Philip Gielis v Arnott's Biscuits Limited T/A Arnott's

[2018] FWC 1458

[2018] FWC 1458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Gielis
v
Arnott’s Biscuits Limited T/A Arnott’s
(U2017/12556)

COMMISSIONER MCKENNA SYDNEY, 22 MARCH 2018

Application for an unfair dismissal remedy.

[1] Phillip Gielis (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act (2009) (“the Act”) in which he seeks an unfair dismissal remedy concerning his dismissal by Arnott’s Biscuits Limited T/A Arnott’s (“the respondent”).

[2] As to preliminary matters, there was no issue, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer, so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal did not involve a case of genuine redundancy.

Background

[3] The respondent, a food manufacturer, has operations at Huntingwood, New South Wales. After working for the respondent for approximately two years as a contractor, the applicant commenced direct employment as a maintenance fitter with the respondent in September 1993. The applicant’s employment with the respondent was terminated by summary dismissal on 6 November 2017. Correspondence of 8 November 2017 as to the dismissal was subsequently sent to the applicant by the respondent. As noted in the correspondence of 8 November 2017, the respondent’s reasons for the dismissal arose against the background of a lock-out tag-out (“LOTO”) issue. That correspondence relevantly read:

“Re: Termination of employment

This letter confirms the decision that was verbally communicated to you on 6 November - that is, your employment with Arnott’s was terminated effective immediately on 6 November.

Your employment was terminated in connection with the serious safety incident involving you on 30 October 2017. Set out below are the reasons why your employment was terminated. Please also refer to my previous correspondence (3 November) and meetings with you (2, 3 and 6 November).

Incident

On 30 October, you removed guards on machinery and breached Arnott’s Lock Out Tag Out (“LOTO”) Safety policy by removing your maintenance lock while the guards were still removed. As a consequence, we wrote to you on 3 November advising that the incident was under investigation and the investigation may result in the termination of your employment.

Decision

We carefully considered your responses to our letter of 3 November before making a decision about your employment, as discussed in our meeting with you on 6 November.

After assessing the information you provided the Company decided to terminate your employment, effective immediately, for your unsafe conduct including your serious breach of Arnott’s LOTO policy. In reaching that determination the following factors were considered:

•  You are a member of the maintenance department and by removing the guards from the machinery, you took on the responsibility for ensuring that the machinery was safely locked and tagged out for the duration of the guards remaining removed.

•  Arnott’s LOTO policy requires maintenance locks to remain on the equipment from the time guards are removed until they are replaced i.e. either a red lock or orange lock but there is no option to remove maintenance locks until the guards have been replaced. This has been communicated regularly through LOTO training which you have attended.

•  You breached Arnott’s LOTO policy by removing your maintenance lock while the guards had not been replaced and did not fulfil your responsibility to ensure another maintenance lock was applied.

•  Your conduct created a serious health and safety risk to yourself and your fellow workers as it made it possible for the machinery to be operated without guards.

•  You did not recognise the seriousness of your conduct or take responsibility for your actions. As a consequence, Arnott’s does not have confidence in your willingness or ability to avoid future serious safety incidents.

•  Consideration was also given to your long service with the Company but under the circumstances we determined that this was not sufficient to mitigate the seriousness of your conduct.

Your outstanding entitlements will be paid to you within seven days of the date of your termination. If you have any questions in relation to your payments on termination, please contact me.”

[4] This application involved a strongly argued case by each party concerning LOTO and other matters. The applicant (represented by Mr N Keats, solicitor) submitted there was no valid reason for the dismissal and, in any event, the dismissal was harsh.

[5] The respondent (represented by Mr G Fredericks of counsel), on the other hand, submitted that the applicant’s employment was terminated because of his failure to comply with his safety obligations. The respondent submitted the dismissal was not harsh, unjust or unreasonable and, in the alternative, the applicant should not be reinstated.

