Mr Mohamed Aden v Quality Bakers Australia Pty Ltd T/A Goodman Fielder Fresh Baking

[2013] FWC 2172

[2013] FWC 2172

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Mohamed Aden
v
Quality Bakers Australia Pty Ltd T/A Goodman Fielder Fresh Baking
(U2012/14196)

COMMISSIONER CLOGHAN PERTH, 14 MAY 2013

Unfair dismissal.

[1] This is an application by Mr Aden seeking a remedy for alleged unfair dismissal from his employment. Mr Aden was suspended from his employment with full pay on 20 September 2012 at approximately 6:10 am while the Employer investigated an alleged serious safety breach which occurred at 2:00 am earlier on the same day. Following the Employer’s investigation, Mr Aden’s employment was terminated, with notice, on 10 October 2012. Mr Aden denies that he committed a serious breach of safety.

PROCEDURAL BACKGROUND

[2] On 15 October 2012, Mr Mohamed Aden (Applicant) made application to Fair Work Australia, now Fair Work Commission (Commission), seeking a remedy for alleged unfair dismissal from his employment with Quality Bakers Australia Pty Ltd T/A Goodman Fielder Fresh Baking (Employer).

[3] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] The application was unable to be resolved at conciliation and was referred to me for arbitration on 29 November 2012.

[5] On 7 December 2012, I issued procedural directions for a hearing on 6 March 2013.

[6] At the hearing on 6 March 2013, the Applicant represented himself and was assisted by Mr Farah. Ms Dualeh was a translator for Mr Aden. Mr Aden gave evidence on his own behalf.

[7] The Employer was represented by Ms Korbel, in-house counsel. Evidence on behalf of the Employer was given by the following:

● Mr J Sanderson, Site Operations Manager;

● Mr P Knox, Production Manager;

● Mr D Baer, Acting Production Manager; and

● Mr A Bontempo, Shift Team Leader.

[8] Written documentation received as a result of the procedural directions was incorporated into the arbitral proceedings. In addition to the written material, I heard oral submissions and evidence. The parties provided written closing submissions on 13 and 15 March 2013. This is my decision and reasons for that decision.

RELEVANT BACKGROUND

[9] Mr Aden commenced full-time employment with the Employer on 29 March 2009.

[10] At the time of his dismissal, Mr Aden was employed as a Baker.

[11] On 20 September 2012, at approximately 2:00 am, Mr Aden was working on the bread line, at the Bread Divider section.

[12] The hi-fibre dough had completed its passage through the bread line and the next product, generic white, had commenced. The first batch of generic white dough was wet and sticky.

[13] Mr Baer observed the production team discarding bread dough. Mr Baer enquired as to what had happened from Mr Bontempo. Mr Bontempo advised Mr Baer that the wrong ingredients had been put into the dough 1.

[14] Mr Baer and Mr Bontempo went to the Mixer Computer to discuss rearranging the generic white dough ingredients 2.

[15] While at the Mixer Computer, Mr Baer turned and saw Mr Aden on the Bread Divider platform 3.

[16] There is a dispute between the parties about what Mr Aden was doing on the Bread Divider platform which forms the essential issue in the Applicant’s dismissal.

[17] The dispute between the parties goes to the actual position of Mr Aden and what he was doing at the time, the Employer alleges, he committed a serious breach of safety.

[18] There is no dispute between the parties that the Employer has what is called a “Lock Out Tag Out” (LOTO) procedure. The mandatory procedure applies to employees, contractors and visitors 4.

[19] The purpose of the procedure is to ensure energy isolation and minimise risk to health and safety “from any potential accidental or unexpected start up of machinery or plant” 5.

[20] It is the responsibility of employees to comply with LOTO in the isolation of energy sources. Complete isolation of machinery is achieved by an employee’s personalised padlock. The procedure specifically explains that electrical stop buttons are not isolating devices.

[21] The method of isolation requires the following five (5) steps:

Isolate Identify and eliminate all energy sources. Turn off electrical switch.

Lock Where the isolation points can be locked, they must be locked using a key/clasp/padlock. Each person must keep the key on themselves while working under the protection of isolation.

Tag Apply a danger tag to each isolation point.

Clear Check to determine if the machine is clear of persons in the event of machine start up.

Test Attempt to start machine to ensure that it does not start. 6

(my emphasis)

[22] Padlocks and tags can only be removed by the person who placed them on the machinery, except in the case of illness, injury or the person is unable to be located 7.

