Paul Bunce v Pmfresh Pty Ltd
[2024] FWC 1577
•17 JUNE 2024
| [2024] FWC 1577 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Paul Bunce
v
Pmfresh Pty Ltd
(U2024/1933)
| COMMISSIONER LIM | PERTH, 17 JUNE 2024 |
Application for an unfair dismissal remedy – valid reason – application dismissed.
Introduction
On 22 February 2024, Mr Paul Bunce (Bunce) applied to the Fair Work Commission alleging that he was unfairly dismissed from his employment with Pm Fresh Pty Ltd (Respondent).
Mr Bunce’s employment as a Forklift Operator with the Respondent commenced in October 2020 and ended by way of dismissal on 13 February 2024. The Respondent terminated Mr Bunce’s employment for serious misconduct after Mr Bunce had an incident with a forklift and admitted to smoking marijuana the night before.
I held a determinative conference on 29 May 2024 to hear the matter. At the determinative conference I granted permission to Mr Tim Golinski of SLG Services to represent the Respondent.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
There is no contest, and I find that:
a)Mr Bunce had completed the minimum employment period and was covered by the Storage Services and Wholesale Award 2020. Mr Bunce was thus protected from unfair dismissal pursuant to s 382 of the Fair Work Act 2009 (Act);
b)Mr Bunce’s application was made within the time prescribed in s 394(2) of the Act;
c)The Respondent was not a small-business employer within the meaning of the Act; and
d)The dismissal was not a case of genuine redundancy.
Having considered the relevant evidence and submissions of the parties, I find that there was a valid reason for Mr Bunce’s dismissal, and he was not unfairly dismissed.
My detailed reasons follow.
Evidence
Mr Bunce gave evidence in support of his case. The Respondent called the following witnesses:
·Mr Golinski, HR Consultant. Mr Golinski was not present at the material events in this matter, and so his evidence had low probative value.
·Mr Ryan McGeown, Warehouse Manager – Mr McGeown is in charge of the warehouse operations, which includes the forklift operators.
·Mr Daniel Warbrook, Site Operations Manager.
Mr Bunce, Mr McGeown and Mr Warbrook largely agreed as to events that occurred, though the witnesses naturally emphasised different aspects. I found all three to be generally honest in giving their evidence. However, there was divergence between Mr Bunce, Mr Warbrook and Mr McGeown in relation to things that were said in a meeting on 8 February 2024. I found Mr Warbrook’s evidence to be overall consistent and credible, whereas Mr Bunce at times was not forthright in his evidence. Accordingly, where there is opposing evidence, I have preferred the evidence of Mr Warbrook.
2.1 Bunce’s employment
On 3 November 2023, Mr McGeown and Mr Matt O’Brien met with Mr Bunce to warn him for issuing out-of-date product. Mr O’Brien is a Warehouse Supervisor with the Respondent.[1] The Employee Meeting Record for this meeting details that Mr McGeown spoke to Mr Bunce about the importance of only issuing products that are within the use-by-date and are safe to be used in the Respondent’s products.[2] The Record is signed by Mr Bunce. Mr Bunce acknowledged during the determinative conference that the Record was accurate and that he did sign it.[3]
On 21 December 2023, Mr McGeown spoke with Mr Bunce after receiving complaints from other employees that Mr Bunce had driven his forklift in an unsafe manner. Mr McGeown explained to me at the determinative conference that the work area is quite small, and the issue was Mr Bunce was turning quickly when driving a forklift in a confined space. This led to him coming close to hitting furniture and people who were working in the area.[4]
Mr Bunce agreed that he had been driving his forklift in such a manner, but there were no other workers close to him. Mr Bunce however also said that there was one employee who was in the work area who he believed made a complaint to Mr McGeown.[5]
On 4 January 2024, Mr McGeown and Mr O’Brien spoke with Mr Bunce about his teamwork. Specifically, it had been noted that he didn’t want to help with cleaning up. Mr Bunce’s evidence is that he does not recall this conversation.[6]
On 25 January 2024, Mr McGeown and Mr O’Brien met with Mr Bunce again to warn him regarding his performance and recent conduct where he had changed the delivery time of a truck from 4:30am to 6:00am. The Employee Meeting Record notes that this is the third time in a month that either Mr McGeown or Mr O’Brien had spoken to Mr Bunce regarding his performance, albeit, for different performance issues.[7] The Record further notes that Mr McGeown said to Mr Bunce that he did not want this trend to continue, or that next time there may be more serious disciplinary actions. Mr Bunce’s response is recorded as, “Paul said that there would be more and that was just his personality”. This Record is also signed by Mr Bunce.
