Mr Marco Pronk v Woolworths Group Limited
[2020] FWC 633
•6 FEBRUARY 2019
| [2020] FWC 633 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Marco Pronk
v
Woolworths Group Limited
(U2019/6769)
COMMISSIONER SIMPSON | BRISBANE, 6 FEBRUARY 2019 |
Application for an unfair dismissal remedy – Safety Incident – Previous Warnings issued – Valid reason for dismissal – Dismissal not harsh, unjust or unreasonable
[1] On 19 June 2019, Mr Marco Pronk made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Woolworths Group Limited (the Respondent).
[2] On 1 October 2019, I issued a decision [2019] FWC 6770 extending time for the filing of the application. The matter was heard in Brisbane on 26 November 2019 and final written submissions were filed on 11 December 2019. Mr Pronk represented himself and the Respondent was granted leave to be represented by Ms A-Kahvari instructed by MinterEllison.
BACKGROUND
[3] Mr Pronk was employed by the Respondent in the role of DC Storeperson, Day Shift, Supply Chain – Operations at the Brisbane Regional Distribution Centre (BRDC), from 30 August 2010 to 22 May 2019. Prior to this and in March 2010, Mr Pronk had worked at the BRDC through an agency.
[4] During Mr Pronk’s employment, the Respondent submitted that Mr Pronk was involved in approximately 12 safety incidents. 1
[5] On 10 July 2018, Mr Pronk had been issued with a final warning and had been suspended in relation to a forklift incident which had occurred on 2 July 2018. Mr Pronk was stood down for one month and required to complete refresher training upon completion of his suspension. 2
[6] On 13 May 2019, a safety incident occurred at the BRDC involving Mr Pronk and another staff member and DC store person, Mr Roger Stubbings. There is some dispute between parties as to the specific nature of the safety incident.
[7] It is agreed that Mr Pronk was operating material handling equipment (MHE) and that there was a collision in the vicinity of Mr Stubbings.
[8] It is not disputed that there was a collision and that Mr Pronk did not immediately report it to his team leader. The incident was reported by Mr Stubbings one hour later.
[9] On 14 May 2019, Mr Pronk attended a meeting with Mr Albi Missen, Mr Pronk’s team leader at the time. At the meeting, Mr Pronk and Mr Missen discussed the safety incident and reviewed the CCTV of the incident. The meeting was part of an investigation process into the incident.
[10] On 17 May 2019, Mr Pronk was presented with a show cause letter which explained that the investigation had led to the reasonable belief that he had breached Woolworths' policies and it was determined that Mr Pronk’s actions constituted a breach of his employment contract. The show cause letter invited him to respond and provide any mitigating circumstances he felt should be taken into account before any final decision was made regarding his employment by 9:00 am, 21 May 2019.
[11] On 21 May 2019, Mr Pronk provided a written response to the show cause letter which stated that Mr Pronk felt overwhelmed to get the job done, as there was a lot of shorts, and he was unable to get help as his trainer was loading for the day and BRDC was short staffed. 3 Mr Pronk stated he was disappointed with himself for not doing the right thing and putting not only his safety but the safety of his peers second to service, and that he was truly sorry for his actions on that day and it was by no means deliberate and he wished he could have changed it.4
[12] After receiving the show cause response, Mr Bjorn Ohlsson made the decision to terminate Mr Pronk’s employment on the basis that he did not have any confidence Mr Pronk would be able to comply with Woolworths' safety processes and procedures in the future. 5
[13] At time of termination, the Respondent paid Mr Pronk 4 weeks in lieu of notice, notwithstanding the fact that the dismissal was on the basis of what the Respondent considered it a serious safety breach. 6 Mr Pronk did not dispute that he was paid notice.
LEGISLATION
[14] Section 385 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[15] The Respondent is not a small business employer.
CONSIDERATION
[16] Mr Pronk was the only witness to give evidence in his case. The Respondent called, five witnesses, Mr Roger Stubbings, Mr Albi Missen (Temperature Control Operations Receipt, Team Leader), Ms Michelle Simpson (People and Culture Partner), Mr Tom Bax (Shift Operation Manager) and Mr Bjorn Ohlsson (Supply Chain Manager).