[6] Evidence was given in witness statements and was the subject of cross-examination as follows:

Applicant’s case:

•  Philip Gielis, the applicant

•  Teresa Wickman, electrician

•  Robert Lewis, maintenance fitter

•  Kaleb Trusler, maintenance fitter

•  Peter Mizzi, electrician

•  Peter Hayden, electrician

Respondent’s case:

•  Daniel Black, Reliability and Maintenance Manager

•  Clare Longford, Human Resources Business Partner

•  Bruce Cliff, Plant Manager

•  Peter Bartlett, acting Production Leader for Line 1

•  Jane Den, Safety Manager

•  Reena Manohar-Murray, Human Resources Manager

•  Nancy Fedele, Human Resources Business Partner

•  David Alison, Engineering Manager

[7] A handful of individuals whose evidence may have assisted in the determination of this matter did not provide witness statements and were not otherwise called. These included Gavin Anderson (the line engineer for Line 1), who was involved in arranging works to be undertaken on the machine which was the subject of the LOTO incident; an operator employee named Michael Powell, who undertook work on the machine; and Alan Vella, the applicant’s team leader/supervisor who detected that the machine did not have LOTO, and who was involved in certain conversations and discussions concerning matters. A reading of, for example, what those individuals are reported to have said, or are recorded in notes as having been said, does not necessarily sit comfortably with aspects of the direct witness evidence before me.

Preliminary observations

[8] One of the themes of the evidence in this case was the acknowledgment and understanding by all witnesses that the respondent’s LOTO/Isolation procedures constitute an integrally-important workplace safety measure. For self-evident and good reasons, that need not be elaborated here, effective LOTO arrangements are a core component for the safety of employees and others at workplaces.In this case there was a significant amount of evidence, much of it in dispute, about how LOTO was supposed to apply (as well as dispute about what was said to have occurred during various conversations and meetings). It is unfortunate that dispute should have occurred about LOTO when it is a self-evident proposition that the proper application of LOTO procedures should have been clearly and uniformly understood across the workforce - and right across the operations, maintenance and managerial employees.

[9] The particular LOTO arrangements at the respondent’s workplace involve, among other matters, tagged locks which each are the same except in colour. Operator employees typically use blue locks and maintenance employees, such as fitters, typically use red locks. Orange locks (or equipment locks) are used by maintenance employees, but arrangements can also be made, and have been made, for orange locks concerning work undertaken by employees, such as operator employees and line managers.

[10] I proceed on the basis of my conclusion that each and every one of the witnesses who gave evidence understood and genuinely had a commitment to work safety-related imperatives including LOTO. As to this, I am bound also to note, however, that a sharp dichotomy arose in relation to what was, as a matter of fact, happening in work processes, as against what managerial employees considered should or should not be occurring concerning the tasks being undertaken by different categories of employees. One of the clearest examples of this disconnect was that operations employees in fact not uncommonly removed guards from machines, albeit that fact was not necessarily known by managerial employees involved in the processes and decision-making around the time of the dismissal (or known to the extent that has emerged in the evidence in these proceedings). Another example was that the respondent’s managerial employees were erroneously of the view that operations employees and line managers did not have any cause to be involved in arranging orange locks, when the evidence was that such arrangements did in fact occur.

[11] Regrettably, there were differences in genuinely-based understandings of what should have occurred in the circumstances that presented themselves on 30 October 2017 – when there was an undoubted systems-type failure emerging from those different understandings of how LOTO was properly to apply. In the absence of plainly-articulated instruction from the respondent about matters which the respondent’s witnesses erroneously thought to be common knowledge and practice, it was open to reasonable minds to differ about the proper application of LOTO.

[12] Given the foregoing matters, I wish to emphasise that nothing that follows is intended to involve, and should not be construed to involve, any personal criticism of any of the individuals involved or the company. There was a complex of circumstances that gave rise to the LOTO incident and the applicant’s dismissal; and it is regrettable, with the benefit of hindsight now afforded by the evidence adduced in the case, that either of these events eventuated.