[23] LOTO specifies that breaches of the procedure “will be deemed as serious misconduct and may lead to disciplinary action” 8.

[24] Mr Aden was trained in and understood the LOTO procedure. 9

[25] Mr Aden was aware of the procedure for cleaning the Bread Divider including the need to switch it off and perform LOTO 10.

[26] There is no dispute that Mr Aden switched off the Bread Divider.

[27] There is also no dispute that Mr Aden did not complete LOTO.

[28] Following the incident at approximately 2:00 am on 20 September 2012, Mr Baer and Mr Bontempo met with Mr Aden to discuss his understanding on LOTO and why it had not been followed. The exact content of this discussion is in dispute.

[29] At approximately 6:10 am, Mr Knox advised Mr Aden, in the company of a United Voice delegate, that he was stood down on full pay pending an investigation. The Applicant was requested to prepare a written statement of his version of events as part of the investigation.

[30] Mr Baer was also requested to prepare a written statement of events earlier on 20 September 2013.

[31] On 21 September 2012, Mr Knox met with Mr Aden, and his United Voice delegate. The purpose of the meeting was to review his written statement of 20 September 2012 and furthermore the Applicant’s response as to why he did not comply with LOTO.

[32] Subsequent to the meeting with Mr Aden, Mr Knox met separately with Mr Baer and Mr Bontempo.

[33] On 27 September 2012, Mr Knox advised Mr Aden, by correspondence, that he had concluded his investigation and he had formed the view that the Applicant’s conduct at approximately 2:00 am on 20 September 2012 was serious misconduct. Mr Aden was given until close of business on 28 September 2012 to “show cause as to why your employment should not be terminated” 11.

[34] On 3 October 2012, the Employer received a response from Mr Aden dated 2 October 2012 in response to the “show cause” letter.

[35] On 10 October 2012, Mr Knox advised Mr Aden that his employment was being terminated for multiple breaches of the Employer’s Code of Conduct - Behaviour in the Workplace Policy. In particular, the letter stated, “specifically...acting in a way that threatens your personal safety. As a result, we cannot trust that you will work in a safe and proper way when you are at work...” 12.

RELEVANT STATUTORY FRAMEWORK

[36] It is not in dispute that Mr Aden is protected from unfair dismissal pursuant to s.382 of the FW Act and that the application was made within the statutory timeframe in paragraph 394(2)(a) of the FW Act.

[37] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

● 385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) …
(d) …

[38] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

● 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.

RELEVANT EVIDENCE

[39] Mr Aden’s written evidence is that prior to standing on the Bread Divider platform, he had switched off the Bread Divider and the Divider PLC. The Applicant then set the “weigher and speed controller at zero” and climbed onto the Bread Divider platform 13.

[40] Mr Aden’s evidence is that:

“I was on top of the hopper scraping off some wet bread from the Perspex inspection window, and my intention was to come down from the hopper and lock it” 14. (my emphasis)

[41] In his written submission, Mr Aden states:

“...being on top of the hopper...there is no danger around it, and once again I was not cleaning inside the hopper” 15. (my emphasis)

[42] What Mr Aden was doing while on the platform is important to this application.

[43] Mr Aden gave evidence that he had lifted the Perspex window upwards to clean the inside of sticky dough and no part of his body was inside the Bread Divider.

[44] Mr Aden does not deny that Mr Baer asked him where was his padlock. Following the question, he “rushed to come down and lock the divider” 16.

[45] The Applicant’s evidence is that, notwithstanding he was cleaning the inside of the perspex inspection window, he had not “touched the inside” 17. Further, “I was told without locking the machine, you cannot touch inside, but no one told me that you cannot touch the window [without locking out or padlocking the main isolation switch]”18.

[46] When asked in cross examination whether he put the locks on, Mr Aden gave evidence that “I was in the process of doing that when someone came and talked to me” 19.

[47] In contrast, Mr Baer’s evidence is that he observed “the Applicant kneeling on top of the Bread Line Divider with his head and one arm inside the hopper window cleaning out the tacky dough” 20. Mr Bontempo confirms that he also saw Mr Aden “with his head and one arm down inside the hopper chute”21.

[48] Mr Baer and Mr Bontempo’s evidence of Mr Aden having his upper body and one arm inside the Bread Line Divider was not disturbed in cross examination.

