Mr Adam Blackney v CSR Limited T/A Viridian New World Glass
[2011] FWA 3307
•6 JUNE 2011
[2011] FWA 3307 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Adam Blackney
v
CSR Limited T/A Viridian New World Glass
(U2010/1805)
COMMISSIONER CRIBB | MELBOURNE, 6 JUNE 2011 |
Application for unfair dismissal remedy.
[1] This decision concerns an application by Mr Adam Blackney (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that termination of his employment by CSR Limited T/A Viridian New World Glass (the respondent) (Viridian) was harsh, unjust or unreasonable. The applicant is seeking a remedy in respect of his dismissal.
[2] The matter was subject to telephone conciliation but was not settled. The applicant elected to have the matter arbitrated. Hearings took place on 7 and 8 March 2011. The hearing on 7 March 2011 was preceded by an on-site inspection at Viridian in Whiteside Road, Clayton.
[3] The applicant was represented by Mr T. Wetherell and the respondent by Mr R. Ironmonger.
[4] Evidence was given by Mr Blackney, Mr G. Wheeler, shop steward and employee of the company and Mr B. Ross, official of the Construction, Forestry, Mining and Energy Union (CFMEU). On behalf of the respondent, Mr G. Muston, State Operations Manager and Ms T. Skinner, Human Resources Co-ordinator gave evidence.
THE EVIDENCE
APPLICANT
Mr Blackney
[5] After viewing the DVD 1 containing CCTV footage provided by the respondent of the alleged incident, it was Mr Blackney’s evidence that:
• The DVD showed a forklift driver driving through the main despatch area, coming out of door 59 and across the walkway. There was no flashing light until that point. 2
• He could not identify who was driving the forklift and whether or not it was him. 3
• Mr Wheeler, the shop steward, had asked him about an incident involving a forklift and a gas bottle and told him that Mr Ross wanted to see him. 4
• The alleged incident had occurred on the morning of Friday 22 October 2010. He was sure that it was 22October2010 as he recalled Mr Ross, the CFMEU representative, questioning him about the incident at around 1:00 pm on 22 October 2010. 5
• He was sure that it was 22 October 2010 as the incident and the phone call took place on the same day. 6
• He did not see Mr Smith at the time of the incident and did not recall anyone calling out to him. 7
• Whilst he was driving the forklift (at about 5km per hour) he saw a few people on their machines and two employees walking along the walkway. 8
• He did drive the forklift as portrayed in the DVD, namely, against the flow of traffic. This was a normal occurrence as there was no direct flow of traffic for forklifts. 9
• There were arrows on the floor showing the direction of traffic. 10
• There was a flashing light on the pole which indicated that a vehicle could be coming down, along the flow of traffic. 11
• He (and the other forklift drivers) had driven the forklift against the flow of traffic regularly day in, day out. 12
• All of the forklift drivers did this and it has never been questioned in the past. 13
[6] Mr Blackney outlined the steps he had taken to obtain alternative employment and described his current financial situation as quite dire. 14
29 March 2010 – second written warning
[7] With respect to the second written warning for failing to report damaged property and near miss he had received on 29 March 2010, Mr Blackney stated that:
• He had intended on 29 March 2010 to complete the Hazard and Near Miss Report after smoko as he had to get a few jobs done before smoko. 15
• He completed a Hazard and Near Miss Report on 29 March 2010. 16
4 June 2010 – final warning
[8] Mr Blackney stated that, when Viridian took over the site, all the policies and procedures had changed. He knew that he could go to Human Resources (HR) to access the policies. 17
[9] It was confirmed by Mr Blackney that he received a final warning on 4 June 2010 which was signed by the union official. He said that it was a final warning on safety which had been downgraded to a second written warning but a final warning on safety. 18 Mr Blackney recalled that the final warning had been challenged by the union on his behalf. It was his understanding from Mr Ross that the outcome was that the final warning had been changed to a second warning but a final warning on safety. 19
[10] Mr Blackney indicated that he had advised management of some of the incidents he had listed in his Statement. 20 He confirmed that he had raised his concerns about occupational health and safety with Mr Wheeler and asked him to convey them to the health and safety committee. Mr Blackney stated that the response from the committee was that they would look into it.21
September 2010
[11] With respect to the situation, when, in September 2010, Mr Westwood and Mr Adamovskis had warned him for not wearing his seat belt, Mr Blackney stated that he had not understood it to have been a warning. Mr Blackney stated that he had explained to Mr Adamovskis that he normally wore his seat belt but that, as he had to get off/on - off/on the forklift, it was easier and safer to drive the forklift about 5 metres without re-fastening his seat belt. 22
October 2010 incident
[12] On the day of the incident in October 2010, the applicant stated that there was not a truck coming down the road and that the flashing light could have been another forklift coming through the correct way. 23 Mr Blackney stated that it was very visible when a truck was coming down the road. This was because when at the roller door, one could see all the way down to the backyard. He indicated that, every day at the company, a truck turned around the corner without seeing a forklift.24
[13] Mr Blackney recalled that Mr Muston had spoken to him on the Friday (22 October 2010) and that he had been stood down with pay on the Tuesday (26October 2010). He stated that Mr Ross had spoken to him about 1:00 pm on the Friday, prior to Mr Muston. Mr Blackney recounted that Mr Muston had spoken to him at about 2:00 pm. He said that he had stopped trying to explain his side of the story as Mr Muston had his own mindset about how things were going to be. Mr Blackney stated that he had tried to tell Mr Muston that he felt that what he had done was safe enough and that there was no danger to anyone. 25 He said that the notes of the meeting on 26 October 201026 were a fair summation of what had occurred.27
