Neil Evans v Coles Group Supply Chain Pty Ltd T/A Supply Chain

[2010] FWA 6454

[2010] FWA 6454

FAIR WORK AUSTRALIA

DECISION

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

Neil Evans
v
Coles Group Supply Chain Pty Ltd T/A Supply Chain
(U2010/663)

COMMISSIONER MCKENNA SYDNEY, 7 SEPTEMBER 2010

Application for an unfair dismissal remedy.

[1] Neil Evans (“the applicant”) has filed an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy with respect to his dismissal by Coles Group Supply Chain Pty Ltd T/A Supply Chain (“the respondent”).

[2] The applicant was formerly employed by the respondent as a storeperson at a distribution centre in Smeaton Grange, New South Wales (“the distribution centre”). On 22 April 2010, the respondent dismissed the applicant, with a payment in lieu of notice. The dismissal was made against the background of the respondent’s conclusion the applicant had struck a roller door at dock 77 of a warehouse while driving a high reach/RR forklift numbered RR84. While being involved in an accident of this nature would not, of itself, necessarily lead to dismissal, Mr A Farr, solicitor for the respondent, submitted the applicant was dismissed for: (a) failing to report an incident when his forklift struck the roller door; (b) failing to tag-out (i.e. out-of-service tag) his forklift after the incident; and (c) leaving the area in an unsafe manner with obvious potential to cause harm to others.

[3] The applicant denies having struck the door. No one saw the applicant striking the door with his forklift and nor was any collision recorded on the closed circuit television (“CCTV”) used at the distribution centre. The CCTV footage has poor definition as it concerned the area near the door in question. The applicant is an experienced forklift operator, who was properly trained in, and otherwise fully personally conversant with, the procedures the respondent expected to be followed in the event of an incident of the type alleged.

[4] Mr S Mueller of the National Union of Workers, New South Wales Branch (“the NUW”), submitted the dismissal was harsh, unjust and unreasonable as the applicant did not believe he had damaged the door when driving the forklift and, as such, had no knowledge of anything to report. Mr Mueller criticised matters including the respondent’s investigative and interview processes that preceded the dismissal. He also contested the conclusion reached by the respondent that there were grounds to dismiss the applicant.

[5] The respondent’s case contended there were reasonable grounds to conclude the applicant had caused the damage to the door with his forklift and, following from that, the applicant had then failed to follow expected procedures. In this respect, Mr Farr submitted the respondent’s position is that the applicant is not to be believed as there was overwhelming circumstantial evidence that leads to a probable conclusion the applicant was driving the forklift when it came into contact with the door, and he would have known he had struck the door. As such, the dismissal for misconduct concerning the failure to follow appropriate procedures was not harsh, unjust or unreasonable.

[6] A central aspect to the determination of this application is whether the applicant struck the roller door when driving the forklift, and/or whether he knew he struck the door, determined on the balance of probabilities. For if the applicant did not strike the roller door, or if the applicant did not know he had struck the door, there would be, as a corollary, no proper basis for the respondent to dismiss the applicant on grounds of misconduct for failing to report the incident, failing to tag-out the forklift, and for leaving the area in an unsafe state with potential to cause harm to others.

Legislative framework

[7] Section 385 of the Act specifies when Fair Work Australia may be satisfied a dismissal was unfair:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[8] There was no issue in the proceedings about matters related to whether there had been a dismissal, consistency with the Small Business Fair Dismissal Code or genuine redundancy. For the dismissal to be unfair, it must be found to be harsh, unjust or unreasonable. As to this, s.387 of the Act states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[9] The applicant was dismissed for reasons of alleged misconduct as outlined by Mr Farr, with a principal issue for consideration being whether there was a valid reason for the dismissal. The test is not whether the respondent’s management had grounds to believe the applicant had misconducted himself in the manner contended; it was common ground the respondent bears the onus of establishing the alleged misconduct occurred, based on the balance of probabilities.

The discovery of the damage

[10] On Wednesday, 14 April 2010, door 77 was checked and serviced by external contractors. There was no report of any damage to the door. The evidence suggested the door would have been closed on the night of 14 April 2010 and re-opened on the morning of 15 April 2010, but there was no direct evidence that occurred or evidence as to the identity of the employees who performed the task.

[11] On Thursday, 15 April 2010, at 10.45pm, a maintenance employee named Alecksandar Medic was doing his final rounds when he noticed about two hands-full of concrete pieces on the floor at door 77. The door was rolled up, but Mr Medic did not notice whether the door was fully-open or only partially-open. He looked up and saw the motor bracket was pulled away from the wall, leaning forwards and down, perpendicular to the wall. He then promptly reported the damage to the Line Manager, Richard Martin, who came from a nearby office to see the damage. Mr Medic and Mr Martin had a brief discussion. Rather than engage the motor, the door was then slowly lowered manually by chain over a space of about five minutes and tagged-out, for safety reasons. Mr Medic’s evidence described the detail of the damage he then observed as he inspected the door and surrounds from both sides to try to ascertain the cause of the damage. The door had only typical roller door damage, such as indentations. The biggest dent was at about waist height and Mr Medic did not observe any holes in the door. Mr Medic concluded the damage had been caused from the outside. Mr Medic’s evidence identified his reasons for reaching that conclusion. Mr Medic also sent an email to Brett Buswell, Facilities Manager, that read:

“Hello Brett,

Dock 77, structural damage to wall near motor. Hit from outside. Chunks of concrete on floor.

Dock 89, cracks in wall near floor level.”

The respondent’s investigations etc

[12] Brett Buswell: When Mr Buswell arrived at his office on 16 April 2010 and read Mr Medic’s email, he went directly to inspect the damage. Mr Buswell said he commenced his investigation as soon as he read the email. Mr Buswell also sent an email to Mr Medic seeking further information. Mr Medic responded by further email with such information as he had.

[13] Mr Buswell went to door 77, which was still closed. Mr Buswell noticed some holes and dents in the door, which were protruding inwards from the outside towards the inside of the distribution centre. On rolling-up the door, Mr Buswell said he noticed the holes and dents lined-up or overlapped when the roller door was in a fully wound-up position. When the door was rolled up, Mr Buswell checked for outside damage. There was also a broken support for the roller door and concrete debris. On further inspection using a scissor lift, Mr Buswell observed the guide rails and other components had been torn from the wall. There was no damage to the motor itself, only the support framework. Contrary to the conclusion reached by Mr Medic, Mr Buswell concluded the door had been hit from the inside. Mr Buswell said that once he viewed the damage to the door, he, like Mr Medic before him, also tagged-out the door.

[14] Mr Buswell informed Craig Sherratt, the Day Shift Manager, of the damage, advising he would look into the cause of the damage.

[15] Mr Buswell decided to look at the manual handling equipment (“MHE”) to see if he could spot what had caused the damage. Mr Buswell thought the only piece of MHE that could possibly reach the height of the door would be a high reach forklift. Nonetheless, he also inspected counterbalance forklifts. RR84 happened to go past him while he was conducting this inspection, being driven by an employee whose identity was not in evidence. Mr Buswell noticed RR84 had a “big blue mark on the top of the guide for one of the tines”. He then tagged-out RR84 and inspected the mark, concluding the blue colour was consistent with the blue paint of door 77 (and otherwise inconsistent with the colour of the blue paint on the Chep pallets). He then continued his inspections of MHE, but did not observe damaged or paint-marked MHE - leading him to conclude the only place the blue mark on RR84 could have come from was contact with a roller door. Mr Buswell said there were 66 high reach forklifts, and he may have missed inspecting one or two. He thought there were about nine counterbalances; of those nine, he conducted inspections only of those in the charge bay he observed while walking around on 16 April 2010. He did not inspect the gas forklifts, which number about five and he did not look at other MHE on the basis they cannot reach the height of the rolled door. Mr Buswell later had RR84 inspected by the respondent’s maintenance service providers; it was found to be in good condition, with all functions testing properly.

[16] Mr Buswell said he took certain measurements using a metal tape and a ladder. His evidence as to the measurements was:

“The door opening is 3000mm width x 3530mm height. When the roller door is fully wound up (and the door is open) it is 3890mm to the centre of the drum. I have also measured the height of the paint marking on RR84. The centre point of this mark was the same as the height of the centre of the roller drum when the door is fully open (i.e. 3890mm).”

[17] Mr Buswell, in his witness statement, said he “carried out this measurement over Thursday, 15 July and Friday, 16 July 2010”, but this evidence cannot be correct as to the dates on which measurements were taken as the door had by those dates been long-since removed and there was undisputed evidence there was no mark visible on the mast of RR84 on 22 April 2010. If this is typographical error with the word “July” being intended instead of “April”, and the dates were taken to be “Thursday, 15 April and Friday, 16 April 2010”, the evidence still appears to be incorrect as there is nothing to suggest Mr Buswell attended work after 11.04pm on 15 April 2010 to commence investigations. Nonetheless, the evidence flags that the measurements were taken not on one day, but over two days - probably Friday, 16 April and then Saturday 17, Sunday 18 or Monday, 19 April 2010 (with 19 April 2010 being the probable day the door was removed).

[18] Mr Buswell said he took photographs of the blue mark on RR84 and also of door 77 on 16 April 2010, being photographs which were in evidence. As to the photographs, Mr Buswell was of the view they showed that “The strike marks are a mirror image of the strike marks on Door 77”. While the photographs in question each show three marks, the photographs are not the scale.

[19] Mr Buswell’s evidence also indicated the applicant was the only employee who signed the log book for use of RR84 on 15 April 2010. The log book requires that employees conduct certain visual and operational checks. The log book also emphasises safety measures.

[20] On 16 April 2010, Mr Buswell gave contractors the verbal approval to replace the door. To the best of Mr Buswell’s knowledge, the door was replaced on 19 April 2010. The paperwork for the order was then completed on 20 April 2010.

