross examination.

[42] His evidence was that since installation at the end April or May 2011 the switch has worked effectively however it has been necessary to replace the plastic hinge that holds the activation plate three or four times.

[43] On the morning of 6 September 2012 at the request of one of the supervisors he went to the mesh machine and looked at the safety switch. His evidence was that the activation plate had been removed from the hinge and placed under the rollers. His evidence was he refitted the plate to the device and tested it and it worked perfectly.

[44] His evidence was that operators do routine maintenance on the mesh machine where they replace consumable parts that wear out and which need to be replaced during the course of their work.

[45] Under cross examination his evidence was that the safety improvement provided by the installation of this safety switch was that it prevented a second pack of mesh colliding with a pack that was already on the roller bed and so removed pinch points which would exist if an operator was strapping up the first pack and had his hand in an area where it might be struck by a second pack if it was ejected.

Mr Lovell

[46] Mr Lovell also gave evidence for the respondent; he is the shift Supervisor and has been working for the respondent for five years.

[47] His evidence was that on night shift in questions there were four employees one of which was the applicant.

[48] His evidence was consistent with that of Mr Styles that the safety switch was made and fitted in approximately April 2011 to prevent the mesh machine ejecting a pack of mesh whilst the employees were working on a first pack of mesh sheets that was resting on the roller bed.

[49] His view was that the switch is a safety device and would be recognised as such.

[50] Mr Lovell confirmed that the operators are required to perform only routine maintenance on machines.

[51] His evidence was that if there is a problem with the machine there is a handover book in which to record this. If the problem was something major the machine operators would tell the Maintenance Supervisor directly or would write an email about it and pass it on to the team leaders, supervisors or production managers as appropriate.

Mr Slattery

[52] Mr Slattery the Production Manager also gave evidence for the respondent.

[53] His evidence was that it was only by chance on the morning of 6 September 2012 that it was noticed that the safety switch had been removed from the mesh machine. His evidence was that it was reported to him by Mr Jasmins as the Team Leader who was very emotional about it and he made it clear to Mr Slattery that he wanted to keep his fingers or hands and not suffer any injury working on the mesh machine.

[54] Mr Slattery reviewed the security video of the night shift. The video showed Mr Craven manipulating the safety switch with his hands and then going to a toolbox, taking a tool and returning to the safety switch and removing it. There was no visible explanation for his actions as the machine could be seen to be working normally and there were no entries made in the communication book about any malfunctions to the mesh machine.

[55] He then confirmed with Mr Lawrence the Maintenance Supervisor who told him there had been no reported problems with the mesh machine during the night shift.

[56] Later that morning his evidence was that he met with Mr Craven with Ms Arnold also in attendance.

[57] He told Mr Craven they were investigating the removal of a safety switch on the mesh machine. Mr Craven immediately admitted he had removed the safety switch. Mr Slattery asked him why he had removed it and Mr Craven said it was jamming or sticking and that he did not identify the switch as a safety device.

[58] Mr Slattery’s evidence was that he then fully explained the consequence of the safety switches removal in safety function of the device and Mr Craven replied that when explained in that manner he understood that his actions may have caused an injury.

[59] Mr Slattery asked Mr Craven if he had informed anyone about removing the device and Mr Craven said he did not advise anyone and that he had forgotten to do so.

[60] After the meeting Mr Slattery consulted with Ms Pember, Mr Styles and Ms Arnold and concluded that the appropriate action was to terminate the employment of Mr Craven.

[61] Mr Slattery’s evidence was that this conclusion was reached because Mr Craven had removed a safety switch from the machine which could have led to a serious injury to an employee and the removal of the safety switch was discovered only by luck the following morning. The pre-start hand over book confirmed that the removal of the switch had not been communicated to anybody. Nobody else knew that the safety switch had been removed.

[62] In addition it was considered relevant that Mr Craven had previously been a Safety Representative and so had received training on safety and in that role it was his responsibility to identify hazards and encourage others to identify risks and communicate these issues to all employees.

[63] It was also a consideration that there had been previous incidents involving Mr Craven which were also safety concerns.

[64] Mr Slattery’s evidence was that he felt no animosity towards Mr Craven.

Ms Arnold

[65] Ms Arnold’s evidence dealt with the process of interview and decision-making and is consistent with the evidence of Mr Slattery and Ms Pember.

Ms Pember

[66] Ms Pember’s evidence was that considerations were had for the fact that the respondent had in October 2010 terminated an employee for a similar breach of the company’s safety policy. That employee had removed a safety guard from the mesh machine and in fact Mr Craven was involved in reporting that safety breach.

[67] Her evidence was that consideration was had for the fact that Mr Craven had been appointed as a Safety Representative in September 2011 and had attended a five day training course in this capacity.

[68] In addition Mr Craven in the past had appropriately reported safety hazards and so had demonstrated his understanding of the importance of safety.

[69] In addition Mr Craven had been involved in an incident on 6 May 2012 where he had sustained a leg injury. The investigation into the incident concluded that Mr Craven had not followed the standard work instructions and placed himself “in the line of fire”. Upon return to work he was required to review the standard work instructions and was reassessed on driving the crane, to avoid a reoccurrence of the incident.

