Mr Shane Bailey v Interface Aust Pty Ltd T/A Interface Flor
[2011] FWA 5130
•15 AUGUST 2011
[2011] FWA 5130 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shane Bailey
v
Interface Aust Pty Ltd T/A Interface Flor
(U2010/14705)
COMMISSIONER CARGILL | SYDNEY, 15 AUGUST 2011 |
Termination of employment.
[1] This decision arises from an application by Mr S Bailey (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Interface Australia Pty Ltd trading as Interface Flor (the respondent or the company). The applicant’s dismissal occurred on 17 or 18 November 2010 and the application was lodged with Fair Work Australia (FWA) on 1 December 2010.
[2] The matter was dealt with by an FWA Conciliator but did not settle. It was heard by me in Sydney on 15 March, 15 April, 17 May and 15 July 2011. There was also a recorded directions hearing by telephone on 9 March 2011. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399 including the views of the parties.
[3] The applicant was represented by Mr Port, solicitor and the respondent by Mr Jervis, solicitor. Both representatives appeared by permission.
[4] The applicant gave evidence. His witness statement dated 28 January 2011 was marked Exhibit Applicant 4. His statement in reply dated 7 March 2011 was marked Exhibit Applicant 5. The applicant’s oral testimony is at PN 1005-1565 of Transcript of 15 March 2011 and at PN 6-615 of Transcript of 15 April 2011.
[5] The following witnesses gave evidence on behalf of the applicant:
Mr A Davidson | Employee of the respondent and union delegate for the Textile, Clothing and Footwear Union of Australia (TCFUA). His witness statement was marked Exhibit Applicant 1 and his oral testimony is at PN 128-310 of Transcript of 15 March 2011; |
Mr N Keenan | Former employee of the respondent. His witness statement was marked Exhibit Applicant 2 and his oral testimony is at PN 323-497 of Transcript of 15 March 2011; |
Mr R Landrigan | Employee of the respondent. His witness statement was marked Exhibit Applicant 3 and his oral testimony is at PN 509 - 853 of Transcript of 15 March 2011. |
[6] The following witnesses gave evidence on behalf of the respondent:
Mr E Szczepanowski | Industrial Relations Manager for the respondent. His witness statement was marked Exhibit Respondent 7 and his oral testimony is at PN660-1506 of Transcript of 15 April and 17 May 2011; |
Mr R Gisborne | Director of Gisborne Services Pty Limited, a Registered Training Organisation. His witness statement was marked Exhibit Respondent 8 and his oral testimony is at PN 1516-1578 of Transcript of 17 May 2011; |
Mr G Wyber | Manufacturing Manager with the respondent. His witness statement was marked Exhibit Respondent 9 and his oral testimony is at PN 1583-1991 of Transcript of 17 May 2011; |
Mr M McKimmie | Production Superintendent with the respondent. His witness statement was marked Exhibit Respondent 10 and his oral testimony is at PN2016-2421 of Transcript of 17 May 2011; |
Ms B Roberts | Warehouse Supervisor with the respondent. Her witness statement was marked Exhibit Respondent 11 and her oral testimony is at PN 2429-2477 of Transcript of 17 May 2011; |
Mr C Ostridge | Production Technical Team Leader with the respondent. His evidence statement was marked Exhibit Respondent 12 and his oral testimony is at PN 2529-2678 of Transcript of 15 July 2011; |
Mr G Austin | Leading Hand Operator with the respondent. His witness statement was marked Exhibit Respondent 13 and his oral testimony is at PN 2680-2746 of Transcript of 15 July 2011; |
Ms J Mansfield | Production Day Shift Team Leader with the respondent. Her witness statement was marked Exhibit Respondent 14 and her oral testimony is at PN2755-2893 of Transcript of 15 July 2011; |
Mr D Knox | Team Leader with the respondent. His witness statement was marked Exhibit Respondent 15 and his oral testimony is at PN2897-2963 of Transcript of 15 July 2011. |
[7] There was extensive evidence and much material provided in these proceedings. Although I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.
FACTS AND EVIDENCE
[8] The respondent operates a plant which manufactures carpet tiles. The plant is located at Picton. The applicant commenced employment with the respondent in August 2006. He was engaged as a production assistant. The applicant was summarily dismissed on 17 or 18 November 2010. The exact date of the termination of the applicant’s employment is an issue in dispute and is dealt with further below.
[9] The reasons for the applicant’s dismissal are related to his actions on 17 November 2010 in which he climbed into a compacting machine in the plant. I shall first deal with the evidence about the machine and the prevalence, or otherwise, of the practice of climbing into it. I shall then return to the specific incident in question.
[10] During the course of his employment the applicant worked in different areas of the plant. From mid 2007 until his dismissal he was working on the Die Press backing line on day shift. His normal hours were 6am to 2.10pm Monday to Friday.
[11] The Die Press is a machine that cuts carpet into tiles. The process produces thin edge strips or offcuts which are collected as waste. Located near the end of the Die Press, but separate from it, is a compactor/bale press with two bins into which these off-cuts are either placed manually or fed directly from the Die Press.
[12] When one of the bins is filled, a press is manually slid across by the operator. The compactor is activated and it compresses the material into a bale. The bales are then removed from the compactor on a hand trolley and wheeled to a nearby collection area. It is Mr Wyber’s evidence that the bale press uses considerable force, much more than an employee could exert by pressing down with their arms or standing on the material in the bins.
[13] There are photos of the compactor at Annexure SB01 to Exhibit Applicant 1, at Exhibit Respondent 3 and at Attachment ES6 to Exhibit Respondent 7. A copy of the compactor’s operating manual is at Exhibit Applicant 13. The evidence is that the compactor is 1.2 metres high and it stands on a concrete floor. It has no steps for climbing into it. There are however metal protrusions on the compactor. It is the evidence of the applicant and Mr Landrigan that they used those protrusions like steps to climb into the compactor. Mr Keenan’s evidence is that he just hauled himself into the compactor with his own weight. There are no signs on or near the compactor warning employees not to climb in.