[17] Mr Pronk’s witness statement of 19 November 2019 was admitted into evidence. 7 The statement included that in late March early April 2019, Mr Pronk had been successful in his application to be trained as a ‘Shorts Runner’, a particular role in the distribution centre.
History of Safety Issues
[18] It was put to Mr Pronk that there had been at least 12 safety incidents of various degrees of seriousness that he had been involved in whilst employed at the Respondent. Mr Pronk initially rejected that but then appeared to accept there was “approximately” that number of incidents. 8
[19] Mr Pronk was asked about an incident on 9 July 2016 which resulted in him receiving a first and final warning involving him attempting to put away a pallet into C level racking with a front broken pallet. Mr Pronk appeared to accept the findings of the investigation into this issue. He accepted that the first and final warning was for a breach of the Code of Conduct. 9
[20] Mr Pronk accepted that the action plan instituted following this first and final warning included various safety instructions, including that all incidents are reported immediately. 10
[21] It was also not in dispute that Mr Pronk was suspended from forklift operation duties following this incident in 2016 until he had completed a full refresher training on the forklift safety policies and procedures and work instructions. Mr Pronk accepted he attended this training. 11
[22] Mr Pronk agreed that another incident occurred on 2 July 2018, assessed as a category 2 incident which he accepted was “pretty up there in terms of severity”. 12 Mr Pronk accepted that on that date he was driving a forklift near the hub where staff collect equipment to do their jobs and as he turned left to head toward the battery room, the pallet stack he was carrying toppled to the right and struck an MHE sitting in the parking area.13
[23] It was put to Mr Pronk that at the time, the incident was recorded on CCTV footage and showed him travelling at speed. Mr Pronk replied it was possible. He accepted that it was alleged at the time he was travelling at speed, and that it was found after an investigation excessive speed was the main contributor to the incident. 14
[24] It was also put to Mr Pronk that it was found at the time his pallet load was two pallets too high and he appeared to accept that he had breached the safety policy. 15 He said he did not recall the other finding at the time that the pallets were misaligned. Mr Pronk also appeared to accept that in this incident pallets narrowly missed hitting another employee standing behind the MHE. In his oral evidence, Mr Pronk indicated he did not have a good recollection of the incident but accepted that he was given a final warning at the time.16
[25] Mr Pronk agreed that a further action plan was put into place, and that he was stood down for a month at the time as a consequence of the incident. Mr Pronk agreed that prior to being able to return to his duties after his suspension, he had to undertake full training in relation to forklifts again. 17
[26] Mr Missen gave evidence about his investigation of the July 2018 incident and his issuing of a final warning to Mr Pronk at the time. 18
Training for Shorts Role
[27] Mr Pronk said for his training in the new role as Shorts Runner he was rostered over a period from Monday 29 April 2019 to Thursday 2 May 2019. Mr Pronk said his training on the Monday was cancelled as it was said it would easier to be trained in the chiller rather than in produce.
[28] Mr Pronk said his training on the Tuesday, Wednesday and Thursday was split with another employee who was struggling. Consequently, Mr Pronk stated he received insufficient training. 19 Mr Pronk said he did not receive any other training until Monday 13 May 2019, the day of the incident that led to his dismissal.
[29] In his supplementary statement 20 Mr Missen said that his evidence that Mr Pronk had been undertaking the last day of a two-week training program for the shorts clerk role was on the basis of his knowledge of how long it normally takes someone to be trained in the shorts clerk role.
[30] Mr Missen said he understood the training usually involves someone undertaking a week of training with a trainer and a second week of training by themselves and they are not supervised during the second week.
[31] Mr Missen said that at the meeting with Mr Pronk on 22 May 2019, he said to Mr Pronk that he had commenced shorts training on 30 April 2019 and asked whether he felt unable to perform the role unattended on 13 May 2019, despite almost two weeks of training. Mr Missen said that Mr Pronk replied that he had only undertaken three days on Tuesday, Wednesday and Thursday and this was recorded in his notes.
