Mr Anthony Mora v Qube Pty Ltd T/A Qube Ports
[2013] FWC 6971
•13 SEPTEMBER 2013
[2013] FWC 6971 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Mora
v
QUBE Pty Ltd T/A QUBE Ports
(U2012/16511)
DEPUTY PRESIDENT ASBURY | BRISBANE, 13 SEPTEMBER 2013 |
Application for unfair dismissal remedy - arbitration.
BACKGROUND
[1] Anthony Mora applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy following his summary dismissal on 27 November 2012, by QUBE Pty Ltd t/a QUBE Ports (QUBE). QUBE is the principal car, bulk and general stevedoring service provider in Australia. Mr Mora was employed by QUBE as a stevedore at its operation at the Port of Brisbane, from December 2008.
[2] On 15 November 2012, Mr Mora was one of two forklift operators, engaged in discharging steel “H-Beams” from a vessel, the Penguin Arrow. Two employees performing the role of stagehands, Mr Daniels and Mr Travers, were assisting Mr Mora and the other forklift operator, Mr Brady. During the unloading process, one of the H-Beams fell from the tines of the forklift operated by Mr Mora, and caused a serious injury to Mr Daniels’ ankle.
[3] This incident was considered by QUBE to be a serious breach of a safety procedure entitled Safe Work Management System (SWMS) - Moving Cargo from the Wharf. QUBE submits that the breach of the safety procedure was that Mr Mora lost visual contact with a stagehand. QUBE also submits that Mr Mora was aware of the procedure and had been trained in it and had committed to comply with safety policies and the procedure.
[4] Notwithstanding the manner in which the reason for dismissal was articulated in QUBE’s submission, there is evidence that the managers who investigated the incident and decided to dismiss Mr Mora, were of the view that Mr Mora operated the forklift while he did not have visual contact with Mr Daniels or in circumstances where Mr Daniels had not signalled Mr Mora to operate the forklift and that Mr Mora admitted to ignoring the relevant SWMS.
[5] Mr Mora contends that there was no valid reason for his dismissal, and that it was harsh, unjust or unreasonable. Mr Mora also contends that there was no basis for the conclusion that he was operating the forklift when the beam fell and that there was a failure to consider other explanations for the incident. Further, Mr Mora maintains that he did not admit to engaging in misconduct.
[6] The issues for determination are:
● What was the reason for dismissal;
● Whether Mr Mora engaged in the conduct alleged by QUBE so that there was a valid reason for his dismissal; and
● Whether the dismissal was unfair.
PROCEDURAL MATTERS
[7] The application was made on 9 December 2012, within the time then required in s.394(2) of the Act. Mr Mora is a person protected from unfair dismissal as defined in s.382 of the Act. QUBE is not a small business and the dismissal was not a redundancy.
[8] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties. Permission was granted for both parties to be legally represented on the basis that it would enable the matter to be dealt with more efficiently, taking into account its complexity. Mr Mora was represented by Mr Quinn of Carne, Reidy Herd Lawyers and QUBE was represented by Ms Brattey of Herbert Smith Freehills.
EVIDENCE
Witnesses
[9] Evidence in support of the application was given by Mr Mora 1 and:
● Mr Corey Travers, Stevedore employed by QUBE; 2
● Mr Jacon Parry, Waterside Worker employed by QUBE; 3 and
● Mr Trevor Munday, Deputy Branch Secretary of the Queensland Branch of the Maritime Union of Australia. 4
[10] Mr Noel Timmins, Team Leader for QUBE gave evidence under an attendance notice issued on behalf of Mr Mora.
[11] Evidence for QUBE was given by:
● Ms Lorraine Harrison, Health and Safety Manager of QUBE Ports Pty LTd; 5
● Mr Kenneth Gregory Jackson, Operations Manager at QUBE’s Port Logistics Operations at Fishermans Island in the Port of Brisbane: 6
● Mr Greg Nugent, Queensland State Manager of QUBE. 7
Workplace health and safety
[12] The witnesses for QUBE emphasised that safety is a significant issue in the maritime industry, and is paramount at a port where mobile equipment, people and cargo regularly interact particularly where much of the cargo is heavy and weighs up to two tonnes.
[13] QUBE has obligations under the Workplace Health and Safety Act 2011 (Qld) which include providing a work environment without risk to the health and safety of its workers by developing and maintaining an effective safe system of work. To meet these obligations, QUBE has implemented policies and procedures including:
● Safe Work Method Statements (SWMS);
● Employee handbook providing for a zero harm environment;
● Regular training on safety procedures including a five day induction program; and
● Toolbox talks before each shift where employees are told about the vessel they are working on, their role for the shift and any particular hazards involved.
[14] Mr Mora’s terms and conditions of employment were governed by his contract of employment and the P&O Automotive & General Stevedoring Pty Ltd & Maritime Union of Australia Union Collective Agreement (Brisbane) 2008 (the Agreement). The Agreement provides that policies apply to employees and that parties will ensure compliance with WH&S legislation and QUBE’s safety policies and procedures.
[15] On 24 November 2008, Mr Mora signed a letter of employment agreeing that he would observe QUBE’s policies and procedures and that the Enterprise Agreement and the safety policies and procedures referenced in it, formed part of his terms and conditions of employment and his employment contract.
[16] In February 2010, an employee of AAT (as QUBE was then known) was killed when a Forklift ran over him. After this fatality an SWMS entitled “Moving Cargo from the Wharf” was introduced and rolled out to all employees at the Port of Brisbane and Hamilton sites. Ms Harrison’s evidence was that training sessions on the new SWMS were held during Toolbox Talks, and relevant information including diagrams depicting various scenarios used in the training sessions were placed on display in amenities rooms and rooms where Toolbox Talks are conducted. Employees were asked to sign a Document Approval Sheet when they were satisfied that they understood the new SWMS and Mr Mora signed this on 4 May 2010. 8
[17] In March 2011, QUBE rolled out a Zero Harm Policy. That Policy has a goal of zero harm to employees which means zero injuries, zero tolerance of safety breaches and zero tolerance of risk behaviours. The roll out of the Zero Harm Policy included employees attending a four hour training course conducted by Ms Harrison and Mr Jackson, and undergoing a competency test at the end of the training. Mr Mora attended a training course in relation to the Zero Harm Policy on 18 March 2011.
[18] Mr Mora signed an employee commitment form on 18 March 2011 on receiving the Employee Handbook, indicating his understanding that compliance with the Handbook is an essential term of his employment. 9 In cross-examination Mr Mora agreed that he had attended training about the Zero Harm Policy and understood the concept, and that there would be serious consequences which may include termination of employment for failure to follow the policy.
Discharging H-Beams
[19] Facts relating to the process of discharging H-Beams from a ship are not in dispute. H-Beams (also termed I-Beams or RSJ) are secured in bundles of between 1 and 5, by wire slings at each end of the bundle. They are discharged from vessels in loads of 3 to 6 bundles, by a gantry crane which lowers the bundles onto steel girders known as gluts.
[20] At the time the incident occurred, the practice was to position the gluts on the wharf to suit the direction in which the cargo was being discharged - either parallel or at a 90 degree angle to the vessel. Where the gluts are positioned at a 90 degree angle to the vessel the cargo is landed on them parallel to the vessel, and where the gluts are parallel the cargo is landed at a 90 degree angle. The length of the cargo determines whether it is discharged parallel to vessel or at a 90 degree angle with shorter cargo being landed parallel to the vessel. The term “slop ship” is used to describe the orientation of cargo landed at a 90 degree angle to the vessel.
[21] It appeared from Mr Jackson’s evidence that normally gluts are positioned so that cargo is landed parallel to the vessel. Mr Perry said that when longer cargo, such as the beams in the present case, is discharged at a 90 degree angle to the ship, the walkway may be partially or completely blocked and there is little or no space for the stagehand working at that end of the beams to step back from the load. This means that stagehands are required to work from the front of the load.
