Mr James Joss v Boral Bricks Pty Ltd
[2012] FWA 8203
•11 OCTOBER 2012
[2012] FWA 8203 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr James Joss
v
Boral Bricks Pty Ltd
(U2012/5800)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 11 OCTOBER 2012 |
Alleged unfair dismissal.
[1] Mr James Joss (the applicant) made an application on 6 March 2012 for an unfair dismissal remedy in relation to the termination of his employment by Boral Bricks Pty Ltd (Boral, the respondent) on 24 February 2012. The matter did not settle at conciliation and was referred to me for determination.
[2] Hearings were conducted in Sydney on 8, 9 and 31 August 2012 Mr Joss was represented by Ms L Charlson, of the Construction, Forestry, Mining and Energy Union, NSW Branch (CFMEU). Boral was represented by Mr R Warren, of counsel. As well as the applicant himself, the following gave evidence on his behalf:
- Mr Jacques Ouimet (an operator at the respondent’s Bringelly plant); and
- Mr John Prentice (an organiser with the CFMEU).
[3] The following gave evidence on behalf of the respondent:
- Mr Raul Gama (Production Manager at the respondent’s Bringelly plant);
- Mr Ian Leask (Regional Health, Safety and Environment Advisor for Boral Building Products); and
- Mr Grant Nicholls (Plant Manager of the respondent’s Bringelly plant).
Background
[4] The respondent operates a brick factory at Bringelly employing approximately 30 employees at the site. The site produces bricks via a range of plant and machinery which includes a number of kilns, kiln cars, and the Dehacker Machine (the Dehacker).
[5] The applicant commenced employment with the respondent in 1989 and at the time of his termination was employed in the position of an operator at the Bringelly site. As part of the applicant's day to day duties he was required to work in and around the Dehacker. The Dehacker unloads packs of bricks from kiln cars and breaks them down and packages them ready for delivery to market. The Dehacker is approximately 75 m long and processes around 110,000 bricks a day and at any given time carries suspended moving loads of approximately 6 tonnes and has a range of other moving mechanical parts.
[6] A risk assessment on the Dehacker identified the potential for serious injury or death in the event that specific safety procedures were not adopted. This could include an operator being struck by moving equipment, getting their limbs caught by moving machinery, being crushed under overhead equipment, and being caught in the pack conveyor. The respondent has a policy for the isolation of live machinery called "Lock Out Tag Out" (LOTO). LOTO requires each operator to place their own personal padlock or tag on a clearly marked isolation switch immediately adjacent to the entry points to the Dehacker. This can be done on the gates, eye beams, or on the main control panel. The LOTO procedure stops the Dehacker and prevents it from being restarted to allow the operator safe access. As identified in the control measures in the risk assessment, isolating the machine and following the LOTO procedure is one of the measures that helps reduce the risk of serious injury or death from high to medium down to low.
Training provided to the applicant related to the isolation/LOTO procedure
[7] The applicant received training regarding the isolation procedure on at least four occasions. The most recent of these was 23 January 2012. On this last occasion the applicant successfully completed a workbook regarding isolation and "locking out".
[8] Safety is also the first agenda item on each daily team meeting held with employees. LOTO was discussed on a number of occasions at meetings of the applicant's team.
Warning given to the applicant in April 2011
[9] According to Mr Nicholls’s written statement 1 on or around the afternoon of 7 April 2011 he saw the applicant reach into the Dehacker to grab sample bricks without locking or tagging out of the machine. This happened in a location that was right next to the eye beam where the applicant could have easily locked out the machine. Mr Nicholls was extremely concerned to see the applicant do this and potentially expose himself to injury and breach the respondent’s policy. He immediately spoke to the applicant at the machine. He had a conversation with the applicant in words to the following effect:
‘“Why didn't you lock out when you reached into the unloader? Do you know you’re overriding the safety system?”
“I always do it. It's not much risk and it was quick. I was just grabbing bricks from edge hacks.”