The LOTO incident

[13] The applicant had been employed by the respondent for more than two decades. He is now aged 62 years. A small number of blotches appear on the applicant’s employment record concerning what were considered to involve behaviour-related conduct, but, as if to in some ways counterbalance that, the applicant had also won a number of workplace awards. The applicant was described as meticulous in terms of his attitude to workplace safety (this meticulousness was acknowledged even in the cross-examination of one of the respondent’s witnesses). One employee described the applicant’s approach as follows: “It is almost too much. He always puts safety first” even when this “sometimes frustrates managers and production is delayed whilst additional safety steps are taken.”

[14] On Friday 27 October 2017, following emailed communications between Mr Bartlett and Mr Anderson, work was earmarked to be undertaken on a machine at the factory the following week. Atypically, the engineering department - which allocates planned maintenance work to fitters - was not put in the loop about this work even though it was to involve at least some aspects of work that typically otherwise might be undertaken with the involvement of maintenance as opposed to only operator-type employees. Maintenance jobs to be undertaken by the applicant typically involve either the generation of a work order (for planned maintenance) or direction from his supervisor/team leader (for breakdown maintenance). No arrangements had been made through the engineering department for the applicant or any other maintenance employee to be engaged in the tasks concerning the works on the machine in question. (The engineering department was interchangeably referred to as the maintenance department and the engineering workshop; and the employees coming under its auspices were also interchangeably referred to as engineering employees and maintenance employees).

[15] While there was dispute on the evidence about what unfolded next, there is enough that was common ground to conclude as follows. On Monday 30 October 2017, the applicant was walking between his own jobs that had been scheduled by the engineering department. Mr Bartlett, whose role is more senior than the applicant’s role, made an impromptu request to the applicant. That request was to provide assistance concerning a job that had already commenced and which involved an operator employee named Michael Powell. The applicant was asked to assist in the removal and/or lifting of the machine’s safety guards.

[16] The applicant not only put his own red lock on the machine’s main motor isolator next to an existing blue lock (presumptively Mr Powell’s blue lock), consistently with his meticulous approach to workplace safety, he also alerted Mr Bartlett and Mr Powell about an air pressure hazard that had not been considered by either of them. Once that air pressure hazard had been rectified and with both the existing blue lock and his own red lock affixed, the applicant spent about ten minutes providing the assistance requested by Mr Bartlett in relation to a job that had already commenced when he had been asked to assist. The applicant did not undertake the work single-handedly.

[17] There was dispute on the evidence about what was said as between the applicant and Mr Bartlett after the assistance had been completed concerning the guards, including in relation to what was said about the anticipated time duration of the work on the machine and the timing of when Mr Bartlett should telephone the engineering department. It is unnecessary for me to make a finding as to whether to prefer the version of the applicant or Mr Bartlett, because nothing turns on whose version is to be preferred. That is, if it relevantly was the case that the applicant was obliged by LOTO to affix his orange lock when he removed the red lock (where a blue lock was in place and work was continuing on the guard-less machine) that obligation would have arisen regardless of whether the work on the machine with its guards removed was anticipated to involve work only to the end of the shift or, alternatively, run to a number of days.

[18] Relevantly, however, the applicant considered that certain work he had been informed was to be undertaken on the machine squarely involved engineering-type work concerning the machine’s nose bars and web (as against the cleaning work on the machine to be undertaken by Mr Powell). The evidence indicated that the responsible person within the engineering department did not receive any contact from Mr Bartlett seeking to involve the booking of maintenance staff in relation to the work on the machine. In any event, the applicant removed his red lock so as to continue onto his planned job; the machine otherwise remained locked-out and tagged-out with the blue lock. Later in the day, the applicant was in the vicinity of the machine and commented on how clean the machine was by then looking; he also noticed that the nose bars had been removed. It is unclear on the evidence who removed the nose bars, but apparently not by any maintenance employee arranged through the engineering department. Mr Bartlett was not present. Still later that day, the applicant completed his shift at 3.00pm.

[19] This much can be discerned from the evidence:

•  The machine was safely in LOTO with a blue lock when the applicant removed his red lock from the machine and departed for his planned job. The applicant did not consider it was his responsibility to attach an orange lock given the machine was in LOTO with the blue lock and work, at least involving Mr Powell, was continuing on the machine after he had assisted with the guards.