Mr Bunce agreed that the Record accurately captured what was said during the meeting.[8] Mr Bunce did say he didn’t recall if he said the words, “that was just [my] personality”, but agreed that he said there would be more incidents. Mr Bunce’s evidence is that he said that due to the company not running the right way. However, he acknowledged that he didn’t say this to Mr McGeown and could not recall the exact words he used.[9]
2.2 The incident
The Respondent provided CCTV footage of an incidence involving Mr Bunce on 8 February 2024 at approximately 6:30am.
The footage shows that Mr Bunce was operating a forklift to remove pallets of vegetables from racking shelves to place them on the floor nearby. During this task, another employee came into the area. Mr Bunce reversed the forklift by 5 or so metres to talk to the employee. The forklift had a full load of pallets at the time. Mr Bunce spoke to the other employee for no more than 10 seconds.
Mr Bunce then drove the forklift forwards. The footage shows Mr Bunce’s forklift colliding with the pallets he had previously placed on the floor. It is clear from the footage that the forklift load obscured Mr Bunce’s line of sight and he could not see the pallets on the floor. This is despite the stacked pallets being very visible (I would estimate the stacked pallets on the floor to be at least 1.5 metres high and 1 metre across).
Mr Bunce’s evidence is that when his co-worker spoke with him, it distracted him, and he forgot where he had previously placed the pallets.
I asked Mr Bunce if it was normal to operate a forklift in such a way with the load obscuring his line of sight. Mr Bunce’s evidence was that it is normal to drive forward with the load high. Mr Bunce did not directly answer my question of how one should operate the forklift when there is a load obscuring line of sight.[10]
Mr McGeown’s evidence is that given Mr Bunce reversed several metres back from his original spot at the shelves to speak with his co-worker, when he resumed his task of unracking pallets, he should have turned his forklift around and reversed the forklift back to the shelves.[11] With the rear of the forklift unobstructed by pallets, Mr Bunce could have had a clear line of sight this way, in case someone else came into the room while Mr Bunce was speaking with his co-worker.
Mr Bunce disagreed with this on the basis that he knew there was no one else in the room and he had simply forgotten that the pallet was on the floor.[12]
Another co-worker heard the collision, who went to inform Mr McGeown. Mr Bunce and Mr McGeown filled out incident reports.[13]
At approximately 8:30am, Mr McGeown and Mr Bunce discussed the incident. Mr McGeown asked Mr Bunce if he had used drugs recently. Mr Bunce confirmed that he had smoked marijuana the night before at approximately 6pm.[14] At that point, Mr McGeown went to get Mr Warbrook to join the meeting. Mr Warbrook asked Mr Bunce to confirm that he had smoked marijuana the night before.
Mr Warbrook’s evidence is that he told Mr Bunce that he would be suspended with pay and sent home. Mr Warbrook also said that he made a statement to the effect of, “Look, because you said you smoked last night, there’s no need to send you for a drug test because you’re going to come back positive.” Mr Warbrook’s evidence is that Mr Bunce agreed with this.[15] Mr McGeown agreed with Mr Warbrook’s recollection.[16]
Mr Bunce denied Mr Warbrook’s account and his evidence is that nothing about taking a drug test was discussed.[17] I found Mr Warbrook to be the more credible witness and so I accept that Mr Warbook did make the comment regarding the drug test.
Mr Bunce was sent home. Mr Bunce then attended a follow-up meeting on 12 February 2024 with Mr McGeown and Mr Warbrook.
