Peter Nicholls v Woolworths Limited T/A Woolworths Limited
[2011] FWA 4827
•25 JULY 2011
[2011] FWA 4827 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Nicholls
v
Woolworths Limited T/A Woolworths Limited
(U2011/6083)
DEPUTY PRESIDENT IVES | MELBOURNE, 25 JULY 2011 |
Termination of employment.
[1] This decision relates to an application, pursuant to s.394 of the Fair Work Act 2009 (the Act), by Mr P. Nicholls (the Applicant) alleging that the termination of his employment on 4 March 2011 by Woolworths Limited (the Respondent) was unfair within the meaning of s.385 of the Act.
[2] The matter proceeded by way of hearing on 4 and 5 July 2011.
[3] Evidence, both written and oral, was adduced from the following persons:
- The Applicant;
- Mr. G. Roberts, Butcher, for the Applicant;
- Ms F. McDermott, Human Resources Specialist, for the Respondent;
- Mr R. Summers, Store Manager, for the Respondent;
- Mr M. Evans, Trade Specialist Bakery Department, for the Respondent;
- Mr S. Doust, Trade Specialist Meat Department, for the Respondent.
The Background
[4] At the time of the termination of his employment the Applicant was employed by the Respondent as a butcher in the Meat Department of its Glenorchy Store.
[5] The Applicant has lengthy experience within his trade and had been in the employ of the Respondent for a period of approximately 15 years.
[6] On 16 July 2010 the Applicant received a ‘first and final’ warning (the warning) from the Respondent for cutting particular meat product on the store’s bandsaw without utilising the machine’s sliding guard and clamp.
[7] The sliding guard and clamp are installed on the bandsaw as safety devices to enable various meat cutting operations to be carried out without exposing the operator, and, in particular, his or her hands, to danger from the bandsaw blade.
[8] The Respondent has procedures for the use of the bandsaw which, inter alia, mandate the use of the sliding guard and clamp for a significant number, but not all, meat cutting operations. There is a chart displayed adjacent to the bandsaw indicating which cutting operations require the use of the sliding guard and clamp. 1 The chart also indicates some, but not all, cutting operations that, apparently for reasons of practicality, do not require the use of the sliding guard and clamp.
[9] The warning to the Applicant relates to a cutting operation for which the chart mandates use of the sliding guard and clamp and for which the Applicant failed to use them. The Applicant took no issue with the warning except to the extent that it was a ‘final’ warning.
[10] Under cross-examination in relation to the extant matter, the Applicant ultimately conceded that he had received training in the use of the bandsaw and to: ‘the requirement that [the Applicant] refer to the wall chart in order to determine the safe procedure for operating the bandsaw.’ 2
[11] On 1 March 2011 the Applicant injured his thumb whilst using the bandsaw. He reported the incident to the Respondent and was taken for treatment, including sutures, to the wound.
[12] An investigation into the incident ensued during which it emerged that the Applicant, at the time the incident occurred, had been carrying out an operation on the bandsaw requiring the use of the sliding guard and clamp but had failed to utilise them.
[13] On 2 March 2011 the Applicant was put on notice that he was required to attend a meeting on 4 March 2011 with the Respondent regarding the incident.
[14] On 3 March 2011 the Applicant was provided by the Respondent with further advice relating to the meeting and its potentially disciplinary nature.
[15] On 4 March 2011 the Applicant and a support person, Mr Roberts, attended the meeting along with Mr O’Dea, Area Manager, Mr Summers and Ms McDermott. At the conclusion of the meeting the Applicant’s employment with the Respondent was terminated.
[16] The Applicant was paid an amount equivalent to four weeks pay in lieu of notice.
The Applicant’s Evidence
[17] Contradictions are apparent in the sworn evidence of the Applicant.
[18] In his witness statement he states that he ‘did not believe that I was required to use the clamp and sliding guard on the bandsaw to perform the task I was doing on 1 March 2011.’ 3He further states that it is his recollection that ‘the chart did not indicate a requirement to use a clamp and sliding guard when doing the tasks I was performing when I sustained an injury on 1 March 2011.’4 In addition, the following exchanges occurred during cross-examination of the Applicant:
‘So you were intending to square the loin of all of those using the guard?---Yes. Well, there is eight of those loin and chumps in one box. So I was intending to do the four boxes, put them on the bench so that he had something to do while I was at morning tea.
