Mr Mario Muscat v Chep Pallecon Solutions Pty Ltd T/A Chep

[2016] FWC 7081

[2016] FWC 7081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Mario Muscat
v
CHEP Pallecon Solutions Pty Ltd T/A CHEP
(C2016/1289)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 NOVEMBER 2016

Alleged dispute about any matters arising under the enterprise agreement and the award; breach of safety procedures; jurisdictional objections; application dismissed on merits.

[1] Mario Muscat (Applicant) is a member of the Construction, Forestry, Mining and Energy Union (CFMEU) and employed by CHEP Pallecon Solutions Pty Ltd T/A CHEP (Respondent). The Applicant says he is covered by the CEVA Pallecon and CFMEU FFPD Division (Sydney and Melbourne) Enterprise Agreement 2011 (Agreement) in his employment with the Respondent. Pursuant to clause 5 of the Agreement, the Agreement is to be read and interpreted in conjunction with the Timber Industry Award 2010 (Award) and to the extent of any inconsistency between the Award and the Agreement, the Agreement prevails. 1

[2] The Applicant has applied pursuant to s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute resolution procedure contained in clause 36 of the Agreement. Whether the Applicant is covered by the Agreement is disputed by the Respondent and I will return to this issue later in this decision.

[3] The application arose as a result of a final warning issued by the Respondent to the Applicant on 30 May 2016 (Warning). 2 The Applicant disputes that the Warning, which he argues was “grossly disproportionate to the incident at hand”, was justified. He seeks an order that the Warning be rescinded or alternatively that the gravity of it be reduced (to a verbal warning), based on his unblemished employment history.3 The Applicant also seeks an order that the Respondent reinstate his personal leave which was used for the week suspension imposed during the investigation, despite being informed by the Respondent that he would be suspended with full pay and that this would not be taken from his personal leave.4

[4] The Respondent opposes the orders sought and submits that the application be dismissed.

[5] The Respondent has raised several jurisdictional objections to the application. Firstly, as already indicated, the Respondent says the Agreement does not cover the Applicant in his employment with the Respondent. Secondly, in the event that the Agreement covers the Applicant, the dispute is not one that falls within the dispute resolution clause. Thirdly, the Respondent says the subject matter of the dispute is an extra claim and so the Applicant is prevented from pursuing any further claims during the life of the Agreement pursuant to clause 37.3. Moreover, the Respondent says that a decision made in relation to this dispute, would be contrary to s.739(5) of the Act.

[6] I have found it unnecessary to determine these matters. I am content to assume jurisdiction exists and dismiss the application on merits. In my view, the action taken by the Respondent in response to the conduct of the Applicant was appropriate. My reasons for that conclusion follow below.

[7] The Warning was issued to the Applicant following an incident which occurred on 12 May 2016 during which it is alleged that he failed to adhere to his safety obligations. 5 A show cause letter (SC letter) had also been given to the Applicant on 20 May 2016 following a meeting held with the Applicant on that same day.6 The SC letter advised the Applicant that his actions and explanations were not acceptable and as a result, the Respondent was considering terminating his employment. The SC letter informed the Applicant that he would be required to attend a show cause meeting on 23 May 2016 before the Respondent made any final decision about his ongoing employment.7

Incident – 12 May 2016

[8] On 12 May 2016, the Applicant was involved in an incident which was said to breach a safety requirement. It is said that the Applicant did not adhere to the correct safe operating procedure for pedestrian segregation. He remained in an area where a forklift was operating. The Respondent maintains that the Applicant failed to remove himself from the segregation zone when a forklift entered the area where he was working at the time. 8 The incident occurred in the repair bay of the North Melbourne Service Centre.

[9] The Applicant says that, on 12 May 2016, he noticed a pile of panels leaning against the rear of the plastic pallets that were to be moved by the forklift. He says that the panels appeared incorrectly stacked and not properly secured. The Applicant noticed another employee, Mr Wayne Cohen, operating a forklift in the area near the plastic pallets and said that he understood it was Mr Cohen’s intention to pick up the plastic pallets. His evidence is that he was concerned that the panels would fall and cause an accident. The Applicant says that he walked towards Mr Cohen and cautioned him about the improperly stacked panels. Mr Cohen did not hear the Applicant and continued to shift the plastic pallets. The improperly stacked pallets fell onto the concrete but no one was hurt. The Applicant said that he was standing well away from the crash area and was not hurt and that no one else was in the area. His evidence was that he was at least six metres away from the forklift at all times. 9

[10] Contrary to the evidence of the Applicant, Mr Darren Martin, Service Centre Manager of the Respondent, said that he was providing a tour in the area at the time of the incident. He noticed the Applicant standing next to a unit of pallets in the repair bay, inside the exclusion zone (inside the guard rail) and then observed a forklift, driven by Mr Wayne Cohen enter the building. Mr Martin said he yelled out to the Applicant to move as the forklift was approaching him but the Applicant just shrugged and took a couple of steps backward. This, the Respondent contends, indicated defiance rather than cooperation. 10 Mr Martin said that the Applicant was approximately two and a half to three metres away from the forklift when he should have been behind the guard rail or out of the segregation area.11 The forklift picked up the pallets and as it reversed, Mr Martin observed a number of panels which were improperly stacked fall.12

[11] Mr Martin said that as the Applicant was inside the guard rail, it could not have been possible for him to have been six metres away from the forklift 13 and maintained that, in any event, that the Applicant should not have been in the exclusion zone while the forklift was operating.