Findings

[70] Considering the evidence of all these witnesses there is little dispute about the majority of the relevant issues other than for a few important aspects.

[71] My findings then are as follows.

[72] The applicant was inducted at the commencement of his employment and so was aware of the company’s policy on safety procedures generally.

[73] The applicant had been appointed the night shift Safety Representative and had attended a five day safety training course as a result. The applicant however had resigned from this position prior to the incident occurring.

[74] The applicant was aware of the company’s process and procedures for reporting safety hazards and had actively done so himself in the past.

[75] The applicant as an Operator of the mesh machine was entitled to carry out routine minor repairs however the removal of the safety switch in question went beyond this.

[76] Any repairs or maintenance needed to the safety switch should have been reported by the applicant as appropriate to the Supervisor or Maintenance staff.

[77] The respondent’s requirement to tag out unsafe machinery or machinery that is not working and that machine operators are under no circumstances to carry out repairs or modifications to machines were known to the applicant and these had been reinforced in toolbox meetings to machine operators in April 2012.

[78] The safety switch in question had been fitted by the respondent to remove the risk of injury to machine operators when the machine ejects a pack of mesh on to the roller table where another pack of mesh is already sitting. The switch stops the mesh machine ejecting a second pack of mesh when there is already a pack of mesh on the roller table.

[79] On balance I accept the evidence of Mr Lawrence and Mr Styles that at the time the safety switch was installed in April or May 2011 the applicant was present and involved in the process of installation, modification and commissioning and was aware that the respondent was installing the switch to improve the safety of its operations by removing a hazard from the mesh machine. The applicant’s suggestion to these witnesses that perhaps he had not been present at the time and was on leave is not supported by any evidence brought by him and was not conceded by these witnesses.

[80] On the night shift which began on 5 September 2012 the applicant removed the safety switch from the mesh machine.

[81] The applicant did not tell his fellow machine operator on night shift that he was intending to remove the safety switch.

[82] The applicant did not at any time tell his fellow machine operator nor any supervisor nor any Maintenance staff that he had removed the safety switch.

[83] The applicant did not communicate the fact that he had removed the safety switch by including this fact in the mesh machine pre-start handover book.

[84] No person other than the applicant was aware that he had removed the safety switch from the mesh machine until this was discovered by chance on the morning of 6 September 2012 after the applicant had left the premises.

[85] The applicant was interviewed and admitted he had removed the safety switch.

[86] His explanation for doing so was that it was sticking in the down position.

[87] In the interview the applicant did not accept that the switch was a safety switch or safety device. He explained that if he had understood that it was a safety switch or device he would not have removed it.

[88] The applicant had been injured in May 2012 and in part this was because he had not followed the respondent’s standard work instructions.

[89] In the past a Mr Johnston an employee of the respondent who apparently was the son of the Chief Executive Officer had without authorisation bypassed a safety mechanism on a machine. Mr Johnston was not terminated.

[90] In 2010 an employee of the respondent Mr Walker had removed a safety guard from the mesh machine and because of this was terminated by the respondent.

[91] The respondent did not refuse a request by the applicant to be represented during any discussions regarding his possible dismissal.

Consideration

[92] Mr Craven argues that his dismissal was unfair because he was not afforded the opportunity to have representation at any of the meetings concerning this matter which he submits was in breach of the enterprise agreement that applied to the respondent and to his employment.

[93] Further Mr Craven argues that the incident was not as described by the respondent and was not investigated properly.

[94] Mr Craven argues that the switch in question on the mesh machine is not one that would be easily recognisable as an alleged safety switch.

[95] It is submitted by Mr Craven and that his actions did not put any lives at risk and his actions were not ones that warranted immediate dismissal.

[96] It is also argued by Mr Craven that there have been prior incidents in the respondent’s mesh machine area where the respondent failed to act in the same way as they have against him and those prior actions would deem his action as a reasonable one which therefore did not warrant dismissal.

The legislation

[97] The Act sets out in section 387 the matters that the Commission must take into account when considering whether an employee’s dismissal was harsh, unjust, or unreasonable.

“387 Criteria for considering harshness etc.

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.”

Was there was a valid reason for the dismissal?

[98] The applicant without authorisation removed a switch from the mesh machine which was designed to prevent the machine ejecting a second pack of mesh on to the roller table when there was a first pack of mesh already there. Removing the switch created a risk of injury for operators if they were working on the first pack when the machine ejected a second pack of mesh.

[99] Removing the switch posed a risk to the safety of other employees particularly because the applicant did not tell anybody that he had removed the switch.

[100] The applicant’s conduct in removing the switch was consequently a valid reason for his dismissal.

Was the person notified of that reason?

[101] The applicant was involved in two meetings with the respondent’s management where his conduct was discussed and he was clearly told that his employment was at risk because of his actions in removing the switch.

Was the person given an opportunity to respond to the reason?