[22] There is a defined work area marked by a barrier of “witches hats” where the crane lands the cargo onto the gluts. The distance between the gluts is sufficient to allow a forklift to operate - approximately 3.5 to 4 metres. There is a defined safe area outside the work area. While the crane is lifting a load from the vessel, the forklift operator and two stagehands who assist the operator, wait in the safe area in a small portable shed called the “humpy”.
[23] The stagehands enter the work area when the crane has the cargo suspended at about waist height and guide the load onto the gluts, so that the bundles of H-Beams land next to each other. The stagehands unhook the load from the crane so that the next load can be collected. The load is moved from the gluts by the forklift. The stagehands signal the forklift operator to enter the work area or “stage” for this purpose. The extent to which the forklift operator is required to assist the stagehands in the work area, depends on the position of the wire slings holding the bundles and the position of the gluts.
[24] Before it can be moved, wires holding the bundles together must be removed so that the bundles can be separated. Depending on the placement of the bundles, the wire slings holding them together may be on the outside or the inside of the gluts. The wires are rigid and some effort is required to remove them.
[25] If the wire slings are on the outside of the gluts, the forklift operator assists the stagehands by picking up all the bundles except the last one, and then reverses the forklift placing each bundle on the gluts one at a time so that they are resting on the gluts with a gap between each bundle. The stagehands guide the forklift operator to lift the bundles. The forklift then exits the work area and the stagehands remove the slings. The stagehands slide the slings off the ends of the bundles while they are resting on the gluts. The forklift operator then re-enters the work area to remove the load and take it to the lay down area.
[26] If the bundles are placed on the gluts so that the wire slings are on the inside of the gluts, the slings cannot be slid off the ends of the bundles unless the bundles are elevated by the forklift. In these circumstances, the stagehands signal the forklift operator to enter the work area and the forklift operator lifts the bundle closest to the forklift so that it is raised to a height of between three and six inches above the gluts. When the bundle is raised and stationary, the forklift operator signals to the stagehands that the bundle is ready, by waving or beeping the horn.
[27] The stagehands then move between the tines of the forklift and the gluts and remove the wire slings from each bundle. When the stagehands have removed the wire slings from the first bundle, they step about one metre away and signal to the forklift operator that they are clear and the bundle can be moved. The forklift operator then reverses the forklift so that there is a gap between the first bundle and the rest of the bundles, and lowers the first bundle back on to the gluts. This process is repeated until the slings have been removed from each bundle. Mr Timmins said that some forklift operators start with the bundle closest to them but the process of separating the bundles is easier if it is started with the bundle furthest away from the forklift operator.
[28] In order for this task to be performed efficiently, the stagehands and the forklift are required to be in the safe work area at the same time. This allows the stagehands to assist the forklift driver to place the tines of the forklift under the load. Without that assistance, the forklift driver cannot see whether the tines are properly under the load, and the ability of the driver to see under the bundles decreases as each bundle is separated.
[29] Mr Jackson said in his evidence that it is sometimes necessary for stagehands to climb onto the load or the gluts, so that they are able to remove the slings and that when they are on the load or the gluts they should not give signals to the forklift driver.
[30] When the slings have been removed from all of the bundles, the stagehands return to the humpy and the forklift driver lifts all of the bundles so that they are stacked together on the tines of the forklift, and transports them from the work area to the lay down area.
[31] Mr Jackson and Ms Harrison maintained that the stagehands are in charge of the work area, and that the forklift driver is not permitted to move the forklift unless given a signal by the stagehand that indicates that it is safe to do so. Mr Jackson said that stagehands are persons who “own” the safe work area in the period when a load is removed from a ship and placed onto the working area of the dock and the forklifts can only come into the safe work area when signalled by the stagehands.
[32] There was also evidence that there is no uniform method by which signals are required to be given by stagehands and forklift drivers and that it is up to the individuals concerned to establish the method of communication. Mr Timmins said that employees use a variety of signals depending on factors such as whether they have a “dogman’s” ticket and when they obtained the ticket, as the signals used by holders of that ticket have changed.
[33] Mr Parry said that the standard method for the stagehands to direct the forklift driver is by hand signal as there is no two way radio provided and it is too noisy for the stagehands to give verbal instructions. Sometimes the stagehands will shout a direction at the same time as giving a signal, but most of the time it is too noisy to hear any shouted direction, and the forklift driver has to rely on the hand signal.
[34] Mr Parry also said that no stagehand is designated as being in charge, or more senior and the two stagehands both give directions to the forklift driver who follows either or both of them as appropriate. In relation to the requirement for the forklift driver to have visual contact with stagehands, Mr Parry said that:
● When he is driving a forklift he does not move unless he can see the stagehands, but it is not uncommon to momentarily lose sight of them if they move out of his field of vision while he is concentrating on putting down a load, or in blind spots such as behind the mast of a forklift or the load.
● There is a significant blind spot in the 32 tonne forklifts because the cabin is off centre to the left so there is a blind side to the right of the cabin and the load caused by the mast of the forklift.
● He would normally stop if he realised he had lost sight of a stagehand, but sometimes these things happened too quickly to stop - for example when he is in the middle of lowering a load - and he would continue to lower the load while continuing to scan for the stagehand and might finish lowering before confirming that he could not see the stagehand.
[35] Under cross-examination, Mr Parry maintained that when he is operating a machine with a stagehand at either end, it is hard to keep your eye on both of them and sometimes the machine has blind spots.
SWMS - Moving Cargo from the Wharf
[36] There have been several iterations of the SWMS - Moving Cargo from the Wharf. The version that was in effect on 15 November 2012 was issued on 11 May 2012 and is numbered Version 6.0. 10
[37] At step 5 of that SWMS, dealing with unhooking cargo on the wharf, there is a requirement that once the cargo has been unhooked [from the crane] that employees return to the humpy (safe zone) unless they are required to direct the forklift so as to remove slings.
[38] Step 6 of the SWMS covers machine picking up cargo, and indicates that potential hazards are stagehands being struck by the forklift or passing work traffic or the collision of forklifts with the work area. The SWMS provides:
“In the event that the forklift needs a stagehand to assist in removing the load:
● The forklift remains stationary;
● The forklift operator signals to the stagehand to move towards the load;
● The forklift operator and stagehand remain in constant visual and verbal contact;
● Once the obstruction has been removed the forklift remains stationary until the stagehand has returned to the safe zone”
[39] The original version of the SWMS differed in that it referred to the “humpy” instead of the “safe zone”.
[40] Appended to Ms Harrison’s witness statement was a Toolbox Talk Checklist for the day shift on Thursday 15 November 2012, when the incident occurred. The Checklist refers to an SWMS named: “STEEL PLATE H-BEAM”. 11 Under cross-examination, Ms Harrison said that this reference was included because on that shift, employees were unloading steel plate and H-Beams from different hatches and would have to understand safe method of work and be trained in the Steel Plate and H-Beam SWMS.
[41] The SWMSs in relation to the Steel Plate and H-Beam were not in evidence, although there was reference in a number of documents to the requirement that when lifting H-Beams the forklift operator and the stagehands must remain in verbal and visual contact. Ms Harrison also agreed that the SWMS procedures were not referred to in the Handbook, but said that this was because it was a national handbook and would not include specifics about site procedures.
[42] Mr Parry appended a copy of the original SWMS released in 2010 to his statement and said he had not seen that document prior to these proceedings. Mr Parry learned how to undertake the H-Beam unloading process by following other employees. Mr Parry also said it is not possible for a forklift operator to remain in verbal contact with the stagehands because the area is too noisy and it is not possible for the forklift to remain stationary while the stagehands are in the work area.
The incident on 15 November 2012
[43] The evidence about the incident on 15 November 2012 can be summarised as follows. Mr Mora was rostered on day shift commencing at 7.00 am. When Mr Mora commenced driving the forklift, the cargo had been discharged parallel to the vessel, because it was 10 metres in length and the total weight of the load was relatively light. These beams were unloaded so that the wire slings securing each bundle were on the outside of the gluts.