You were intending to do all of those without using the clamp and guard?---It’s free-hand work, yes.
...
... What we are talking about is squaring of product?---Yes.
You’re saying that you believed it to be hands-free?---Yes.’ 5
[19] Whilst in the witness box the Applicant admitted, contrary to his evidence above, that he was and had been aware that the sliding guard and clamp were required to be used for the operation he was performing on the meat product at the time he injured his thumb on 1 March 2011. 6
[20] The Applicant stated that he had never received training involving the wall chart which prescribes the cutting operations on the bandsaw requiring the sliding guard and clamp:
‘Okay. It’s a record that the company has put forward as being evidence of you having attended particular training. That record, which is in front of you, please have a look at it - - -?---Yes.
- - - refers to the wall chart. It gives the very distinct impression that this chart formed part of and was the subject of that session; at least one of the subjects of that session. You gave me evidence not so long ago that you had never had any training which involved the wall chart. Is that still your evidence?---Yes.
So you have never had training involving this wall chart?---No.’ 7
[21] The Applicant, in a later exchange, during cross examination resiled from this position:
‘I put it to you, Mr Nicholls, that as a result of the evidence that you’ve been taken to in relation to training and the reference in all of that material to the use of the wall chart that you have been trained in the use of the bandsaw and an integral part of the training is the requirement that you refer to the wall chart in order to determine the safe procedure for operating the bandsaw. What do you say to that?---Yes.
You would accept that, would you?---Yes.
You accept that on 1 March when you squared the loin that you were not following the wall chart and therefore not operating the machine in the safe manner in which you were required to do. Do you accept that?---Yes.’ 8
[22] I find that the Applicant had received relevant training in the use of the bandsaw, including training requiring that reference be made to the wall chart to determine whether a requirement existed to utilise the sliding guard and clamp. I further find that the Applicant was aware, at the time of the injury to his thumb on 1 March 2011, that he was required to use the sliding guard and clamp for the cutting operation he was carrying out.
[23] Mr Evans and Mr Summers gave evidence that the Applicant, during the course of the investigation of the 1 March incident, acknowledged that he should have been using the sliding guard and clamp at the time he sustained the injury. 9
[24] The Applicant denied any such acknowledgment. 10
[25] At this point, and based upon the evidentiary material referred to above it is unfortunately necessary that I make a finding adverse to the Applicant’s credit as a witness and I do so.
[26] On that basis and due to the weight of evidence against the Applicant’s denial, I prefer the evidence of Mr Evans and Mr Summers. Accordingly, I find that the Applicant did acknowledge, during the course of the investigation into the 1 March 2011 incident, that he should have employed the sliding guard and clamp in carrying out the task that resulted in his injury.
Submissions
[27] Whilst conceding in final submissions that a valid reason may have existed for the termination of the Applicant’s employment, 11 it was submitted on behalf of the Applicant that the termination of his employment was, in any event, harsh and therefore unfair.
[28] The basis for this submission is firstly that the Applicant, at the time of the incident on 1 March 2011 was busy and under pressure due to a heavy workload imposed by a shortage of staff in the meat department. This workload, it was said, was neither investigated nor taken into account as a contributory factor to the incident.
[29] Secondly it was submitted that the lack of rotation in bandsaw duties among the qualified butchers in the Meat Department, and therefore presumably an inordinate exposure to bandsaw work falling upon the Applicant, was not afforded adequate weight by the Respondent in arriving at its decision to terminate the Applicant’s employment.
[30] A third matter said to support a finding of harshness in relation to the termination of the Applicant’s employment was the restrictions placed by the Respondent on the role of Mr Roberts as the Applicant’s support person at the meeting of 4 March 2011 which culminated in the termination of the Applicant’s employment. Mr Roberts, it was submitted, was effectively prevented from assisting the Applicant.
[31] Finally it was submitted that the Applicant is a long serving and experienced employee of the Respondent with, aside from the incidents involving the bandsaw, a ‘good work record.’ 12 Given the Applicant’s age and the difficulties he faces finding alternative employment, the consequences for him of the termination of his employment are severe thereby lending weight to a finding of harshness.