•  Mr Powell removed his blue lock when he had finished his work on the machine; the machine was then hazardously left with the guards off and without any form of LOTO. Mr Powell (who, as I noted earlier, did not give evidence) apparently considered it was the applicant’s role to have locked-out and tagged-out the machine (and assumed the applicant had done so at some location different from where his own blue lock had been affixed).

[20] On 1 November 2017, the machine was later found with the guards still removed, and without any form of LOTO. Processes commenced involving the respondent investigating matters. Throughout those processes, the applicant maintained he had not breached LOTO procedures, at least as he understood them.

[21] This moment involving the applicant’s removal of the red lock is the crux of the respondent’s case concerning LOTO procedures. In the respondent’s case, once the applicant had been enlisted by Mr Bartlett to assist with the guards matters then became an engineering job for which the applicant was responsible. The respondent’s case further put that the applicant was obligated by LOTO procedures to place an orange lock on the machine in connection with the removal of his red lock “prior to leaving the work area and knowing the guards were removed” (albeit a blue lock remained on the machine and with Mr Powell then continuing work on the machine). As to this, the dismissal letter advised, among other matters: “Arnott’s LOTO policy requires maintenance locks to remain on the equipment from the time guards are removed until they are replaced i.e. either a red lock or orange lock but there is no option to remove maintenance locks until the guards have been replaced. This has been communicated regularly through LOTO training which you have attended.”

[22] The applicant was summarily dismissed on 6 November 2017, for the reasons set out in the letter of 8 November 2017.

[23] Mr Powell, who among other matters expressed contrition to the respondent, was later file-noted on 15 November 2017 by Matt Gardiner, Manufacturing Manager, in connection with removing his blue lock and leaving the machine without any LOTO. The respondent did not take any disciplinary action against Mr Powell.

Consideration

[24] Section 387 of the Act specifies that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain matters. I turn now to those matters.

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)

[25] While the LOTO incident itself certainly had potential effect on the safety of employees, I do not consider the respondent had a valid reason for the dismissal of the applicant. That is, the evidence does not lead me to conclude that the matters upon which the respondent relied in effecting the summary dismissal were established; indeed, considering the evidence, they fell-away. In relation to each matter that was salient or relevant, and where contest existed, I either accepted or preferred the evidence in the case for the applicant as against what was advanced in the respondent’s case. It is not necessary to address the detail of each and every matter. It suffices to note that I accept the central planks of the evidence and submissions in the applicant’s case, including the submissions as to inferences to be drawn concerning the calling of witnesses.

[26] I highlight the following matters:

•  The manner in which the applicant became involved in removing the guards from the machine did not conform with the usual internal processes involving a work order or acting upon a direction from the applicant’s own team leader to undertake maintenance-type work. It remains unclear why the engineering department was not involved in the planned work to be undertaken on the machine - which, in the end, created a complex of issues about LOTO responsibilities in circumstances where the applicant was asked just to provide what might be described as a quick helping hand in a job that was by then already partly underway given a blue lock was already on the machine.

•  Arrangements had not been made with the engineering department for the involvement of any maintenance employee concerning the tasks associated with the guards, the web or the nose bars to be undertaken on 30 October 2017 – albeit there were emailed exchanges between Mr Bartlett about and Mr Anderson on 27 October 2017 about tasks to be performed on the machine the following week. Work of some description was already underway on the machine when the applicant was asked to help with removing and/or lifting the guards, in circumstances where the applicant happened to be passing-by the machine between planned maintenance jobs and was asked to provide that assistance by an employee more senior than him.

[27] While the respondent alleged that the removal and replacement of guards is solely an engineering job - and that the applicant took on that responsibility - the applicant’s evidence was that he had never been told that only engineering employees can remove and replace guards; and, moreover, the applicant was aware that “on a very regular basis” operators remove (and replace) guards – and gave examples in such respects. There was other witness evidence to similar effect. The evidence did not establish that removing guards from machines is the exclusive domain of maintenance employees. There was (unchallenged) evidence in the case for the applicant of other removals of guards by non-maintenance employees, relevantly operators and line leaders.