[44] After three or four loads of 10 metre beams were discharged from the vessel, the work area had to be altered so that longer beams could be discharged. The longer beams were 16 to 18 metres in length, and the gluts were re-positioned on the wharf, so that the beams could now be landed at a 90 degree angle to the vessel (slop ship) because of their length. The work area was made larger by means of the witches hats being moved.
[45] Mr Mora changed the 16 tonne forklift he had been driving to move the lighter beams, for a 32 tonne forklift, after discussing this with Mr Timmins, who was the leading hand on that shift. There was only one 32 tonne forklift available and Mr Mora said he did not remember seeing the other forklift driver after he commenced driving the 32 tonne forklift.
[46] Mr Mora said that because of the length of the cargo the crane could only come out a limited distance from the ship and the cargo was overhanging the wharf and jutting out over the water by about one metre. Mr Jackson said that the cargo was not jutting out over the wharf but agreed that it was blocking the walk way.
[47] Because of the 90 degree angle of the beams, it was necessary for Mr Mora to drive the forklift parallel to the ship to enter the work area instead of entering it front on. Mr Mora, Mr Travers and Mr Daniels completed two full loads without incident, and the stagehands waited in the humpy while Mr Mora delivered each of those loads to the lay down area. When Mr Mora returned from delivering the second load, the third load had been landed on the gluts, so that the two wire slings around each bundle were on the inside of the gluts. One of the stagehands waved Mr Mora into the work area.
[48] Mr Mora said that he drove the forklift into the work area, and picked up the first bundle which was a single beam, reversed and re-landed it on the gluts. Mr Mora beeped his horn to let the stagehands know to enter the work area and Mr Daniels and Mr Travers came in and removed the slings. Mr Daniels was working on the side closest to the water, and because the gluts were blocking the walkway, Mr Daniels stood about one metre away from the gluts in the direction of the humpy. The cargo was close to the edge of the water and Mr Daniels could not get to the end of the cargo and had to step up on the glut and on to the H-Beam to slide the slings off and over, in order to remove them.
[49] Mr Mora said that when he lifted the second load and the stagehands removed the slings, Mr Travers stepped about a metre away from the gluts and Mr Daniels raised his hand in the air. Mr Mora then lowered the second bundle onto the gluts. At some point, Mr Daniels and Mr Travers walked slightly further away from the gluts to put their slings down in a pile before returning to their former positions about a metre from the gluts.
[50] When Mr Mora lifted the third bundle, he saw that Mr Travers had pulled his sling off and moved about a metre away from the gluts. Mr Daniels had also taken his sling off, and turned around so that his back was towards Mr Mora, while raising his hand. Mr Mora said that he thought that Mr Daniels was going towards the walkway to put his slings down.
[51] Mr Mora said that the next thing he remembers is seeing part of the load on the forklift tines fall and hearing Mr Daniels scream. Mr Mora jumped off the forklift and after seeing that the cargo was on Mr Daniels’ ankle, ran to get the other forklift to lift it. When there was no key in the other forklift, Mr Timmins told him to go back to his forklift. Mr Mora did this and used the 32 tonne forklift to lift the beam off Mr Daniels’ ankle, and then waited with Mr Daniels until the ambulance arrived.
[52] Mr Travers said that there were six bundles in the load to separate and remove slings from, and the accident happened when the sling was being removed from the last bundle. Mr Mora had five H-Beams on the tines with the slings removed, and Mr Travers and Mr Daniels directed him to move the last bundle. Mr Travers was standing slightly off to the side away from the water and Mr Daniels was on the opposite side closest to the water.
[53] Mr Travers and Mr Daniels moved in when the forklift was stationary so that they could remove the slings while the load was elevated. Mr Travers had his back turned to Mr Daniels and removed his sling before checking whether Mr Daniels had finished. Mr Travers said that he could not remember whether Mr Daniels had removed his sling or was still getting it off, but the forklift was stationary. All of a sudden the last bundle, which was just one beam, fell off the tines of the forklift onto Mr Daniels’ ankle.
[54] Mr Travers said that he does not know how or why the beam fell off the tines. There was enough of the tine sticking out through the last bundle for Mr Travers to believe that it was safe, and Mr Travers remembers this because he always checks the end of the last bundle to make sure that 200 mm or so of tine is sticking out of the end of the bundle before the forklift operator drives away with the load.
[55] In his oral evidence, Mr Travers maintained that the load was stationary when the slings were removed. Mr Travers turned away to place his sling on the pile and as he turned back, he saw that Mr Daniels had stepped on the glut to remove his sling, due to access being difficult because of a bollard on the side of the wall. It was at this point that the load tumbled. Mr Travers said that this happened in a split second, and he could not be sure whether he saw it fall or not. Mr Travers also said that he was sure that the forklift was stationary.
[56] Mr Timmins said that when he arrived on the scene, Mr Daniels was standing with his foot between the glut and the cargo and the cargo had rolled onto his foot. Mr Timmins administered first aid to Mr Daniels. Mr Timmins said that he was distressed by the incident, and took three days off with the approval of QUBE.
[57] Mr Timmins was asked whether in his experience it is possible for cargo to move or fall off the tines of a forklift when it is stationary, and said that this could happen when the tines are not sufficiently through the load to enable it to balance. Mr Parry also said that cargo could fall off the tines of a forklift while it is stationary, because it was not on the ends of the forks properly.
The investigation
[58] On the day of the incident, the Shift Supervisor Mr Barnes took statements from Mr Travers, Mr Mora, Mr Timmins, and the crane driver Mr Taylor. A statement was not taken from Mr Daniels because he was taken to hospital by ambulance. Mr Jackson was subsequently advised that Mr Daniels would not talk to QUBE and any questions should be put through his lawyer. There was no evidence that QUBE sought to put questions to Mr Daniels, and at the point Mr Mora’s application was heard QUBE had not questioned Mr Daniels about the incident.
[59] Mr Barnes, the Shift Supervisor, took statements from the persons involved in the incident and prepared an incident report. The incident report states that while removing cargo slings from the beam, Mr Daniels stepped onto the glut to remove a wire and at this point the forklift operator lifted the load and the cargo slipped and fell on to Mr Daniels’ foot. 12
[60] Mr Barnes provided Ms Harrison with unsigned statements taken from Mr Travers, Mr Mora, Mr Timmins and Mr Taylor. Ms Harrison also viewed CCTV footage taken from safety and security cameras. According to Ms Harrison, the footage showed that just prior to the incident, the cargo was being moved into an elevated position. Mr Harrison said that while this is hard to see, there is a “commotion” which suggests the point at which the cargo falls. Mr Daniels was not shown in the footage.
[61] Mr Mora was drug tested on 16 November 2012 and returned an inconclusive test. Mr Mora said that this was because he had a headache and took two Panadeine Forte tablets given to him by another employee. Mr Mora subsequently took a second test which came back negative and Ms Harrison said that this was the end of the matter in so far as the drug test was relevant to the investigation.
[62] On 16 or 17 November 2012 Ms Harrison met with Mr Timmins and Mr Travers. After reading their statements, both employees signed the statements. Mr Travers made the following handwritten addition to his statement before signing it:
“I turned away to place my sling on a pile, as I turned back to see Dean [Daniels] remove his sling, step on the glut for reach the load tumbled. The load was raised whilst the slings were removed. I felt Dean Daniels was in control of the work area due to my inexperience.” 13
[63] Ms Harrison met with Mr Mora on 21 November 2012 and when he started writing amendments on his statement, typed a further statement at the request of Mr Mora incorporating those amendments, which Mr Mora then signed. In his statement after describing the movement of the loads prior to the incident, Mr Mora said:
“During the third load I separated three bundles and the stagehands had removed the wires. I saw Dean walk away with a wire in his hand after the third bundle. I don’t remember what happened after that. All I remember is seeing the bundle and Dean screaming.”