[14] In terms of carrying a gas bottle on the forklift, it was Mr Blackney’s evidence that this was common practice on the site. Mr Blackney indicated that the forklift had run out of petrol on the Monday afternoon, having already run out of gas. Having run out of petrol, he had put another gas bottle on the forklift, leaving the empty one at door 52. Mr Blackney recounted that he had picked up 8 bases with the forklift from outside the factory 5, door 53 and taken them to the truck loading bay in the rear yard. At the same time, he thought that he would “kill two birds with one stone” by then continuing on from the truck loading area to drop off the empty gas cylinder. 28 Along the way, he had driven to the empty gas bottle and picked it up and put it onto the side of the forklift.29 It was his evidence that it was a safe operation to be steering the forklift with one hand whilst holding the gas bottle with his spare hand. Mr Blackney contended that normally, one drove with one hand on the steering wheel and the other one resting on the controls but not doing anything.30 He explained that if he needed to use the horn at a pedestrian crossing, he would use his palm or wrist (which he did regularly).31
[15] Mr Blackney indicated that there was a work practice that one tooted the horn in and out of every roller door. However, Mr Blackney was clear that there was never a work practice of tooting one’s horn when coming into a walkway area. He said that the DVD showed all three roller doors being up, there was no-one across the walkway and there was no chain across the walkway. Mr Blackney did not concede that that area was a “no-go” area. He stated that there was no signage that a forklift must not cross that walkway. 32
[16] It was Mr Blackney’s view that, it was not necessarily imperative for a forklift driver to have a spare hand so that, if the forklift rolled, they could grab the safety bar. He believed that there was no additional risk by having a gas bottle with you because he would always try and go to his left if the forklift was starting to tip over. Mr Blackney further contended that he had never driven at such a speed to endanger anyone’s life. He agreed that he had previously had two accidents despite having been driving very cautiously at both times. 33
[17] Mr Blackney stated that he was seeking reinstatement and indicated that he believed that he would be a valuable asset in end capping. This was said to be because he got the job done safely and fairly quickly. 34
Mr Wheeler
[18] It was Mr Wheeler’s evidence that he had worked on a day to day basis with Mr Blackney and that he had helped him with end capping and loading up trucks. He said that he himself did not have a forklift licence. 35 It was also Mr Wheeler’s evidence that, since two people had been made redundant in Mr Blackney’s area, Mr Blackney’s workload had increased. He agreed that overall production had reduced.36
[19] With respect to the events of 22 October 2010, Mr Wheeler said that Mr Muston had approached him at about 10:00 am or 11:00 am and told him that Mr Blackney had committed serious safety breaches. These had been said to be that he was driving a forklift with a gas bottle whilst carrying a load which had posed a serious risk to other people. 37
[20] Mr Wheeler indicated that it was very common for forklift drivers to carry gas bottles whenever they had run out of gas – about once or twice a week. 38 He explained that, when a forklift ran out of petrol and gas, the driver would get another forklift and drive from one end of the factory to the other (300 - 400 metres) to get a new gas bottle. Mr Wheeler said that the drivers would put the gas bottle straight into the cabin or onto the tyres into the cabin and drive it back.39 It was Mr Wheeler’s evidence that the forklift drivers would choose the quickest route and that, if the driveway was empty, they would go the wrong way up the one way driveway. 40 If there were trucks in the driveway, it was said that, sometimes, they had to go right around the whole factory.41 He explained that, if the bottle was in the cabin, the forklift driver would hold onto it. Mr Wheeler indicated that he had spoken to other forklift drivers who had said that it had been common practice for years.42 Mr Wheeler indicated that he was not aware of a safety policy regarding forklifts.43
[21] It was Mr Wheeler’s understanding that Mr Blackney had been dismissed solely because of the indiscretions with the forklift. 44 He confirmed that Mr Blackney was an outspoken employee and that he had very regularly raised concerns with him in his role as Occupational Health and Safety Officer. An example of this was said to be the non wearing of seat belts.45 Mr Wheeler recalled that, when there was an SO2 leak in the factory, Mr Blackney, in his role as fire warden, had called the Fire Brigade in who had found a leak and had shut down that part of the factory.46
[22] Mr Wheeler recounted that, since Mr Blackney’s dismissal, management had told all of the forklift drivers that they were not to carry gas bottles in the forklift. It was his understanding that management had adopted a very strict approach to safety as a means of getting rid of people. 47
[23] It was confirmed by Mr Wheeler that he had concerns regarding safety at the Clayton site, particularly compared with South Oakleigh. He said that most safety policies and procedures were raised in the safety meetings and that he had raised a lot of issues concerning safety. 48
[24] It was Mr Wheeler’s view that Mr Blackney was picked on by management and he indicated that he had raised this with the union. He felt that Mr Blackney had been targeted because he did not get on very well with management. 49
[25] In terms of who was driving the forklift in the DVD, Mr Wheeler could not identify who it was. He said that it could only be one of three people including the applicant. 50 As Occupational Health and Safety Officer, Mr Wheeler believed that what the forklift driver in the DVD did was unsafe. This was said to be because the forklift should not be driven through there. He added that there had been a problem with the gates being off for a long time.51
[26] Mr Wheeler confirmed that two or three other employees at Viridian had been issued with warnings for safety breaches. It was his view that Viridian was trying to terminate employees for safety issues as it was a cheaper way of reducing employee numbers than paying a redundancy package. He said that Mr Blackney was the first one. Mr Wheeler explained that he would support dismissal for people who were consistently breaching safety. 52
Mr Ross
[27] It was recounted by Mr Ross that Mr Wheeler had informed him that carrying around empty gas bottles in the forklift cabin was common practice. 53
[28] With respect to the final written warning of 4 June 2010 which was given to Mr Blackney, Mr Ross recalled that he had been in discussions with Mr Muston regarding Mr Blackney’s warnings. He recalled having an argument with Viridian about the safety glasses and craning.
