Misgina Gebremedhin v Inghams Enterprises Pty Ltd

[2021] FWC 3988

[2021] FWC 3988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Misgina Gebremedhin
v
Inghams Enterprises Pty Ltd
(U2020/14037)

COMMISSIONER WILLIAMS PERTH, 19 JULY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Misgina Gebremedhin (Mr Gebremedhin or the Applicant) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Inghams Enterprises Pty Ltd (Inghams or the Respondent).

[2] Evidence for the Applicant was given by the Applicant, and by Mr Moses Kabeya (Mr Kabeya) a team leader (leading hand), and Mr Bradley Jones (Mr Jones) an operator, both from Inghams. For the Respondent, evidence was given by Mr Daniel Skubisz (Mr Skubisz), Inghams Distribution Centre Distribution Manager. 1

Factual findings

[3] Mr Gebremedhin was born in Ethiopia. His native language is Tigrinya. English is his second language.

[4] He came to New Zealand in 1998 and has lived in Perth, Australia, since February 2010.

[5] He was first employed by Inghams in April 2013. His employment was converted to permanent full-time on 1 November 2013.

[6] The Applicant was dismissed from his employment on 12 October 2020.

[7] His usual hours of work were thirty-eight hours per week.

[8] He worked in the weigh label room (the WLR).

[9] His gross weekly pay was usually $935.

[10] In the WLR there are three operators plus a leading hand.

[11] The Respondent has a label verification procedure that employees are required to follow in the WLR.

[12] The Applicant’s evidence is that all three operators and the leading hand are responsible for checking and signing the Label Verification Sheet to ensure there are no errors. 2

[13] The Applicant was aware that there is a documented standard operating procedure for label verification, and he was aware that this was kept in the office.

[14] The Applicant undertook training and successfully completed a competency questionnaire regarding the standard work procedure for label verification on 15 August 2019. He undertook training on this on 11 February 2020. He also successfully demonstrated competency by a practical demonstration and theory assessment refresher of this procedure on 26 February 2020. 3

[15] Mr Gebremedhin’s evidence was that employees would receive handouts and have toolbox meetings on the labelling process.

[16] The Applicant’s evidence was that in the WLR there is an immense amount of pressure, processing approximately eighteen-hundred boxes per day. He said they were always rushing and being told to hurry up by the leading hands. If they do not, the boxes on the conveyor belt would start falling to the floor.

[17] He says everybody in the WLR made mistakes and if a mistake is made and a product is labelled incorrectly it is sold to staff at discounted prices so that the loss to the company is minimised.

[18] His evidence was the most important thing is to ensure the incorrectly labelled product does not make its way to market because a product recall is costly to Inghams.

[19] The Applicant worked on Monday, 28 September 2020 which was a public holiday.

[20] The leading hand in the WLR that day was Hram Tlai Thang (Mr Thang). Operator 1 was Elama Maea (Mr Maea), Mr Gebremedhin was operator 2, and Mr Jones was operator 3. Mr Thang was feeding the machine.

[21] The Applicant’s evidence was that Mr Thang told him to just sign the Label Verification Sheet and keep going because Mr Maea had already checked everything and signed it and they were in a hurry. 4

[22] Mr Gebremedhin says that because Mr Thang was the leading hand, he reported to him, followed this direction and signed the Label Verification Sheet. He checked the product description, the date and the price, but did not check the weight. Though he did check that the weight had been circled by Mr Maea, which indicated it had been checked. 5

[23] Mr Gebremedhin says that Mr Jones later noticed the labelling error which was caused by the printing machine failing to print the whole weight on the label.

[24] They were able to rectify twenty-seven boxes which had been labelled incorrectly. However, sixteen boxes of turkey thigh roast had to be sent to be sold to staff at discounted prices. 6

[25] He says usually if there is a labelling error there is a discussion on the day about how to ensure it does not happen again.

[26] One week later, on Monday 5 October 2020, the Applicant was told to come into the office for a meeting attended by Mr Skubisz, Atulesh Angrish and Sarat Nair.

[27] Mr Kabeya attended the meeting with the Applicant. No one in the meeting spoke his native language.

[28] The Applicant says Mr Skubisz asked him what happened on Monday 28 September 2020. He says he explained as best he could.

[29] The Applicant says the meeting was very short. At no point was he told by anyone that his employment was at risk.