“It's not acceptable James. You need to do LOTO every time. You've done LOTO training and you know the procedure. Every time you enter a guarded area, you must tag out of the machine. You need to think about safety as your number one priority. Do you understand?"
"Yes".’ 2
[10] After talking to the applicant, Mr Nicholls was still concerned as he had not received the impression that the applicant thought what he had done was wrong. In order to reinforce his concerns relating to what appeared to him to be the deliberate nature of the applicant's actions he had a meeting with the applicant in his office the next day. During this meeting he reiterated that the applicant was to follow the LOTO procedure each time he entered the machine. He then had a conversation with the applicant in words to the following effect:
‘“You're going to receive a warning about the actions earlier today. The purpose of this warning is about changing behaviour. If your behaviour is changed no problem. If behaviour is not changed then more serious disciplinary action will be taken, including possible termination."’ 3
[11] Following this conversation, Mr Nicholls issued a written warning to the applicant. A few days after the warning was issued, Mr Nicholls once again reinforced to the applicant the importance of working safely.
[12] During her cross-examination of Mr Nicholls, Ms Charlson did not challenge this version of events. She did seek to put to Mr Nicholls that the applicant's conduct had been relatively low risk. Mr Nicholls emphasised that his concern was the deliberate nature of the breach. While the activity might have been low risk the behaviour, in deliberately bypassing the LOTO procedure, was high risk. 4
The events leading up to the dismissal of the applicant
[13] On or around 16 February 2012, the applicant's team leader (Mr Murray) told Mr Nicholls that there had been a complaint by one of the applicant’s co-workers named Karen Moore that Mr Joss was ‘regularly breaching safety’. Mr Nichols, Mr Murray and Mr Gama subsequently interviewed a number of employees, including the applicant. One of the allegations made against the applicant was that he did not put his lock on when he entered the Dehacker machine.
[14] Mr Nicholls, Mr Gama, and Mr Murray met with the applicant at about 6:45 pm on 16 February 2012, following interviews with the other employees. Mr Nicholls invited a member of the respondent’s maintenance team, Fahri Fahri, to attend the meeting as a witness.
[15] In his written statement, Mr Nicholls said that the meeting went for around one hour. He said that he had a conversation with the applicant about his alleged failure to isolate the Dehacker machine, in words to the following effect:
‘“James, there have been some serious allegations that have been made regarding safety breaches on the machine, that you are entering the machine without locking out and that you are playing games with Karen. Do you ever go through the eye beams without tagging out?”
“Occasionally I forget.”
“How often is occasionally”
“Could be five times.”
“Five times a week? Five times a month?”
“Five times a shift.”
“We've been told you enter the eye beams. We've been told that you did this in November, two weeks before Christmas, and straight after the last LOTO training.”
“I don't remember the LOTO day. I don't want to go through any more events.”
“Do you ever intentionally go into the tyne board area?”
“Yes”
“James how can you still do this? You've been trained you know the correct procedure.”
“I haven't been told you can't by anyone”
“You have James. We spoke about entering guarded machines last April. You said you understood the correct procedure. How do you get into the tyne board area? It's a platform.”
“I squeeze in between the packs, through the gap, because the gate has a catch.”
“Why don't you use the gate and tag out?”
“Because the gate stops the machine.” 5
[16] According to Mr Nicholls, at several stages during the interview the applicant was reminded that the matter was serious and could lead to further disciplinary action being taken. He was also offered the opportunity to go and discuss the issues with Fahri Fahri. 6
[17] Following the meeting the decision was taken to suspend the applicant on pay while the issue was further investigated. Mr Nicholls made contemporaneous notes of the meeting which were attached to his statement. While these were not identical to the content of his written statement, they were generally similar.