[29] In terms of the gas bottle incident, Mr Ross recalled that he was already at the company when he went to Mr Muston’s office after 2:00 pm on Friday 22 October 2010. He was told about an incident whereby it was alleged that Mr Blackney had carried a gas bottle on the forklift. The company had told him that they were not happy, on occupational health and safety grounds, and sought a meeting with himself and Mr Blackney. 54 Mr Ross indicated that his initial reaction to the allegation was that it was not the smartest thing to do but that, if it was something that was customary, then there was no issue. He said that he had never heard of carrying anything in the cabin except paperwork before, even though he had a forklift ticket.55
[30] It was recalled by Mr Ross that it was not until the meeting on Tuesday 26 October that he was appraised of the specifics of the incident. He stated that, although he was aware of the cameras, he did not ask to see any footage. This was because the cameras were introduced for theft and pilfering reasons and were not supposed to be used for anything else. 56
[31] After being shown the DVD, it was Mr Ross’ evidence that:
• The only mistake he could see was that the driver did not toot when he came out the door. 57
• He would have driven across the pedestrian crossing if there was total view – which there was. 58
• Knowing the site, he said that, if there was no-one there, nobody stops including trucks. 59
[32] Mr Ross held the view that the company was victimising a lot of people and gave as an example, the warning given to Mr Blackney for not wearing his safety glasses when he popped his head into the factory to grab a person he was giving a lift home to. 60 He recalled that he had walked around the factory after the incident with Mr Blackney as HR had guaranteed him that a number of things did not happen. He said that he had seen a long term sub contractor driver walking on site with no safety gear and in shorts. He had told Mr Muston about it and it was dealt with.61
RESPONDENT
Mr Muston
[33] Mr Muston indicated that it was his understanding that, as Mr Smith (and others) came out of a maintenance meeting at about 12:45 pm on Thursday 21 October 2010, he had witnessed Mr Blackney put the gas bottle into the forklift and drive through the factory. 62 He recalled that Mr Smith had rung him and briefly advised him of this.63 Mr Muston indicated that he had had a further discussion (in person) with Mr Smith regarding his allegation.64
[34] It was recounted that he had then spoken to Mr Blackney and asked him why he had an empty gas bottle and what he was doing with it. Mr Blackney had told himthat the forklift had run out of petrol and gas and he had to get a full gas bottle. He was therefore taking the empty gas bottle back to the gas station. 65 Mr Muston had then instructed Mr Papworth, Mr Blackney’s manager, late on Friday 25 October 2010, to stand him down when he next came into work Monday 25 October 2010, pending an investigation into the incident.66
[35] Further, Mr Muston explained that he had spoken to Mr Smith again and to Mr Patterson who had also seen Mr Blackney with the gas cylinder. He had then watched the video and had another discussion with Mr Blackney during which he told him that he was very concerned with the risks he was taking. 67 It was recalled that he had spoken to Mr Ross and advised him that there was an issue with Mr Blackney and that there was to be a full investigation undertaken.68
[36] Mr Muston also said that on Friday 22 October 2010, he had viewed the video that was part of the evidence and also the other video which showed Mr Blackney putting the gas bottle on the forklift. The other video was said to have been overwritten with continual recording. 69 In terms of the investigation, it was Mr Muston’s evidence that he was satisfied beyond doubt that the person on the video of Thursday 21 October 2010 was Mr Blackney. He stated that that it was Mr Blackney’s posture that he saw in the video and that his build was different to that of the other three forklift drivers. Mr Muston indicated that the DVD confirmed what the two eye-witnesses (Mr Smith and Mr Patterson) and Mr Blackney had said. He said that Mr Patterson and Mr Smith had come down the stairs after the maintenance meeting at about 12:45 pm. Also, it was said that Mr Smith and Mr Patterson had confirmed that it was Mr Blackney. Further, Mr Blackney had told him that it had been him on the forklift on the day concerned.70 He did not think that Mr Blackney had been shown either or both of the videos and could not recall whether Mr Ross had been shown them prior to 26 October 2010. It was stated that a number of senior managers had seen the videos. Mr Muston said that Mr Blackney had admitted that he had put the gas bottle in the forklift, that he had a load on it and that he had crossed the pedestrian crossing.71
[37] It was confirmed by Mr Muston that there was a yellow chain in place, between the pole and the factory (across the space that Mr Blackney drove through), during the inspection. He said that the purpose of the chain was to put a demarcation line between pedestrians and forklifts. Mr Muston confirmed that it had been missing for more than a day but denied it was months. 72
[38] Following a discussion of the width of the space and that of a forklift and also a forklift with a load on, it was Mr Muston’s view that a forklift could not go easily through. 73 He stated that there was a huge risk of injury when Mr Blackney had driven through. Mr Muston said that Mr Blackney had only one hand to operate the steering wheel as the other hand was on the gas bottle. He stated that Mr Blackney had no ability to adjust the load and reduced visibility and he was said to have driven the forklift without stopping or looking. Mr Muston added further that it was high risk because Mr Blackney did not have normal control of the forklift and he was driving in an area where pedestrians thought they would have had right of way. He also said that there could have been a pedestrian walking on the footpath. Mr Muston conceded that speed had not been at issue.74
[39] Mr Muston did not accept that it was common practice for forklift drivers to carry gas bottles in the cabins. He recalled that he had asked 6 or 7 drivers and that 3 or 4 had been asked for, and had supplied, a written statement. 75
29 March 2010 warning
[40] With respect to Mr Blackney’s second written warning dated 29 March 2010 and the Hazard and Near Miss Report of the same date, Mr Muston could not reconcile the warning (which he did not give) for not reporting a near miss with a Hazard and Near Miss Report by the applicant. Mr Muston pointed to the comments on the warning that Mr Blackney did not think the incident warranted any attention. He agreed that, if a person provided a report of a hazard or a near miss on the same day, they should not be given a written warning. 76
4 June 2010 – final warning
[41] In terms of the final warning of 4 June 2010, Mr Muston explained that Mr Blackney had not been dismissed because he had given his word that he would never again do anything dangerous. It was said that Mr Blackney had been on a very slippery slope but he had been convinced not to dismiss him by the undertaking Mr Blackney had given. 77 He recalled that there were a number of safety breaches – talking on the phone while driving the forklift, handling glass without gloves or gauntlets, craning without a helmet on and being in the factory without gloves on.78 Mr Muston stated that Mr Blackney had signed the final warning to this effect. He recalled that Mr Blackney had not said at the time that he was wearing his gauntlets under his jumper. Mr Muston said that if Mr Blackney had changed his story it was something he could not control.79
[42] Mr Muston agreed that he was disgruntled with Mr Blackney in June 2010. He explained that this was due to Mr Blackney having been given a number of warnings with the problems clearly identified and then a final warning. It was said that the final warning clearly said that if there was a repetition of the behaviour, Mr Blackney could be dismissed. 80
[43] It was Mr Muston’s evidence that Mr Blackney was outspoken about safety issues but not more than others. He recalled that Mr Blackney had not spoken to him about safety issues in a specific or constructive way. 81
[44] The process that could lead to the dismissal of employee was outlined. It was indicated that Mr Muston would and did, consult with his boss, Mr Westwood, prior to deciding to dismiss an employee (Mr Blackney). 82 Mr Muston agreed that Mr Westwood wanted to make real, substantial and improvements to safety but did not recall him using the term “zero tolerance”.83
[45] Following Mr Blackney’s final warning, Mr Muston explained that he would, on an ad hoc basis, talk with him and see what he was doing. He recalled that Mr Blackney’s supervisor was also aware of the undertaking Mr Blackney had given. However, it was Mr Muston’s view that it was up to Mr Blackney to make the necessary behavioural changes which he had undertaken to do. He said that he could not look after him 24/7. Mr Muston also indicated that Mr Blackney appeared to understand issues of safety yet his behaviour did not reflect that. 84
[46] Mr Muston’s view was that it would not be possible to re-establish a working relationship with Mr Blackney if he was reinstated by the Tribunal. This was because he was not satisfied that Mr Blackney could work safety and believed he was a risk. He said that Mr Blackney had driven across a pedestrian crossing without stopping or looking. 85
Ms Skinner
[47] It was Ms Skinner’s evidence that when the CCTV footage was transferred to DVD, the date stamp changed from 21 October 2010 to 20 October 2010. 86
[48] With respect to Viridian’s policies, Ms Skinner stated that there was not a specific policy in relation to forklifts except for a small mention in the traffic management policy. She said that the company relied on the training employees received for their forklift licences. 87
October 2010 incident
[49] It was Ms Skinner’s evidence that the October 2010 incident also concerned Mr Blackney driving with a full load (whilst holding onto the gas bottle), thereby not having any control, and crossing a pedestrian crossing. 88 She confirmed that Mr Westwood’s strong view that there needed to be a change within Viridian in relation to safety. Ms Skinner explained that the company had changed its approach to safety and were communicating more regularly with employees on safety issues. She said there had been no change in relation to warnings to employees. It was indicated that, after any incident, the company talked to employees about it so that others would know not to do the same thing. She stated that Mr Muston spoke to all of the forklift drivers after the October incident.89
[50] With respect to whether or not Mr Blackney should or should not have been shown the CCTV footage prior to his dismissal, it was Ms Skinner’s view that, as he had admitted to the incident, there was no added value in showing it to him. 90 She stated that there was no dispute about when the incident occurred at the time of the dismissal meeting on 26 October 2010. Ms Skinner believed that the issue about the date of the incident had developed retrospectively.91
[51] Ms Skinner contended that there was a potential risk to Mr Blackney during the incident as, when he turned a corner, he had no ability to control the forklift or himself with one hand on the steering wheel and one hand on the gas bottle. As well, there was a potential risk to any pedestrians on the crossing. 92 Ms Skinner argued that the company should be pro-active in ensuring that risk has been minimised as much as possible. She did not believe that speed was an issue.