[12] During cross-examination, the Applicant agreed with the proposition that the exclusion area is very small and that it would be impossible to be six metres away from the forklift. 14 He also gave evidence that he entered the exclusion zone specifically to warn Mr Wayne Cohen about the incorrectly stacked pallets. Following this, he indicated that he was “outside the rails” and upon being shown a photograph of the area, the Applicant gave evidence that he was outside of the exclusion zone. He said that he was outside the exclusion zone and only entered to warn Mr Wayne Cohen of the potential danger, saying that Mr Martin had his back turned and so did not see what occurred until the Applicant had entered the exclusion zone.15

[13] During his oral evidence, the Applicant gave contradictory and variable accounts of the incident compared to his witness statement, 16which he adopted as true and accurate, as well as contradictory evidence to that earlier given by him. I found the evidence of the Applicant to be unreliable and accordingly, I prefer the evidence of the Respondent’s witnesses where it is in any material respect contrary to the Applicant’s evidence.

[14] The contradictory and variable evidence of the Applicant is evident in the following excerpt:

“MR DONNELLY:  Mr Martin says in his statement that you had been given some instruction during the period of your employment in relation to wash bays being excluded areas when a forklift comes into the area.  He says that in his statement and you would accept that, wouldn't you, that you had been given that instruction?---Yes, I did get out the way of the wash bay, I did get out of the way when the fork was there.

You would accept that before the incident on 4 May that rule was in place that when the forklift comes in to the wash bay area then you have to leave the wash bay area?---And once I did leave the wash bay and I was standing outside the (indistinct) he goes "What are you doing there, standing there?"  "Didn't you say you have to get out when the forklift is there?"

It has been explained to you and you understand you have to be out of that area?---Yes, correct.

One of the reasons for that is because that area is very small, isn't it?---Correct.

And if a forklift comes into that area, Mr Muscat, you can't really be six metres away from the forklift given how small the area is?---Correct.

You say in your statement that you have given to the Commission, that has just been put into evidence, that on the day of 12 May, back when the incident occurred, that there were some loose pallets?---Yes, there was pallets about 7ft high and at the back of it there was units that was stacked, that the casuals weren't there, they didn't stack them in packs, they just left them at the back of the pallets and I was outside the thing and when I seen the units ready to collapse I ran and then stopped Wayne so you won't have an accident and it wasn't my fault because the casuals were working there and they didn't put the things in packs where they're supposed to go in packs, not - - -
Sorry, sir, keep going?---And they're supposed to be in packs, not leaning against the pallets and when he moved the forklift they were ready to fall and I called out to him to stop, so I was trying to save him - causing any harm to anyone.

If I can just take you back a little bit.  The casuals had incorrectly stacked the pallets?---That's correct.

What time did your shift start?  What time did you start work on 12 May?---Early.

What time would "early" be?---I think it was about - - -

Approximately?---7.30, I think it was, or 7 o'clock.

The casuals who stacked those pallets incorrectly, were they the nightshift casuals or were they the casuals - - -?---They were morning shift.

Morning shift?---Yes.  It was the panels leaning against the pallets.

And they had been leaning in that way for some time on that day?---Yes, the back of the pallets.  When the forklift moved they were ready to fall, so they would cause an accident.

Just from the time you started work on the 12th, if I can just take you back to 12 May when you started work, the casuals were working on that day with you?---Yes.

And they stacked the pallets incorrectly?---Not the pallets, the units.

The units?---Yes, they were leaning against the pallets.

At what time of the day did they stack those incorrectly?---In the morning and I got told to go and fix everything up.

You got told to fix everything up?---Yes.

In terms of the pallets?---But I didn't see the units until the last minute when I warned Wayne not to move the pallets.

Who told you to fix everything up?---Mr Darren Martin, to clean the area up because they put panels everywhere.

And he would have told you that in the morning?---In the afternoon.

Roughly what time in the afternoon?---About - between - 2 o'clock.

So he tells you to clean up?---To clean up, yes.

And you didn't get time to clean up before the forklift came in?---Yes, that's correct.

When did you first become aware that the pallets were unsafe - or the containers were unsafe?---For one thing, they shouldn't be there because they - the pallets just have gates and sides and where they stack them they shouldn't be there in the first place because it was a working area.

You believe they shouldn't have been there?---That's correct.

And you believe they were stacked incorrectly?---That's correct.

Did you go to any of your supervisors or your managers and tell them that there was a safety issue with those pallets?---He knows - he should know himself.

Sir, my question is very specific.  Did you go to Mr Martin or did you go to any of your supervisors and tell them on that day those pallets were stacked incorrectly and you were concerned about safety?---No, I didn't say nothing to him.

In your statement you justify your decision to stay in the exclusion zone?---I was in the exclusion zone, that's when I seen when he moved the pallets, that's when I warned Wayne.  I went inside to warn him.

Yes, I'm coming to that.  Just listen to my question and we will get to that situation?---Yes.

In your statement you say that you stayed in the exclusion zone area because you wanted to warn Wayne (Mr Callan) about the incorrectly stacked containers or pallets?---Yes, I was inside - out of the workplace, I was behind the bars and so I wasn't inside.  When I see the - when he moved the pallets and that's when I seen the panels were ready to fall.

You are saying that you were behind the railing?---I was outside the rails, I wasn't inside the working place.

May I approach the witness?

THE DEPUTY PRESIDENT:  Is this one of the exhibits?

MR DONNELLY:  Yes, this is VM11, the photograph of the scene.

Mr Muscat, you would agree that that is a photo of the wash bay area?---That's not the wash bay.

You would agree that that is a photo of the area where the incident occurred?---Yes, this is where it happened.

And you say that - you can see in that picture there is a railing.  Can you see the railing, sir?---Yes.

And that is part of the exclusion zone, isn't it, you have got to be behind that railing?---Yes, that's the exclusion, yes.

And the evidence that you have just given was that you were in fact on the other side of the railing?---I was outside where the stairs are.

See where Mr Martin is standing in that photo?---Yes.

You say you weren't in that area at all?---No, I wasn't.

You say you were on the outside of the exclusion zone?---That's correct.

Your evidence now is you weren't even in the exclusion zone?---I wasn't inside, I was outside.

