Pegler v G James Extrusion Co Pty Ltd
[2024] FedCFamC2G 103
•9 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pegler v G James Extrusion Co Pty Ltd [2024] FedCFamC2G 103
File number(s): BRG 315 of 2020 Judgment of: JUDGE MANSINI Date of judgment: 9 February 2024 Catchwords: INDUSTRIAL LAW – Fair Work – alleged contravention of general protections provisions of Fair Work Act 2009 (Cth) – applicant claims employment dismissed by way of witch hunt because of complaints and inquiries he made – where adverse action and various exercise of workplace rights admitted but respondent employer maintained dismissal was motivated only by applicant’s serious misconduct involving a physical assault – finding that reverse onus not discharged – question of what (if any) relief to be heard separately. Legislation: Fair Work Act 2009 (Cth) ss.340, 341, 342, 360, 361, 365, 372, 539, 545
G James Extrusion Co and Remelt Enterprise Agreement 2016
Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32
Harrison v In Control Pty Ltd [2013] FMCA 149
Messenger v Commonwealth of Australia (Represented by Dept of Finance) [2022] FCA 677
Morley v Monza Imports Australia Pty Ltd [2018] FCCA 622
Qantas Limited v Transport Workers’ Union [2023] HCA 27
Wong v National Australia Bank Limited [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 161 Date of last submission/s: 3 April 2023 Date of hearing: 1 - 3 and 13 February 2023 Place: Brisbane The Applicant: Appearing in person Counsel for the Respondent: Mr P Trout Solicitor for the Respondent: G. James Australia Pty Ltd Acn 010 823 542 ORDERS
BRG 315 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEAN PEGLER
Applicant
AND: G JAMES EXTRUSION CO PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
9 FEBRAURY 2024
THE COURT ORDERS THAT:
1.The application is allowed to the extent of the finding that the Applicant was dismissed from his employment with the Respondent on 23 January 2020 in contravention of s.340(1)(a)(ii) and the relief to be granted (if any) because of that contravention.
2.By 4.00pm on 12 March 2024, the Applicant is to file and serve evidence and submissions in support of the relief sought.
3.By 4.00pm on 4 April 2024, the Respondent is to file and serve evidence and submissions in response to the relief sought.
4.The question of what (if any) relief may be granted will be fixed for hearing on a date and time to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
This matter involves dismissal from employment allegedly motivated by prohibited reason(s) in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (Act).
Mr Pegler (Applicant) was continuously employed as a machine operator for G James Extrusion Co Pty Ltd (Respondent) for some 15 years prior to his dismissal by reason of a physical assault following a disciplinary investigation. He asked the Court to reject the investigation as a biased witch hunt and instead to find that the real reason for his dismissal was because he had made complaints and inquiries during the employment.
The Respondent denied any contravention of the Act. It maintained that it not only tolerated but encouraged the Applicant’s agitations of issues in the workplace over many years and that the only reason that the Applicant was terminated was because he was found by independent investigation to have physically assaulted another employee, which it deemed to be serious misconduct.
For the reasons that follow, I have determined that the Applicant was dismissed in contravention of s.340(1)(a)(ii) of the Act.
FACTUAL CONTEXT
Below is a summary of the evidence before the Court as relevant to the Applicant’s claims. Unless otherwise indicated, the following is not contentious and constitutes factual findings I have made.
About the business
The Respondent is an extrusion business operating under the umbrella of the G James Group of Companies - comprised of 12 companies and over 2,000 employees.
At the relevant times, the Respondent entity employed approximately 360 people across Queensland, New South Wales, Victoria, and Western Australia and continued to employ in or around that number at the time of the final hearing.
The matter involves the following managers and employees of the Respondent who gave evidence to the Court:
(a)Mr Lewis Saragossi, the Respondent’s Managing Director who at all relevant times oversaw the management of the entities within the G James Group.
(b)Mr Sean Myler, Extrusion Manager since 16 July 2019, who described his role as the manager overseeing operations and some 350 employees of the Respondent including the Applicant.
(c)Mr Ian Rogers, Occupational Health and Safety Coordinator since 23 July 2018, who described himself as having considerable experience in this field. At the time of the final hearing, Mr Rogers was no longer in the employ of the Respondent (although he was still employed by the Respondent at the time of preparing his written affidavit of 29 January 2021 as filed in these proceedings).
(d)Mr Michael Aitken, Extrusion Production Manager who had worked for the Respondent since 1984, and described his role as being in charge of the day-to-day production operations of the extrusion presses which included staff rostering and shift allocations.
The Respondent conducted its operations at three sites: 800, 990 and 1082 Kingsford Smith Drive, Eagle Farm in Queensland. The property located at 800 Kingsford Smith Drive was opened in or around 1985 as an extrusion press plant - a large production line with multiple presses operating approximately 500 degrees Celsius with multiple trucks and forklifts throughout and at least five indoor overhead gantry cranes.
The Respondent operated a shift roster with 3 rotating shifts (day, afternoon and night) and across 3 plants (a total of 9 shifts per day).
The Extrusion Production Manager (Mr Aitken) deposed that the Respondent encourages and expects worker participation in activities involving toolbox talks, safety reporting and training.
Terms and conditions of employment
There was no contract of employment in evidence.
However, it was not disputed that the G James Extrusion Co and Remelt Enterprise Agreement 2016 (2016 Enterprise Agreement) (and its predecessors) relevantly covered and applied to the Applicant’s employment with the Respondent. The 2016 Enterprise Agreement commenced operation on 30 November 2016 and nominally expired on 31 March 2019 but continued in operation (not being replaced or renegotiated during the Applicant’s remaining period of employment).
It was also not contentious that the Applicant was at all relevant times engaged to work as a shift worker. The Applicant could be required to work day, afternoon or night shift and could be allocated to different positions on a weekly basis, at the discretion of management. Mr Aitken on behalf of the Respondent gave evidence that shift allocations were made to match the requirements of the production line (such as supply and customer demand, machinery, maintenance and breakdowns) with the various skills, training and classifications of individual workers and it was always difficult to balance this with individual preferences. The Applicant gave evidence to the Court that afternoon shift was his preferred shift although he understood that he was at all relevant times employed as a shift worker meaning he could be required to work day or night shift.
In relation to rostering, there was evidence of the Respondent’s practice to release a draft roster for the following week. The draft roster (other than to cover the Christmas period, when more notice was given) was usually put up on a clipboard in a supervisor’s office on a Monday for all staff to view. Mr Aitken’s evidence was that the drafts are an evolving document until the formal roster is finalised at a production meeting and officially posted on Thursday of the week before commencement of the roster. In his role, Mr Aitken had authority to amend the draft roster as he was the person that finalised it.
The Applicant recalled being handed a conditions of employment booklet when he started with the Respondent (Terms and Conditions of Employment Booklet). He was taken to but did not necessarily agree that was the same document as tendered by the Respondent in these proceedings, which document was undated and not otherwise identified or explained by any witness. There did not appear to be any dispute, however, that the following conditions contained in that document applied to the Applicant during his employment:
(a)Absences & Working Hours;
(b)Basic Conduct & Duties;
(c)Disciplinary Procedures;
(d)Grievances;
(e)Serious Misconduct;
(f)Workplace Health & Safety; and
(g)Work Related & Non Work Related Injuries or Illnesses.
About the employment relationship
The Applicant initially commenced employment in or around August 2002 as a Level 9 operator.
After a brief period following his resignation in 2005, the Applicant was re-engaged to work on a full time basis for the Respondent and by the end of that year had progressed to a Level 4 operator role (being the highest achievable level in the Packing Department other than a management role).
In 2009, the Applicant accepted a transfer to the extrusion press plant at 800 Kingsford Smith Drive. His evidence was that he did so on the basis of his understanding that a Level 1 wage was achievable there and his request to remain rostered on the afternoon shift.
From that time, the Applicant was assigned to and attained competency to work in various roles such as E29 Table Crew, E29 Off-sider, E29 Saw-man, E29 Ager Despatch Operator, E37 and E42 Ager Despatch Operator, E37 and E42 Off-sider, Rectifier Offsider and Industrial ‘Hole Punch’ Operation.
As will appear from the below, the Applicant was assigned to other roles and shifts during the course of his employment.
The Applicant was not subject of any formal or documented performance management or disciplinary action during some 18 years of employment with the Respondent - until his involvement in an incident on 22 November 2019 which was investigated and became the stated reason for his summary dismissal. The termination letter was signed by Mr Myler and given to the Applicant on 23 January 2020 (extracted in full at Annexure A). The evidence of the incident, investigation and termination are detailed further below.
Issues during the course of the employment
The Applicant tabled a summary of some 89 instances where a workplace right was allegedly “used” by the Applicant. The following is a summary of the evidence most pertinent to the claims as pressed and the relevant historical context.
In or about February 2011, the Applicant’s evidence was that his then supervisor (a Mr Geoff Davidson) signed a form which gave effect to a job classification level and associated pay increase (to Level 3). The form itself was not in evidence. Emails from the Applicant to the Managing Director (Mr Saragossi) following up on the matter were in evidence and dated 24 June 2011 and 8 August 2011.
From 2011 to 2016, the Applicant worked afternoon shift for the Respondent and maintained a second job for another employer.
On 17 January 2013, the Applicant injured his ankle on an uneven floor surface at the workplace. The Applicant obtained a workers’ compensation medical certificate and was assigned light duties for some two months following the injury.