[18] During his cross-examination, Mr Nicholls said that the applicant did not come across as being confused during the meeting. 7 He was offered more time because Mr Nicholls was surprised at what the applicant was telling him.8 ‘It was about, “Do you want to go and think about what you're actually telling me?" Because it was quite serious in nature.’9
[19] Mr Gama, in his written statement, generally corroborated Mr Nicholls’s version of the meeting. He indicated that before the meeting started the applicant was asked if he wanted to have another person present; he answered no. According to Mr Gama, when the applicant was asked why he had been entering the machine without following the correct LOTO procedure, he answered:
“I've been reading a book about production levels in the sixties and seventies and the LOTO procedures slow me down. I'm helping the company.” 10
[20] According to Mr Gama, the applicant indicated that he would ‘forget’ to isolate ‘five, six, seven’ times a day. When asked how he could enter the area and have the machine still running the applicant said:
“I climb through the gap between the gates.” 11
[21] According to Mr Gama, just prior to being told that he was to be suspended on pay, Mr Nicholls said to the applicant:
“James this is really serious and could lead to you losing your job. I warned you about isolating the machine in April last year and here we are again sitting down discussing safety breaches that you are admitting to."
“I have principles and I don't want to lie to the company.” 12
[22] Mr Gama added that at no stage during the meeting did the applicant say that he was confused or that he did not understand what was being asked of him. He was asked on more than one occasion if he understood or if he wanted further time for explanation. He refused an offer of a support person and at no stage requested union representation. 13
[23] The applicant, in his written statement, said there was a discussion during the meeting of 16 February 2012 to the following effect:
‘Grant Nicholls: “Have you been jumping fences?”
James Joss: “No.”
Grant Nicholls: “Have you been in to the tyne board area when the machine is running?”
James Joss: “I might have been in there once or twice over the past year.”’ 14
[24] The applicant's statement continues:
‘When I said this, it was getting late and I was getting a bit tired and afraid and nervous of the whole thing. They were all looking at me. I felt like they were trying to get something out of me, and that everyone wanted to go home, so that is why I said that. I thought that when I said this, it would mean that the meeting was over and we could all go home.’ 15
[25] In a second written statement he denied saying words to the effect of ‘five times a shift’. 16
[26] During his cross-examination the applicant’s response to most of the questions he was asked about the meeting of 16 February 2012 was that he could not recall. He did however agree that he had said that he squeezed between the packs to get into the tyne board area. 17
[27] On 21 February 2012 a further meeting was held, attended by Mr Nicholls, Mr Gama, the applicant, and Mr Prentice. According to Mr Nicholls's statement, words to the following effect were spoken:
‘“We’re here to discuss what you told us last Thursday before you were sent home -- that you admitted to intentionally breaching Boral safety systems. This is a serious matter which could lead to serious disciplinary action including termination. Do you understand?”
“Yes.”’ 18
[28] According to Mr Nicholls’s statement, the applicant said that he went through the gate sometimes. He had put his tag on the gate after having climbed up into the tyne board area. Mr Nicholls told the applicant that he was concerned that he was in a live area with access to the moving parts of the machine. He suggested:
“James why don't you go and talk to John (Mr Prentice) about this and make sure you understand what you are saying.” 19
[29] The applicant returned to the interview room and said:
“John's told me I'm not giving you the answers you want to hear.” 20
[30] Mr Nicholls then asked the applicant:
“James how often are you going into the machine without tagging out? How many times out of 100 would you go into the machine without taking out?” 21
[31] The applicant responded with multiple answers, ‘two times’, ‘five times’ and ’10 times’. When asked how he was going through the tyne board area as the platform was 1.5 metres off the ground he answered that he jumped up on the forklift and squeezed between the packs. Mr Nicholls asked him to demonstrate. All those participating in the meeting then went down to the factory floor, where the applicant proceeded to demonstrate how he got into the tyne board area of the machine without isolating it. According to Mr Nicholls he did this by ‘gesticulating how he would climb up the forklift to get onto the tyne board platform, and then gestured to the gates (which are not isolation gates, they are there simply to prevent tyne boards from falling from the platform).’ The applicant said that he brought the forklift up, stepped onto the front of the fork, then on to the armguard, then up into the tyne board area and squeezed through the packs. 22
[32] During his cross-examination, Mr Nicholls said that he could not think of any reason why the applicant would climb up the forklift into the tyne board area to go and to lock out, given that there was a set of stairs about a metre to the left. 23
[33] According to Mr Gama's statement, the applicant said during the meeting that he did go on to the platform but that he would put his lock on the gate as he was ‘slipping in’. According to Mr Gama, when it was put to the applicant during this second meeting that he had admitted going into the machine while it was still running the applicant responded:
“I need to be honest. I'm an honest man. I went in the machine while it was going. I have principles and they are to work hard and not lie.” 24
[34] In his statement, Mr Prentice said that Mr Nicholls asked the applicant a number of questions during the meeting. ‘A number of these questions were essentially the same question using different words. James gave various confused-sounding and contradictory answers to these questions. For example, a conversation took place in words to the effect:
‘Grant Nicholls: “Did you go into the area and not follow the correct safety tagging procedures?”
