Mr Stuart Francis Giles v Seafarm Pty Ltd T/A Seafarm
[2011] FWA 5827
•31 AUGUST 2011
[2011] FWA 5827 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Stuart Francis Giles
v
Seafarm Pty Ltd T/A Seafarm
(U2010/1954)
DEPUTY PRESIDENT SWAN | BRISBANE, 31 AUGUST 2011 |
[1] Mr Stuart Giles (the applicant) has filed an application pursuant to s. 394 of Fair Work Australia 2009 (the Act), for relief on the grounds that the termination of his employment with Seafarm Pty Ltd T/A Seafarm (the respondent) was harsh, unjust or unreasonable.
[2] The applicant was represented by Ms L Hogg (Solicitor with Sciaccas Lawyers) and the respondent was represented by Mr B Gillan (Solicitor).
[3] The applicant’s employment was terminated by the respondent on the grounds of serious misconduct.
Nature of employment in question
[4] For the purpose of clarity, the following is an extract from the applicant’s affidavit (Exhibit 1)
“The Respondent is an Intensive Aquaculture Operation that grows marine prawn (Brand Name Crystal Bay). The Operation is a 24 hour 7 day a week enterprise. As a result of the 24/7 Operations there are approximately 100 people working at the three Seafarm facilities (two farms in Cardwell, the farm at Mossman and Hatchery at Flying Fish Point and the Processing Area). The Operation delivers product to market 52 weeks of the year. It is at present one of the largest aquaculture facilities in Australia. The mode of transport around the Operation ranges from four wheeled quad bikes, two and four wheeled utes, light trucks used for feeding the prawns, cranes for Harvest Operation, Excavator for Pond Preparation and Harvest Operation, Medium Rigid Truck for Harvest Operation and Product Delivery to Airports, Delivery of Product from Mossman Operation to Processing Plant. As the Operation is 24/7 the weather has an impact on both the employee’s safety e.g. lighting, reduced visibility in heavy rain, poor road conditions, high wind, and exposure to high UV. Vehicles have to be able to withstand the weather.....”
Background to the Applicant’s claim
[5] In or around August 2006, the applicant commenced employment with the respondent. The work, which was that of Supervisor/Specialist, was performed in Cardwell, North Queensland.
[6] The applicant had previously worked for the respondent from January 1995 to December 1997 and August 1999 to April 2005.
[7] The relevant industrial instrument governing the employment was the Seafarm Employees’ Collective Agreement - No 4 (2009) (the Agreement).
[8] On 29 November 2010, the applicant was driving an excavator - this work was part of the applicant’s normal duties.
[9] Driving past Pond 260, the excavator had moved towards the grassy edge of the pond and the wheels of the excavator began to sink into the grass.
[10] The applicant attempted to right the excavator, without success.
[11] Ultimately, the earth under the excavator gave way and the excavator rolled into Pond 260.
[12] The applicant remained within the excavator as this happened.
[13] On 30 November 2010, the respondent stood the applicant down from work on full pay while it investigated the matter.
[14] The applicant was summarily dismissed by the respondent on 2 December 2010. The respondent recorded the reasons for its decision by stating that the applicant’s actions on 29 November 2010 had caused:
“serious risk to my [his] own health and safety and the health and safety of a colleague; and imminent and serious risk to the viability and profitability of the business”.
[15] The applicant says that at no time during the period when he had been stood down until the time of his summary dismissal had the respondent taken any formal statement from him regarding the incident. As well, the applicant says that at no time did the respondent undertake any formal interviews with the applicant to discuss the incident.
[16] At the outset, the respondent claims not to have dismissed the applicant because of the incident, but because of how he managed matters around the time and after the incident.
Applicant’s claim
[17] The applicant holds the following qualifications:
- Diploma of Applied Science in Aquaculture
- Loading Shifting Licence for Forklift, Excavator, Skid Steer, Front-End Loader and Backhoe
- Confined Space and Generic Induction for Mining
- Queensland Construction (Blue Card)
- Medium Rigid Truck Licence
- SES and Queensland Fire & Rescue Training
[18] When the applicant had previously worked for the respondent he had worked at the Cardwell site and performed roles as Water Quality Technician, Pond Technician and Line Manager (from1995-1997).
[19] Upon re-employment with the respondent, the applicant worked in the roles of Pond Technician, Assistant Line Manager and Line Manager (1999 - 2005).
[20] In 2006 and up until the termination of his employment, the applicant worked in a full time capacity as a Level 4 Supervisor/Specialist.
[21] While the applicant held a range of qualifications in various areas, he claims that he did not have any Work, Health and Safety training offered to him in this position.
[22] In the most recent position held by the applicant, he performed duties which involved Staff management, harvesting of prawns for processing, pond preparation, harvesting of Barramundi for processing and driving medium Rigid Trucks around the Cardwell facility.
