Mr Mark Hanley v Stramit Corporation Pty Limited T/A Stramit Building Products Rockhampton

[2016] FWC 1150

[2016] FWC 1150

FAIR WORK COMMISSION

DECISION

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

Mr Mark Hanley
v
Stramit Corporation Pty Limited T/A Stramit Building Products - Rockhampton
(U2015/11361)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 26 FEBRUARY 2016

Summary: unfair dismissal – alleged breach of safety rules – whether breach made out – Golden Rules – reasonable expectations to express safe workplace behaviours – breach of safety rules constitutes serious misconduct.

[1] This decision concerns an application by Mr Mark Stephen Hanley under s.394 of the Fair Work Act 2009 (“the Act”) by which means he seeks an unfair dismissal remedy in relation to the termination of his employment by his employer, Stramit Corporation, trading as Stramit Building Products (“the employer”).

[2] There is no argument between the parties that Mr Hanley is a person who is protected from unfair dismissal under the Act.

[3] The Rockhampton branch of the employer’s business performs a role as a distribution and manufacturing centre, and in the course of its daily activities there are moving vehicles and plant machinery in operation at any given time.

[4] Mr Hanley had performed duties as a forklift driver on behalf of his employer at the Parkhurst site in Rockhampton since May 2010. His dismissal took effect on 24 August 2015.

Background

[5] Mr Hanley asserted in his written statement that but for one incident on 4 August 2014, his period of employment with the employer had been largely without incident. In August 2014 Mr Hanley was warned about his safe work practices, which caused him to be more vigilant in his attitude towards workplace safety thereafter. The incident in August 2014 seemingly concerned a breach of the “Fletcher Building Golden Rules” (“The Golden Rules”) and the Exclusion Zone Procedures (“the Exclusion Zone Procedures”), in respect of which Mr Hanley had apparently indicated he had not been fully conversant.

[6] The incident on 19 August 2015 again concerned circumstances in which the employer took issue with Mr Hanley’s approach to safe work practices. I will set out the circumstances of that breach further below (under the heading “The 19 August 2015 Incident” following some discussion of relevant contextual matters matters).

[7] Mr Hanley’s evidence was that his employer placed a priority upon safety in the workplace, and that upon commencing work he was required to complete safety training, including training in relation to safety procedures, including forklift exclusion zones. These safe work practices rules are referred to as the Golden Rules.

[8] The Golden Rules, so the evidence in this matter makes reasonably clear, are non-negotiable and applied to all employees across all of the employer sites in Australia.

[9] The Golden Rules are intended to prevent serious injury or death to employees or customers, and include references to exclusion zone loading practices.

[10] The Golden Rules, amongst other things, require that all employees must always stay clear of exclusion zones in which machinery is operating. A further example of a breach of the Golden Rules concerns loading or unloading whilst a pedestrian is in the exclusion zone. The Golden Rules also obligate employees to follow all traffic management rules.

[11] Through the Golden Rules, the employer also requires compliance with the Stramit Traffic Management Plan, which deals with Exclusion Zone Procedures.

[12] The Exclusion Zone Procedures demand, amongst other things, that pedestrians/vehicle drivers must not enter a forklift exclusion zone and a forklift in turn cannot enter an exclusion zone in which a pedestrian/driver is located. Equally, a forklift driver must stop his machine and lower the forklift mast if he loses sight of a pedestrian/vehicle driver and must wait until they have moved to a designated safe area before proceeding. This is described as the “can’t see, can’t load” principle.

[13] Mr Hanley received training in the Golden Rules on 30 March 2015 and 29 May 2015, and received training in respect of the Exclusion Zone Procedures on 4 August 2014 and 30 July 2015. There is no contest between the parties in respect of the adequacy of the training procedures and Mr Hanley’s participation therein.

[14] Mr Hanley contended that he sought to conform to the safety conscious workplace environment required by his employer, and generally had been “committed to safe work practices at all times” over the course of his five years of employment with the employer.