[14] It is the applicant’s evidence that, when he began working on the backing line in 2007, he was shown how to use the compactor by his then “work buddy” Mr Dowd. Mr Dowd no longer works for the respondent having been dismissed for a safety breach. The applicant’s evidence is that Mr Dowd told him that he could climb into the compactor to push down the carpet offcuts. It is also the applicant’s evidence that he received no formal training in the use of the compactor.
[15] The applicant’s evidence is that the number of bales of offcuts he would make during his shift ranged from about six to 10 per day depending on the rate of production and the specific product being made. Mr Wyber disputes this. His evidence is that there would typically be about four bales per shift.
[16] The applicant’s evidence is that he has received awards for reaching record production targets. This increased production had meant greater amounts of offcuts and greater pressure on operators to remove the waste. Mr Keenan gave evidence to similar effect. Mr Wyber disagrees. He says that the amount of waste produced has remained constant since the compactor was put into service on the backing line in 2008. Mr Wyber’s evidence is that all relevant employees received the bonuses when targets were exceeded. He says the main reason for achieving these targets was the use of wider rolls of carpet which didn’t affect the amount of offcuts.
[17] The applicant’s evidence is that he didn’t always climb into the compactor when he needed to make a bale. He says that he climbed into the compactor to press the offcuts down with his body weight when the material was too high for him to be able to slide the press across. The applicant estimated that, on average, he would climb in at least two or three times per week and, over the course of a year, would do this between 90 to 140 + times. He had been doing this for about three years.
[18] The applicant’s evidence is that he was never told that he should not climb into the compactor nor was he ever warned for doing so. His evidence is that the practice had been carried out by many employees who work on the Die Press.
[19] Mr Keenan’s evidence is that he used to climb into the compactor to squash down the offcuts if he had difficulty pushing them down with his arms. His evidence is that he had seen other employees do the same. Mr Keenan’s evidence is that he received a warning from Mr Austin for doing this. Mr Austin denies this. His evidence is that the only person he ever observed climbing into the compactor was the applicant. This happened two or three times and on each occasion he told the applicant not to do it. Mr Austin’s evidence is that he now believes he should have reported the issue to Ms Mansfield but didn’t want to get the applicant into trouble. The applicant’s evidence is that he couldn’t remember Mr Austin speaking to him about not climbing into the compactor.
[20] Mr Landrigan’s evidence is that he used to climb into the compactor to press down the carpet offcuts. His evidence is that he did this regularly each week between early 2008 and June 2010. In June 2010 Ms Roberts observed him in the compactor and told him not to do this. He later received a verbal warning from Ms Mansfield for his actions. Mr Landrigan’s evidence is that he told Mr Keenan about the warning but did not mention it to the applicant.
[21] Ms Mansfield’s evidence is that she did not think that it was necessary to give Mr Landrigan a formal warning for his actions as he was genuinely sorry. She believed he would not do it again. Ms Mansfield’s evidence is that she was not aware of any other safety issues concerning Mr Landrigan.
[22] Mr Davidson’s evidence is that he is aware of employees other than the applicant who had climbed into the compactor on a regular basis to press down the carpet offcuts. He had personally observed two employees doing this. Mr Davidson’s evidence is that when he used to work on the backing line several years ago he climbed into the compactor. It was a different compactor to the one there now.
[23] The evidence of Ms Roberts is that she had never seen anyone but Mr Landrigan in the compactor. Mr Ostridge’s evidence is that, before the incident on 17 November 2010, he had never seen anyone climb into or stand in the compactor. The evidence of Ms Mansfield is that she had never seen an employee climb into the compactor. She says that it is possible they might without her knowing but does not believe it to be the case. Mr Knox is the Team leader on the afternoon shift. His evidence is that he is confident that employees on the afternoon shift do not enter the compactor. He has never observed anyone doing this or been told that anyone had done so.
[24] Mr McKimmie’s evidence is that it defies common sense to climb into the compactor. Other than the incident on 17 November 2010, he is aware of only one other time when an employee did so. That was Mr Landrigan on the occasion referred to earlier. Mr Wyber’s evidence is that he had never seen anyone climb into the compactor. There would be no need to do so. His evidence is that, if employees had difficulty engaging the press, the issue should have been raised with the safety committee.
[25] I shall now return to the incident on 17 November 2010. Mr Gisborne was at the plant with a training group of seven which included only one employee of the respondent. At around 10am the group was observing the backing line operation. Mr Gisborne’s evidence is that, a person he now knows to be the applicant, asked whether the group was doing the occupational health and safety (OH&S) course. After receiving an affirmative answer, the applicant climbed into the compactor and started to jump up and down in it. The top of the bin was about shin high when the applicant stepped in. Mr Gisborne’s evidence is that the applicant was not hanging on and was waving his arms about.
[26] Mr Gisborne’s evidence is that the applicant then stated that he was on the OH&S Committee. He was smiling and giggling at the time. Mr Gisborne’s evidence is that the applicant was making a joke of it. He believed the applicant’s behaviour to be provocative and unsafe. Mr Gisborne’s evidence is that he was shocked at the applicant’s behaviour especially in front of visitors who were at the plant for OH&S training. He later reported the incident to the respondent, Attachment RG-1 to Exhibit Respondent 8.
[27] Mr Gisborne’s evidence is that, although he had not seen the relevant operating procedures for the compactor, he would hope they contained a line about not climbing into the machine. It is accepted that they don’t include anything to that effect.
[28] Mr Ostridge’s evidence is that, at the time of the incident, he was about 10 metres away from the compactor. He heard raised voices and observed the applicant in the compactor. His evidence is that the applicant was jumping up and down, his arms moving at the same time and he was not holding on to anything. Mr Ostridge says that the applicant appeared to be laughing and joking and engaging in horse play. The applicant was looking directly at the training group.