[23] To complete these tasks, the applicant had to operate an excavator, a crane, a medium rigid truck, a forklift and a tractor.
[24] On the day of the incident, the applicant says that he was travelling from one pond to another to recommence work. The applicant states that at some point he became distracted for a period of time whilst driving and the excavator had veered towards the side of the road and became stuck. The applicant was unable to recall what had distracted him when driving on that day however he estimated that he may have been distracted for approximately 10 seconds.
[25] The surface of the road upon which the applicant was driving the excavator was mostly compacted, however, due to water damage over time, the edges were softer than the centre. One also had to avoid potholes on the road.
[26] The applicant at that time was driving at approximately 5 kilometres per hour.
[27] It was agreed by the applicant that photographs taken by the employer after the incident show that the excavator had veered towards the right of the road. The applicant says that firstly, he was distracted, but secondly that he would have been trying to avoid potholes as well. [PN 95 and 96]
[28] Under cross-examination, the applicant said that when the excavator had veered off the centre of the road, it had stopped on the side with the right hand wheels on the edge of the pond.
[29] At the time the applicant says he believed that the excavator was stable and that it would not fall into the pond.
[30] With the intent of righting the excavator, the applicant asked another employee Scott Piercy to remove the shackle and then the applicant proceeded to move the boom to push the excavator back on the road. At that point, the excavator fell into the pond.
[31] The respondent believed that by repositioning the boom on the excavator, the weight attached to that had caused the excavator to fall into the pond.
[32] When questioned on this by the respondent, the applicant said that what had caused the excavator to fall into the pond was simply because the bank under the excavator gave way. He did not concede that his actions in moving the boom had caused excavator to fall into the pond.
[33] When asked as to why he did not simply leave the excavator on the side of the road and seek assistance from others to right it, the applicant stated that everyone at the workplace was busy harvesting and he thought he should fix the problem quickly.
[34] Upon being questioned as to why he would put himself at risk by moving the boom, the applicant stated:
“I didn’t know it at that particular time that I was going to put myself in risk, otherwise I wouldn’t have done it, but I wasn’t to know that the bank was going to give way on me”. [PN153]
[35] Mr Youdale, for the respondent, claimed that he had noticed the excavator, before the applicant had moved the boom, and that it was down over the edge of the bank.
[36] The applicant agreed that it was when he moved the boom that the excavator fell into the pond, however, he reiterated that “It’s the bank that gave way when the boom was moved that caused it to go into the pond.” [PN 433]
[37] The applicant denied that he had placed Mr Piercy in an unsafe position by asking him to remove the shackle. He said that “Scott was not in danger because at the time he was undoing the shackle, the excavator was stable”. [PN]
[38] The applicant said he was not aware of any workplace heath and safety policy provided by the respondent relating to how to safely harvest in circumstances relevant to this workplace.
[39] However, the applicant was queried as to why he didn’t notify the respondent immediately his excavator got stuck on the side of the road, given that there was a requirement at the workplace to report any hazards. The applicant’s response to why he didn’t adhere to what the respondent says was its policy was that:
“..., I’m saying that at the time I chose the course that we needed to proceed to the next pond to get harvesting because we were under pressure to keep processing running and I’m not saying that I shouldn’t have reported it, I agree that I should have reported it in hindsight but at the time I thought it was necessary to move the machine back into the middle of the road.” [PN461]
[40] After the incident, the applicant completed an Incident Report Form. Some brief notes were recorded on that Form. The applicant says that at no stage was he formally interviewed by management. Two telephone calls had been made to him by the Production Manager and the Processing Supervisor with regard to the loss of a work telephone, but beyond that no further contact was made by the respondent.
[41] Upon returning to work after the incident, the applicant was advised that he would be stood down without pay for the week while the respondent investigated the matter.
[42] The applicant says that he was not provided with any reason for his stand down other than an investigation of the incident was being conducted by the respondent.
[43] The applicant had not been asked to provide any formal written statement to assist the respondent in its own investigation nor the investigation of the Workplace Health and Safety Team.
[44] The applicant had a “termination meeting” with the respondent on 3 December 2010. The only respondent personnel at that meeting were the Relieving Farm Manager and the Seafarm Workplace Health and Safety Officer. Neither the General Manager or Senior Farm Manager were present. The applicant says he was given a letter which stated that there had been a serious risk to his own health and safety and the health and safety of a colleague; and imminent and serious risk to the viability and profitability of the business. There was no discussion entered into with him by the management representatives.
[45] In the letter of termination written under the hand of the General Manager, the respondent has stated “You have been interviewed and given a full opportunity to explain your actions”. [Exhibit 1]
[46] The applicant denies being given the opportunity to explain his own version of events.
[47] The applicant is seeking reinstatement to his formerly held position.