The 19 August 2015 Incident

[15] That said, Mr Hanley was dismissed on 25 August 2015 for a breach of the Golden Rules and the Exclusion Zone Procedures, for reasons that on 19 August 2015 he had continued to operate his forklift whilst a person had entered the safety exclusion zone.

[16] On 25 August 2015, the employer provided to Mr Hanley a written termination of employment letter which read relevantly as follows:

This letter is to formally confirm the outcome of a disciplinary meeting the company held with you on 25 August 2015, the presence of your nominated support person. At the commencement of the meeting, you are advised that this serious matter was to be discussed, which may result in disciplinary action that could lead to the termination of your employment.

The meeting related to an incident that occurred on Wednesday 19 August. Following an investigatio[n], it was found that you breached the company policies including the Fletcher Building Golden Rules and the Stramit Traffic Management Plan and Exclusion Zone Procedures, by continuing to operate a forklift in close vicinity to a customer who had entered an exclusion zone.

You have previously received training in company safety procedures, including Golden Rules, Traffic Management and Exclusion Zone procedures.

In the investigation, full consideration has been given to your explanation of the incident and to your employment record with Stramit. The company has decided that your employment is to be terminated effective 25 August 2015, for serious misconduct relating to a breach of safety rules and placing another individual at risk.

The company’s safety rules and procedures are in place for the protection of all employees, contractors, customers and visitors on company premises. There is nothing more important than ensuring their safety.

[…]

Evidence of Mr Hanley and Mr Wehmeier

[17] Mr Hanley gave evidence that on Wednesday 19 August 2015 while working a day shift, he was operating a forklift loading materials on a customer’s vehicle. While so doing, he claims to have observed that a customer had walked inside the safety exclusion zone. Having so observed the customer, Mr Hanley claimed that he shut down the forklift and directed the customer to move to a safety zone. In so doing he acted in conformity with the Golden Rules and the exclusion zone requirements. As referred to below, the customer was Mr Adam Wehmeier from Alline Roofing. Mr Wehmeier was a regular customer.

[18] Mr Wehmeier himself gave evidence - at least at first instance - that appeared to support the evidence of Mr Hanley. Mr Wehmeier claimed that on approximately 19 August 2015 (at an uncertain time) he had been directed by a forklift driver to remove himself from the exclusion zone around the vehicle applicable to the operation of the forklift. Mr Wehmeier claimed that he had been directed to leave the exclusion zone before the operator would commence operating the forklift.

[19] Mr Wehmeier also claimed that having been so directed, he (Mr Wehmeier) did not re-enter the exclusion zone again until such time as the loading operation had been completed.

[20] Mr Wehmeier’s evidence was subject to cross examination and was significantly qualified as a result. I discuss Mr Wehmeier’s viva voce evidence further below.

[21] That aside, on Monday 24 August 2015, Mr Hanley was summoned to the office of Mr Geoffrey Savage, the Operations and Production Manager. Mr Hanley was provided a support person of his choice, who was his supervisor and personal friend, Mr Daniel (or “Danny”) Williams. Mr Savage was said to have informed Mr Hanley that a complaint had been made that he had breached safety rules whilst operating his forklift on 19 August 2015 whilst a customer had been inside the exclusion zone.

[22] Though it was not stated in his written materials as submitted, Mr Hanley stated through his viva voce evidence that Mr Savage at no stage indicated to him that his employment was at risk as a consequence of the allegation, nor was he provided with full particulars (including copies of any statements) over the course of the meeting of 24 August 2015 or for the subsequent meeting of 25 August 2015.

[23] At the subsequent meeting convened on the morning of 25 August 2015, Mr Hanley attended Mr Savage’s office (at Mr Savage’s request), though this time Mr Hanley claims to have requested a different support person, Danny (or Daniel) Rouget. However Mr Daniel Williams was summonsed to perform the support role once again. Mr Hanley claims that he challenged Mr Williams’ presence but was ignored. The other participants in the meeting have no recollection of Mr Hanley having made any adverse comment about Mr Williams’ attendance and did not endorse his claim to have requested a different “Danny” to the one he requested the previous day.