[64] Mr Mora said that he told Mr Barnes that Mr Daniels had turned around with a sling in his hand and given a signal, and stood up to show Mr Barnes the signal that Mr Daniels had given. Mr Mora also said that he only noted after he was dismissed that Ms Harrison did not include in the statement the detail about Mr Daniels signalling him. Ms Harrison said she did not recall Mr Mora telling her that Mr Daniels had signalled him.
[65] Under cross-examination, Mr Mora said that he was happy with the statement until after his dismissal, when he really read it, and noted that it did not contain the information about Mr Daniels signalling him. Mr Mora said that he did not raise this at the meeting with Ms Harrison because he had been there for over one and a-half hours and he wanted to get out.
[66] Ms Harrison prepared an Incident Investigation Report setting out the following matters:
● Stagehands Mr Daniels and Mr Travers moved towards the cargo while the 32 tonne forklift was lifting the load.
● Stagehand Mr Daniels placed his foot on top of the steel rack while the load was being lifted by the forklift.
● Forklift operator Mr Mora does not recall seeing Mr Daniels standing on the steel stand.
● The stagehands did not check the stability of the cargo before attempting to remove the pre-slung wires.
● There was no clear method of communication established between the stagehands and the forklift operator as Mr Mora stated that he saw Mr Daniels walk away with the wire in his hand.
● The forklift operator and the stagehands were complacent about following the Moving Cargo from the Wharf SWMS.
● Mr Travers is a new employee and was looking to Mr Daniels to control the work area as Mr Daniels was more experienced.
● Prior to the incident Mr Travers saw Mr Daniels place his foot on the steel rack just before the cargo fell.
● Work area was not congested.
● The RSJ was landed close to the wharf edge.
● The procedure for RSJ does not stipulate the way that the cargo is to be landed on the wharf or that employees are not to place their feet on steel racks. 14
[67] The Incident Investigation Report sets out “Failed defences” said to be that the RSJ procedure does not specifically state that employees are not to stand on steel racks and that Mr Daniels placing his foot on the rack is a contributing factor, along with the failure of the stagehands to check the stability of the cargo before removing pre-slung wires. The contributing factors are also said to include lack of clear method of communication between the forklift operator and the stagehands and limited monitoring of the work area by employees, the foreman or shift manager during the shift.
[68] In her oral evidence, Ms Harrison said that she understood Mr Travers’ statement that “the load was raised whilst the slings were removed” to mean that the load was being raised while the slings were removed, rather than the load was stationary but in a raised position. Ms Harrison also said that she based her view that the load was moving on video footage taken from a security camera.
[69] In conclusion, the Incident Investigation Report proposes the following safety actions to prevent recurrence of the incident and all identified hazards:
● Shift managers reinforce barrier system at toolbox talks for approximately 2-3 weeks
● Grade 6 Foreman to inspect the set up of the work area prior to the shift commencing
● Operations Manager and Shift Manager to conduct regular site inspections of work areas
● Meeting with Shift Managers and Grade 6 Foremen to discuss recent safety incidents / breaches / QUBE procedures etc / Compliance under the WH&S Act 2011
● SAO form to be amended to specifically include the inspection of the wharf safe work areas / barrier set up
● RSJ procedure and risk assessment to be amended to include crush injury - employees not to stand on steel racks
[70] Mr Jackson said that he reviewed all of the statements and the video footage and formed the view that Mr Mora had been moving the forklift on the wharf and the load on the forklift had slipped, rolled over and crushed Mr Daniels’ foot. Mr Jackson said that the video footage shows the load on the forklift to be lifted upwards, then within seconds there is a commotion which can only be the result of the load slipping and injuring Mr Daniels. The load was very heavy with each beam weighing two tonnes.
[71] Mr Jackson said that in his experience, H-Beams do not just slip off a stationary forklift and that some kind of movement is required to cause the load to slip. Mr Mora should not have moved the forklift if Mr Daniels was on the load, and it was not acceptable that a forklift operator lose visual contact with a stagehand. Mr Jackson also said that if visual contact with a stagehand is lost, it is vital that the forklift operator stops and the forklift remains stationary. The stagehands control the work area, and it is not up to the forklift operator to take any decision as to when to lift or move the forklift without being guided by the stagehands whilst maintaining visual contact.
Dismissal Meeting
[72] Mr Mora resumed work on Friday 23 November 2012 having undergone a second drug test which had a negative result. He worked on that date and on Saturday 24 and Sunday 25 November and had a day off on Monday 26 November. On that date, Mr Mora received a telephone call advising him that he was required to attend a meeting on Tuesday 27 November and that he should bring a representative.
[73] Mr Mora attended the meeting on 27 November 2012 with his representative, Mr Munday of the MUA. Mr Jackson and Mr Barnes attended on behalf of QUBE. The video footage of the incident was played. Mr Mora said that the footage was very unclear because it was taken from distance away and it was impossible to actually see what Mr Daniels was doing when the accident occurred and what the forklift was doing at that time.
[74] Mr Mora said that Mr Jackson kept asking what the procedure was and stated that Mr Mora had breached the procedure because the stagehands were in the work area and not in the humpy. Mr Mora also said that Mr Jackson did not ask him about how he had been trained to separate the bundles using the forklift or how he did that job. There was no version of events from other witnesses discussed, the procedure that Mr Mora breached was not identified and the only material was the video.
[75] The proposition was put to Mr Mora in cross-examination, that when he was asked at the meeting of 27 November 2012 who directed him to take the lift, he could not remember, but had now given evidence that Mr Daniels had given him a signal. Mr Mora said that he got up and showed Mr Jackson and Mr Barnes that Mr Daniels had the sling in his hand and had given a signal that he was clear. In response to the proposition that Mr Munday’s notes showed that he had stated that he could not remember who signalled him to take the lift, Mr Mora said he was not sure whether that had been his response and then said that he told Mr Jackson that Mr Daniels had turned around and waved his arm.
[76] Mr Munday also said that Mr Jackson stated that the stagehands had to be in the humpy, and that the video footage shown at the meeting was unclear both in relation to the position of Mr Daniels and what the forklift was doing at the time. Mr Munday confirmed that Mr Mora stated that he was not sure who directed him to take the lift. Mr Munday said that Mr Mora stated that he did the lift in the same manner as always with the guys being away from the stage, and that this was the procedure.
[77] Mr Munday also said that Mr Barnes asked Mr Mora whether Mr Daniels had taken the wire off the cargo. Mr Mora responded by saying that he could not remember everything but that Mr Daniels had the wire in his hand. Mr Munday said that Mr Mora was distressed by this point and did not answer the question about who had directed him to take the lift. Mr Munday also said that after the adjournment, Mr Jackson returned and said that senior management wanted to know why Mr Mora took the lift and that the stagehands needed to return to the humpy after removing each sling. Mr Jackson did not provide Mr Mora with a copy of the policy that he said had been breached or identify which part of the policy had been breached.
[78] Mr Munday appended a copy of his notes of the meeting to his witness statement and those notes stated that:
● Mr Mora was asked who had directed him to take the lift and said he was unsure;
● “don’t know if he did move or not- not sure if he moved or not”;
● “Dean [Daniel] had grabbed the wire”;
● “People need to go to the humpy... need to sit inside the humpy every time”
[79] The notes also contained a diagram which Mr Munday copied from a diagram drawn by Mr Mora on a whiteboard during the meeting. The diagram shows that the beams are placed on the gluts so that the slings are inside the gluts. In response to a question from the Commission, Mr Munday said that he understood that Mr Jackson dismissed Mr Mora because he believed that Mr Mora had lifted the load without having a signal from Mr Daniels or at a point when he had lost visual contact with Mr Daniels and not because Mr Daniels was in the work area and not the humpy at the relevant time.