[49] With respect to the actual position of the Applicant, I have Mr Aden’s evidence that he is on the platform and cleaning the inside of the Perspex window. In contrast, I have the corroborated evidence of Mr Baer and Mr Bontempo that Mr Aden had his upper body and one arm inside the Bread Divider. Given the difference in evidence, and the need to come to a conclusion as to whether the conduct occurred, I turn to the immediate events after Mr Baer and Mr Bontempo witnessed Mr Aden on the platform without the padlock being in place on the isolation switch.

[50] Mr Aden, in his outline of submission, statement of facts and witness statement states that when approached by Mr Baer, he immediately came down from the Bread Divider platform and carried out LOTO and proceeded with the cleaning of the hopper. The Applicant does not give evidence of what he said in the discussion with Mr Baer when told to complete LOTO. However, Mr Aden denies the evidence of Mr Baer and Mr Bontempo as to what he said when confronted with not carrying out the LOTO procedure fully.

[51] Mr Baer gave evidence that when he asked Mr Aden why he did not have his LOTO tag on the Bread Divider, he responded with the words to the effect, “I have turned the bread line divider off”. When the Applicant was asked by Mr Baer “what about your tag/padlock”, he responded, “yeah, yeah...I know, I was in a hurry” 22.

[52] Mr Bontempo does not give evidence that he heard the entire discussion between Mr Baer and Mr Aden but did give evidence that Mr Baer considered the incident “serious” 23.

[53] In Mr Aden’s statement of 20 September 2012, after meeting with Mr Knox, he states:

“Immediately, I have came down to lock the divider, I was very busy and had heavy schedule” 24. (my emphasis)

[54] After the incident, Mr Aden met with Mr Baer and Mr Bontempo in Mr Baer’s office.

[55] In Mr Aden’s statement on the day of the incident, he writes of the meeting as follows:

“...after few hours, Daniel beer (sic) call me to office and said to me that I have done the wrong thing which relates to safety issues and also said to me that he will write a report to Paul Knox” 25.

[56] The statement is couched in very neutral terms and does not give rise to the subsequent significant differences as to what occurred at the meeting.

[57] Mr Baer’s statement on the day of the incident is as follows:

“I ask Mohamed do you understand the importance of using your lock tag/padlock which Mohamed replied yes he does know. I asked him why he had not followed LOTO procedure which Mohamed stated he was in a rush because of the tacky dough...Mohamed did apologize for not using the lock out tag/padlock” 26.

[58] Mr Bontempo’s evidence is that it was a very “heated” discussion with Mr Aden claiming, “you are out to get me” 27.

[59] Mr Baer gave evidence that Mr Aden apologised on several occasions shortly after the incident in his office and he would not “do it [carry out incomplete LOTO] again” 28.

[60] I am satisfied, on the balance of probabilities, that at the time of the incident, Mr Baer did approach Mr Aden, emphasised the seriousness of not locking out and tagging out, and that Mr Aden replied with words to the effect of “yeah, yeah...I know, I was in a hurry”.

[61] Mr Baer advised Mr Aden that he would not be conducting the investigation as he was going on leave and that he would inform his manager. To emphasis the point, Mr Baer informed the Applicant that, “my hands were tied. I have to report this” 29. Mr Baer made the non-verbal communication of crossing his wrists in front of his body - Mr Aden has interpreted this as an act of “hand cuffing”. I am satisfied that Mr Baer’s physical gesture would be well known to many, and was not intended to be interpreted by the Applicant, as he did, that he was a criminal.

[62] Mr Aden’s evidence rejects Mr Baer’s version of the discussion but, notably, he again does not set out what he said at the meeting.

[63] The next material meeting was conducted by Mr Knox on 21 September 2013. Prior to the meeting, Mr Knox had informed his superior and invited the United Voice delegate to the meeting.

[64] The meeting was attended by Mr Aden, the United Voice delegate and Mr Knox.

[65] Mr Knox took notes of the meeting and a typed version was provided to the hearing.

[66] When asked why he did not follow LOTO procedure, Mr Aden replied, “because I got busy and did not lock out”. As to why he had apologised to Mr Baer, Mr Aden stated that it was because he had “forgotten to lock out tag out” 30.

[67] Mr Aden claims that Mr Knox “was pressuring me to admit to something I did not do...he was constantly repeating words and making accept the guilt by accepting the statement of Daniel Baer” 31.

[68] Mr Knox rejected, in cross examination, any assertion by Mr Aden that he was trying to put words in the Applicant’s mouth 32.

