Mr Andrew Goodlock, Mr James Hennessy and Mr Colin Harris v Nestlé Australia Limited T/A Nestlé Purina Pet Care

[2011] FWA 6266

[2011] FWA 6266

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Goodlock, Mr James Hennessy and Mr Colin Harris
v
Nestlé Australia Limited T/A Nestlé Purina Pet Care
(U2011/953, U2011/954 and U2011/991)

COMMISSIONER CARGILL SYDNEY, 22 SEPTEMBER 2011

Termination of employment.

[1] This decision arises from applications by Mr A Goodlock, Mr J Hennessy and Mr C Harris (the applicants) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of their employment by Nestlé Australia Limited t/as Nestlé Purina Pet Care (the respondent or the company). Mr Goodlock and Mr Hennessy were both dismissed on 9 May 2011 and their applications were lodged with Fair Work Australia (FWA) on 10 May 2011. Mr Harris was dismissed on 17 May 2011 and his application was lodged with FWA on 18 May 2011.

[2] The matters were dealt with by an FWA conciliator but did not settle. They were heard by me in Orange on 16 and 17 August 2011. It was agreed that the matters would be heard together. The matters proceeded by way of hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399 including the views of the parties as reflected in the conciliator’s reports.

[3] The applicants were represented by Mr Mueller, Senior Industrial Officer with the National Union of Workers (NUW), an organisation of which each of them are members. The respondent was represented by Mr De Celis, its Employee Relations Manager.

[4] The following witnesses gave evidence in the applicants’ cases:

Mr C Harris Applicant. His witness statement was marked Exhibit Applicant 1. His oral testimony is at PN20-481 of Transcript;

Mr J Hennessy Applicant. His witness statement was marked Exhibit Applicant 2. His oral testimony is at PN493-761 of Transcript;

Mr A Goodlock Applicant. His witness statement was marked Exhibit Applicant 3. His oral testimony is at PN763-1181 of Transcript;

Mr J Hazzard Employee of the respondent. His witness statement was marked Exhibit Applicant 4. His oral testimony is at PN1182-1321 of Transcript;

Mr N Livingstone Organiser with the NUW. His witness statement was marked Exhibit Applicant 5. His oral testimony is at PN1322-1359 of Transcript;

Mr C Ellis Employee of the respondent. Mr Ellis was not required for cross-examination. By agreement his witness statement was entered into evidence. It was marked Exhibit Applicant 6.

[5] The following witnesses gave evidence on behalf of the respondent:

Mr A Watson Technical Coordinator employed by the respondent. His witness statement was marked Exhibit Respondent 11 and his oral testimony is at PN1388-1535 of Transcript;

Mr S Williams Shift Manager employed by the respondent. His witness statement was marked Exhibit Respondent 12. His oral testimony is at PN1544-1742 of Transcript;

Mr A Giumelli Engineering Manager employed by the respondent. His witness statement was marked Exhibit Respondent 13 and his oral testimony is at PN1743-1821 of Transcript;

Mr S Hill Human Resources Manager employed by the respondent. His witness statement was marked Exhibit Respondent 14 and his oral testimony is at PN1822-2016 of Transcript;

Mr J Meintjes Factory Manager employed by the respondent. His witness statement was marked Exhibit Respondent 15 and his oral testimony is at PN2027-2198 of Transcript.

[6] An affidavit sworn by Mr De Celis was entered into evidence and marked Exhibit Respondent 16. It was in response to and only dealt with items sought to be produced by an order for production taken out on behalf of the applicants.

[7] There was extensive evidence and much material provided in these proceedings. Although I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.

FACTS AND EVIDENCE

[8] Each of the applicants was employed at the respondent’s factory located at Blayney, in rural New South Wales. Mr Harris began his employment with the company in November 1992. He was employed as a fitter. For several years prior to his dismissal he also occupied the position of Mechanical Work Coordinator which made him the senior member of the workshop crew and responsible for work allocation to fitters in that crew. He was the equal most senior employee on weekend shifts.

[9] Mr Hennessy commenced his employment with the company in June 2000. He was engaged as an electrician. Mr Goodlock’s employment with the company began in March 2002. For a period of four years prior to that he worked as a contractor at the factory. Mr Goodlock was also engaged by the respondent as an electrician.

[10] There was no evidence of any previous disciplinary issues in relation to any of the applicants. Mr Meintjes agreed that they were all good employees.

[11] There are two groups in the maintenance area of the factory. The workshop crew works a rotating day shift roster, 7am-7pm, seven days a week and is mainly responsible for programmed maintenance. The shift crew works rotating 12 hour shifts across 24 hours per day, Monday to Friday, and is principally responsible for carrying out running repairs. This crew is divided into three groups, gold, white and green, each consisting of two electricians and two fitters.

[12] The Gold Shift was rostered on the night shift in question, 29 to 30 April 2011. Mr Hazzard was the only regular member of that shift who was working that night. Messrs Harris, Hennessy and Goodlock were filling in to cover the absence of the other three members who were on leave or taking an RDO.

[13] Mr Harris usually worked on day shift. The shift in question was his third fill-in night shift in a row that week. Mr Hennessy worked a rotating shift roster. The shift in question was also his third night shift in a row that week. It was Mr Goodlock’s second successive night shift that week.