[29] It is the evidence of Mr Ostridge that he was shocked at the applicant’s actions especially as the applicant was a representative on the OH&S committee. The risk of the applicant falling was obvious.
[30] Mr Ostridge moved towards the compactor and called to the applicant to get out. He agreed that the applicant may not have heard him. In any event, by the time Mr Ostridge reached the compactor, the applicant was out of it. They had a brief conversation. Mr Ostridge then informed Mr McKimmie of what had occurred. Mr McKimmie in turn reported this to Mr Wyber and/or Mr Szczepanowski. Mr Ostridge also provided a written report, Attachment CO1 to Exhibit Respondent 12.
[31] The applicant disputes the evidence of both Mr Gisborne and Mr Ostridge. He denies that he was jumping up and down in the compactor or waving his arms around. The applicant’s evidence is that he was lifting his legs up and down and using his body weight to compress the offcuts. The applicant also denies that he had been treating the situation as a joke or engaging in horseplay.
[32] I note that there is a difference between the evidence of the applicant, Mr Ostridge, Mr McKimmie and Mr Wyber as to whether the compactor was operational at the time the applicant was in it on 17 November. However it appears that this may be a difference of description rather than fact. Mr Ostridge says that the compactor was not off-line or shut down at the time. Mr McKimmie says it was in service, switched on and not isolated. Mr Wyber’s evidence is that it was not offline, tagged out or shut down. The applicant’s evidence is that the machine was not actually compacting offcuts at the time.
[33] The applicant continued to work his shift on 17 November and finished at his usual time of 2.10pm.
[34] After being made aware of the reports of the incident from Mr Gisborne and Mr Ostridge, Mr Wyber and Mr Szczepanowski had a conversation about the need to investigate the matter. Mr Wyber decided that the applicant should be suspended on full pay whilst this occurred. The applicant had already left work for the day so Mr McKimmie rang to tell him not to come in until 8.30am the next day to have a discussion. Later that afternoon the applicant telephoned Mr Szczepanowski to ask what was happening. Mr Szczepanowski told him that there was a performance issue that needed to be discussed. There was no mention of the incident earlier that day.
[35] Mr McKimmie’s evidence is that he played little part in the investigation. His role had been confined to passing on Mr Ostridge’s report to Mr Wyber and then later ringing the applicant. On the other hand Mr Szczepanowski’s evidence is that he didn’t carry out the investigation. Rather it had been conducted by Mr McKimmie and Mr Wyber. Mr Szczepanowski does say however that he had spoken to Mr Wyber, Mr McKimmie, Mr Knox and Ms Mansfield and was of the view that climbing into the compactor was not a common practice. He agreed that he had not spoken to Mr Keenan, Mr Landrigan or other employees about the issue.
[36] At 8.30am on 18 November 2010 a meeting was held between Mr Wyber, Mr Szczepanowski, the applicant and Mr Davidson. Mr Wyber informed the applicant that the purpose of the meeting was to obtain his response to the allegation that he had climbed into the compactor in front of the OH&S group and jumped up and down while laughing and grinning and telling the group that he was on the OH&S committee. The applicant responded that it was common practice to climb into the compactor. Mr Wyber then stated that no one who had been interviewed had knowledge of such behaviour being common.
[37] The applicant’s evidence is that Mr Wyber then asked him to name other employees who had climbed into the compactor and stated that they would be sacked. Mr Wyber denies saying that people would be sacked. His evidence is that he stated that, if there were other similar incidents, they should be investigated.
[38] Mr Wyber then spoke about the risks involved in climbing into the compactor. He informed the applicant that he had been mocking the company’s reputation by his actions. The applicant told Mr Wyber that he couldn’t believe that he had been called in about such a minor thing and asked if it was some kind of joke.
[39] Mr Wyber told the applicant that he had breached the company’s policies, procedures and code of conduct. The applicant told Mr Wyber that the compactor was too small for the job. Mr Wyber disagreed.
[40] Mr Davidson spoke in defence of the applicant and suggested that, if there was to be any disciplinary action, it should be a verbal warning or a first written warning. He also asked for copies of the written reports made by Mr Gisborne and Mr Ostridge. These reports were provided after the meeting.
[41] The meeting had run for about 15 to 20 minutes to this point. Mr Wyber and Mr Szczepanowski then left to discuss the matter. They agreed that the applicant should be summarily dismissed. Mr Szczepanowski completed what he describes as a “termination letter” but which is really a record of interview. The document is Attachment ES4 to Exhibit Respondent 7 and Annexure SB09 to Exhibit Applicant 4.
[42] It is Mr Davidson’s evidence that this document had been pre-typed before the meeting began. Mr Szczepanowski agrees that he had earlier prepared a template document based on what he believed was the evidence which had been gathered. It was then “annotated” following the interview with the applicant. This was his usual practice. Mr Szczepanowski denied that the meeting had been tokenistic or that the applicant’s dismissal was a foregone conclusion.
[43] Mr Wyber and Mr Szczepanowski returned to the meeting room and informed the applicant that he was being dismissed for gross misconduct for a breach of safety and attempting to bring the company into disrepute. Mr Wyber gave the applicant the “termination letter”.
[44] It is Mr Wyber’s evidence that in summarily dismissing the applicant, he had not treated him differently to Mr Landrigan who had received a warning only. Mr Wyber’s evidence is that the applicant’s misconduct was made all the worse by his deliberate attempt to misrepresent the company’s safety practices to visitors.
[45] Sometime after the meeting on 18 November the applicant received a letter from the respondent’s HR/Payroll Department dated 18 November. It notes that the applicant’s service “will terminate on 17th November 2010”. The letter then goes on to provide information about matters such as leave payments and superannuation. This letter is Annexure SB07 to Exhibit Applicant 4. The applicant’s final pay slip, Annexure SB09 to the Exhibit and Exhibit Applicant 6 also notes the date of termination as 17 November.