[52] It was Ms Skinner’s view that the flashing light on the DVD indicated that something was coming towards where Mr Blackney was driving. She conceded that, apart from the flashing light, there was nothing to indicate that it was a truck. Ms Skinner said that any kind of vehicle, including a forklift, could set off the flashing light. 93
29 March 2010 - warning
[53] In terms of the warning of 29 March 2010 given to Mr Blackney, Ms Skinner indicated that Mr Blackney had not reported the incident or near miss immediately. She stated that he had only produced the report after he had been spoken to/counselled about it. Ms Skinner said that the policy required the reporting to be immediate, otherwise, a disciplinary proceeding could take place. She queried whether Mr Blackney would have reported it if he had not been counselled. 94
June 2010 – final warning
[54] With respect to the warning of June 2010, Ms Skinner indicated that she was present at the meeting as a witness for the company. She recounted that her advice had been that there were a significant number of safety breaches but that termination was not required at that time and that Mr Blackney should be given one last chance. 95
[55] Ms Skinner indicated that the two forklift drivers she had spoken to, together with the written statements from others, confirmed that the forklift drivers would not carry gas bottles in the cabins. She explained that, as the reasons for Mr Blackney’s dismissal related to not only the gas bottle incident, the company had chosen not to provide the witness statements. It was stated that Mr Muston had spoken to these drivers as part of the investigation so therefore, separate witness statements were not necessary. She recounted that only one employee had refused to sign the witness statement, although verbally he had said that he would not carry the gas bottle in the way Mr Blackney had. It was said that the other employees had signed their statements. Ms Skinner indicated that the issue of being called as a witness was not talked about with these employees.
[56] Ms Skinner denied that Mr Westwood was taking a zero tolerance approach to safety. Rather, it was said that it was more focussed. She believed that the safety policies were adequate. She said that, as part of getting their forklift licence, forklift drivers are taught the safe use of a forklift. 96
[57] It was Ms Skinner’s view that Mr Blackney was outspoken about whatever issue was going on at the time. He was also said to have been outspoken when he had been spoken to about any of the safety incidents. 97
FINAL SUBMISSIONS
APPLICANT
[58] On behalf of Mr Blackney it was submitted that the termination of his employment was harsh, unjust or unreasonable.
Valid reason
[59] It was contended that there was no valid reason for Mr Blackney’s dismissal. The applicant stated that Mr Blackney had been dismissed because of the potential risk rather than the actual risk on the day of the incident. 98 It was stated that Mr Muston had referred to Mr Blackney’s accumulated risk. However, Mr Wetherell argued that this was based on a warning for failing to report a near miss which had been reported the same day. Further, Mr Muston’s evidence had been that if an employee reported a near miss the same day, it would not be grounds for a written warning.99
[60] Mr Wetherell submitted that Mr Blackney:
• Was terminated for driving a forklift about 1.5 metres wide, at a safe speed, through a space of more than 10 metres. 100
• Was wearing his seatbelt. 101
• Was performing an established practice of carrying a gas bottle in the cabin. 102
• Had control of the forklift during the incident and there were no pedestrians or vehicles in the vicinity at the time Mr Blackney drove the forklift out of door 59. 103
• Was able to see whether any pedestrians or vehicles were coming towards him when he exited door 59. 104
[61] It was argued that neither of the managers who witnessed the incident had attempted to stop Mr Blackney. Further, Mr Wetherell contended that Viridian had failed to replace the chain that blocked off the unsafe space for forklift drivers. 105 Ms Skinner’s evidence that there was no policy on the safe operation of forklifts was highlighted. It was stated that the company’s reliance on the forklift licence training was too simplistic and that the company should have made it clear as to what was safe practice in relation to the operation of a forklift.106
[62] Submissions were made regarding Mr Blackney’s passion about the importance of safety. It was said that the applicant, through his work as a member of the CFA, was determined to instil a safety culture at Viridian but felt unable to persuade management to change. Mr Wetherell stated that Mr Blackney became frustrated by management’s attitude. 107
[63] Mr Wetherell submitted that the company did not show either of the videos of the incident to Mr Blackney nor his union representatives. Also, it had not retained a copy of the video showing Mr Blackney loading the gas bottle on the forklift. Further, neither Mr Blackney nor his representatives were given an opportunity to challenge Mr Smith’s and Mr Patterson’s accounts of what had happened. 108
Dismissal was harsh
[64] It was argued that, since his dismissal, Mr Blackney had applied for about 235 jobs and was registered with 9 employment agencies. 109 Mr Wetherell indicated that, as Mr Blackney has been ineligible for Centrelink payments, there had been severe financial repercussions for him following his dismissal. The likelihood of his securing any paid employment was described as very low.110
[65] Mr Wetherell submitted that the gravity of Mr Blackney’s alleged misconduct did not warrant the semi-poverty that he now found himself in. He relied on VP Lawler’s decision in Quinlivan v Norske Skog Paper Mills (Australia) Ltd 111and contended that, even if a valid reason was found, the dismissal was harsh.112
[66] Finally, Mr Wetherell contended that, from Mr Blackney’s perspective, his dismissal was a personal and financial disaster. Further, it was stated that Mr Blackney faced the prospect of either long term unemployment or underemployment and that his safety reputation among future employers would be tarnished. 113
RESPONDENT
[67] It was submitted by Mr Ironmonger, on behalf of the respondent, that Mr Blackney had been dismissed because he had continually failed to perform his duties in a safe manner in accordance with his training and despite numerous warnings regarding safety issues, including a final warning in June 2010. 114
Valid reason
[68] The respondent contended that there was a valid reason for the applicant’s dismissal. The events that led to Mr Blackney’s dismissal were said to be:
• 2007 – file note and two warnings regarding using his phone while driving a forklift; driving a forklift at an unsafe speed and breach of the telephone policy. 115
• 31 July 2009 – failing to follow instructions of a supervisor and using a machine he was not trained on or assessed as competent to use. 116
• 22 January 2010 – written warning for not wearing gloves while pushing a trolley. 117
• 29 March 2010 – second written warning for failure to report a near miss incident and damage to company property. 118
• 1 June 2010 – verbal warning about talking on the phone while driving a forklift despite Mr Blackney’s assurances it would not occur again. 119
• 4 June 2010 – final warning for, 26 May 2010, handling glass without gloves or gauntlets and 30 minutes later, operating an overhead crane without a helmet. Mr Blackney had then threatened a supervisor for informing on him – he later apologised to the supervisor. Also, for being in the factory on 2 June 2010 without safety glasses on. 120
• 8 September 2010 – the applicant was spoken to by the State Manager and Production Manager about not wearing his seat belt while driving a forklift. 121
• 21 October 2010 – incident when the applicant drove a forklift with a large load whilst holding a gas bottle with one hand in a heavy pedestrian traffic area. Did not have adequate control of the forklift if anything went wrong. 122
[69] Mr Muston’s evidence regarding the investigation process was highlighted as was Ms Skinner’s about Viridian issuing warnings to employees for safety breaches. This was said to have been confirmed by Mr Wheeler. 123
When did the incident happen?