[28] Mr Black’s evidence suggested that at the time around the LOTO incident, the notion of operators removing guards was new to him as well as to “a whole heap of others in the leadership group.” Some investigation was subsequently undertaken and they learned that in parts of the factory this was happening. It may be noted also that Mr Cliff acknowledged in cross-examination he had become aware of matters in such respects “through this process” and as a result of “feedback from some of the team members”. Upon being asked by a more senior employee to help in the removal of the guards, the applicant did as he had been requested and, I accept, in the ways described in his evidence. In so doing, the applicant had adhered to LOTO procedures in applying his red lock and, in a safety-conscious way, separately also raised and addressed another safety matter that had been overlooked concerning an air pressure hazard.

[29] After the applicant had finished providing the requested assistance, the applicant removed his red lock from the machine. The evidence does not lead me to conclude that the applicant’s failure to place an orange lock on the machine coincidently with the removal of the red lock properly can be characterised as a failure by him properly to adhere to LOTO procedures. In so concluding, matters including the following are relevant:

•  When the applicant removed his red lock, the machine was locked with a blue lock and the applicant did not, at that point, personally have any other work to do on the machine. That is, the machine could not be re-energised so long as that blue lock was in place. At the time of the applicant’s departure the machine was safe; it could become unsafe (i.e. so long as the guards were not back in place) only by the removal of that blue lock and/or by the failure to secure the machine by another lock.

•  At the time the applicant left the machine with the guards removed and at least one employee was working on it, namely Mr Powell, that employee’s blue lock was in place.

•  The evidence indicated non-maintenance employees can and have obtained orange locks for LOTO. The evidence indicated that orange locks are not used exclusively by maintenance employees; they are used by operator employees “on a regular basis” - albeit the respondent’s managerial employees, it appears, were not aware of that.

•  It appears that Mr Powell continued undertaking work of some description at least until around the time the applicant was later that day in the vicinity of the machine and commented on how clean the machine looked. The applicant later finished his own shift at 3.00pm. As noted earlier, the respondent determined not to adduce evidence from the operator employee in its case. Against that background, it is unclear on the evidence why Mr Powell simply removed his blue tag and did not, for example, ask someone what he should do.

[30] My conclusion about lack of a valid reason for the dismissal stemming from the applicant not putting an orange lock on the machine when he removed the red lock is reinforced by my findings as to the following five matters.

[31] First, the respondent’s LOTO requirements are set-out in a detailed document which is referred to as the Positive Isolation Procedure. As to this, a single-page document was separately created and distributed by a former maintenance manager of the respondent, as a type of helpful summary guide to LOTO. That document reads (as written; bold and capitals in original):

“LOCK OUT BOX PROCEDURE

If a trade is working under LOTO and the work will not be completed by the end of the shift.

- Call the Team leader. Team Leader will organize for the incoming shift trades to go to the line.

- The outgoing trade will remove his personal lock (red lock) and danger tag.

- The incoming trade will apply his personal lock (red lock) and danger tag. Proper isolation should be confirmed at this time.

If no further work is to be undertaken, but the machine is not ready to be handed over to production.

i.e. waiting on parts,

Then an equipment lock (orange) can be fitted.

Before fitting an equipment lock, the log book must be filled out. (Include reason for attaching tag i.e. waiting on parts and work order if it exists).

Remove personal lock (red) and danger tag.

Attach equipment lock (orange) and caution tag. Print ALL details, including work order number, name and reason for attaching lock.

The key to the equipment lock is to be placed in the Equipment lock box (located in engineering office).

The Equipment Lock Box will be permanently locked.

Maintenance team leaders will have access to the lock box.

NOTE:

Red Lock YOU are currently working on this equipment

Orange Lock No one is currently working on equipment BUT it is not ready for production.

Starting the equipment may cause personal injury or damage to the machine.”