[24] According to Mr Hanley, Mr Savage indicated to him at this second meeting that he (Mr Hanley) had broken the employer’s “Golden Rules” and “would have to be let go.” Mr Hanley claimed that he again pleaded his case (that he had stopped operating his forklift and directed Mr Wehmeier to leave the exclusion zone) and that if anyone else had entered the exclusion zone he had been unaware of it, and nobody had brought it to his attention at the time.

Evidence of Mr Savage and Mr Davis

[25] The employer’s materials suggest a different factual matrix altogether than that suggested by the evidence of Mr Hanley and Mr Wehmeier.

[26] Mr Davis gave evidence that he had parked his vehicle up facing the warehouse pick up bay on 19 August 2015 and had a full and uninterrupted view of the customer pick up bay some 20 metres distant. Mr Davis also claimed that he could also clearly see the zone markings around the site.

[27] Mr Davis claims that he observed Mr Hanley moving a load of aluminium sheeting (about 2.4 metres in length and 1.0 metre wide) on his forklift. The loaded forklift driven by Mr Hanley approached the Alline vehicle. Mr Davis recognised Mr Wehmeier as the Alline employee standing near the vehicle. Mr Wehmeier was observed to be standing inside the exclusion zone by about 1.5 metres and parallel to the passenger side headlight. While driving his forklift, Mr Hanley then entered the same exclusion zone from the opposite side and loaded the sheeting onto Mr Wehmeier‘s vehicle’s carry racks.

[28] Mr Davis held that Mr Hanley would reasonably have viewed Mr Wehmeier across the vehicle bonnet as being within the exclusion zone when he swung around to place the load on the carry racks.

[29] Mr Davis was of the view that Mr Hanley’s conduct was in breach of the site safety rules. Mr Wehmeier was said to have been in the exclusion zone - though he was partly obscured from Mr Hanley’s vision because he was standing on the other side of his vehicle - and was in jeopardy if the load had fallen forward as it was placed upon the carry racks. While Mr Davis did not intervene at the time - with the incident occurring quite quickly - he observed the safety risk event that occurred and reported the incident to his supervisor upon entering the workplace.

[30] Mr Davis expressly rejected Mr Hanley’s claims that he (Mr Hanley) stopped his vehicle, and that Mr Wehmeier moved out of the exclusion zone upon Mr Hanley’s direction (as claimed by both Mr Hanley and Mr Wehmeier).

[31] On Mr Davis’s evidence, the incident was reported to Mr Danny Williams, the day shift supervisor, on the day the incident – 19 August 2015. Mr Williams did not however inform Mr Savage, much to Mr Savage’s chagrin given the severity of the claims, until Friday 21 August 2015. Mr Williams himself was disciplined for failing to act quickly on the safety incident.

[32] Noting an intervening weekend, and the need to conduct an initial investigation, Mr Hanley was not interviewed by Mr Savage until 24 August 2015 about the relevant events. The meeting was attended by Mr McAlpine, the branch manager, Mr Savage, Mr Williams (Mr Hanley’s nominated support person at the time) and Mr Hanley.

[33] Mr Savage claims that he had asked Mr Hanley if he wished to have a support person and Mr Hanley had indicate he wished to have “Dan” present. Mr Dan Williams was asked to enter the meeting, which commenced only after Mr Savage had explained to Mr Williams his role as a support person. Mr Williams own evidence supports this claim by Mr Savage.

[34] Mr Savage’s offer of a support person was made immediately following him indicating to Mr Hanley that there had been an allegation that Mr Hanley had breached an exclusion zone on 19 August 2015 and that this could result in potential disciplinary action, including termination of employment.

[35] Mr Savage commenced the interview by asking Mr Hanley whether he recalled an Alline employee being in the exclusion zone when he (Mr Hanley) was loading the Alline vehicle the previous Wednesday.

[36] Mr Hanley was said to have responded in the following manner:

“I didn’t see him and I always tell them to get behind the gate.”