[70] Mr Ironmonger contended that the video showed that the incident occurred at about 12:45 pm on Thursday 21 October 2010, following the regular maintenance meeting which was held in factory 5. 124 Further, was stated that, in his Witness Statement, Mr Blackney had admitted that he drove that forklift in the manner displayed in the video.125 This was contrasted with the applicant’s evidence which was said to be confused and reliant on Mr Ross’ recollection.126
Procedural fairness
[71] The respondent rejected the contention that the applicant had not been afforded procedural fairness because he had not been shown the video. The company stated that Mr Blackney had agreed that he had done what was alleged. 127
Were the applicant’s actions unsafe?
[72] Viridian submitted that Mr Blackney’s actions were unsafe and that they put other employees at risk. Mr Ironmonger highlighted Mr Wheeler’s and Mr Ross’ evidence to this effect. It was asserted that Mr Blackney disregarded safe work practices when it suited him despite knowing the rules regarding the safe operation of a forklift. 128
[73] In concluding, Mr Ironmonger stated that there was a contested issue regarding whether or not it was custom for gas bottles to be carried in the cabin when there was a load on the forklift. He said that the parties had a different view and that Mr Muston’s evidence that this was not the custom and practice should be preferred. 129
[74] The respondent submitted that there was a valid reason for Mr Blackney’s dismissal due to his continued and habitual breaches of safety. The Full Bench decision in Parmalat Food Products Pty Ltd v Mr K Wililo 130was relied upon in support of this contention.131
CONCLUSIONS
[75] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[76] The application was made days after the termination which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by an enterprise agreement. 132 Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.
[77] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance. Therefore, what remains is to determine whether or not Mr Blackney’s dismissal was harsh, unjust or unreasonable (s.385(b)).
Was the dismissal harsh, unjust or unreasonable?
[78] In order to determine whether the termination of the Mr Blackney’s employment was harsh unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:
“Section 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
I will deal with each of these factors in turn.
Valid reason – s.387(a)
[79] There are two preliminary issues which need to be dealt with prior to considering whether or not there was a valid reason for Mr Blackney’s dismissal.
[80] The first issue concerns whether the CCTV footage is of Mr Blackney or another forklift driver. Neither Mr Blackney nor Mr Wheeler could identify the person who was driving the forklift. On the other hand, Mr Muston was satisfied beyond doubt that it was Mr Blackney on the basis of his posture and build.
[81] At the end of the day, it is my view that nothing critical turns on whether or not it was Mr Blackney who was captured on the CCTV driving the forklift. It had not been disputed by Mr Blackney, on the day of the incident nor at the meeting on 26 October 2010, that he had driven a forklift with a load on with an empty gas cylinder in the cabin along the route that the CCTV footage showed. 133 Therefore, it is not necessary for me to make a finding regarding the CCTV footage.
[82] The second issue concerns the date on which the incident occurred. The applicant contended that it happened on Friday 22 October 2010 whilst the respondent believed that it was Thursday 21 October 2010. Again, the actual date of the incident is not critical as Mr Blackney did not dispute that the incident occurred. However, it is appropriate to make a finding about when it is most likely that the incident occurred. Having considered all the material before me, it is most probable that the incident occurred on Thursday 21 October 2010. Mr Muston’s evidence was that Mr Smith had telephoned him after he had seen the incident when he was coming down the stairs at the end of a maintenance meeting. The date/time of the maintenance meeting would seem to provide an independent reference point for the date of the incident. In addition, the process and investigation that Mr Muston described he had followed after Mr Smith’s telephone call would seem to fit better into a Thursday 21 October 2010 scenario than Friday 22 October 2010 on a practical basis. It was Mr Blackney’s evidence that he was stood down when he came into work on Monday 25 October 2010. Mr Muston has said that he told Mr Blackney’s supervisor, Mr Papworth on Friday afternoon 22 October 2010, to stand Mr Blackney down when he next came into work – Monday 25 October 2010. Further, if the incident had occurred at lunchtime on Friday, Mr Muston would only have had half a day to do all of the investigative things he said that he did, prior to deciding to stand Mr Blackney down. One and a half days would seem more likely, thereby placing the incident on Thursday 21 October 2010. Further, I accept Ms Skinner’s evidence that, when she had burnt the CCTV footage onto the DVD, the date had changed from 21 October 2010 to 20 October 2010.