[46] The evidence of both Mr Wyber and Mr Szczepanowski is that the applicant’s dismissal occurred on 18 November not 17 November. Mr Wyber’s evidence is that the documents from the payroll department are wrong. The company accepts that not paying the applicant for 18 November was a mistake which would be rectified.
[47] There was extensive evidence about the applicant’s induction and other training whilst employed with the respondent. I do not need to traverse all of that material. In brief, the applicant received induction training when he commenced as a probationary employee in August 2006. His evidence is that this training did not include a number of areas set out in the company’s induction program. The applicant was required to acknowledge receipt of the Workplace Standards Booklet. His evidence is that he had not been given the opportunity to read or understand the contents of the Booklet at that time. The applicant was also required to acknowledge receipt of the respondent’s safety Handbook.
[48] The applicant’s evidence is that he was never informed that he could be summarily dismissed for failing to comply with OH&S issues. He also says that the acknowledgement details of the Handbook in August 2006, Annexure SBO5 to Exhibit Applicant 4 are very different to the acknowledgement details contained in the September 2010 Safety, Health & Environmental Induction Handbook, Annexure SBO6 to the Exhibit.
[49] The evidence of Mr Szczepanowski is that the Workplace Standards Booklet provides that employees may be summarily dismissed for a number of reasons if they are sufficiently serious. He says that the 2011 Health, Safety & Environmental Induction Handbook, Attachment ES15 to Exhibit Respondent 7, is not materially different to the one which had been signed by the applicant.
[50] The applicant was subject to a skills assessment in January 2007. This included the safe use of a bale press, Attachment ES10 to Exhibit Respondent 7. The applicant’s evidence is that this assessment took place while he was still on probation and before he started working on the backing line. I note Mr Wyber’s evidence in paragraph 16 above that the particular compactor was put into service on the backing line in 2008.
[51] There was a second skills assessment conducted with the applicant in December 2009, Attachment ES11 to Exhibit Respondent 7. This included a skill of “clear edge cuttings and place in compactor to ensure waste bins cleared and edge cuttings compaction is removed”. Both assessments were carried out by Mr Fuller, an employee of the respondent.
[52] As mentioned earlier, the applicant was a representative on the respondent’s OH&S committee. His evidence is that he had held the position for about 12 months prior to the date of his dismissal. Mr Wyber’s evidence is that, during the period that the applicant was a member of the committee, a document titled “Acceptable Risk” was developed and passed by the committee, Exhibit Respondent 5. It is Mr Wyber’s evidence that each member of the committee had been trained in risk assessment. The applicant’s evidence is that, other than one diagram, he had never seen the document before nor had he been trained in acceptable risk.
[53] Prior to the incident on 17 November 2010 the applicant had received counselling and warnings on several occasions. On 30 May 2007 he received a first written warning for the use of inappropriate language towards another employee, Attachment ES12 to Exhibit Respondent 7. The warning notes a review date of 30 August 2007. It is the applicant’s evidence that no further action was taken as his conduct had improved.
[54] On 10 October 2007 the applicant received a final written warning for refusing to comply with a direction from his Acting Team Leader, Attachment ES13 to Exhibit Respondent 7. It contained a review date of 10 January 2008. It is the applicant’s evidence that no further action was taken as his performance had improved.
[55] The applicant received a first written warning on 8 February 2008. This was for writing and distributing inappropriate comments about a fellow employee and not following company behaviour standards, Attachment ES14 to Exhibit Respondent 7. The warning notes a review date of 8 August 2008. The applicant’s evidence is that no further action was taken as his behaviour had improved.
[56] Ms Mansfield’s evidence is that she was aware of a number of safety breaches involving the applicant. She provides file notes of these at Attachments JM2-JM7 to Exhibit Respondent 14.
[57] The applicant’s evidence is that at the time of his dismissal he had no outstanding disciplinary matters.
[58] The applicant gave evidence that, in August or September 2007, he had raised a complaint about another employee who was subsequently involved in the incident which led to the applicant’s warning on 10 October 2007. His evidence is that the respondent did not deal with his complaint.
[59] The applicant’s evidence is that, on 11 November 2010, he lodged a complaint about Ms Mansfield’s behaviour towards him in that she had refused his request to take compassionate leave to attend the funeral of his niece and her two children who had been killed in a road accident. The applicant complained that Ms Mansfield had victimised him. Ms Mansfield denies this. Her evidence is that she refused the request as she understood that compassionate leave did not apply in such circumstances.
[60] Also around 11 November 2010 there was a meeting of the site Consultative Committee. Mr Wyber, Mr Szczepanowski and Mr Davidson attended, along with three other employee representatives. The applicant attempted to attend the meeting but was advised by Mr Wyber that he was not required. The applicant’s evidence is that he objected most strongly and believes that this did not assist his case when he was dismissed. He says that he made the meeting aware that he wanted to become the union delegate.
[61] Mr Davidson’s evidence is that Mr Szczepanowski spoke to him on 12 November and appeared to be genuinely concerned that the applicant would become the union delegate. Mr Szczepanowski’s evidence is that he spoke to Mr Davidson about the possibility that the applicant might be elected to the consultative committee, not about his chances of becoming union delegate.
[62] The applicant is 52 years old. He left school at 14. The applicant is responsible for providing financial support and assistance to his wife and one of his grandchildren who lives with them. From time to time he also provides help to his other grandchildren.
[63] The applicant was injured in a motorcycle accident on 13 November 2010. His evidence is that he was traumatised by this experience. The applicant suffers from and has been treated for clinical depression. His evidence is that, for the last few years, he has been attempting to manage his condition without medication by following a routine which included securing full time employment. Prior to gaining employment with the respondent the applicant had been unemployed for about 10 years.