[32] Mr Missen said that when Mr Pronk said that he had only completed three days of training, he took this to mean that Mr Pronk had completed the first week of his training because a ‘week’ of training depends on an employee’s roster. 21
[33] Mr Missen accepted that during the investigation, he did not check Mr Pronks training plan to see when he had done his shorts training but said he had evidence that Mr Pronk had been signed off on 14 May as competent. 22
[34] The Respondent tendered a two-page document titled “Assessment Technique Review – Inventory Shorts”. Mr Pronk’s name was included in the detail section. This document included a “Walkthrough Checklist, a three column table. The first column contained 15 questions in relation to screens. The second column was titled “Competent” and the third column titled “Not Yet competent”. The “competent” column contained 10 ticks, and 5 “N/A”. On the second page, a further table was included where a participant would receive a rating in “Excellent”, “Good” or “Fair” in three categories: Technique, Demonstrative and Overall. Mr Pronk received a rating of “Good” for the three categories. This document was signed and dated by Mr Pronk on 14 May 2019.
[35] Mr Missen said that Mr Germon who was Mr Pronk’s trainer would not have been aware of the investigation of the incident on 13 May and there was no reason to involve him and it was confidential. 23
[36] Mr Pronk raised in his evidence that if the incident was so serious, why did Mr Missen not take him off the shorts function immediately after learning of it.
[37] Mr Pronk said that management had failed to provide him with adequate training for the shorts role.
13 May 2019
[38] Mr Pronk said that, on Monday 13 May 2019 as the morning progressed and shorts were ‘blowing out’, he was under tremendous pressure.
[39] Mr Pronk said in his statement that he was in aisle CB in the chiller and a picker, Mr Stubbings, was coming up and saw Mr Pronk was about to come through and so he stopped and said Mr Pronk could come through. Mr Pronk said Mr Stubbings was working on one side of the aisle and as he was driving through the gap of Mr Stubbings’ forklift, he clipped a pallet that had been sticking out too far with his bottom pallet. Mr Pronk said the pallets at the bottom shifted as part of the impact. Mr Pronk said he had never admitted to hitting the racking as stated by witnesses for the Respondent in their statements.
[40] Mr Pronk accepted that he was operating a single Pallet Mechanical Handling Equipment (MHE) at the time of the incident on 13 May 2019. 24 Mr Pronk accepted the incident occurred between 6.30 am and 7.00 am and that he did not report the incident to Mr Missen until approximately 12pm that day.25
[41] Mr Pronk accepted that he did continue to operate equipment after the incident and did not preserve the scene or secure it after the incident, and that he did not immediately report the incident. 26 Mr Pronk indicated that he understood at that time that he had been told any future safety incidents could lead to his dismissal.
[42] Mr Stubbings gave evidence that he had been employed at BRDC for nearly 20 years. Mr Stubbings said that on 13 May 2019, he was undertaking forklift duties. He said in the section he was working there is racking which means in order to replenish the stock he needs to park the forklift, get out of it physically and put the goods in the racking by hand instead of using a forklift. 27
[43] Mr Stubbings said that at approximately 6.50 am, he was outside the forklift replenishing goods and as he was doing this, he saw Mr Pronk drive past him on MHE equipment and smash into a pallet in the same aisle but opposite the location from where he was standing. Mr Stubbings said that he noticed a pallet slightly protruding from the aisle after the incident but not by more than a couple of centimetres. 28
[44] Mr Stubbings said the force of the collision caused the MHE Mr Pronk was driving to spin around into his direction and miss him by about half a metre and it also caused Mr Pronk to be tossed out from the machine he was operating. 29
[45] Mr Stubbings said that after Mr Pronk was tossed out, he said to Mr Stubbings words to the effect of “Gee, that was close, wasn’t it?” Mr Stubbings said he responded with words to the effect of “Yeah, it bloody well was.” Mr Stubbings said after the exchange Mr Pronk continued on down the aisle. 30
[46] Mr Stubbings said that it appeared to him that Mr Pronk was driving at an excessive speed and had misjudged the amount of space in the aisle which was restrictive. Mr Stubbings provided a diagram of the incident. Mr Stubbings said after the incident he felt a huge rush of adrenalin and was very shaky. 31
[47] Mr Pronk did not really challenge Mr Stubbings’ evidence when he had an opportunity to do so.