[37] Mr Savage was then said to have stated words to the effect that he had a statement from a witness to the contrary effect, and that he could contact the customer if he needs to substantiate the claim.

[38] Mr Hanley was said to have responded in a manner which contradicted his earlier explanation:

“I told the person to move but they mustn’t have moved.”

[39] Mr Hanley was asked to explain what the appropriate Exclusion Zone Procedures were in situations such as this. He informed Mr Savage that an operator should “turn off the forklift and ask [the customer] to get out of the road and don’t move until they do so.”

[40] Mr Savage then asked Mr Hanley why he did not follow the procedures which he had just outlined and Mr Hanley replied:

“Dunno, just stupid I guess.”

[41] For his part, Mr McAlpine claimed that Mr Hanley had replied in the following terms:

“I don’t know, must have been under the pump, it was just stupid.”

[42] Mr Savage indicated to Mr Hanley that he did not believe that he was stupid and that he would suspend the interview to give consideration to the circumstances. Mr Hanley was then said to have become “quite hostile”, according to Mr Savage stated:

“Look don’t waste my time, just show me the gate now.”

[43] Mr McAlpine, who was in attendance at the meeting, effectively corroborated Mr Savage’s evidence in regard to the content of the conversation on 24 August 2015.

[44] Mr Hanley left the meeting room after an exchange with Mr Savage, during which Mr Savage indicated that Mr Hanley could perform other duties for the time being and did not need to drive his forklift.

[45] Mr Savage’s diary notes were tendered in the proceedings and though somewhat more skeletal then the complete narrative set out above nonetheless reflected key elements of the conversation.

[46] I add that Mr Savage sent an email at 1:02 PM to the HR Manager setting out the exchanges which occurred in the interview at 11:30 AM that day. The content of that email corroborates Mr Savage’s evidence in these proceedings and, constitutes a contemporaneous note of the relevant conversation, given it was composed only some short time following the meeting.

[47] A further meeting was conducted on 25 August 2015, in that meeting Mr Hanley was informed that the purpose of the meeting was to obtain more information from him about the incident on 19 August 2015.

[48] Mr Hanley asked for a support person by the name of “Dan”. Mr Savage and Mr McAlpine both assumed that Mr Hanley was again referring to Mr Dan Williams, who had been his support person the previous day. As such, Mr Williams’ was called to the meeting. Mr Hanley was said to have not demurred in respect of Mr Williams’ role in this regard.

[49] Mr Savage was said by Mr McAlpine to have enquired as to whether there was anything else that Mr Hanley wanted to say about the allegations as put to him on the previous day. Mr Hanley, according to both Mr Savage and Mr McAlpine, said:

“No.”

[50] Mr Savage recalled that he explained to Mr Hanley that the matter was a serious matter and that this was his opportunity to put anything further to the company before it made a decision in relation to his employment. Mr Savage recalled that Mr Hanley replied:

“No, let’s get this over and done with.”

[51] Mr Savage recalled saying;

“Are you right to proceed with an interview?”

[52] To this Mr Hanley was said to have replied:

“Yes, hurry up.”

[53] Mr Savage asked;

“Is there nothing further you want to add?”

[54] Mr Hanley was said to have replied:

“No, no.”

[55] Mr Savage considered Mr Hanley’s attitude to be surprising, and confrontational.

[56] Mr McAlpine gave no evidence to the same effect. Mr McAlpine only stated in his written materials that Mr Hanley - upon being invited to provide further comment:

“[…] just shrugged and said, “no”.

[57] Mr Savage claimed to have then stated that there was no further information provided by Mr Hanley and based on his prior comments he considered Mr Hanley to have seriously misconducted himself and that he would be dismissed as a consequence. Mr McAlpine’s evidence corroborated that of Mr Savage in relation to the closing exchange.

Legislative provisions

[58] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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; 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 the FWC considers relevant.