[14] Mr Livingstone provided evidence about the physical effects of working 12 hour shifts which he had also done when he previously worked with the respondent. His evidence is that it was exhausting, with a feeling of continual tiredness especially on night shifts and particularly during the early hours of the morning. Mr Livingstone’s evidence is that it was not rare for employees to “nod off” while at work.

[15] The shift during which relevant events took place began at 7pm on 29 April and finished at 7am on 30 April. It was a busy shift with more breakdowns than usual. Mr Hennessy’s evidence is that, because he was working with a different group of people to those he usually worked with, communication was more difficult than on his regular shift.

[16] The main break of the shift was taken later than usual that night, around 12.30am. The three applicants and Mr Hazard played cards together in the canteen. Mr Williams was also in the canteen for some of the time. His evidence is that the applicants and Mr Hazzard all left together around 1am.

[17] There are two workshops at the factory. The one that was the scene of relevant events on the night in question is the Maintenance Workshop. At the time it contained three workbenches and some workstations which housed desks and computers. It also contained a separate machine shop, a welding bay and a corner office with two desks. The workshop had two main doors, the “canteen” door and the “factory” door. There was also a door leading to an area where additional offices were being constructed.

[18] A diagram of the workshop is at Exhibit Respondent 9. It is also Attachment 4 to Mr Giumelli’s statement, Exhibit Respondent 13. Various marked-up copies of the diagram are contained as attachments to the witness statements of Messrs Watson, Williams and Hill, Exhibits Respondent 11, 12 and 14. Mr Harris provided a separate diagram which he had prepared, Attachment A to Exhibit Applicant 1. The main difference between Mr Harris’s diagram and the others is the position of the workbenches relative to the exit from the machine shop into the workshop.

[19] Mr Harris cannot recall whether he walked back from the canteen to the workshop with any or all of the others. Neither can he recall which door he used to enter the workshop. Mr Hennessy’s evidence is that he walked back to the workshop by himself and entered through the south or canteen door. Mr Goodlock’s evidence is that he went to the factory to collect his tools, put them away and then walked through the factory. He had a cigarette in the smokers’ hut before entering the workshop through the canteen door. Mr Hazzard’s evidence is that he walked back to the workshop with someone else and thinks it was Mr Harris and Mr Hennessy. He entered through the canteen door.

[20] Mr Hazzard’s evidence is that, after entering the workshop, he went to the corner office, logged onto the computer and proceeded to work until Mr Watson entered the office sometime later. Mr Hazzard says that the only person he spoke to during this period was Mr Hennessy. They had a brief work-related discussion through the window between the office and the area where Mr Hennessy was sitting. This occurred about 10 or 15 minutes after Mr Hazzard entered the office.

[21] Mr Hazzard’s evidence is that he is not sure if Mr Harris was in the workshop. He says that Mr Harris did not enter the office whilst he was there. Mr Hazzard was not questioned about whether he was aware of Mr Goodlock’s presence in the workshop.

[22] Mr Hennessy’s evidence is that, after he entered the workshop, he sat down at a computer terminal in an area separated by barriers from the rest of the area. He proceeded to carry out monitoring duties. He had the brief discussion with Mr Hazzard referred to in paragraph 20 above. Sometime later he heard Mr Goodlock ask if there was “anything on” to which he replied that it was “all ok”. Mr Hennessy also heard Mr Harris’s voice at some point.

[23] Mr Hennessy’s evidence is that, at around 2am, he felt fatigued and uncomfortable and his legs were tired. He pulled up the chair next to him and put his feet on it. Shortly afterwards, he pulled up a third chair and lay down on all three. His head was below the level of the top of the desk and his eyes were possibly closed. Mr Hennessy agreed that this was not conducive to his monitoring duties. His evidence is that he is not sure if he went to sleep.

[24] Mr Goodlock confirmed his exchange with Mr Hennessy referred to earlier. His evidence is that there was a lull in work at that stage. Further, he was very tired and fatigued and one of his feet, which had been the subject of an earlier operation, was hurting. Mr Goodlock looked into the area where the new offices were being constructed and noticed bags of insulation batts. He brought one of these bags into the workshop. Mr Goodlock could not recall whether he carried or dragged the bag which was a bright fluro pink. A photo of a similar bag was entered into evidence as Exhibit Respondent 10. The uncontested evidence of Mr Williams is that the bag was approximately 1.5 metres long, 50-60 cms wide and 50-60 cms deep.

[25] Mr Goodlock placed the bag on the floor adjacent to one of the workbenches. He agreed that it was in a position which was concealed from the windows on the factory side of the workshop. Mr Goodlock’s evidence is that the batts made a comfortable resting place but did not form a bed as such. Mr Goodlock lay down on the batts. He placed a jumper partially over his eyes to protect them from the light. His evidence is that he did not go to sleep. Mr Goodlock estimates that he lay on the batts for about 10 minutes.

[26] Mr Harris’s evidence is that, after entering the workshop, he used one of the computer terminals to log in various tasks that he had previously undertaken. He also measured machine parts for reordering. He needed to go to the machine shop to obtain measuring devices for that purpose. Mr Harris’s evidence is that his route to and from the machine shop was to the side of the workbench closest to the canteen door rather than between the workbenches. He specifically denies the evidence of Mr Williams who says that he observed Mr Harris walk out of the machine shop and between the workbenches.

