[2019] FWC 5408

FAIR WORK COMMISSION

DECISION

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

Mr Rhys Beskin-Clark
v
Inghams Enterprises Pty Ltd
(U2019/1247)

COMMISSIONER SPENCER

BRISBANE, 2 AUGUST 2019

Application for an unfair dismissal remedy.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr Rhys Beskin-Clark (the Applicant), alleging that the termination of his employment from Inghams Enterprises Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Applicant was employed as a process worker at the Respondent’s poultry processing plant in Murarrie in Brisbane from 25 August 2017 until the termination of his employment on 18 January 2019. Throughout his employment, the Applicant was engaged as a casual employee. 1 Though the Applicant was employed as a casual employee, it was not in dispute that his service was on a “regular and systematic” basis within the meaning of section 384(2)(a) of the Act.

[3] The Respondent’s processing plant operated such that poultry was selected from a production line according to their size and distributed to steel chutes for that size. Process workers, as in the case of the Applicant, were assigned to a steel chute from which to pack the poultry into boxes or crates labelled with the same size.

[4] The Respondent submitted that the Applicant was counselled and disciplined throughout his employment for frequent lateness to commence work and for incorrectly packing poultry of a particular size into cartons labelled with a different size.

[5] The Applicant was first spoken to about his late arrival for work on 29 November 2017, following three instances of lateness. He was issued a Written Warning for non-compliance with packing standards on 21 February 2018; and received a Final Written Warning on 7 November 2018 for non-compliance with packing standards, late arrivals and late returns to his work station from meal or rest breaks.

[6] The Respondent met with the Applicant on 22 November 2018 to discuss the Final Written Warning. The Respondent raised three issues with the Applicant: late arrivals, incorrect packing of product, and behaviour issues. The record of this discussion stated: “if this type of behaviour continues, the company will take disciplinary action and could lead to termination.”

[7] The Respondent submitted that the Applicant subsequently arrived late to his work station on 3, 4 and 15 January 2019 and left his work station without permission from a team leader or supervisor on 4 and 17 January 2019.

[8] On 18 January 2019, the Respondent invited the Applicant to show cause as to why his employment should not be terminated.

[9] The Applicant submitted that he was one minute late on 3 January 2019 and that he had in fact, not been late to his work station on 4 and 15 January 2019 as alleged by the Respondent. Further, he submitted that it was common practice for process workers to leave their work stations without informing a team leader, and he had acted in accordance with this practice on 4 and 17 January 2019 because he had needed to attend the toilet, and was unable to find a supervisor.

[10] The Respondent submitted that it considered the Applicant’s responses at the meeting, but ultimately decided to terminate his employment on 18 January 2019. The Applicant received two weeks wages in lieu of notice.

[11] The Applicant submitted that the decision to terminate his employment was unfair because he had disputed the factual evidence related to a range of the instances that the Respondent relied on, whereby they assert that he was in fact late and that he had not previously received a warning for leaving his work station unattended without notice. In addition he stated that it was common practice to do so, if there was no team leader present. He also believed that other employees had not been subject to disciplinary action for non-compliance with packing standards, and he was also facing difficult personal circumstances, which had impacted on his ability to attend work on time.

[12] Attempts to conciliate this matter were unsuccessful and it was listed for hearing. Mr Craig Buckley, Industrial Officer with the Australasian Meat Industry Employees Union appeared for the Applicant; and Mr James Watt, Senior HR Advisor of the Respondent, appeared for the Respondent.

RELEVANT LEGISLATIVE AND AGREEMENT PROVISIONS

[13] Pursuant to s.394 of the Act:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[14] Further, ss.385, 386 and 387 of the Act relevantly provide:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

“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 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 the FWC considers relevant.”

[15] Pursuant to s.390 of the Act:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[16] Clause 5.1.1 of the Inghams Enterprises (Murarrie and Hemmant) Enterprise Agreement 2016 (the Agreement) provides as follows:

“5.1.1 Breaks

(a) The following arrangements shall apply to the taking of breaks and rest periods.

• Provided that any employees working less than a full day or shift shall only partake in the breaks which occur during their actual working time. During such periods all employees shall be entitled to leave their position for the purpose of personal relief.

• Employees are to be at their work station ready for work at the time nominated by the Company for commencing work. This includes at the commencement of work for the day and at the end of any meal or rest break.

• Each employee shall observe the maximum time they are to be absent from their workstation, which is the time specified for the break (e.g. 30 minutes for a meal break and 20 minutes for a rest period). Exceptional circumstances such as health reasons will be considered.

• Except for meal and rest breaks no employee is to leave their work station without permission from their leading hand or supervisor.

• At the regular change-over of jobs employees are to proceed directly to their next work station.

(b) Supervisors and leading hands are to monitor this time keeping toensure compliance. A disciplinary warning system will apply to employees who abuse these arrangements.”