On 30 November 2015, the Applicant’s evidence was that he made a verbal complaint to then supervisor Mr Davidson and another then supervisor (a Mr Phil Fischer). The Applicant said that his complaint was in relation to a co-worker and gave evidence that, within ten minutes of raising the issue, Mr Fischer verbally assigned him to the night shift for the rest of the year. The Applicant addressed a hand written letter to Mr Aitken dated 2 December 2015. A copy of that letter was in evidence and was expressed as to inform management that the Applicant was not able to work the night shift due to his personal circumstances and commitments to other employment. On the Applicant’s evidence, the matter was discussed with Mr Aitken on 2 December 2015 (in the course of which the Applicant alleged it was illegal to move an employee off regular shift due to a complaint against a co-worker) and then discussed with Mr Fischer on 4 December 2015 who said that he would remain rostered to the afternoon shift for the remainder of the year.
On 18 December 2015, the published roster showed the first two weeks of scheduled production for 2016. From the second week and on or around 11 January 2016, the Applicant was moved from afternoon to night shift for around seven weeks and was unable to work his second job during that time. Mr Aitken’s evidence was that this change was due to the Christmas period and the organisational need to balance various staff taking leave.
On 19 January 2016, the Applicant sent an email to then Human Resources Manager (a Ms Rachel Driessen, Mr Saragossi’s daughter). That email was in evidence. In summary, the Applicant outlined his concerns about lack of promotion or advancement, that Mr Fischer had changed his long-standing roster due to the complaint about a co-worker, that Mr Aitken was harsh toward him and possibly even harassed him and was otherwise unfair in his treatment. In that email he stated that “After many hours on the internet and phone to different government departments I am quite sure the way I am being treated is not acceptable” and requested her assistance in rectifying the issues raised.
On 6 February 2016, the Applicant sent an email to Ms Driessen. That email was in evidence. In summary, by that email:
(a)The Applicant alleged that there was no operational reason for his roster change after 10 years on afternoon shift and that the change constituted harassment in response to a complaint made about a co-worker. He also said that he had raised the issue with 3 managers including Mr Aitken and Mr Milton and was advised every effort was made to try and accommodate all employees on the shift roster; and
(b)The Applicant also raised what he characterised as a pay level increase that was approved and then four months later revoked on the basis that Mr Milton had said he did not meet all of the Level 3 requirements but alleged other employees had completed the form in the same manner and achieved the pay increase. Further, that there had been no standardised training procedure in place or otherwise as to support his advancement to attain the necessary learning; and
(c)The Applicant concluded with the allegation that the matters raised constituted bullying which was taking a toll on his mental health and not to mention his family’s financial situation. He said: “I’m sure in your role as HR Manager you have heard of the terms “adverse action” & “harassment”. I have added an Australian Government website for you to look at – in particular the 5th and 8th bullet points stand out: The Applicant also expressed his hope that the Human Resources Manager would be able to assist him with these issues and that he looked forward to a response from her.
In February 2016, the Applicant was returned to afternoon shift.
On 14 September 2016, the Applicant applied to Mr Aitken in writing for two days’ accrued annual leave to be taken on 29 and 30 September 2016. The Applicant said that Mr Fischer refused the request and gave evidence of his belief that the reason for refusal was purely because he made the request, because Mr Aitken had a dislike of him and it was not for any genuine operational reason. The Applicant considered himself to have been treated unfairly because at least one other employee was granted annual leave for 30 September 2016 and on his assessment others were available to cover his requested period. In cross-examination at the hearing, the Applicant did not accept that operational reasons might have included other employees having requested leave on more notice although this was the reason given by Mr Aitken.
On 4 November 2016, the Applicant was given a letter which summarised the outcomes of an investigation by the Respondent into alleged harassment by Mr Aitken toward the Applicant and specifically concerns raised by the Applicant in a series of emails that year, regarding the main issues of: lack of advancement of employment status and therefore pay level; overtime allocations; the particular shift allocation from time to time; the clash of night shift with his second job; financial difficulties with his domestic rent situation; and annual leave application for September school holidays made on short notice which was declined. That letter was in evidence. By that letter, signed by an in-house lawyer (a Mr Christopher Ban), the Applicant was informed that seven employees had been interviewed (Ms Driessen, Mr Keune, Mr Milton, Mr Holman, Mr Aitkin, Mr Davison and Mr Fischer) and it was concluded that the claim did not constitute workplace harassment because it involved reasonable management action taken in a reasonable way in connection with the employment. Further, the Applicant was advised that the Respondent did not consider it had any obligation to rearrange staffing and shift times to accommodate the Applicant’s second job and that the enterprise agreement recognised (or permitted) the need for changing of staff on shift work allocations based on production levels in any given week.
On 17 May 2017, the Applicant sent an email to Mr Aitken. A copy of that email was in evidence. By that email, the Applicant reiterated his view that he had been refused opportunity for advancement and further training as a result of his emails of complaint (the single example specified therein being details of the pay level advancement that was allegedly approved and then withdrawn) and requested a level progression form.
On 13 June 2017, the Applicant submitted two occupational health and safety forms being an internal procedure for alerting management to any identified issues. The subject of the first was regarding faded safety signage and gave an example of a snake warning. On its face, the Applicant accepted that the example was no longer relevant as a safety issue because a snake had by then not been seen on site for some six months. The subject of the second was an alleged trip hazard regarding concrete that was not level - the Applicant having tripped and rolled his ankle in 2013, some years prior. He also alleged another employee to have tripped some months prior.
On 15 June 2017, the Applicant submitted a third internal occupational health and safety form. The subject was regarding an alleged manual handling issue.
The precise sequence of events was not clear on the evidence but there was evidence that the following took place on 15 June 2017:
(a)On 15 June 2017, the roster was published and reflected that the Applicant was moved from afternoon to night shift commencing the following week. Mr Aitken’s evidence of the reason for this change was that another operator (a Mr Mark Roberts) was having back surgery and on leave during this same period.
(b)Also on 15 June 2017, the Applicant wrote a handwritten letter to his Site Manager (a Mr Keith Holman) in which he alleged that he was being penalised with the shift change because he had submitted the safety forms on 13 June 2017. The letter was in evidence and recorded the Applicant’s perspective as to other options that existed for rostering and that the Applicant required afternoon shift allocation financially, mentally and for family stability.
(c)Also on 15 June 2017, the Applicant gave evidence of a verbal conversation with Mr Holman to the effect that the Applicant asked whether Mr Holman found the roster change to night shift coincidental given he had just submitted two occupational health and safety forms to which Mr Holman replied to the effect of “not in the slightest”.
In cross-examination at the hearing, the Applicant was asked about whether he had already seen the draft roster (published Monday 12 June 2017) and that is why he put the forms in. The Applicant told the Court that the reason why he put these forms in at that time is because he was becoming more conscious of the importance of these issues because he was heading to the Fair Work Commission at the same time.
On 16 June 2017, the Applicant sent an email to Mr Saragossi in which he alleged to have been rostered on night shift as punishment for having brought to management’s attention a couple of safety issues. The email was in evidence and recorded the Applicant addressing Mr Saragossi in terms that the Applicant considered Mr Saragossi and his family would not have the same sentiments as to safety of employees as Mr Holman does and that Mr Saragossi might like to have a listen to Mr Holman’s thoughts on the matter.
On 18 June 2017, the Applicant sent an email to his General Manager (a Mr Craig Milton) in which he stated that he had handed in two safety forms regarding longstanding safety issues which he believed needed addressing on 13 June 2017 and then by 15 June 2017 his name was rostered to night shift, notwithstanding his long-standing afternoon shift roster which allows his commitment to a second place of employment and his family finances require. That email was in evidence. In it, the Applicant informed that he would not be available for the night shift commencing at 10.00pm that evening because he had prior employment commitments to meet the next morning. And further cited the Act, attached ss.341 and 342 of the Act, attached extracts from a fact sheet and said:
[…]
A blind person could see that I personally have been singled out when rostered to the night shift purposely to ‘prejudicially affect my employment situation or more specifically injuring me in my employment.
As stated in my written submission to Keith Holman on Thursday 15th June (see attached K.Holman doc.), literally dozens of other employees could be used for this potion.
I have supplied a current posted work roster for the extrusion plant for this coming week.
As Lewis Saragossi has now made you the legal ‘decision maker’ for this issue, I would like to make you aware, that if i was to take this breach of the FWA 2009 to the Fair Work Commission or to the Federal Circuit Court (which I am very much entitled to do), you Craig Milton personally (now being the decision maker), could be fined up to $10,800 and the company fined up to $54,000.
[…]
So Craig with respect, unless I hear from you via text or mobile phone call, I will otherwise assume you do not want this further breach of my protected workplace rights to go any further.
And as such I will show up for work at 800 Extrusion ready to work in my normal role of Dispatch/Ager operator at E29 on my usual shift at 2pm Monday afternoon.
Please feel free to contact me today or any day for that matter, to discuss anything I have brought to your attention in this, or in any other correspondence I have had with you.
Regards,
Dean Pegler
[phone number omitted]
[emphasis from original]
In cross-examination, the Applicant initially denied any intention by the above email correspondence to manipulate Mr Milton into changing the shift but, ultimately, he accepted that on the face of the email he was inviting Mr Milton to return him to the afternoon shift in order to avoid a claim.