[48] Evidence was given for the applicant by Mr Andrew Graham who is employed on a full time basis by the respondent. Mr Graham is employed as a Specialist - i.e. someone who trains Pond Technicians and who works with the Farm Managers.
[49] Mr Graham had always found the applicant to be a competent and safe operator.
[50] Mr Graham says that he has on a number of occasions put a vehicle into a compromising position where another employee has had to assist him to tow the vehicle away. He has never been disciplined for these events. Sometimes he says that the incidents were based upon his own error of judgement together with external factors such as the poor conditions of the roads.
[51] Mr Piercy had worked with the applicant, who was his Supervisor, for approximately eight months. In that time Mr Piercy found the applicant to be a good employee and safe operator.
[52] Some four months prior to this incident, Mr Piercy says that a machine which had been operated by him had fallen into a discharge canal. Mr Piercy received only a warning as a result of the incident.
[53] On the day of this incident, Mr Piercy had noticed that the excavator had swerved to one side of the bank of the pond. He says that it remained in that position for about 20 minutes. The applicant had asked him to take the pin out of the shackle. Mr Piercy says he did this and that he walked away from the machine because he thought if anything was to happen with the machine then he would have been out of danger. At the time, Mr Giles was in the cab of the excavator but had told Mr Piercy that he was alright. Mr Giles, unassisted, got out of the cab.
[54] Mr Piercy was clear in his evidence that he did not see Mr Youdale at the site of the incident and at the time of the incident. Mr Piercy said that Mr Youdale arrived some ten minutes after the incident.
Respondent’s Response
[55] Mr Youdale is an employee of Seafarm Pty Ltd.
[56] Mr Youdale stated that he had seen the incident occur. He claimed that when he first noticed anything the excavator was stable, but in a precarious position.
[57] Mr Youdale says that he rushed over to the site of the incident and told Mr Giles that he would act as a counterbalance. The applicant denied this as had Mr Piercy.
[58] Mr Youdale also contradicted Mr Piercy’s evidence that it was Mr Piercy who was assisting the applicant. He says in fact he was the one assisting the applicant.
[59] Mr Youdale says he heard a conversation between the applicant and Mr Piercy. He says that Mr Piercy told the applicant not to move the boom.
[60] When the excavator rolled over, Mr Youdale said that he managed to climb upon it to see if the applicant was alright.
[61] At that time, Mr Youdale said that the applicant was very focussed on what he was doing and didn’t respond to any questions being put to him.
[62] Mr Andrew Crole, with responsibilities for maintenance of farm equipment and induction of new staff, gave evidence to the effect that during the induction stage at the workplace, all employees receive appropriate information about safety at work.
[63] Mr Crole agreed that he had handed the applicant his termination notice before any further discussions had taken place concerning the circumstances surrounding the accident.
[64] Ms Hogg, Solicitor for the applicant asked Mr Crole- “That at the point in time in the interview when you offered Mr Giles to have the opportunity to have further discussions regarding the facts and circumstances of the accident with Mr Anderson and Mr Davis, at that point in time he was already, in fact, terminated? Is that correct?
Mr Crole “That’s correct.” [PN 935]
[65] Mr Davis, Senior Farm Manager, for the respondent said that under the circumstances in which the applicant had found himself when the excavator slid into the pond, he should have immediately sought assistance from appropriately qualified personnel to rectify the situation.
[66] Mr Davis did not produce any documentary evidence to show what operating procedures were in place for the excavator. He did explain that there were operating procedures for vehicles but not for excavators because in his view excavators were vehicles. Further, Mr Davis had not provided any material to show that the applicant had been trained in standard operating procedures.
[67] Under examination in reply, Mr Davis said that the type of operating procedures in place centred upon starting up machinery, checking that the machinery was in good order and “noting faults and reporting them”. [PN1084]
[68] Mr Davis agreed that if a vehicle (e.g. a truck) was stuck in a pothole, there would no way to manoeuvre it out of that position, whereas with an excavator, there was a considerable degree of manoeuvrability.
[69] Dr Anderson, respondent General Manager, said he had formed views with regard to the incident based upon discussions held with Mr Piercy and Mr Youdale. The only information he considered from the applicant came from the applicant’s comments made on the Incident Report Form.
[70] Dr Anderson said that he had relied upon Mr Youdale’s statement to the effect that Mr Youdale had heard Mr Piercy advising the applicant not to undertake the manoeuvre of the boom. The fact that Mr Piercy’s statement did not confirm that, was in Dr Anderson’s view, more the case of “the absence of a sentence doesn’t mean to say that that it doesn’t happen”. [PN 1210]
There was disagreement as to whether Mr Youdale was present at the time of the excavator falling into the pond and whether he heard comments attributed to Mr Piercy. In my view what was occurring at the time was so serious that I accept each witness was concentrating upon rectifying a dangerous situation and may not have heard each other speaking.