[80] Mr Jackson said that he had an initial view that Mr Mora had seriously breached the procedure and wanted him to explain what had happened or provide another explanation. The main issue for Mr Jackson was that he could not understand why Mr Mora was moving the forklift when he could not see Mr Daniels. Mr Jackson asked Mr Mora on a number of occasions whether Mr Daniels had signalled him into the work area and whether Mr Daniels subsequently gave Mr Mora a signal to move the forklift. Mr Jackson also pointed out to Mr Mora the video footage showing when he moved the load. Mr Mora’s response was to shrug and say he could not remember. Mr Mora did not, at any stage, state that he had received a signal from Mr Daniels.
[81] Given that Mr Mora could not recollect when he saw Mr Daniels or whether Mr Daniels had given him a signal, Mr Jackson understood Mr Mora to be saying that he had operated the forklift in the safe work area regardless of whether he had been given a signal or not and regardless of whether he had visual contact with the stagehands. Mr Jackson also put the proposition to Mr Mora that: “you ignore company procedures?” and Mr Mora responded by stating “yes that’s the way I have always done it.” Mr Jackson said that he confirmed that Mr Mora understood the procedure by asking him who controls the work zone, to which he replied “the stagehand”.
[82] Mr Jackson concluded that the accident could only have happened because Mr Mora carried on moving the forklift when he had not been signalled by Mr Daniels and had lost visual contact, or because Mr Mora had been given a signal and lost visual contact with Mr Daniels and continued to operate the forklift regardless. Mr Jackson said that he considered that this was a serious breach of the procedure and that Mr Mora’s employment should be terminated with immediate effect.
[83] The notes of the meeting taken by Mr Barnes were attached to Mr Jackson’s witness statement and state:
● KJ [Mr Jackson] asked T Mora if a stagehand had guided him in to work in the safe work zone
● Tony [Mora] stated that he did not see Dean [Daniels] give any signals
● Tony said he was signalled from waiting area into work area
● Tony stated that he saw Dean walk away from the cargo prior to the lift
● Tony could not remember, when asked directly, if he was given any signals
● Tony was asked if Dean was out of the work zone
● Tony could not answer this question
[84] Mr Jackson believed that he should discuss the matter with his Manager Mr Nugent and adjourned the meeting. In the break, Mr Jackson discussed his views which were that:
● Mr Mora knew what the procedure was and had received training;
● Mr Mora stated during the meeting that he could not recollect whether he had been given a signal by Mr Daniels or whether he could see him;
● Mr Mora had either not been given a signal or had lost sight of Mr Daniels;
● The video footage showed that Mr Mora was moving the load and he should not have done so without a signal and without visual contact with Mr Daniels;
● Mr Mora stated that this was the way he had always done it and that he ignored company procedures; and
● QUBE is working in a high risk environment and all safety procedures must be followed to minimise risk.
[85] Mr Jackson said that he could not allow someone to work on the wharf knowing that they chose not to follow Company procedures and that this would risk the health and safety of other employees. Mr Jackson recommended to Mr Nugent that Mr Mora should be dismissed and Mr Nugent agreed with this.
[86] Mr Jackson said that he did not take into consideration that Mr Mora failed a drug test because the test was ultimately negative. Mr Jackson also said that he did not consider Mr Mora’s disciplinary record because the breach of procedure was so serious that any previous history was not a factor that would justify a change to his position. Mr Jackson said that to the best of his recollection he only became aware that Mr Mora had a previous warning on his file after the dismissal.
[87] Mr Jackson maintained that safety on the wharf is the ultimate consideration and that one employee had recently been dismissed for driving on the wharf while using a mobile telephone, and another employee had been dismissed for fooling around with equipment. If an employee breaches a safety procedure, QUBE deals with it accordingly, and such a breach may result in termination of employment.
[88] Mr Jackson said under cross-examination that he did not ask Mr Mora about any safety issues such as the walkway being blocked; the “slop ship” method of landing the cargo; Mr Daniels being on the gluts; or a bollard restricting Mr Daniels’ access to the load. Mr Jackson said that he knew about these matters, but they were not relevant because the forklift operator should not be operating in the safe work zone without having the operators in full view. Mr Jackson also said that during the meeting he did not say anything about the operators being in the humpy.
[89] Mr Nugent decided that there had been a serious breach of the procedure, and that Mr Mora had lost sight of Mr Daniels and continued to move the forklift. As a result the load had slipped and Mr Daniels had been injured. Mr Nugent was also of the view that Mr Mora had admitted to ignoring the procedure. Given the seriousness of the breach and that it had lead to Mr Daniels being injured and requiring hospitalisation, it was appropriate that Mr Mora’s employment be terminated with immediate effect.
[90] Mr Nugent said that he did not take the decision to dismiss Mr Mora lightly. However as State Manager he is responsible for everyone’s safety and cannot have anyone on site who disregards the Company’s procedures. Mr Nugent also said that he does not want to have another fatality on site. Further Mr Nugent pointed to the need to apply policies consistently, and to the dismissal of another employee who had breached the same procedure by walking in the safe work area and an employee who had been dismissed for using his mobile telephone while operating a forklift on site.
[91] Mr Mora’s dismissal was confirmed by letter of 27 November 2012 stating:
“On 15 November 2012 you were allocated as a forklift operator on the day shift on the vessel Penguin Arrow at AAT Berth 3. At approximately 0830 hours you picked up a load of cargo with a 32 Tonne forklift whilst QUBE employees were working on the cargo. This is a serious breach of QUBE’s safety procedure (Moving Cargo from the Wharf SWMS).
The Company is unable to accept this offence and has, after careful consideration of the facts related to your serious breach, deemed that your contract of employment is terminated.” 15
Events subsequent to the incident of 15 November 2012
[92] After the incident of 15 November 2012, QUBE ceased the practice of landing cargo on the wharf at a 90 degree angle and implemented systems to ensure that cargo is landed parallel to the vessel from which it is discharged. Mr Timmins said that when he returned to work after the incident, he attended a meeting with Mr Jackson and Mr Barnes, and was told that QUBE had been given an improvement notice from the Department of Workplace health and Safety in relation to handling cargo.
[93] At that meeting it was discussed and agreed that when cargo comes out of the ship that is the length of the cargo that was being unloaded on 15 November 2012, instead of bringing it down at a 90 degree angle to the ship, it would be lowered to a workable height of three to four feet off the ground by the crane, then the turntable on the crane would be used to turn the cargo parallel to the ship and land it on the gluts.
[94] Mr Jackson made a number of statements in relation to the improvement notice, wherein he insisted that it had nothing to do with the injury to Mr Daniels. Mr Jackson said that the work improvement notice was issued on 15 November 2012, because representatives of the Department of Workplace Health and Safety thought that the cargo was too close to the water.
[95] Mr Jackson was asked in cross-examination whether the Department informed QUBE that the process needed to be changed and said that cargo was not landed at a 90 degree angle to the ship because the procedure did not say to land it at that angle, and that it should be landed parallel.
[96] Mr Jackson later agreed that the procedure for landing cargo changed after the incident on 15 November 2012 but said it had nothing to do with the incident. Mr Jackson finally agreed that the change in the way the cargo was landed was because QUBE was given a work improvement notice for the particular cargo on 15 November 2012 but maintained that this was unrelated to the incident where Mr Daniels was injured.
[97] Mr Travers said that after the incident, the work practices with respect to discharging H-Beams changed so that the gluts were positioned closer together making it easier to pull the sling out without the need to use the forklift to raise the beams.
[98] Mr Timmins also said that there was a toolbox meeting after the dismissal at which Mr Jackson and two senior personnel came and explained that Mr Mora had been dismissed for not following the SWMS, and that the SWMS required that the stagehands and the forklift could not be in the work area at the same time, and the forklift must leave the work area before the slings are removed.