On the other side of the guard rail where you are meant to be?---Yes.

Mr Muscat, where do you say in any of the explanation that you provided to the company - - -?---What do you mean by that?

When the company spoke to you about this matter from day one, when the company first spoke to you about this matter from day one?---Yes, Dennis told me on Monday we've got a meeting in his office

You never said, Mr Muscat, in any of those meetings and you have never said in your statement that you were outside of the exclusion zone.  Can you show me in your statement where you say you were outside of the exclusion zone?---Yes, I was outside because Mr Martin was on the other side, he had his back turned and he was worried about something, you know, the plastic gun with two blokes in there, and when he heard the bang that's when he turned around and he caught me there, so he didn't see the accident.

THE DEPUTY PRESIDENT:  Mr Donnelly, before you go on, can you give that photograph back to my associate to show the witness, I just want to be clear about something.

Mr Muscat, you say that you were on the other side of the rail?---Yes, your Honour.

Mr Muscat, just listen to my question and let me finish.  So the first point you say is you were on the other side of the rail, near the stairs, yes?---Yes.

Where was the forklift, in relation to that?---The forklift was inside and I was outside, outside the - - -

Was the forklift where the picture is of the forklift, or was it elsewhere?---I beg yours?

See the picture of the forklift?  Was that where the forklift was?---Yes, correct.

So the pallets that you described were in front of the forklift, were they?---Yes, they were - where the rail is, they were pushed against the rail.

And the units that you described, where were they?---The back of the pallets, so you couldn't see them.

So they were leaning against the rail?---They were leaning against the rails and the pallets.

So they were - you could see them because they were on your side, is that right?---Yes, I seen them in the last minute, when the forklift moved.

All right.  What were you doing on the other side of the rail, how did you come to get there?---How did I come to get there?

Yes?---I went around.

Sorry, you were in the work area and you were doing what?---Waiting to move the pallets and when I said - - -

No, no, hang on.  Before you were on the other side of the rail, you were in the work area?---Correct.

What were you doing there?---Waiting.

For what?---I have to move out of the way, don't I?

No, no, no.  Before the forklift arrived, okay, what were you doing in the work area?---What was I doing before when the forklift was in there?

Yes?---I was cleaning up.

At that stage did you notice the units?---No.

Then when the forklift arrived, what did you do?---I went outside the working area, I went where the rails are, outside.

Before the forklift arrived were there other workers in the area?---No.

There were no other workers in the area?---Just the forklift driver.

Okay.  Yes, Mr Donnelly.

MR DONNELLY:  Mr Muscat, I'm going to tell you what Mr Martin's evidence is, in relation to what happened on 12 May.  He says:

I saw –

This is at paragraph 28 of his statement.  He says:

I saw Mr Muscat standing right next to a unit of pallets in the repair bay area, inside the exclusion zone, that is, on the inside of the guard rail bordering the repair bay area.  I then observed the forklift, driven by Mr Wayne Callan, into the building, turn to his left and perform a 360 degree turn to align the forklift with the unit to pick it up.  Mr Muscat did not move from his position next to the unit.

Then he goes on to say:

At that moment I called out to Mr Muscat for him to move out of the way.  I also observed Mr Joe Callan, who was with me at the time, call out to Mr Muscat for him to move.  I heard Mr Joe Callan mutter sounds of disappointment about the situation.

And then further:

Mr Muscat then looked up at me and responded to my request for him to move out of the way by shrugging his shoulders and taking a couple of small steps back.

I'll just ask a question, sir.  That's the correct version of events, isn't it?  You were inside the exclusion zone, you weren't outside the exclusion zone?---Yes, that's when the forklift moved them units, so not to cause an accident so I went in there to warn Wayne.

So now you accept - sir, you keep changing your story.  One moment you're saying you were outside the exclusion zone?---I was.

And then you're saying you're inside the exclusion zone and then you were saying you were inside the exclusion zone?---Yes, but Mr Martin, how would he know, because he had his back turned and when he heard the things fell that's when he turned around and caught me there.

Sir, you've changed your story…

MR MALBASA:  Objection, your Honour.  It's quite clear that the witness has said that he was outside the exclusion zone and then walked over, once he saw there was an eminent danger.  So he was observed in the exclusion zone, by Mr Martin, of course he was observed there, but he walked there - - -

THE DEPUTY PRESIDENT:  Mr Malbasa, are you giving evidence now?

MR MALBASA:  Now, but I - badgering the witness.

THE DEPUTY PRESIDENT:  I'm going to allow the question.  I don't think he is.  Go ahead, Mr Donnelly.

MR DONNELLY:  Thank you, your Honour.  Mr Muscat, you've changed your story several times this morning.  You indicated that you were outside of the exclusion zone, you took his Honour to the diagram and indicated where you were and now you're saying, only because I have now indicated to you what's said in the evidence, you're now saying that you were inside the exclusion zone.  You've changed your story today, haven't you?---You reckon I have?

I do reckon you have?---Do you?  Well, that's your comment, not my comment.

So, Mr Muscat, were you inside the exclusion area or outside it?---I was outside the thing.

You were outside of the - - -?---Yes, I was.

Mr Muscat, you're aware that the union filed this application on your behalf?---Yes, I do.

The union completed a document called a form 10 application to the Commission?---Yes, I do.

In the application to the Commission, at paragraph 8, the following is said:

Mr Muscat did acknowledge he was in the segregation area.

You're now saying that's incorrect?---That's correct.

Thank you.  You're saying this whole situation with warning Mr Callan, you're saying that was all conducted from behind the barrier in the safe zone?---Yes.