James Joss: “A little bit.”
Grant Nicholls: “Did you go in there?”
James Joss: “Oh, maybe 10%.”
Grant Nicholls: “Did you not to tag in before going into the area?”
James Joss: “Maybe 5%.”
Grant Nicholls: “Did you go into the area.”
James Joss: “No.’” 25
[35] Mr Prentice said that he was extremely confused by the questions and answers that were given during the meeting. Even Grant Nicholls looked and sounded confused by the answers which the applicant was giving. His statement indicated that Mr Nicholls said to the applicant that they should ‘go down there and you can show me what you did.’ 26
‘The four meeting participants then went to the area of the Bringelly plant which was under discussion. It was extremely noisy while we were at this area of the plant as the machinery was in operation. Grant Nicholls and James had a conversation with each other while we were all standing by the machine. I could not hear very well, and I missed most of what was said.’ 27
[36] During his cross-examination about the second meeting the applicant's response to most questions was that he could not remember. He did however say that he could remember telling Mr Nicholls that he would jump up on the forklift to get into the tyne board area platform.
‘And you said, "I bring the forklift up. I step on to the front of the forklift then on to the armguard then up into the tyne board area and I squeeze through the packs. That's when you go across to the gate". Do you remember saying that? ---Vaguely remember.
Yes, and you know, don't you, that there is no isolation switch on ... those gates that you climb over? There is no isolation switch on those, is there? If you take them off, the machine doesn't stop? ---No, no. No, everything keeps on going.
So you went through the area and over to the gate? ---Yes.
Whilst you're going through that area the machine is still moving, isn't it? ---Yes.’ 28
[37] When questioned from the bench, the applicant denied that he had ever climbed up on the forklift. He said that he climbed up the stairs and used the gate. This would stop the machine. However, he agreed that he had said that he climbed up on to the tyne board area.
‘I was saying that in the beginning and then I got a bit confused, messed up. I was---
But why did you say it? ---Because I thought-like, they wanted some sort of answer and they-you know, I was under a lot of pressure.