[21] Mr Buswell later viewed the CCTV footage with the Loss Prevention Officer. Although Mr Buswell watched the CCTV footage closely, he did not see the blue mark on RR84 on his viewing of the footage.

[22] Mr Buswell denied Mr Sherratt had at any stage put him in charge of the investigation, contrary to Mr Sherratt’s evidence in that respect.

[23] Craig Sherratt: Mr Sherratt was informed of the damaged door on 16 April 2010. He spoke to Mr Buswell briefly on the morning on 16 April 2010, when, as Mr Buswell’s evidence also indicated, Mr Buswell said he would look into what had caused the damage.

[24] Mr Sherratt also inspected the door and saw indents and a hole. Mr Sherratt did not see anything to suggest the door had been struck from the outside. It is unclear whether the door was then rolled or unrolled; and Mr Sherratt said he did not roll the door up or down, given the wall damage around the motor. It is also unclear whether Mr Sherratt personally inspected the blue mark; this was not addressed in Mr Sherratt’s witness statement, although later evidence suggested he had seen the mark at some point.

[25] Mr Sherratt said at this stage, he “left the investigation into what may have caused the damage to the door” to Mr Buswell, apart from having a very brief look at CCTV footage, part of which showed a high reach forklift operating near door 77. In cross-examination, Mr Sherratt also said he did not leave anything in Mr Buswell’s hands. He said Mr Buswell was the person who had found the paint on the forklift, which is what had started investigation for a forklift around the dock. Mr Sherratt also gave the Operations Manager, Mark Chapman, an overview. Mr Sherratt described matters as follows:

“The damage to the roller door was reported. [Mr Buswell] went and had a look at - as far as I know - all the forklifts, found the paint on the forklift. We had a look at the footage. When the fork arrived at the battery bay, that footage showed [the applicant] getting off that forklift with the blue paint on it, and as part of the investigation, if we go backwards, [the applicant] was a forklift parked on the dock [sic], indicated through the window just like I said, that it was parked there. The forklift has a paint mark the same colour as the damage to the roller door and at a corresponding height.”

[26] Mr Sherratt later reviewed hours of the CCTV footage in real time. Based on his observations of the CCTV footage of door 77 (which has poor quality resolution) coupled with that of the charge/battery bay (which has better resolution), Mr Sherratt concluded only one high reach forklift (or other piece of machinery) had been in the vicinity of door 77 for the period of time he reviewed on the CCTV footage, and the applicant was driving that forklift. Mr Sherratt described “vicinity” as being the actual area around door 77. He said “there may be counterbalance forklifts in the area”. When showed the CCTV footage in cross-examination, Mr Sherratt said he had never contended the CCTV footage revealed a blue mark; and he could not identify a blue mark in the CCTV footage of RR84 in the battery bay shown to him in the proceedings.

[27] Mr Sherratt then arranged what was to be the first of his two meetings with the applicant. The applicant had union delegate representation at each meeting. Mr Sherratt made contemporaneous notes, which were in evidence. I accept these notes as being a reasonably accurate, if not fully complete, record of part of what was said at the meeting. For example, there is no record of pointing out the window toward the parking spot and the applicant’s responses thereto, being matters otherwise addressed in evidence.

[28] In the first meeting on 19 April 2010, Mr Sherratt asked the applicant if he knew about the damage to the door. The applicant denied that he did, albeit he acknowledged had put his blades down heavily. Mr Sherratt then showed the applicant extracts of the CCTV footage. At the end of the interview, Mr Sherratt suspended the applicant with pay pending further investigations. Mr Sherratt’s notes of the first meeting read:

“5:15 Neil Evans Mick Vinter Bill Smith

Q On Thurs were you on the receiving docks

A Yes

Q Time

A Before lunch around 11 maybe?

Q Where were you working

A North of the receiving office

Q Neil was there any incident on Thurs with your fork lift that you know about

A No

Q Neil you are aware cameras in the area

A Yes

Q Neil cameras in the area show the fork signed out by you hit the door?

A I know I put my blades down heavy I don’t think I hit the door

Q You don’t think? Is it possible that you hit the door

A I don’t think so. I’m 99% sure I didn’t hit the door

Neil the info I have is that the person that hits the door turns and looks up at it. Considering you are on a final written warning while I investigate further you are suspended pending the outcome. This will be on full pay. You need to be contactable while rostered.

[number]

9:14:32 fork on dock 77 & doesn’t move until 10:00:24

9:59:37 still there

10:00:24 at the seller door (10:01:05 FN)

10:01:23 at battery bay” [sic]

[29] In the second meeting on 20 April 2010, Mr Sherratt asked the applicant where he had left his forklift and the applicant agreed he had left it around dock 77. Mr Sherratt showed the applicant the CCTV footage for a second time. The applicant again denied hitting the door. In this meeting, Mr Sherratt put it to the applicant that the footage showed the forklift reversing towards dock 77. Mr Sherratt pointed from his window to obtain confirmation from the applicant where he had been parked and the applicant confirmed the location. Mr Sherratt’s notes of the second meeting read:

“9:15 Neil Evans Mick Vinter Mick Dentist

Q Is there anything you can tell me given you have had a day to think

A 98% sure I didn’t hit the door

Q Where did you leave your fork (H/R)

A I left my fork around dock 77

Q How long did you leave it there

A Not sure

Q At 10:00:24 your fork reverses towards dock 77 1 min later you fork enters the battery bay that fork (84) has a blue paint mark on it the same colour & height as the roller door. What other explanation can you offer.

A ‘There is another High reach in front of me that you can’t see I didn’t hit the door’.” [sic]

[30] Mr Sherratt did not show the door to the applicant as part of the investigation, but was sure the applicant was aware of the nature of the damage. It is, however, unclear on the evidence whether the applicant saw the door before it was removed by the contractors. There is no evidence he was shown the blue mark on RR84.

[31] Mark Chapman: Mr Chapman was the final decision-maker concerning the applicant’s dismissal. Mr Chapman gave evidence he inspected the door on 16 April 2010, in the company of Mr Sherratt. Mr Chapman’s evidence indicated the door was closed when he inspected it. On the basis of Mr Chapman’s inspection, he concluded the pattern of dents was consistent with the roller door having been in a fully open position and it was struck through the slats; and there was nothing he could see to indicate the door area in general had been struck from the outside. Mr Chapman asked Mr Sherratt to continue the investigation. They discussed matters further on Monday, 19 April 2010 and also viewed part of the CCTV footage.

[32] Among other matters, Mr Chapman also viewed the log book and arranged investigation of which VMT unit had been attached to RR84 on 15 April 2010, being a vehicle-mounted computer terminal used as part of the respondent’s management system to provide operators with work; it communicates with the RIS system, which is the respondent’s warehouse management system. The log book and the VMT records indicated that only the applicant had used RR84 on 15 April 2010.

[33] Mr Chapman printed the task information data from the RIS system, which confirmed to him the applicant had been performing tasks which demanded the use of a high reach “prior to the time in question”. Mr Chapman’s inquiries confirmed there was a timing discrepancy in the CCTV footage and the RIS system. The testing he conducted was consistent with the timing difference between the RIS information and the CCTV footage of the applicant. Mr Chapman said while there was a timing discrepancy that does not mean the incident did not occur. Mr Chapman said the RIS system is eleven minutes behind the CCTV footage. Mr Chapman said he had also looked at receiving crew records which satisfied him dock 77 was not used by the afternoon shift on 15 April 2010, being a shift beyond 2.00pm.

[34] Mr Chapman reviewed the applicant’s file and considered the information available to him about relevant matters. He held discussions about matters with Peter Stein, Human Resources Manager, and other managers. Mr Chapman made a preliminary decision, subject to anything the applicant said, the respondent should terminate the applicant’s employment.

[35] A third meeting was arranged for 22 April 2010 attended by Mr Chapman, Mr Stein, the applicant, Tony O’Donnell (Organiser - NUW) and two union delegates.

[36] Mr Chapman had prepared discussion notes for the meeting, which he went through on the day for response from the applicant. The discussion notes prepared by Mr Chapman in advance of the meeting read as follows:

“Section 2 - Reason for discussion [What has the team member done/alleged to have done that fails to meet our business expectations.]

The reason for today’s meeting is to discuss Neil’s serious breach of company Safe Work Practices, and the Code of Conduct in relation to Company Resources and Health, Safety and Wellbeing.

On 14/4/10, an external maintenance company visited the site and performed a routine service on the roller door at dock 77. They reported that the roller door was functioning normally with no damage. Later that evening the door was closed and operated with no reported damage. The door was subsequently opened on the following day (15/04/10) again with no reported damage.

On 15/4/10, Neil was operating forklift 84 which is a high reach forklift. A high reach forklift has a high mast which enables the forklift to pick up stock from high level shelves. At 9.14am, the High reach forklift is parked near the roller door at dock 77. At 10am, the forklift is reversed towards the roller door.

CCTV footage at 10:01 shows RR84 travelling past FN aisle towards and then enters the battery bay. CCTV footage shows Neil as being the operator on RR84.

At approximately 23:00pm, Alex medic (Team member/maintenance) whilst attempting to close the door observed that the roller door, which was rolled up at the time, was severely damaged with damage also to the building structure. The damage could only have been caused by a high reach forklift as the door was rolled up.

Neil was the only Team Member to use a high reach forklift on the 15/04/2010 between 05:00am and 14:00pm.

This is supported by CCTV footage.

The cost to replace the roller door is has not been provided thus far but is expected to be around 5K.