[48] Mr Missen gave evidence about being approached by Mr Stubbings on the morning of 13 May 2019 around 8:00 am and Mr Stubbings providing a written statement at the time. Mr Missen stated that it was not until 12:00 pm that day when Mr Pronk approached him and advised him of the safety incident.
[49] Mr Pronk said that the Respondent needed to address why the pallet was sticking out, rather than fabricating the story that he hit the racking. Mr Pronk said it had been stated that his pallets were skewed. Mr Pronk said he was not told that at the time and he never signed off on that.
[50] Mr Pronk also said there is nothing to stop pallets being pushed further than they should be (on the racking) and this is why the incident happened.
[51] During his oral evidence Mr Pronk maintained that he made contact with a pallet sticking out from the pick face and not the pallet racking itself. 32 He appeared to accept that he did not see it before the incident itself.33
[52] Mr Pronk agreed that the tynes which the pallets sit on are at the back of the particular MHE he was operating. He accepted that after contact occurred, the tynes swung out. It was put to Mr Pronk that they narrowly missed Mr Stubbings, and Mr Pronk estimated by no less than half a metre. 34 He accepted that the machine swung in Mr Stubbings’ direction and it swung under the pallets that were slightly raised on Mr Stubbings’ forklift.
[53] Mr Pronk appeared to accept that he had to put his leg down to stop himself from exiting the vehicle he was operating. 35
[54] Mr Pronk asked Mr Missen about his written evidence that Mr Pronk collided into racking and also an inconsistency with Mr Stubbings’ statement that Mr Pronk connected with a pallet slightly protruding. Mr Missen appeared to accept Mr Stubbings’ version as correct and that Mr Pronk did not hit the racking. 36
[55] During the Hearing, it was put to Mr Missen whether his views to commence the investigation, his decision as to the seriousness of the incident, his decision to issue a show cause letter, and the Respondent’s final decision to terminate Mr Pronk’s employment would have been altered had Mr Pronk hit the racking and not the pallet, or vice versa. He said it would not have altered his view regarding the investigation outcome whether Mr Pronk hit the racking or the pallet. 37
[56] Mr Pronk also queried Mr Bax about his evidence concerning whether Mr Pronk hit the racking or a pallet. Mr Bax said that there was a collision near where the racking was where the pallets were. Mr Bax said that he was more concerned that there was a collision. 38
[57] Mr Pronk put to Mr Ohlsson that when Mr Ohlsson was told Mr Pronk hit the racking he knew that to be false. Mr Ohlsson denied this, and referred to the show cause letter sent to Mr Pronk that stated Mr Pronk hit the racking. Mr Ohlssen further stated that in Mr Pronk’s response to the show cause letter, Mr Pronk did not say otherwise. Mr Ohlsson said he reviewed the CCTV footage and it was very hard to determine either way and it was irrelevant, as they were addressing that Mr Pronk did not report the incident. 39
[58] Mr Pronk said that he requested help from his trainer on the morning of 13 May as it was ‘blowing out’ and he said his trainer said he should go to the office and ask for help. Mr Pronk said his request for help was denied and he was left on the function for the rest of the day.
[59] Mr Pronk said in his evidence that Mr Missen had told him that nine forklift drivers had not turned up to work that Monday. Mr Pronk said that Mr Missen and Mr Mulholland (the Team Leader for forklifts) should have put him on forklifts that day as he was a fulltime forklift driver, and Mr Germon, , an experienced Shorts Runner, could have done shorts.
Previous Training to operate MHE’s
[60] Mr Pronk submitted that Ms Simpson for the Respondent has included in her evidence paperwork signing him off for the different types of MHE machines in 2010 when he first started at the distribution centre, for example the Linde R16 reach forklift, the Toyota BT reach forklift, and the two pallet Raymond loading/unloading machines.
[61] Mr Pronk argued that he should have received refresher training on the MHE he was operating on 13 May 2019.