[83] Mr Blackney’s employment by Viridian was terminated effective Tuesday 26 October 2010 because he failed to perform his duties in a safe manner following from the gas bottle incident on 21 October 2010 and the prior warnings regarding safety. Although a lot of the evidence focused on the gas bottle incident, it was the company’s strong position that it was not solely on the basis of the gas bottle incident that the decision had been made. Rather, it was said that it was the October 2010 incident together with the series of previous safety breaches for which Mr Blackney had received warnings. 134
First written warning
[84] The safety incidents involving Mr Blackney in 2010 began on 22 January 2010, when he was given a first written warning for not wearing both his gloves whilst pushing a trolley with glass on it. Mr Blackney did not provide a response and refused to sign the warning. 135 It was Mr Blackney’s evidence that he had one glove on and that it was on the hand that was pushing the trolley with the glass on it. It was his view that he did not need both gloves on. Mr Blackney recalled that he had an argument with the supervisor about whether he should have both gloves on that he had “eventually” put both on.136 The first written warning noted the applicant’s “attitude when confronted.”137
Second written warning – 29 March 2010
[85] Mr Blackney received a second written warning on 29 March 2010 for failure to report a near miss and failure to report damage to company property. 138 The warning noted Mr Blackney’s explanation as “he did not think the incident warranted any attention.”139
[86] A Hazard and Near Miss Report 140 was lodged by Mr Blackney on 29 March 2010. It was Mr Blackney’s evidence that he had been fairly busy the morning of the near miss and had got the form. However, he hadhad to continue working and so planned to fill it in after smoko. However, he was taken to the office and given a written warning before he could complete the form. During cross examination, Mr Muston said that, if an employee provided a Hazard and Near Miss Report on the same day as the incident, they should not be given a written warning.141 It was Ms Skinner’s evidence that the reason Mr Blackney was given the warning was because he had not reported the incident immediately as required by the policy. She also said that Mr Blackney had only produced the Hazard and Near Miss Report after he had been spoken to and counselled.142
Final warning – 4 June 2010
[87] A final warning was given to Mr Blackney, dated 4 June 2010 which he signed, regarding his poor safety performance. It referred to breaches of safety protocols the previous week – driving a forklift while speaking on the phone (1 June 2010); handling glass without gloves or gauntlets on (2 June 2010); craning without a helmet on (2 June 2010) and being in the factory without safety glasses on. 143 The final warning also stated that if there was not a sustained and immediate improvement in his behaviour or if there was a repetition, he would be dismissed.144 It was also Mr Muston’s evidence that he had not dismissed Mr Blackney at this time because Mr Blackney had given him “his total word” that he would not do anything risky in terms of safety.145
[88] It was Mr Blackney’s contention that he had his gauntlets on under his jumper and that he was not wearing gloves as he was in a rush to find a particular sticker. 146 Further, it was Mr Blackney’s evidence that he had moved the very small end cap with the crane so that he could get enough room.147 With respect to the mobile phone, he stated that, as Chief Fire Warden, most of the calls he gets at work are related to this position.148 Finally, Mr Blackney explained that regarding the safety glasses issue, he had walked back into the factory for about 10 minutes to find out where an employee he was giving a lift to was.149
[89] It was argued by Mr Blackney that the union had challenged the final warning on his behalf and that the outcome had been that the final warning had been downgraded to a second written warning/final warning on safety. 150 Mr Ross’ evidence was that he had had an argument with Mr Muston about the glasses and the craning. He said that the discussions had concluded with Mr Blackney getting a warning.151
[90] Mr Muston’s evidence was that Mr Blackney had admitted, at the time, to not wearing gloves and gauntlets and had signed the warning. He said that, if Mr Blackney had now changed his story, there was nothing he could do about it. 152 Mr Muston does not appear to have been questioned about whether the final written warning had been downgraded. He referred to it in his evidence as a final written warning.153
[91] Taking all of the evidence on this issue into account, I have not been persuaded that the final warning of 4 June 2010 given to Mr Blackney was downgraded in any respect by the company.
Incident on 8 September 2010
[92] There was an incident on 8 September 2010 which resulted in a file note being given to Mr Blackney. 154 It stated that Mr Blackney had been observed by Mr Westwood and Mr Adamovskis getting on and off a forklift, and moving it, without putting on his seatbelt.155 Mr Blackney acknowledged that he had been told that he had not been wearing his seatbelt. He recalled that he had explained to Mr Adamovskis that it was safer and easier to drive the forklift without his seatbelt on as he had to get on and off the forklift a few times quickly.156
Incident on 21 October 2010
[93] Finally, there was the incident which occurred on 21 October 2010. The company had a number of safety concerns about the incident. The first was that Mr Blackney was driving a forklift with a load and carrying an empty gas bottle in the cabin. Mr Blackney was said to have been steering with one hand and holding the empty gas bottle with the other. Secondly, he had driven across a pedestrian crossing thereby taking a short cut between a pole and the factory. Mr Blackney then drove down a one way area the wrong way when there was a light flashing to indicate that a truck or forklift was coming towards him. It was argued by the company that this was high risk behaviour with a high risk of injury. Specifically, Mr Muston stated that, as Mr Blackney had only one hand to operate the steering wheel whilst the other was holding the gas bottle, he did not have normal control of the forklift. Further, it was said that he was driving in an area where pedestrians thought they would have had right of way 157 and then down a one way area the wrong way, when the light was flashing which indicated that something was coming towards him.158
[94] For Mr Blackney’s part, he did not dispute the facts of what had happened. 159 However, he disputed whether his behaviour had been unsafe and argued that it was custom and practice on the site to carry gas bottles in the cabins of forklifts. Mr Blackney told Mr Muston that there had been no danger to anyone as the result of his actions. He stated that there was no-one around – as shown in the CCTV footage.160 It was his view that there was a work practice that one tooted the horn when going in and out of the roller doors. He said that there was never a work practice to toot the horn when coming into a walkway area with clear visibility.161 Mr Blackney disputed that, where the chain was missing, it was a no-go area as there was no signage directing that forklifts should stop or give way to pedestrians.162 He told Mr Muston at the meeting on 26 October 2010 that, since the chain had been removed “everyone drives there”.163 Further, it was Mr Blackney’s opinion that, not having a free hand and having a gas bottle in the cabin, did not pose an additional risk as one only needed to have one hand on the steering wheel and there was always plenty of room to get out of a forklift in the event it rolled.164
[95] It was Mr Blackney’s evidence that, every day, the forklift drivers drove up the one way area against the flow of traffic. He said that, when one was at the roller door (gate 59), you could see right down to the backyard – visibility was very high. 165 This was corroborated by Mr Wheeler.166 With regard to carrying gas bottles in the forklift cabins, the evidence of Mr Blackney, Mr Wheeler167 and Mr Ross168 was that it was the custom and practice for forklift drivers to carry gas bottles in their cabins.
[96] On the other hand, Mr Muston and Ms Skinner refuted the proposition that it was common practice for forklift drivers to carry gas bottles in their cabins and believed it to be unsafe. 169
[97] On the basis of the material before me, it is possible to conclude that between January and September 2010, Mr Blackney was involved in a number of incidents regarding safety. These resulted in two written warnings (22 January 2010 and 29 March 2010), a verbal warning (1 June 2010), a final warning (4 June 2010) and file note (8 September 2010). These were followed by the incident on 21 October 2010. The fact that these incidents occurred was not disputed by Mr Blackney. It was Viridian’s contention that Mr Blackney was dismissed, not only for his unsafe behaviours on 21 October 2010 but also for the series of safety breaches that had occurred prior to then.