Consideration

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)

[59] It falls upon me to determine, initially, whether the factual matrix as pressed by Mr Hanley is to be preferred to that factual matrices pressed through the evidence of Mr Davis, Mr Savage and Mr McAlpine.

[60] Having had the benefit of hearing the evidence, I have found Mr Davis to be a witness of truth.

[61] Mr Davis was not ill-disposed towards Mr Hanley. There was no history of tension or animosity between the two operators. Thus, there was no reason or motive - work or socially related - for Mr Davis to fabricate his evidence to cause Mr Hanley harm. Mr Davis appeared to have acted out of his obligation as an employee to report an infraction of an important safety requirement designed to secure a safe workplace, and he grappled with the consequences of not reporting the incident.

[62] Mr Davis’ observations about the events of 19 August 2015 were detailed and vivid. They had none of the hallmarks of concoction (such as internal inconsistency or lack of authoritative narration). As mentioned above, Mr Davis was not motivated by an ulterior reason (and no such ulterior reason was cited or suggested).

[63] Mr Wehmeier’s evidence underwent some considerable change upon being cross-examined. Mr Wehmeier ultimately conceded that he did not know on which day he had been directed by a forklift operator to remove himself from the exclusion zones, nor could he say which operator had so directed him in any event (despite knowing Mr Hanley). Mr Wehmeier only recalled one safety incident involving Mr Hanley – whom he knew – and that was unrelated to a forklift operation.

[64] Mr Wehmeier’s evidence had no probative value for this proceeding.

[65] As set out above, in the course of his interview Mr Hanley had claimed that he had informed his employer that on 19 August 2015 he had directed a customer to move out of the exclusion zone before he commenced loading, and was unaware if that customer or some other customer had subsequently moved into the exclusion zone.

[66] I find difficult to accept Mr Hanley’s claims in this regard against the evidence of Mr Savage and Mr McAlpine. Both Mr Savage and Mr McAlpine gave corroborating evidence as to the nature of the exchange that occurred in the interview of 24 August 2015. That evidence suggested that Mr Hanley had changed narratives upon being informed that there was a witness and at no time provided a cogent defence of his actions based on strict compliance with the exclusion zone requirements (as he did in his own witness statement).

[67] As I set out above, Mr Savage also tendered various contemporaneous notes and emails setting out the construction of the discussion that occurred in the meeting of 24 August 2015.

[68] It is similarly the case with the interview of 25 August 2015. In that interview Mr McAlpine corroborated Mr Savage’s evidence that Mr Hanley was essentially indifferent to the allegations as made and made no defence of his conduct (contrary to what Mr Hanley contended).

[69] In the narrative provided through the evidence of Mr Savage and Mr McAlpine, Mr Hanley’s conduct is consistent between the two interviews. Mr McAlpine’s evidence does not slavishly reproduce that of Mr Savage, but is corroborative in substance nonetheless. In essence, there are no indications of fabrication in the evidence before me.

[70] On the balance of probability, I conclude that the discussions that occurred are as reconstructed by Mr Savage and largely corroborated by Mr McAlpine.

[71] Having so determined the factual matrix upon which to base my subsequent decision making, I now inquire into whether or not the conduct as identified was conduct that was in breach of the safety requirements expressly required by the employer of its employees (including Mr Hanley).

[72] As indicated earlier, the company requires compliance with the Golden Rules as well as the Stramit Exclusion Zone Procedures.

[73] It is abundantly clear, on the evidence before me (and as accepted on the balance of probability), that the conduct by Mr Hanley on 19 August 2015 did not conform to the requirements of either the Golden Rules or the Exclusion Zone Procedures. Mr Hanley did not take sufficient precautionary steps in operating his forklift to ensure that the customer was located in a safe position outside the exclusion zones. In so doing, Mr Hanley evinced conduct that contributed to an unsafe workplace and placed a person at imminent risk.

[74] I add that it appears to me that the employer set about to create a heightened awareness of safety in the conduct of its business and must trust ultimately that its employees will integrate these procedures, cues and signals into their judgments and daily behaviour in the workplace.