[62] Mr Pronk agreed he was provided three days of training in operating MHE in early March 2010 when he was still employed by a contractor. It was put to Mr Pronk that training was for both single and twin pallet MHE’s. He did not appear to contest that but said his initial employment was using a two pallet MHE and he did this for a period of time, and later worked on forklifts which are also an MHE vehicle. Mr Pronk accepted that it was his signature on a document attached to the statement of Ms Simpson confirming he had received training for both twin and single pallet MHE. 40
[63] Mr Pronk accepted that he did further training in the operation of forklifts and was assessed as competent on 2 August 2018, and one of the criteria was to maintain a safe distance from MHE vehicles and pedestrians. Mr Pronk also accepted that he had signed a document indicating that he had been trained about preserving the scene of an incident. This signed document dated 2 August 2019 was tendered by the Respondent. It includes two images of incidents, with the following statements underneath: 41
“should any incident like this occur, do not move anything! Failure to adhere to the 3 pallet space rules may result in disciplinary action, serious injury or even death!”
Reporting of Incident
[64] Mr Stubbings said in his statement that at the BRDC employees are all well-indoctrinated to report any incidents including near misses. 42 He said he had expected Mr Pronk to have reported the incident and for a Team Leader or Team Coordinator to have approached him about it, but no one had.
[65] Mr Stubbings said that he had been approached by a few of his colleagues and he recalled one said they heard he had a close call. After an hour, he approached Mr Missen and asked him if anyone had reported the incident an hour earlier and Mr Missen had told him no one had reported the incident. Mr Stubbings said he was asked to complete a handwritten statement which he did and this was attached to his statement. 43
[66] Mr Pronk said in his oral evidence that Mr Stubbings did not report it straight away either. 44 During cross examination of Mr Ohlsson, Mr Pronk put to him that he was treated differently from Mr Stubbings, as he had also not reported the incident immediately. Their exchange is as follows:
Mr Ohlsson: | I will try to give you a short response to that. You had the incident, you are supposed to report it. The proceeding is that if you, after you witnessed an incident, and you have not been questioned you go and ask your team leader if they need a witness statement and that's exactly what Mr Stubbings did when after an hour he had not been approached by a team leader, he then went to the team leader and said, "Has there now been a report of the incident that Mr Pronk had?" and no one knew about it. 45 |
Mr Pronk: | So regardless that there's reporting incidents no matter how big or small you're saying that the onus is wholly and solely on the person that caused it and no one else? |
Mr Ohlsson | The person who had the incident is expected to go and report the incident, correct. 46 |
[67] Mr Pronk accepted that he was aware of the Code standard that incidents and injuries are to be reported immediately. 47
[68] Mr Pronk appeared to accept that he had signed a document titled ‘Safe Operating Procedures’ on 2 August 2018 following training that said that all incidents including near misses, must be immediately reported.
[69] Mr Pronk asked Mr Stubbings why he did not report the incident for an hour and Mr Stubbings replied that he was waiting to be called up as he thought the incident had already been reported, and when he was not called up he decided to report the incident himself.
[70] Mr Pronk asked Mr Bax why he was not asked to write a statement, and that he was not drug and alcohol tested and that he wasn’t removed from doing the job function on the day indicating the incident was not that serious. Mr Bax said all incidents are serious and the Respondent needed to take into account previous incidents and that there would be an investigation. 48
14 May Signed Off as certified in WMS for shorts
[71] On 14 May 2019 Mr Pronk agreed he was signed off as having completed his shorts training in relation to the Respondent’s Warehouse Management System (WMS) in relation to the screens. 49
14 May Meeting
[72] Mr Pronk said he was called to the office on 14 May 2019 to meet with Mr Missen and Mr Mulholland was also present. He accepted he was offered a support person for the meeting. Mr Pronk said he was asked questions about the incident and showed the CCTV footage. Mr Pronk accepted that Mr Mulholland had raised that the pallets on the MHE he was operating appeared skewed. Mr Pronk did not accept that was what caused the collision. 50
[73] Mr Pronk accepted that at the meeting on 14 May 2019, he was asked why he did not report the incident for five hours. It was put to him that his response at the time was that he was focussed on the job at hand. Mr Pronk agreed and said that he was under pressure and overwhelmed. It was put to Mr Pronk that his failure to report the incident was a clear breach of his duty. He responded that he was adhering to instructions to do the job. Mr Pronk however said it was possible he said at the meeting on 14 May that he understood he should have reported the matter straight away. 51
[74] Mr Pronk said it was highly possible that at the meeting on 14 May 2019 he said to Mr Missen that if this happened again, he would be more aware and more focussed on his surroundings and report the incident straight away.