[69] Conceptually, Mr Aden’s approach to the Employer’s investigation is reflected in “questions” to Mr Knox in cross examination, as follows:

“...So what proof have you got when I didn’t admit what I was accused of? I didn’t say it’s my fault So what proof have you got to convince everybody of what I did?” 33

and

“So how did you end up or how did you decide to believe the other employee’s statement even though I did not admit anything - not to you, not to him - and believe the other employee’s statement?” 34

[70] Mr Knox explained in evidence his process of receiving statements, interviewing the individuals involved, probing where there was a conflict of what happened, and receiving advice from the human resources department. Having done so, Mr Knox came to the view that Mr Baer and Mr Bontempo were more credible in their statement of events than Mr Aden.

[71] Mr Knox confirmed that Mr Aden acknowledged that he forgot to lock the Bread Divider, that he was in a hurry and that he was sorry for what he had done. Mr Knox agreed that Mr Aden was adamant that he did not put his head inside the hopper 35.

[72] Mr Knox met separately with Mr Baer and Mr Bontempo on two occasions. Mr Knox provided, in evidence, his notes of the meeting with Mr Baer on 21 September 2012. In the notes, Mr Baer confirms that Mr Aden had his arm and shoulder inside the hopper looking down and cleaning inside. The notes also state that the main isolator switch was off but not locked out with the padlock. Mr Baer stated to Mr Knox that Mr Aden had stated to him that he had forgotten to lock out and was sorry for not following the policy 36.

[73] On 27 September 2012, Mr Aden received a “show cause” letter giving him an opportunity to provide reasons why his employment should not be terminated for failing to comply with the Employer’s policies and procedure, and in particular, acting in a way which threatened Mr Aden’s own safety and health”. The correspondence was issued by Mr Knox as part of his investigation.

[74] In Mr Aden’s response, which is headed, “Problem with the management”, he:

● distinguishes between “full cleaning” and “emergency cleaning”;

● “intended” to clean the hopper;

● was in the “process” of switching off the divider;

● did not forget to switch off the divider but Mr Baer made an “assumption” that he forgot to switch off the divider;

● intended to come down, lock the divider and proceed with the cleaning;

● was inappropriately dealt with by Mr Knox;

● was bullied, refused flexible work arrangements;

● received unfair terms and conditions of employment; and

● was the subject of discrimination. 37

[75] Having received the response to the “show cause” correspondence, Mr Knox concluded that the conduct described by Mr Baer and Mr Bontempo had occurred. Mr Knox reported to Mr Sanderson his conclusion, and his more broad concern that Mr Aden did not appreciate the seriousness of what he had done, and finally, the difficulty for the Employer, in future, having confidence and trust in the Applicant in relation to safety matters.

[76] Mr Sanderson reviewed the material provided to him. Mr Sanderson conducted a interstate telephone conference with the Manufacturing Director and Human Resources Director. Following these actions Mr Sanderson made the decision to terminate Mr Aden’s employment which was done at a meeting with the Applicant on 10 October 2012.

CONSIDERATION

[77] In applications such as this, Mr Aden carries the burden of proof to establish, on the balance of probabilities, that he was unfairly dismissed from his employment.

[78] The Commission’s task broadly is to determine, having considered the documentary material, the evidence of all parties and the law, whether Mr Aden was unfairly dismissed. This task is all the more difficult, given the conflicting evidence on the crucial issue.

Was there a valid reason for the Applicant’s dismissal? - s.387(a)

[79] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[80] There is a fundamental conflict of evidence surrounding the incident at approximately 2:00 am on 20 September 2012.

[81] The Applicant has given evidence that he was on the Bread Divider platform and cleaning the open perspex inspection window on the inside. However, Mr Aden disputes that he had his head and arm inside the hopper cleaning. Mr Aden has no evidence to corroborate his evidentiary position.

[82] In contrast, both Mr Baer and Mr Bontempo give clear and unequivocal evidence that Mr Aden had the perspex hopper cover open with his head and arm inside carrying out cleaning.

[83] From an evidentiary perspective, the surrounding circumstances are not in dispute. Mr Aden does not dispute that he was on the platform or that the Bread Divider energy was turned off, but not locked out.

[84] When confronted by Mr Baer as to why Mr Aden had not locked out, Mr Baer gave evidence that he responded with words to the effect “yeah, yeah...I know, I was in a hurry”. A short time later in Mr Baer’s office, Mr Baer gave evidence that Mr Aden repeated similar sentiments and apologised for his actions.