On 19/4/10, Craig Sherratt (Shift Manager) and Bill Smith (Shift Manager) met with Neil and asked if he had any knowledge of how the roller door at dock 77 became damaged. Amongst other comments Neil stated he was 99% sure that he did not hit the door. Our evidence does not support that statement.

On 20/4/10, Craig Sherratt and Michael Dentist (Team Manager) met with Neil and Neil stated he was 98% sure he didn’t hit the door. Neil’s response is not supported by the evidence as he was the only Team Member to use a high reach forklift near dock 77 on 15/4/10 as seen on CCTV footage and confirmed system log files.

The damage to the roller door could only have been caused by a high reach forklift. Neil was the only Team Member to use a high reach forklift that day next to or near dock 77. Based upon the information and Neil’s failure to provide a credible explanation, the business accepts that Neil damaged the roller door and failed to follow the correct safety procedure and report the incident. Neil’s failure to report the incident could have resulted in a significant injury to himself or other Team Members had the roller door fallen from it’s mountings.

Neil’s actions put himself, other Team Members and the business at serious risk and the business will not tolerate such disregard for safety procedures.

Neil has previously received a First and Final Warning for failing to follow safety requirements, behaving in an unsafe manner and putting his personal safety, and the safety of others at risk.

Section 3 - Business Expectations [What change in performance/behaviour is required - i.e. detail what expected standards are.]

At Coles we have a way of working that helps ensure a productive, positive environment for our team, customers, suppliers, communities and everyone else we interact with. We live by our Goal and Values, act lawfully and apply the Code of Conduct to everything we do. The Code of Conduct details the conduct and behaviour we expect from our team.” [sic]

[37] The discussion notes also record a précis of the responses given by or on behalf of the applicant, which I have considered but do not reproduce. The discussion notes indicate the “Discussion outcome” as being “Termination of employment”. The applicant declined to put his signature to the discussion notes.

[38] Mr Chapman agreed in cross-examination it was important that the discussion notes set out in complete form all the reasons upon which the respondent relied in connection with the decision to terminate the applicant’s employment. Mr Chapman acknowledged there was no reference to the blue mark in his discussion notes. He also acknowledged that in the absence of the blue mark, the respondent could not prove RR84 hit the door, as the mark was the only link between RR84 and the damaged door. Mr Chapman explained the discussion notes formed a basis to talk about the non-reporting of the incident and the supporting evidence of the photographs of the mark was provided to the applicant at the meeting.

[39] In cross-examination, Mr Chapman conceded Mr Medic’s email had not reported the roller door was “severely damaged”, but Mr Chapman said he nonetheless believed that to be true. Mr Chapman was unaware the applicant had finished his shift at 11.00am on 15 April 2010. Mr Chapman would not concede that if the applicant had finished his shift at 11.00am he could not be the only team member to have used the forklift to 2.00pm. He acknowledged the general area was being used after the applicant left work at 11.00am, but said that dock 77 was not used for unloading that day or evening; there was no requirement for the door to be used and the door was not used between 11.00am and 11.00pm. He was not aware whether door 77 was being used during the applicant’s shift.

[40] Mr Chapman initially would not agree with the proposition RR84 was in use until it was inspected on 16 April 2010. While Mr Chapman would not concede this, Mr Buswell’s evidence indicated RR84 was being driven by another, unidentified employee when he first noticed the blue mark and then tagged-out the forklift. Mr Chapman later acknowledged that, on 16 April 2010, RR84 had to be located and someone was on it at the time; and he was aware of this for the meeting on 22 April 2010.

[41] Matters dealt with during the 3½ hours meeting included viewing CCTV footage and photographs, inspecting dock 77 (by then repaired), putting issues to the applicant and allowing him the opportunity to respond. It appears Mr Chapman did not go with the other participants from the meeting to inspect the dock and RR84. Towards the end of the meeting, Mr O’Donnell remonstrated on the applicant’s behalf that the applicant did not believe he had been involved in any collision, the respondent had been unable to demonstrate any such collision, the applicant had 14 years’ service and he considered himself to be on a first warning concerning an alleged incident in 2009.

[42] After the meeting, Mr Chapman took a break and made the decision to dismiss the applicant; he then returned to confirm that advice, this being the first time he had dismissed an employee. Mr Chapman’s principal concern was not so much the accident itself, but the dangerous situation in leaving a damaged door unreported and for failing to follow tagging-out procedures, despite the applicant being well-trained in all relevant procedures. Mr Chapman explained he had a commendable “zero tolerance for safety” matters. He viewed the incidents as involving a “serious breach” of safety and “serious misconduct”.

[43] Peter Stein: Mr Stein is the respondent’s Human Resources Manager with responsibilities for Smeaton Grange and another site. He was involved in the processes preceding the applicant’s termination of employment, principally to review the evidence and to ensure procedural fairness was observed. Mr Stein either denied or had no recollection of certain comments attributed to him by Mr O’Donnell concerning the meeting on 22 April 2010.

Matters advanced for the applicant

[44] Neil Evans: The applicant’s evidence indicated he worked from 5.00am until he left work at 11.00am on 15 April 2010. At 5.00am, he started to work on a high reach forklift. Around 8.30-9.00am, the applicant was asked to report to the receiving area. He parked his high reach next to the receiving office and saw a manager named Jeff “Pocot” (otherwise rendered as “Pocock” and “Pollock” in exhibits and transcript) was in the area when the applicant was parked at door 77 look at him. An employee at the receiving desk, known to the applicant as “Ben”, informed the applicant an employee was absent due to illness. Ben asked the applicant if he could go “off task” at the northern end of the building to unload trucks outside, using a Hyster forklift. The applicant then performed work with the Hyster unloading trucks and placing stock.

[45] The applicant said he did not use door 77 on 15 April 2010, but had parked his forklift at the receiving office, right next to door 77, while unloading trucks for about 45 minutes with the Hyster. The applicant could not drive the forklift straight down the aisle to return to the battery bay, due to the presence of stock. The applicant said he had “[Reversed] my forklift around and then I went past the racks and straight down to the battery bay”, which took only a short time. The applicant denied in cross-examination that at the time he was reversing his forklift he had struck the door. The applicant drove the high reach to the battery bay and finished work shortly thereafter at 11.00am. He did not wear a watch and, therefore, was unclear about the specific times involved. The applicant did not know what work was undertaken near door 77 during the time he was working elsewhere with the Hyster, but when he was leaving to go to the battery bay, there were “heaps” of high reach forklifts operating inside the building.

[46] The applicant said there was another forklift parked in front of him that is not shown on the CCTV footage. The applicant also considered it was possible anyone could have used RR84 while he was working away from the parked forklift. He explained “there’s a lot of people [who] jump on your machine and move a pallet or whatever and that happens a hell of a lot” (and, as to this, Mr Mueller advanced submissions as to the intermittent CCTV recording of the area in question). As the applicant had not checked door 77 on 15 April 2010, he was unsure whether it was fully functioning at that time.

[47] The applicant said it is not possible for a high reach to drive through door 77, as the mast is too high; he has never tried to drive a high reach forklift through a door in the receiving area; no high reach forklifts are used on the finger docks; and a number of high reach forklifts were being operated by other team members in the receiving area to put stock away. After the applicant had finished unloading the trucks with the Hyster and driving the high reach to the battery bay he did not notice any damage to the forklift. He had driven carefully to the battery bay, as other high reach forklifts were being operated in the area. The applicant said there was “no way” he would have tried to drive a high reach forklift through a roller door in the receiving area, because high reaches are too tall and would hit the door; and, in any event, other types of forklifts are used outside on the finger docks.

[48] The applicant said that in the first meeting with Mr Sherratt on 19 April 2010 when asked whether he had hit the door he had replied with word to the effect: “No. I am 99% sure”. In evidence, the applicant said he could have said 100 per cent; he was then, and remains, totally convinced he did not hit the door. The applicant denied having said at a second meeting with Mr Sherratt he was 98 per cent sure, claiming he had said 99 to 100 cent sure on both occasions. The applicant swore on his “kid’s dying oath I did not hit that door”.

[49] The applicant said a warning he had received in October 2009 would not have prevented him from reporting any safety incident. The applicant said that had he hit the door with the high reach, or noticed any damage to either the forklift or the door, he would have reported it as it was a safety matter. The applicant said he would have accepted the dismissal had he done what was alleged.

[50] Tony O’Donnell: Mr O’Donnell described the type of MHE used at the distribution centre. He said it was common practice for employees to use forklifts without having signed the log book and there were compliance problems in this regard at the distribution centre. He gave examples in this respect.

[51] As to the meeting on 22 April 2010, Mr O’Donnell said that, among other matters, he had:

• asked for evidence the applicant had damaged the door, given the applicant’s denial of having caused it;



• requested the details of the person working for the contractor who had carried out the “alleged” inspection of the door on 14 April 2010 (those details were not provided);



• requested the inspection reports of the roller doors other than door 77 (but was advised there were none);



• asked to see the damaged roller door (but it had already been removed from the site).

[52] Mr O’Donnell asked which part of the door had been damaged. Upon being advised there were marks on the skin of the door, Mr O’Donnell said to Mr Chapman there could be similar marks on every door in the distribution centre and gave descriptions in that respect.

[53] Mr O’Donnell asked Mr Chapman why inspections had been conducted only of the high reach forklifts. Mr O’Donnell said any of the forklifts on site could have damaged the door when raising the height of the forklift mast while stacking was considered.

[54] Mr O’Donnell requested the applicant’s task information data for the time the applicant was alleged to have damaged the door. That information showed the applicant was working elsewhere and using a forklift other than RR84. Mr O’Donnell pointed out the applicant could not have been operating two forklifts simultaneously in different places. Mr Chapman then explained the time discrepancies between the CCTV footage and the task information data.

