Mr Mohamed Ahmed v Webforge NSW Pty Ltd

[2010] FWA 4053

[2010] FWA 4053

FAIR WORK AUSTRALIA

DECISION

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

Mr Mohamed Ahmed
v
Webforge NSW Pty Ltd
(U2009/12697)

SENIOR DEPUTY PRESIDENT CARTWRIGHT SYDNEY, 2 JUNE 2010

Application for unfair dismissal remedy.

[1] Webforge NSW Pty Ltd (Webforge) terminated Mr Mohamed Ahmed’s 15 year employment on 29 September 2009 for unsafe work practices. He lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy and, none of the factors in s. 396 being at issue, the matter came to me for determination. The case was heard on 7 and 22 April 2010.

[2] In 2008 Webforge adopted “Goal Zero” as a workplace safety and management system, its aim being to operate its metal fabrication activities without injury. Mr Ahmed had been employed since January 2004 as Team Leader, Cutting Section, at Webforge’s Mona Vale plant, responsible for supervising other employees and the work of the GW3 welding machine producing grating panels. The incident which triggered termination of his employment is not in contest.

[3] Welded panels exit the GW3 machine onto a hydraulic run-out table, which is lowered when the required stack size is reached and pushed sideways by hydraulic cylinders on to the adjoining bay, from which the stack of welded panels is picked up by crane and moved to the next operation. The run-out table is enclosed by head-high guards, which separate it from area in which the crane operates. 1 There is one access point for the run-out table (the south gate), entered by a head-high steel mesh gate which locks out operation of the machine when the gate is opened. By contrast, the enclosed stacker ejection table area can be entered by the “north gate” while the welding machine is operating, providing access for removal of the completed stack of panels.2 From time to time, the welded panels do not align closely on the run-out table, which can make picking up the finished stock more difficult for the crane operator.

[4] Mr Ahmed’s evidence was that on 28 September 2009, there was a misalignment of the finished panels on the run-out table. He placed the machine on stand-by, entered the adjoining stacker ejection table area by the north gate, climbed up on the ejection table, approximately half a metre above the floor, reached over the otherwise head-high guard rail and used a steel bar to manipulate, and thereby align, the finished panels on the run-out table in the adjoining bay. In doing so, he aggravated a pre-existing back injury, which he reported. 3

[5] Section 387 of the Act provides:

“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.”

[6] In my view, Mr Ahmed, as an experienced operator and supervisor responsible for the safety of others, could reasonably be expected to know that Webforge took safety seriously and that what he did was unsafe, especially in the context that he had previously injured his back. What I have to determine is whether there was a valid reason for the dismissal related to Mr Ahmed’s conduct (including its effect on the safety and welfare of other employees).

[7] Webforge’s submissions on the importance of Mr Ahmed’s leadership responsibility in its “Goal Zero” program put the bracketed consideration in issue, while Mr Walkaden for Mr Ahmed argued that mitigating factors meant that Mr Ahmed’s conduct was not a valid reason for dismissal.

[8] Some of the factors on which Mr Walkaden relied do not trouble me. In my view, Mr Ahmed’s evidence that he was not trained on the machine he supervised can be dismissed, as can the proposition that Webforge had not put a “do not enter” sign on the north gate or that Mr Ahmed was not previously put on notice that the procedure he used on 28 September 2009 was unsafe. An experienced supervisor in a metal fabrication plant could reasonably be expected to know that what he did was unsafe, without any of these factors.

[9] The evidence that misalignment of the panels had been a recurring problem and that the method Mr Ahmed used on 28 September 2009 had been observed by the previous factory manager without comment carries more weight. However, it cannot be the case that workplace safety requirements are to stand still as the employer’s safety program develops. It is in that context that Mr Ahmed’s leadership role and the effect of his example on the safety of other employees are significant.

[10] Mr Walkaden also argued that Mr Ahmed was honest in reporting the injury and his account of how it occurred and that Mr Ahmed’s reporting the injury supported the proposition that Mr Ahmed did not consider the incident would put his employment in jeopardy. All that I accept.

[11] It will be apparent from what I have said that I accept Mr Ahmed’s conduct (including its effect on the safety of other employees) was reason for disciplinary action. The question that troubles me is whether it was reason for dismissal. That is, was dismissal in the circumstances disproportionate to the offence?

[12] Mr Mendez took the view that he had no option but to terminate Mr Ahmed’s employment, given the emphasis Webforge placed on improving safety and Mr Ahmed’s responsibilities as a supervisor for the safety of others. I disagree that he had no other option, given the length of Mr Ahmed’s employment and his record with Webforge. But, while views may differ on the appropriate response, it cannot be said that dismissal in the circumstances was “capricious, fanciful, spiteful or prejudiced.” 4 Rather, it must be said that in this case it was “sound, defensible or well founded.”5

[13] There is no doubt that Mr Ahmed was notified that his employment was in jeopardy for his unsafe conduct on 28 September 2009. While Mr Mendez, Factory Manager, gave “the general gist of what happened” after the injury in paragraph 40 of his statement, 6 paragraphs 1116 and 1117 of the transcript recount the real content of his side of the discussion with Mr Ahmed on the factory floor on 28 September 2009. Mr Mendez may not have used the words to Mr Ahmed that he was considering terminating his employment,7 but in my view Mr Ahmed could not have been in any doubt from the account above, which I accept, that his unsafe action had put his employment at risk. Certainly, he knew it was sufficiently serious to come to the meeting on 29 September 2009 with Mr Holton of the AMWU. (Accordingly, s. 387(d) of the Act is not in issue in this case).