On 2 July 2017, the Applicant sent an email to Mr Saragossi. That email was in evidence and included statements that the Applicant considered his communications with Mr Holman, Mr Milton and a meeting with Human Resources Consultant (a Ms Kylie Oliver) to constitute progression through steps 1, 2 and 3 of the Respondent’s grievance procedure (understood to be a reference to that in the 2016 Enterprise Agreement). By that email, the Applicant again raised the safety forms submitted and roster change. He also made allegations of fatigue since having worked the night shift for some two weeks prior and that this meant he was unable to attend to his second source of income which was placing financial stress on his family and reduced his ability to provide or care for them. Also in that email, the Applicant advised to have made an enquiry to WorkSafe Queensland on the previous Friday afternoon, about the safety of himself and those around him whilst suffering fatigue during the rostered shift of 10.00pm-6.00am and attached screenshots of the legislation to which he said WorkSafe Queensland had referred. Among other statements about the Applicant’s perspective of his loyalty to the company, the Applicant said “I get no pleasure out of bringing forth legal action against the company I have worked loyally for since 2005.”. The email concluded with reflecting the Applicant’s characterisation of advice obtained from the Fair Work Ombudsman that the Applicant should ask for Mr Saragossi’s reply to this information in writing and within a prescribed timeframe and a request for a response to the information he had supplied regarding night shift rostering, within 24 hours.
The application itself was not before the Court but it would appear that the Applicant’s reference to legal action in his 2 July 2017 email was to a dispute that the Applicant took to the Fair Work Commission (Commission) because, on 10 July 2017, the Commission convened a conference in a proceeding for alleged contravention of the general protections dispute (non-dismissal related) pursuant to s.372 of the Act (2017 Fair Work Commission Dispute). The Applicant’s evidence was that he had applied for the Commission to deal with a dispute about three alleged contraventions of the general protections provisions of the Act (not involving dismissal).
Mr Aitken said that the Commission conference included an explanation of the necessary rostering and training to facilitate the Respondent’s introduction of a new plant. There was no particular or immediate outcome to satisfy the Applicant but, by roster of 27 July 2017 and commencing 31 July 2017, the Applicant was assigned to day shift in a different role. The Applicant’s evidence to the Court was that the assigned role was significantly lower in terms of skill required and did not enable him to engage in his second employment.
On 4 October 2017, the Applicant sent an email to Mr Milton. That email was in evidence and by it the Applicant purported to escalate a dispute about overtime, classification and roster pursuant to step 3 of the company’s grievance procedure.
On 25 October 2017 (the email was dated 24 October 2017 which the Applicant gave evidence was due to an incorrect time setting on his computer), the Applicant sent an email to Mr Milton. That email was in evidence and included the Applicant’s rejection of an offer to meet to discuss his grievances and also included underpayment issues purportedly raised on behalf of other staff.
On 21 November 2017, Mr Aitken prepared a written statement regarding the Applicant’s allegedly approved pay level increase retraction, training and overtime issues. A copy of the statement was in evidence and reflected that Mr Aitken denied having seen an assessment or reclassification form to progress the Applicant to the next pay level and there was no record of such form on his file. By that statement, Mr Aitken also clarified that the process involved such form being submitted by a supervisor to Mr Aitken for his approval and, in turn, to the Site Manager and then the General Manager for their approval and any failure to follow procedure would be returned to follow the correct procedure.
On 3 December 2017, the Applicant sent an email to Mr Saragossi. That email was in evidence. By that email, the Applicant forwarded three workplace health and safety forms that he said had been forwarded to Mr Aitken on 18 September 2017. The Applicant said this was an example of the “contempt” the Respondent had for its employees at the site.
On 12 January 2018 the Applicant sent an email to Mr Saragossi. That email was in evidence. By that email, the Applicant alleged that he had no response to the grievance process pursuant to the 2016 Enterprise Agreement and the Respondent’s managers (Mr Aitken, Mr Holman and Mr Milton) had not complied with it. As part of an exchange that followed, the Applicant expressed his views about the level of skill, care, fitness and responsibility required of the Ager Despatch Operator role.
On or about 17 January and commencing 22 January 2018, the Applicant was rostered to the afternoon shift. Mr Aitken’s evidence was that this change was possible because the necessary training and reallocation of staff for the respective plants had settled over the latter half of 2017.
On 14 August 2018, the Applicant sent an email to Mr Aitken and Mr Saragossi. That email was in evidence. It contained a request to take two days’ personal/carer’s leave. It also alleged a request to change to day shift for personal reasons (family circumstances) made verbally of Mr Davidson some months prior who at that time had said there were no roles but he would let him know if anything came up.
On 17 August 2018, the Applicant gave evidence of an oral discussion with the Respondent’s then newly appointed Workplace Health and Safety Coordinator (a Mr Ian Rogers). He said they had a conversation about the high level of risk in the Applicant’s role and discussed the hazard identified by the Applicant was “transcribed ‘word for word’ form a digital audio file recording” which audio recording was not produced to the Court.
On 5 September 2018, the Applicant sent an email to Mr Rogers. That email was in evidence. It commenced with a summary of its contents in the following terms:
I would class the issue I am raising with you here today, as a safety issue, a health issue and also an environmental issue – tick all those boxes please.
Amongst employees, there is a fear of reprisal or adverse action from management at the Extrusion worksite, if they report workplace health & safety concerns to their supervisor or management.
Some examples of the current culture……..
[…]
The 5 September 2018 email attached an internal occupational health and safety form which referred to the contents of the email. The email contained five examples by which the Applicant alleged that: other (unnamed) employees were concerned about the impact of raising a WorkCover claim and so were using “their own accrued personal leave and their own money” to get treatment; he was immediately moved to night shift in response to his complaint about prejudicial rostering; another (unnamed) employee was injured and then after time off on workers’ compensation not returned to their previous skilled and respected role; within the past 12 months, the Applicant had lodged “possibly 6 – 12 (approx.)” internal occupational health and safety forms to the Respondent’s management, of which only one had received a response to the Applicant’s satisfaction, some had not received a response and others were not actioned in a way that the Applicant would deem responsible or sufficient; and a new forklift in the workplace was unsafe due to a low decibel reversing beep. The email concluded with the following remarks:
This systemic culture of “I don’t want to know about it”, “there are dangers every where in life” and “if you don’t like it, you know where the door is” must stop – this is the year 2018, not 1988.
Without proactive culture change within the ranks of management at the site, there will be little to no incident or near miss reports (I would like to suggest you look into the amount of near miss & incident reports made at the worksite to date, verses the amount of actual injuries) and most certainly, very little change to the unsafe working environment at 800 Extrusion.
If anyone is serious about making a positive change to safety at 800 Kingsford Smith Drive (which I believe you are very capable of – with your background, experience & proactive health & safety attitude), the Metal Industry Process Workers (or “Press Assistants” of the 800 Extrusion workforce) must be made convincingly aware of the new safety systems, procedures & more importantly any cultural change occurring at G.James.
So that they may report dangers, concerns, near misses and incidents without the fear of any adverse impact to their employment situation.
Surely Ian, not feeling able to report a safety issue at your workplace, is the biggest safety issue of all.
Thank you for your time & if I can personally be of any assistance, to you in making the 800 Extrusion site a safer working environment, please let me know how I can further help.
Below, I am supplying a couple of links that I sincerely hope might help you change the culture I have informed you of within this email.
(emphasis per original)
(sic.)
Also on 5 September 2018, according to the Applicant’s evidence, Mr Rogers called him in to a site office and the pair had a discussion to the effect that Mr Rogers agreed that the forklift reverse beeper was quiet. The Applicant said this discussion was “transcribed ‘word for word’ from a digital audio file recording” which recording was not before the Court. Mr Rogers’ evidence was that the warning beacon was not faulty and emitted a sound level consistent with the manufacturer’s manual but after relocating the warning beacon and, based on the Applicant’s communications, he organised a replacement beacon that emitted a higher decibel warning tone.
On 6 September 2018, the Applicant was rostered as “spare” for the following week and according to the Applicant was told by Mr Fischer that he would be assigned to work at the 990 Kingsford Smith Drive, Eagle Farm site to perform role/s that required less skill than that which he had been performing.
On 7 September 2018, the Applicant sent an email to Mr Aitken regarding allegations of a need for cultural safety change at the workplace. That email was in evidence. In cross-examination, when asked how he felt upon receipt of that complaint, Mr Aitken said that he could not remember how he felt at that time but may possibly have felt offended. Mr Aitken acknowledged that he did not respond directly to the email but passed it on to his manager.
On 14 September 2018, the Applicant sent an email to Mr Rogers. That email was in evidence and forwarded an email from the Applicant to Mr Aitken of 7 September 2018. The 14 September 2018 email also alleged a further follow up and related occupational health and safety form had gone unanswered.
On 18 September 2018, according to the Applicant’s evidence, he had an impromptu discussion with Mr Rogers in which the Applicant raised the irony of being assigned to less responsibility, a less challenging and less enjoyable work after complaining of a culture of adverse action at work. His evidence was that Mr Rogers refused to comment on the situation but did say he was well versed in the fair work legislation.
The following week, the Applicant was returned to the day shift in the role of Ager Despatch Operator which he had requested on account of personal circumstances.