[17] Clause 3.1 of the Enterprise Agreement provides, in relation to casual employees engaged by the Respondent:

3.1 Casuals

(2) Casual employees may be required by the Company to work the same hours each day as full time permanent employees and casual employees shall work in accordance with such requirements. Provided that, no casual shall be paid less than four ordinary hours per engagement.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

Lateness and leaving work station unattended

[18] The Applicant was rostered to start work at 6:40am. The Respondent relied on data from employee swipe cards; signing in and out of the work area, to demonstrate that the Applicant was frequently late for the start of his shift, (“Attendance Report”).

[19] The Applicant submitted that before arriving at his work station each day to commence work, he was required to follow a health and safety routine that required applying Personal Protective Equipment (PPE), washing hands and boots and then signing in at the swipe card reader before walking to his work station. He estimated that the swipe card reader was no more than 15 to 20 metres away from the work station area.

[20] The Applicant contended that the data in the Respondent’s Attendance Report did not provide important context regarding his alleged lateness to attend work and further, that the Respondent also did not take the circumstances into account. In his submissions the Applicant raised that:

• There were occasions that he was late to his work station (but only by moments), due to problems with his PPE or uniforms. He submitted that he could only identify these issues at the time of applying the PPE and this would cause him to be delayed as he had to go and get new PPE before walking to his work station.

• At the beginning of his employment there were occasions where he received an error message at the card read when using his swipe card, and his start and finish times were recorded manually in his record of work times, until the issue resolved.

• The Respondent’s Attendance Report shows that the Applicant swiped on at 7:15am on 4 January 2019 and 7:14am on 15 January 2019. At this time, the Applicant was rostered to start work at 7:15am. He submitted that he has no memory of being late to his work station on 4 January 2019, but if he was, it could only have been a matter of seconds late. 2 He submitted that on 15 January 2019 he could not have been late because it would not have taken a minute to get to his work station from where he clocked on.3

[21] The Respondent met with the Applicant on 29 November 2017 to discuss three instances of lateness, on 27 September 2017, 21 November 2017 and 29 November 2017. The Attendance Report showed that the Applicant swiped in at 6:50am on 27 September 2017, 6:52am on 21 November 2017 and 6:54am on 29 November 2017. His start time was 6:40am.

[22] The Respondent also alleged that the Applicant did not phone the Respondent’s “Absence Hotline” to advise that he was going to be late on 27 September 2017, although he did so on 21 and 29 November 2017.

[23] The Applicant submitted that he was late to work on 27 September 2017 and 21 and 29 November 2017 because of traffic conditions. He further submitted that he did phone the Respondent’s Absence Hotline on each occasion that he was late. 4

[24] The Applicant submitted that he does not remember any further details about having left his work station unattended on 4 January 2019, other than that it was to go to the toilet. 5 He submitted that if a team leader was not present, he would usually wait for them to return if he could. Otherwise, he would let another worker know that he was going to the bathroom.6

[25] The Applicant submitted that on 17 January 2019 he recalled having to go to the toilet in a hurry, and there was no team leader present to advise. He submitted that most of the time there was only a team leader present on one of the production lines or at the desk area. 7

[26] The Applicant stated that it was common practice for his co-workers not to notify a supervisor or team leader when leaving their work stations. In his witness statement he submitted that:

“everybody leaves their workstation on numerous occasions without telling their team leader;” 8 and “Every day, someone would come up to me and say, “I’m going to the toilet” without telling their team leader.”9

[27] The Applicant submitted that he had not received a warning for leaving his work station without permission and the first time it was raised with him formally was during the show cause meeting on 18 January 2019.

[28] It was submitted that the evidence did not justify the warnings and that he had been treated differently to other employees, on the handling of these matters.

Non-compliance with packing standards

[29] The Respondent alleged that on 6 February 2018, a team leader had witnessed the Applicant packing size 11 birds into a box labelled size 17. The Respondent met with the Applicant on 21 February 2018 to discuss the alleged conduct of 6 February 2018.

[30] The Applicant submitted that he was told that a single carton of size 11 birds had been incorrectly packed. He did not recall the alleged incident but stated in the meeting that he believed he did not do this. The Applicant submitted that a warning was not warranted in these circumstances, because:

• packing a particular sized bird into a differently labelled carton was a common issue among all workers in his section of the processing plant. He submitted that he had observed situations where boxes had been packed incorrectly by other workers and simply returned to the worker to repack. He believed those employees were not issued warnings.