[75] Mr Missen said the CCTV footage of the 13 May 2019 incident was concerning because the impact of the MHE was substantial enough that the MHE spun nearly 90 degrees from the point of impact and Mr Stubbings was very close to getting hit by the pallets on Mr Pronk’s MHE.
[76] Mr Missen said at the interview with Mr Pronk on 14 May 2019 Mr Pronk said he did not properly remember the incident. However, he remembered that he was trying to get through between a Forklift Driver and a Picker and that he could not see Mr Stubbings. 52 Handwritten notes of this interview dated 14 May 2019, and signed only by Mr Missen, was tendered by the Respondent.
17 May Meeting
[77] Mr Pronk agreed he received an email from Mr Missen on 15 May 2019 asking him to attend a meeting on 17 May 2019. He said the email came after a phone call from Mr Missen. Mr Pronk agreed he was invited to bring a support person and he brought Mr Chris Wilkinson who attended the meeting with him.
[78] Mr Pronk agreed the meeting was also attended by Mr Tom Bax and Mr Ben Kaye. Mr Pronk accepted he was provided with a show cause notice dated 17 May 2019, signed by Mr Missen. Mr Pronk accepted that Mr Bax took Mr Pronk through the contents of the show cause notice at the meeting and provided some explanation of Mr Missen’s findings in relation to his investigation of the incident. 53
[79] Mr Pronk agreed that it was explained to him that he could respond to the show cause letter by 21 May 2019.
[80] Mr Pronk contested Mr Missen’s evidence that Mr Pronk had admitted to the allegations and was unable to articulate how the incident occurred. Mr Pronk said he articulated how the incident happened when he reported it.
21 May 2019 Response of Mr Pronk
[81] Mr Pronk confirmed his response was the document attached to the statement of Ms Simpson. 54 The response included the following;
“…The incident I had on 13th of May has caused disappointment with myself for not doing the right thing and putting not only my safety but the safety of my peers second to service. I am truly sorry for my actions on that day and understand I should have reported the incident immediately instead of a few hours later and this was by no means a deliberate act and I wish I could change it. I do take full responsibility for my actions and deeply regret them and commit to always putting safety first should I continue my employment with BRDC…”
[82] Mr Pronk accepted that at the time he understood his employment could be terminated.
[83] It was put to Mr Pronk that he did not make mention in this letter of a protruding pallet as a mitigating factor. Mr Pronk responded that that was because he had already addressed that issue with Mr Missen. 55 It was put to Mr Pronk that it was made clear to him that his response was an opportunity to raise any mitigating circumstances. He repeated his earlier response.
Woolworths Code of Conduct
[84] Mr Pronk accepted that he was aware of the Code of Conduct. It was put to him that he had received training in the Code of Conduct and he said there was something partly mentioned in re-training last year.
[85] Mr Pronk was asked if the Code of Conduct had been raised with him following multiple safety incidents he had been involved in. He said not the full Code. It was put to him that the relevant parts to do with safety had been and he responded only certain parts.