On 14 October 2018, the Applicant sent an email to Mr Rogers, Mr Aitken and Mr Saragossi. That email was in evidence. By that email, the Applicant expressed his disappointment at not having received any response to his recent email to Mr Rogers of 5 September 2018 (and prior email to Mr Aitken and the subsequent follow ups) and attached an internal occupational health and safety form regarding the alleged unsafe low-decibel beep on the new forklift. The Applicant also stated he was not fully understanding of the law but was sure someone within the Respondent company would be charged with industrial manslaughter if someone were killed by the forklift whilst reversing. He requested a response to the matters raised in the email.
On 3 December 2018, the Applicant sent an email to Mr Rogers and Mr Aitken. That email was in evidence (although the email in evidence was dated 2 December 2018 which the Applicant said was on account of an incorrect time setting on his computer) and essentially alleged that the Respondent had breached the 2016 Enterprise Agreement and its duty of care to employees because of operational restructure which impacted the work of the Ager Despatch position - and attached an internal occupational health and safety form which referred to the email for details.
Also on 3 December 2018, Mr Rogers sent an email to the Applicant in response. That email was in evidence (again dated the day prior apparently on account of an incorrect time setting) and records that Mr Rogers requested clarity of the issue raised and asked that the Applicant discuss the matter with his site health and safety representative and site senior union delegate (a Mr Dallas Mills) who could assist the Applicant with expert advice on site specific tasks and duties and reporting it properly if he concurred there was an issue.
On 3 December 2018, the Applicant sent an email to Mr Rogers in reply. That email was in evidence and records that the Applicant outlined his experience and seniority in the role, reiterated the matters raised in the earlier email, invited Mr Rogers to spend a day in the role with the Applicant and included an assurance that Mr Mills was aware of everything discussed in the email and had been sent a copy.
On 14 December 2018, the Applicant said he was abused by a co-worker named “Mark” for working him too hard although the Applicant said he was doing multiple jobs and doing his part. On the evidence there was no indication of whether the Applicant had raised this with anyone at or around that time.
On 13 February 2019, the Applicant sent an email to Mr Rogers, Mr Aitken and Mr Saragossi. That email was in evidence. By that email, the Applicant outlined a timeline of correspondence in relation to his concern about receiving multiple loads of rectifying from the new press and an occupational health and safety form he said was submitted in relation to this on 14 August 2018. In essence the email alleged it had been some five months since the issue was raised but no satisfactory resolution.
On 15 March 2019, the Applicant sent an email to Mr Rogers and copied Mr Mills and a Mr Jim Wilson of an Australian Workers’ Union (AWU) email address. That email was in evidence. By that email, the Applicant advised that a risk assessment was carried out that day on the unloading of incoming jumbos from the new press. The Applicant alleged that the result was that the unloading work practice was unsafe without the correct safe work platform structure. He requested a response.
On 22 March 2019, an AWU representative (a Mr Paul Cradden) attended the E29 Despatch Department on site. According to the Applicant’s evidence, Mr Cradden told the then supervisor Mr Davidson to modify a work procedure regarding climbing truck bodies to unload incoming jumbos and Mr Davidson then instructed the forklift operator to do the unloading. Mr Rogers also gave evidence of a changed work procedure involving a forklift, implemented by mid November 2019, which removed the risk raised by the Applicant entirely and negated the need for a platform. Mr Rogers said that he did not respond to the Applicant’s further requests for a platform because the matter had been resolved with the use of a forklift.
On 28 August 2019, the Applicant submitted an internal occupational health and safety form (28 August 2019 OHS Form). A copy of the form recorded as “opened” by Mr Fisher on 29 August 2019 was in evidence and reflected the “incident type” as “Hazard identified – incident may occur” having occurred at the site at 800 Kingsford Smith Drive and gave a further description as follows:
Hazard identified – Extrusion Press No3 1963 – 28-Aug-2019
From, Dean Pegler. Truck tray legs,have worn out holes in the concrete in all dispatch dept,s. 42 desp is most a [remaining content omitted from evidence]
(sic.)
Also on 28 August 2019, Mr Rogers sent an email to the Applicant and copied Mr Myler regarding the 28 August 2019 OHS Form. A copy of that email was in evidence. By that email, Mr Rogers said:
Good morning Dean,
Please see your direct supervisor and manager to report all hazards, incidents and near miss incidents. As per training conducted through the induction program and subsequent toolbox trainers throughout 2019 all employees are required to report these matters to a supervisor or manager first who will assist you in raising a proper incident report through our internal systems.
Dean please be aware that this is company policy. By continually bypassing our policies you are not complying with systems and I have to ask you to please stop bypassing them and have previously done so verbally and am doing so again in writing.
Please see either Phil or Scott to report incidents, hazards and near miss events as your first point of reporting, from there they will assist you with raising a report and sourcing suitable solutions if required if you are not getting any support there please see the chain of command which would be Michael Aitken and then Sean Myler the extrusion manager if required.
Please make sure you are fulfilling your legal obligations properly going forward in all instances.
Regards,
Ian Rogers
On 10 September 2019, the Applicant had returned from leave and responded by email to Mr Rogers regarding the 28 August 2019 OHS Form. A copy of that email was in evidence. By that email, the Applicant said that he had submitted the correct form and to his knowledge had followed the incident reporting procedure taught during training – to report the problem as soon as it was safe to do so. He also raised a possible solution to the identified issue which had been deployed in other departments regarding a liquid resin to fill the concave void left by the truck tray legs dragging along the ground.
On 11 September 2019, Mr Aitken sent an email to the Applicant and copied Mr Rogers, Mr Myler and a Mr Paul Fletcher regarding the matter of the 28 August 2019 OHS Form. A copy of that email was in evidence. By that email, Mr Aitken said:
Good Afternoon Dean,
Re the below HSE report ive organised for Benny from anodising to go to 800 to inspect and determine if the resin solution is an option to repair the divots made by the transport trays. The other 800 desp areas will also be looked at for the same reason but will have to be done one at a time to allow the despatch to function.
If this is possible I would like to have E42 desp done on Friday afternoon 13th Sept around midday to give the resin ample cure time over the weekend, this will require you to have all trays moved out and the area cleaned of loose debris prior to midday and baskets requiring despatch from E42 will have to be loaded from the E29 desp area, I wil inform transport of this to ensure they do not place trays into E42 and remove any loaded or empty trays prior to the work starting.
Regards
Mick Aitken
(sic.)
On 22 November 2019, there was an incident of alleged physical assault involving the Applicant and a co-worker at the extrusion press worksite (22 November 2019 incident). It was not contentious that there was an altercation between the Applicant and a co-worker, a Mr Warren John Manski, known as “John”. John was going about the task of unloading shelving at E29 Despatch. The task was being undertaken in response to or to address a concern raised by the Applicant who believed the shelving was overloaded and unsafe. The Applicant admitted that he had inadvertently pushed John to the ground.
The Applicant left the workplace almost immediately following the 22 November 2019 incident, on his own evidence by about 7.30am, to attend his general medical practitioner and obtained a medical certificate.
By email of 1.49pm on 22 November 2019, the Applicant was stood down from his employment pending an investigation. The stand down email was in evidence. It was sent from Mr Aitken to the Applicant, copied Mr Myler, and confirmed Mr Aitken’s understanding that the Applicant had a medical certificate to cover his absence from that work on that day and the following Monday 25 November 2019. It also confirmed that the Applicant was stood down “on pay” and was to make himself available for an interview about the incident.
On 25 November 2019, the Applicant submitted a claim to WorkCover Queensland for psychological injury which he said had occurred at the extrusion press worksite as a result of the 22 November 2019 incident.
On 19 December 2019, the Applicant sent an email to Mr Rogers marked “Incident of verbal assault & bullying to report – occurred on 22/11/2019”. That email was in evidence and is extracted in full at Annexure B.
On 22 January 2020, the Applicant received a text message that notified him that WorkCover had accepted his claim.
On 23 January 2020, the Applicant received an email which attached a termination letter in the form extracted at Annexure A to these reasons. It was not contentious that, as the letter was not given to the Applicant until 23 January 2020 it was not effective until then, notwithstanding that it was dated 21 January 2020 and stated that the termination was to be effective 22 January 2020.
The investigation process
The investigation in relation to the 22 November 2019 incident was prompted by a complaint made by two witnesses to the 22 November 2019 incident (site senior union delegate, Mr Dallas Mills, and a Mr Daniel Alex Anderson).
Mr Rogers gave evidence that he was appointed to investigate the 22 November 2019 incident. Mr Myler’s evidence was that Mr Rogers had volunteered to assist by starting the investigation, because it involved a safety issue, and Mr Myler agreed. Mr Myler acknowledged his agreement was notwithstanding his personal opinion that Mr Rogers did not work to the best of his ability in his role as OHS Coordinator and was often “inappropriate in the workplace”.
In terms of the investigation process, Mr Rogers said that he was provided with witness statements of Mr Mills and Mr Anderson and then interviewed them in the presence of Mr Aitken as company witness.
Mr Rogers then interviewed and obtained written and verbal statements from John, the other employee directly involved in the incident, who preferred that Mr Mills and Mr Anderson were present (and who were present) for his interview as support persons. Mr Rogers also interviewed a supervisor who had found John shortly after the incident in a highly distressed state in that he was crying and hiding from other people. Mr Aitken was also present for those interviews.