[32] The applicant’s brief assistance to Mr Bartlett and Mr Powell concluded his involvement in the matter of the machine. While evidence from the respondent’s witnesses indicated that the information in the preceding document was not an official policy document (and was not apparently even known to managerial employees until its existence came to light after the LOTO incident), and glosses were put in the respondent’s case on the meaning and intent of the words in the last segment under the heading “NOTE”, the document was prepared to assist employees and the document reads as it does. Specifically, the document notes as to the use of orange locks that “No one is currently working on equipment BUT it is not ready for production” and “Starting the equipment may cause personal injury or damage to the machine.”

[33] In the applicant’s case concerning the machine, work was then being undertaken on the equipment at the time the applicant removed his red lock. The evidence concerning the applicant’s actions accords with the approach described in the summary document that was prepared as a helpful guide for the benefit of maintenance employees concerning LOTO. Moreover, a company brochure titled “Your Guide to LOTO” includes text including “Ensure everything is in order before removing lock/tag”. Here the applicant did ensure everything was in order before removing his red lock, i.e. in circumstances where the guards were off, the machine remained in LOTO with a blue lock. It was not the applicant who left the machine unsafe. As the applicant noted: “The function of blue and red locks is the same in terms of keeping the equipment safe.”

[34] Second, all the employees called in the applicant’s case indicated that their own understanding of the operation of LOTO was on all fours with the understanding and approach of the applicant to LOTO. It may be noted that in the meeting of 6 November 2017 in which the dismissal was effected, the applicant had, for example, stated “The orange lock is only required when no-one else is working” - but the applicant’s understanding of the application of the LOTO procedures did not find favour with those investigating the matter.

[35] Third, the respondent’s evidence and dismissal letter referred to training-related matters. The applicant noted: “It was not part of any of my safety training that if I went to assist others on a job that involved the removal of guards that I would be responsible for ensuring that the machinery was safely locked out and tagged out for the duration of the guards remaining removed” – and I accept that evidence.

[36] It is clear that the respondent, quite appropriately, takes the issue of LOTO seriously. That being said, nothing in the respondent’s evidence actually identified where it was that the applicant (or other employees) had been inducted, instructed or given training as to the circumstance in which the applicant found himself on 30 October 2017 and/or why it was that he then was obligated by LOTO to secure the machine with an orange lock. As the applicant’s submissions otherwise noted, there was no evidence, beyond assertion, that the “Arnott’s LOTO policy requires maintenance locks to remain on the equipment from the time guards are removed until they are replaced i.e. either a red lock or an orange lock but there is no option to remove maintenance locks until the guards have been replaced. This has been communicated to you regularly through LOTO training which you [the applicant] have attended.” Mr Cliff was of the understanding from those in the leadership team that there was a common understanding as to matters concerning LOTO procedures and the use of red and orange locks, but that was in fact not the case considering the evidence from a range of employees.

[37] Fourth, the approach of the applicant to LOTO on 30 October 2017 does not seem to involve anything that might be described as, for example, aberrant or even counterintuitive in terms of workplace safety. Here, the machine was safely in LOTO with a blue lock at the time the applicant removed his red lock and the operator continued attending to his own work on the guard-less machine. In this context, I have also considered this matter in the context of the evidence of one of the witnesses in the applicant’s case as to the practical realities of matters:

“9. My understanding of LOTO Safety Procedure is that when multiple people are working on equipment when each completes their task they can remove their lock and move onto other tasks. The remaining employees can then continue working on the equipment as it is lock out with their locks. It is then the responsibility of the person who removes the last lock to ensure that the equipment is left in a safe state.

10. I have been told that Arnott’s considers that Phillip Gielis took responsibility for the job when he assisted taking guards off the equipment. I have never heard of this before at Arnott’s.”

[38] Despite aspects of the case advanced for the respondent that the purpose of the blue locks is only for the personal safety protection of an operator, that is, with respect, to misunderstand the purpose of LOTO arrangements more generally. It is clear beyond debate in terms of workplace safety considerations that LOTO arrangements serve the purpose of protecting any person - other employees, apprentices, contractors, visitors to the workplace and the like - who may come in contact with equipment which is then in an unsafe state due to matters such as safety guards having been removed, and not just the individual undertaking tasks in relation to the particular equipment.