The Act
[32] In considering whether a termination of employment is harsh, unjust or unreasonable hence unfair within the meaning of the Act, I am required by s.387 of the Act to take into account the following factors:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
Consideration
[33] There was a valid reason for the termination of the Applicant’s employment. That reason was the Applicant’s misconduct on 1 March 2011 in breaching an important safety procedure of the Respondent, in the context of the Applicant having received the warning for a similar breach approximately eight months prior.
[34] The evidence is clear and uncontested that the Applicant was both notified of the reason and provided with an opportunity to respond prior to the Respondent making the decision to terminate his employment.
[35] There was no refusal by the Respondent to allow the Applicant to have a support person present at discussions relating to the Applicant’s dismissal. It is clear on the evidence, however, that the Respondent did seek to restrict, at least to some extent, the manner in which the support person, Mr Roberts, participated in the discussions.
[36] The Applicant’s evidence is that his understanding was that ‘Gary Roberts was not permitted to speak in the discussion.’ 13
[37] Ms McDermott stated that at the commencement of the 4 March 2011 meeting she ‘told [the Applicant] that the interview questions would be directed at him’ and that ‘Mr Roberts would be permitted to speak once the formal interview questions were completed.’ 14
[38] Mr Roberts’ evidence is to the effect that he was not permitted, during the meeting, to raise the issue of rotation of bandsaw duties. 15
[39] It is instructive at this stage to note that, during cross-examination, the Applicant agreed that the issue of rotation was, as far as he knew, the only issue Mr Roberts intended to raise at the meeting. 16 In addition, and in response to a question as to why the issue of rotation was relevant to the Applicant’s breach of safety procedures, the Applicant responded that there was no relevance.17
[40] Restrictions placed upon a support person that have the effect of diminishing or preventing the ability of that support person to provide the assistance the Act envisages, are, in my view matters that conduce towards findings of unfairness. That said, had Mr Roberts been free of all restrictions, any reasonable assessment suggests that whatever additional input he may have had would have produced no different result for the Applicant.
[41] The restrictions that applied to Mr Roberts at the meeting on 4 March 2011 are insufficient, considered either separately or in conjunction with other matters before me, to base any finding of unfairness in relation to the termination of the Applicant’s employment.
[42] To the extent that the Applicant’s action in failing to use the sliding guard and clamp whilst using the bandsaw on 1 March 2011 may be accurately characterised as ‘unsatisfactory performance’ within the meaning of s.387(e) of the Act then the Applicant was in receipt at the time, of the warning issued to him in respect to the incident of 16 July 2010.
[43] A consideration of the material before me in the context of subsections 387(f) and (g) of the Act provides nothing of relevance to any determination I might make in this matter.
[44] Before coming to a decision as to whether the termination of the Applicant’s employment was harsh, unjust or unreasonable, there are further matters that require consideration.
[45] The first is the matter of rotation, among qualified butchers in the Respondent’s Meat Department, of duties on the bandsaw. This matter may be dealt with briefly. It is the Applicant’s evidence (quoted above) that the issue of rotation is of no relevance to his failure to adhere to the requirement to apply the proper safety procedures to his work on the bandsaw. On this point I agree with the Applicant. There is no link that I am able to discern in any of the materials before me between the Applicant’s failure to use the sliding guard and clamp and the issue of rotation of bandsaw duties among relevant butchers.
[46] Secondly there is the submission, referred to above, that the Applicant was busy and under pressure at the time of the incident on 1 March 2011 and the Respondent failed to afford sufficient weight to this in coming to a decision to terminate.
[47] True it is that during the meeting of 4 March 2011, and in response to questions from Ms McDermott, the Applicant stated that, at the time of the incident on 1 March, he had had ‘the pressure of 3 butchers’ workload on him.’ 18 He apparently did not feel sufficiently under pressure to report the circumstances to the Respondent prior to sustaining his injury, and request some relief.
[48] Further, it is the evidence of Mr Doust that the Applicant had raised the issue of being busy in his defence in relation to the incident of 16 July 2010 and Mr Doust had advised him that ‘that wasn’t an excuse and told him to use the guard.’ 19
[49] The following exchange occurred during the cross-examination of the Applicant:
‘Well, not if you use the guard and guide as required under the safety procedures, is it not?---Sometimes you’re under pressure - on both occasions that I was - with workload and with the customer wanting to be served as quickly as possible in the instance with the leg chops, you do what you’ve got to do to get the job done.