[14] Whether, before the decision to dismiss him, Mr Ahmed was given the opportunity to respond is more difficult.

[15] It is necessary to comment at this point on the reliability of the evidence given. Neither Mr Mendez nor Mr Rowe took notes of the conversations that occurred on 28 and 29 September 2009. Neither spoke to the other in preparing his statement, provided six months after the conversations in question. Each relied on his memory. Yet the account of conversations reported, and words used, is identical in many respects and, at the minimum, “substantially similar” in total. Neither witness found that remarkable. I did. Cross examination also revealed that neither statement gave a full account of the conversations. And while Mr Mendez projected as a confident witness, I was satisfied that in some respects the confident appearance went beyond the actual recollection.

[16] However, Mr Ahmed’s evidence also raised problems. He gave quite a different account of the conversation on 28 September 2009 following his injury to those given by Mr Rowe at paragraph 46 of his statement 8 and by Mr Mendez at paragraph 40 of his statement.9 The accounts of Mr Rowe and Mr Mendez were in large part the same. Mr Ahmed’s evidence was that Mr Mendez’s account was not accurate, yet Mr Rowe’s statement, largely the same as Mr Mendez’s and at variance with his own, was accurate.10 Given issues with evidence on the conversations in contention in this case and their relevance to matters which Fair Work Australia (FWA) must take into account, it was surprising that Mr Ahmed did not call Mr Holton to give evidence as a participant in the meeting of 29 September 2009.

[17] At any rate, prior to the meeting on 29 September 2009, Mr Mendez had formed the view that Mr Ahmed’s safety breach was so serious that it was worthy of dismissal 11 and had indicated to his boss, Mr Robinson, that he would be dismissing Mr Ahmed.12 Mr Rowe, Webforge’s human resources specialist on the site, recounted the meeting in his statement in terms indicating Mr Ahmed was not given an opportunity to respond before the dismissal decision was made. However, Mr Mendez and Mr Ahmed both recount that before Mr Mendez dismissed Mr Ahmed in the 29 September 2009 meeting, Mr Mendez adjourned discussion and left the room for a short time, saying “I need to make a phone call”.13 (Mr Rowe also agreed in cross examination that Mr Mendez left the room before dismissing Mr Ahmed). In my view, although it may be the case that Mr Mendez went through the motions of taking a break to consider the matter, his mind was already made up and Mr Ahmed’s opportunity to respond was in form only.

[18] Sub-paragraphs (e), (f) and (g) of section 387 of the Act are not at issue in this case. Unsatisfactory performance was not a factor in the dismissal, Webforge’s size was not likely to impact on procedures followed in effecting the dismissal and nor was the absence of dedicated human resource management.

[19] Other relevant matters do, however, carry weight in my view. Mr Ahmed had an employment length of over 15 years and a record with Webforge that justified consideration of all the options following his unsafe conduct on 28 September 2009, especially in view of Mr Mendez’s assessment that Mr Ahmed was open and honest in the investigation. His unsafe conduct was the more significant for his role as a Supervisor with specific accountability for safety. 14 So, alternatives to dismissal may have been both few and unpalatable to Mr Ahmed, but they were not considered. It was clear from Mr Mendez’s evidence that the relationship between the two of them broke down. I do not suggest by these remarks an additional obligation for employers. But I am concerned in all the circumstances on this case that dismissal was harsh, and I so find.

[20] Accordingly, Mr Ahmed has been unfairly dismissed within the meaning of s.385 of the Act.

[21] Turning to remedy under s.390 of the Act, I am satisfied that reinstatement of Mr Ahmed is inappropriate. It will be apparent from the above that Mr Ahmed should not be reinstated to a supervisory role with leadership accountability for safe work practices. Also, I accept Mr Mendez’s evidence that, for reasons of competence or physical restrictions, other administrative or operational roles are now not viable.

[22] Instead, I intend to order compensation in lieu of reinstatement in accordance with s. 392 of the Act. There is no suggestion here that such an order will affect the viability of Webforge; Mr Ahmed’s length of service is over 15 years; Mr Ahmed gave evidence that he made “many” job applications 15 and remained unemployed. Consequently, there was no evidence of remuneration or income earned relevant to subsections 392(2)(e) and (f) of the Act. No evidence was put before me on s. 392(2)(c) of the Act. Considering all the circumstances of this case including Mr Ahmed’s unsafe act in a leadership role, I will make an order that Webforge pay compensation in lieu of reinstatement equal to 9 weeks’ pay.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A Walkaden, of the Australian Manufacturing Workers’ Union, for the applicant.

Mr A Powter, of the Australian Industry Group, for the respondent.

Hearing details:

2010.

Sydney.

April, 7 & 22.

 1   Transcript PN 1653-1681.

 2   Ibid. See also Transcript PN 1381-1388.

 3   Exhibit A1.

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 5   Ibid.

 6   Transcript PN 1047.

 7   See Transcript PN 1523-1526.

 8   Exhibit R1.

 9   Exhibit R2.

 10   Transcript PN 55-56 & 59.

 11   Transcript PN 1510.

 12   Transcript PN 1508.

 13   Transcript PN 1171-1172.

 14   Exhibit R1, Attachment B.

 15   Transcript PN 301.

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