• sometimes, more than one worker was assigned to a chute if it was particularly busy, or at other times, workers would help on other chutes if they had finished their work. 10 The Applicant submitted that he did not know how the Respondent would know with certainty that it was him who had incorrectly packed the box on 6 February 2018.11

[31] Notwithstanding the Applicant’s denial of the allegation that he had incorrectly packed a box on 6 February 2018, the Respondent issued the Applicant a Written Warning on 21 February 2018. The content of the warning was as follows:

“This is a WRITTEN WARNING for non-compliance to packing standards causing an error in orders which could have led to a serious customer complaint on the 6/2/18.

It is important all employees focus on the task at hand, if you are not sure of what is required Team Leaders are to assist. You have been trained in SWP WB 009 – Packing WB and requirements.

FUTURE BREACHES COULD RESULT IN FURTHER WARNINGS/OR TERMINATION.”

A handwritten note was added: “*PACKING INCORRECTLY N/O 11s INTO N/O 17 labelled cartons”

[32] The Applicant wrote in the ‘Employee’s Response’ section:

“I believe I didn’t do it. I don’t understand why I am getting a written warning when no one has gotten a warning for this befor.” (errors in original).

[33] The Applicant submitted that on 6 November 2018 he was packing birds into a box labelled “14” when he approached by a team leader, who informed him that the birds he was packing were not the right size for a box labelled size 14. The Applicant pointed to the chute from which he was packing which was labelled “14”. He explained that he had asked and was told that all three chutes were for size 14 birds. The team leader informed the Applicant that this was incorrect.

[34] The Applicant submitted that the chute he had been assigned on 6 November 2018 had the number “14” written on the side of it. The two previous chutes were also marked with “14”. The Applicant stated that he could not see his team leader in the area, so he asked the worker beside him if all three chutes were size 14 and the worker responded in the affirmative. The Applicant submitted that although the colleague he asked was not a team leader, he thought it appropriate to check with her as she was an experienced worker and had been a team leader in the past.

[35] On 7 November 2018 the Applicant’s Supervisor, Ms Sabrina Marsh, met with the Applicant about the incorrect packing that had occurred on 6 November 2018.

[36] The Applicant submitted that his Supervisor also spoke to him in the meeting on 7 November 2018 about “late arrivals and late starts”, but “nothing had been said to me before the meeting”, and “most of the discussion was about the packing issue”. 12

[37] At the meeting on 7 November 2018, the Applicant was told that he was receiving a Final Warning. The warning stated:

“This is a FINAL WRITTEN WARNING for misconduct in non-compliance to packing standards and for late arrivals at the start of shift & returning from any meal or rest breaks.

You were observed packing two crates labelled Low Scold 14 with Neck out 10 birds, tying liner & pushing crates onto the GEMS belt.

This is an ongoing issue in the Whole bird packing area where people are not reading the labels & packing the wrong sized birds into the cartons or crates, resulting in customer complaints. You have been trained & signed off as competent on WB 009 Packing Whole Birds & Toolbox talks in regards to packing correctly & reading labels to ensure the product is packed to customer specifications.

You have also been cautioned on numerous occasions for late arrivals at the start of your shift & returning from break to your work area by the WB Supervisor & Team Leaders.

In accordance with the EBA signed & agreed on;

Clause 5.1.1(a) The following arrangements shall apply to the taking of breaks and rest periods.

‘Employees are to be at their work station ready for work at the time nominated by the Company for commencing work. This includes at the commencement of work for the day and at the end of any meal or rest break.’

[38] The ‘Employee’s Response’ section of the warning reads “DECLINED TO COMMENT.”

Complaints about behaviour

[39] The Applicant submitted that he was called to a meeting with his Supervisor Ms Sabrina Marsh and the Production Manager, Mr Joe Meintjes on 22 November 2018. At this meeting he was told that there had been four formal complaints from different people in relation to the Applicant’s conduct. He submitted that his Production Manager told him that he was rude and abrupt with people and outlined some examples.

[40] The Applicant submitted that on one of the four occasions that his Production Manager was referring to, he had accidentally bumped into a trolley being pushed by another worker in a narrow area. Before he could say he was sorry, the worker started swearing and yelled at him. The Applicant submitted that he told the worker not to speak to him like that or he will report them. The Applicant submitted that he believed the worker reported him after the threat of being reported, which the Applicant submitted was the response he was trained to provide in confrontational circumstances.

[41] The Applicant submitted that other employees had been rude to him, and he had told them not to talk to him like that he or would report them, and this only resulted in them becoming more aggressive and threatening. The Applicant submitted that he reported instances of this conduct to Human Resources.

[42] The Applicant submitted that his Production Manager told him that two canteen staff had complained about him. He submitted that this complaint was without basis, as he had only tried to return some food he had purchased from the canteen because it was of poor quality on one occasion, and the canteen staff did not like that. He submitted that on another occasion, a canteen staff member was rude to him and he said “don’t worry about it” and decided he would not go to the canteen anymore. 13

[43] The Record of Employee Discussion Form from the meeting on 22 November 2018 stated as follows:

“Due to a Final Warning being issued by your Manager/Supervisor, further discussion with you was required by the Production Manager to ensure you understand the severity of a Final warning. Any further breaches of non-performance compliances may result in termination of your employment with Inghams Enterprises Ltd.