But why wouldn't you just tell them the truth? ---Because partly-because Karen, she was accusing me of doing something again and it wasn't true. And because she was a lady I thought I had to, like, be some sort of, you know, show a little bit of respect. I thought at first that was the way to do it, and I was-I felt like I was trying to protect her a bit as her being a lady plus a workmate. So that's how I got a bit messed up and confused myself, because I was just trying to be-I thought I was doing the right thing and I was just trying to-they-I don't know what I thought. Might have been trying to be, you know, protecting her a bit and-partly, yes.’ 29
[38] At the conclusion of the meeting on 21 February 2012 Mr Nicholls asked the applicant to confirm that everything he had told them was correct, which he did. He then indicated to the applicant that the company had taken everything he had said in the last two interviews into consideration and had found the following: by his own admission he had breached Boral’s isolation procedure and that these breaches were intentional not accidental. He had been trained in LOTO on multiple occasions and it had been discussed in numerous toolbox meetings. He had made his expectations clear recently and although he believed that Mr Joss thought he was acting in the best interests of the company he did not get the impression he understood the gravity of what he had done or that he understood why there were safety procedures and what they were there for. He did not want Mr Joss to get hurt at the plant. Based on his responses, they felt that they had no other choice but to terminate his employment effective immediately. While they considered the breaches of safety procedure was serious misconduct, they would still pay him in lieu of notice of termination. 30
The Termination Letter
[39] On 24 February 2012, Mr Nicholls wrote a letter to the applicant confirming the decision of Boral to terminate his employment with immediate effect. The letter included the following:
‘The decision to terminate your employment is due to the fact that during the investigations on 16th February 2012 and in the subsequent interview on the 21st February 2012 you admitted to intentionally bypassing Boral’s unloader safety system as a consistent practice over the last couple of years. Specifically you talked about climbing up off the fork into the tyne board loading area (approx 1.5M off the ground), squeezing through between the tyne aboard packs and the fence and then working in the area. Entering this area by this manner meant that you were in a live area of the machine. When asked why you did not use pedestrian gate, which had a safety interlock, you replied that "it shuts off the machine", which demonstrates knowledge of the safety system.
This admission was made in the first interview in front of myself, Raul Gama (Production Manager), Gary Murray (Production Team Leader), Fahri Fahri (Shift Electrician) and again in the second interview in front of myself, Raul Gama (Production Manager) and John Prentice (CFMEU representative) which included a re-enactment at the tyne board area.
Your failure to adequately control and isolate all energy sources in the area was a breach of isolation procedures. As a result you failed to comply with the isolation procedure that you were trained in and placed the personal safety of yourself and others at risk.
The importance of isolation is a constant source of focus in the plant, including formal discussions on:
- 9th October 2000
- 26th June 2007
- 4th September 2008
- 23rd of January 2012.
To add to this you were personally warned on 8th April 2011, less than 12 months before this incident by the previous Production Manager (Youseph Sarmast) and myself, who both witnessed an intentional breach of the safety system on the same machine. During this process we discussed Boral's expectations for you to lock out every time a guarded area was entered, to which you agreed.
The Company must insist on a standard of behaviour with regards to safety in order to ensure the safety of everyone on its sites. The company has made clear its standard through training and counselling and your actions outlined above were found to be unacceptable. Furthermore, your flagrant breaches of Boral isolation requirements have placed yourself and others at significant personal risk. The company no longer trusts that you can safely perform the requirements of your position and as such is terminating your employment.’
Conversation after the termination
[40] According to the applicant the day after he was told that he had been dismissed he thought about it hard and thought that ‘I couldn't have climbed up on the forklift. It is possible, but it would be too difficult, and why would you bother? I telephoned Grant Nicholls, and we had a conversation in words to the effect:
James Joss: “Grant, I was thinking a bit about what I said the other day, and I couldn't have done it. It would have been too difficult. I entered the machine by opening the gate and putting the tag between the gate and where it locks in. That's how I do it. At the first and second meeting, it just went on for too long. I have never been in that situation. I was pressured to say something. I just said the wrong thing, you know." 31
[41] The applicant’s evidence is that Mr Nicholls told him:
“OK. But I have to run it by HR.” 32
[42] According to Mr Nicholls's statement, the day after the termination of his employment the applicant rang him and told him he remembered the events regarding his entry into the machine differently. During this telephone call, the applicant and Mr Nicholls had a conversation in words to the following effect:
‘Me: “Why James after several hours of interviews and plenty of time to seek counsel with the union, solicitors and your workmates do you now remember the situation differently?”