[55] Mr O’Donnell said the following then occurred:

“We then measured, with the company, the time it took for the CCTV camera to move from viewing the area at Door 77, rotate fully to its other viewing at the end of the receiving area and return to viewing Door 77. It took a full 1 minute and twenty seconds to travel through the full rotation. The view of Door 77 only lasted 12 seconds. This means that Door 77 was only in view for 1/12th of the day or 12 seconds out of every rotation.”

[56] Mr O’Donnell said a group of people from the meeting (other than Mr Chapman) then went to door 77. Mr O’Donnell described what he saw. There was a counterbalance near door 77. One of the union delegates started the counterbalance forklift, moved it close to the door and raised the tines of the forklift. The forklift mast extended as the tines were raised. Mr O’Donnell said that when the forklift tines were barely a metre off the ground, the mast rose to the alleged height of the collision with the door - thereby clearly establishing a counterbalance forklift could also have caused the damage.

[57] A further “close up” inspection of RR84 was made using a ladder. Although there were scratches on the mast, there was no blue paint on the forklift of the type described by Mr Buswell.

[58] Mr O’Donnell later inquired whether any other blue doors had been inspected for damage and Mr Chapman replied that no others had been inspected. Mr O’Donnell’s evidence noted there are other items at the distribution centre that are blue, including the Chep pallets, thousands of which are handled by MHE - and it is common for high reach forklifts to rub against these pallets when moving stock. Mr O’Donnell described the colour blue in a photograph shown to him in cross-examination and that of most of the Chep pallets as “quite similar”.

[59] Mr O’Donnell’s evidence also recounted various other aspects of the discussions he said he had with Mr Chapman and Mr Stein. Mr Chapman and Mr Stein have disputed certain matters, variously denying the content of some aspects or having recollections of different emphases. It is unnecessary for the purposes of my findings to determine whose version is to be preferred, albeit I expect that, over the course of such a lengthy meeting, Mr O’Donnell would have put forward everything he considered would assist the applicant’s case and challenge the respondent’s views concerning the applicant’s alleged misconduct. I also note Mr Chapman’s discussion notes themselves proceeded on the basis therein outlined that: “The damage could only have been caused by a high reach forklift as the door was rolled up”.

Applicant’s submissions

[60] Mr Mueller’s submissions referred to a broad range of matters to challenge the decision made by the respondent. These included, but were not limited to, the following submissions:

• the respondent’s case did not make sense, in as much as it was based on the proposition the applicant, an experienced forklift driver, would drive into a roller door and leave the site in a damaged state;



• the applicant knew there was workplace surveillance by CCTV and there is an inherent implausibility in the respondent’s version of events;



• the cause of the damage was, simply stated, unknown - and the applicant has been consistent in saying he did not believe he had damaged the door and, therefore, had no knowledge of anything to report;



• when the applicant was interviewed, false propositions about the content of the CCTV footage were put to the applicant as a highly questionable tactic. Mr Sherratt admitted he had asked the applicant about fabricated, compelling evidence against him to see how he would react in the interview. Mr Mueller submitted it was appropriate to contrast the behaviour of Mr Sherratt and the applicant. Despite Mr Sherratt’s entrapment attempt, the applicant stood firm and said he did not believe he hit the door. The applicant should be believed;



• any attempt by the respondent to “play semantics” with the responses by the applicant concerning the percentages of certainty he had not hit the door needed to be assessed in the context of the unsettling, false propositions put to the applicant about the content of the CCTV footage.

[61] Mr Mueller also referred to the following:

• the applicant was the only witness who could have seen the incident, had it occurred at the time alleged by the respondent - but the applicant has denied knowledge of any incident of the type alleged by the respondent and could not, therefore, have reported matters as he was not involved in the first place;



• the respondent did not lead evidence to show the applicant knew he had something to report, and this was relevant to questions concerning the applicant’s state of mind as to knowing he had something to report;



• as an experienced driver, the applicant would have felt the forklift striking the door (and would, as required, have reported the incident), but the applicant said under oath his forklift did not strike the door;



• the applicant was not aware of the alleged incident until he was first interviewed and the respondent cannot rely on matters such as conduct suggesting he was involved, when the only clear CCTV footage of the applicant in the battery bay showed him driving safely.

[62] Mr Mueller submitted there was no valid reason for the dismissal; there was no reason that could be regarded as sound and defensible. Rather, the reasons are fanciful and probably prejudiced. Mr Mueller noted the applicant had not been given a letter setting out the reasons for the dismissal. Mr Mueller submitted the applicant had been dismissed for serious misconduct, as opposed to misconduct, and this was supported by the evidence given by the decision-maker, Mr Chapman. Mr Mueller referred to various authorities concerning the evidentiary onus submitted to be relevant, as well as to matters such as the explanatory memorandum to the legislation. Mr Mueller submitted the issue in this case is not whether the applicant drove into the door. Instead, Fair Work Australia must determine whether the applicant knew he had been involved in an incident he needed to report. The applicant did not agree it was his responsibility to tag-out the forklift, but not much is to be made of this because the applicant agreed if there had been an incident the applicant knew he had a responsibility to report it. The evidence, Mr Mueller submitted, made it clear the applicant did not know of involvement in any such incident; the respondent could not succeed in its defence of the application unless the evidence leads, on the balance of probabilities, to a satisfactory inference the applicant knew he had something to report. The respondent bore the responsibility of proving this.

[63] As to the damage to the door itself and the question of causation, Mr Mueller submitted the respondent’s case was deficient in that:

• the extent of damage to the door remains unclear and, for example, a purchase order for the door replacement did not identify the precise nature of the damage;



• the respondent did not lead any expert or third party evidence to establish a link between the damage to the door and the wall, and Mr Medic’s evidence needed to be considered about the type of steps that would be necessary to establish such a link;



• the witnesses’ recollections varied about the damage to the door;



• there were deficiencies in the descriptions of the nature and extent of the damage, and there was no photographic evidence concerning the damage to the whole door.

[64] Mr Mueller’s submissions referred to the evidence of the employee who had initially reported the damage, Mr Medic. Mr Mueller submitted Mr Medic sent a contemporary email reporting damage, which identified damage to the wall at door 77 and the bracket hanging away from the wall. Mr Medic considered the damage had been caused by impact from outside, rather from within. Moreover, Mr Medic:

• had examined the door from both sides and did not observe any major strike marks or holes;



• did not observe damage to the door itself, other than common denting;



• did not observe the type of impact damage or buckle in the slats of the door itself to warrant the extent of damage to the wall;



• gave evidence in the proceedings for the basis of his conclusion the damage had occurred from the outside, because of the direction of the motor being pulled away from the inside;



• was surprised the whole door had been replaced, because he considered the door could still have been used. The biggest dent was about waist-high and faced inwards, looking from the outside of the dock.

[65] Mr Mueller submitted Mr Medic was well-placed to form his conclusions, given his qualifications in mechanical engineering and his experience in repairing roller doors at the distribution centre. While Mr Medic did not exclude the possibility the damage could have been caused by a strike from within, he had the opportunity to examine the door and surroundings - rather than just the photographs now before Fair Work Australia. Mr Medic maintained the damage could have been caused from outside. Mr Mueller noted that Mr Medic was careful in his evidence and a credible witness, and he did not speculate.

[66] Mr Mueller submitted Mr Medic’s evidence raised serious doubts about the probability of the respondent’s contention the applicant hit the door from inside the warehouse. He further submitted that doubts remain as to any causal link between the dents in the roller door and the damage to the wall and motor bracket; he suggested there may be no connection at all.

[67] Mr Mueller noted Mr Medic was not interviewed as part of the investigation; he had been given no “attention”. Mr Mueller noted Mr Chapman’s evidence that he did not see any point in interviewing Mr Medic on the basis this would not prove or disprove anything. Mr Mueller submitted that Mr Chapman was not aware Mr Medic reported damage only to the wall and not the door, and nor was he aware Mr Medic had reported that the damage had been caused from the outside. Further, the applicant’s evidence suggested the damage to the wall on the motor side cannot be reconciled with a forklift hitting the roller door; and Mr Medic’s evidence indicated there was only common denting to the door.

[68] Mr Mueller also made submissions about the photographs taken by Mr Buswell, questioning their authenticity, accuracy and probative value. Shortly stated, Mr Mueller submitted there was little or no evidentiary utility in the photographs for a range of reasons going to proper identification, proper linkage, photograph quality and the like. He submitted the respondent claims the photographs as proof of contact between RR84 and the door, but there is insufficient evidence to draw such a conclusion. There are three marks shown in certain photographs of the door and the mast, but no more and no less than that. The scale in the photographs is distorted and there is nothing to confirm the photograph is of RR84. Mr Medic was not sure whether the damage shown in the photographs was consistent with what he had observed. Moreover, when shown a photograph in cross-examination, Mr Medic had correctly identified this picture as having been taken looking up from below, whereas it was put to him the photograph showed a different angle.

[69] Mr Mueller criticised Mr Buswell’s investigation of the MHE on the basis it was not systematic. That is, Mr Buswell did not have a list of all MHE; he excluded the possibility counterbalance forklifts could have caused the damage; he did not inspect all high reach forklifts; he inspected only the counterbalances in the charge bay and some of the MHE he saw while walking around; he did not check other doors for dents. Despite claiming to have seen holes in the door, Mr Buswell could not say how exactly many holes there were, and the photographs do not show any holes.

[70] Mr Mueller submitted the respondent had proceeded on the basis a high reach had caused the damage. For example, Mr Buswell claimed to have examined counterbalances, but with a state of mind that excluded the possibility a counterbalance had caused the damage. However, there was uncontested evidence from Mr O’Donnell indicating that during the meeting on 22 April 2010 a physical demonstration had been given to show counterbalance forklifts can reach the height of the door and there was evidence about where counterbalances operate.