Mr Warbrook’s recollection of the meeting is that:
·he asked Mr Bunce follow-up questions regarding his use of marijuana, such as how long Mr Bunce had been smoking marijuana for, to which Mr Bunce told him 35 years;
·Mr Bunce said he self-medicates for pain;
·Mr Bunce said that he has never used marijuana prior to coming to work, and that he doesn’t use other drugs other than alcohol;
·he asked Mr Bunce if there was anything else he wanted to add to the investigation. Mr Bunce replied that he’d had a toothache for the past week, that he hadn’t had a break in two and-a-half years, and that he was having some issues at home.
·Mr Bunce finished with words to the effect, “I still want to keep my job, even though this place is a shithole”.[18]
Mr Bunce agreed with Mr Warbrook’s account of the meeting.[19] Mr Bunce was sent home after the meeting.
Mr Bunce, Mr Warbrook and Mr McGeown met again on 13 February 2024. Mr Warbrook informed Mr Bunce that the Respondent had made the decision to terminate his employment.[20]
The Respondent issued a termination letter to Mr Bunce the next day, which reads:
“Dear Paul,
This letter confirms our meeting and discussions yesterday and the companies decision to terminate your employment for serious misconduct, also in attendance was Ryan McGeown, you declined our offer of a witness.
As you are aware this follows an incident [on] Thursday, 8th February with the forklift and your admission that you had taken an illegal substance the night before. You acknowledged at our first meeting that you were aware of the company policy in relation to drugs and alcohol, you also stated you are a regular user of marijuana.
Following this meeting I advised you that you were suspended with pay and I would review the matter and meet with you the next day. This meeting was then postponed to Monday 12th February 2024 and you were offered to bring along a support person or witness.
At the meeting on Monday 12th February, you chose not to bring a witness. I asked you how long you had been a regular user, to which you replied for the past 35 years and that you use it to self-medicate for chronic pain, I asked if you use anything besides marijuana and you replied no only alcohol. When asked if you wanted to add anything else you advised that you have been having troubles at home and have had a recent tooth ache, you also claimed the incident took place because you were doing a job that someone should have done the previous day and that you haven’t had a holiday for two and a half years and finally, you want your job and enjoy working here. We then concluded the meeting and I advised we would have [a] meeting on Tuesday 13th February to advise the outcome of the investigation.
At yesterday’s meeting you once again decided not to have a witness with you, I again reminded you of the seriousness of what had happened, you did not have anything further to add. At that point I confirmed the companies [sic] decision to terminate your employment for serious misconduct effective immediately. I then also offered the use of the Employee Assistance Program if you require with the details attached to the email accompanying this letter.
All outstanding accrued entitlements and wages will be paid to you in the next pay run.
Regards,
Daniel Warbrook
Site Operations Manager”[21]
Relevant legislation
Section 385 of the Act provides that:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy.”
Section 387 of the Act requires me to take into account the below matters in determining whether Bunce’s dismissal was harsh, unjust or unreasonable:
“Criteria for considering harshness etc.
“ In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant.”
Consideration of the above criteria is mandatory.[22] I set out my consideration below.
Submissions and consideration
4.1 Section 387(a) – was there a valid reason for the dismissal related to Bunce’s capacity or conduct?
A valid reason is one that is “sound, defensible or well-founded”[23] and should not be “capricious, fanciful, spiteful or prejudiced”.[24]
Where the reason for dismissal relates to conduct, the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal actually occurred is to be determined based on the evidence,[25] and it is to be assessed on the balance of probabilities[26] taking into account the gravity of the allegations.[27] Where the reason for dismissal relates to capacity, the appropriate test is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[28]
Mr Bunce made the following short written submission on why his dismissal was unfair:
a)He smoked marijuana in his own time.
b)He was not drug tested on the day of the incident so there was therefore no proof that he was under the influence.
c)His use of marijuana has not affected his ability to come to work previously.
d)The permitted speed of forklifts has gone from 15km/h to 8km/h. This is the slowest speed Mr Bunce has ever driven forklifts in over 10 years, and it is almost impossible to injure anyone at this speed.[29]
e)As he has been a long-term user of marijuana, he has higher tolerance for marijuana.