[64] The applicant’s evidence is that he has suffered great hardship and stress as a result of his dismissal. He provides details of lost income including overtime and production bonuses. The applicant’s evidence is that the loss of his income has created a great financial burden for him and his family.
[65] The applicant’s evidence is that he has looked for full time employment but has only been able to secure casual employment for two days a week.
[66] The applicant seeks reinstatement. His evidence is that, if he is reinstated, he would not climb into the compactor any more. The respondent opposes reinstatement. Mr Wyber’s evidence is that he would be extremely concerned that the applicant would put himself or others in danger. He notes that the applicant hasn’t recognised that his actions were unsafe and worries terribly that the applicant or someone else might be injured or killed.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[67] A written outline of submissions on behalf of the applicant was provided prior to the proceedings. An extensive written outline of final submissions was provided on 15 July 2011. Mr Port also made oral submissions at both the start and end of proceedings.
[68] It is submitted that, consistent with long-standing authority such as Pastrycooks etc v Gartrell White (No 3) (1990) 35 IR 70 @ 83/4, the respondent has the evidentiary burden of establishing the facts upon which it relies for the summary dismissal of the applicant for serious misconduct.
[69] Mr Port referred to the provisions of section 387 and noted that the submissions would focus on paragraphs (a) and (h) as being of particular relevance. He submitted that the evidence supported the fact that the date of the applicant’s dismissal was 17 not 18 November.
[70] Mr Port submitted that there was no valid reason for the dismissal. The evidence of the applicant, Mr Davidson, Mr Keenan and Mr Landrigan established that it was a common practice for employees to climb into the compactor to squash down carpet offcuts. It is submitted that each of these was a truthful and reliable witness whose evidence should be preferred to that of the respondent’s witnesses.
[71] Mr Port submitted that the compactor was not operational at the time of the incident and noted that there is no warning signage on the machine as there is on other equipment. An additional point of relevance is that other employees such as Mr Landrigan and Mr Keenan had received verbal warnings for the same actions for which the applicant had been dismissed. Mr Port submitted that the basis on which the respondent had selected the applicant for summary dismissal rather than some other type of disciplinary outcome was, at best, opaque.
[72] Mr Port submitted that the disparity in treatment between the applicant and other employees should lead to a conclusion that the applicant’s dismissal was harsh and unjust. He referred to the following decisions and urged that a similar approach be taken in this matter: Sexton v Pacific National (ACT) Pty Ltd [PR931440]; National Jet Systems Pty Ltd v Mollinger [Print R3130]; and, Serco Gas Services v Alkemade [Print R6090].
[73] Mr Port submitted that the respondent’s reliance on a breach of its health and safety policy as providing a valid reason for the dismissal is without a proper foundation. He submitted that Mr Szczepanowski’s evidence about the relevant version of the policy had been untruthful. In addition he submitted that the policy was devoid of content and in a state of disarray. Mr Port referred to a number of decisions as being relevant to this issue: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373 (Selvachandran); Woolworths Limited (t/as Safeway) v Brown [PR963023] (Woolworths); Jupiters Limited (t/as Conrad Jupiters Gold Coast) v Atfield [PR928970]; and GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 as well as the decision at first instance in that matter. Mr Port specifically referred to paragraphs 34 and 36 of the Woolworths decision and submitted that a similar approach should be adopted in assessing the respondent’s policy in this case.
[74] Mr Port submitted that, even if I find that there was a valid reason for the applicant’s dismissal, the decision was nevertheless harsh. He referred to the majority decision in Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089 (Warkworth) and the decision of the High Court of Australia in Byrne & Frew v Australian Airlines Pty Ltd (1995) 185 CLR 410 (Byrne & Frew).
[75] A number of reasons were advanced to support this submission. First, the investigation into the applicant’s alleged misconduct was flawed and unfair and lacked any semblance of procedural fairness. Mr Port submitted that the evidence of Mr Szczepanowski in particular demonstrated that there had been no proper investigation. His recollections of the investigation clearly rested on the earlier incident with Mr Landrigan. The respondent failed to check the veracity of the applicant’s allegation that his actions had reflected what was a “common practice” at the plant. Mr Port referred to and relied upon decisions of the Federal Court of Australia in Bostik (Australia) Pty Ltd v Gorgevski (1991) 39 IR 229 and (1992) 36 FCR 20 (Bostik). Further, the applicant had not been provided with any notice of the specific allegations against him or given a proper opportunity to meet those allegations.
[76] Secondly, the applicant had not been properly inducted or trained either when he began his employment with the respondent or later. This was specifically so in relation to the use of the compactor. Mr Port submitted that the applicant’s evidence as to his skills assessments, his induction and his training by Mr Dowd is to be preferred to the evidence of the respondent about these issues.
[77] The third factor advanced to support a finding of harshness is that the applicant had never been informed, in documentation or otherwise, that he was not to climb into the compactor. Mr Port submitted that if this had been particularised to the applicant he would not have done it. The applicant did no more than what he had been shown by Mr Dowd. Mr Port also relied upon Mr Gisborne’s evidence. He submitted that the respondent’s failure to provide adequate signage or instruction made the dismissal harsh.
[78] Mr Port also made a number of submissions about the applicant and his personal circumstances as being relevant to the question of harshness: the applicant’s good service as a competent, hardworking employee who had received no safety warnings during his employment; the applicant’s age and the difficulty he has had and will continue to experience in obtaining alternative employment of a similar standard; and, the fact that the respondent could have exercised its discretion to impose a lesser penalty upon the applicant. In relation to this last factor Mr Port referred again to Warkworth as well as to the decision of the Federal Court of Australia in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54.
[79] Mr Port submitted that there is no cogent evidence to suggest that reinstatement was not the appropriate remedy. Despite the respondent’s position, there is nothing to show that there had been a breakdown in trust and confidence between the parties: Galea v Tenix Defence Pty Ltd [PR928494]. Mr Port noted that the applicant had been permitted to complete his shift on 17 November which demonstrated ongoing trust and confidence in him. Mr Port submitted that the respondent’s workplace is large enough to accommodate the applicant’s return.