[71] Mr Mueller submitted there was limited utility in the respondent’s reliance on CCTV footage, given: (a) its low quality concerning the area near door 77; (b) the footage was taken with a rotating camera; and (c) it does not record accurate time. The respondent claims the footage shows the forklift at door 77 does not move for approximately 45 minutes, but that inference cannot be drawn and the conclusions drawn by the respondent were speculative. Mr O’Donnell’s evidence established the amount of time door 77 was captured on the footage; and the submissions timed the relevant period at less than four minutes out of about 45 minutes. Mr Mueller submitted the viewing of the CCTV footage had been tainted by what the Mr Sherratt expected to see, and the possibility of counterbalances had been excluded.

[72] Mr Mueller submitted the CCTV footage showed there were high reach forklifts in the area at various times that morning. Mr Sherratt’s viewing of the CCTV footage commenced only after Mr Buswell had told him about the blue mark on RR84. Mr Sherratt the followed-up viewing the CCTV footage, expecting to find a linkage between the door and the applicant or RR84.

[73] Mr Mueller submitted the evidence did not lead to the conclusion the blue mark was on the mast when the applicant drove the forklift into the battery bay. He submitted there was no blue mark visible on the unchallenged accuracy and objectivity of the CCTV footage from the battery bay (which is of better quality than that showing door 77). Mr Mueller submitted the clear CCTV footage of RR84 in the battery bay does not show any sign of an alleged blue mark and it “clearly” is not there - although, Mr Mueller submitted, the mark must have been on RR84 when it entered the battery bay if the respondent’s theory is to be believed.

[74] Mr Mueller submitted the photographs of the blue mark and the damage to the door had three strikes, but the photographs were not to scale. The unidentified employee operating RR84 on 16 April 2010 did not notice/report the mark in the pre-operation checks and nor was there any evidence as to the previous whereabouts of RR84 when it was being operated on 16 April 2010. Moreover, the blue mark was not mentioned in the discussion notes Mr Chapman had prepared for 22 April 2010. Mr Mueller submitted this was possibly because the respondent was unsure whether the paint was identical and because the foundation of the case against the applicant was not solid. He submitted that no causal link had been established between the mark and the damage to the door. Moreover, when RR84 was inspected by Mr O’Donnell on 22 April 2010, there was no blue mark.

[75] Mr Mueller noted the Chep pallets are also blue. While Mr Buswell saw a forklift with a blue mark drive by, Mr Buswell was not an expert in comparing paint and strike marks. Mr Mueller submitted it would have been reasonable, given the size of the respondent, to obtain expert advice before proceeding to dismiss the applicant.

[76] Mr Mueller also drew attention to the evidence about the proximity of dock 77 to the administration offices and toilets, being an area traversed by a constant traffic of employees. He submitted that if the damage had been caused by the applicant on the morning of 15 April 2010, it would have been reasonable to expect the noise of the impact would have been heard and the damage/debris would have been detected before 10.45pm later that night (including, for example, by Mr Sherratt - who is recorded on CCTV footage approaching the area that day to go to the offices). Mr Mueller submitted it stretched plausibility to suggest no one noticed the damaged door and debris from the time of the alleged incident to the time Mr Medic first found the damage. The receiving manager who worked on that day and who saw the applicant was not interviewed, and nor were other managers. Mr Mueller submitted the investigation had focused on only a limited period of time on 15 April 2010, rather than the entire period.

[77] Mr Mueller also drew attention to the following evidence:

• in the applicant’s opinion, the force that would have been needed to cause the damage would have resulted in the driver being thrown from the forklift;



• the applicant saw another forklift parked in front of him at door 77;



• despite the log-book procedures for use of forklifts, it was not uncommon for employees to use available forklifts and, during the time RR84 was parked at door 77, it was possible anyone could have “jumped” on it;



• the respondent had discounted in its investigation the possibility someone could have been in the vicinity of door 77 after 11.00am, because there was no requirement to use the door between 11.00am and 11.00pm - but, equally, door 77 was not in use at the time the applicant was working either;



• Mr Chapman’s discussion notes suggest the applicant was the only employee who used RR84 to 2.00pm, but the applicant’s shift finished at 11.00am.

[78] Mr Mueller also drew attention to evidence of the task data information, which records the tasks allocated to employees and the amount of time. The records indicate the applicant was allocated to tasks outside the warehouse on a Hyster lift between 9.12am and 10.53am, whereas the respondent’s case suggested the applicant had struck the door at about 10.00am. Even allowing for a difference of eleven minutes in the various recording devices, the applicant still would have been performing other tasks when the collision allegedly occurred. There was an unexplained discrepancy on the records, Mr Mueller submitted. Given there are time differences in the recording systems, there was a further inconsistency in the time the respondent contends the incident occurred.

[79] Mr Mueller submitted the evidence indicated it was rare for disciplinary action to be taken by the respondent simply because an employee had been involved in a workplace accident. Mr Mueller also submitted the respondent had made an “underhanded attempt” to create the impression the applicant had not reported the incident to avoid the testing for drugs and alcohol. However, the applicant, a 58 year old with diabetes, does not drink alcohol. It was also rare for drugs and alcohol testing to be undertaken, with evidence of only one drugs and alcohol test having been conducted on an employee since the policy was first introduced.

[80] Mr Mueller submitted that while a number of hypotheses were available about the cause of the damage, some implying fault by the applicant, the respondent faced an insuperable difficulty in founding its contention the applicant knew he had something to report. He submitted that all the respondent can argue is that Fair Work Australia should prefer its explanation of possibilities, which was based on conjecture not proof. Mr Mueller submitted that most of the respondent’s inferences are inconsistent with the evidence and Fair Work Australia could not be satisfied the inferences have been proved by the respondent to the required standard. Moreover, the respondent did not investigate matters properly. Mr Mueller submitted the respondent should have: reviewed all the CCTV footage; interviewed the forklift operator/s who used RR84 on 16 April 2010; interviewed the managers who worked in the vicinity of the door; and obtained external expert advice about the cause of the damage to the door and the paint. The “greatest error”, Mr Mueller submitted, was excluding the possibility that no forklift other than a high reach could have caused the damage.

[81] Mr Mueller recapped matters already addressed in his earlier submissions and further submitted there was no excuse, given the size of the respondent’s operations and given its human resources expertise, to justify the “sloppy and unprofessional” investigation that led to a dismissal which has had “dire consequences” for the applicant, given his personal circumstances. In closing, Mr Mueller addressed matters relevant to s.387 of the Act and as to the claim for reinstatement.

Respondent’s submissions

[82] Mr Farr submitted the applicant’s employment had been terminated for reasons of misconduct, as opposed to serious misconduct. While the respondent would have had grounds to treat the incident as serious misconduct such as to justify summary dismissal, the respondent had treated the dismissal as involving misconduct and the applicant had been given a payment in lieu of notice. He addressed matters relevant to the onus of proof applicable to applications such as that now before Fair Work Australia, by reference to various authorities. Mr Farr approached the submissions as to evidence framed principally by reference to the criteria in s.387 of the Act, including reference to further authorities.

[83] Mr Farr submitted the issue in contest is whether the applicant did in fact drive a forklift that struck door 77 and, if so, whether he would be aware of striking door 77. Mr Farr submitted the effect of the applicant’s case was to say the applicant did not strike the door, no one had seen the applicant strike the door and nothing could be proved. However, protestations of innocence by employees were not uncommon and they need not be accepted by employers or Fair Work Australia.

[84] Mr Farr submitted the applicant is not to be believed and there was overwhelming circumstantial evidence that leads to a probable conclusion the applicant was driving the forklift when it came into contact with door 77 and he would have known he had struck the door. On assessing the available evidence on the balance of probabilities, the applicant was the employee driving the high reach forklift that struck door 77; he caused damage to it, left it in an unsafe state and failed to tag-out the forklift after this occurred.

[85] As to this, Mr Farr noted the applicant was an experienced and properly-trained forklift operator, who knew the procedures to be followed in the event of an all incidents, accidents and spills, including reporting and tagging-out. Door 77 had been checked on 14 April 2010; it would have been closed that night and re-opened on the morning of 15 April 2010. Inferentially, it was fully functioning from the morning of 15 April 2010 and CCTV footage showed it was open that day. The damage therefore occurred sometime between the start of day shift and 10.45pm on 15 April 2010.

[86] Mr Farr submitted no forklift other than a high reach forklift could have damaged the door and frame. Mr Sherratt, who viewed the CCTV footage, gave evidence as to only one forklift being in the vicinity of the door. RR84 was parked at 9.14am until it was moved at 10.00am, and that no other forklift went in the vicinity of the door on 15 April 2010. The CCTV footage shows a high reach forklift moving away from the door at approximately 10.00am, and driving along an aisle before turning right; and that a forklift is parked in the battery bay at 10.01am. The applicant agreed he had parked the forklift at the door on 15 April 2010 and later then drove it directly to the battery bay. The applicant had been driving RR84 on 15 April 2010, based on log book records, recording systems and the visible number of the forklift parked in the battery bay. Door 77 was not used by the afternoon shift on 15 April 2010.

[87] On 16 April 2010, high reach forklifts and other MHE were inspected. Mr Buswell identified RR84 as having a blue mark on the mast. Mr Buswell measured the paint mark on RR84 and the mark, as measured to the centre point of the drum on the roller door when the drum was fully rolled, corresponded to the damage on door 77. No other high reach or MHE had a mark on it consistent with having scratched the door.

[88] Mr Farr submitted the evidence indicated there were no marks on the outside of door 77 consistent with the door itself having been struck from the outside and no repairs have been made to the outside dock area. Moreover, the drum of the roller door cannot be hit from the outside when the roller door is fully open.