Areas of discussion included;

1. Late arrivals

This is your responsibility to ensure you are at your work station ready for work at the time nominated by the Company for commencing work.

2. Incorrect packing of product

Making sure you pack to Customer Specifications i.e. attention to detail, reading labels, packing correct amount of product, packing the correct sized birds.

3. Work Performance in regards to behavior issues

In the past two months, you have had four formal complaints from different people in regards to your behavior. On two of these occasions there have been witnesses who have confirmed the complainants version of events.

Just this week you have had two new incidences, formal complaints in regards to your behavior. Once involved a WB team member & the second was the Canteen staff. This is the second complaint to come from the Canteen staff.

The Production Manager has made it clear to you that your Work performance & behavior towards others, being rude, abrupt & condescending will need to improve. If this type of behaviour continues, the company will take disciplinary action and could lead to termination.

Make sure you treat others in the way you would like to be treated & to walk away from confrontational matters.”

(errors in original)

[1] The ‘Employee’s Response’ section of the warning was blank.

Show cause meeting

[2] The Applicant submitted that he was told by his supervisor towards the end of his shift on 18 January 2019 to come with her to the management room as there was a meeting involving him. The Respondent’s Production Manager, Mr Joe Meintjes and the Production Supervisor, Ms Sabrina Marsh attended the meeting; along with the Applicant and a union representative as his support person, Mr John Ruhi.

[3] The Applicant submitted that Mr Meintjes asked him to explain why he had been late three times since his last warning. The Applicant submitted that he tried to explain that he had been having difficulties with the people he shared accommodation with, but he found it difficult to put into words how this had caused him to be late. The Applicant submitted that one of the people he lived with was “very difficult and unstable, and altercations of a morning would delay me leaving for work.” 14

[4] The Applicant stated he told his Supervisor and Production Manager in the meeting that his accommodation situation was going to change, and improve. He also stated that he tried to explain to Mr Meintjes that on several occasions he had only been a few moments late and only metres from his work station when he was due to start his shift, however, Mr Meintjes “did not seem to be interested.” 15

[5] In response to the allegations that he had left his work station without notifying a team leader on 4 and 17 January 2019, the Applicant submitted that he stated in the meeting that he had left his work station without informing a team leader on 17 January 2019 because he “was not feeling well and stressed and needed to go to the toilet in a hurry.” 16 The Applicant submitted he was told his reasons were not good enough, and was asked if he had medical information to verify any illness. The Applicant replied that he did not.

[6] The Applicant submitted that the Production Manager and Supervisor left the room “for a while”. When they returned, the Production Manager informed the Applicant that his employment was being terminated. 17

[7] The Applicant received a termination letter at the end of the meeting. He was also informed he would receive two weeks’ wages as notice of dismissal.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

Lateness and leaving work station unattended

[8] The Respondent submitted that it measured employee attendance at the Murarrie processing plant by assigning a swipe card to each employee and requiring them to clock on and off at the start and end of their shifts by touching the swipe card against a card reader.

[9] The Respondent cited the requirement set out in Clause 5.1.1(a) of its Enterprise Agreement that employees must “be at their work station ready for work at the time nominated by the Company for commencing work. This includes at the commencement of work for the day and at the end of any meal or rest break.” The Clause also states that “Except for meal and rest breaks, no employee is to leave their work station without permission from their leading hand or supervisor.”

[10] The Respondent referred to its Attendance Report of the Applicant’s clock on and clock off times during his employment, and submitted that he had been late on 41 occasions.

[11] The Respondent submitted that it counselled the Applicant on numerous occasions in relation to his late attendance and made adjustments to his start time to assist him to attend work on time. However, the Applicant continued to be late.

[12] The Respondent submitted that it had an internal absenteeism procedure which required employees to telephone an “Absence Hotline” before the start of their shift if they were going to be absent or late.

[13] At the start of his employment, the Applicant was rostered to start work at 6:40am.

[14] The Attendance Report showed that the Applicant clocked on at 6:50am on 27 September 2017, 6:52am on 21 November 2017 and 6:54am on 29 November 2017.

[15] The Respondent met with Applicant on 29 November 2017 to discuss his lateness on 27 September 2017 and 21 and 29 November 2017. The Respondent submitted that the Applicant had contacted the Respondent’s Absence Hotline to advise of his lateness on 21 and 29 November 2017, but did not make a call on 27 September 2017. The Applicant submitted he made a call on each occasion.

[16] The meeting on 29 November 2017 was recorded on the Respondent’s “Record of Employee Discussion Form”. The form was completed as follows:

“27/9/17 10 minutes late for commencement of work, nil call to DHS hotline.