[102] The applicant was given the opportunity to respond to the reasons for which he was ultimately dismissed and took that opportunity to argue that he had not appreciated that the switch was a safety device and to request that he be allowed the right to appeal to the respondent’s Chief Executive Officer.

Any unreasonable refusal to have a support person present

[103] There was no refusal by the respondent to allow the applicant permission to have a support person accompany or assist him in any discussions related to 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

[104] The respondent is a business with 158 employees and has dedicated human resource management staff and the procedure followed in effecting the dismissal was appropriate given this was the case.

Other matters

[105] The applicant does not dispute that he removed the safety switch. However he argues that he did not understand that it was a safety device and that if he had appreciated this he would not have removed it.

[106] The evidence however as I found above does not support the applicant’s submission in this regard. My finding above is that the applicant was made aware at the time the switch was installed and commissioned in 2011 that it was being installed to improve the safety of the mesh machine.

[107] In addition the respondent quite reasonably viewed the applicant as having a sound appreciation and a good understanding of safety issues given his background as a nominated Safety Representative and that as part of this he did attend a five day safety training course.

[108] Other evidence also demonstrates that the applicant was active in safety matters having reported safety concerns in the past.

[109] Because of this it is difficult to accept that the applicant had never understood that the switch had a safety function.

[110] Even without the positive finding that he was aware of the particular reasons why the switch was installed it is reasonable to conclude on balance that the applicant would have appreciated that removing the switch created a hazard to himself and to other operators.

[111] Separately the applicant’s actions where contrary to the respondent’s policy on tagging out machines that are unsafe or not working properly and the prohibition on operators doing other than minor maintenance or repairs on machines. A policy that had been raised with Operators earlier in 2012.

[112] The company in considering its decision to dismiss the applicant quite rightly in my view took account of the fact that the applicant’s action in removing the switch was made more serious by the fact that he took no action to make any other person aware that the switch had been removed. This placed employees operating the machine at a greater risk because if they had not noticed that the switch had been removed then they may have worked in a manner believing they were protected by the switch, thereby increasing their risk of injury should the machine have ejected a second pack of mesh unexpectedly onto the roller table.

[113] The applicant has been employed for approximately three years which is not a factor that overrides the valid reason for his dismissal in this matter.

[114] The applicant has pointed to what he says were the inconsistent actions of the company in the past with respect to an incident involving Mr Johnston whom apparently was the Chief Executive Officer’s son. The applicant argues that the evidence is that Mr Johnston disabled a safety device of some type but was not dismissed. Unfortunately however for the applicant this is not sufficient for the Commission to form a view as to whether or not he has been treated more harshly than was Mr Johnston.

[115] Very limited evidence has been put to the Commission about what Mr Johnston did. No evidence has been provided as to what investigations were carried out and what the findings of those investigations were. There is no information about his length of employment or his work record. In short without all of the information being made available as to what occurred on that occasion it is not possible for me to form a view as to whether the treatment of the applicant was unreasonable in comparison to what occurred with Mr Johnston.

[116] Separately however I note the evidence of Ms Pember that the respondent in making its decision to dismiss took into consideration the fact that in 2010 it had terminated an employee, Mr Walker, for removing a safety guard from the mesh machine. Superficially the respondent’s actions in this regard do seem to be consistent with how it has treated the applicant on this occasion, although again the full detail of the circumstances are not clear.

[117] Finally the applicant submits that he was denied the right to appeal to the Chief Executive Officer which is a right he says he has under clause 21 Dispute and Grievance Resolution Procedure of the Best Bar Pty Ltd Western Australia Enterprise Agreement 2010-2013 (the Agreement)[AE877368]. The respondent agrees that the Agreement applies to the applicant’s employment however rightly in my view points out that clause 21 Dispute and Grievance Resolution Procedure relates only to matters arising under the Agreement or the National Employment Standards. The respondent’s intention to dismiss the applicant for his actions is not therefore covered by this procedure and as such the applicant did not have a right under the Agreement to appeal the Production Manager’s decision to dismiss him to “...a more senior manager nominated by the employer” let alone to the Chief Executive Officer of the respondent.

[118] Whether the applicant’s removal of the switch involved a reckless disregard for the safety of himself and others or was rather just an ill considered careless act is unclear. What is clear however is that his actions did put himself and others at risk. Reasonable minds may differ as to whether in the circumstances the applicant’s action warranted dismissal however the Commission’s role is not to determine whether it would have reached the same conclusion as the respondent employer but rather to assess whether there was a valid reason to dismiss and if there was whether that conduct in the circumstances was sufficiently serious to justify dismissal. In this case there is no doubt there was a valid reason for dismissal as I have explained above and the applicant’s conduct was I have no doubt sufficiently serious to justify the termination of his employment.

[119] I find that the dismissal of the applicant was neither harsh, nor unjust nor unreasonable. The applicant has not been unfairly dismissed.

[120] Consequently I will dismiss this application and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

M Craven on his own behalf.

P Moss of the Chamber of Commerce and Industry of Western Australia for the respondent.

Hearing details:

2013.

Perth:

January 30.

 1   Transcript at PN460.

 2   Ibid., at PN492.

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