[30] He returned to work after the meeting.

[31] Another week later, on Monday 12 October 2020, whilst he was at work Mr Skubisz asked him to come into the office. Atulesh Angrish and Sarat Nair were also present.

[32] He was not given any notice of the meeting. Mr Kabeya again attended with him. Again no one who spoke his native language was present.

[33] The Applicant says that Mr Skubisz said to him that he had spoken with Human Resources and that he was dismissed. He says he was not given opportunity to say anything.

[34] He was told to sign the Record of Employee Discussion Form, but he did not do so because he was not comfortable and wanted to obtain advice from the union before signing anything. 7

[35] This discussion form is dated 5 October 2020 and details the alleged offences as labelling a product incorrectly resulting in sixteen cartons that are no longer good for use, now being wastage. The employee’s response is recorded as,

“Thanga was feeding the line & label verification was being completed.

Misgina did check the label & signed.

He was allegedly rushing.

The label was not checked correctly because the weight was missing.”

[36] On the second page, it lists other warnings issued to the employee as having occurred on 10 February 2020, and 17 May 2019, both concerned incorrectly labelling and failing to check the verification sheet.

[37] The form specifies the type of disciplinary action as termination, for not adhering to standard working procedures and for incorrect labelling.

[38] The Applicant says he was shocked by his termination.

[39] Three weeks later, on 3 November 2020, he received an amount in his bank account from Inghams of $11,273.91.

[40] Whilst he was employed with Inghams he also worked as a taxi driver. He has continued to do this since his dismissal but has not been able to get more hours than he was working already.

[41] Under cross-examination, Mr Gebremedhin agreed that he understood the standard operating procedure for labelling. 8

[42] Mr Gebremedhin agrees that correct labelling is part of the food standards. 9

[43] Mr Gebremedhin agreed he has been subject to three disciplinary processes to do with incorrect labelling. 10

[44] His evidence was that when this incident happened, they advised the leading hand and he instructed them to take off the label and send it back. 11

[45] He is aware that other employees have been terminated for label verification breaches. 12

[46] The evidence of Mr Kabeya was that on average fifty to sixty cartons per day are rejected for various reasons or for not meeting the customer’s specifications. These go to be sold to staff. 13

[47] His evidence was that is not acceptable to sign the verification sheet without checking the labels. Part of the procedure also is to listen to instructions from the leading hand which in this case Mr Gebremedhin did.

[48] He agrees that food labelling is a critical part of Inghams food safety standards. 14

[49] His evidence was that it is an important part of the process, verifying the product, and that is why three operators, plus the team leader, and the leading hand, do the same verificationto check it is correct before proceeding. 15

[50] Mr Kabeya was there as a support person at the meetings for the Applicant.

[51] He is aware of three other employees who were dismissed for similar matters. 16

[52] Mr Jones agreed that what happened was that Mr Maea had circled everything as correct on the labels and that Mr Thang had told them to just sign it and go and Mr Gebremedhin did not get a chance to check the labels. That was his error. 17

[53] Mr Jones’s evidence was that he heard Mr Thang tell Mr Gebremedhin not to check the weights on those boxes. 18

[54] Under cross-examination, Mr Jones agreed that it is not acceptable, under the standard operating procedures, to sign the verification sheet without following the correct process.

[55] His evidence was that this happened on 28 September 2020 because the leading hand had told them to sign and go. His evidence was he does not know why they did not check and sign which he normally would do. 19

[56] Mr Jones is aware that the Applicant had previously incorrectly labelled boxes.

[57] He confirmed that food safety standards include labelling.

[58] He agreed that errors occur and there are no repercussions if they are reported correctly. He also agreed that if the errors are not reported or handled correctly then disciplinary action can occur. 20

[59] Mr Jones’s view was that, as a team, they had adequate training in the WLR processes and a good understanding of these which was reiterated through the toolbox meetings. 21

[60] The evidence of Mr Skubisz was that in his role he was indirectly supervising the Applicant.

[61] In the past the Applicant’s immediate supervisors had reported to him that the Applicant made labelling and packing errors on 17 May 2019 and 10 February 2020.

[62] Following each incident, the Applicant was subject to a disciplinary process. Mr Skubisz was involved in conducting disciplinary meetings in regard to these incidents.