[80] Mr Port submitted that a similar approach should be taken to that in Black v Commonwealth of Australia (Department of Defence) [2011] FWA 293 and as upheld on appeal [2011] FWAFB 3038.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[81] A written outline of submissions on behalf of the respondent was provided prior to proceedings. Final written submissions were also provided. Mr Jervis also made oral submissions at the opening of the respondent’s case on 15 April and at the end of proceedings.
[82] It is submitted that the applicant’s conduct was in repudiation of his contract of employment. A number of decisions are referred to in this regard: Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; North v Television Corp Ltd (1976) 11 ALR 599; Adami v Maison de Luxe Ltd (1924) 35 CLR 143; Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285; and, Gooley v Westpac Banking Corp (1995) 53 IR 262.
[83] The respondent accepts that it bears the evidentiary onus of establishing the misconduct and notes that the applicant has the ultimate onus to prove that the termination was harsh, unjust or unreasonable: Barrick v Qantas Flight Catering Pty Ltd [PR913634] and Pacific Coal Pty Ltd v Smith & Others [PR925566].
[84] The respondent submits that an employee owes his or her employer a duty of good faith. Conduct which conflicts with that duty is a proper basis for dismissal: Robb v Green [1895] 2 QB 315 and Blyth Chemicals v Busnell (1933) 49 CLR 66. It also submits that an employee has a duty to act so as not to damage the relationship of trust and confidence with the employer: State of South Australia v McDonald (2009) 185 IR 45 and Russell v Trustees of the Roman Catholic Archdiocese of Sydney (2007) 167 IR 121. It is submitted that a deliberate unsafe act carried out for the purpose of damaging an employer’s reputation breaches such a duty.
[85] It is submitted that there were valid reasons for the applicant’s dismissal: he had knowingly acted in an unsafe manner and deliberately disparaged his employer to a group of visitors. Mr Jervis submitted that, while either reason would justify the applicant’s summary dismissal, the second reason was possibly more serious and far reaching than the first. Mr Jervis submitted that much of the applicant’s evidence was delusional or dishonest and, where it conflicts with the evidence of other witnesses, the applicant’s evidence should not be accepted.
[86] Reference is made to the definition of serious misconduct in regulation 1.07 of the Fair Work Regulations 2009 (the Regulations). It is submitted in this regard that the applicant’s behaviour during the incident on 17 November 2010 had been wilful and deliberate, caused serious and imminent risk to health and safety and to the respondent’s reputation.
[87] Mr Jervis referred to the evidence of Mr Gisborne and noted that his account of events on 17 November had not been challenged. That evidence was confirmed by the largely unchallenged evidence of Mr Ostridge. Mr Jervis submitted that warning signs on the compactor were unnecessary given Mr Gisborne’s evidence that the observing OH&S training group considered that climbing into the compactor was an unsafe and unnecessary act in itself.
[88] Mr Jervis advanced several possible reasons for the applicant’s actions on 17 November and submitted that the evidence disclosed that the applicant had been resentful of his employer and wanted to show it in a bad light.
[89] Mr Jervis submitted that the applicant had been informed of the reasons for his dismissal during the meeting on 18 November. The applicant had not disputed this. Mr Jervis also submitted that the applicant had been given an opportunity to respond. He noted that Mr Wyber’s account of what he had said at the meeting had been confirmed by Mr Davidson. Mr Jervis further submitted that the decision to dismiss the applicant had not been taken until after the first part of the meeting on 18 November. The meeting was not just a token. The failure to pay the applicant for 18 November had been a mistake and would be corrected.
[90] It was noted that the applicant had been represented at the meeting by the TCFUA delegate, Mr Davidson. Mr Jervis submitted that, even though the dismissal was not related to the applicant’s performance, the applicant had received a number of warnings and counselling during the course of his employment.
[91] Mr Jervis submitted that the matter had been properly investigated by Mr Wyber and Mr Szczepanowski. They were the decision makers. Mr Wyber had put the allegations to the applicant in terms he could understand and had also put the contents of the reports of Mr Gisborne and Mr Ostridge to him.
[92] Mr Jervis raised a number of issues which he submitted should support a finding that the termination was not harsh, unjust or unreasonable. These included: the applicant’s disciplinary history; his attitude to his actions; his dishonesty during these proceedings; the fact that he knew that climbing into the compactor was prohibited and was not common; and, the applicant’s failure to acknowledge the inherent risks of injury from such action. The applicant’s lack of remorse or contrition is also relevant. It is submitted that the applicant’s dishonesty during the meeting on 18 November and in these proceedings is destructive of the necessary relationship of trust and confidence: Telstra Corporation Limited v Streeter [2008] AIRCFB 15.
[93] Mr Jervis submitted that the applicant had clearly breached company policies such as the Code of Conduct, the Workplace Standards Booklet and the Induction Handbook as well as his contract of employment. He noted that not all of the respondent’s occupational health and safety policies had been included in the material provided in this matter. Mr Jervis submitted that an employee, especially one who is representative on an OH&S committee, would know that climbing into a compactor was potentially unsafe.
[94] Mr Jervis submitted that the applicant had been less than frank about his sources of income since the termination and it was improbable that he could sustain his outgoings on the income he had declared in these proceedings. It is submitted that I should be satisfied that the applicant has other means of income. In any event the harshness of the effect of the dismissal on the applicant must be considered in the context of the reason for termination: Hunter Douglas v SSX Services Pty Ltd T/A The Australian Reinforcing Company[2010] FWA 2693 (Hunter Douglas).