At the determinative conference, Mr Bunce further submitted that he had worked for the Respondent for a long time and had been a good and committed employee. Mr Bunce further submitted that he had always come in on time, stayed back where required and had performed more work compared to other employees.[30]
On his use of marijuana, Mr Bunce gave the following evidence:
·He has not been medically prescribed marijuana to treat a diagnosed condition.[31]
·On the night before the incident, he smoked one joint.[32]
·He used to regularly smoke two to three joints each day after work, however, a few months prior to his termination, he had cut down to around one joint a day.[33]
The Respondent submits that Mr Bunce breached the company’s drug and alcohol policy and that this constitutes serious misconduct.
The parties provided a copy of the drug and alcohol policy that applied when Mr Bunce commenced his employment with the Respondent, which is dated August 2019 (2019 D&A Policy).[34] The 2019 D&A Policy relevantly provides that:
·Employees taking prescription/pharmacy drugs must do so in accordance with the instructions of their medical practitioner and normal directions for any such drugs.
·Where prescription medication could potentially affect the ability of the worker to perform their normal work duties safely, they must notify their immediate supervisor so that corrective control strategies can be implemented; failure to advise may constitute misconduct.
·A worker who is assessed to be affected by drugs or alcohol will not be allowed to return to work until they are unaffected.
·Attending work under the influence of drugs or alcohol will be considered serious misconduct and may lead to disciplinary action including dismissal.
The Respondent also provided a copy of its current drug and alcohol policy that was issued on 11 September 2023 and specifically applies to operators of forklifts and mobile equipment (2023 D&A Policy).[35] The 2023 D&A Policy relevantly provides:
“When a manager forms the reasonable opinion that a worker may be affected by alcohol or illicit drugs, they are to:
·Ensure the worker does not commence work, or where the worker has already commenced work, ensure that the work stops work immediately.
·Discuss with the worker whether they have consumed illicit drugs or alcohol or whether they are presently taking prescription pharmacy dispensed medication.
·Wherever possible, carry out testing as soon as possible to ascertain if the worker is affected by illicit drugs or alcohol.
·Follow relevant disciplinary procedures if a positive test is returned.
Drug and alcohol testing is mandatory after a vehicle/forklift incident.
A breach of the policy, including a single breach, can result in disciplinary action up to and including termination of employment.”
Mr Bunce’s evidence is that he never received or saw a copy of the 2023 D&A Policy, which the Respondent does not contest.[36]
Mr Bunce is correct that he was not drug tested on 8 February 2024 following the forklift incident. He makes the argument that without the drug test, the Respondent could not prove that he was under the influence or impaired on the day.
There are certainly different views on drug and alcohol impairment in the workplace and a variety of approaches to managing it. The reality is that there is no widely accessible, on the spot method to accurately test for drug and alcohol impairment in the workplace. Instead, workplaces will test for the presence of a substance in an employee’s system at a point in time using either saliva or urine testing.
Arguably, the Respondent was entitled to reach the view that Mr Bunce was under the influence or impaired on 8 February 2024, for three reasons. The first is that Mr Bunce was open about the recency and regularity of his marijuana usage. The second is my finding Mr Bunce did agree with Mr Warbrook’s comment that there was no need to undergo a drug test as it would return a positive result. As already outlined, I found Mr Warbrook’s evidence in this regard more credible. And the third is that it is clear that Mr Bunce’s concentration and memory was affected that day, given that he had forgotten where he had placed a pallet down a mere 30 or so seconds beforehand.
Also arguably, the Respondent did not comply with the 2023 D&A Policy, as it states that drug and alcohol testing is mandatory after a forklift incident.
However, even without the issue of Mr Bunce’s contested impairment, I would have found that there was a valid reason for dismissal. This is because this was Mr Bunce’s second incidence of unsafe forklift operation. I disagree with Mr Bunce that the incident on 8 February 2024 was not serious. Mr Bunce was willing to drive around the warehouse with his vision obscured. This is contrary to clear literature from Safe Work Australia, which notes that when operating a forklift, a person should keep a clear view of the way ahead and to either use a spotter or drive in reverse if your vision is blocked.[37] Failure to comply with safe standards when operating machinery like a forklift is how avoidable workplace injuries and fatalities occur. Mr Bunce’s assertion during the determinative conference that there was no prospect that he could have hit someone if they had come out onto the work area because he would have seen them rings hollow when he didn’t see the stack of pallets on the floor.