[85] Mr Aden did not give evidence of his actual response to Mr Baer, except to deny comments attributed to himself and be critical of the manner of the interview with Mr Knox. Mr Aden felt that he was being pressured to agreeing with the statements of Mr Baer about forgetting to lock out, being busy and apologising.

[86] Notwithstanding the allegation of being pressured by Mr Knox, Mr Aden separately includes, as part of his written statement to Mr Knox as the investigation officer, the following:

“Immediately I have came down to lock the divider, I was very busy and had heavy schedule, overlooking the situation there was no safety hazard around it, because everything was completely switched off.” 38 (my emphasis)

[87] This evidence of Mr Aden confirms and corresponds with the evidence of Mr Baer that the Applicant uttered words to the effect that he was busy, and that on being confronted with not locking out, he did so immediately.

[88] It would appear that, on a production line process, there had been a “stuff up” with the ingredients in a dough mix. This led to wastage, the need to clean the hopper and, simply put, additional work. In such circumstances, Mr Aden was “very busy” and commenced cleaning without locking out.

[89] It is notable that in Mr Aden’s statement to the investigation, he states:

“[Mr Baer]...did not take into consideration that the whole system was switched off instead he jumped in to a conclusion [a serious safety incident].

This sort of problem happens day to day basis, it happens to everybody, it’s unavoidable especially if you working in the bread line section.” 39

[90] I am sure that problems do occur at the workplace on a daily basis and that employees can and do take short cuts, however, on this occasion it was seen by two of Mr Aden’s supervisors.

[91] I am satisfied that, on the balance of probabilities, that the conduct which led to Mr Aden’s dismissal occurred on 20 September 2012.

[92] I now turn to surrounding circumstances which led the Employer to treat with gravity the actions of Mr Aden.

[93] Mr Aden does not dispute that he was aware of and trained in LOTO. As an employee of five (5) years as a casual and full-time employee, it can be comfortably stated that Mr Aden was an experienced employee.

[94] The Bread Divider, as its name suggests, is a relatively large piece of production machinery with two (2) large blades at the top of the hopper and in the middle. The Bread Divider has also a range of other moving parts.

[95] The shutdown and cleaning process for the Bread Divider is prescriptive and illustrated with photographs. On page 1 of 4 of the process, it requires the operative to switch the Bread Divider to “CLEANING position”, switch off the “Main Isolation Switch and LOTO isolate diver air divider and LOTO”. Visually, this shut down process is accompanied by a safety sign which has a padlock and the words “LOCK OUT FOR SAFETY”. 40

[96] It is significant that after all these shutdown procedures have taken place that it states “Open perspex hatch directly below hopper and secure onto hook to ensure hatch stays open” 41. The accompanying photograph appears to demonstrate the inside of the perspex hatch window being cleaner.

[97] I am unable to accept the Applicant’s statement of 2 October 2012 when he attempts to differentiate between what he describes as “full cleaning” and “emergency cleaning”. Such a distinction is not provided for in the shutdown and cleaning, but importantly, it is inconsistent with the preceding paragraph in the Applicant’s statement which reads:

“In respond to the allegation, I did not state that I was cleaning the hopper, I WANTED to clean the hopper and my INTENTION was to clean the hopper and I was in the process of switching off the divider”. 42

[98] The Employer submitted the importance it places on safety in the workplace and that mandatory procedures are in existence to prevent workplace injuries. Managers and supervisors are, and should be, held accountable for safety. Consequently, it is not unexpected that Mr Baer and Mr Bontempo acted when Mr Aden’s actions seriously compromised his own safety. Shortly put, Mr Aden knew the requirements of the policy and procedure, yet undertook a task which was contrary to those procedures and put himself at serious risk to injury.

[99] Apart from its general obligation for a safe working environment, Mr Sanderson gave evidence that one of the factors in dismissing Mr Aden was the actions taken involving similar breaches of LOTO policy and the serious injuries that had been suffered by employees involved in those breaches 43.

[100] Finally, in the course of its investigation, the Employer came to the conclusion, particularly by Mr Knox, that the Applicant refused to acknowledge the seriousness of his actions and his conflicting statements. For this reason, the Employer was of the view that it could not trust Mr Aden to carry out his duties in a safe manner. This conclusion is an evaluative judgement and based upon the evidence which I have seen and heard relating to the investigation, one which was permissible to the Employer,

[101] Finally, in relation to the investigation process which led to the Employer determining whether a valid reason existed to dismiss him, I am satisfied that the manner was fair, reasonable and in accordance with procedural fairness.