[86] Mr Pronk accepted that he was aware of the Code standard that incidents and injuries are to be reported immediately. 56
[87] Mr Pronk accepted that he was reminded of his safety obligations prior to the incident through safety campaigns at work such as ‘cracking the code’, and there were posters in the workplace in relation to safety requirements. 57
[88] Mr Pronk accepted that he was aware of safety and reporting obligations through counselling and meetings with Woolworths personnel in relation to previous safety incidents he had been involved in. 58
22 May 2019 - Termination of employment
[89] Mr Ohlsson said that either the day before he made the decision to terminate Mr Pronk’s employment, or the morning of 22 May 2019, he met with Mr Missen in his office to discuss the findings of the investigation into the incident in detail. Mr Ohlssson said they did not discuss whether Mr Pronk hit the racking or the pallet that went into the racking, and that was irrelevant to the fact that Mr Pronk did not report the incident. 59
[90] Mr Pronk accepted that he was offered an opportunity to bring a support person with him to the meeting on 22 May 2019 and this was again Mr Wilkinson. Mr Pronk agreed that at the meeting on 22 May 2019, Mr Missen went through the concerns that Mr Pronk had raised in his show cause response and asked some further questions. 60 Mr Pronk said Mr Mulholland also asked some questions.
[91] It was put to Mr Pronk that Mr Missen’s meeting notes of the meeting make no mention of Mr Pronk raising at this meeting that the incident was caused by a protruding pallet or a pallet protruding to far, and that he did not raise that issue. Mr Pronk responded he believed he would have but there is nothing to substantiate it. 61
[92] Mr Pronk said he did bring the topic up that he clipped a pallet at the pick face. Mr Pronk accepted that he was offered the opportunity to bring up anything else and he responded that nothing else came to mind.
[93] It was not in dispute that the meeting on 22 May 2019 then adjourned for a time and when the meeting reconvened, Mr Pronk was advised that it had been decided that he would be terminated due to his conduct being a serious safety breach. Mr Pronk was also handed a termination letter.
Other work
[94] Mr Pronk said at the hearing that he had obtained some casual work at 30 to 35 hours a week as a factory hand.
Valid Reason
[95] As stated above, there is no dispute as to whether a safety incident occurred on 13 May 2019. While there is dispute between parties as to what exactly happened, it is accepted that an incident occurred which involved Mr Pronk; the incident occurred in the vicinity of Mr Stubbings; and Mr Pronk did not report the incident or preserve the scene.
[96] At the Hearing, video footage of the safety incident was played. In the video footage, Mr Pronk appears to attempt to manoeuvre an MHE between the pallets and a forklift parked to one side of the ‘corridor’ formed by sections of warehouse racking. Mr Stubbings can be seen in front of the forklift on the opposite side of the ‘corridor’.
[97] Mr Pronk can be seen to collide with something and the MHE pivots approximately 80 degrees. Mr Pronk appears to slip from his seat and Mr Stubbings moves when the collision occurs. It is not clear what Mr Pronk’s MHE collided with and, from the footage, it is not clear how close Mr Stubbings was to Mr Pronk’s MHE.
[98] After the collision, Mr Pronk realigns his MHE and drives away from the scene. Mr Pronk does not appear to attempt to preserve the scene as he departs in his MHE. Mr Pronk additionally can be observed kicking at a pallet on his MHE to straighten it shortly after driving the MHE down the corridor.
[99] I do not consider it necessary to conclude whether Mr Pronk collided with racking, as the Respondent submits, or a protruding pallet as Mr Pronk submits. It is clear Mr Pronk collided with something and then left the scene. It is also clear on the evidence before me that Mr Pronk did not report the incident to his immediate superior.
[100] I accept the Respondent’s submission that the incident on 13 May could have resulted in serious injury and that Mr Pronk failed to report the incident as he was required to do and his actions created an unacceptable risk to safety.
[101] I am satisfied on the basis of the evidence Mr Pronk had received appropriate training in the operation of MHE. While there was some focus on Mr Pronk’s part on the inadequacy of his training for the shorts role, ultimately this training was directed to the operation of different screens and was not directly relevant to his actions in causing the safety incident on 13 May 2019. Even if there was some shortfall in the extent of Mr Pronk’s training for the shorts role, it is not an explanation or excuse for Mr Pronk operating the MHE unsafely.
[102] I do not accept Mr Pronk’s reason for not reporting the incident or preserving the scene, namely that he felt under pressure. I am satisfied that given the context of Mr Pronk having been previously involved in numerous previous safety incidents including receiving a final warning and suspension in relation to a safety incident in July 2018, it was reasonable for the Respondent to have lost confidence in Mr Pronk’s capacity and willingness to follow safety rules. Accordingly, the Respondent had a valid reason for dismissal.