[99] Mr Timmins said that as far as he knew this was not the way the work had been done, and he raised it a few days later and was told that the way it had been done was the right way and that the stagehands and forklift operators could be in the work area at the same time. Mr Parry also said that Mr Jackson stated at a toolbox meeting after Mr Mora’s dismissal that the forklift could not operate in the work area while the stagehands were also in the area.
[100] Ms Harrison said that she did not hear Mr Jackson give this instruction at the toolbox meeting. Mr Jackson said that he spoke about the barrier system and the need to follow procedure.
LEGISLATION
[101] In deciding whether a dismissal is harsh, unjust or unreasonable, FWC must take into account procedural and substantive matters set out in s.387 of the Act as follows:
“387 Criteria for considering harshness etc.
(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.”
[102] The employer carries the onus of establishing that there was a valid reason for a dismissal, and in cases of dismissal for misconduct, that the misconduct took place. 16 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”17 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts18. The Commission must determine whether alleged conduct took place and what it involved, on the basis of evidence before it19, and an assessment of what the employee is capable of doing or has done.20
[103] The standard of proof to be applied in deciding whether an employee has engaged in misconduct is proof on the balance of probabilities. That is the case notwithstanding that the strength of the evidence necessary to establish this to the required standard may vary, because of the seriousness of the allegations 21. In the present case it is alleged that Mr Mora breached a workplace health and safety procedure resulting in a serious injury to another employee. Any finding in relation to such an allegation must be based on clear and cogent proof.22
[104] In determining whether a reason for dismissal is valid, it is not the role of the Commission to stand in the shoes of the employer and determine whether it would have made the same decision. 23 A serious breach of a workplace health and safety policy or an incident where an employee places health and safety at risk, will generally constitute a valid reason for dismissal. This is particularly so when the breach is wilful or reckless and is committed in circumstances where the employee is aware of the employer’s policy and the risks associated with his or her conduct. The Commission must also recognise that breaches of workplace health and safety policies and procedures can have potentially disastrous consequences for the employer, the employee who engages in the breach, employees in the workplace generally and other persons who may be impacted.24
[105] As a Full Bench of the Commission said in Parmalat Food Products Pty Ltd v Walilo:
“Employers have important statutory obligations to maintain a safe place of work...Establishing and maintaining safety rules are an important obligation, a breach of which can lead to serious consequences.” 25
[106] The Full Bench went on to hold that where the Commission was satisfied that an employee had breached safety rules and his conduct amounted to serious misconduct, disciplinary action was necessary and appropriate because a failure to take such action sends a message to the workforce that safety breaches can occur with impunity. Further, the Full Bench observed that where a valid reason for termination is found, and there is compliance with the statutory requirements in relation to procedural fairness, it would only be if significant mitigating factors are present that a conclusion of harshness would be open. 26
[107] This approach was also recognised by a Full Bench of the Commission in DP World Sydney Limited v Mr Stephen Lambley where it was held that:
“Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.” 27
[108] The matters in s.387 go to both substantive and procedural and substantive fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 28
CONCLUSIONS
What was the reason for the dismissal?
[109] QUBE submits that Mr Mora was dismissed for breaching a safety procedure by losing visual contact with a stagehand while driving a forklift. QUBE also submits that Mr Mora accepted the reason for his dismissal and accepted that such a breach may result in dismissal, and that it is not disputed that a breach of a safety procedure is a valid reason for dismissal.
[110] Further, QUBE submits that the Commission is not required to determine whether Mr Daniels was on the glut or whether the load was moving. These are said to be factors that Mr Jackson took into account in reaching the conclusion that Mr Mora did not get a signal to move the forklift and had lost visual contact with Mr Daniels. QUBE submits that it was reasonable for Mr Jackson to draw these conclusions and that this is what the Commission should consider.
[111] I do not accept that the reason for the dismissal was simply that Mr Mora lost visual contact with Mr Daniels. Such a submission is contrary to the evidence, which makes it clear that the reason for the dismissal was that Mr Jackson formed the view that Mr Mora had either not been given a signal or had lost sight of Mr Daniels, and moved the load when he should not have done so. These were substantive and motivating reasons for the decision to dismiss Mr Mora. The question is not whether Mr Jackson had reasonable grounds for reaching those conclusions, but rather whether Mr Mora breached the safety procedure in the manner alleged.
[112] I do not agree with the proposition that Mr Mora accepted the reason for his dismissal. The reference in the transcript to the evidence of Mr Mora said to support this proposition is to the following exchange in cross-examination:
“So you would accept if an individual breached a safety policy, one thing could happen to them could be their employment may be terminated? -- Yes.”
[113] In my view this exchange does not constitute acceptance by Mr Mora that he breached the policy and that this was a valid reason for his dismissal. The exchange simply indicates that Mr Mora accepts that an employee who breaches a safety policy, may be dismissed.
Did Mr Mora engage in the conduct alleged by QUBE so that there was a valid reason for his dismissal?
[114] Mr Mora’s evidence was that when he lifted the third bundle he saw that Mr Daniels had removed his sling and turned with his back facing Mr Mora and thought that Mr Daniels was going towards the walkway to put the sling down. Mr Mora also said in his evidence that Mr Daniels raised his hand. Further, Mr Mora said that this was consistent with what Mr Daniels had been doing that day.
[115] Mr Mora maintained that he told Mr Barnes that Mr Daniels had waved his arm as he walked away to put his sling on the pile and that he demonstrated to Mr Barnes the manner in which Mr Daniels did this by standing up and waving his arm. Mr Mora also maintained that he did not notice that this information was not included in the statement Ms Harrison prepared for him until after his dismissal, notwithstanding that he signed that statement on 21 November 2012. It is also the case that Mr Mora was asked on numerous occasions in the meeting of 27 November 2012, to identify who gave him a signal, and did not at any point state that Mr Daniels waved his arm.
[116] On balance I am unable to be reasonably satisfied that Mr Daniels gave Mr Mora a signal before the load fell on to Mr Daniels’ ankle. This was a significant matter that was put repeatedly to Mr Mora in the meeting of 27 November 2012. Even if he failed to notice that his assertion that the signal was given was not set out in the statement prepared for him by Ms Harrison, it is inconceivable that he would not have made this assertion at the meeting of 27 November. It is also highly unlikely that Mr Munday would have failed to make a note of such an assertion.
[117] I am also satisfied that at the point the load fell, Mr Mora did not have visual contact with Mr Daniels. Mr Mora’s evidence was that the last visual contact he had with Mr Daniels was when he thought he saw Mr Daniels walking towards the walkway to put his slings down.
[118] Just before the bundle fell, Mr Travers saw Mr Daniels standing on the glut. Mr Daniels must have had at least one foot on the glut because the bundle that fell pinned his ankle to the glut. Mr Travers and Mr Daniels were simultaneously removing slings from each end of the same bundle. The bundle that fell comprised a single beam. Mr Daniels was standing on the glut so that he could reach over it to remove slings from his end of the bundle. There was no other reason for him to stand on the glut. It is improbable that Mr Daniels removed a sling from the beam that fell on his ankle, walked away with it and then returned and stood on the glut. There is no evidence that there was more than one wire sling on the side of the load that Mr Daniels was working on that would have required him to do this. Clearly Mr Daniels could not have being standing on the glut removing a sling and walking away with a sling in his hand, at the same time.
[119] The most probable scenario is that Mr Mora lost sight of Mr Daniels for a period between when Mr Daniels walked away to the sling from the second bundle on to the pile of slings and when he returned and started to remove the sling from the third bundle.
[120] The issue of whether Mr Mora was operating the forklift to move the load at the point the bundle fell is problematic. Mr Jackson and Ms Harrison formed the view that this was the case, based on a video footage said to show that the load was moving and a “commotion” which must have been associated with the load falling from the tines of the forklift. Mr Travers, Mr Munday and Mr Mora, who had also viewed the footage, said it did not change their evidence or their view of what happened. In particular, Mr Travers maintained that the forklift was stationary.