[89] Mr Farr drew attention to evidence concerning the damage to the door and surrounds, and referred also to the remediation that subsequently was undertaken. He submitted considerable force would have been involved in causing such damage and, that if the roller door was hit, the driver would have known the incident that caused the damage - but there was no report other than that of the employee who first observed the concrete debris. Mr Farr submitted the Hyster forklifts relevantly operate only outside the distribution centre and the only other forklifts operating inside the distribution centre additional to the high reach forklifts are the counterbalance forklifts.

[90] Mr Farr noted the applicant had been warned in October 2009 for failing to perform a pre-operational check, not reporting a forklift fault and not tagging-out the forklift. The applicant had been informed of the likely consequences of any such future breaches. More generally, the applicant had received earlier counselling for other matters including performance and absenteeism.

[91] Mr Farr submitted the respondent’s officers met the applicant three times, including a lengthy meeting prior to the termination of employment. The applicant was represented at each meeting and was given a proper opportunity to address all allegations and matters relied on by the respondent, and was allowed to inspect anything he wanted to inspect. The applicant was given a discussion record, which confirmed his employment was terminated. He was given a payment in lieu of notice.

[92] Mr Farr submitted the facts had been proved based on the strength of the evidence before Fair Work Australia. While Fair Work Australia had invited Mr Mueller to draw attention any matters on the CCTV footage which might be relevant to the applicant’s case, Mr Sherratt maintained his position that at no stage was there a high reach forklift in the vicinity of the door other than the forklift being driven by the applicant.

[93] Mr Farr submitted, elaborated by case reference, that Fair Work Australia is being asked to draw the conclusion on the balance of probabilities that the applicant was driving forklift RR84 when it struck door 77 and, due to the damage, the applicant must have known he hit the door. He submitted the respondent had clearly satisfied the onus. As this is a civil matter, the respondent need only raise a more probable inference in favour of what is alleged. The respondent does not have to establish matters beyond reasonable doubt and nor is it required to exclude all reasonable hypotheses consistent with the applicant’s innocence. Here, Fair Work Australia is entitled, on the basis of all facts, to draw the inference the applicant was driving the forklift that struck door 77 and knew he struck it. As such, the respondent had a valid reason for dismissal because the applicant failed to report the incident, failed to tag-out the machinery and the door, and left the door in an unsafe manner.

[94] Mr Farr’s submissions dealt next with notification of reasons to the applicant, submitting the applicant had been given the opportunity to address matters in three separate meetings. To the extent there may have been procedural defects initially, those defects were cured by the further meeting on 22 April 2010 when the allegations were put to the applicant “again and afresh” with a “clear and new opportunity” to respond; and the defect in process was not so serious as to render the dismissal unfair. On 22 April 2010, a site inspection was conducted and all the evidence on which the respondent relied was put to the applicant. The applicant had, Mr Farr submitted, been given notice of the allegations against him and a proper opportunity to respond. It was only after listening to the applicant’s response through his representative that the decision was made to dismiss the applicant by Mr Chapman, together with Mr Stein.

[95] While Mr Sherratt had put certain propositions to the applicant about the content of the CCTV footage, the applicant was equivocal in his responses - relevantly stating he was 99 per cent sure and then 98 per cent sure he had not hit the door. Although Mr Mueller characterised the applicant’s responses as standing firm in the face of false propositions, the applicant’s responses allow “much supposition, much conjecture”. Moreover, while the quality of the CCTV footage was not of “optimal quality” the quality of it nonetheless was such as to allow Mr Sherratt to conclude no other high reach forklift was in the vicinity during the time he viewed; and there was nothing to contradict that conclusion. The applicant’s own evidence indicates he parked at the door around the time in question. The respondent has “never put the case that the CCTV footage demonstrates that this high reach forklift struck the door”, because this clearly is not the case; rather the CCTV footage was put in evidence to show no other high reach was in the vicinity.

[96] As to the different time codes on the recording systems, Mr Farr submitted this does not prove the applicant was standing at a particular part of the distribution centre at any particular time. Equally, it does not disprove that it could not have been the applicant who struck the door. The probative value of this evidence was limited by the fact the applicant was the only person who had signed the log book on 15 April 2010 for use of RR84.

[97] Mr Farr referred also to the warning given to the applicant in October 2009, submitting that (although there was dispute about whether the warning had been down-graded) it was irrelevant whether the prior warning had been a final warning. That is, the fact remained the applicant had received a warning and was clearly advised of his obligations and of the matters set out in the discussion record. The evidence also established the applicant was otherwise extensively trained in relevant procedures.

[98] Mr Farr submitted that on examining the “totality of the evidence”, the dismissal was not harsh, unreasonable or unjust and a fair go all round had been afforded to the applicant.

Consideration

[99] I consider the respondent had cause to suspect the applicant based on matters arising from the evidence and submissions, including the following (although not in any particular order of significance):

• There were records indicating the door had been inspected on 14 April 2010 by contractors, without any damage noted as a result of that inspection. The door was one of about a dozen that was inspected. The door probably was damaged after that inspection by contractors on 14 April 2010 as it is highly unlikely the contractors would have missed damage of the type described in the evidence.



• The door probably would have been closed on the night of 14 April 2010 and re-opened the following morning, 15 April 2010. As such, it is likely that if there had been damage of the extent later reported, it probably would have been noticed and reported when the door was closed on the night of 14 April 2010 and/or re-opened on the morning of 15 April 2010 - leading to the view the damage occurred sometime between the time the door was first opened on the morning of 15 April 2010 until the time the damage was first noticed and reported by Mr Medic at about 10.45pm that night.



• Mr Buswell (and later Mr Sherratt and Mr Chapman) inspected the door. Mr Buswell had, on his inspection, observed dents and holes in the door, including seeing sunlight coming through a puncture. When the door was rolled up, Mr Buswell considered the pattern of damage lined-up in such a way as to indicate the door had been struck from the inside, and by a high reach forklift. Mr Sherratt and Mr Chapman were also of the view that the pattern of damage to the door was consistent with the damage having been caused by being struck from the inside when the door was fully rolled-up. No damage was observed by Messrs Buswell, Sherratt and Chapman as having been caused to the exterior of dock 77, and no external remediation work was undertaken.



• Given the height of the various MHE used at different locations on the site, Messrs Buswell, Sherratt and Chapman had cause to conclude the damage could only have been caused by a high reach forklift.



• Upon commencing an inspection of MHE to see if he could spot the cause of the damage, Mr Buswell observed a passing high reach forklift had a blue mark on it, at about the estimated height of the damage to the fully-rolled door. On closer inspection, Mr Buswell considered the blue mark was the same as the blue paint on door 77. Mr Buswell also considered there was a direct correlation, based on visual inspection and measurements, between the blue mark on RR84 and the pattern of damage on door 77. Mr Buswell took various photographs, including the damaged door, the motor area and the mark on the mast.



• A review of CCTV footage by Mr Sherratt indicated a high reach forklift had been parked in the vicinity of door 77 on the morning of 15 April 2010, before moving to the battery bay where (due to the better quality of the CCTV) the forklift then became identifiable as RR84 - with the driver being the applicant. While other high reach forklifts were in the general area at various times, no high reach forklift other than RR84 was observed by Mr Sherratt as having been sufficiently proximate to strike the door at dock 77.



• The applicant has, in any event, at all times acknowledged he parked RR84 near door 77 on the morning of 15 April 2010, after he had been asked to perform work not involving RR84.



• Various forms of record-keeping confirm that only the applicant is recorded as working with RR84 on 15 April 2010.



• Mr Chapman was satisfied, based on certain records, that dock 77 was not in use during the afternoon shift.



• While there was a discrepancy on the time coding in the respondent’s electronic records and the CCTV footage concerning the applicant’s whereabouts at the time of the alleged incident, that discrepancy had been investigated, considered and resolved Mr Chapman’s satisfaction.



• Assuming the applicant struck the door so as to cause the damage described, he would been aware of this - given the force of a collision and abrupt halt that would have been involved in, for example, damaging the roller door, dislodging the motor and displacing concrete.



• When initially interviewed by Mr Sherratt, the applicant had said he was 99 per cent sure and, in a subsequent interview, is recorded in Mr Sherratt’s notes as then having said he was 98 per cent sure he had not hit the door - allowing the view there was at least some equivocation in his denials he had struck the door.



• In all the circumstances, the respondent had grounds to believe the applicant had struck the door and knew he struck the door; and failed to report the incident, failed to tag-out and left the location in a hazardous state - with reasons for failure to report perhaps being attributable to matters including the existence of a prior final warning in October 2009 and due to potential concern about being tested for drugs and alcohol.

[100] Just as there was evidence to support the view taken by the respondent, a range of matters may tend to support a contrary view. These include evidence and submissions going to the following matters, again in no particular order of importance (and some of the matters under the sub-headings overlap and are not repeated in the different sub-headings).

Timing of damage

• There may be doubt as to whether the door was undamaged from the morning of 15 April 2010, as the respondent has inferred. Despite requests from Mr O’Donnell seeking details of the person working for the contractor who had conducted the inspection on 14 April 2010 and requesting details of the inspection reports for doors other than door 77, the respondent failed to provide this requested information.



• The respondent’s case proceeded on the basis the roller door was closed at night on 14 April 2010 and re-opened on the morning of 15 April 2010. However, there was no evidence as to who may have undertaken this closing and re-opening. The evidence established only that the door is open on the CCTV footage for 15 April 2010. (Moreover, door 77 was still open or partially open on Thursday, 15 April 2010 at approximately 10.45pm, when Mr Medic first detected the damage. If the door was still open at 10.45pm on the night of 15 April 2010, it is possible door 77 similarly was not closed on the night of 14 April 2010 and then re-opened on the morning of 15 April 2010 in the manner inferred in the respondent’s case.)



