Mr. Henry Chai v Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety

[2015] FWC 1145

[2015] FWC 1145

FAIR WORK COMMISSION

DECISION

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

Mr. Henry Chai
v
Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety
(U2014/12923)

COMMISSIONER BULL SYDNEY, 19 FEBRUARY 2015

Application for relief from unfair dismissal, repeated safety breaches, ex-tempore decision, application dismissed.

[1] This matter was heard in Sydney on 11 and 12 February 2015. On 11 February 2015, I advised the parties that I would hand down my decision extemporaneously, on transcript the following day 12 February 2015. This is the published version of the decision edited for style and clarity.

Background

[2] In this matter the applicant, Mr Henry Chai alleges he was unfairly dismissed by his employer, Chubb Fire & Security Pty Ltd. The applicant represented himself and the respondent was represented by its HR business partner, Ms Emma Keating.

[3] The applicant was employed as an electrical service technician and commenced employment with the respondent on 14 May 2012, and was terminated on 24 September 2014. At the time the applicant was working at the Sydney University site in Darlington, New South Wales.

[4] The matter proceeded under section 394 of the Fair Work Act 2009 (the Act).

[5] By way of background, the applicant received a warning letter dated 15 July 2014 1 regarding a failure to follow the respondent’s electrical safety procedures, namely a:

● Failure to complete the appropriate Risk Assessment before commencing a task,
● Failure to comply with Chubb EH&S ladder procedure; and
● Failure to appropriately apply the Chubb lock out tag out procedure.

[6] In addition to the written warning, the applicant was advised that he would be subject to further training and unannounced HSE audits over the next six months.

[7] The safety breaches of 15 July 2014, listed in the warning letter were acknowledged during the hearing by the applicant. On 18 July 2014, the applicant participated in training that involved conducting a risk management assessment using a personal digital assessment (PDA), which is a hand-held device that enables a risk assessment to be conducted prior to starting a task.

[8] On Friday 19 September 2014, the applicant was subject to a random unannounced safety audit, which resulted in him being stood down while an investigation was conducted.

[9] On Monday 22 September 2014, a meeting was conducted and the applicant received written advice from the respondent’s service manager, Mr Craig Walker, that following the site audit on 19 September 2014 in accordance with the previously-advised intention to conduct unannounced site safety audits, a number of safety breaches had been identified on 19 September 2014.

[10] The safety breaches listed in the letter of 22 September 2014 2 were as follows:

● Failure to complete the appropriate risk assessment before commencing the task
● Failure to comply with University of Sydney safety requirements, (entering a restricted room)
● Incorrect PPE, 3 Shirt-sleeves rolled up
● Incorrect hand tools being used (not 1000 volt rated)

[11] The applicant was then told he needed to respond to the allegations the following day, Tuesday, 23 September 2014, at 3 pm, where he could bring a support person.

[12] On Tuesday 23 September 2014, a meeting was conducted, at which the applicant presented his defence in respect of the allegations that were made. Following that meeting, a further meeting was held on Wednesday 24 September 2014, this resulted in the applicant’s termination of employment.

[13] The termination letter 4 stated that the applicant had committed the following safety breaches:

● Failure to complete the appropriate Risk Assessment before commencing the task
● Incorrect PPE - Shirt-sleeves rolled up.

[14] In the termination letter, reference is also made to the warning letter of 15 July 2014 in respect to the safety issues that were identified as having been of previous concern.

[15] It is noted that two of the allegations of safety breaches that were in the letter of 22 September 2014 were not contained in the final termination letter.

[16] As advised by the witnesses from the respondent, those matters were satisfactorily accepted as not being valid following the response from the applicant on 23 September 2014.

Applicant’s evidence and submissions

[17] The applicant gave evidence in respect to his claim and submitted that his dismissal was unfair. While acknowledging his warning letter of 15 July 2014 5, he submitted he was not at fault following the 19 September 2014 safety audit. The applicant advised how he had at least two of the safety allegations raised in the letter of 22 September 2014 dropped. The applicant did so by demonstrating that he was using the correct rated hand-tool (a side cutter) by photographing the package the side-cutter was packaged in which indicated that it was rated to 1,000 volts.

[18] The applicant demonstrated that he was authorised to enter a restricted room as he was inducted as service personnel. To the credit of the respondent, the explanation was accepted, and as mentioned above, those two allegations were dropped.

[19] In respect of the remaining two safety issues the applicant submitted, in respect to his sleeves being rolled up that they were only rolled up past his hand as the sleeves in an unrolled state extended past his fingertips and he produced a photograph on his lap top that this was the case. The applicant further submitted that he was unaware of the rolled-up sleeve requirement or its purpose while working indoors as he thought that it related to providing sun protection.

[20] In respect of failing to complete a risk assessment of a task the applicant was performing at the time that the safety audit was conducted, the applicant submitted that risk assessments were rarely completed at the Sydney University and this was the case for all technicians. Additionally, the applicant submitted that he was not trained in completing a risk assessment, either on a hand-held PDA or in the Take-5 notebook 6. He also argued that other technicians at the university do not complete risk assessments.

