Nguyen v IGA Distribution (Vic) Pty Ltd

[2011] FWA 3354

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cong Nguyen
v
IGA Distribution (Vic) Pty Ltd
(U2010/13014)

COMMISSIONER BISSETT MELBOURNE, 3 JUNE 2011

Application for unfair dismissal remedy - reinstatement.

Background

[1] In Nguyen v IGA Distribution (Vic) Pty Ltd 1(the principal decision), I found that the termination of Mr Nguyen’s employment was harsh, unjust or unreasonable. In so deciding I also found that:

• Mr Nguyen did not deliberately cause the collision between his forklift and that of Mr Deralas;



• Mr Nguyen caused the collision by his recklessness and carelessness, driven by his belief that he needed to make up lost time or he might be subject to a warning;



• IGA is entitled, and was correct, to treat the collision seriously.



• Where an incident with health and safety implications occurs it may well provide a valid reason for dismissal but the fact that there are health and safety implications does not, in and of itself, provide a valid reason for the dismissal.

[2] I determined that I should hear further from the parties on the matter of reinstatement of Mr Nguyen to his previous employment. In doing so I found that there was ‘no evidence to suggest that there has been such a break down in trust and confidence between IGA and Mr Nguyen that reinstatement should not be considered. This much is clear from the evidence.’ 2

[3] I also found that ‘I see no reason why Mr Nguyen should not be reinstated. I do not consider however that I have adequate information before me on which to determine if he should be reinstated into the position he held prior to the termination of his employment or if there are other employment options for him at the site at Laverton.’ 3

[4] Matters associated with the reinstatement of Mr Nguyen were heard by me on 16 and 17 May 2011.

The evidence

[5] Evidence was given in these proceedings by:

• Mr Nguyen (the Applicant);



• Mr Ahmet (storeman and NUW site delegate);



• Mr Henczel (Perishables Warehouse Manager);



• Mr Brown (State Distribution Manager, IGA);



• Mr Josevski (supervisor);



• Mr Baldwin (storeman); and



• Mr Retallack (storeman).

[6] Mr Nguyen’s evidence is that he has continued to look for work since the termination of his employment. He agreed that he would be willing to participate in training on safe forklift operation if he were reinstated. Mr Nguyen’s evidence is that he did not assault Mr Josevski although he did come very close to him.

[7] Mr Ahmet gave evidence that he had a conversation with Mr Henczel in which Mr Henczel indicated that the company was looking at putting on another permanent employee or hiring more casual employees. Mr Ahmet gave evidence that Mr Josevski told him twice prior to the incident subject to this decision that he intended to resign and that he had witnessed Mr Josevski raising his voice and being aggressive in the past. Mr Ahmet also gave evidence of observing Mr Nguyen and others driving…