[95] Mr Jervis referred to a number of authorities. In relation to the issue of breach of safety he referred to: Hunter Douglas and Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1116 (Parmalat). On the question of damaging the reputation of one’s employer Mr Jervis referred to Steele v Coffs Ex-Services Memorial and Sporting Club Ltd (Steele) and Corrin v Lunchez on Highbury [PR925072] (Corrin).
[96] Mr Jervis submitted that the decision to dismiss the applicant was sound, defensible and well founded: Selvachandran,Farquharson v Qantas Airways Ltd (2006) 155 IR 22 and Rose v Telstra Corp [Print Q9292]. The termination was not harsh, unjust or unreasonable as enunciated in Byrne & Frew and considered in Bostik: the applicant was guilty of the conduct relied on for the dismissal; it was not based on unreasonable inferences; and, it was not disproportionate to the gravity of the applicant’s conduct.
[97] It is submitted that the application should be dismissed. In the alternative, it is submitted that reinstatement would be impracticable and inappropriate. Mr Jervis submitted that the respondent did not have the requisite level of trust and confidence in the applicant: Tu Noanoa v Linfox Pty Ltd[2011] FWA 306. The applicant has not appreciated the seriousness of his conduct nor has he shown any contrition for it. The decisions of Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and McLauchlan v Australia Meat Holdings Pty Ltd [Print Q1625] are also relied on.
[98] Mr Jervis also responded to the submissions made on behalf of the applicant. He refuted the submission that there had been disparity between the applicant’s treatment and that of Mr Landrigan and Mr Keenan. Mr Jervis noted that Mr Landrigan had apologised for his actions and Mr Keenan had not climbed into the compactor. Further, the applicant’s conduct was for the purpose of showing the company in a bad light.
[99] Mr Jervis submitted that the applicant had been properly inducted but, in any event, an absence of such induction would not provide the applicant with the right to climb into the compactor. Mr Jervis submitted that the applicant had been permitted to finish his shift on 17 November as there had not much of it left in any event.
SUBMISSIONS IN REPLY ON BEHALF OF THE APPLICANT
[100] Mr Port reiterated that the respondent had not bothered to check the veracity of the applicant’s claim that climbing into the compactor was a common practice.
[101] Mr Port noted that the respondent had relied on inconclusive documentation to establish that the applicant had been properly assessed on his use of the compactor. He maintained his earlier submission that the applicant had not been properly inducted or assessed and noted that Mr Fuller had not been called to give evidence.
[102] Mr Port submitted that the decisions of Steele and Corrin were distinguishable from the present matter. He also submitted that the decision in Parmalat was no substitute for the wording of the legislation itself.
CONCLUSIONS
[103] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[104] Whether the applicant was dismissed on 17 or 18 November 2010 the claim for relief was made within the period required in subsection 394(2). There is no issue that the applicant was protected from unfair dismissal within the meaning of section 382. Paragraphs (c) and (d) of subsection 396 have no relevance in this particular matter.
[105] Section 385 provides that 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) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[106] Paragraph (a) is clearly met. Paragraphs (c) and (d) have no relevance in this matter.
[107] In order to decide whether the applicant’s dismissal was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are as follows:
“(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.”
[108] I shall address each of these factors in turn.
[109] The meaning of valid reason is a matter which has often been considered by courts and by this Tribunal and its predecessors. There appears to be general acceptance of the often quoted words of Northrop J in Selvachandran referred to in the submissions put on behalf of both parties in this matter.
[110] As it is the applicant’s conduct that is the reason for the termination in this matter I have to determine for myself whether the alleged misconduct occurred and, if so, whether it amounted to a valid reason for the dismissal: King v Freshmore (Vic) Pty Ltd [Print S4213] (Freshmore).
[111] I note the submissions about the evidentiary onus. It is fairly well established that, in matters where there is a direct conflict in the evidence concerning critical facts, the correct approach is to determine, on the balance of probabilities, which version is more likely to be true. The Full Bench decisions in Qantas Airways Limited v Seno [PR904809] and Aresca v Qantas Airways Limited [PR911692] are authorities for this proposition. The fact that these and the Freshmore decision related to earlier pieces of legislation does not detract from their present relevance.
[112] The reasons relied upon for the termination of the applicant’s employment relate to his alleged serious misconduct on 17 November 2010. The first allegation is that, by climbing into the compactor, the applicant knowingly acted unsafely. The second allegation is that, by his actions, he deliberately disparaged his employer to a group of visitors.
[113] The applicant does not dispute that he climbed into the compactor. He does however dispute that he jumped up and down in it, engaged in horseplay or deliberately disparaged the respondent. The applicant also disputes that he knew that climbing into the compactor was prohibited. He maintains that he was doing no more than he had been shown to do, had done many times before and what other employees also did.
[114] As indicated earlier, there is some conflict in the evidence as to the applicant’s behaviour when he was in the compactor. In particular, the applicant’s evidence is at odds with that of Mr Ostridge and Mr Gisborne. It is of note that Mr Gisborne was an independent bystander to the incident. There is nothing before me to suggest that he had any reason to do other than to tell the truth. I accept his evidence.
[115] It follows from this that I am satisfied that, while in the compactor, the applicant jumped up and down and waved his arms about without hanging on. I am also satisfied that the applicant informed the OH&S group that he was on the OH&S committee and that he laughed and giggled and appeared to be making a joke of the situation and acted provocatively.
[116] In my view the applicant’s actions were inherently unsafe. First, in climbing into the compactor and secondly, by jumping up and down whilst waving his arms about and not hanging on. In this regard it should be noted that, even had I found that the applicant had not been jumping but merely moving his legs up and down, I would still consider this to be obviously unsafe. The applicant could have fallen onto the concrete floor or hit himself on the compactor itself. In addition, even though the machine was not actually compacting at the time, it was connected to the electricity source with consequent possible risks. In my opinion the applicant’s conduct was such as to cause a serious and imminent risk to his safety.