[98] Having considered all of the evidence before me, I find that there was, on balance, a valid reason for Mr Blackney’s dismissal. Mr Blackney, throughout the preceding 10 months, had been warned about his unsafe behaviour on four occasions. This is despite what is apparent from the evidence which is that Mr Blackney places a high priority on safe work practices and understands the company’s safety policies and procedures. On the other hand, account has been taken of the contentions on behalf of the applicant that his actions on 21 October 2010 were a reflection of the custom and practice on the site. It is also noted that there was no specific company policy on the safe operation of a forklift.
[99] Viewed objectively, Mr Blackney’s actions in carrying a gas bottle in the cabin of a forklift with a load cannot be said to be a safe practice. Mr Ross’ evidence to this effect is noted. 170 Further, crossing the pedestrian crossing and going the wrong way up the one way area could not be described as a safe practice on a forklift. Mr Wheeler’s evidence in this regard is also noted.171 When these actions are taken together with his safety record over the previous 10 months, it could not be said that Mr Blackney’s behaviour regarding safe work practices was acceptable. That the company gave him one more chance, based on his promise to work safely, rather than dismiss him in June 2010, is noted.
Notification – s.387(b)
[100] Mr Blackney was provided with a letter of termination. 172 However, it did not set out the reasons for his dismissal. During the meeting on 26 October 2010, Mr Muston put the allegations to Mr Blackney about the gas bottle incident. Mr Blackney had the opportunity to respond. At the end of the meeting, Mr Blackney was told that the company was not confident that he could make the right decisions regarding operating safely.173 Prior to this conversation, it appears that Mr Muston had previously discussed the incident with Mr Blackney on two occasions as part of his investigation.174
[101] Accordingly, I am satisfied that Mr Blackney was notified of the reasons for his dismissal.
Opportunity to respond – s.387(c)
[102] It was the applicant’s contention that there had not been procedural fairness as neither he nor his union representative had been shown either of the two segments of CCTV footage prior to his dismissal. Neither had a copy been retained of the second piece of footage which showed Mr Blackney putting the gas bottle into the forklift. Further, it was submitted that Mr Muston did not give Mr Blackney or his representative an opportunity to challenge Mr Smith’s and Mr Patterson’s account on which he had relied. Finally, it was argued that neither Mr Smith nor Mr Patterson had been involved in the disciplinary process which could have resolved the question of when the incident was said to have occurred. 175
[103] For its part, the company’s view was that there had been procedural fairness despite Mr Blackney not being allowed to see the video or question Mr Smith and Mr Patterson. This was because Mr Blackney had agreed that he had driven the forklift in the manner portrayed in the CCTV footage. 176
[104] Having considered all of the material before me, I am the opinion that Mr Blackney and his union representative should have been shown both pieces of CCTV footage prior to the decision being made to dismiss him. It was immaterial that Mr Blackney had agreed that he had done what it was alleged he had done. During the hearing, the respondent tendered the footage and relied on it as part of its defence of the application. Secondly, it does not appear that, during the investigation, Mr Blackney was given a formal opportunity to respond to Mr Smith’s and Mr Patterson’s allegations. They do not appear to have provided written statements which were then given to Mr Blackney for his response. It seems that Mr Muston, during his investigation, had a number of conversations with both Mr Smith, Mr Patterson and Mr Blackney about the incident on 21 October 2010. However, the only formal part of the process appears to have been the meeting on 26 October 2010 when the allegations were put to Mr Blackney verbally.
[105] Taking all of this into account, I am not satisfied that the applicant was given a proper opportunity to respond to the reasons for his dismissal. In not being shown the CCTV footage nor having the allegations put to him in a formal sense, I have not been persuaded that the process followed by Viridian accorded Mr Blackney procedural fairness.
Support person – s.387(d)
[106] Mr Blackney was represented by Mr Ross, a union official, at the meeting on 26 October 2010. Mr Ross had also been advised on 22 October 2010 that there had been an incident involving Mr Blackney that the company was very concerned about.
Previous warnings regarding the unsatisfactory performance – s.387(e)
[107] As set out in paragraph 97, Mr Blackney received two written warnings, one verbal warning, a final warning and a file note in the period from January 2010 to September 2010. The warnings related to failures by Mr Blackney to perform his work in a safe manner.
[108] Therefore, I am satisfied that Mr Blackney had been warned about his unsatisfactory safety performance prior to this dismissal.
Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)
[109] No submissions were made by the parties about the impact of the size of the business on the procedures followed in effecting the dismissal.
[110] The company has a Human Resources (HR) Co-ordinator who was involved in providing advice regarding whether or not to dismiss Mr Blackney. Therefore, it could not be said that the procedural deficiencies were the result of the absence of a dedicated HR function.
Any other matters – s.387(h)
[111] It was submitted on behalf of Mr Blackney that account should be taken of the financial and personal toll that the dismissal has had on Mr Blackney. This included his current state of semi-poverty together with his very poor prospects of securing any paid work let alone a full time, permanent position. It was argued that, for these reasons, the termination of the applicant’s employment was harsh, despite the Tribunal potentially finding that there was a valid reason for Mr Blackney’s dismissal.
[112] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on fine balance, that the termination of Mr Blackney’s employment was not harsh, unjust or unreasonable. On one hand, there was a valid reason for the applicant’s dismissal. On the other hand, the applicant was not afforded procedural fairness on the basis set out above and the consequences of his dismissal have been severe. However, in balancing all of these factors, the applicant’s continued failure to perform his work safely despite assurances to Mr Muston that he would, together with the high priority Mr Blackney placed on safe work practices and understanding of the company’s safety policies and procedures, outweigh, by a fine margin the procedural deficiencies and the negative impact of the dismissal on the applicant.
[113] It therefore follows that, pursuant to s.385 of the Act, Mr Blackney was not unfairly dismissed. Accordingly, Mr Blackney’s application is dismissed. An order to this effect will be issued separately.