• It appears the CCTV footage viewed by Mr Sherratt was that between 4.00am and 3.00pm, albeit there are some variants on the amount of time suggested in the respondent’s case indicated a shorter time.



• The area near door 77 is a busy thoroughfare and if there had been concrete debris it may have been noticed by someone earlier than 10.45pm on 15 April 2010, although not necessarily so given that it was only about two hands-full. Similarly, the hanging motor may or may not have been noticed by a passing employee unless he or she had, like Mr Medic, looked upwards to the level of the motor after seeing the concrete on the floor.



• In CCTV footage Mr Sherratt considered was likely to be him, he is recorded using a walkway to get to the offices after the time the collision is alleged to have occurred, but he, presumably like all others, did not at that time notice any damage, such as concrete debris or “concrete hanging by a thread”.

[101] Cause of damage

• The respondent effectively proceeded on the bases that: (a) only a high reach forklift could have caused the damage; (b) the damage could only have been caused from the inside; and (c) the door was fully rolled-up when the damage occurred. For example:




- Mr Buswell said he looked at the structure of the masts, because “I knew what I was looking for because I know the height of the door, and I know which part ... of the RR hit the door”. Mr Buswell said he had found marks on other MHE, but not “blue marks in that position that lined up with the door”;

- Mr Sherratt said in connection with his viewing of the CCTV footage: “Counterbalance forklifts in my opinion are irrelevant to this matter because they could not have caused the damage to the door ...”;

- Mr Chapman’s discussion notes for the meeting on 22 April 2010 noted that only a high reach forklift could have caused the damage and that view was consistent with his evidence in the proceedings (he said he was 100 per cent sure of that);

- Mr Farr’s submissions on behalf of the respondent also proceeded on the basis that only a high reach could have caused the damage, stating: “We know no other forklift other than a high reach forklift could have caused the damage to door 77 and the door frame”.

• However, as to the assumptions that: (a) only a high reach forklift could have caused the damage; (b) the damage could only have been caused from the inside; and (c) the door was fully rolled-up when the damage occurred:




- there was uncontested evidence that counterbalance forklifts can also reach the height of a fully-rolled door. This had been the subject of a physical demonstration for the respondent during the meeting on the day the dismissal was effected. Mr Mueller submitted no one “had even bothered to take this into consideration at the time”;

- Mr Medic, the employee who had first detected the damage, had concluded and duly reported the damage had been caused from outside; and

- the evidence did not establish the door was fully rolled-up when Mr Medic first observed the damage. While the door was open, Mr Medic did not notice whether the door was fully opened or only partially.

• It was common ground that considerable force would have been needed to cause the damage in question, although the applicant appeared quite genuinely perplexed about how the damage to concrete resulting in the hanging motor would have been caused by striking the door; and Mr Medic’s observations of the door did not lead him to link the common dents in the door to the extent of the damage he observed.

[102] CCTV footage

• The respondent’s case relied on CCTV footage to exclude the presence of high reach forklifts other than RR84 in the immediate vicinity of door 77 on 15 April 2010.



• Mr Sherratt did not view all available CCTV footage for 15 April 2010 and was not looking for MHE other than high reach forklifts, as he considered them irrelevant.



• When taken in cross-examination to certain aspects of the CCTV footage Mr Sherratt could not say whether, for example, a forklift was recorded. He could not “definitively” say whether certain footage showed a forklift, but he could say there definitely was not a high reach at that point.



• In cross-examination, Mr Sherratt could see a counterbalance not far from dock 77. In re-examination, Mr Sherratt said that, having been taken in cross-examination to certain CCTV footage, it was possible there had been a counterbalance which he did not quite see in the area.

[103] Interviews etc

• Mr Sherratt did not recall whether he had spoken to any managers who had worked in the area for the relevant period of time in question. There is nothing to support a conclusion anyone was interviewed about the matter apart from the applicant.



• Mr Chapman was of the belief Mr Buswell had spoken to Mr Medic, but that did not occur. That is, there had only been the initial email exchange between Mr Medic and Mr Buswell, and no one else had spoken to Mr Medic about the matter (except for the respondent’s solicitor about a fortnight before the hearing).



• Mr Pocot, the manager at the receiving office who saw the applicant parking, was not interviewed although Mr Chapman was aware he had been in the area when the applicant was parking.



• While Mr Chapman’s evidence indicated he was aware of an email having been sent by Mr Medic, the evidence was unclear as to whether he was aware Mr Medic had reported the damage had been caused from the outside. Mr Medic was not interviewed about his conclusion the damage had been caused from the outside prior to the decision to dismiss the applicant. Mr Chapman did not agree with the proposition put to him in cross-examination that someone should have spoken to Mr Medic before the applicant was dismissed; Mr Chapman said he did not see what that would prove or disprove.



• There is nothing to indicate Mr Martin, the manager who was with Mr Medic shortly after the damage was first discovered, was interviewed.

[104] Assumptions

• Some incorrect assumptions may have coloured the investigation and the conclusions. For example:




- Mr Buswell said had discounted the possibility that MHE other than high reach forklifts could have caused the damage, albeit he said that he had, in a non-systematic way, examined most but not all the high reaches and counterbalances;

- Mr Sherratt’s review of the CCTV footage had focused on looking for high reach forklifts, to the exclusion of other MHE;

- in Mr Chapman’s view, it was a high reach that caused the damage to door 77. When asked whether the damage could have been caused by any other forklift in use at the distribution centre, Mr Chapman answered “No” and that he was 100 per cent certain of that as the profile of the damage to the door was not consistent with any other MHE;

- Mr Buswell confirmed he did not check any other doors for scratches that may have left a blue mark on RR84, as there was no need;

- Mr Sherratt had viewed only part of the CCTV footage of 15 April 2010. Footage from later in the day was not viewed on the basis that work was not conducted at door 77 around that time. Equally, however, work with MHE was not being conducted at door 77 at the time the applicant was alleged to have struck the door. Door 77 is near busy offices and employees come and go from the area, including when driving and parking MHE.

[105] Damage from outside

• Mr Medic’s inspection and conclusion that the damage had been caused from the outside were informed by his qualifications in mechanical engineering and by virtue of his experience in maintenance and repairs on roller doors for the respondent (there was no evidence as to the qualifications of the other employees). Nonetheless, Mr Medic’s evidence made it plain he did not profess to have investigative expertise that would be necessary to determine the cause of the damage and he did not discount the possibility the door could have been damaged from the inside; however, he did have his own opinion on the matter, based on what he had observed on 15 April 2010. (Mr Medic was measured in his evidence and was a quite disinterested observer in as much as he happened to be the first employee to inspect and report the damage.) Equally, Mr Buswell did not have any particular expertise in such matters; and nor did Mr Sherratt or Mr Chapman - but they had discounted the possibility the door may have been damaged from the outside. For his part, the applicant could not understand how his alleged striking of the door could have caused the damage to the area near the motor. In this respect, there was no expert evidence about the damage and causation in the proceedings - only inexpert and competing views from different employees about damage and causation.

• When shown certain photographs, Mr Medic did not consider the image was consistent with the damage he had observed on the top of the right-hand side of the door. He considered it was possible that another photograph was consistent with the damage he had observed, but could not be definite. Mr Medic was shown a further photograph, but he had identified the angle from which the photograph was taken, despite a contrary proposition as to the angle that was put to him. Mr Medic said he did not “have much confidence in the photos”, in circumstances where he could not see the “full picture”. Moreover, he could not remember having seen the particular mark/indentation shown to him in a photograph. On Mr Medic’s observation on 15 April 2010, there was nothing wrong with the roller door itself - which is why he had not reported damage to the door; he was surprised the door itself had later been replaced.



• On 15 April 2010, Mr Medic slowly manually-lowered the door using a chain, closing it. On 16 April 2010, Mr Buswell re-opened the door (i.e. when he first noticed the alignment of marks), albeit it was unclear whether this re-opening was done manually with the chain or by engaging the motor. The door may have been lowered, at least once again, given Mr Chapman’s evidence indicated he saw the “roller door at Door 77 and with the door closed”. Again, it is unclear whether this lowering, allowing Mr Chapman to see the roller door damage described in his evidence, was performed manually or by engaging the motor. As I have noted, Mr Medic could not be certain whether the photographs shown to him recorded the same damage he initially had observed when he concluded and reported the damage as having been caused from the outside. If the door had been opened and closed on 16 April 2010, as the evidence suggested, either manually or by engaging the motor, the already damaged concrete structure/hanging motor may have sustained further damage - thereby potentially explaining why the photographs shown to Mr Medic did not necessarily accord with his recollection of the damage first observed, being damage he concluded had been caused from outside.

[106] Blue mark

• Mr Mueller squarely questioned the reliability of the photographs of the forklift showing marks on the mast. When asked by Mr Mueller whether these were actual photographs of RR84, Mr Buswell initially answered: “Well, I can’t say that it isn’t RR84”. However, I have no cause to consider the photographs were taken other than in the way described in Mr Buswell’s evidence.



• The photographs of the mark do not show the colour of the mark as being blue. Two of those tendered in evidence have more of a silvery-white appearance, rather than being blue. Nonetheless, this is likely due to the quality of the photographs in circumstances where Mr Buswell’s evidence indicated that this was the blue-coloured mark he had photographed on the mast of RR84.



• Mr Buswell has no expertise in paint analysis, but considered the mark on the mast was not consistent with the colour of the Chep pallets. For his part, Mr O’Donnell, although also having no expertise, thought the colour of the blue paint used for the roller doors at the distribution centre was quite similar to that on the Chep pallets.



• The CCTV footage of the applicant entering the battery bay on 15 April 2010 does not show a blue mark of the type observed by Mr Buswell on RR84 on 16 April 2010, albeit it must be said the quality of the footage may not be sufficient to allow the identification of any such mark on the forklift if it had been there at that time.