The seriousness of the incident on 8 February 2024, combined with Mr Bunce’s prior incident where he was warned for driving too fast in a forklift and his unfortunate submission that it is nearly impossible to injure someone when driving a forklift at 8km/h demonstrates Mr Bunce’s unsatisfactory understanding of workplace safety.
I find that on the evidence that Mr Bunce’s conduct constitutes serious misconduct and there was a valid reason for Mr Bunce’s dismissal.
4.2 Section 387(b) and (c) – notification of valid reason and opportunity to respond
An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss is made.[38] Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.[39]
Based on the evidence, it appears that the Respondent conducted an investigation into Mr Bunce’s conduct, which involved questioning Mr Bunce on 8 and 12 February. The Respondent then reached the view to terminate Mr Bunce, which they informed him of on 13 February 2024. I find that the Respondent did not notify Mr Bunce of their findings with regards to the investigation, nor did they give Mr Bunce the opportunity to respond before they reached the decision to dismiss him.
4.3 Section 387(d) – any unreasonable refusal by the Respondent to allow a support person
The parties agree that Mr Bunce was given the opportunity to bring a support person to each meeting but declined to do so.[40] This is a neutral consideration.
4.4 Section 387(e) – warnings concerning performance
As outlined in [10] – [15] of this decision, Mr Bunce did not contest that he has received verbal warnings for performance-related issues.
4.5 Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed
The Respondent employs 200 employees and engages an external HR service.[41] I find that this is a neutral consideration.
4.6 Section 387(h) – any other matters the Commission considers relevant
Neither party brought any other matters to my attention. I am satisfied that there are no other relevant matters for me to consider.
Conclusion
I have made findings in relation to each matter in s 387 as relevant to this case. The considerations in s 387(a) and (e) weigh in favour of a finding that the dismissal was fair whilst the consideration in s 387(b) weighs against such a finding. The other considerations in s 387 are neutral.
Having considered the criteria in s 387, I am not satisfied that Mr Bunce’s dismissal was harsh, unjust or unreasonable. I find that though the Respondent should have properly notified Mr Bunce of their findings before making the decision to terminate, the procedural deficiencies are outweighed by the reason for dismissal. Accordingly, Mr Bunce’s application was not harsh, unjust or unreasonable and I dismiss his application for an unfair dismissal remedy.
COMMISSIONER
Appearances:
P Bunce, Applicant.
T Golinski for the Respondent.
Hearing details:
2024.
Perth:
29 May.
[1] Transcript, PN87.
[2] Digital Court Book (DCB), page 152.
[3] Transcript, PN101-102; PN108.
[4] Ibid, PN112.
[5] Ibid, PN114.
[6] Ibid, PN134-136.
[7] DCB, page 153.
[8] Transcript, PN137; 150.
[9] Ibid, PN140-PN146.
[10] Ibid, PN174-PN180.
[11] Ibid, PN185.
[12] Ibid, PN189.
[13] DCB, page 154-155.
[14] Transcript, PN239-PN245.
[15] Ibid, PN255-PN257; PN263.
[16] Ibid, PN275.
[17] Ibid, PN261.
[18] Ibid, PN301.
[19] Ibid, PN303.
[20] Ibid, PN381-PN385.
[21] DCB, pages 13-14.
[22] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14].
[23] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371, [373].
[24] Ibid.
[25] King v Freshmore (Vic) Pty Ltd Print S4213, [24].
[26] Edwards v Justice Giudice [1999] FCA 1836, [6] – [7].
[27] Briginshaw v Briginshaw [1938] 60 CLR 336.
[28] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, [62], [(2000) 98 IR 137].
[29] DCB, page 11.
[30] Ibid, PN352.
[31] Ibid, PN392-PN395.
[32] Ibid, PN397.
[33] Ibid, PN486-PN501.
[34] DCB, page 15.
[35] Ibid, page 158.
[36] Transcript, PN320-PN331.
[37] Forklifts Information Sheet for Owners and Operators, Safe Work Australia, <Forklifts Information Sheet for owners and operators (safeworkaustralia.gov.au)>.
[38] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [70] – [73], [(2000) 98 IR 137].
[39] Ibid, [75].
[40] Transcript, PN312-PN315.
[41] DCB, pages 43-44.
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