Together, Mr Rogers and Mr Myler interviewed the Applicant on 15 January 2020 (after three set interview dates could not go ahead due to the Applicant’s absence which he claimed at the time was due to his mental condition). Mr Myler recalled having explained the allegations made against the Applicant and providing an opportunity to respond. The Applicant said he gave some names of other employees for Mr Myler to speak with in regard to his character and also gave hard copy photographs to Mr Myler and Mr Rogers in that interview which depicted the view of the incident from different perspectives which evidenced obstructions and therefore that the alleged eye witnesses could not really have seen what happened. In cross-examination, Mr Myler confirmed that he did not speak to the suggested others about the Applicant’s character and also recalled looking back at the photographs that the Applicant had submitted and thinking they were not taken on the date and time the Applicant said they were - but acknowledged that he never put that allegation to the Applicant at any time before his termination. Mr Myler ultimately formed the view that the eye witnesses had a clear view of the incident because they both said they had seen the Applicant knock over John, with their own eyes, and he found them to be credible including because one was an AWU delegate of which the Applicant was a union member.
Mr Rogers deposed that, based on the evidence from all parties gathered during the investigation, he made his “submission” to Mr Milton as General Manager and Mr Myler, at a face-to-face meeting, that the Applicant “had a case to answer for”.
On 17 January 2020, Mr Myler sent an email to a Mr Stephen Keune (the Company Secretary/Corporate Lawyer) copying Mr Milton, Mr Parkes and Mr Rogers. A copy of the email was in evidence and had the subject line “Dean Pegler Matter”. By that email, Mr Myler summarised the investigation progress and concluded with:
Dallas is back on Monday so I will have these remaining points closed out COB Monday with our recommendations regarding Dean’s on-going employment with G James.
On 20 January 2020, Mr Myler sent an email to Mr Keune copying Mr Milton, Mr Parkes and Mr Rogers. A copy of that email was before the Court and included the following:
[…]
Having now closed out the investigation it is my recommendation that we dismiss Dean Pegler from his employment at G James as I believe there is reasonable evidence to suggest that he did push Jon Manski to the ground. Given that this is an act of Gross Misconduct I would also suggest Summary Dismissal (no payment of notice period).
Attached are the following:
•My notes from the interview with Dean.
•Jon Manski’s statement.
•Dallas Mills statement.
•Jasen Balloch’s statement.
•Daniel Alexanderson’s statement.
•Dean Pegler’s Statement.
Once reviewed can you please advise if ok to proceed with recommendation.
On 21 January 2020, Mr Myler sent an email to Mr Keune copying Mr Milton, Mr Parkes and Mr Rogers and asked for review of the Applicant’s termination letter and to amend where necessary.
The termination decision
Mr Myler deposed that he was the decision-maker in relation to the decision to terminate the Applicant’s employment and, as a branch manager, had the delegated authority to so decide. He also gave evidence to the Court that the decision was “ratified” by the Respondent’s Managing Director, who he assumed would have the power to “veto” the termination decision. In cross-examination, Mr Myler did not accept that any other person was involved in the termination decision but did accept (when shown) that he had sent a draft termination letter to Mr Keune, Mr Rogers, Mr Milton and Mr Parks because they were senior managers of the business whom he was keeping appraised.
Before the Court, Mr Myler also disclosed that the Applicant’s termination letter had direct input from Mr Keune who had removed part of the draft letter. Mr Myler accepted the proposition put to him by the Respondent’s Counsel in re-examination that Mr Keune did so wearing the hat of “corporate lawyer”.
Mr Myler denied any discussion with Mr Saragossi to update on the progress of the investigation into the 22 November 2019 incident or ever speaking to Mr Saragossi about the Applicant at all. Mr Myler went on to describe the role of other managers in the following way:
All of my correspondence went through to the division manager, which was Craig Milton and his deputy, Gary Parks and Stephen Keune. And I basically work with Stephen Keune directly on the investigation and the – in terms of getting him to look through the – whether we had followed due process.
(sic.)
Mr Myler said that he communicated with Mr Aitken as his direct report a number of times daily including the daily production meeting and also communicated regularly with Mr Milton and Mr Rogers but denied consulting with anyone about alternatives to termination of or the decision to end the Applicant’s employment.
There was also the following exchange between Mr Myler and the Applicant in cross-examination:
Applicant:Did any G.James management provide you with their opinion regarding my innocence or guilt in regards to the investigation?
Mr Myler:Mr Aitken and Mr Rogers both did. I believe Mr Rogers was fairly vocal about it in the early stage of the investigation. And Mr Aitken obviously gave me his opinion too because they were the people that carried out the initial investigation. So, yes, they would have given me their opinions.
Mr Saragossi gave evidence that he was ultimately responsible for everything that happens in the business but not a “hands on kind of guy” when it came to running the Respondent business and only on occasion would he be informed of disciplinary decisions regarding operational employees. He expanded on this before the Court to say that he was well aware of what was going on in the business and was kept updated about terminations either in daily or weekly reports. He was in discussion with Mr Keune several times a day and also in regular discussion with his General Manager and the OHS Manager. And, in the normal course of operations, he would have been advised of a serious altercation soon after when the altercation occurred. He also told the Court that any employee can contact him, his style of operating is to walk the floor and have conversations with employees, because he is interested in the business and would make it his business to have conversations with managers about issues that came to his attention. Mr Saragossi also accepted that he had attended the extrusion plant at 800 Kingsford Smith Drive to oversee the upgrade of the warning beeper on the forklift (a matter about which the Applicant had complained, as detailed above). Mr Saragossi said he was aware of the Applicant’s multiple complaints submitted to his daughter, Ms Driessen, between 2015 to 2017.
In relation to the 22 November 2019 incident, although he had deposed in writing to being made aware in January 2020, Mr Saragossi’s evidence at the hearing was that he could not exactly recall when or who first informed him of the incident but generally that sort of information would come through Mr Keune and with relative immediacy. Mr Saragossi also initially said that he thought he would have spoken to Mr Myler about the incident but then, when informed that Mr Myler had denied having had any discussion about the Applicant with Mr Saragossi and was asked if he was certain that Mr Myler had a discussion with him, Mr Saragossi’s evidence was definitively that he did not recall having spoken directly with Mr Myler regarding the decision to terminate the Applicant’s employment.
In writing, Mr Saragossi deposed to having raised no objection to Mr Myler’s termination decision because it was apparent that procedural fairness had been followed. He told the Court that he would have communicated his lack of objection to Mr Keune, on advice of Mr Keune as to whether procedural fairness had been applied, who in turn would have communicated back through to Mr Myler. During his cross-examination, Mr Saragossi came to maintain that he would have been informed of but not involved in the termination decision in relation to the Applicant.
Mr Saragossi also presumed that Mr Milton and Mr Aitken would also have been involved or party to what was going on in relation to the investigation and expected that Mr Keune would check the termination letter. He also said there are no secrets within the group of managers that were copied on the email with the draft termination letter.
Other than being aware of the incident and present when Mr Manski gave a statement to Mr Rogers, Mr Aitken denied any involvement in the investigation or decision process resulting from the 22 November 2019 incident.
In his written evidence, Mr Myler (who sought to position himself as the single decision-maker) deposed to the reason for the Applicant’s dismissal and matters taken into account in the following terms:
Mr Pegler was dismissed for Serious Misconduct. The Company, through its investigation was satisfied that Mr Pegler physically pushed another employee to the ground. Under the G James conditions of employment, serious misconduct warrants instant dismissal.
As the relatively recently appointed Manager of G James overseeing approximately 350 staff, I did not have direct day to day dealings with Mr Pegler.
G James conducts regular tool-box talks and training sessions and encourages all workers to discuss and report any and all matters of concern. I understand that Mr Pegler had been actively engaged in workplace discussions.
Mr Pegler has never been previously sanctioned or been involved in any disciplinary process before the incident of 22 November 2019 and his assertion that he was dismissed for previously exercising workplace rights is incorrect.
Mr Pegler was terminated by way of summary Dismissal for Serious Misconduct after an assault on a fellow worker which occurred on 22 November 2019 and no other matters were considered in determining the outcome of the investigation.
(sic.)
Mr Myler’s written evidence deposed that he had read “various witness statements” prior to conducting the interview with the Applicant on 15 January 2020. Mr Myler expanded on this at the hearing to say that, following the investigation and before making his decision, he had read witness statements of Mr Mills, Mr Anderson, the notes from Mr Rogers and Mr Aitken taken on the day of the 22 November 2019 incident and then, in his own words, “obviously” he had also taken into account his own investigation having gone down to the site and attended the site.
Mr Myler also gave evidence that he was relatively new to the role and had not met the Applicant prior to his dismissal and did not have direct day-to-day dealings with the Applicant in the course of their respective roles.
In cross-examination, Mr Myler denied any knowledge of other managers with a negative attitude toward the Applicant since the 22 November 2019 incident but, in response to that question, also said:
- it was raised that you (the Applicant) had had a matter in the city around your shift change. That’s the only thing I was aware of before – before your termination, basically.
Mr Myler did not say who raised the matter in the city regarding shift change with him (understood to be a reference to the 2017 Fair Work Commission Dispute). Mr Myler then went on to accept that he was also aware of two specific complaints the Applicant had made in relation to safety: one around the uneven floor and the other was “more of an inquiry” around the servicing of cranes. Mr Myler accepted that both complaints were “warranted”. Mr Myler also accepted that he had been copied on various correspondence by which the Applicant raised issues or requested responses since his commencement in the role.
In cross-examination, Mr Myler’s evidence was that options other than termination were not considered even though the Terms and Conditions of Employment Booklet contemplated that there could be other options. He also said that he did not have regard to the Applicant’s lengthy and unblemished history of employment or that he had no prior history of violence or aggression or disciplinary outcomes or his level of experience or eagerness to improve safety in the workplace.