[71] Dr Anderson reiterated that he accepted that what had occurred with the excavator was an accident but it was the conduct undertaken by the applicant after the excavator had slipped into the pond which had triggered the termination of his employment.
Consideration of Evidence
[72] It is conceded by the respondent that the applicant was not provided with the opportunity to discuss any mitigating circumstance until after the termination of his employment. In its view the respondent believed that the applicant’s conduct spoke for itself.
[73] The respondent claims that it had general workplace health and safety procedures in place at its workplace. I have accepted that the general workplace health and safety policies applied across the board regardless of what type of machinery employees were operating. However, on its own evidence, the respondent said its policies were primarily geared towards ensuring the safety of the machine.
[74] The general rule which applied was that incidents needed to be reported.
[75] A further rule, was that, if an incident had occurred, then it should be rectified by qualified personnel.
[76] It is clear from the applicant’s evidence, which I have accepted, that in hindsight, he would have acted differently.
[77] The applicant says he undertook the course of rectification with the excavator because he was busy and employees were under pressure at harvest time. He believed that he could right the excavator and continue on with his work. This was a serious error of judgement on his part.
The Legislation
s.387 Criteria for considering harshness etc
[78] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) “whether there was a valid reason for the dismissal related to the person’s capacity, conduct (including its effect on the safety and welfare of employees)”
[79] Was the reason for the dismissal “sound, defensible or well-founded”?
[Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373]
[80] From the evidence before the Tribunal, it is accepted that there was a legitimate reason for the respondent to be concerned about the incident under question and the manner in which the applicant sought to rectify the problem.
[81] In Rankin v Marine Power International Pty Ltd Gillard J states:
“The authorities do establish that the employee’s breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.” [(200) VSC 150 at 250]
[82] The incident itself was of a serious nature. What initially occurred was an accident The fact that the applicant attempted to address the problem himself (with the assistance of Mr Piercy) is at the core of the case. Tellingly, however, Mr Piercy stated that he had moved back from the excavator some 50 metres after removing the pin from the shackle because he was aware of possible danger to himself.
[83] The excavator had remained stable for around 20 minutes while at the edge of the pond and this may have emboldened the applicant to try to fix the situation.
[84] From the applicant’s perspective, what was unexpected was that the bank by the pond gave way. The respondent says that the turning point culminating in the excavator falling into the pond was when the applicant moved the boom. The respondent said this caused a major imbalance in the excavator ensuring that it would fall into the pond.
[85] The evidence more points to an imbalance occurring by the releasing of the boom which caused the excavator to slide into the pond. Certainly, Mr Piercy had the view from his experience that by releasing the pin on the shackle he could be in danger of being harmed.
[86] The applicant says that the respondent had not provided a safe work environment. No workplace health and safety policy could ever envisage every type of accident which may occur at a workplace. However, there were in place basic steps to be followed in the case of an emergency. Those steps were to report the incident and seek assistance from qualified personnel. The applicant should have reported the problem to his supervisors rather than take it upon himself to right a difficult situation. It should have been clear to the applicant that he was undertaking a risky procedure with the excavator.
[87] The applicant was a seasoned and experienced worker in this industry and would have been aware of the unnecessary risk he was undertaking.
[88] I have found that there was a valid reason for the summary dismissal of the applicant.
[89] The applicant not only put his well being in jeopardy but also that of Mr Piercy. The valid reason for the summary dismissal of the applicant related to the applicant’s actions after his excavator had stopped at the side of the pond.
(b) “whether the person was notified of that reason”
[90] That the incident occurred is not in doubt and the applicant’s conduct was evident. A formal notification of the reason for his dismissal occurred after his employment was terminated.
(c) “whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person”
[91] The applicant was not given an opportunity to respond to the reasons related to his conduct on the day of the incident save for the commentary he had made on the Incident Report Form. Notwithstanding that, I have accepted that the actions by the applicant were clear and unambiguous.
(d) “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relating to dismissal”
[92] The applicant was handed a letter of termination without any discussion.
(e) “if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal”
[93] The termination of employment was for serious misconduct.
(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;”
[94] This is not applicable in the circumstances.
(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”;
[95] This is not applicable in the circumstances.
(h) “any other matters that FWA considers relevant”
[96] This is a situation where the summary dismissal of the applicant was warranted. The fact that the respondent did not adhere to procedural guidelines became academic in these circumstances. In my view there were no mitigating circumstances which have arisen out of this hearing which could have assisted the applicant in a defence to the claim. The initial incident was an accident but the applicant’s conduct thereafter warranted his summary dismissal.
[97] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms L Hogg for the Applicant
Mr B Gillan for the Respondent
Hearing details:
2011
Townsville
7-8 June
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