Respondent’s evidence and submissions

[21] For the respondent, Ms Keating, the HR business partner, gave evidence regarding the respondent’s safety policies and procedures; however, her actual knowledge of the detail of the applicant’s safety contraventions was limited. Ms Keating advised that the respondent’s position was that the repeated failure of the applicant to complete risk assessments prior to commencing work tasks was the most serious of offences which required his termination. Mr Walker, the respondent’s service manager who conducted the 19 September 2014 site safety audit, and participated in the 22nd and 23rd September 2014 meetings, also gave evidence. Mr Walker refuted that the applicant was not trained in completing risk assessments, and he also refuted that risk assessments were rarely completed at Sydney University.

[22] Mr Walker submitted that in any event, the applicant was the one who was observed not completing the risk assessment upon which a complaint was made, at least early in July 2014, and no complaint had been received regarding other technicians not completing risk assessments, as such, he could only act on the complaints and the observations that he had made. Mr Walker also stated that he had raised the requirement to conduct risk assessments at a toolbox meeting of 8 May 2014. This was not accepted by the applicant, on the basis that he was not a signatory nor had he witnessed the minutes of the meeting on that occasion, however, he does acknowledge he was in attendance at a meeting that occurred on that day.

Conclusion

[23] In determining whether a dismissal is unfair, the Commission must take into account the criteria set out in section 387 of the Act. The first criteria that the Commission must have regard for is whether a valid reason exists in respect to the termination. In respect to whether there is a valid reason for the dismissal relating to the applicant’s conduct, the evidence demonstrated that there had been a failure to complete a risk assessment on two separate occasions. The applicant acknowledged that he had not completed a risk assessment for the task on 19 September 2014. In this respect, there was no dispute that such conduct occurred.

[24] This was conduct that had occurred after a written warning on this specific requirement had been provided to the applicant on 15 July 2014 and despite the fact that further training in respect to the completion of risk assessments had been provided to the applicant.

[25] I am unable to accept the applicant’s defence, that he had not been trained in performing risk assessments. This was the very topic that he received a warning about in July 2014 and he was issued the Take-5 notebook prior to that date to complete before each task, but had failed to do so.

[26] Since the applicant’s July 2014, warning, he did not provide any evidence that he requested further training, nor did he provide any evidence that he had made any comment to his supervisors that he was not trained to complete a risk assessment. Such a defence does not appear to have been raised at the meeting on 23 September 2014, if one has regard to the notes taken by Mr Walker. 7 What is recorded is that the applicant acknowledged that he hadn’t completed a risk assessment, but stated he had conducted a visual risk assessment. There was no mention of not having had the appropriate training.

[27] The completion of a risk assessment, on my perusal of the Take-5 handbook is that it is a relatively simple exercise and should not cause the applicant, with his extensive working experience, any difficulty. On this basis, I find that a valid reason for the dismissal, being that the applicant had not completed a risk assessment, existed. However, I do not accept that the wearing of sleeves in a rolled-down state, whether to the elbow or below, is a safety issue of such significance that termination of employment should result.

[28] I also find that a significant reason for the applicant’s termination was the position taken by the respondent’s client, Sydney University. On Mr Walker’s evidence, Sydney University advised the respondent on 19 September 2014, that they did not want the applicant working at the university any more, and this was confirmed in an email on 24 September 2014, the day the applicant was terminated.

[29] However, having found that a valid reason for the dismissal existed, that being that the applicant failed to complete a risk assessment which he was required to under the respondent’s safety procedures, I now turn to the other criteria that I must take into account in assessing whether the termination was unfair.

[30] The applicant was notified of the reasons for his dismissal prior to his termination and he was provided with an opportunity to respond to the allegations. In fact, the applicant’s response led to the dropping of two of the allegations that were made on 22 September 2014, in regard to safety breaches. There appeared to be no refusal by the respondent to allow the applicant to have a support person during any of the dismissal discussions.

[31] The applicant had been warned previously in writing of the need to complete risk assessments. The respondent, Chubb Fire & Security Pty Ltd, is large enough to have provided a proper procedural process in conducting the process leading to the applicant’s termination, and the respondent does not lack any human resource expertise.

[32] I have had regard for the period of employment of the applicant, being just under two and a half years, and to the previous warning regarding risk assessments and training regarding risk assessments that was provided to the applicant, and the fact that within a period of some two months, the same breach of a safety procedure has occurred.

[33] The applicant’s working environment presents serious safety risks as evidenced in the July 2014 investigation regarding the breaches that occurred on that occasion. As such, any risk assessments prior to commencing each task are all the more important to the applicant and to those around him.

[34] I am unable, on the evidence, to find the existence of any mitigating circumstances to conclude that the dismissal was unfair. On the basis of this conclusion, the conclusion that a valid reason existed, I do not find the dismissal to be unfair.

[35] The application is dismissed.

COMMISSIONER

Appearances:

Mr Chai on his own behalf.

Ms Emma Keating HR Business Partner, for the Respondent.

Hearing details:

2015.

Sydney.

11, 12 February.

 1   Exhibit R1

 2   Exhibit A5

 3   Personal Protective Equipment

 4   Exhibit A6

 5   Exhibit R1

 6   Exhibit R6

 7   Marked as Attachment H to Mr Walker’s Witness Statement Exhibit R7

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