[121] The video footage was provided to Mr Mora’s legal representative as part of the process of exchanging material relevant to the proceedings. The Commission was made aware that one or both parties may require a viewing of the footage during the hearing and had facilities available to enable this to occur. Neither party sought that the Commission view the footage. The parties are now arguing about the weight that should be put on the evidence about the footage and whether an inference should be drawn about the failure of QUBE to tender the footage and to call evidence about it in the context of a viewing of the footage in the hearing.
[122] Both parties were legally represented and in those circumstances I can only assume that the legal representatives assessed the evidentiary value of the footage and the implications of the Commission viewing it or not. Witnesses for both parties gave evidence about what the footage did or did not show. The footage was available to both parties and either of them could have introduced it into evidence through a witness. In those circumstances it is not appropriate to draw an inference about the evidentiary value of the footage that is adverse to either party and I decline to do so. I can only assume that the footage is not conclusive, and that putting it into evidence would not have assisted the case of either party.
[123] The evidence in relation to this matter is evenly balanced. On the one hand, Mr Jackson said that in his experience, a load does not fall from a forklift while it is stationary. Ms Harrison’s evidence is that Mr Travers told her the forklift was “raised” when the bundle fell and that she assumed that he meant that the forklift was moving. It is also the case that when Mr Jackson repeatedly asked Mr Mora who had given him a signal, that it was implicit in that question that Mr Jackson was of the view that Mr Mora had operated the forklift and that this had caused the load to fall. Mr Mora did not respond to this question by saying that it was irrelevant because he had not moved the forklift. The recorded response of Mr Mora to this question was that he could not remember who gave him a signal.
[124] The facts of the matter were that a 2 tonne beam had fallen from the tines of a forklift. The explanation for this is either that the forklift was moving at the time the beam fell, or that the forklift was stationary but its tines were not properly under the beam.
[125] It is also the case that Mr Mora has not at any time specifically stated that he did not move the load before it fell. Contrary to the submissions on his behalf, Mr Mora’s evidence that the last thing he remembers is that Mr Daniels was walking away with the wires in his hand after removing them from the third bundle, does not address the question of whether he was moving the load when it fell. Mr Mora’s evidence also failed to address the question of how the load landed on Mr Daniels’ ankle and pinned it to the glut if he was walking away.
[126] If Mr Mora’s evidence that Mr Daniels waved his arm as he walked away is accepted, it is implicit that Mr Mora also asserts that it was safe for him to operate the forklift, regardless of whether he operated it or not. Mr Travers said that at the point he turned around the forklift was stationary, but he also could not remember whether he actually saw the load falling or not. The possibility that the forklift moved before Mr Travers turned around was not put to Mr Travers.
[127] Mr Parry and Mr Timmins - who is a leading hand and has worked in the industry for 30 years including as a forklift driver - said that it is possible for a load to fall from a forklift while it is stationary. Mr Timmins said that a load can fall from a stationary forklift if the tines of the forklift are not sufficiently under the load. Mr Travers said that he remembered checking the position of the tines of the forklift in relation to the load that fell on Mr Daniels’ ankle and they were through the load to a sufficient degree.
[128] The evidence was that the stagehands should check the position of the forklift tines in relation to the load to ensure that it is stable. That this was an issue relevant to the incident on 15 November is apparent from the Incident Investigation Report prepared by Ms Harrison, which indicated that the stagehands did not check the stability of the cargo before attempting to remove the pre-slung wires. This means that the possibility that the load was not balanced properly on the forklift was recognised by Ms Harrison.
[129] After assessing all of the evidence I am not satisfied to the required standard that the forklift was moving when the load fell and I am of the view that it is equally probable that the forklift was stationary at that time. I am also of the view that Mr Jackson did not have reasonable grounds for concluding that the load was moving when the bundle fell, at the point the decision to dismiss Mr Mora was made. Further, Mr Jackson failed to make reasonable efforts to resolve this significant question before he dismissed Mr Mora.
[130] However, regardless of whether Mr Mora moved the forklift, it is apparent that Mr Mora, and the employees who gave evidence on his behalf, understand that forklift drivers and stagehands should maintain visual or verbal contact at all times when they are working together in the safe work area and that this is a significant aspect of the safety policy. It is also apparent that Mr Mora failed to comply with this requirement. A serious injury was caused to Mr Daniels and that injury had significant consequences for QUBE. The incident of 15 November followed on a previous incident where there was a fatality involving a forklift, and could have caused a further fatality.
[131] After considering the conduct of Mr Mora in failing to adhere to a significant aspect of a safety procedure, and the effect on the safety and welfare of other employees of QUBE, I am satisfied that there was a valid reason for the dismissal of Mr Mora.
Was Mr Mora’s dismissal unfair?
[132] Turning to the criteria in s.387(b), I am satisfied that Mr Mora was notified of the reason for his dismissal. At the meeting on 27 November 2012, Mr Jackson repeatedly questioned Mr Mora about who had given him a signal and why he had taken the lift. Mr Mora could have been in no doubt that the reasons for his dismissal were that he was alleged to have moved the forklift when he did not have visual contact with Mr Daniels. Mr Mora knew that he was required to maintain visual or verbal contact with the stagehands at all times. Notwithstanding that Mr Mora was not shown a copy of the SWMS - “Moving Cargo from the Wharf” during the meeting, it is clear that he understood that procedure, and that he knew that the nub of the allegation was that he had failed to maintain visual or verbal contact with the stagehands and had moved the forklift when he did not have that contact with Mr Daniels.
[133] It is not in dispute that Mr Jackson asserted during the meeting that Mr Mora had ignored the procedure, and there is no evidence that Mr Mora indicated any lack of understanding of the procedure about which he was being questioned. It was made clear to Mr Mora, from the questions asked by Mr Jackson, that Mr Jackson believed that he had moved the forklift without having visual contact with the stagehands. At no time did Mr Mora assert a lack of understanding about why these issues were being raised with him or how they were relevant to an alleged breach of a safety procedure. Further, the letter advising Mr Mora of his dismissal, states that the reason for the dismissal is that Mr Mora picked up cargo with a forklift while QUBE employees were working on the cargo.
[134] As previously stated Mr Mora has never specifically said that he was not moving the load when it fell. I am satisfied that Mr Mora was given an opportunity to respond to the reasons for his dismissal as provided in s.387(c). Mr Mora was given two opportunities to explain his version of the incident when he was interviewed by Mr Barnes and Ms Harrison. Mr Mora also had a further opportunity at the meeting on 27 November 2012. Mr Mora was given an opportunity to have a support person present and the criteria in s.387(d) is not relevant in this matter.
[135] The dismissal did not relate to unsatisfactory work performance as provided in s.387(e), and a previous warning on Mr Mora’s record was not taken into account in the decision to dismiss him. Further Mr Mora provided uncontested evidence that called into question the validity of that warning. The employer is a large and well resourced national company with dedicated human resource managers. The criteria in section 387(f) and (g) are also not relevant in this matter.
[136] Notwithstanding the conclusion I have reached that there was a valid reason for the dismissal, I am also of the view that there are significant mitigating factors that were not given sufficient weight in the decision to dismiss.
[137] The SWMS “Moving Cargo on the Wharf” is poorly drafted. The SWMS does not specifically require that a stagehand give a signal before a forklift operator can move a load. The procedure requires that the forklift operator signal to the stagehand to move towards the load and that thereafter they remain in verbal and visual contact. I would have thought that if the requirement for a stagehand to give a signal before a load is moved is a matter of such significance that moving the load before that signal is received will be viewed as a breach of safety procedures sufficient to justify dismissal of a forklift driver that the requirement would be specifically set out in the policy.