[63] The Respondent provided the Commission with a record of an employee discussion form dated 7 May 2019 which concerned the failure to correctly complete the verification sheet. No employee response is recorded. On the second page of the form, it indicates that the Applicant received a written warning for not adhering to the Respondent’s policies.

[64] A second record of employee discussion form was also provided, dated 10 February 2020, which concerns the failure to correctly check the verification sheet and includes the employee’s response as “label was supplied by team leader”. On the second page of the form, it indicates that a final written warning was issued for not adhering to the Respondent’s policies.

[65] On both of these forms, on the second page, a box is ticked to advise the employee that any future breaches could result in further disciplinary action including termination of employment.

[66] On 5 October 2020, Mr Skubisz held a disciplinary meeting with the Applicant and his support person Mr Kabeya.

[67] The nature of the allegations was explained to the Applicant which concerned 16 cartons that were incorrectly labelled resulting in wastage.

[68] Mr Skubisz confirmed that the Applicant had completed the relevant training.

[69] Mr Skubisz says the Applicant’s response to the allegations was that he did check the label and the verification sheet. The Applicant said that he was rushing and therefore could not check it properly.

[70] On 12 October 2020 the Applicant attended another meeting conducted again by Mr Skubisz to discuss the outcome of the investigation into the incident. Again, his support person attended.

[71] The Applicant was asked to show cause as to why his employment should not be terminated. Mr Skubisz says his response was duly considered.

[72] He says consideration was given to the Applicant’s length of service and the responses provided during the investigation and the seriousness of the matter and the Applicant’s prior disciplinary record and the consequences for the Applicant of terminating his employment.

[73] The Applicant was then notified of the employer’s decision to terminate him and he was paid in lieu of notice and all accrued leave and entitlements.

[74] Mr Skubisz’s evidence was that eleven other employees, to his knowledge, have been subject to disciplinary processes as a result of failing to correctly complete the label verification sheets and associated labelling errors.

[75] Amongst this group was Mr Jones and Mr Maea, the other two operators working with the Applicant in the WLR on 28 September 2020.

[76] Of the eleven other employees, three had been terminated as a result of disciplinary processes related to not correctly following the label verification process.

[77] Under cross-examination, Mr Skubisz denied that at the first meeting on 5 October 2020 or at the second meeting on 12 October 2020 the Applicant ever explained that the leading hand Mr Thang had told him to just sign and go. 22

[78] His evidence was that the first time he heard this explanation was when he saw the Applicant’s witness statement. 23

[79] He further explained that in the second meeting on 12 October 2020 the Applicant again explained that the labelling error was not his fault and that he was rushing.

[80] I accept this witness’s evidence that at no time during the disciplinary meetings did the Applicant explain that he was following the instruction of the leading hand.

The legislation

[81] Section 387 of the Act sets out the matters the Commission is required to have regard for when considering if an employee’s dismissal is 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.”

Consideration

Valid reason

[82] It is clear from the evidence that the Applicant has been trained and was fully aware of the Respondent’s label verification procedures and knew he was required to follow them when working as an operator in the WLR.

[83] I am satisfied that on 28 September 2020 the Applicant failed to properly verify the labels on a number of boxes. This resulted in sixteen boxes being unsuitable to be delivered to the customer and these boxes were subsequently sold to staff, resulting in some loss to the Respondent.

[84] I am satisfied, on the evidence, that the only explanation the Applicant gave at the two disciplinary meetings for failing to correctly verify these labels was that they were rushing.

[85] However, at the hearing before the Commission the Applicant’s evidence was that the leading hand had told him to just sign the label verification sheet and keep going because the first operator had already checked everything and signed it and they were in a hurry. Consequently, as instructed by the leading hand, the Applicant signed the label verification sheet without checking the labels properly. 24

[86] No explanation was given as to why during the two disciplinary meetings the Applicant did not mention that he was acting on the leading hand’s instruction.

[87] There are a number of possible explanations for this, including not wanting to make trouble for the leading hand, or perhaps that it was the consequence of English being the Applicant’s second language. Speculation about this however is just speculation.

[88] I note that the application filed by the union on the Applicant’s behalf did not refer to any instruction from the leading hand. I further note that the Applicant’s first witness statement filed also does not mention an instruction from the leading hand. 25 It is only the second witness statement of the Applicant, filed after the Respondent filed their witness statements, that refers to the Applicant having been instructed by the leading hand to just sign the verification sheet and so not properly check the labels.