Was Mr Pronk notified of the reason for dismissal?
[103] Mr Pronk was notified of the reason for dismissal in the termination letter.
Was Mr Pronk given an opportunity to respond to reasons related to his capacity of conduct?
[104] On 14 May 2019 Mr Pronk was invited to a meeting and advised of allegations in relation to the incident on 13 May and asked to respond. On 17 May Mr Pronk attended a meeting where he advised of the findings of the investigation and was provide a show cause letter and asked to show cause including by providing any mitigating circumstances that he believed should be taken into account.
[105] The Respondent considered his show cause response before taking the decision to terminate Mr Pronk.
Was there any unreasonable refusal to allow Mr Pronk to have a support person present to assist in discussions relating to dismissal?
[106] There was no unreasonable refusal in regard to this criterion.
If the dismissal related to unsatisfactory performance by Mr Pronk – whether he had been warned about that unsatisfactory performance before the dismissal
[107] Mr Pronk had been warned on a number of occasions in respect of other safety incidents he had been involved in including receiving a final warning in July 2018.
Any other matters
[108] There are no other matters that the Commission finds relevant.
Conclusion
[109] I have made findings concerning each of the elements of s.387 and having weighed each of those findings conclude that the dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr M Pronk on his own behalf
Ms A-Kahvari of Counsel (instructed by MinterEllison) on behalf of the Respondent
Hearing details:
2019
26 November
Brisbane
Final written submissions:
2019
11 December
Printed by authority of the Commonwealth Government Printer
<PR716473>
1 Transcript, PN381 – PN386
2 Transcript, PN429 – PN467
3 Statement of Albi Missen, Attachment AM-9 (Show Cause Response)
4 Statement of Albi Missen dated 12 November 2019 at [32] – [33] and [41], Attachment AM-9 (Show Cause Response)
5 Statement of Bjorn Ohlsson dated 12 November 2019 at [15] – [19], and Attachment BO-5 (Termination Letter)
6 Respondent’s Closing Submissions dated 11 December 2019 at 14.3
7 Exhibit 1
8 Transcript PN 386
9 Transcript PN 399
10 Transcript PN 414
11 Transcript, PN417
12 Transcript, PM420
13 Transcript, PN421-450
14 Transcript PN 441
15 Transcript PN 443
16 Transcript PN 454
17 Transcript, PN465-466
18 Statement of Albi Missen dated 12 November 2019 at [10] – [11]
19 Statement of Marco Pronk, dated 19 November 2019, at [9]
20 Exhibit 4
21 Supplementary Statement of Albi Missen dated 25 November 2019, at [9]
22 Transcript PN 733
23 Transcript PN 736-737
24 Transcript PN 148
25 Transcript PN 154
26 Transcript PN 156-157
27 Statement, of Roger Stubbings dated 22 November 2019, at [9]
28 Ibid, at [10]
29 Ibid
30 Ibid, at [11]
31 Ibid, 14
32 Transcript PN 214
33 Transcript PN 220
34 Transcript PN 225
35 Transcript PN 234 – 247
36 Transcript PN 698
37 Transcript PN 744-748
38 Transcript PN 930
39 Transcript PN 1049-1050
40 Transcript PN 540
41 Transcript PN 575
42 Exhibit 2 para 16
43 Exhibit 2 attachment RS-2
44 Transcript PN 134
45 Transcript, PN1055
46 Transcript, PN1056
47 Transcript PN 167
48 Transcript PN 973
49 Transcript ON 467 – 472
50 Transcript PN 188
51 Transcript PN 271
52 Statement of Albi Missen dated 12 November 2019, at [21(a)]
53 Transcript PN 302
54 Exhibit 5 attachment MES -7
55 Transcript PN 334
56 Transcript PN 167
57 Transcript PN 171
58 Transcript PN 177
59 Transcript PN 1075
60 Transcript PN 344
61 Transcript PN 349