[117] A further issue is that the applicant did not recognise or appear to be at all concerned about the possible risks and dangers associated with his actions, indeed he had a rather cavalier approach to the situation both during the meeting on 18 November and in his evidence in these proceedings. This is especially worrying in light of the fact that the applicant was a representative on the OH&S Committee.
[118] I accept that the applicant had climbed into the compactor on a number of previous occasions and that at least some other employees had also done so. I also accept that the applicant was told he could do this by Mr Dowd. Further, I am satisfied that the applicant was not directly told by management that he should not climb into the compactor. Clearly there is no written instruction to this effect in the operating procedures or on the compactor itself. Although it would have been extremely helpful if such instructions or signs had been in place, it seems however that it is a matter of common sense not to climb into machinery in such circumstances. In my view the applicant should not have required training on this.
[119] The applicant’s behaviour on 17 November 2010 goes beyond being a serious safety issue. The applicant deliberately climbed into the compactor in front of a group which he knew included visitors to the plant who were undertaking OH&S training. He stated that he was on the OH&S committee and laughed and giggled. In my view such behaviour was likely to cause risk to the reputation of the respondent’s business. However I do not have any evidence before me that the applicant’s conduct actually caused such a risk. Mr Gisborne’s evidence was critical of the applicant rather than suggesting any adverse view about the respondent.
[120] I am satisfied that the applicant’s conduct on 17 November amounted to a valid reason for his dismissal. I am also satisfied that his actions amounted to serious misconduct within the meaning of regulation 1.07(2)(b)(i) of the Regulations. However, as indicated in the previous paragraph, there is insufficient material on which I could be satisfied that the conduct also falls within the meaning of regulation 1.07(2)(b)(ii) which requires that the relevant conduct “causes serious and imminent risk” rather than “is likely to” or “has the potential to” cause such risk.
[121] I now turn to consider what might be termed the “procedural fairness” paragraphs of section 387, paragraphs (b) and (c). In this regard I need to determine whether the applicant’s dismissal took place on 17 or 18 November 2010. This is because it is obvious that, if it was the former date, the applicant could not have been informed of the reasons for his dismissal or given an opportunity to respond prior to the dismissal.
[122] I accept the evidence of the respondent’s witnesses that the dismissal did not occur until 18 November. I am satisfied with Mr Szczepanowski’s explanation for having a prepared document with him at the meeting. I accept Mr Wyber’s evidence that the dates in the letter and payslip sent to the applicant by the HR/Payroll Department were wrong and that the decision was made on 18 November.
[123] I am satisfied that Mr Wyber put the allegations to the applicant during the meeting on 18 November. I am also satisfied that, although the applicant was not provided with copies of the statements of Mr Gisborne and Mr Ostridge until after the termination decision had been made, Mr Wyber fairly put the contents of those statements to the applicant and allowed him to respond to the statements and the allegations as a whole.
[124] While on the subject of procedural fairness I note that the applicant had not been made aware of the fact that it was the compactor incident which was to be the subject of the discussion at the meeting on 18 November until the meeting began. He had been informed merely that it was a performance issue. In my view it would have been preferable if he had been provided with more specific details when he made inquiries of Mr Szczepanowski on 17 November.
[125] It would also have been preferable for Mr Wyber and/or Mr Szczepanowski to have spoken to other employees to check the veracity of the applicant’s claim that it was common practice to climb into the compactor.
[126] In the particular circumstances however, I do not consider that either of these failings amount to fatal procedural flaws. They probably would have made no difference to the ultimate outcome.
[127] The applicant was represented and supported by the TCFUA delegate at the meeting on 18 November.
[128] Paragraph (e) of section 387 is not relevant in this matter as the applicant’s dismissal was not related to issues of performance.
[129] I have had regard to paragraphs (f) and (g) of the section. At the time of the applicant’s dismissal the respondent had 216 full time employees. Mr Szczepanowski’s presence demonstrates that the company has at least one dedicated human resource management specialist. It also has an HR/Payroll Department. I am satisfied that these factors were reflected in the procedures followed in effecting the dismissal.
[130] There are several other matters which I consider are relevant in this case. The first is the issue of alleged disparate treatment of the applicant when compared to other employees. I accept Ms Mansfield’s evidence as to why she did not provide Mr Landrigan with a formal warning. Her explanation appears reasonable in the circumstances. Mr Austin denied that he gave Mr Keenan a warning for climbing into the compactor. However, even if he was mistaken as to whether it was Mr Keenan he spoke to, the difference in treatment of the applicant is explained when the totality of his behaviour on 17 November and his apparent lack of understanding of its seriousness, is taken into account.
[131] The second issue I wish to consider is the applicant’s disciplinary history. The applicant had not received any formal written warnings for safety related incidents during the period of his employment and had not received any formal warning between February 2008 and his dismissal. Nevertheless he did not have a totally unblemished record.
[132] The third issue is the submission put on behalf of the applicant that the respondent could have imposed a lesser penalty than termination. This is true. However it would also be the case with all dismissals.
[133] The fourth issue I wish to consider concerns the applicant’s personal circumstances. This includes his age, health, difficulty in obtaining appropriate alternative employment as well as the obvious serious impact of the dismissal upon both the applicant and his family.
[134] In all the circumstances and having taken account of the factors in section 387 and my findings thereon I have determined, on balance, that the termination of the applicant’s employment was not harsh, unjust or unreasonable. It follows from this that the applicant’s dismissal was not unfair. The application is dismissed.
[135] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to both the applicant and the respondent as provided in section 381(2) of the Act.
[136] Finally, I am unsure as to whether the respondent has yet paid the applicant in respect of 18 November 2010. If not, I strongly recommend that it be done as soon as possible.
COMMISSIONER
Appearances:
M. Port solicitor, for the applicant
G Jervis, solicitor, for the respondent
Telephone Link
2011
March 9
Hearing details:
2011
March 15,
April 15,
May 17, and
July 15.
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