[75] Mr Hanley appreciated the employer’s efforts in this regard. He was also aware of the Golden Rules and Exclusion Zone Procedures and had been duly trained and tested in respect of those rules and procedures. He had also been involved in a related safety incident in August 2014 and, at the very minimum, he ought to have exhibited a heightened awareness of and sensitivity to the day-to-day safety requirements of a forklift driver at the site, but he did not exhibit the said awareness.

A valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees)

[76] Section 387(a) of the Act requires the Commission to have regard to “whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).” It appears to me that the kind of conduct exhibited by Mr Hanley is the kind of conduct that is intended to be captured by the Act. The conduct in question need not be wilful, malicious or intentional conduct. Conduct that results from carelessness, inattentiveness, deficient concentration in balancing both immediate operational responsibilities and wider situational safety environments, or lack of application of learned rules, are not excuses for non-compliance, but the cause of non-compliance (which in turn give rise to safety risks).

[77] Mr Hanley’s conduct was contrary to the Golden Rules and Exclusion Zone Procedures and as such it is conduct the employer might reasonably seek to sanction. An employer may impose reasonable standards of safety on site (which may exceed the regulatory minimum standards), provide appropriate training in relation to those safety standards, and therefore reasonably expect that its employees will apply that training to reduce risk of injury and accidents in the workplace – a goal frequently pressed by industrial parties. A safe workplace requires an employer commitment to introduce and maintain safety standards along with an employee’s capability to assimilate and express in routine actions appropriate safety behaviours.

[78] A failure by an employee to give effect to safety training instances invokes, as in this case, a valid reason under s.387 of the Act. An employee who after reasonable training does not adopt the behavioural cues necessary to achieve an employer’s reasonable safety expectations in a dangerous workplace, is a risk to him or herself, to others, and has acted to cause a loss of trust in the employment relationship. There is no argument here, I add, that the employer has been inconsistent in the application of its safety rules or otherwise given confusing or contradictory signals to employees about its expectations in this same regard.

[79] The workplace in question here comprises both a manufacturing site and a distribution site and there is a great deal of movement of plant machinery and equipment over the site at a given time. There are also safety critical areas where pedestrian traffic intersects with operating machinery – such as the customer loading bay here in question. Cardinal or “Golden Rules” are given the status of such because they are a means by which serious safety risks can be managed in a prescriptive way in order to ensure the safety and welfare of employees in the workplace.

[80] Mr Hanley’s conduct demonstrated a breach of his employer’s Golden Rules and Exclusion Zone Procedures, and the employer held a valid reason for Mr Hanley’s dismissal on the grounds of serious misconduct. Further, the breach of an important safety rule intended to support the employer’s statutory obligation to maintain a safe place of work may in the present context be a species of serious misconduct (see regulation 1.07(2)(b)(i) of the Fair Work Regulations 2009).

Whether the person was notified of that reason

[81] Mr Hanley was given an opportunity over two interviews on 24 August and 25 August 2015 to provide a full explanation for his conduct. The premise of those meetings was an allegation that he had made a particular breach of the exclusion zone rules, and as a consequence his employment was in jeopardy. Whether or not the employer provided a copy of a statement by Mr Davis to Mr Hanley, the critical matter is that Mr Hanley was at all times aware of the particular reason that the employer had convened the interviews and the nature of the allegation which he faced. Even on Mr Hanley’s own written evidence, he was able in the interview of 24 August 2015 to provide a response to the specific allegation raised about his conduct on 19 August 2015.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[82] Mr Hanley was provided opportunities to respond to the allegations in relation to his conduct over the course of the interviews of 24 August and 25 of August 2015.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[83] Mr Hanley gave evidence that he nominated a particular individual for the purposes of a support person role in his second interview, but that the company disregarded his request and imposed another employee, his supervisor, instead of his preferred nominee. His supervisor, Mr Danny Williams, had been his chosen representative at the meeting the previous day and had assisted Mr Hanley at other disciplinary meetings at other times and he appears have been a personal friend of Mr Hanley.