21/11/17 Call to DHS hotline stating will be late due to traffic, 12 minutes late for commencement of work.

29/11/17 Call to DHS hotline stating will be late due to traffic, 14 minutes late for commencement of work.

Your absenteeism is disruptive to the team and overall floor production.

You are required to demonstrate consistency in attendance management and make reasonable effort to work a full weeks work to abide by your employment with Inghams.”

[17] The Respondent submitted that on 29 January 2018 the Applicant’s Supervisor, Ms Sabrina Marsh, met with him because he had been late six times since the November 2017 meeting. The Applicant advised that he was experiencing “issues at home” and it was agreed in this meeting to adjust his shift start time from 6:40am to 7:25am.

[18] The Respondent submitted that Ms Marsh again spoke to the Applicant regarding lateness on 6 April 2018, after he had attended work late on six occasions since they last met. The Applicant responded in words to the effect that he had been experiencing family problems, but expected his punctuality to improve as he was moving house.

[19] On 2 July 2018 the Applicant indicated his issues at home had resolved, and it was agreed that the Applicant’s start time would be revised to 7:00am.

[20] The Respondent submitted that on 12 November 2018 it readjusted the Applicant’s start time to 7:15am as the Applicant had been late 13 times since the 7:00am start time was implemented on 2 July 2018.

[21] The Respondent submitted that it met with the Applicant on 22 November 2018 to “reiterate” the content of the Final Warning it issued on 7 November 2018. The Respondent submitted that it raised the Applicant’s ongoing lateness as an issue.

[22] In January 2019, the Applicant clocked on for his shift at 7:16am on 3 January 2019, 7:15am on 4 January 2019 and 7:14am on 15 January 2019, which meant that he was not ready to commence work at his work station by his rostered start time of 7:15am.

Compliance with packing procedures

[23] The Respondent submitted that on 6 February 2018 the Applicant packed multiple “number 11” sized birds into “number 17” labelled cartons. The Applicant’s supervisor stated that she had received information from Ms Lauren Bearcry, a team leader at the Respondent, that Ms Bearcry saw the Applicant packing the number 11 sized birds into the number 17 labelled cartons and had stopped him from dispatching two incorrectly packed cartons, but she was unsure if any others had already been dispatched.

[24] The Respondent issued the Applicant a Written Warning on 21 February 2018 for his failure to comply with the Respondent’s packing standards on 6 February 2018.

[25] The Respondent submitted that on 16 March 2018 and 11 April 2018 the Applicant received training in respect of the Respondent’s packing standards and the requirement to check the labels on cartons to ensure the bird size being packed matched the label.

[26] The Respondent submitted that it received a report from one of its employees, “Amada” 18 on 5 November 2018, that Amada had seen the Applicant pack two cartons of size 10 birds into size 14 cartons.

[27] The Applicant’s supervisor made enquiries into this report and was advised that the number 14 was written on the panel of the chute from which the Applicant was working, but size 10 birds were being distributed from that chute. The Applicant advised his supervisor that he had questioned the size of the birds with his co-worker, Turua Tupou, and she had told him that they were ‘number 14’ birds, and to ask a team leader if he was unsure.

[28] A team leader of the Respondent, Ms Amander Baker, advised the Applicant’s supervisor that she had written the size on the chute but it had been smudged.

[29] The Respondent met with the Applicant on 7 November 2018 to obtain his response in relation to the incorrect packing incident on 5 November 2018. The Applicant declined to provide a response at the meeting.

[30] The Respondent issued the Applicant a Final Written Warning on 7 November 2018 and submitted that an employee with the Applicant’s experience, having had more than twelve months’ performing the role, ought to have known the difference between a size 10 bird and a size 14 bird.

[31] The Final Written Warning of 7 November 2018 stated:

“the Company has decided to issue Rhys Beskin-Clark with a Final Written Warning – due to incorrect packing, not packing product to customer specifications & for late starts/arrivals to your work station at the time nominated by the Company for commencing work, which includes at the end of any meal or rest break.

The Company requires Rhys to abide by the following condition(s) –

- Read labels on cartons & crates to ensure correct sized birds are packed to customer specifications.

- Follow company Standard Work Procedures & Policies

- Be able to demonstrate an immediate and sustained improvement in all forms of lost time, including return from meal or rest breaks.

- Contact your supervisor prior to your normal shift start time of any lost time/absence from work including late arrivals and absences.

- Provide documentation for any lost time resulting from any other form of lost time including late arrivals.

- Failure to comply with these conditions may result in further disciplinary action which may lead to termination of your employment.”

[32] On 22 November 2018 the Respondent held a further meeting with the Applicant. The Respondent submitted that the purpose of this meeting was to discuss non-compliance with packing standards, late arrivals at the start of shift, late return from breaks, and to ensure the Applicant understood the severity of a final warning.