[89] Importantly for the Commission’s consideration, the evidence of Mr Jones, who was also working in the WLR at the time, was that he did hear the leading hand tell the Applicant not to check the weights on the boxes. 26 Mr Jones confirmed that the leading hand had told the Applicant to “just sign and go” and consequently the Applicant did not get a chance to check the labels.27 I accept the evidence of Mr Jones.

[90] It is sometimes the case that a fact that was in existence at the time of a dismissal only comes to light at the hearing of a matter. A Full Bench appeal decision in the case of J. Dundovich and P&O Ports explained how the Commission is to deal with such circumstances as follows. 28

“[79] In her consideration of the circumstances in existence at the relevant time the Commissioner failed to have regard to a material consideration, that is, at the time of the decision to terminate Mr Dundovich's employment he had a work related injury and was entitled to weekly payments of compensation pursuant to the AC Act. That this fact was not known to the employer at the time of the decision to terminate Mr Dundovich's employment is not determinative. As the Full Bench in McLauchlan's case observed, facts which existed at the time of dismissal but only come to light after the decision may render a termination of employment harsh, unjust or unreasonable.”

[91] Consequently, the Commission is bound to determine this unfair dismissal remedy application based on the evidence in the hearing, provided that evidence concerns circumstances that were in existence when the decision to dismiss the employee was made.

[92] Consequently, based on the evidence before the Commission I find that on 28 September 2020 the leading hand in the WLR had told the Applicant to just sign the label verification sheet, which he did, and as a result he had not properly checked the labels on the boxes.

[93] The Respondent’s submission is that each of the operators and the leading hand in the WLR have an individual duty to follow the standard work procedure for label verification.

[94] If the Applicant had signed the verification sheet without properly checking the labels on the boxes on his own initiative, I agree with the Respondent that this would be a valid reason for Mr Gebremedhin’s dismissal.

[95] However, the facts were that Mr Gebremedhin just signed the label verification sheet without properly checking the labels on the boxes because his leading hand had told him to. These particular circumstances are a significant mitigating factor. My decision then is that what occurred in this instance was not a valid reason for Mr Gebremedhin’s dismissal.

Notification of the reason

[96] The Applicant was notified of the reason the employer was considering dismissing him before this occurred.

Opportunity to respond

[97] The Applicant had an opportunity to respond to the reason the employer was considering dismissing him at each of the two disciplinary meetings.

Refusal to allow a support person

[98] The Applicant had a support person at both discussions.

Warnings about unsatisfactory performance

[99] The Applicant had previously received two written warnings about similar failures to follow the Respondent’s label verification procedure properly.

Size of the employer’s enterprise and dedicated Human Resource Management specialists or expertise

[100] The Respondent is a large employer which does have dedicated human resources management specialists in house.

[101] Whilst superficially the procedures followed in effecting the dismissal were adequate, it possibly may have been the case that the Applicant’s limited English capacity, and the absence of a translator, resulted in the Respondent not gaining a full understanding of why the Applicant had failed to properly check the labels on the boxes as he did.

[102] Also, given it was the Respondent's view that the three operators and leading hand worked as a team in the WLR and were all responsible for label verification a broader enquiry into the incident where the leading hand and the other operators were also questioned as to what went wrong may have resulted in a more complete understanding of what had occurred.

Other relevant matters

[103] The Applicant had been employed for approximately seven years at the time of his dismissal.

[104] The Applicant in his evidence complained of racial discrimination as being the reason for his dismissal. There was however no evidence at all that this was the case.

[105] It was apparent through the hearing that the Applicant's position was that because he followed the leading hand’s instruction the Applicant himself was entirely blameless. I do not accept that is the case.

[106] The Applicant had already received two written warnings, the last a final warning, for not following the label verification procedure. The Applicant knew what his leading hand told him to do was wrong. It is concerning that in these circumstances the Applicant did not challenge the leading hand’s instruction, he did not even question it. Rather the applicant without hesitation again knowingly failed to follow the proper label verification procedure.

[107] The Applicant apparently does not recognise that even though he followed his leading hand’s instruction, the Applicant himself still did something wrong. He has not accepted responsibility for his own actions.

[108] The Applicant was indifferent for the loss his actions caused his employer.

[109] The Applicant has shown no remorse for his actions.

Conclusion

[110] As I have found above, there was not in this instance a valid reason for the Applicant's dismissal.

[111] There were also some deficiencies in the Respondent's procedures which in all likelihood explained why, prior to his dismissal, it had not become known to the Respondent that the Applicant had been told by the leading hand to take a shortcut rather than fully comply with the label verification process.

[112] Considering the full circumstances of what occurred in the WLR on 28 September 2020, which only became apparent during the hearing of this matter, my decision is that the dismissal of the Applicant was harsh.

[113] I have decided that the Applicant was unfairly dismissed.

[114] However, this is not a case where the Applicant was entirely blameless. The Applicant made a conscious decision to do what the leading hand told him, which he knew was wrong. As a result of this loss was incurred by the employer.

Remedy

[115] Given the Applicant's history of written warnings for prior failures to properly follow the label verification procedure and the fact that the Applicant on this occasion again knowingly chose to ignore the proper procedure I accept the Respondent has lost trust and confidence in the Applicant. I am as a result satisfied that reinstatement of the Applicant is inappropriate.

[116] I do consider though that an order for the payment of some compensation is appropriate in the circumstances of this case.

Compensation

[117] There is no evidence that an order for compensation would affect the viability of the Respondent’s enterprise.

[118] The Applicant had been employed for approximately seven years at the time of his dismissal.

[119] The Applicant had received a written warning for failure to follow the label verification process in May 2019. Nine months later in February 2020 he received a final written warning concerning the same issue. Seven months after this the applicant again failed to follow the label verification process in September 2020 albeit in circumstances where there was the mitigating factor of his leading hand instructing him to shortcut the process.

[120] Considering this history of warnings and of repeated failure to follow an important procedure my assessment is that, had the Applicant not being dismissed when he was, his employment would have continued for no longer than 16 weeks. Had he not been dismissed he would have received remuneration for the 16-week period.

[121] The Applicant provided little evidence as to the efforts he had made to mitigate his loss by trying to obtain other employment. It is appropriate then to deduct 2 weeks from the amount of compensation as a consequence.

[122] The Applicant was paid 4 weeks’ pay in lieu of notice. This amount will be deducted from compensation.

[123] The Applicant in this case did commit misconduct by deliberately failing to follow the label verification procedure. He is not blameless just because he followed the instruction of his leading hand. Considering all the circumstances it is appropriate that an amount of 4 weeks wages be deducted from the compensation because his misconduct quite clearly contributed to the employer's decision to dismiss him.

[124] The amount of compensation to be ordered payable to the Applicant by the Respondent is 6 weeks wages.

[125] The Applicant’s gross weekly pay was $935.

[126] An Order [PR731486] will be issued requiring the Respondent to pay the Applicant the amount of $5,610 gross from which tax will be deducted.

Appearances:

M Gebremedhin, Applicant.
S Carter for the Respondent.

Hearing details:

2021.
Perth:
March 30.

Printed by authority of the Commonwealth Government Printer

<PR731485>

 1   Transcript at PN 12 – 21.

 2   Ibid., PN 96.

 3   Exhibit A3.

 4   Exhibit A2 at Paragraph 22.

 5   Exhibit A2 at Paragraph 23-24; Transcript at PN 46.

 6   Exhibit A3.

 7   Transcript at PN 44.

 8   Ibid., PN 44.

 9   Ibid., PN 61.

 10   Ibid., PN 47.

 11   Ibid., PN 65.

 12   Ibid., PN 66.

 13   Ibid., PN 90.

 14   Ibid., PN 102.

 15   Ibid., PN 96, 100.

 16   Ibid., PN 101.

 17   Ibid., PN 120-122.

 18   Ibid., PN 123.

 19   Ibid., PN 127-128.

 20   Ibid., PN 133.

 21   Ibid., PN 134-135.

 22   Ibid., PN 161-162, 176, 215.

 23   Ibid., PN 216.

 24   Exhibit A2 at Paragraphs 21-24.

 25   Exhibit A1.

 26   Transcript at PN 123.

 27   Ibid., PN 120.

 28   J. Dundovich and P&O Ports [2002] AIRC [PR923358].