[27] Mr Harris’s evidence is that he did not see the insulation batts on which Mr Goodlock was lying or Mr Goodlock himself, neither did he hear Mr Hennessy. Mr Harris says that, other than his trips to the machine shop, he was sitting at the same computer desk until Mr Watson and Mr Williams entered the room. Mr Harris’s evidence is that he did not see any insulation batts in the corner of the machine shop. He denies lying down on any such batts.

[28] Each of the applicants denies knowing what the other two applicants were doing during this period of time. Each of the applicants also denies that their actions were organised or coordinated.

[29] At around 2am Mr Williams and Mr Watson went to the maintenance workshop to carry out some safety audits. They attempted to enter through the door on the factory side of the workshop. The door was locked. Mr Watson opened it with his keys. Each of the applicants denies locking the door or knowing that it was locked although Mr Goodlock says he could have accidently knocked it. It is Mr Hill’s evidence that his inspection of the locking mechanism indicated that the door could only be locked without a key by pressing forcefully on a button located above the latch. Mr Giumelli gave evidence to similar effect. It seemed to be generally agreed that it was uncommon for the door to be locked.

[30] As they entered the workshop Mr Watson saw Mr Hennessy lying down on the chairs. He pointed towards him and Mr Williams approached Mr Hennessy. Mr Williams’ evidence is that Mr Hennessy was lying on his back, his eyes were closed and he appeared to be asleep. He says that he stood close to Mr Hennessy to see if he would stir. He didn’t, so Mr Williams nudged him with his clipboard. Mr Williams says that Mr Hennessy’s response was incoherent and he appeared to be waking up.

[31] Meanwhile, Mr Watson walked further into the workshop. He observed Mr Goodlock lying on the insulation batts. They made eye contact and Mr Watson gestured to Mr Goodlock to get up. Mr Goodlock’s evidence is that Mr Watson was looking over the partition. Mr Watson’s evidence is that he was looking past the partition dividing the workbenches. He says that he wouldn’t have been able to see over the partition because of its height.

[32] Mr Watson’s evidence is that he proceeded to walk to the entrance of the machine shop. He estimates that he took “a good step” in through the doorway and was about a metre inside. Mr Watson’s evidence is that he looked to the right and saw Mr Harris lying in the corner on insulation batts. He could see his head but not his face. Mr Watson says that he could see that Mr Harris was getting up from the batts. Mr Watson then returned to have a brief discussion with Mr Goodlock. Mr Goodlock says that he did not see Mr Watson go to the machine shop.

[33] Mr Williams’ evidence is that, whilst he was standing with Mr Hennessy, he observed Mr Goodlock stand up between the workbenches. At around the same time he saw Mr Watson walking in the vicinity of the entrance to the machine shop. Mr Williams’ evidence is that he didn’t see Mr Watson disappear entirely into the machine shop. Mr Williams then observed Mr Watson move towards the welding bay and saw Mr Harris come out of the machine shop, walk between the workbenches and into the corner office.

[34] Mr Williams approached Mr Goodlock, saw the insulation bag and asked Mr Goodlock where it had come from. Mr Goodlock said that it had been there all day. Mr Williams walked to the entrance of the machine shop. He observed another pack of batts which looked the same as the one he had seen between the workbenches. It was in the right hand corner of the room. There was a box at one end and a rolled up coat at the other end. Mr Williams concluded that it looked like a makeshift bedding arrangement. He commented that it was Mr Harris’s bed. Mr Williams agreed that he linked it with Mr Harris because he had seen him walking out of the machine shop.

[35] Mr Williams’ evidence is that, as he exited the machine shop, the batts between the workbenches were in full view directly in front of him. It is Mr William’s evidence that the colour and size of the packs of insulation batts and the fact that they were clearly out of place, both between the workbenches and in the corner of the machine shop, made them highly visible and instantly recognisable.

[36] Mr Williams and Mr Watson completed the safety audit in the workshop. They left through the canteen door. It is the evidence of both that, as they were leaving, Mr Goodlock told them to call next time before they came down. It is also Mr Watson’s evidence that, as they were leaving the room, he mentioned to Mr Williams that he had seen Mr Harris lying down in the corner of the machine shop. Mr Williams’ evidence is that the first time he specifically heard Mr Watson mention this was at a meeting on 4 May 2011.

[37] It is Mr Hazzard’s evidence that, in the interval between Mr Williams and Mr Watson leaving the workshop and him receiving a call to another job, he, Mr Goodlock and Mr Harris had a discussion about what had occurred. Mr Goodlock’s evidence is that he couldn’t really recall if he had talked about the incident. Mr Harris was not questioned about this issue.

[38] Mr Williams and Mr Watson were not rostered on again until 4 May. Shortly after they began work that day they reported the events of the shift of 29/30 April to the then Engineering Manager. Mr Williams’ evidence is that he had thought about informing the company about the incident on his days off but believed it was preferable to do this face to face so that he could answer any questions about it.