And you gave him the warning from there?---Yes.” 17

[15] And later, during re-examination the following exchange occurred:

“MR MALBASA:  Again, Mr Muscat, in your witness statement, at paragraph 13, you say that you walked over towards Mr Callan and cautioned him about the improperly staked panels.  Looking at this photo, can you tell us where were you?---Yes, I was right over here.  That's where the panels were and - - -

THE DEPUTY PRESIDENT:  Can I just ask you to describe it, by reference to things that you see in the photo?  For example, the stairs on the other side of the rail, where were you, in relation to those?---I was outside where the forklift is.

When you say you were outside where the forklift is, do you say you were standing - see the picture of the person on the other side of the forklift?---No, I wasn't there, no.

All right.  So in relation to those stairs in the background, where were you?---I was next to where the lockers are.

Where the?---Lockers.

I see, okay.

MR MALBASA:  So you were standing where the lockers are, behind the fence?

THE DEPUTY PRESIDENT:  So if you go back to DM19, I just want to be clear about this, can the witness be shown DM19?  You have it there with you, see the other photograph?---Yes, I was there.

Have a look at the other photograph, see where the lockers are in that photograph?---Yes.

You say you were standing there?---No, I was next to the - next to the stairs.

So if you go back to the colour photograph?---There's the lockers there - - -

Yes, I see where the lockers are.  Do you see the colour photograph?---Yes.

The stairs, you now say you were next to the stairs?---Yes.

Not near the lockers?---No.

All right.  Yes, Mr Malbasa?
MR MALBASA:  Mr Muscat, can I just confirm, were you behind the rail, behind the fencing or not?---I was outside.

Outside it?---Yes.

Okay.  When you saw Mr Callan operating the forklift what did you do then?---That's when I see the panels leaning against the pallets and I ran in there to warn Wayne not to move anymore so they won't fall and cause anybody harm.” 18

[16] It was obvious during the Applicant’s oral evidence that he was unable to maintain a consistent recollection of the incident or of his position relative to the forklift or the pallets at the time of the incident. Furthermore, the Applicant also gave evidence, contrary to his witness statement, that he had no comprehension of the distance that six metres represents:

“The question I have is, where you're positioned, on the safe side of the railing, and you're warning Mr Callan about the pallets, or the containers, you couldn't have been more than 2 or 3 metres away from you?---Is that what Darren Martin reckons, is it?  I was further than that.

Sir, if you're behind that railing, if you're behind the railing, if you're in the exclusion zone, sorry, if you're behind the railing in the safe zone, how could you be more than 6 metres away?---I don't know how far 6 metres is.  Did he come out with a measuring tape and measured it?  I don't know what 6 metres is or 3 metres are.

All right.  Your Honour, I don't have anything further.

THE DEPUTY PRESIDENT:  The reason the 6 metres is suggested, Mr Muscat, is that at paragraph 16 of your statement you say:

At all times I was standing at least 6 metres from the forklift.

That's your statement?---That's my statement?  I don't know, I didn't - - -

Yes, that is your statement, the one you said was true and correct today?---I don't know what 3 metres or 6 metres is.  I don't know if I was 6 metres away.  I thought 6 metres was from here to that table.  How do I know?

From here to which table?---That one over there.  I don't know what 6 metres or 3 foot metres are 4 foot metres.

Just to be clear, is it your evidence that you were away from the forklift the same distance as where you are now to the front of the bench there?---I was more than that.

More than that?---Yes.

Well, how much more than that?---From him to here.

Sorry, from?---To Andrew.” 19

[17] And during re-examination:

“Now, you were asked about what your understanding of 6 metres is, Mr Muscat, did anybody in the company explain to you what 6 metres is?---No, no, they didn't come out with a tape measure and measure the ground.  I don't know what 6 metres is.  I told you like I thought 6 metres was from here to there.” 20

[18] Mr Martin’s evidence is that, immediately following the incident, he had a conversation with the Applicant and Mr Wayne Cohen, the forklift driver. Mr Martin submitted that he asked them both what had happened. Mr Wayne Cohen said words to the effect that he should have stopped and told the Applicant to get back before picking up the panels. The Applicant then said that the panels would not have hit him and the panels should not have been there. Mr Martin told them that he would speak to them afterwards and then asked Mr Chase Mathews, Service Centre Supervisor, to conduct an investigation into the incident. 21

[19] Later on 12 May 2016, Mr Martin held a further conversation with the Applicant, Mr Wayne Cohen and Mr Mathews regarding the incident. Mr Martin submitted that the conversation was to the following effect:

“DM: We are about exclusion and that was breached today. Can you explain why that occurred?

WC: I should have told Mario to move out of the exclusion zone before picking up the unit.

MM: The panels should not have been put there. Whoever put them there didn’t do their job properly.

DM: Mario, do you understand what you should have done?

MM: I should have moved out of the area.

DM: Ok. We will conduct a formal investigation in to this matter. Chase will speak to you about it in the coming days.” 22

The investigation

[20] The investigation commenced on 12 May 2016. Mr Wayne Cohen and the Applicant were both interviewed, and the Applicant remained at work during the investigation. 23

[21] On 19 May 2016, the Applicant was issued with a Notice of an Investigation/Disciplinary Enquiry (Notice) and asked to attend a meeting to be held on 20 May 2016. 24 The Applicant, who left school at the age of 15, struggles to read and write and considers himself illiterate.25 He was unable to read the Notice given to him and submitted that he did not understand the seriousness of the meeting until he took it home to show his partner after the meeting on 30 May 2016.26 The Applicant submitted that he was not given the opportunity to organise a support person for this meeting,27 however, the Respondent’s evidence is that the Applicant was not only provided with this opportunity but in fact arranged a support person, Mr Joe Cohen, who is a CFMEU delegate.28 The evidence of Mr Martin is that Mr Joe Cohen attended the meeting on 20 May 2016 as the Applicant’s support person.29

[22] The Respondent disputes the Applicant’s assertion that he did not realise the seriousness of the meeting, given the conversations which had already been held immediately following the incident on 12 May 2016, and also on 19 May 2016. 30

[23] For reasons earlier given, I accept the Respondent’s evidence recounted above.