COMMISSIONER
1 Exhibit R4
2 Transcript PN 144
3 Ibid PN 145
4 Ibid PN 155
5 Ibid PN 146 and 154
6 Ibid PN 155
7 Ibid PN 180 - 181
8 Ibid PN 182 - 183
9 Ibid PN 191 - 192
10 Ibid PN 195 - 196
11 Ibid PN 197 - 200
12 Ibid PN 201 - 207
13 Ibid PN 209
14 Ibid PN 156 - 166
15 Ibid PN 173
16 Exhibit A2
17 Transcript PN 215 - 217
18 Ibid PN 218 - 223
19 Ibid PN 226 - 228
20 Exhibit A7 at Annexure AB7
21 Transcript PN 229 - 237
22 Ibid PN 239 - 242
23 Ibid PN 274 - 276
24 Ibid PN 320 - 321
25 Ibid PN 282 - 283
26 Exhibit A1
27 Transcript PN 178 - 179
28 Ibid PN 319
29 Ibid PN 243 - 266
30 Ibid PN 267 - 268
31 Ibid PN 269 - 270
32 Ibid PN 283 - 285
33 Ibid PN 296 - 303
34 Ibid PN 313 - 315
35 Ibid PN 460 - 469
36 Ibid PN 653 - 659
37 Ibid PN 474 - 475
38 Ibid PN 627 - 632
39 Ibid PN 477 - 486 and 521
40 Ibid PN 492 - 512
41 Ibid PN 559 - 574
42 Ibid PN 522
43 Ibid PN 662 - 663
44 Ibid PN 525 - 526
45 Ibid PN 528 - 531
46 Ibid PN 531 and 551
47 Ibid PN 539 - 545
48 Ibid PN 578 - 582
49 Ibid PN 583 - 586
50 Ibid PN 600 - 605
51 Ibid PN 607 - 608
52 Ibid PN 637 - 652
53 Ibid PN 687 - 690
54 Ibid PN 716 - 718
55 Ibid PN 720 - 724
56 Ibid PN 726 - 730
57 Ibid PN 747
58 Ibid PN 748 -750
59 Ibid PN 752
60 Ibid PN 753 - 754
61 Ibid PN 755 - 756
62 Ibid PN 815 and Exhibit R2 at paragraph 4
63 Transcript PN 815
64 Ibid PN 926 - 932
65 Ibid PN 816
66 Exhibit R2 at paragraph 7 - 8 and Transcript PN 823
67 Transcript PN 817 - 818
68 Ibid PN 820 - 821 and Exhibit R2 at paragraphs 8 - 9
69 Transcript PN 812 - 814 and 858 - 860
70 Ibid PN 823 and 858
71 Ibid PN 861 - 868
72 Ibid PN 870 - 875
73 Ibid PN 876 - 879
74 Ibid PN 880 - 889
75 Ibid PN 890 - 893
76 Ibid PN 835 - 848
77 Ibid PN 909
78 Ibid PN 897
79 Ibid PN 898 - 890
80 Ibid PN 900 - 901
81 Ibid PN 902 - 907
82 Ibid PN 912 and Exhibit R2 at paragraph 13
83 Transcript PN 913 - 915
84 Ibid PN 916 - 918
85 Ibid PN 824 - 825
86 Ibid PN 951 - 960
87 Ibid PN 970 - 974
88 Ibid PN 1030 - 1031
89 Ibid PN 1032 - 1040
90 Ibid PN 992
91 Ibid PN 993 - 994
92 Ibid PN 995 - 998
93 Ibid PN 1003 - 1009
94 Ibid PN 975 - 987 and Exhibit R3 at paragraph 17
95 Transcript PN 1010 - 1014
96 Ibid PN 1041 - 1046
97 Ibid PN 1047 - 1050
98 Written Final Submissions on behalf of the applicant dated 17 March 2011 at paragraphs 1 and 18
99 Ibid at paragraphs 19 - 20
100 Ibid at paragraph 3
101 Ibid at paragraph 4
102 Ibid at paragraph 6 and Exhibit A6 at paragraph 13
103 Written Final Submissions on behalf of the applicant dated 17 March 2011 at paragraphs 9 - 10
104 Ibid at paragraph 12
105 Ibid at paragraphs 11 and 13
106 Ibid at paragraphs 14 - 16 and Exhibit A6 at paragraph 12
107 Written Final Submissions on behalf of the applicant dated 17 March 2011 at paragraphs 21 - 25
108 Ibid at paragraphs 28 - 31
109 Ibid at paragraphs 32 - 33
110 Ibid at paragraphs 32 - 36
111 [2010] FWA 883
112 Written Final Submissions on behalf of the applicant dated 17 March 2011 at paragraphs 40 - 42 and Exhibit A6 at paragraph 15
113 Ibid at paragraphs 43 - 46 and Exhibit A6 at paragraph 15
114 Written Final Submissions for the Respondent dated 22 March 2011 at paragraph 1
115 Ibid at paragraph 3
116 Ibid
117 Ibid
118 Ibid
119 Ibid
120 Ibid
121 Ibid
122 Ibid
123 Ibid at paragraph 5
124 Ibid at paragraph 7
125 Ibid at paragraph 6
126 Ibid at paragraph 7
127 Ibid at paragraph 8
128 Ibid at paragraph 9
129 Ibid at paragraph 10
130 [2011] FWAFB 1166
131 Written Final Submissions for the Respondent dated 22 March 2011 at paragraph 10
132 Exhibit A6 at paragraph 3(b)
133 Exhibit A7 at paragraphs 47 - 65, Exhibit A1 and Transcript PN 993
134 Transcript PN 1022
135 Exhibit A7 at Attachment AB1
136 Ibid at paragraphs 20 - 22
137 Ibid at Attachment AB1
138 Ibid at Attachment AB2
139 Ibid
140 Exhibit A2
141 Transcript PN 848
142 Ibid PN 977
143 Exhibit A7 at Attachment AB3
144 Ibid
145 Transcript at PN 897 and 909
146 Exhibit A7 at paragraph 30
147 Ibid at paragraph 31
148 Ibid at paragraph 35
149 Ibid at paragraph 34
150 Transcript PN 220 - 228
151 Ibid PN 712 - 715
152 Ibid PN 897 - 899
153 Ibid PN 901
154 Exhibit A7 at Attachment AB4
155 Ibid
156 Transcript PN 241
157 Ibid PN 880 - 882
158 Ibid PN 1003 - 1009
159 Ibid PN 191 and 257 - 276
160 Ibid PN 283
161 Ibid PN 283
162 Ibid PN 284 - 285
163 Exhibit A1 at page 2
164 Exhibit A7 at paragraph 54 and Transcript PN 297 - 300
165 Transcript PN 321 - 321 and 192 - 209
166 Ibid PN 559 - 575
167 Ibid PN 447 - 480, 521 - 524 and 631
168 Ibid PN 725 and Exhibit A9 at paragraphs 11 and 12
169 Transcript PN 890 - 892 and 1019 - 1021
170 Ibid PN 720 - 724
171 Ibid PN 607 - 608
172 Exhibit A7 at Attachment AB5
173 Exhibit A1
174 Transcript PN 816 and 818 and Exhibit A7 at paragraphs 49 - 58
175 Written Final Submissions on behalf of the applicant, dated 17 March 2011 at paragraphs 28 - 31
176 Written Final Submissions for the Respondent, dated 22 March 2011 at paragraph 8
Printed by authority of the Commonwealth Government Printer
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