• On 16 April 2010, Mr Buswell saw RR84 being driven by an unidentified driver. There was no evidence to suggest the unidentified driver had noted the blue mark as part of his or her pre-operational checks; and that driver was not asked where he or she had been working with RR84 and whether, for example, that driver knew about the mark on the mast.



• The photographs show three strikes apiece on the mast and the door suggesting a similarity, but the photographs are not to scale.



• On inspection of RR84 on 22 April 2010, there was no blue mark, albeit, if there had been blue roller door paint on it resulting from an earlier collision with door 77, it may have fallen away by that date.

[107] Damage to door

• Mr Medic said there were no strike marks, major markings, big indentations or cuts on either the inside or outside of the door, although he had been trying to find any major markings when “trying to work out” the cause of the hanging motor and concrete debris.



• The photographic evidence of door damage does not show the whole door. Mr Buswell also confirmed the photograph is not that of the hole he observed.



• Although Mr Buswell was not cross-examined about the measurements he took, the dates on which he said he took the measurements appear to be incorrect - and, thus, may leave open questions about measurements.

[108] Noise of collision

• If the applicant had struck the door at the time alleged and caused the extent of the damage described, the noise of a collision may have been heard in the nearby offices. There was no evidence anyone heard anything, but it is a noisy workplace with tooting horns and the like. Equally, if RR84 had struck door 77 it may have been, for example, a dull noise - which might not, in any event, have attracted any attention.

[109] Interviews with the applicant

• At the initial interviews, Mr Sherratt had put insupportable propositions to the applicant, the effect of which was to suggest the CCTV footage showed RR84 cause the damage and that the driver had looked back to observe what had occurred. Although Mr Sherratt put matters to the applicant in this way, and the applicant acknowledged he had brought his tines down hard, the applicant said he was 99 per cent sure he had not struck the door. At the next meeting, Mr Sherratt’s notes record the applicant as then expressing 98 per cent certainty.



• I tend to prefer the contemporaneous note made by Mr Sherratt rather than the evidence of the applicant in this respect, but I do not think much turns on these types of turns of phrase. For example, Mr Sherratt was shown part of the CCTV footage with back-shots of two persons. When Mr Sherratt was asked who was shown on that footage, Mr Sherratt answered “It looks like me, I couldn’t be 100 per cent sure”, but later confirmed it was him. Similarly, Mr Chapman said in evidence he was 100 per cent sure that only a high reach forklift could have caused the damage, but the undisputed evidence of a demonstration with a counterbalance reaching the height of the rolled door contraindicated that percentage of certainty.



• The discussion notes prepared by Mr Chapman contain matters for discussion with the applicant which may be regarded as containing some inaccurate or insupportable propositions or assumptions, or both.

[110] In my assessment, the evidence, taken as a whole, does not support the respondent’s submission there was overwhelming circumstantial evidence that leads to a probable conclusion the applicant was driving the forklift when it came into contact with the door. Mr Farr submitted it was more probable than not the applicant caused the damage and knew he had caused the damage, but I have not been so satisfied on the evidence adduced in the proceedings. I have considered Mr Farr’s submissions that employee protestations of innocence need not be accepted, but, in the end, I have not been satisfied as to how or when the damage first detected by Mr Medic was caused. I have not been satisfied it was more probable than not the applicant caused the damage; and I consider there is substance to many of the criticisms of the investigative and interview processes which led the respondent to so infer and conclude in the first instance. Although Mr Mueller advanced a number of alternative scenarios for the cause of the damage, which Mr Farr described as a “smokescreen”, it is unnecessary to consider those in circumstances where they would, on the evidence, be inconclusive. Moreover, in circumstances where it is was common ground that an accident would not of itself necessarily lead to disciplinary action, I have not been satisfied the applicant would have had cause to fail to report such an incident based, for example, on the existence of the October 2009 warning (which I accept had been the subject of a down-grading) or for fear of drugs and alcohol testing.

Harsh, unreasonable or unjust

[111] Valid reason: I have not been satisfied there was a valid reason for the dismissal related to the applicant’s capacity or conduct. It was common ground the respondent bears the onus to establish the alleged misconduct occurred, on the balance of probabilities. Based on the balance of probabilities and to the standard elaborated by reference to authorities in the respondent’s submissions (rather than the higher standard described by Mr Mueller), I am not, on a consideration of all the evidence and submissions thereto, satisfied the respondent has established the alleged misconduct occurred. While I have outlined above some of the competing views available on the evidence, the nature of the evidence advanced by the respondent was not, all things considered, such as to lead me, on the balance of probabilities, to the conclusion it was the applicant who caused the damage in question in the manner posited by the respondent. If that has not been established, then, collaterally, the decision to dismiss the applicant for failing to report the incident, failing to tag-out the forklift and leaving the site in an unsafe state has not been made out as a valid reason for dismissal.

[112] Notified of reason: While Mr Mueller criticised the lack of a letter of termination formally outlining the reasons for the dismissal, I am satisfied the applicant was notified of the reason for the dismissal given the discussion notes that were provided to him on 22 April 2010 which indicated the outcome as being termination of employment.

[113] Opportunity to respond: I am satisfied the applicant was given an opportunity to respond to the reasons relied on by the respondent for the dismissal at the meetings, albeit certain matters put to him were insupportable and acknowledged to be so. It is unclear whether the perceived significance of the blue mark was actually put to the applicant (i.e. it is not in the discussion notes which formed the basis for the interview), albeit Mr Chapman’s testimony indicated it was part of the photographic evidence on which reliance was placed during the meeting.

[114] Support person: The applicant had union representation at each of the three meetings preceding the dismissal.

[115] Warned about unsatisfactory performance: The applicant had a history of counselling about absenteeism and performance-related issues. He had also been given a warning in October 2009 about matters not dissimilar to those which formed the basis of the decision to dismiss the applicant.

[116] Size of the employer’s enterprise: The respondent employs a large number of employees. While Mr Mueller submitted it would have been appropriate for an employer the size of the respondent to obtain external expert advice concerning paint analysis and the like prior to dismissing the applicant, I would not be minded to accept this submission. As Mr Farr submitted, the NUW’s submissions would impose a standard in respect of workplace investigations beyond those that ordinarily would apply in managing a workplace. However, I do accept there may have been deficiencies in other aspects of the procedures adopted, such as in failing to interview Mr Medic. On the evidence, it was unclear as to who was, in effect, in charge of the investigation.

[117] Absence of dedicated human resources expertise: The respondent has dedicated human resource management expertise and the Human Resources Manager, Mr Stein, was involved in the processes preceding the applicant’s dismissal.

[118] Any other relevant matters: These matters are considered elsewhere.

Remedy

[119] I am satisfied the NUW has made out a case the applicant’s dismissal was harsh, unjust and unreasonable. I am satisfied the applicant should have a remedy for unfair dismissal and that the appropriate remedy in this case is reinstatement by reappointing the applicant to the position in which he was employed immediately before the dismissal. I also consider it appropriate to make an order to maintain the continuity of the applicant’s employment. I further consider it is appropriate to make an order to cause the respondent to pay to the applicant an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal. The evidence indicated the applicant has not, despite his endeavours, been able to find alternative employment and, thus, there was no evidence of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement. Nor was there anything before me as to the amount of any remuneration reasonably likely to be so earned by the applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[120] While I have fully considered the evidence and submissions about matters that would tend, in the respondent’s view, to militate against the remedy of reinstatement, those reasons focused in part on what compendiously might be described as a break-down in the employment relationship for reasons associated with a lack of trust and confidence - a “genuine concern” as Mr Farr put it - attendant upon the conclusion the applicant had failed to report, failed to tag-out and left the site in an unsafe state consequent upon a collision with the door. However, in circumstances where the respondent has not established its case in that respect, it follows that the reasons relied on by the respondent as to trust and confidence-related factors effectively are somewhat diminished; and I accept the applicant is an experienced driver who has been properly trained to apply the appropriate procedures. Mr Chapman’s evidence made it plain the applicant had been dismissed on the basis of the incidents alleged to have occurred on 15 April 2010, albeit he had reviewed the employment records more generally. As to this, Mr Farr submitted the evidence showed the applicant was “not a high performing clean skin employee”. In this respect, the submissions for the respondent referred to the applicant’s general history of absenteeism-related and performance-related counselling in relation to the question of reinstatement as a remedy, which Mr Farr submitted should be ruled out in this case. I have considered the absenteeism-related counselling, including matters such as the applicant’s responses thereto in explanation, e.g., his “canser”, “keimotherapy” and diabetes. The record of performance-related counselling needs also to be considered in the context of the responses the applicant provided, as well as against the fact his employment records also show performance-related commendations. Lastly, the applicant is aged 58 years and has had a long period of employment with the respondent (he had been employed at the distribution centre since it opened in February 1999). While the applicant has had a chequered employment history with the respondent, matters including the applicant’s age and health status, and the fact he has been unable to find alternative employment since his dismissal, and other matters highlighted by Mr Mueller, tend also to support a conclusion that in legislation with a primary emphasis on reinstatement this would be a more appropriate remedy than compensation given my finding on the substantive claim of unfair dismissal.

[121] I direct the parties to confer about the form of orders to give effect to my conclusions concerning remedy. Those orders should be filed by the NUW within seven days from the date of this decision. In the event agreement cannot be reached on the form of draft orders, the matter may be relisted on the application of either party.

COMMISSIONER

Appearances:

S. Mueller, National Union of Workers, NSW Branch, for the applicant.

A. Farr, solicitor, for the respondent.

Hearing details:

Sydney

2010

August 2, 3, 4, 13.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR500847>