[33] At the meeting on 22 November 2018 the Respondent discussed a number of complaints it had received about the Applicant’s behaviour, including a complaint from employees of Cater Care who staff the canteen on the Respondent’s premises that the Applicant was “short, abrupt, and has a condescending tone”.

[34] The Applicant was rostered to start work at 7:15am in January 2019. The Respondent submitted that:

• On 3 January 2019 the Applicant swiped in at 7:16am and arrived at his work station at 7:17am.

• On 4 January 2019 the Applicant arrived at his work station at 7:17am. The Applicant’s Supervisor spoke to him to ask why he was late and the Applicant didn’t respond. The Applicant’s Supervisor advised him that this was his “last caution”.

• On 8 January 2019 the Applicant returned to his work station two minutes after the designated break finish time.

• On 14 January 2019 the Applicant returned to his work station two minutes after the designated break finish time. The Applicant advised his Supervisor there was no reason for his lateness and he would improve.

• On 15 January 2019 the Applicant was late for his shift, starting work at 7:16am.

• On 17 January 2019 the Applicant’s Supervisor was informed by a team leader, Amander Baker, that the Applicant had left his work station without informing a team leader on 4 January 2019 for 12 minutes and on 17 January 2019 for 16 minutes.

• The Respondent submitted that Ms Baker was a team leader present on these occasions and the Applicant could have informed her that he needed to leave his work station.

[35] On 18 January 2019, the Respondent invited the Applicant to show cause as to why his employment should not be terminated for his “further lateness” during January 2019 and his failure to notify his supervisors for leaving his work station.

[36] The Respondent submitted that the Applicant expressed remorse for his lateness in his response. He advised the Respondent that he had been having difficulties with his living situation but could not explain how it was causing him to be late.

[37] The Respondent considered the Applicant’s response, however, ultimately decided to terminate his employment when considering his entire employment history, including past disciplinary action and the opportunities provided for him to improve.

[38] The Respondent submitted that once the decision to terminate had been made and communicated, the Applicant “went into detail about his living situation”. 19 Taking the Applicant’s circumstances into account, the Respondent decided to pay the Applicant two weeks’ wages in lieu of notice, notwithstanding this was above his entitlement as a casual employee.

CONSIDERATION

[39] At the hearing, evidence was provided by the Applicant in relation to the confined issues of punctuality, packing and his conduct related to the dismissal. In terms of remedy, the Applicant sought reinstatement. The Applicant indicated that despite making job applications, he had not been successful in gaining employment after the termination.

[40] In accordance with clause 5.1.1(a) of the Enterprise Agreement, the Employer stated that a number of conversations were had with the Applicant regarding the necessity to be at his workstation ready to commence work at the rostered time. The evidence demonstrated that to be at the workstation to commence work at the start of the rostered time involved allowing enough time between the time that he clocked on the timecard, to then undertake the necessary washing of hands, collection of personal protective equipment and often performing stretches depending on the work area of the day and then to move to the workstation dependent on his roster.

[41] The Respondent submitted that it was clear that the Applicant was clocking on late and on a number of occasions he was not able to commence work at the rostered start time in accordance with clause 5.1.1(a) of the Agreement. The Employer stated that they had engaged in discussions with the Applicant on this issue and he had volunteered he was having difficulty with personal issues, that were causing his late attendance. As a result, the Respondent endeavoured to make accommodations for the Applicant and his commencement times were altered. There were continued instances of late arrival to commence work. In support of the Applicant’s case, he argued that there had been some different treatment of the issues with him as compared with other employees.

[42] For the Respondent evidence was given by Mr Joe Meintjes (Production Manager) and Ms Sabrina Marsh (Supervisor). The Respondent stated that it had difficulty with the Applicant’s time keeping but that the dismissal was based on the aggregate of the issues.

[43] Mr Buckley made submissions for the Applicant at the hearing that there remained contested evidence about whether an employee could physically make it to their work station within the same minute after they swiped on at the card reader. It was in doubt that the Applicant was in fact late to his work station or not ready to commence work by his rostered start time on all of the occasions alleged. However, Mr Buckley continued that if it was to be accepted that the Applicant’s frequent lateness was a valid reason for dismissal, the dismissal was still harsh in all of the circumstances.

[44] Mr Buckley raised issues with the disciplinary process followed by the Respondent, and submitted that, in summary, the Respondent could not have fairly reached a decision to terminate when, on the Respondent’s own evidence, the lateness by itself was not enough to warrant an outcome of termination; and factual issues remained regarding the Applicant’s alleged incorrect packing procedures and conduct issues, such that it was improper for the Applicant to have been issued formal warnings in relation to this conduct and for these warnings to have been relied on in reaching the overall decision to terminate, when the allegations had been denied by the Applicant at the time of raising them, and the Respondent simply preferred and relied on hearsay evidence from team leaders or other employees.