In explaining Mr Keune’s input to the termination letter that Mr Myler insisted he had drafted himself, in cross-examination, Mr Myler said that he first decided to terminate the Applicant and then sought input into the letter. The initial draft letter and the final letter were both in evidence before the Court. Mr Myler was taken to them and asked to explain the difference between his draft letter and the final letter with Mr Keune’s edits. In response, Mr Myler said that the main difference was his draft letter had some additional points – essentially that the Applicant had demonstrated a blatant disregard for safety and also had failed to be honest and forthcoming with the Respondent in relation to the matter (which he explained was a reference to his own assessment that the Applicant had doctored the photographs and was inherently dishonest in saying he had fallen onto John when others had seen him directly push him in the back). Before the Court, Mr Myler confirmed that these were additional matters or reasons that he took into account in deciding to terminate the Applicant’s employment and denied that there was anything else in his mind that justified the termination that was not said in the final termination letter. Mr Myler also acknowledged his awareness that for an act of gross misconduct he should not be dragging anything else into it, simply the events that happened on the day.
The Respondent’s other witnesses gave some evidence about their impression of the Applicant and his many complaints and, in cross-examination, the Applicant asked each of the Respondent’s witnesses questions directed at whether they found his complaints unwarranted or annoying. Their responses are summarised in the following.
Mr Saragossi said that he did not find the Applicant’s regular emails annoying and would refer them to the appropriate manager for action. On the other hand, he also acknowledged that the Applicant was “vocal on many issues” which he saw “in a positive way” in terms of speaking with him directly and which he then passed on to the management team to investigate:
Okay? So – so that part I have no issue in terms of your noisiness or your activity in – in raising issues. Okay? All right? So that’s separate from the incident. So when it comes to a physical altercation in the workplace, we – we take a very strong view on that – okay – because it’s just not – not acceptable in the workplace to have physical altercations.
Mr Aitken gave evidence that the Applicant submitted a lot of workplace health and safety concerns compared to other staff at the extrusion plant. Mr Aitken said that in general the Applicant’s contributions in reporting any concerns or safety issues were an important product of the training and processes of the Respondent and he did not consider any of the safety complaints to be frivolous or without merit and also said that he did not find the many workplace health and safety forms that the Applicant submitted to be annoying but told the Court that some of the other emails such as constant emails regarding shift changes were, in Mr Aitken’s personal opinion, bordering on harassment.
For his part, Mr Rogers gave evidence that he responded to each of the Applicant’s issues raised either in writing or verbally and also gave clear directions to the Applicant in writing about his requirements, obligations and expectations to report and communicate hazards, incidents and site issues – such as the email of 28 August 2019 in response to the 28 August 2019 OHS Form. Mr Rogers also said that he gave further reminders to the Applicant about the system and procedures for reporting hazards and incidents.
Mr Rogers gave evidence at hearing that the management team would definitely pay attention as soon as initial communications would come in from the Applicant, and provided an example of when the forklift matter was first raised by the Applicant in writing and Mr Saragossi came to him directly to make sure the issue was fixed immediately. Mr Rogers said that Mr Saragossi spoke in favourable terms about the Applicant and to the effect that he wished he had more employees who would bring matters forward.
Mr Rogers also recalled that the continuing correspondence from the Applicant about issues was not always considered by management to align with what a business or a department could do and prevented others from getting on with doing their job. According to Mr Rogers, he had a discussion with Mr Aitken after the Applicant sent his first communication to Mr Rogers wherein Mr Aitken used words to the effect that he had his email set on spam so that he never saw any communications from the Applicant. In this vein, Mr Rogers’ also gave evidence of his general impression that in around August 2018 Mr Aitken considered the Applicant to be “a waste of time” and certainly was not impressed (with the Applicant or his approach).
Mr Rogers believed that the company in-house lawyer, Mr Ban, had quite an obvious disdain for the Applicant which he assessed by the way Mr Ban spoke about him and because he warned Mr Rogers to be guarded in his responses to the Applicant’s correspondence. Specifically, Mr Rogers was warned to keep good notes and to have human resources review his responses before going back to the Applicant so nothing could be deemed inflammatory or an issue.
Also at the hearing, Mr Rogers gave evidence that he personally found the continued barrage of emails after management had asked and answered in person at times to be annoying. In the last few months of the Applicant’s employment, Mr Rogers was directed to respond to an issue raised by the Applicant regarding crane lifting equipment with “guns blazing” - which he elaborated on to mean with so much material (eg. codes of practice, repairs manifest) or “firepower” as to ensure the Applicant had nothing to come back with. He accepted the proposition, when put to him by then Judge Davis in cross-examination, that the complaints about low risk matters definitely “hit a raw nerve”.
Mr Rogers also gave evidence of his knowledge that the Applicant was definitely on a “walking dead list” (his term), being a list of persons who were not preferred to be brought down to the new premises once the extrusion plant at 800 Kingsford Smith Drive was decommissioned.
Post-termination
By application to the Commission, the Applicant brought a dismissal-related dispute alleging contravention of the general protections provisions pursuant to s.365 of the Act. On 13 May 2020, the Commission certified that reasonable attempts to resolve the dispute (other than by arbitration) had been unsuccessful.
On 8 June 2020, these proceedings were commenced by way of originating application filed by the Applicant and, on 25 June 2020, the Respondent filed a response.
On 12 October 2020, Judge Davis (as he then was) ordered that the proceeding continue by way of pleadings and afforded the Applicant opportunity to file a statement of claim. Various other procedural orders were made including referral to mediation which took place on 2 February 2021 and again on 15 March 2022 but did not resolve the matter.
On 17 March 2022, Judge Davis (as he then was) ordered the that final hearing be adjourned part-heard to 4 May 2022.
On 24 May 2022, following the retirement of former Judge Davis, the Chief Justice of this Court ordered that the matter be re-docketed to the Court as presently constituted.
On 1, 2, 3, and 13 February 2023, this matter was re-heard before the Court as presently constituted. Having determined it appropriate to re-hear the matter, the Court heard evidence of all witnesses except that of Mr Rogers given on 4 March 2022 because Mr Rogers was no longer in the employ of the Respondent and there had been some difficulty in arranging his attendance. Closing submissions were filed in writing on an extended timeframe at the request of the Applicant to enable him an opportunity to seek legal assistance with the benefit of the transcript of the proceedings.
STATUTORY FRAMEWORK
General protections
Part 3-1 of the Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect certain workplace rights and industrial activities.
Section 340 of the Act provides (and provided) that a person must not take “adverse action” against another person because the other person has exercised a “workplace right”.
“Workplace right” is defined at s.341, in three broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
“Adverse action” is (and was) defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer dismisses the employee.
Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which adverse action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise. The operation of the reverse onus has been considered in many cases, a neat summary of which was articulated by the High Court of Australia in Qantas Limited v Transport Workers’ Union [2023] HCA 27 (Qantas):
Section 361 of the Act establishes a rebuttable presumption that the adverse action was taken for the reason alleged, or with the intent alleged, if taking action for that reason or with that intent would constitute a contravention of Pt 3-1 of the Act (which includes s 340). A person takes action for a particular reason if the reasons for the action include that reason [55]. The presumption in s 361 recognises that the decision‑maker is uniquely placed to know the reasons for their action and should thus be made to prove them [56]. An employer can discharge that onus by proving that none of its substantial and operative reasons for the adverse action was to prevent the exercise of workplace rights [57].
[55] Fair Work Act, s 360.
[56]General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 at 617; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 517 [44]-[45], 519‑520 [49]‑[51], 535‑536 [105]-[106]; Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423 at 430-431 [33]-[34].
[57]Bowling (1976) 51 ALJR 235 at 238‑239, 241-242; 12 ALR 605 at 611-612, 616‑617, 619; Barclay [No 1] (2012) 248 CLR 500 at 522 [56], 523 [59], 523 [62], 535 [103]-[104], 542 [127]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at 249 [7]-[9], 252-253 [22], 267 [85], 268‑269 [88]-[90]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at 160 [30], 160‑161 [32], 169 [75]-[77], 186‑187 [166], 191 [190]-[191]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at 281‑282 [36]-[37], 301 [130]-[131], 302 [133]-[135].
Section 340 is a civil remedy provision. The Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of this section: s.539(2). That power extends to relief in the form of declarations, compensation and penalties.
CONSIDERATION
Was adverse action taken by the Respondent against the Applicant?
Yes.
The Applicant consistently maintained (in his original claim, pleadings and closing submissions) that the adverse action he claimed to have suffered pursuant to s.342(1) of the Act, on account of prohibited reasons in accordance with s.340(1)(a)(ii), was his dismissal from employment.
The Applicant was dismissed from his employment at the initiative of the Respondent.
There was no dispute that the Applicant’s dismissal was an “adverse action” within the meaning of s.342(1) of the Act and the first threshold issue in relation to the alleged contravention of s.340 is therefore made out.
For completeness, whilst terms such as “prejudicial action” were used at times with reference to historical facts, the Applicant did not plead with the necessary precision nor was he understood to press any alleged contravention of the Act by reference to any other form of adverse action as defined at s.342 of the Act. That evidence of other alleged prejudicial action has been received by way of relevant context.
Did the Applicant have and exercise a workplace right(s)?
Yes.