[39] After speaking to the Engineering Manager, Mr Williams and Mr Watson met with Mr Giumelli to inform him of what had taken place. They then met with Mr Hill and again went through the relevant events. Later that day Mr Hill asked each of them to provide a written summary. Mr Watson’s summary is Attachment 1 to Exhibit Respondent 11 and Mr Williams’ summary is Attachment 1 to Exhibit Respondent 12. Also on 4 May Mr Hill informed Mr Meintjes that there had been an incident which needed further investigation.

[40] On 5 May Mr Hill considered the information that he had been given. It is his evidence that he decided to meet separately with all four members of the maintenance crew. He says that this was to seek their responses to what Mr Williams and Mr Watson had told him. Mr Giumelli was present at each of the interviews. His role was principally that of a note taker although his evidence is that he took part in the later discussions which ultimately led to the decision to dismiss each of the applicants.

[41] The meetings with Mr Hennessy, Mr Hazzard and Mr Harris took place on 6 May. Mr Goodlock was on a RDO that day. He was interviewed on 9 May. Each of the applicants and Mr Hazard was accompanied to their respective meeting by a union delegate. Mr Giumelli’s notes, both handwritten and typed versions, are attached to his witness statement, Exhibit Respondent 13. He was not cross-examined about the accuracy of the notes.

[42] At each of the meetings Mr Hill put a summary of Mr Williams’ and Mr Watson’s versions of relevant events to the applicants and to Mr Hazzard and sought their responses. At the conclusion of the meetings on 6 May, Messrs Hennessy, Hazzard and Harris were stood down on full pay until the following week pending further investigation. Mr Harris was in fact about to proceed on previously approved leave.

[43] Later on 6 May Mr Meintjes was provided with an update on the interviews. Still later on that day Mr Hill, Mr Giumelli, Mr Williams and Mr Watson went to the workshop. Mr Williams and Mr Watson pointed out where they had seen each of the applicants and Mr Hazzard. Mr Hill and Mr Giumelli inspected the locking mechanism of the factory door. Attachments 6A, 6B, 6C and 6D to Exhibit Respondent 13 are photos of the door and specifically of the lock.

[44] As indicated earlier, the respondent met with Mr Goodlock on 9 May. During the meeting he apologised to the company for his actions. His evidence is he that felt ashamed of what he had done. Following this meeting Mr Hill and Mr Giumelli met with Mr Meintjes. It was decided that there should be further meetings with Messrs Goodlock, Hennessy and Harris before any further disciplinary action would be considered. Although it is not entirely clear from the evidence it appears to be about this time that it was decided that no further action was warranted in respect of Mr Hazzard as it was accepted that he had been working during the relevant period of time.

[45] Later on 9 May separate meetings were held with Mr Goodlock and Mr Hennessy. Each was accompanied by Mr Livingstone and four NUW delegates. Also present at the meetings were Mr Meintjes, Mr Hill and Mr Giumelli. Mr Giumelli continued in his role as note taker. Again, his unchallenged handwritten and typed notes are attached to his witness statement, Exhibit Respondent 13.

[46] In the meeting with Mr Goodlock Mr Hill summarised the relevant events as he understood them. He asked some questions by way of clarification. Mr Livingstone and Mr Meintjes also participated in the discussion. The meeting adjourned. The company representatives discussed the issues and concluded that dismissal was the appropriate outcome. The meeting reconvened and Mr Meintjes informed Mr Goodlock of the outcome.

[47] The meeting with Mr Hennessy took place later that day and followed a similar format to the earlier meeting with Mr Goodlock. During the meeting Mr Hennessy stated that he realised that his behaviour had been inappropriate and that he was embarrassed by it. There was a break in the meeting during which the respondent’s representatives decided to terminate Mr Hennessy’s employment. He was informed of the decision by Mr Meintjes.

[48] Mr Harris returned from his period of leave on 17 May. Upon his return a meeting was held. The company representatives were the same as at the meetings on 9 May. Mr Harris was accompanied by Mr Livingstone and two union delegates. Mr Hill provided an overview of the material he had gathered. He and Mr Meintjes asked questions and Mr Harris responded. Mr Livingstone also participated in the discussion. Following a break in the meeting Mr Harris was informed that his employment was being terminated.

[49] The evidence is that, in each instance, Mr Hill and Mr Giumelli participated in the discussions about the incident and possible disciplinary actions. However, Mr Meintjes was the ultimate decision maker. His evidence is that the reasons for each dismissal were explained at the conclusion of each of the final meetings. They were also set out in the letters of termination sent to each of the applicants, Attachment 2, 4 and 6 to Exhibit Respondent 15. The letters are also attached to Mr Hill’s witness statement, Exhibit Respondent 14.

[50] The letters to Mr Goodlock and Mr Hennessy are in similar terms and set out similar reasons for the dismissals, in particular, that the sleeping arrangements appeared to have been highly organised and premeditated. The letter to Mr Harris is more detailed and, in addition to the “premeditation” reason, the company concludes that Mr Harris had not been honest in his responses which compounded the gravity of his conduct.

[51] It is Mr Meintjes’ evidence that the reasons for all three dismissals were “fairly similar” but that in Mr Harris’s case more weight was given to his dishonesty. Mr Meintjes’ evidence is that an important issue for him was whether an employee had made a mistake, for example by falling asleep on the job, or whether they had intentionally taken steps to sleep such as preparing something to lie on.

[52] Each applicant received pay in lieu of notice as well as payment in respect of outstanding leave entitlements.

[53] Since their dismissals each applicant has gained some employment. Mr Harris’s evidence is that he earns less in his new employment than he did while with the respondent. Mr Hennessy’s evidence is that he is on probation in his new employment. He also earns less than he did when he was employed by the respondent. Mr Goodlock’s evidence is that he has had to work longer hours in his present employment to achieve the same remuneration he received from the respondent. All three applicants seek reinstatement.

[54] Mr Hill gives evidence about the steps which the respondent has taken to fill the vacant positions which were previously occupied by the applicants. As at the date he signed his witness statement, 5 August 2011, the company was about to make an offer in respect of one electrician position. One fitter was at the pre-employment medical stage of the recruitment process. The respondent is reviewing whether to fill the Co-ordinator’s position formerly held by Mr Harris.

[55] Since the dismissals Mr Watson has been the subject of some very unsavoury and anonymous actions at the workplace. His evidence is that he feels that someone is trying to intimidate him because he reported what he saw in the workshop. It is not suggested that any of the applicants are responsible for the actions. Mr Meintjes has addressed employees about the matter.

SUBMISSIONS ON BEHALF OF THE APPLICANTS

[56] Written submissions on behalf of each of the applicants were provided prior to the proceedings. Mr Mueller relied on those outlines and also made oral submissions.

[57] Mr Mueller noted that, although all three matters had been heard together, when considering whether any of the dismissals are harsh, unjust or unreasonable it is necessary to consider the individual circumstances of each respective applicant. The issue is not whether the decision to dismiss was reasonably open to the respondent but whether any of the dismissals was unfair. It is submitted that, in any event, the respondent had erred in deciding to dismiss.

[58] Mr Mueller noted that the terminations had been for misconduct and with immediate effect. He submitted that this placed a heavy burden upon the respondent to justify the dismissals.

[59] Mr Mueller conceded that not all of the actions of the applicants had been justified. However, dismissal was too harsh a penalty in the circumstances. Mr Mueller submitted that it could not be concluded that any of the applicants had disregarded any essential conditions of their contracts of employment or intended to do so in the future.

[60] Mr Mueller referred to Mr Hennessy’s letter of termination. He noted that, despite the reference to an allegation that Mr Hennessy had been asleep, there was no positive finding to that effect. Indeed, the respondent had conceded that none of the applicants had been found to have been asleep. Mr Mueller questioned why, in such circumstances, a different disciplinary outcome had not been reached.

[61] It is submitted that there is no valid reason for the dismissals of either Mr Goodlock or Mr Hennessy. Each of them had made a mistake, one isolated act of misjudgement in otherwise unblemished careers with the respondent. Neither of them was involved in any premeditated or highly organised plan. Neither of them had locked the door to the workshop.

[62] Mr Goodlock had apologised to the company for his actions. Mr Mueller noted that, although Mr Goodlock had initially said that he had not brought the batts into the workshop, he had later corrected this statement.

[63] Mr Mueller submitted that the allegation of dishonesty against Mr Hennessy could not be made out. It was based upon the fact that he didn’t see the batts and didn’t know what the others were doing. That could not form a valid reason for the dismissal. There was no proper basis on which it could be suggested that Mr Hennessy had any reason to have withheld information from the respondent.

[64] Mr Mueller submitted that reinstatement was the only proper remedy for Mr Hennessy and Mr Goodlock. Mr Meintjes had acknowledged that they had been good employees with no previous issue about their trustworthiness. There was no evidence that the employment relationship had broken down. Indeed, in Mr Goodlock’s case, there was evidence of a positive ongoing relationship; paragraph 68 of Mr Meintjes’ witness statement, Exhibit Respondent 15.

[65] It is submitted that Mr Goodlock’s dismissal had been disastrous for him. It had a detrimental effect on his reputation and had been a very traumatic event for him. In the light of the serious adverse consequences on Mr Goodlock it should be concluded that his dismissal was harsh.

[66] Mr Mueller noted that, in Mr Harris’s case, it appeared that there were conflicts in the evidence. He submitted that these were capable of being reconciled. Mr Mueller submitted that neither Mr Watson nor Mr Harris had lied. Mr Watson had seen Mr Hennessy and Mr Goodlock lying down. He then saw the batts, formed an expectation and thought he saw Mr Harris lying down. This expectation was reinforced by Mr Williams’ comment that the batts in the corner must have been Mr Harris’s bed. Mr Mueller submitted that the evidence showed that there had not been sufficient time for Mr Watson to have seen anything in the machine shop. Further, the cupboard would have restricted his view into the corner.

[67] Mr Mueller noted that Mr Harris had been consistent under questioning in both interviews with the company and under cross examination. Mr Mueller referred to Attachment 7 to Exhibit Respondent 17 and noted that it showed that Mr Harris had been logged into the computer system between 1.14 and 1.32 and then again between 2.15 and 2.41. This was clearly evidence of his work activity at those times.

[68] Mr Mueller noted that the respondent had relied upon much circumstantial evidence to establish Mr Harris’s guilt when they could have relied on Mr Watson’s evidence only. Mr Mueller submitted that this indicated that the respondent had doubts about the strength of Mr Watson’s evidence. Mr Mueller submitted that it could not be concluded that Mr Harris had been lying down.

[69] Mr Mueller submitted that, even if I was satisfied that there was a valid reason for each of the terminations, nevertheless they were harsh. Mr Harris’s dismissal was unjust because he was not guilty of the alleged misconduct and unreasonable because it was based on inferences which were not reasonably open.

[70] Mr Mueller submitted that all three dismissals were harsh. The applicants were all longstanding employees who had lost their jobs because of one incident. Further, it is not entirely clear why they were dismissed. The suggestion that there had been some type of collusion between the applicants was really just a hunch which could not be properly tested.

[71] Mr Mueller submitted that, in the circumstances, warnings, even final warnings, would have been the appropriate outcome. It would have sent a clear message to employees. Reinstatement would correct the wrong done to all three applicants and would be practicable. Mr Mueller noted that there had been no evidence that reinstatement was not possible.

[72] Mr Mueller submitted that the respondent had conceded that both Mr Goodlock and Mr Hennessy had acknowledged their wrongdoing and had apologised. He referred to Mr Livingstone’s evidence about the effects of fatigue and sleep deprivation. Mr Mueller submitted that this had led to poor judgement and carelessness but did not indicate that the applicants did not wish to be bound by their employment contracts.

[73] Mr Mueller submitted that it was essential that reinstatement should be ordered in each case. The applicants also seek orders for continuity of service and lost remuneration.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[74] A written outline of submissions was provided prior to the hearing. Mr De Celis relied on that outline and also made oral submissions.

[75] Mr De Celis noted that many of the facts in these matters had been uncontested: the workshop’s location in a discrete part of the factory; the low amount of supervision on night shift; the rarity of the workshop door being locked; the fact that it cannot be accidentally locked; Mr Hennessy and Mr Goodlock lying down with the former possibly asleep; and, the meetings with the applicants in which all material facts were put to them and in which they were supported by their union representatives.

[76] Mr De Celis submitted that there was really only one material fact which was in contest: whether Mr Harris had been lying down in the corner of the machine shop or whether he had been working as usual. He submitted that Mr Watson had been a truthful and highly credible witness whose evidence had been clear and simple. Mr De Celis noted that it had not been put to Mr Watson that he had not had time to have seen Mr Harris in the machine shop. He submitted that it was highly significant that Mr Williams had seen Mr Harris walk out of the machine shop and had seen the batts in the corner. This supported Mr Watson’s evidence and should lead to the conclusion that Mr Harris had been lying down.

[77] Mr De Celis submitted that Mr Harris’s version of events was implausible. He had claimed not to have heard Mr Goodlock or Mr Hennessy or seen the batts either between the workbenches or in the corner of the machine shop. This was unlikely. Mr De Celis submitted that Mr Harris’s evidence about his route to and from the machine shop was at odds with Mr Williams’ evidence of what he had observed.

[78] Mr De Celis referred to Attachment 7 to Exhibit Respondent 17 and noted that it showed a period of inactivity by Mr Harris between 1.32am and 2.15am. Mr De Celis submitted that this period was significant and suggested that Mr Harris had been lying down during this time.

[79] Mr De Celis submitted that, contrary to Mr Mueller’s submission, Mr Harris had not been consistent in his version of events. This was particularly so in relation to the time of the incident, Mr Harris’s activities on the computer system and the location at which Mr Harris had been measuring the parts he was ordering.

[80] Mr De Celis submitted that Mr Hennessy’s evidence was at odds with that of others who gave evidence for the applicants. He had denied walking back to the workshop with Mr Hazzard and Mr Harris. This called into question his evidence about his lack of knowledge of what the others were doing. Mr De Celis submitted that Mr Hennessy had initially informed the company that he had walked through the factory before settling down.

[81] Mr De Celis submitted that Mr Williams’ evidence should be preferred to that of Mr Hennessy in relation to whether the latter had been asleep on the chairs. He submitted that, on the basis of Mr Williams’ observations, I should find that Mr Hennessy had probably been asleep. Mr De Celis also submitted that Mr Hennessy’s claim had altered; his initial application referred to one chair, in the hearing it was three chairs.

[82] Mr De Celis submitted that the respondent had drawn a number of inferences from the material before it and those were open to it on the evidence. Those inferences include: one of the applicants had locked the factory door to aid concealment and the others were complicit in this; the decisions to lie down on makeshift beds had been premeditated and organised; and, the applicants’ evidence about this issue was implausible and dishonest. In this regard Mr De Celis referred to and relied upon the Full Bench decision in Smith and others v Moore Paragon Australia Ltd [PR915674] @ para 42. In particular, Mr De Celis noted the Full Bench’s conclusion that drawing an inference is part of a fact-finding process.

[83] Mr De Celis submitted that, on the basis of the evidence, I should draw an inference that one of the applicants had been responsible for locking the door. I should also conclude that the applicant’s actions in lying down at the same time had been premeditated and organised. Mr De Celis submitted that it should also be inferred that, on balance, each applicant had probably been aware that the other two were also lying down.

[84] It is submitted that there are valid reasons for each of the dismissals; the applicants had made conscious decisions to prepare beds; their dishonesty during the investigation process; and, the destruction of the necessary trust and confidence between the respondent and the applicants as a result of the applicants’ actions.

[85] Mr De Celis submitted that “sleeping on the job” decisions were relevant. He referred in particular to the following: Macken’s Law of Employment, Chapter 6 (Macken); Construction, Forestry, Mining and Energy Union v Kodak (Australasia) Pty Ltd [1994] IRCA 156; Goldsmith v Spotless Services Limited [2004] NSW IR Comm 365; Portland Smelter Services Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [Print L5891]; Nguyen v Woodroffe Industries Pty Ltd [Print Q8777]; and Gu v Colgate Palmolive Pty Ltd[2007] AIRC 381. Mr De Celis submitted that these cases established that conduct of the sort undertaken by each of the applicants amounted to a valid reason for dismissal.

[86] Mr De Celis referred to and relied upon the Full Bench decision in Telstra Corporation Limited v Streeter [2008] AIRCFB 15 as authority for the proposition that dishonesty during an investigation process may of itself be a valid reason for dismissal.

[87] Mr De Celis submitted that the applicants had been given the opportunity to respond to each of the allegations made against them. Reference in this regard was made to the decision of Re Bodo Schaale v Hoechst Australia Limited [1993] FCA 125. Each of the applicants had access to a support person. As the dismissals had not related to performance the question of prior warnings was not relevant. Reference was made to the decision of Omopoulos v United Parcel Service Pty Limited [2002] NSW IR Comm 1070 as also being relevant to this issue.

[88] Mr De Celis submitted that there were no mitigating circumstances in the case of any of the applicants which would outweigh a finding of valid reason and procedural fairness such that should lead to a conclusion that the dismissals were harsh. The applicants’ length of service cannot be used as a shield to justify their conduct.

[89] If, contrary to the respondent’s position, it is concluded that any of the dismissals was harsh, it is submitted that reinstatement would not be an appropriate remedy. There has been a significant loss of trust and confidence in the applicants and the rostering arrangements mean that the applicants would, at times, be working under the direction of Mr Williams and Mr Watson. Mr De Celis submitted that the working relationship between Mr Harris and Mr Watson should not be restored.

[90] Mr De Celis also submitted that the acts of intimidation against Mr Watson are relevant to a consideration of the environment into which the applicants would be reinstated.

[91] If compensation was to be considered it is submitted that the misconduct of each of the applicants should be taken into account and should lead to a significant discount. The amounts paid to the applicants upon termination should also be considered.

[92] Mr De Celis also provided copies of two decisions about which he made no specific submissions: Australia Meat Holdings Pty Ltd v McLauchlan [Print Q1625] and Parmalat Food Products v Wililo[2011] FWAFB 1166.

SUBMISSIONS IN REPLY ON BEHALF OF THE APPLICANTS

[93] Mr Mueller submitted that it was a curious approach for the respondent to invite an inference that Mr Hennessy had been sleeping when it had made no positive finding to that effect.

[94] Mr Mueller rejected suggestions that the applicants’ actions had been premeditated. He submitted that the respondent’s investigation had been undertaken with a view to rejecting any possible innocent explanation for the actions of any of the applicants. Mr Mueller submitted that the respondent had failed to afford any goodwill to the applicants which they had earned. The company had also unreasonably exaggerated any inconsistencies in the applicants’ cases.

[95] Mr Mueller submitted that what had happened to Mr Watson after the dismissals was irrelevant. It had no probative value and had been brought to prejudice the applicants. Mr Mueller submitted that there was no evidence that there would be any difficulties for Mr Watson if the applicants were reinstated and any such suggestion was highly speculative.

[96] Mr Mueller submitted that the quote from Macken was not proper authority. He noted that each of the “sleeping on the job” decisions turned on their own circumstances and there was no automatic outcome. Mr Mueller referred to and relied upon the decision of Barclay v Nylex Corporation Pty Ltd [PR932226].

CONCLUSIONS

[97] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those 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.”

[98] As will have been apparent from paragraph 1 of this decision each of the applications was made within the period required in subsection 394(2). There is no issue that each of the applicants is a person protected from unfair dismissal. Paragraphs (c) and (d) of subsection 396 have no relevance in the present matters.

[99] Section 385 provides that a person has been unfairly dismissed if FWA 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.”

[100] Paragraph (a) is clearly met in relation to each of the applicants. Paragraphs (c) and (d) have no relevance.

[101] In order to decide whether the dismissal of any of the applicants was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are as follows:

“(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.”

[102] The first matter which must be taken into account is whether there was a valid reason for each or any of the dismissals. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Tribunal and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373.

[103] The reasons relied upon for the termination in each of these matters relate to the alleged misconduct of each of the applicants. In this regard I have to determine for myself whether the alleged misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the terminations: King v Freshmore (Vic) Pty Ltd [Print S4213].

[104] I shall first consider the alleged misconduct of Mr Harris. The first question is whether he was lying down in the corner of the machine shop. I note that, although Mr Watson’s evidence is that he did not see Mr Harris’s face, it was never put to him that he might have been mistaken as to the identity of the person he saw lying down.

[105] I have noted Mr Mueller’s submission that the evidence of Mr Harris and Mr Watson about this issue may be capable of being reconciled on the basis that Mr Watson thought he saw Mr Harris because he expected to. This does not seem likely. Indeed Mr Watson specifically denied that was the case. In my view there is a direct conflict between the two witnesses. That conflict needs to be resolved.

[106] In this regard I prefer the evidence of Mr Watson. I found him to be a credible witness who gave clear and firm evidence. There is nothing before me to suggest that Mr Watson had any reason to have invented his evidence or that he had any axe to grind with Mr Harris, or either of the other applicants for that matter. Indeed, as can be seen from the distasteful actions to which he has been subject since the dismissals, Mr Watson has maintained his evidence at some personal cost. I have no reason to disbelieve him.

[107] It follows from my acceptance of Mr Watson’s evidence that I find Mr Harris was lying down on the pack of insulation batts in the corner of the machine shop. It does not matter who placed the batts in that position. It further follows that I find that Mr Harris was not honest with his employer during the investigation process at least about this aspect of his conduct. These findings amount to a valid reason for his dismissal.

[108] I also note that I find it difficult to accept that, regardless of the route taken by Mr Harris to and from the machine shop and regardless of which diagram of the workshop is more accurate as to the position of the workbenches, he did not observe the batts on which Mr Goodlock was lying. The colour, size and location of the batts would have rendered them highly visible. Mr Harris’s initial denial that he had seen the batts is perhaps understandable as he did not want to cause trouble for Mr Goodlock. However his persistence with his story even after being informed that Mr Goodlock had “owned up” undermines his credibility.

[109] I now turn to Mr Hennessy. It is not necessary to decide whether or not Mr Hennessy was asleep. He was lying down over the length of three chairs with his head beneath the level of the desk. Mr Hennessy conceded that such a position was not conducive to carrying out his monitoring tasks. Clearly it was not conducive to undertaking any of his other, more physically active, duties either.

[110] Mr Hennessy had pulled the three chairs together and had then deliberately placed himself in a prone position where he was unable to do his work. I agree with Mr Meintjes. This is a very different situation to the case where a person falls asleep at their desk or workstation. One is accidental. The other is a deliberate and conscious decision to lie down. In my view Mr Hennessy’s conduct amounts to a valid reason for dismissal.

[111] I now turn to Mr Goodlock. It is not disputed that Mr Goodlock consciously took the bag of insulation batts from the area where the new offices were being constructed and placed it on the floor of the workshop in a position where it could not be viewed from outside. He then lay down on the batts, shielding his eyes from the light. Each of these actions was deliberate and premeditated. Mr Goodlock was not honest with Mr Williams when he was asked where the bag had come from. I acknowledge that Mr Goodlock later corrected his position on this issue. Nevertheless I consider that Mr Goodlock’s conduct gives rise to a valid reason for dismissal.

[112] Each of the applicants was informed of the allegations against them as well as the reasons for dismissal. Each was provided with the opportunity to respond. Each of the applicants was represented and supported by an NUW delegate at their initial meeting and by Mr Livingstone and a number of delegates at the final meeting.

[113] Paragraph (e) of section 387 is not relevant as none of the applicants were dismissed for performance reasons.

[114] I have had regard to paragraphs (f) and (g). It is Mr Hill’s evidence that there are approximately 220 employees at the Blayney factory. The respondent overall is a very large company. It has dedicated human resource management specialists. I am satisfied that these factors were reflected in the procedures which were followed in effecting the terminations.

[115] There are several matters I wish to consider under paragraph (h). The first is the lengthy periods of service of each of the applicants and the fact that none of them had any previous disciplinary issues. It is also relevant to note Mr Meintjes’ evidence that each applicant had been a good employee in whom he had previously had a high level of trust.

[116] The second matter is the evidence about the effects of working 12 hour shifts and the fact that Messrs Hennessy and Goodlock were fatigued. Allied to this is Mr Goodlock’s evidence concerning the pain in his foot. I also note in this regard that Mr Goodlock testified that he had not sought approval to go to the “medical room” or to go home.

[117] The third matter I wish to consider is that Mr Goodlock apologised for his actions and Mr Hennessy conceded that his conduct had been inappropriate.

[118] In all of the circumstances in each of these respective cases and having taken into account the factors in section 387 and my findings thereon, again in each respective case, I have determined, on balance, as follows:

• The dismissal of Mr Goodlock was not harsh, unjust or unreasonable;



• The dismissal of Mr Hennessy was not harsh, unjust or unreasonable;



• The dismissal of Mr Harris was not harsh, unjust or unreasonable.

[119] It follows from these determinations that none of the three dismissals was unfair. Each of the applications is dismissed.

[120] It should be noted, that in deciding these matters, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the applicants and the respondent as provided is section 381(2) of the Act.

COMMISSIONER

Appearances:

S Mueller, of the National Union of Workers for the applicants

J De Celis on behalf of the respondent

Hearing details:

Orange
2011
August 16 and 17.

Printed by authority of the Commonwealth Government Printer

<Price code J, PR514528>