[39] There was evidence about concerns among employee witnesses about the respondent having “double standards” concerning the treatment of the applicant. There was also evidence of reduced collaboration between engineering department employees and operators, in circumstance of concern by engineering department employees that they will be dismissed if they assist operator employees and, after providing that assistance and returning to their job, the operator does something in breach of LOTO. I consider the evidence as to the concerns in such respects was not without substance.

[40] Fifth, the evidence indicated that after the dismissal maintenance employees were informed that they are required to isolate equipment for operators and that if those employees go to another job and leave the guards off equipment, then even if there is a blue lock isolating the equipment they are required to attach an orange equipment lock before they leave the equipment. Moreover, on 21 December 2017, employees were informed that the respondent’s procedures were “evolving”. That these things were said to employees only after the dismissal underscores the fact that it was not the prior common understanding among employees that these steps needed to be taken. As to this evidence, I should note that it is appropriate that workplace safety measures, such as LOTO, should evolve and be responsively adapted where issues are identified.

[41] Steps appear also to have been taken by the respondent to address the practice of non-maintenance employees removing guards, given that the respondent’s managers were not aware of what was happening on the ground, so to speak, in such respects. This is a good thing for the respondent to have done in circumstances where non-maintenance employees may not consider, or even be aware of, potential hazards such as the air pressure hazard that the applicant identified once he was enlisted to assist on 30 October 2017. That hazard was described by the applicant as follows:

“I cast an eye over the job and saw an open guillotine dump gate. I was aware … that this gate was operated by around 70psi of air pressure. This is more than enough pressure to easily break human bones and do extreme damage to an operator’s limbs during a web change out.”

Whether the person was notified of that reason

[42] The applicant was notified of the reason for the dismissal, as set out in the letter of 8 November 2017.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[43] The applicant was given an opportunity to respond, but the respondent’s managers effectively did not accept his responses.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[44] There was no evidence of any unreasonable refusal by the respondent to allow the applicant the opportunity to have a support person present to assist at any discussions relating to the dismissal; and the applicant does not contend there was any such unreasonable refusal.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[45] The applicant had not received any warning about unsatisfactory performance. It is common ground the dismissal did not turn on unsatisfactory performance.

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 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

[46] At the Huntington site, the respondent employs around 400 employees. It has dedicated human resource management specialists or expertise employed within the enterprise. The size of the respondent and the procedures that were followed reflected that fact and involved matters such as interview processes with, and inquiries of, various individuals as part of an investigative process – including during the period of the applicant’s paid stand-down. The decision to dismiss the applicant ultimately was made by Mr Cliff. Mr Cliff was not personally involved in speaking with any of those involved in the incident. His decision appears to have been informed by what was reported to him by his managers but, as I have noted, certain misunderstandings existed among those managers.

Any other matters that the Commission considers relevant

[47] I do not consider, based on his reasonably-based understanding of matters, that the applicant was involved in any intentional or negligent breach, as such, of the LOTO procedures. When interviewed, Mr Powell explained that he did not consider he had been involved in a LOTO breach, and the respondent’s managerial employees accepted it as being Mr Powell’s own level of understanding that the machine would have been the subject of LOTO by maintenance employees. Significantly to the respondent’s managers, Mr Powell expressed remorse about matters such as the “INSPECT” process (which is an acronym used as aide memoire for employees about LOTO requirements, including advice that employees should secure guards that may have been removed and ensure that everything is in order before removing lock/tag). The respondent was of course entitled to take any steps that it deemed reasonable and appropriate concerning Mr Powell, and I make no criticism of the respondent’s approach in such respects – the outcome of which was the subject of a “File note” dated 15 November 2017. The leniency extended by the respondent to Mr Powell nonetheless stands in sharp contrast with the approach to the applicant and his summary dismissal.