James: “I’ve been thinking hard.”’ 33
[43] Mr Nicholls’s evidence is that the telephone call continued for around 20 minutes. During this time he reiterated that he thought that the applicant had been given plenty of opportunity to give his version of events. He did however agree to ask the human resources department if the company would consider letting the applicant make another statement; though he told the applicant he considered that this would be unlikely. The applicant did not say to him anything to the effect that the answers he had given previously were wrong because he felt he was under pressure.
[44] During his cross-examination Mr Nicholls reiterated that the applicant never said he was under pressure. ‘He just said to me that he remembered it differently.’ 34
[45] In the event, the HR Department decided that the applicant had been given ample opportunity to state his case and that his termination of employment would stand.
Submissions on behalf of the Applicant
[46] Ms Charlson, on behalf of the applicant submitted that the onus was on the respondent to establish that the alleged misconduct took place. The respondent had failed properly to particularise the misconduct alleged against the applicant. The respondent relied solely on the admissions made by the applicant, even though they were retracted shortly after they were made. The applicant denies breaching the respondent’s isolation system by improperly entering the tyne board area of the respondent’s factory.
[47] Ms Charlson submitted that the meeting on 16 February was held after the applicant had completed a 12 hour work shift. It lasted between one and a half to two hours. At most, even based on Mr Nicholls’s version of events, the applicant only admitted to forgetting to tag out, rather than intentionally doing so. Moreover there was a conflict in the evidence about how often the applicant failed to tag out. The admissions made by the applicant fell significantly short of intentionally bypassing the respondent’s safety system as a consistent practice over the last couple of years, as asserted in the letter of termination.
[48] Ms Charlson submitted that the applicant gave a cogent explanation as to why he had made false concessions, in particular that he was under pressure and wanted to give the managers what he thought they wanted, as well as a misguided reluctance to besmirch Ms Moore.
[49] Ms Charlson also submitted that an adverse inference should be drawn in respect of the respondent’s failure to call any witnesses with direct knowledge of the alleged misconduct.
Consideration
[50] Section 396 of the Fair Work Act 2009 requires that FWA must decide certain matters before considering the merits of the application. I find that the application was made within the period required in subsection 394(2), that the applicant was protected from unfair dismissal, that the Small Business Fair Dismissal Code has no application, and that the application did not concern a case of genuine redundancy.
[51] The issue before me therefore is whether the applicant’s dismissal by the respondent was harsh, unjust or unreasonable. Section 387 of the Act spells out the criteria for consideration in deciding this issue. These are:
‘(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
[52] Before considering each of these criteria, I make certain observations about the evidence. It is clear that the decision of the respondent to terminate the applicant’s employment was made based on what the applicant himself said (and demonstrated) to the respondent’s managers. It was not based on the allegations made by the applicant’s co-workers. The respondent did not seek to rely on any evidence from these co-workers at the time of his dismissal and no adverse inferences should be made concerning its failure to call any of them as witnesses. Secondly, the applicant made a very poor witness. He was extremely evasive and claimed not to recollect much of what occurred during the two key meetings. Much of his evidence lacked any credibility. It is simply a bizarre proposition that he had concocted the story of using the forklift to climb into the tyne board area. His claim that he said this out of respect for Ms Moore is totally implausible. Moreover it is stretching the bounds of credulity to suggest that he climbed up on the tyne board platform using the forklift unless this was to avoid having to tag out the machine. Moreover such action by its very nature was clearly deliberate. While his admissions during the two meetings were slightly confused their overall thrust was not. This was to the effect that he repeatedly and deliberately accessed the tyne board area of the Dehacker machine without tagging out. I do not consider that he was placed under pressure to make those admissions. Indeed he was given plenty of opportunities during the two meetings to reconsider those admissions, but failed to do so. In these circumstances the retraction he made after his dismissal cannot be given any real weight. I found Mr Nicholls by contrast to be a credible witness. His answers during cross examination were clear and consistent with his written evidence. His evidence was generally consistent with his own contemporaneous records and with the evidence of Mr Gama, who also presented as a credible witness. Indeed, there is very little of substance in the evidence of Mr Prentice that was inconsistent with that of Mr Nicholls. Where there is a conflict in the evidence of the respondent’s and the applicant’s witnesses I prefer that of the former.