That’s not the company’s policy, is it, you do what you’ve got to do to get the job done? That’s not what the company tells you to do. Is that right?---Well, you’ve got to work within the staff that you’ve got and the time allocated to do the job.
The company doesn’t tell you to do that, that’s your decision. Yes?---Well, you’ve got to do the job the best way you can with the amount of time and staff that you’ve got.
I put it to you that the company is quite explicit in saying that the urgency or the time constraints with which you are to perform things does not excuse people from departing from safe operating procedures. The company is quite explicit about that?---Well, I mean, I can only say again you can only do the work that you’ve got to do with the time and staff provided.
I put it to you that when you were warned in July 2010, it was put to you that it was no excuse that you felt under some time pressure to get a customer’s order out, that that was no excuse. Was that put to you?---It was, yes.
So you’re aware that the company is not - not only is not encouraging to you to ignore safety procedures, it’s expressly directing you not to ignore safety procedures for those reasons?---Yes, and like I say again, that comes within the constraints you’ve got on time and manpower. 20
[50] It is unnecessary to take the matter further here. I am persuaded, on the materials before me, that the Applicant was well aware both of the requirement to use the sliding guard and clamp no matter how busy he might have considered himself to be and, further, that the Respondent’s policies forbade placing urgency ahead of safety.
[51] I do not regard the evidence before me as suggestive that the Respondent somehow failed to take the Applicant’s claims of being busy and under pressure sufficiently into account. It is apparent, that the Respondent was not of the view that the Applicant’s claims somehow mitigated his breach of safety procedures. I concur.
[52] It remains finally to consider the termination of the Applicant’s employment in the context of his personal circumstances.
[53] The Applicant is sixty years of age, a long-serving employee of the Respondent, and, with the exception of the two safety related breaches referred to in this decision, an employee with an otherwise apparently satisfactory work record. In addition, the Applicant claims in his evidence to be experiencing significant difficulty in obtaining suitable alternative employment.
[54] If this was a case where the Applicant had received no prior warnings relevant to his breach then the above considerations would weigh much more heavily in any assessment I might make as to harshness. That scenario, however, is not the case before me.
[55] The Applicant is a highly experienced tradesperson, in receipt of the appropriate training and aware of his obligations in relation to safety. He was on notice from the warning issued to him less than eight months previously that, should he again disregard the requirement to utilise the sliding guard and clamp in circumstances where it was mandated, then his employment would be terminated. By his actions on 1 March 2011 the Applicant became, in effect, the ‘architect of his own demise.’
[56] The safety breach of 1 March 2011 was serious. It caused actual injury. It is not difficult to imagine that injury, but for good fortune, being far worse.
[57] I am not persuaded that the Applicant’s personal circumstances, relevant though they may be to my considerations, are a sufficient basis, considered on their own or in conjunction with other matters before me, to render the termination of the Applicant’s employment as harsh, unjust or unreasonable.
Conclusion
[58] For the reasons provided above I find that the termination of the Applicant’s employment by the Respondent on 4 March 2011 was not harsh, unjust or unreasonable and, therefore, not unfair within the meaning of the Act.
[59] The Applicant’s application is dismissed.
[60] An order giving effect to this decision will issue as PR512452.
DEPUTY PRESIDENT
Appearances:
C Buckley for the Applicant
R West for the Respondent
Hearing details:
2011.
Hobart.
July 4, 5.
1 Exhibit R1
2 Transcript, PN 324-325
3 Exhibit A1, PN 4
4 Ibid, PN 15; see also PN 31-35
5 Transcript, PN 109-110, 139-140
6 Transcript, PN 201-207
7 Transcript, PN 272-274
8 Transcript, PN 324-326
9 Exhibit R4, PN 23; Exhibit R3, PN 35
10 Transcript, PN 159-168
11 Transcript, PN 1235
12 Transcript, PN 1249
13 Exhibit A1, PN 30
14 Exhibit R2, PN 71
15 Exhibit A2, PN 12
16 Transcript, PN 354-356
17 Transcript, PN 362-363
18 Exhibit R3, Attachment RLS-13
19 Exhibit R6, PN 43
20 Transcript, PN 190-195
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<Price code C, PR512450>
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