[24] A meeting was held between the Applicant and Mr Martin on 20 May 2016. Mr Joe Cohen and Mr Mathews were also present at the meeting. During the meeting, Mr Martin indicated that the Applicant had failed to adhere to safe operating procedures for pedestrian segregation by remaining in an area where a forklift was operating. The Applicant submitted that he explained to Mr Martin that the panels were stacked improperly and that he wanted to approach Mr Wayne Cohen to warn him not to pick up the plastic pallets as someone could get injured if the panels fell. The Applicant said it was not him or Mr Wayne Cohen who were at fault but that the blame should be placed on the person who stacked the panels incorrectly. 31 Mr Martin did not accept the Applicant’s explanation and informed the Applicant that they would meet the following week so that the Applicant could provide an explanation as to why his employment should not be terminated. Mr Martin handed the SC letter to the Applicant during this meeting.32

[25] The Respondent submitted that Mr Martin read the SC letter to the Applicant at this point. He broke the letter down into sections and asked the Applicant if he understood each section. The Applicant indicated that he did understand the letter. Mr Martin said that after reading out the letter, he had the following exchange with the Applicant:

“DM: Mario, do you have any questions for me in relation to what I have just read out? If you need more time to seek advice or arrange a union representative then please let me know. We can reschedule the meeting.

MM: You are out to get me. You do not like me.

DM: That is not true Mario. I am not picking on you.” 33

[26] Following this exchange, Mr Martin informed the Applicant that he would be stood down with pay until the show cause meeting on 23 May 2016. 34

Show cause letter

[27] The SC letter stated as follows:

“This letter is to confirm the outcome of a meeting held with you on 20 May 2016 regarding the alleged failure to adhere to your safety obligations.

Specifically it was alleged on 12 May 2016 you did not adhere to the correct safe operating procedure or pedestrian segregation by remaining in an area where a forklift was operating.

During the meeting you were advised that, based on observation from your manager and your own admission as well as the admission of the other employee the allegations have been sustained.

You were provided an opportunity to explain your reasons which you stated as you knew what you were supposed to do, that you had attended several toolbox meetings which outlined your responsibility but you needed to fix a stack of containers which subsequently fell nearly causing you injury. Your only further comment was that it was the fault of the person who did not stack the containers correctly. You did not acknowledge that you had made an error in judgement or that you were in any way at fault for failing to abide by the safe operating procedures.

After giving your reasons due consideration to the reasons for your actions, you were advised that your actions and explanation are not acceptable. Breach of your safety obligations, especially where you risk seriously injuring yourself or others, cannot be tolerated under any circumstances. For this reasons the Company is now considering the termination of your employment.

Before making any final decision about your ongoing employment, the Company wishes to provide you with an opportunity to meet with Company representatives to show cause why your employment should not be terminated.

In this regard, you are required to attend a meeting with Company representatives at 2:00pm on 23/05/2016 at the Company’s North Melbourne site. You may attend the show cause meeting with a support person of your choice. You should take this matter seriously as your employment is in jeopardy.

Should you have any questions in relation to this correspondence please do not hesitate to contact the undersigned.

Yours faithfully

Darren Martin
Service Centre Manager, Victoria” 35

Meeting – 23 May 2016

[28] At 2.00pm on 23 May 2016, the Applicant attended a meeting, together with his support person, Mr Colin Vernon from the CFMEU, Mr Martin and Mr Mathews. The Applicant said that Mr Martin’s conduct toward him during this meeting was “aggressive and belligerent”, which caused the Applicant a great deal of stress and anxiety. 36 Mr Martin denied that he was aggressive and belligerent, and he suggested that in his view Mr Vernon was the aggressor during the meeting.37

[29] During cross-examination, the Applicant accepted that Mr Martin was only trying to get him to give a commitment to safety:

“You say, at paragraph 29 of your statement, that - you say the following:

Mr Martin's conduct toward me in this meeting was aggressive and belligerent.  Mr Martin's conduct caused me a great deal of stress and anxiety.

?---Correct

Now, just going to the first sentence:

Mr Martin's conduct toward me in this meeting was aggressive.

?---Yes, he kept nagging me to answer these questions and I told the union bloke, "You can answer them for me."

Just on that point, sir, you would accept that all Mr Martin was doing during that meeting was trying to have you acknowledge that you'd breached a safety protocol and that you took safety seriously, would you accept that?---Could you repeat it again, please?

Yes.  During that meeting when you say Mr Martin was essentially, you say, hounding you, he was trying to get you to give a commitment to safety, do you agree with that?---Yes.

He was trying to get you to give a commitment to safety because he needed to hear from you that you took safety seriously, is that a fair assessment of Mr Martin's role on that day?---I think so, yes.” 38

[30] The Applicant says that, during the meeting, Mr Vernon and Mr Martin attended the area where the incident occurred and Mr Vernon took some photos. 39 Mr Martin submitted, however, that upon request he conducted a tour of the repair bay area with Mr Joe Cohen and Mr Vernon prior to the meeting. During the tour he noticed Mr Vernon taking photographs and informed him that he did not consent to the taking of photographs. A reproduction of the incident was also conducted at this stage and Mr Martin’s evidence is that he was unaware (at the time) that Mr Vernon took photographs of the reproduction, despite Mr Martin’s earlier protests.40

[31] Mr Martin gave evidence that a conversation to the following effect took place during the meeting:

“CV: I will record this show cause meeting.

DM: I do not consent to this meeting being recorded. Please stop the recording.

CV: No I will record this meeting.

DM: I do not agree to it being recorded.

CV: Bad luck. I’m recording it.

CV: I am here as a representative for Mario and not his support person. I will be speaking on Mario’s behalf.

DM: Mario has been given the opportunity to have a support person present and has chosen the union representative to be his support person. He has not chosen a representative. You can provide him with any examples or clarifications but you should not speak on his behalf.

CV: Mario is happy to provide a written response to show cause with assistance from our legal team. As you know Mario cannot read or write.

DM: The purpose of today’s meeting is for Mario to verbally respond to the show cause letter. We would like to hear Mario’s reasons for that. Mario, please understand that the representation could be to your detriment. Colin may answer a question that could place your employment at further risk. I would like for you acknowledge the safety breach, agree to follow safety protocols and you need to convince me that you are genuine in that regard.

MM: The union is here to act on my behalf.

DM: I need you to convince me that you acknowledge there has been a breach of safety and that you will abide by safety in the future.

CV: Darren, Mario always attempts to abide by safety procedures. Given Mario’s literacy issues, he needs extra assistance in understanding safety and procedures.

DM: Hang on, I can’t accept that Mario always attempts to abide by safety. We are here because the Company has determined Mario has breached safety protocols. What you are saying says to me that you don’t understand what you have done wrong. What is important for me to be convinced that Mario would adhere to safety at all times, particularly when he is unsupervised. I need you to acknowledge that there has been a safety breach and that you are willing to play your part in safety being aware of what we expect and not having any repeats of the breach. Mario, do you accept that you will follow safety protocols in the future?

MM: Colin will answer that on my behalf.

CV: Yes. Mario will aim to uphold the safety practices. Mario has always worked safely and will continue.

DM: Is that what you’re saying Mario?

MM: [no response]

DM: Mario, I just want to know whether you agree with Colin’s answer?

MM: [no response]

DM: Can you please answer the question?

MM: [no response]

CV: You are bullying Mario. I’ve already answered the question.

DM: Please stop interfering or you will be asked to leave.

CV: You are bullying Mario. I’ve already answered the question on his behalf.

MM: Darren you are picking on me because of my literacy skills.

DM: I think we should have an adjournment.” 41

[32] The Applicant then broke down after Mr Martin and Mr Mathews left the room and the meeting was adjourned. 42 The Applicant said that this was due to Mr Martin’s accusatory demeanour towards him.43

[33] Mr Martin gave evidence that he felt intimidated by the behaviour of Mr Vernon during the meeting. Initially, Mr Martin placed himself directly across from the Applicant but Mr Vernon swapped his seat with the Applicant and this occurred twice. Mr Martin submitted that every time he spoke directly to the Applicant, Mr Vernon leaned in and placed himself between Mr Martin and the Applicant, whilst also cautioning the Applicant not to speak on a few occasions. 44

[34] Following the conclusion of the meeting, Mr Martin said that he had a telephone conversation with Mr Danijel Malbasa from the CFMEU. Mr Malbasa enquired as to the Applicant’s employment status, asking whether he was on leave with pay. Mr Martin’s evidence is that he indicated to Mr Malbasa words to the following effect:

“Mario was stood down with pay on Friday 20 May post the outcome of the investigation until he attended the show cause meeting which was today. The show cause meeting was conducted today but as you know Mario is going to see a doctor now.” 45

[35] For the reasons given earlier, I accept Mr Martin’s evidence.

CFMEU reply

[36] On 24 May 2016, the CFMEU emailed a response to the SC letter on behalf of the Applicant. That email stated as follows:

“Dear Darren

I refer to your letter of 20 May 2016 headed “Re: Meeting to Show Cause”.

I understand the purpose of this letter is to bring to my attention an allegation that on 12 May 2016 I allegedly failed to adhere to the correct safe operating procedure for a pedestrian segregation by remaining in an area where a forklift was operating.

Secondly, I understand the letter purports to allege that I had failed to correctly fix a stack of containers which subsequently fell.

I further understand the purpose of the 20 May 2016 letter is to allow me the opportunity to provide you with a written response for you to take into account as to why my employment should not be terminated in relation to the two incidents identified above.

From the outset, as you may be aware, I have difficulties reading and writing. On that basis, I believe your letter of 20 May 2016 failed to take this into account as a relevant factor.

As a Manager you failed to take appropriate steps to ensure I understood the content of that letter before you issued it to me and purported to seek my response.

I have had the opportunity to now seek legal and industrial assistance from my Union, in order to provide a response to your letter.

Forklift Operation

I deny the assertion that I failed to adhere to safe operating procedures.

At all times, I have kept safe distance from the forklift when in operation.

I take occupational health and safety very seriously and have followed the correct safety protocols at all time.

Stacking Containers

As you are aware, it is the responsibility of casual employees to ensure containers are stacked safely and securely on the ground before these are picked up by the forklift.

As far as I understand, it is not my responsibility to ensure containers are stacked safely and securely. I should not be held responsible for other workers’ shortcomings and underperformances.

However, I am prepared to have further discussions with you about overall occupational, health and safety protocols and requirements at work.

I would like to have my Union representatives involved in these discussions.

Other considerations

As you may be aware, I am on a mental health plan.

I believe your conduct towards me, which I perceive to be conducive to workplace bullying and harassment, has exacerbated my mental wellbeing at work.

I do not wish to make a Stop Bullying Application at the Fair Work Commission at this stage, but I reserve my right to do so in the future should the behaviours continue.

I have been, and continue to be, a loyal long tenured employee of Chep. I pride myself of my work ethic, commitment and loyalty to Chep.

I wish for you to have a recourse to these matters prior to making your final decision.

Thank you

Yours sincerely

Mario Muscat

Kind regards

Danijel Malbasa” 46

[37] It is to be observed that the response, so far as it concerns the Applicant’s location vis a vis the operating forklift is inconsistent with his evidence during cross-examination, and in particular the following extract:

“And then further:

Mr Muscat then looked up at me and responded to my request for him to move out of the way by shrugging his shoulders and taking a couple of small steps back.

I'll just ask a question, sir.  That's the correct version of events, isn't it?  You were inside the exclusion zone, you weren't outside the exclusion zone?---Yes, that's when the forklift moved them units, so not to cause an accident so I went in there to warn Wayne.

So now you accept - sir, you keep changing your story.  One moment you're saying you were outside the exclusion zone?---I was.

And then you're saying you're inside the exclusion zone and then you were saying you were inside the exclusion zone?---Yes, but Mr Martin, how would he know, because he had his back turned and when he heard the things fell that's when he turned around and caught me there.

Sir, you've changed your story…” 47

Show cause meeting - 30 May 2016

[38] On 30 May 2016, the Applicant attended a meeting together with his partner, Ms Woods and Mr Andrew Vendramini, District Assistant of the CFMEU. Also in attendance were Mr Martin and Mr Mathews for the Respondent. Mr Martin again indicated to the Applicant that he had failed to follow the forklift segregation requirements and that this was a breach of the Respondent’s occupational health and safety policy. 48

[39] Mr Vendramini pointed out to Mr Martin that the Respondent was partly at fault for not putting up gates and proper line markings to ensure employees are aware of segregated areas. The Applicant says that Mr Martin admitted that more work needed to be done in terms of capital expenditure, to ensure gates are put in place and segregation areas clearly defined. Mr Martin also stated that this is a chronic problem and that other employees have been found to have engaged in similar breaches. 49

[40] The Applicant initially refused to admit any contravention during this meeting, maintaining that he was attempting to warn Mr Cohen of the potential danger. However, following a short break in the meeting and private discussions with both Ms Woods and Mr Vendramini, who both advised the Applicant that he should admit to being at fault to avoid being dismissed, the Applicant says that he told Mr Martin that, in future he would not enter the segregation area while the forklift is operational, even to prevent an accident. Mr Martin then stated that the Respondent needed to improve the signage, gates and marking of the segregation area. 50

[41] Mr Martin said that the meeting consisted of a conversation to the following effect:

“DM: We are here as a continuation of the last meeting as that was adjourned. The Company has made it clear that it believe you have breached a safety protocol by failing to follow segregation requirements. As I said to you on the last occasion, we would like to hear from you an acknowledgement of the breach and an agreement to abide by safety protocols in the future.

AV: I think you’re at fault by not putting up gates and proper line markings to accurately outline the segregation areas so employees can be aware of them and be restricted from approaching forklifts.

DM: This is an old site and there are many improvements that could be made to operations and safety including gates and markings. During the initial few months of acquiring the site, people would stand right next to an operating forklift. The whole business is a work in progress. We have not rolled out every aspect in relation to safety. There certainly is further room for improvement. What I would like to receive today is an acknowledgement from Mario that he has breached the protocols.

MM: I don’t agree. I was doing the right thing by trying to warn Wayne about the panels.

DM: Mario, you simply stood there. You did not take any steps towards Wayne. You watched him come in to the area and stood there. I called out to you to move and you shrugged your shoulders like ‘what’s the big deal?’ and took one or two small steps away.

MM: I didn’t feel safe.

DM: Mario, you had literally put yourself in harm’s way.

AV: How far away from the forklift was Mario?

DM: I would say one and half, two metres max. That’s not the point, he should not have been on that side of the guard rail when an operating forklift was there.

AV: I think we need to have a look at the site.

DM: Yes ok. I’m happy to do that after the meeting.

AV: Let’s go now.

DM: There’s plenty of opportunity after the meeting.” 51

[42] Mr Martin said that immediately following this exchange, Mr Vendramini left the room. Mr Martin followed him out and informed him that he should not go to the repair bay as he would be trespassing. The meeting continued and Mr Mathews and Mr Martin agreed that the Applicant would be issued with a first and final warning rather than terminate his employment given his long period of service. 52

[43] At the end of the meeting, the Applicant was given the Warning 53 and was advised that it would be placed on his personnel file. Mr Vendramini requested that the letter be changed to a first warning only, based on the Applicant’s unblemished performance and conduct of almost 29 years. This request was refused.54

[44] The differing accounts of the meeting are impressionistic rather than substantive and for the reasons earlier given, I prefer Mr Martin’s account.

[45] The Applicant says that he disagrees with the Warning, he acknowledges that his conduct was potentially dangerous but maintains that he acted in order to prevent a potential hazard. The Applicant also claims that the Respondent is partly responsible for not installing a gate or signage. The Applicant further submits that he never received any formal training in forklift segregation other than discussions at toolbox meetings.

[46] The Respondent maintains that it is not prepared to downgrade the Warning to a verbal warning. Mr Martin said that he has spoken to the Applicant on a number of occasions about safety, downgrading the Warning would not be consistent with the approach taken by the Respondent in similar incidents and would undermine the seriousness of the Applicant’s safety breach. 55

[47] Mr Martin’s evidence was that forklift and pedestrian segregation in repair bays has been specifically discussed in tool box meetings attended by the Applicant. He indicated that, in order to emphasise the importance of forklift and pedestrian segregation in repair bay areas, the Respondent conducted two tool box meetings within one week of each other, on 17 and 22 July 2015. The Applicant attended both meetings. 56 He further indicated that a policy was read out to everybody, and two team leaders had been appointed to supervise and observe to ensure compliance was adhered to.57

[48] I accept Mr Martin’s evidence in this regard which was not seriously challenged by the Applicant.

[49] Mr Martin also said that forklift and pedestrian segregation in repair bay areas requires employees to move to the exclusion zone (outside the guard rail) when a forklift needs to operate in that area and the employee cannot maintain a distance of six metres from the forklift. He said that it is difficult to be six metres away in the small repair bays and that this is why guard rails are provided for employees to move behind when a forklift is operating in the area. 58 I accept this evidence.

Pay issue

[50] Mr Martin said that the Applicant received his normal pay up to and including the date of the show cause meeting on 23 May 2016. From the period 24 May 2016 to 27 May 2016, however, the Applicant was certified as unfit for work and accordingly, received sick leave pay. From 30 May 2016 onwards the Applicant received his normal pay. 59 There does not seem to me to be anything irregular or inappropriate in the Respondent’s approach in this regard. The Applicant’s contention to the contrary, relying on “usual industry norms and standards” about which no evidence is lead, is misconceived.

Conclusion

[51] On the evidence, it seems to me clear that the Applicant placed himself in a position vis a vis an operating forklift, contrary to instructions clearly communicated to him. Moreover, it seems clear from the accounts of the meetings convened with the Applicant to discuss the incident that he either failed or refused to accept that he had acted in a manner that was contrary to the occupational health and safety instructions given to him about forklift and pedestrian segregation.

[52] The Applicant’s conduct in failing to adhere to the segregation instruction is a serious matter which is only compounded by his failure at the time to accept responsibility for the conduct in which he engaged.

[53] In these circumstances, the final warning given to the Applicant was in my view justified and a reasonable response by the Respondent.

[54] It is therefore unnecessary for me to deal with the jurisdictional matters raised by the Respondent.

[55] I will observe in passing that the issue of whether the Applicant is covered by the Agreement is an important one and the Applicant bears the onus of establishing jurisdiction for the application he seeks to prosecute. The attention given to this issue during the proceedings and the initial submissions was inadequate given the seriousness of the issue raised.

[56] The submissions subsequently filed by the Applicant at my request failed to grapple with the central proposition that was being advanced by the Respondent. These submissions also fail to grapple with the absence of an evidentiary foundation for many of the propositions being advanced. Moreover, submissions made by the Applicant about the date on which he commenced employment with the Respondent, which were at odds with the sworn evidence given by the Applicant, were to say the least, unhelpful. I have taken the unusual step of assuming jurisdiction (without deciding the issue) instead of dismissing the application for want of jurisdiction because of the potential consequences for the Applicant and other employees of the Respondent vis a vis coverage of the Agreement. The issue demands greater attention than that given to it by the Applicant in this proceeding.

[57] For the reasons given, I have concluded that the warning given was both justified and a reasonable response by the Respondent to the conduct engaged in by the Applicant. Accordingly, the application is dismissed.

[58] An order giving effect to my decision is issued separately in PR587509.

DEPUTY PRESIDENT

Appearances:

Mr D. Malbasa, CFMEU on behalf of the Applicant.

Mr J. Donnelly on behalf of the Respondent.

Hearing details:

2016.

Melbourne.

August 17.

September 19.

Final written submissions:

Applicant’s Final Submissions on the Jurisdictional Question, 28 September 2016.

Respondent’s Final Submissions, 31 October 2016.

Further submissions received from Applicant on 15 November 2016 and Respondent on 17 November 2016.

 1   CEVA Pallecon and CFMEU FFPD Division (Sydney and Melbourne) Enterprise Agreement 2011, clause 5.

 2   Exhibit 1, MM4.

 3   See Applicant’s Outline of Submissions at [22] and [25] – [26]; Exhibit 1 at [49] and [61].

 4 Applicant’s Outline of Submissions at [27].

 5   Exhibit 1, MM2.

 6   Exhibit 1, MM2.

 7   Exhibit 1, MM2.

 8   See Respondent’s Outline of Submissions at [15] – [16]; Exhibit 1, MM2.

 9   Exhibit 1 at [11] – [16].

 10   Transcript PN389.

 11   Respondent’s Outline of Submissions at [17] – [20]; Exhibit 3 at [29] – [31].

 12   Exhibit 3 at [27] – [32].

 13 Exhibit 3 at [96].

 14   Transcript PN78 – PN79.

 15   Transcript PN105 – PN125.

 16   Exhibit 1.

 17   Transcript PN75 – PN175.

 18   Transcript PN221 – PN238.

 19   Transcript PN184 – PN195.

 20   Transcript PN239.

 21   Exhibit 3 at [33] – [34].

 22 Exhibit 3 at [37].

 23   Exhibit 3 at [39] – [42].

 24 Exhibit 1 at [17].

 25   Exhibit 1 at [3] – [6].

 26 Exhibit 1 at [18].

 27 Exhibit 1 at [19].

 28 Respondent’s Outline of Submissions at [23].

 29 Exhibit 3 at [45].

 30 Respondent’s Outline of Submissions at [24].

 31 Respondent’s Outline of Submissions at [25].

 32   Exhibit 1 at [20] – [27].

 33 Exhibit 3 at [46].

 34 Exhibit 3 at [47]; Exhibit 1 at [27].

 35   Exhibit 1, MM2.

 36   Exhibit 1 at [28] – [29].

 37 Exhibit 3 at [83].

 38   Transcript PN204 – PN212.

 39 Exhibit 1 at [30].

 40   Exhibit 3 at [51] – [53].

 41 Exhibit 3 at [54].

 42   Exhibit 3 at [55] – [56].

 43 Exhibit 1 at [31].

 44 Exhibit 3 at [57].

 45 Exhibit 3 at [59].

 46   Exhibit 1, MM3; Exhibit 3, DM-8.

 47   Transcript PN155 – PN160.

 48   Exhibit 1 at [37] – [38].

 49   Exhibit 1 at [39] – [40].

 50   Exhibit 1 at [42] – [47].

 51 Exhibit 3 at [62].

 52   Exhibit 3 at [63] – [66].

 53   Exhibit 1, MM4.

 54   Exhibit 1 at [48] – [50].

 55 Exhibit 3 at [99].

 56   Exhibit 3 at [25]; Exhibit 3, DM-4.

 57   Transcript PN278.

 58 Exhibit 3 at [26].

 59   Exhibit 3 at [70] – [72], Exhibit 3, DM-10.

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