It was not contentious that the Applicant exercised workplace rights on many occasions during the course of his employment, including workplace rights he relevantly possessed to make a complaint or inquiry in relation to:
(a)Workplace health and safety;
(b)Shift allocations and rostering; and
(c)Leave allocations.
The evidence as detailed above established the Applicant’s exercise of those workplace rights in the following ways: inquiries made by email, letter and verbally; complaints made by email, letter and verbally; initiation of grievances under the procedure in the Respondent’s enterprise agreement; workers’ compensation claims; submission of internal occupational health and safety forms and verbal reports of safety concerns; an inquiry made of the Queensland safety regulator; and the 2017 Fair Work Commission Dispute.
For completeness, of the 89 instances that the Applicant alleged in his summary table some did not constitute a “workplace right” as defined by the legislation and the authorities at all:
(a)a number were a “follow up” on the progress of a complaint or inquiry previously initiated and therefore might properly be characterised as a relevant development in relation to the exercise of a workplace right but not the exercise of a workplace right itself – for example, the Applicant’s email of 10 September 2019 which responded to a reply from Mr Rogers about the 28 August 2019 OHS Form and otherwise followed up on the matter to suggest a possible solution;
(b)some, but far from all, were purportedly made on behalf of other employees and without more were not related to the Applicant’s employment and not within the scope of the legislation: Harrison v In Control Pty Ltd [2013] FMCA 149 at [111] – for example, that part of an email of 26 October 2017 purported to be an underpayment claim on behalf of other employees; and
(c)some, but far from all, were not established as made in good faith and therefore not a workplace right within the ambit of the legislation and on the established authorities: Messenger v Commonwealth of Australia (Represented by Dept of Finance) [2022] FCA 677 (Messenger) at [139] and Morley v Monza Imports Australia Pty Ltd [2018] FCCA 622 at [49] – for example, those of 15 June 2017 which on the evidence were made for an extraneous purpose – in his own words, the Applicant considered it important to lodge the safety forms for non-urgent, pre-existing issues at that particular time because he was heading to the Fair Work Commission with a general protections dispute by which proceeding he was seeking to protect his preferred rostered shift.
Nonetheless, for present purposes and in the context of the claim as it was plead, it is sufficient that the Applicant has made out the exercise of workplace rights that he was able to make including as relatively proximate to (in the months prior to) his dismissal. The Respondent’s witnesses variously accepted that the occupational health and safety forms were not contrived and were taken seriously, followed up and resolved. In particular, there was no dispute about the three workplace rights that the Applicant relied on in his closing submissions as of sufficient nexus to the dismissal as being within the scope of s.341 and exercised by the Applicant:
(a)Workplace health and safety form submitted through the Respondent’s internal reporting system, on 28 August 2019 (earlier defined as the 28 August 2019 OHS Form);
(b)Claim to WorkCover Queensland for anxiety alleged caused by the 22 November 2019 incident; and
(c)Complaint submitted by email to Mr Rogers regarding the 22 November 2019 incident.
In respect of (b) and (c) above, whilst these workplace rights were plainly responsive to or consequential upon the 22 November 2019 incident, the Respondent did not contend that they were solely made for an extraneous purpose or not made in good faith nor am I satisfied on the evidence that such contention would not meet the relatively high bar established by the authorities in those respects. Indeed, that at (b) was at least initially accepted by WorkCover Queensland and there is no evidence before the Court that the decision to accept the claim was appealed or set aside on review.
Does the burden of proof shift to the Respondent?
Yes.
Pursuant to s.361 of the Act, the burden of proof then rests with the Respondent to rebut the presumption that the adverse action in the form of the Applicant’s dismissal effective 23 January 2020 was taken for any of those, or for reasons which included even one of those, prohibited reasons being the exercise of his established workplace rights (namely, the three complaints or inquiries made on and since 28 August 2019).
The operation of the statutory presumption and associated standard of proof requires the Respondent to show, on the balance of probabilities, that the dismissal was not taken for any reason that included the exercise of those workplace rights.
Was the adverse action taken for a prohibited reason(s)?
The answer is presumed to be yes, the Respondent not having discharged the reverse onus.
Who made the decision to dismiss the Applicant?
It is necessary to first identify the relevant decision-maker(s) on the part of the Respondent in order to assess what was in the corporate mind of the Respondent and to ascertain the Respondent’s reason(s) for the adverse action in this case: Qantas at [107]; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32 (Barclay) at [44]; see also Wong v National Australia Bank Limited [2021] FCA 671 (Wong at first instance) at [84].
The Respondent sought to position Mr Myler as the sole manager responsible for the decision to terminate the Applicant’s employment, which decision was made after an initial investigation conducted by Mr Rogers. The Respondent argued that no other manager or executive of the company contributed to the final decision-making process.
The evidence was inconsistent on the point. The Respondent’s filed evidence was minimalist and made the barest contentions as to attribute the sole decision to Mr Myler following an investigation by Mr Rogers. That evidence is not preferred in light of the contemporaneous records and oral testimony given to the Court.
The contemporaneous records reflect that, in the days prior to the communication of the termination decision to the Applicant, Mr Myler was in correspondence with Mr Keune, on which Mr Milton, Mr Parkes and Mr Rogers were also copied. By his 17 January 2020 correspondence, Mr Myler confirmed that the process would involve concluding the investigation and provision of “our recommendations” regarding the Applicant’s on-going employment with G James.
At least Mr Keune had a role in the final decision-making process. The Court was told that Mr Keune is a senior executive of the company who worked closely with its Managing Director, Mr Saragossi. By his 20 January 2020 email, Mr Myler requested his review of the investigation materials (statements) and advice as to whether it was ok to proceed with the recommendation. The communication that followed is not in evidence. Then, on 21 January 2020, Mr Keune had input to the termination letter, altering the reason(s) for dismissal that were communicated to the Applicant. On Mr Saragossi’s evidence, Mr Keune informed his own assessment of whether to raise objection to the proposed termination decision and then conveyed the ultimate non-objection to Mr Myler. Mr Keune’s role was said to be “procedural” but it is plain that he was closely involved in the decision, with the authority and power to effect it, and what other communications Mr Keune had and what was in Mr Keune’s mind is simply not before the Court.
There is also a legitimate basis to question how limited Mr Saragossi’s input really was. The Respondent contended his role was akin to a “rubber stamp” of Mr Myler’s decision. The evidence did not resolve to whom the “recommendation” to which Mr Myler referred in his email to the group of managers on 17 January 2020 was to be made. Mr Myler described Mr Saragossi’s role as “ratification” and someone who did not get involved in such matters. But, when asked to expand on his role, in his own words Mr Saragossi vacillated between very much “hands off” and very much “hands on”. Mr Saragossi himself acknowledged that he would ordinarily be quickly appraised of a serious altercation in the workplace and over the years had engaged directly with issues involving the Applicant. That evidence was consistent with the picture he sought to paint of walking the floor and having a high regard for safety and issues raised by employees and including that he personally ratified the dismissal of the Applicant. It would have perhaps been understandable if the business had sought to insulate the Managing Director from litigation of this kind by ensuring he had no involvement whatsoever in this particular termination decision but the evidence does not establish that is what occurred in this case. To the contrary, the evidence points to the Managing Director perhaps understandably having taken an interest in matters involving the Applicant including the final termination decision.
There is then the matter of the involvement of Mr Milton who was Mr Myler’s direct manager and was copied on Mr Myler’s emails in the days prior to the termination, which eluded to a collective recommendation regarding the Applicant’s ongoing employment. Mr Milton was also a senior manager whom Mr Saragossi expected would ordinarily have been privy to the considerations. Mr Milton did not give evidence to the Court.
What were the reason(s) for the Applicant’s dismissal?
The focus of the inquiry as to whether there has been a contravention is upon the reason(s) for the decision maker taking the adverse action. The task is to identify, as a question of fact, the actual, immediate or operative reasons for taking adverse action: Qantas at [104].
The vast authorities on the point acknowledge the complexity associated with ascertaining the reasoning process where a number of persons are involved: see, for example, Wong at first instance at [85]. In a case of this nature, it is the Respondent who bears the onus of disproving the presumption.
The Respondent’s case was that the only reason for the termination of the Applicant’s employment was his serious misconduct by way of physical assault of another employee. It may be accepted that finding was a motivating or actuating reason of Mr Myler.
There was a close nexus between the Applicant’s dismissal and: the 28 August 2019 OHS Form; the submission of the WorkCover claim on 25 November 2019 which was accepted by WorkCover the day prior to dismissal on 22 January 2020; and the Applicant’s final complaint of alleged bullying on 19 November 2019. Mr Myler’s blunt denial of any other matter(s) taken into account in reaching his decision is somewhat challenged by his approach to evidence which was not entirely forthcoming. For example, there were additional reasons for Mr Myler’s conclusion of serious misconduct that were not initially communicated to the Applicant and disclosed to the Court in cross-examination. And Mr Myler’s attempt to paint himself as entirely independent, being relatively new to his role and having not met the Applicant at the time of his dismissal, did not resonate with subsequent evidence that evinced his knowledge of the Applicant’s history of complaints and that his complaints and responses to them were being reviewed and managed by human resources (including Mr Myler himself who was copied on various emails in evidence).
To the extent that the termination decision was based on the outcome of the initial investigation conducted by Mr Rogers, there is some doubt as to the “appropriateness” of that investigation. Mr Aitken was present for all witness interviews. Both Mr Aitken and Mr Rogers were recipient of and required to respond to the 28 August 2019 OHS Form against a backdrop of many others. If Mr Rogers’ evidence were accepted, Mr Aitken had a strong dislike for the Applicant and motive to have him removed from the business.