Was there a valid reason for the dismissal?
[53] I am satisfied that the applicant repeatedly and deliberately breached the respondent’s safety procedures. He did this after having received training about those procedures and a clear warning in the preceding 12 months about similar conduct, which included being put on notice that such behaviour could lead to the termination of his employment. This constitutes a valid reason for dismissal.
Was the Applicant Notified of the Reason for his Dismissal?
[54] The applicant was notified of the reasons for his dismissal at the end of the meeting of 21 February 2012. These were confirmed in the letter of 24 February 2012.
Was the applicant given an opportunity to respond to any reason related to his capacity or conduct?
[55] The applicant was given an opportunity to respond to Boral’s concerns regarding his conduct during the meetings on the 16 and 21 February 2012.
Was there any unreasonable refusal by the employer to allow the applicant to have a support person present to assist at any discussions relating to dismissal?
[56] I am satisfied that the respondent did not refuse to allow the applicant to have a support person present at the meeting of 16 February 2012. At the meeting of 21 February 2012 the applicant was accompanied by a CFMEU official.
If the dismissal related to unsatisfactory performance by the person, had the person been warned about that unsatisfactory performance before the dismissal?
[57] The applicant was dismissed for misconduct rather than on performance grounds. Nevertheless I note that the applicant had received a warning in relation to breaches of safety procedures in April 2011. The respondent had made very clear to the applicant the importance of complying with safety procedures and the potential consequences for failing to do so.
The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[58] The respondent is a large employer. The procedures it adopted in effecting the dismissal were consistent with that status.
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.
[59] This factor is not relevant in the circumstances. The respondent had dedicated human resource management specialists.
Any other matters that FWA considers relevant.
[60] I have had regard to the very serious consequences for the applicant arising from his dismissal. He had a long period of service with the respondent and has very limited experience with any other employer. It is likely that he will have difficulty finding other permanent employment in the manufacturing sector. His actions may well have been motivated by a desire to do a good job. However this has to be balanced against the critical importance of occupational health and safety. The respondent had repeatedly emphasised the importance placed on its employees complying with OH&S procedures. It is clear that the respondent's managers took no pleasure in terminating the applicant's employment. However they were genuinely and reasonably concerned at the potential for the applicant's attitude to OH&S to place himself and others at serious risk.
Conclusion
[61] Having regard to all the relevant criteria I am satisfied that the applicant's dismissal by the respondent was not harsh, unjust or unreasonable. The application is accordingly dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms L Charlson, for the applicant
Mr R Warren of counsel, with Ms K Leitch for the respondent
Hearing details:
2012
SYDNEY
8, 9, 31 August
1 Exhibit B5
2 Ibid, paragraph 27
3 Ibid, paragraph 28
4 PN924-945
5 Exhibit B5, paragraph 37
6 Exhibit B5, paragraph 37
7 PN1266
8 PN1262
9 PN1267
10 Exhibit B2, paragraph 20
11 Ibid
12 Ibid
13 Ibid
14 Exhibit J3, paragraph 28
15 Ibid, paragraph 28
16 Exhibit J4, paragraph 36
17 PN698
18 Exhibit B5, paragraph 40
19 Ibid
20 Ibid
21 Ibid
22 Ibid, paragraph 41
23 PN1412-1414
24 Exhibit B2, paragraph 24
25 Exhibit J7, paragraph 11
26 Ibid, paragraph 13
27 Ibid
28 PN737
29 PN752
30 Exhibit B5, paragraph 42
31 Exhibit J3, paragraph 33
32 Ibid
33 Exhibit B5, paragraph 52
34 PN1621
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