[102] In conclusion, I am satisfied that the Employer had, taking into account all of the circumstances, particularly in respect to the safety issues, a sound and defensible reason to terminate the Applicant’s employment.

Notification of the reason for termination of employment - s.387(b)

[103] I am satisfied that, initially by way of verbal discussions with the Employer and subsequently through correspondence to Mr Aden on 27 September and 10 October 2012, Mr Aden was given the reasons for the termination of his employment.

Opportunity to respond - s.387(c)

[104] Mr Aden was given the opportunity to respond when the incident occurred on 20 September 2012. Shortly afterwards, the Applicant was given the opportunity to respond in Mr Baer’s office. Later on the same day of the incident, Mr Aden was given the opportunity to respond and provide a written statement to Mr Knox.

[105] On 21 September 2012, Mr Aden, in the company of a United Voice delegate, was given the opportunity to respond to the incident on the previous day.

[106] On 27 September 2012, the Employer had reached the tentative view that, because of his conduct on 20 September 2012, his employment should be terminated. Mr Aden was given the opportunity to respond to the tentative conclusion of the Employer, and did so on 3 October 2012.

[107] I am satisfied that Mr Aden was given the opportunity both verbally and in writing, to respond concerning his conduct at work in failing to comply with LOTO on 20 September 2012.

Support person - s.387(d)

[108] Mr Aden had a Union delegate present at the initial meeting with Mr Knox on 20 September 2012. The attendance of the United Voice delegate was at the instigation of the Employer.

[109] When carrying out his investigation on 21 September 2012 the same United Voice delegate attended a meeting with Mr Knox and Mr Aden.

[110] On 10 October 2012 when Mr Sanderson handed to Mr Aden his letter of termination of employment the meeting was delayed until a United Voice delegate was present.

[111] I am satisfied that the Employer did not refuse Mr Aden a support person present at each meeting relating to his conduct of 20 September 2012. Further, I find that the Employer actively ensured that a support person was present.

Unsatisfactory performance - s.387(e)

[112] With the exception of the incident on 20 September 2012, and Mr Aden’s failure to comply with the conditions regarding workers’ compensation return to work, I have no evidence that the Applicant was warned about his unsatisfactory performance.

Size of the enterprise - s.387(f)

[113] The Employer is a relatively large employer with dedicated human resources personnel.

[114] I am satisfied that the procedure followed by the Employer was fair and reasonable.

Human resources - s.387(g)

[115] This criterion is not relevant to the application.

Other matters - s.387(h)

[116] I have not taken into account any other matters into consideration in reaching this decision.

CONCLUSION

[117] In conclusion, for the reasons set out above, I am satisfied that Mr Aden’s dismissal from his employment on 10 October 2012 was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed and an Order to that effect is issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

M Aden, the Applicant on his own behalf.

K Korbel for Quality Bakers Australia Pty Ltd T/A Goodman Fielder Fresh Baking,

Hearing details:

2013:

Perth,

6 March.

Final written submissions:

The Applicant: 13 March 2013.

The Respondent: 15 March 2013.

 1   Exhibit R12

 2   Exhibit R12

 3   Exhibit R12

 4   Exhibit R8

 5   Exhibit R8

 6   Exhibit R8

 7   Exhibit R8

 8   Exhibit R8

 9   Exhibit R3

 10   Exhibit R3

 11   Exhibit R5(3)

 12   Exhibit R5(5)

 13   Exhibit A4

 14   Exhibit A4

 15   Exhibit A1

 16   Exhibit A4

 17   Transcript PN192

 18   Transcript PN297

 19   Transcript PN205

 20   Exhibit R12

 21   Exhibit R12

 22   Exhibit R12

 23   Exhibit R11

 24   Exhibit R5(1)

 25   Exhibit R5(1)

 26   Exhibit R5(2)

 27   Exhibit R11

 28   Transcript PN700

 29   Transcript PN727

 30   Exhibit R13

 31   Exhibit A4

 32   Transcript PN865

 33   Transcript PN775

 34   Transcript PN781

 35   Transcript PN845

 36   Exhibit R13

 37   Exhibit R5(4)

 38   Exhibit R5(1)

 39   Exhibit R5(1)

 40   Exhibit R7

 41   Exhibit R7

 42   Exhibit R5(4)

 43   Exhibit R14

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