[45] In considering whether a dismissal is harsh, unjust or unreasonable, the Commission must have regard to the matters in s.387 of the Act:

(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

[46] The reasons for the Applicant’s dismissal can be summarised as: lateness in meeting the rostered start time of his shift, and/or leaving his work station unattended without communicating with a supervisor, and packing incorrect chickens into relevantly marked packaging. There had also been complaints about the Applicant’s contact with staff in the crib room, and the canteen.

[47] The Applicant stated that in relation to the complaints about his conduct, he had removed himself from the crib room to resolve this matter. The Respondent stated that the complaints were received by the human resources officers. It is emphasised that much of the evidence on these alleged complaints from the crib room were based on hearsay.

[48] Importantly, the Production Manager for the Respondent, Mr Joe Meintjes, gave evidence that that it would be rare for an employee to lose their job on the basis of a lack of punctuality, even though this was a significant issue when managing a workforce of some 1000 employees and the consequence of lateness meant increased pressure for others working on the chain of transitioning product. Mr Meintjes’ gave evidence at the hearing that:

“I don’t believe you should be allowed to sack someone or terminate someone’s employment for being late. That by itself, it’s not enough and should never be enough to do it” 20

[49] Mr Meintjes stated that that decision to terminate the Applicant’s employment was:

“based on an analystic (sic) review of his performance as it is relevant to the disciplinary process at that time. So his final written warning absolutely plays part in that. The warnings before that also plays part in it, and the discussions that's been had with him during that time which includes the coaching and/or the discussions that I've had with him subsequent to that.” 21

[50] The Respondent witnesses provided evidence that the consequences of incorrectly packaging heavier weight birds for customers, was that they had their cooking equipment was often programmed to cook birds of a particular weight. Accordingly wrong packaging would result in the birds being cooked for a reduced amount of time than that which is set commensurate with the packaged product weight. This could result in under-cooked product, which may result in health concerns with chicken products. 22 Whilst the Respondent also argued that the packaging of the wrong birds into incorrect packaging, could also result in other implications in terms of potentially incorrectly recorded allergens, as well as from a business perspective, customer complaints for these errors or loss of business. It is acknowledged that these are all possibilities of incorrect packing practices, however, in pressing the employer on this topic it was conceded that no products incorrectly packed by the Applicant, were actually distributed to customers; and there was no evidence of the relative transfer of allergens on the current circumstances.

[51] The Applicant’s conduct with lateness, in circumstances where the Agreement provisions provide clear guidance on the obligations of an employee is frustrating for an employer with a large workforce managing a production chain. The evidence of the Production Manager however, conceded that further reasons would normally be required to result in the termination of an employee. In the current matter the further reasons for the dismissal, the packaging issues and complaints of interactions were not firmly based on evidence. Therefore, as argued by the Applicant’s representative there is an unfairness with regard to the decision to terminate. It is agreed that the allegations supporting the termination have not been substantiated.

(b) whether the person was notified of that reason; and

[52] The Applicant was notified of the reasons for dismissal, but was not clear on all of the issues being relied on for the termination of his employment. In addition, he disputed a number of occasions for which he was disciplined and later dismissed. A number of the notifications of incidents were not timely.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[53] The Applicant was given the opportunity to respond on each occasion that the Respondent met with him to discuss his lateness and/or failure to follow packing standards. Again, however, it was not clear that the Applicant was afforded an opportunity to respond to all of the reasons being relied on for dismissal, nor the exact details of incidents. Specifically, it is not clear that the Applicant was afforded a reasonable opportunity to respond to the incidents concerning his failure to notify a team leader when leaving his work station unattended. The Applicant was only notified of the allegations that he had engaged in this conduct on 4 and 17 January 2019 through the meeting on 18 January 2019 which ultimately led to the Applicant’s dismissal during the same meeting. There was a lack of communication as to what specific incidents were relied on which undermined the Applicant’s opportunity to respond.

(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

[54] There was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present for the disciplinary meetings throughout his employment.

[55] The Applicant had a support person present at the disciplinary meeting on 21 February 2018 which resulted in a Written Warning; the meeting on 7 November 2018 which resulted in a Final Written Warning; and the meeting on 18 January 2019 which resulted in the Applicant’s termination.

(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

[56] The termination in reliance on the packing issues and complaints was not reliable. Applicant had been spoken to about his lateness and it was the subject of the first formal discussion in November 2017. This matter continued in terms of further discussions over a long period, diminishing the strength of the process.

[57] The Written Warning dated 21 February 2018 was issued only for non-compliance to packing standards. It did not refer to lateness as a reason for the warning.

[58] The Applicant submitted that he had not previously been warned about leaving his work station without notifying a team leader.