[138] The SWMS also does not deal adequately with the scenario where two stagehands are working at opposite ends of a bundle of H-Beams and where the forklift is required to be operated while the stagehands are in the safe work zone rather than the humpy. There was also reference to another procedure specifically covering “H-Beams” that was not in evidence. That procedure was referenced in the Toolbox Talk Checklist on 15 November 2012, and the failure of QUBE to call evidence about the relevance or otherwise of this procedure was not explained.
[139] While I accept that the practical effect of the SWMS Moving Cargo on the Wharf procedure and its relevance to the work on 15 November 2012 was understood by Mr Mora and Mr Travers, there is evidence that strongly suggests that the procedure is capable of misinterpretation. Mr Timmins and Mr Parry both thought that Mr Jackson stated, in toolbox meetings following the incident on 15 November 2012, that stagehands are required to go to the humpy or the safe area after each sling is removed from a load of beams.
[140] Further, Mr Munday’s notes of the meeting with Mr Mora on 27 November 2012, indicate that Mr Jackson was asking why the stagehands were not in the humpy when the load fell. Mr Munday can have had no reason to make a note of this issue if Mr Jackson did not make that statement, and the statement is consistent with those Mr Jackson was reported to have made at the toolbox meetings. On a literal reading of the procedure as it applied on 15 November 2012, the forklift is required to be stationary until the stagehand returns to the safe zone - ie the humpy.
[141] The actual practice is that the forklift holds the load stationary while the stagehand removes the slings and then the stagehand steps back, but remains in the safe work area, and the forklift then moves the load. As previously stated, the procedure does not require that the stagehand signal before the load is moved. Further, there are no uniform signals for forklift operators and stagehands to use, and it is left to them to agree on the method of communication. It is arguable, that by default, the method of communication implemented between Mr Mora and Mr Daniels on 15 November 2012 was that Mr Daniels walked away when he removed the sling from his end of the bundle, and Mr Mora assumed that this meant it was safe for him to move the load. This was not considered.
[142] The witnesses for QUBE were insistent on the proposition that the stagehands control the work area and that the forklift cannot move without a signal from the stagehands. The Incident Investigation Report states that “failed defences” - which I assume are mechanisms that could have prevented the incident from occurring include that there was a lack of clear method of communication between the forklift operator and the stagehands. In my view, if there was a failure of communication between Mr Mora and the stagehands, they were all at least equally responsible for that failure. Mr Mora was dismissed and there is no evidence that any action was taken with respect to the contribution of the stagehands to the incident.
[143] While I accept that Mr Daniels was seriously injured, I also note that he indicated that any questions about the incident should be directed to his lawyers and there is no evidence that QUBE made any attempt to get answers to questions from Mr Daniels. In my view, there should at least have been some attempt made in this regard, before the conclusion that Mr Mora should be held accountable by being dismissed was reached.
[144] There is also evidence that the safety of the work being performed on 15 November 2012 was impacted by the fact that the load was landed “slop ship” or at a 90 degree angle to the vessel from which it had been discharged. At the commencement of the shift Mr Mora, Mr Daniels and Mr Travers were working on cargo that had been landed parallel to the vessel. It is apparent to this is the preferred method for landing cargo. Just before the incident occurred, the way in which the work was being performed was changed because the beams were longer and they were landed at a 90 degree angle to the vessel rather than parallel.
[145] This meant that the walkway became blocked and that Mr Daniels who was working on the side of the load closest to the water, could not work from outside the load. It follows that Mr Daniels could not move away from the load by walking to the side of it as Mr Travers, who was working on the side furthest from the water, had done.
[146] The Incident Investigation Report also indicates that the H-Beams were landed close to the edge of the water, and that the procedure for RSJ does not stipulate the way that the cargo is to be landed on the wharf. That the position of the load was an issue on 15 November 2012 is apparent from the fact that QUBE was given an improvement notice about this matter by the Department of Workplace Health and Safety. Mr Jackson’s dogged insistence that this had nothing to do with the incident involving Mr Mora or the injury to Mr Daniels was not convincing and in my view QUBE failed to properly consider the impact of the position of the cargo.
[147] The position of the gluts and the angle of the cargo also meant that Mr Daniels needed to step onto them from inside and lean over to remove the wire from each bundle. It is apparent from the Incident Investigation Report that this was viewed by QUBE as another failed defence. Both of these matters were addressed after Mr Mora’s dismissal. In my view, the impact of these matters on the events that occurred on 15 November 2012 should have been taken into consideration before the decision to dismiss Mr Mora was made.
[148] On balance, I am satisfied that these matters are of such significance that the dismissal of Mr Mora was unfair. The dismissal of Mr Mora was harsh because it was disproportionate to the gravity of the misconduct, on the basis that QUBE failed to consider:
● The inadequacy of the procedure Mr Mora was alleged to have breached;
● The contribution that other persons involved in the incident made - in particular that the stagehands were equally responsible for the failure in communication that lead to the incident occurring; and
● The significant defects in the manner in which the work was organised and performed as evidenced by the receipt of an improvement notice from the Department of Workplace Health and Safety.
[149] I am also of the view that the dismissal of Mr Mora was unreasonable, because it was decided that he was solely responsible for the incident in circumstances where there were other factors that contributed to the incident to a degree that was at least as significant as the contribution made by Mr Mora. The Incident Investigation Report prepared by Ms Harrison details these factors. When that Report is considered, the inference that Mr Mora was solely responsible for the incident could not reasonably have been drawn from the material before the employer. I accept that Mr Mora’s contribution to the incident was significant and warranted a strong disciplinary response. There was no evidence that QUBE considered any other option than the dismissal of Mr Mora, and in my view the contribution of the significant mitigating factors to the incident were not considered.
REMEDY
[150] Neither party put any evidence before the Commission about remedy. Other than an assertion from the bar table, there is no indication that Mr Mora seeks reinstatement or that he believes that he can resume his employment with QUBE.
[151] In the absence of evidence from Mr Mora about remedy, QUBE did not put any evidence before the Commission about remedy including evidence about the appropriateness of reinstatement.
[152] When the failure to call this evidence was pointed out to the representatives of the parties, they indicated that they would seek to place further evidence and submissions before the Commission in relation to remedy, should the requirement for this arise following the decision in relation to whether the dismissal was unfair.
[153] The parties are to advise whether they wish to make further submissions and/or call evidence in relation to the matter of remedy, within seven days of the date of release of this Decision.
DEPUTY PRESIDENT
Appearances:
Mr D. Quinn and Ms Yeo on behalf of the Applicant.
Ms C. Brattey and Mr D. Reid on behalf of the Respondent.
Hearing details:
2013.
Brisbane:
May 14; 15.
Final written submissions:
12 June 2013.
1 Exhibit 1 Statement of Anthony Mora.
2 Exhibit 2 Statement of Corey Travers.
3 Exhibit 3 Statement of Jacon Perry.
4 Exhibit 4 Statement of Trevor Munday
5 Exhibit 5 Statement of Lorraine Teresa Harrison.
6 Exhibit 6 Witness Statement of Kenneth Gregory Jackson.
7 Exhibit 7 Witness Statement of Greg Nugent.
8 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH5”.
9 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH9”.
10 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH2”.
11 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH18”.
12 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH11”.
13 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH14”.
14 Exhibit 5 Statement of Lorraine Teresa Harrison Annexure “LH10”.
15 Exhibit 1 Statement of Anthony Mora “AM1”.
16 Yew v ACI Glass Packaging Pty Ltd 71 IR 201.
17 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
18 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
19 King v Freshmore Print S4213 per Ross VP, Williams SDP and Hingley C.
20 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
21 Brinks Australia Pty Ltd v Transport Workers’ Union of Australia PR922612 per Giudice J, Acton SDP and Hingley C at [7].
22 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 at 449-450.
23 Walton v Mermaid (1996) 142 ALR 681 at 685.
24 Glaxo SmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [19]
25 FWAFB [2011] 1166 at [18]
26 Ibid at [19] and [22].
27 [2012] FWAFB 4810 at [26].
28 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
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