[84] It appears to me that on the balance of probability that there was a genuine misunderstanding between the parties as to which “Daniel”, “Dan” or “Danny” was being sought as a support person. The matter could have been swiftly corrected if Mr Hanley had pressed the issue and provided his employer with clarification as to his preferences. Equally so, it appears to me to be most unlikely that having offered an opportunity to provide a support person and to have done so in the past as well, the employer at this late stage would in some manner act mischievously in relation to such a request.

[85] In any event, on the basis of the express terms of the matter to which I need to have regard at s.387(d) of the Act, Mr Hanley was not denied or refused an opportunity to have a support person present to assist him at the interviews of 24 and 25 August 2015. The subsection does not deal with the question of whether or not an employee is refused an opportunity to have the support person of his or her choice. There may be sound policy reasons for such an approach given difficulties that may arise with availability.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[86] Mr Hanley was not dismissed for reasons of unsatisfactory performance. Lest it be said that the failure to properly apply required safety rules and procedures is a question of performance, Mr Hanley was warned in August 2014 about the importance of the safety procedures and had undergone training, at that time (as well as thereafter), in respect of his employer’s expectations. Whether or not the substance of the incident in question that led to the warning in August 2014 could be made out, Mr Hanley was left with no doubt about his employer’s expectations in respect of safety.

[87] In Mr Hanley’s own written statement he wrote as follows in respect of this incident:

“I told him after my scare last year when I was warned - I have always been vigilant about safety on the forklift.”

[88] Under questioning, Mr Hanley construed the reference to his “scare” as being a reference to the fact that in the course of the incident Mr Savage had approached him in a vehicle and sounded his horn, which scared him. Mr Hanley argued that the reference to his “scare” was not intended to refer to a scare in relation to a warning that/his employment might be in jeopardy as a result of a further safety incident.

[89] This characterisation of his own evidence was tortured. The natural meaning of Mr Hanley’s own written evidence was that he was well aware - in the circumstances of the incident of August 2014 (as otherwise set out in the evidence of Mr Savage) - that he had been warned that non-compliance with important safety requirements could result in dismissal and he remained in an allegedly alert state of mind, in relation to safety issues, as a consequence.

[90] The requirements of the subsection are discharged.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[91] No claim was made that the size of the employer’s enterprise impacted on procedures effecting the dismissal. Given the size of the enterprise no relevant finding would reasonably arise in any event.

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

[92] No claim was made that the absence of dedicated human resource management specialists or expertise was a factor affecting the procedures followed in relation to Mr Hanley’s dismissal. It is evident from the materials that Mr Savage had access to such resources, in any event, regardless of whether he utilised the available expertise or not.

Any other matters that the FWC considers relevant.

[93] It appears that Mr Hanley has encountered more than his share of difficulties in his personal life in recent times. There is also a suggestion (only) in the evidence-in-chief that Mr Hanley, who does not have educational qualifications either, at least beyond his forklift tickets, may have limited employment opportunities. These are matters to which some limited weight is given in respect of a finding that the dismissal was harsh. There are no other matters which I consider relevant.

Conclusion

[94] When all the circumstances are considered, Mr Hanley’s dismissal, in my view, was not harsh, unjust or unreasonable. Mr Hanley, for reasons known only to himself, did not apply the exclusion zone procedures on 19 August 2015 in respect of which he was trained and familiar. Mr Hanley must reasonably have been sensitised to his employer’s safety expectations, given the incident of 4 August 2014. By failing to give effect to his safety-related training, Mr Hanley created a safety risk (to customers and fellow workers) that was fatal to the trust and confidence inherent to the employment relationship.

[95] Mr Hanley’s application under section 394 of the Act is therefore dismissed

SENIOR DEPUTY PRESIDENT

Appearances:

C. Watters, for the Applicant

S. Mackie, of Counsel, for the Respondent

Hearing details:

By video

Brisbane – Rockhampton

2015

18 & 19 February

Printed by authority of the Commonwealth Government Printer

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