[48] In this respect, the reasoning that led to the decision to dismiss the applicant appears to have been informed, at least in part, by the fact the applicant stood his ground about the allegation he had breached LOTO. The respondent’s “Leadership Team” indicated to the decision-maker, Mr Cliff, that not only had the applicant breached the LOTO procedures but he had failed to acknowledge this. The leadership team decided that the applicant’s responses “were irrelevant and largely an attempt to deflect from the incident”; and that he failed to recognise or take responsibility for his actions. It was the view of the leadership team that the applicant’s lack of acceptance and remorse for his breach “placed himself and others in danger going forward”. Mr Cliff’s evidence referred also matters that had been described to him as an “absence of contrition” and the applicant’s refusal to acknowledge his conduct as part of the incident leading to concern that the applicant did not “grasp the seriousness” of the incident or the associated safety concerns. In a similar vein, the respondent’s submissions included the following: “This is about the seriousness of his conduct and recognising what it was he was supposed to have done and he’s never recognised that or, as I said, even recognising that the company may have some sort of right to tell him that.  And, as I said before, that is an attitude that is greatly concerning both in terms of valid reasons and also in terms of reinstatement.”

[49] I should say that I considered the applicant to be a reliable witness. He was to-the-point and resolute in the answers he provided in cross-examination; and he did not seek to embellish matters. I consider the applicant’s stance in discussions with the respondent’s representatives about the alleged LOTO breach was entirely reasonably-based, given what was described in the evidence not only by the applicant but various other employees with many years of employment with the respondent and experience of its day-to-day operations; moreover the evidence indicated that even the respondent’s own witnesses subsequently learned that certain of what that applicant said in his own defence was, it transpires from the evidence, not mere assertion but factually correct. Members of the leadership team were, with respect, mistaken in their own (genuinely held) views about what were said to be matters of common understanding as to work practices and LOTO processes. To the extent that there was criticism in the respondent’s evidence and submissions that the applicant sought to blame Mr Powell for leaving the machine in an unsafe state, it unarguably was the case that it was Mr Powell who left the machine in an unsafe state after undertaking the cleaning work - albeit apparently unwittingly given it seems to have that operator’s own understanding that this was a task undertaken by the applicant.

[50] I do not accept the respondent’s submission that the applicant “appeared to take a somewhat bureaucratic and reductionist approach to his LOTO obligations”. The evidence indicates the applicant is punctilious about workplace safety. Against that background of that punctiliousness in relation to workplace safety (including, it again may be noted, his identification on 30 October 2017 of the hazardous air pressure issue), the applicant would not acknowledge to the respondent’s managerial representatives that he had personally been remiss in relation to LOTO – even though this acted to his detriment given the summary dismissal. The applicant had reasonable cause not to make admissions concerning the alleged failure personally to properly apply LOTO procedures or, for example, express remorse and contrition for having engaged in a LOTO breach.

Conclusion

[51] For the reasons outlined above, particularly my acceptance of what I earlier described as to the central planks of the evidence and submissions in the applicant’s case, I am satisfied the applicant was unfairly dismissed; the dismissal was, as the applicant submitted, harsh. Reinstatement is the primary remedy in the Act as to orders concerning unfair dismissal remedies.

[52] The matters relied on in the respondent’s case as to loss of trust and confidence in the applicant as an employee concerning workplace safety do not, for the reasons outlined above, appositely arise so as to militate against the restoration of the employment relationship. If given proper instruction as to what is required or expected (as occurred with other employees following the dismissal), the applicant will, I am satisfied, undertake his work with the respondent in accordance with LOTO requirements and expectations. In the exercise of discretion as to the remedy sought by the applicant, I have considered also matters including the evidence as to the applicant’s employment record, age and length of service as factors weighing in favour of the appropriateness of an order for reinstatement, as well as the strong support among former work colleagues for the applicant in relation to the evidence as to him being a particularly workplace safety-minded employee.

[53] I am satisfied that orders concerning reinstatement, continuity and restoration of lost pay are appropriate in this case. The matter will be re-listed with a view to discussing the settling of an appropriate order as to remedy to give effect to my conclusions in this decision. It would seem appropriate that the parties should confer between themselves about such matters in the first instance. A notice of listing will issue shortly.

COMMISSIONER

Appearances:

N Keats, solicitor, for the applicant.

G Fredericks of counsel, for the respondent.

Hearing details:

2018.

Sydney:

February 20, 23.

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