In any event, on the evidence before the Court, the Respondent has not established on the balance of probabilities that the decision was confined to the sole discretion and sole reasoning of Mr Myler informed only by the initial investigation conducted by Mr Rogers. Absent evidence of Mr Keune, a determination of the actual or authentic reason(s) for the decision is not able to be made.
For completeness, it may be observed that this is not an unfair dismissal case and therefore it is not the task of the Court to scrutinise the investigation process from the perspective of whether the dismissal was harsh, unjust or unreasonable (including procedurally flawed or unfair). Similarly, it is not necessary to establish whether certain work procedures subject of the Applicant’s complaints were actually safe.
Further, as a heavy plant operation it may be accepted that safety was a concern of the business. In this respect the evidence was that, to the extent of the Applicant’s safety complaints, the Respondent took the initial notification in each case seriously and actioned them where management considered necessary (even if not in a manner that would satisfy the Applicant). To the extent that the Respondent’s witnesses sought to say that the company had either encouraged or tolerated the Applicant’s complaints and inquiries, there was sufficient evidence to establish that the persistence of those complaints, including those about low-risk safety matters and other matters such as rostering with a regularly aggressive and at times threatening tone, was not appreciated by and an ongoing source of frustration to management.
What if any remedy should be ordered?
The Court may make any order it considers appropriate if satisfied that a person has contravened a civil remedy provision, including an order awarding compensation for loss that a person has suffered because of the contravention: s.545 of the Act.
The parties will be invited to address the Court about the appropriate relief (if any) to be granted, with evidence in support and with the benefit of these reasons.
RESOLUTION
For the above reasons, the application will be allowed to the extent of the finding that the Applicant was dismissed from his employment with the Respondent on 23 January 2020 in contravention of s.340(1)(a)(ii) of the Act and the question of relief (if any, which is yet to be determined), and is otherwise dismissed.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 9 February 2024
Annexure A
PRIVATE AND CONFIDENTIAL
[…]
Dear Dean,
Re: Termination of Employment - Workplace Health and Safety /Serious MisconductOn the 15th January you attended a meeting with myself, Ian Rogers (OHS Coordinator) and Kurt Neuman (AWU Organiser) to determine whether G James should not terminate your employment for pushing Warren John Manski to the ground during a confrontation between the two of you.
The key findings from the investigation are as follows:
·There was a verbal altercation between yourself and Warren John Manski. There were witnesses to this altercation.
·The altercation was regarding John cleaning out some racking that was holding aluminium profiles.
·John told you a number of times during the altercation to leave him alone but you persisted in your confrontation. At one point you left but returned soon after to continue in the confrontation.
·During this altercation, at some point John turned to walk away and you pushed him in the back which knocked him to the ground.
During your employment with G James, you have attended induction training and also received the Conditions of Employment of G James. The Conditions of Employment clearly state that Serious Misconduct, which warrants instant dismissal includes, but is not limited to 7) Causing bodily harm to others or the possibility of causing harm to others.
Due to the seriousness of this breach, G James has formed the view that it can not keep you employed given the risk you pose to both yourself and other employees. As such you have been summarily dismissed from your employment with G James for gross misconduct.
Your final day of employment will be 22 January, 2020. All entitlements due and owing to you will be deposited into your nominated bank account in the next pay period.
If you are unclear about any of the contents of this letter, please contact me directly.
Yours sincerely,
[signature omitted]
Sean Myler
Extrusion ManagerAnnexure B
From: Dean <.…[email protected]>
Sent: Thursday, 19 December 2019 12:04 PM
To: Ian Rogers
Subject: Incident of verbal assault & bullying to report - occurred on Friday 22/11/2019Good morning Ian.
Firstly let me start by apologising for not having yet been able to meet with you to discuss my injury, that occurred after an incident with John Manski and then later with Dallas Mills on 22/11/2019.
I have found it extremely hard to focus on explaining the totally unexpected and unprovoked verbal assault incident that occurred on 22/11/2019 which caused me to seek medical attention on the day.
You by now, have been made aware that I have been diagnosed and am being treated for anxiety, which was directly caused by the verbal abuse I encountered.
The morning of 22/11/2019 explained:
1). John Manski (1 unfit person, with known health issues - diabetes, shoulder and back problems) was assigned to unload a safety hazard which meant standing in the middle of the overloaded makeshift unsafe shelving, with many unbalanced, entangled, some heavy & some floppy, up to 6.5 meter lengths on extruded aluminium to unload. The shelving at it's load, was deemed unsafe by myself, HSR Dallas Mills and Supervisor Phil Fischer.
2). This breach of the company's duty of care for John, bothered me a lot as I could see him struggling and becoming frustrated at being solely given the task.
3). As the company's Workplace Hea lth & Safety Coordinator Ian, you are acutely aware of my proactive safety initiatives over the last 2.5 years and this kind of disregard for my & my co-workers safety is all to common in my opinion.
4).After around 30 minutes of completing my normal mornings task's, I decided to put aside my own work to assist John with the task so that he would make the task safe - in hindsight, I could see John was frustrated and angry, but I never considered his anger would be aimed at me.
5) I walked over to John (approx. 10m away from my work station) and was confronted by him aggressively stepping up in my face. He started yelling at the absolute top of his voice at me "THIS IS ALL YOUR FAULT - THESE RACKS HAVE BEEN HERE FOR EVER AND HAVE NEVER BEEN A PROBLEM - IT'S YOU'RE FAULT I HAVE TO DO THIS - YOU THOUGHT THEY ARE DANGEROUS, YOU SHOULD JUST WALK AROUND THEM YOU LAZY SHIT"!!!
6) I was in absolute shock and without saying a word returned to my desk in disbelief.
7) After trying to return to my own daily task's, I was unable to concentrate as John was still dangerously and carelessly ripping alloy out from the racks and I felt he was going to hurt himself or the shelving would spill extrusion on to him.
8). I returned to John, to explain to him that I was there to offer him help to complete the task he had been
5iven.
9).John once again aggressively & threateningly stepped up in my face and started yelling at the top of his
voice at me again. This time (standing face to face not more than 25cm from my face) was spitting over my face as he yelled.
10.Frustrated and in shock, I tried to be heard over his abuse and yelled over the top of his voice "I am here to offer you help to do this job John". While I was saying those words, John was still abusing me at full voice and his spittle went in my mouth.
11).As I wiped the saliva from my face and mouth, John turned away still yelling and cursing at me.
12).I was no longer interested in Johns safety after the way he had treated me, so I moved forward to head back to my work station, when I tripped on discarded aluminium from the racking that was lying on the ground.
13).Inadvertently causing me to knock into John, which caused him to fall to the ground.
14).I was able to regain my balance, but then felt immediate concern for John, as now I may have accidentally injured the 1 person I had been trying to keep safe from harm.
15).John did not even waiver in his verbal abuse towards me - from the floor, still yelling abuse at the top of his lungs - as he stood up, still yelling abuse at the top of his lungs - as I more carefully walked around him to return to my desk, still yelling abuse.
16).I did not even have an opportunity to apologise for accidentally knocking him to the floor, as his verbal abuse was non-stop.
17).I again tried to settle myself back into my normal duties, but I feel I was quite broken by that point. I could not focus on anything, my heart was beating out of my chest and I felt sick.
18).0ut of concern for John, I went to speak to HSR Dallas Mills about John being the 1 person to be given the high risk job of unloading the unsafe racking.
19).Dallas's scorning attitude was a further shock to my system. Dallas said "I don't even .know why you complained about that shelving, it isn't 'that' unsafe & it mostly has only light weight alloy in it anyway".
20).I was unable to process anything after that brief conversation with Dallas - our HSR that had earlier judged the amount in the racks himself to be unsafe - he had also judged the racks themselves, to be inadequately made to safely support the lengths of extrusion stored in them.
21).1 left site approx. 7.30am to seek medica l advice.
22).Dallas Mills was notified via text of my absence, as there was no supervisor on site on the dayshift 22/11/2019.In summery Ian, I have been your biggest supporter of Workplace Health & Safety reform, since you began working in your role as Workplace Hea lth & Safety Coordinator for G. James.
The company's duty of care towards 800 Extrusion staffs safety and wellbeing, has not been greatly improved upon and the events of 22/11/2019 show that.
Supervisors are either unaware of, or are ignoring their duty of care to employee's safety - giving the job of removing heavy and floppy 6.Sm lengths of extrusion, out of an overloaded and unstable shelving, to one employee. I feel this was the sole reason for Johns anger.
John did not feel he had any other avenue to express his dissatisfaction at being given the dangerous task to do on his own so I, the person who made the safety concern known, took the brunt of his anger.
Dallas Mills (HSR) clearly did not want to be known as the person who thought the racking was unsafe or overloaded, because he ostracised & belittled me when I questioned him about John's assignment to unload the racks anonymously - essentially denying they were unsafe and that I had no place asking him to make the safety concern now to our supervisor. Not an action that a confident and competent HRS would ever take if serious about his role in making the workplace safer for employees.
None of these questionable bullying actions would have occurred on the day, if G. James was more vested in correct safety protocols at the 800 Kingsford Smith Drive Extrusion Plant.Once again, I apologise for the very late submission of this incident report.
Regards,
Jean Pegler.
(sic)
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