[59] The Applicant submitted that it was common practice for employees to leave their work stations without notifying a team leader, and that on the occasions that he left his work station without doing so, specifically on 4 and 17 January 2019, he could not see a team leader to ask and that there were very few team leaders in ratio to the workforce number.

(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

[60] The Respondent has a dedicated Human Resources Officer. It is acknowledged that the Production Manager was also involved in managing the disciplinary and the termination process. It is acknowledged that whilst this employer has in-house Human Resources Officers, they are involved in managing a significantly large workforce. Further, it is understood that a clear message must be sent to employees in such a large workforce of the need to comply with the rostered start time. However a clear message must also be communicated as to how the measure of lateness is observed and enforced, given the required steps after the ‘swipe up’ needed to start work.

[61] The Respondent in this matter had tried to assist the Applicant over time. However, a clear message to the Applicant was required regarding his continued lack of punctuality and that his job was in jeopardy and that the dismissal of his employment would result. This definite message was not conveyed in clear terms.

[62] It is appreciated that an employee working on a production line as part of a team commencing at his rostered time is a basic requirement of his employment. An employees’ late arrival causes the chain of product to move to other employees on the line.

(h) any other matters that the FWC considers relevant.

[63] The Applicant submitted that the Respondent’s decision to terminate his employment was a disproportionate response to his conduct since he was issued the Final Written Warning in November 2018.

[64] Specifically, the Applicant submitted that:

• he was not late on all occasions alleged by the Respondent, as it did not take him long to walk from the card reader to his work station, and accordingly, it cannot be automatically inferred that if the Applicant swiped on at 7:14am, he was not at his work station ready to work by his start time of 7:15am.

• the issue of leaving his work station to go to the toilet without notifying a team leader was, while a contravention of the Respondent’s requirement of employees, a common practice by employees while a team leader was not present.

• since the discussion to “reiterate” his Final Warning on 22 November 2018, in conjunction with the adjustment of his start time, the Applicant’s timeliness record had improved significantly. While there had been occasions that he had been late, the Respondent’s records indicate that he was not late by any significant period of time.

[65] The Applicant submitted that although he has attempted to mitigate his loss since his termination by registering with a recruitment agency and searching for alternative employment, however he has so far been unsuccessful.

[66] The Respondent submitted that the decision to terminate the Applicant’s employment was not harsh, unjust or unreasonable in all the circumstances, given the Applicant’s persistent lateness throughout his employment despite the Respondent’s expectations being made clear through verbal counselling, issuing warnings and adjusting the Applicant’s start times to assist him to attend on time.

[67] The Respondent submitted that the Applicant was afforded significant time to improve, and despite the assistance provided and adjustments made to his start time, the Applicant continued to attend work at, or very close to, his designated shift start time. The Applicant’s representative also submitted that after swipe in prior to commencing at the workstation there are matters such as PPE to be applied in the interim. The evidence that lateness would not justify a dismissal, detracted from the dismissal particularly as the packing and conduct issues were not reliable.

[68] The Applicant had a history of circumstances during his employment for attending at his work station, at, after or very shortly before his scheduled shift start time.

[69] The Respondent provided the Applicant opportunities to explain his late attendance, however never received a meaningful response from him as to the cause of his lateness. The Respondent made accommodations and adjustments to the Applicant’s start time, but there was never any sustained or significant improvement in the Applicant’s timely attendance at work. It was submitted on behalf of the Applicant that the issues of lateness were not properly examined by the Respondent. Further, in any event, the Respondent’s evidence that lateness alone would not justify dismissal.

[70] Having considered the various factors contained in s.387 of the Act on the evidence presented, I am satisfied that there was no valid reason and there were some associated procedural fairness issues in how the performance management was conducted and the dismissal implemented. The Applicant’s dismissal was harsh, unjust or unreasonable for the matters as set out, in relation to the reasons underpinning the dismissal.

[71] Therefore, based on the facts and circumstances of this matter, and for the aforementioned reasons, the application made pursuant to s.394 is allowed.

REMEDY

[72] On the basis of the finding that there was no valid reason for the termination, and it was harsh, unjust or unreasonable in regard to the process adopted, it is appropriate to consider a remedy.

[73] The remedies available pursuant to section 394 of the Act are limited to reinstatement, re-employment or compensation. They do not allow for the Commission to order some alternative circumstance that allows for the implementation of a final warning and/or communication to a party where they are very much aware that the job is in jeopardy. These matters are for the Respondent’s consideration.

[74] This is a case where, given the unreliability of the associated evidence, and the relevant communications with the Applicant the reasons for termination were not clear or sustainable in the current matter.

[75] The relevant legislative provisions for consideration of a remedy are set out in s.390, s.391 and s.392. Section 390 of the Act sets out the following: