Raymond Butler v City of Wanneroo

[2015] FWC 4

[2015] FWC 4 [Note: An appeal pursuant to s.604 (C2015/1466) was lodged against this decision - refer to Full Bench decision dated 2 April 2015 [[2015] FWCFB 2324] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raymond Butler
v
City of Wanneroo
(U2013/15207)

COMMISSIONER WILLIAMS PERTH, 8 JANUARY 2015

Termination of employment.

[1] Mr Raymond Butler (Mr Butler or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is the City of Wanneroo (the City or the respondent).

[2] The applicant was demoted in his employment from a supervisory position to a position titled “Waste Operator” Level 5 which is a position with a significantly lower annual rate of pay than the applicant’s previous position.

[3] The respondent acknowledges there is jurisdiction to hear this unfair dismissal remedy application given the demotion and the terms of section 386(2)(c) of the Act.

Background

[4] The applicant was demoted because the respondent concluded that he did not provide employees under his control with a safe workplace. This finding was reached after an investigation into an incident at the Wangara Recycling Centre (WRC) which occurred on 6 August 2013.

[5] The investigation found an employee under the direct supervision of the applicant was entering a piece of plant called the ONP (Old News Paper) screen (the screen) without the electrical isolation switches being engaged and without the box which contained the isolation switches being padlocked.

[6] The incident breached the respondent’s established isolation procedure and the respondent says may have resulted in the serious injury or death of the employee.

[7] At the time the incident occurred the applicant was the Acting Business Manager Waste Operations at the WRC. The applicant was responsible for the overall safe operation of plant and training of employees as it relates to safety.

[8] Key accountabilities for the role of Business Manager Waste Operations specifically include:

• providing leadership and guidance to staff;



• providing staff training and development;



• ensuring the ongoing education of staff regarding the City’s policies and procedures;



• to promote, implement and monitor safe work practices in line with the City’s Safety Management System; and



• to exercise duty of care in line with the City’s Occupational Safety and Health policies.

Findings

[9] Considering the evidence I make the following findings of fact.

[10] The respondent has a Safety Management Plan which outlines the safety expectations of all levels of employees.

[11] The Safety Management Plan outlines the responsibilities of each employee.

[12] As the Acting Business Manager Waste Operations, the applicant was required to:

• monitor OSH performance within his area of responsibility and provide support to employees and hold them accountable;



• take a leadership role to ensure there is commitment throughout his area of the operation’s management structure to achieve the objectives of the Safety Management System; and



• take all practical measures to ensure that the workplace under his control and the behaviour of all persons in the workplace is safe and without risk to health.

[13] Specifically with respect to the WRC there has been an emphasis on safety to the extent that the WRC was shut-down for approximately four weeks in the early part of 2013 to allow all WRC employees including the applicant to undertake safety training.

[14] The applicant was aware of and understood his obligation with respect to safety.

[15] At the time of the incident he had overall responsibility for the management of a total of as many as 55 staff.

[16] At the WRC the screen involved in this matter separates paper and cardboard from other refuse. The raw material comes into the site and is subject to some hand sorting initially. Thereafter it is put through a series of screens intended to separate the glass, old newspaper type material and old corrugated cardboard.

[17] This matter relates to the screen that separates the old newspaper type material. Because the material coming through is not uniform in composition or type, it is common for the plant which includes the screen to jam. The blockages are caused by such things as wire becoming entangled around rollers.

[18] The removal of blockages is a physical process carried out by the Operators who are required to enter the screen using the safety harness and lanyard provided.

[19] Prior to anyone entering the screen, there is a procedure for shutting down the plant and ensuring that it cannot start up while the safety measures are in place.

[20] The safety measures employees are required to follow before entering the screen to clear a blockage are to ensure that:

1. The touch screen which operates the plant is covered by a panel which is locked with the key held by the Shift Supervisor or Leading Hand;

2. The brakes for the rollers are activated. There is a recognisable sound when the brakes are activated.

3. The three isolation switches are engaged by moving each switch from the vertical position to the horizontal position and the transparent cover over the box of switches, three for the screen and two for the “fines”, is closed and padlocked.

4. Employees entering the screen must wear a harness and attach a lanyard to their harness in accordance with the working at heights training.

[21] The relevant staff, including Mr Butler, where familiar with these procedures and aware they must be followed.

[22] When the isolation switches are in the horizontal position they are engaged and the screen is then isolated from the electricity supply.

[23] If the isolation switches to the screen are not engaged then the screen is “live” in the sense that it is electrically connected to the mains power supply.

[24] Blockages in the screen occur daily and on occasions more than once a day.

[25] The written procedures whilst not up to date expressly allocate the safety responsibility during screen blockages to the Shift Supervisor and the Leading Hand.

[26] There is no requirement for the applicant to attend and supervise staff on each occasion when there is a blockage of the screen although when he is present he will actively ensure the safety measures are followed.

[27] At the relevant time the applicant was coincidentally present and standing near the screen as a result of his involvement in discussions with Mr Power concerning an unrelated issue and was conducting a telephone conversation.

[28] The evidence of the applicant was that Ms Moorfoot at the relevant time was on the ladder and was about to but had not yet moved into the screen when he moved so that he could look at the isolation switches.

[29] Whether at this point the isolation switches where engaged or not is a critical issue in dispute between the witnesses.

[30] The applicant says he looked and saw that the isolation switches were in the horizontal position and so were engaged as required by the safety procedure.

[31] However at this moment the isolation switches box was not padlocked closed which the applicant acknowledges to have been the case but says he did not notice at the time.

[32] The evidence of Ms Moorfoot, the Supervisor, and Ms Wedge, the Leading Hand, does not clarify whether the switches were engaged or not. Ms Moorfoot seems to use the term engaged in the opposite meaning to other witnesses but effectively assumed Ms Wedge had appropriately isolated the screen.

[33] The evidence of Mr Nicholson, the Fitter/Boilermaker, is that he was talking to Mr Riddell, a Plant Operator, whilst standing next to the isolation switches box at the time just before Ms Moorfoot was about to enter the screen and whilst a Mr Brookes had one foot in the screen. Mr Nicholson’s evidence was that he realised the isolation switches were vertical, had not been engaged, and so he flicked the switches to the horizontal position to engage them and isolate the screen.

[34] Mr Nicholson’s actions were confirmed by the evidence of Mr Riddell.

[35] Similarly the evidence of Mr Power was that he heard an employee yell words to the effect of “It’s not locked out, It’s not isolated!” and then saw a male employee flicking the switches of the isolation box. This evidence is also consistent with the evidence of Mr Nicholson.

[36] Mr Zaccaria’s evidence was inconsistent on this issue and is unhelpful in resolving this question.

[37] Mr Anderson’s evidence was also unhelpful on this issue.

[38] I note with some concern that there is real doubt over the creditability of Mr Zaccaria and/or Mr Anderson because their written statements contain some paragraphs that are identical to the point of including the same grammatical errors. Both witnesses however deny that they have colluded but self-evidently either one of these witnesses has copied parts of the statement of the other or possibly both witnesses agreed to make a partly identical statement.

[39] Having considered all of the evidence on this central issue the majority of the witness evidence is contrary to the applicant’s version. My conclusion is that at the relevant time when Ms Moorfoot was about to enter the screen the isolation switches were not engaged, they were in the vertical position contrary to the evidence of the applicant Mr Butler.

[40] This raises the question of whether the evidence of Mr Butler, that the isolation switches were engaged at this time, was false or honestly given but mistaken.

[41] In his evidence Mr Butler was adamant that the isolation switches were engaged and he has never displayed any doubt about this however he also says that at the same time when he was deliberately checking the switches position he did not notice that the switch box cover was not padlocked closed which is also one of the safety measures to be applied. There is some inherent inconsistency in Mr Butler having positively noticed the switches position but having failed to notice the cover was not padlocked. This does cast some doubt on the truthfulness of his evidence.

[42] Further it is difficult to accept that Mr Butler could make such a glaring mistake as to deliberately look at the position of the isolation switches and mistakenly see them as engaged when this was not the case at all.

[43] I note that it seems initially that some staff involved understood that the alleged safety breach that was concerning the respondent was the failure to padlock the cover of the isolation switch box closed.

[44] A relevant question in considering whether Mr Butler was truthful on the switches position or not is what motivation he may have had for lying to the respondent about whether the isolation switches were engaged.

[45] It is the case that Ms Moorfoot and Mr Butler were in a personal relationship at the time of these events. The respondent as part of its investigation interviewed Ms Moorfoot and pursued its concerns with her that as the Supervisor at the relevant time she had direct responsibility for the apparent safety breach and made it clear that her employment was at risk.

[46] One motive for lying could have been that Mr Butler initially sought to minimise the seriousness of the events to protect Ms Moorfoot by attempting to contain the safety breach to not padlocking the switch box cover but being unaware that the evidence of others would also show that the isolation switches were not engaged. Alternatively or as well another motivation for lying may have been to protect himself from criticism and discipline as ultimately occurred.

[47] Whether these were the motivations or not on balance it seems more likely than not that Mr Butler deliberately lied to the respondent as to his knowledge of the position of the isolation switches during the course of the investigation and in his evidence.

[48] As to the consequences of not applying all of the safety measures as was required I accept that an employee entering the screen, in the circumstances that Ms Moorfoot was about to, where the isolation switches had not been engaged and the switches box had not been padlocked closed but the other safety measures of locking out the touch screen and applying the brakes had been applied still did involve a risk of serious injury. To find otherwise would be to conclude that the safety measures of isolating the screen and padlocking the box closed were simply unnecessary. This is a proposition that ignores the need for multiple layers of safety measures to safeguard against the failure of any one of the measures in unusual circumstances or of operator error, as happened here, causing other safety measures to have not been applied.

[49] The respondent followed an investigation process that included providing Mr Butler with notification of its concerns in writing and allowing him to provide his responses in writing and at subsequent meetings.

[50] Whilst there arguably were some flaws in the investigations and reports by the respondent these were not fatal to the central issues the subject of the Commission’s findings above and it is well understood in the case law that the quality of investigation an employer can be expected to carry out is not to the same standard which would be expected of the police or other investigative authorities.

Submissions

The applicant

[51] The thrust of the applicant’s submission is that

• the respondent’s investigation of the incident was deficient in a number of material ways to the extent that it led to erroneous findings of fact;



• the investigation was substantively procedurally unfair;



• from the outset, the respondent proceeded from the basis that the assertions made by Mr Power were true;



• the respondent wrongly characterised the role of the applicant;



• the respondent gave no consideration of the raft of evidence that suggested the applicant had provided a safe work place; and



• the respondent failed to give due weight to its own recognition that fatigue may have been a factor or the prospect that this was simply an error.

The respondent

[52] The evidence supports the conclusion on 6 August 2013 Ms Moorfoot, then Acting Site Supervisor was entering the ONP screen when it had not been isolated putting her at risk of suffering a serious or even life threatening injury.

[53] It is clear from the evidence that the applicant did not exercise the responsibilities required of the most senior leader on the WRC site on 6 August 2013. His failure to enforce a well-understood safety procedure and to act in-line with his safety responsibilities outlined in his position description and the Safety Management Plan of the respondent was a valid reason for his demotion.

[54] A letter was sent to the applicant on 15 August 2013 outlining the respondent’s concerns over his failure to provide employees under his control with a safe workplace. On the 10 October 2013 the applicant attended a meeting with Mr Hamilton, the Acting Director City Business, and Ms Gillespie, the Project Manager Occupational Health and Safety, where the applicant’s role in the safety breach was discussed.

[55] Before the final meeting on 10 October 2013 the applicant understood the concerns the respondent had about his actions in failing to provide a safe workplace for employees under his control.

[56] A letter was sent to the applicant on 15 August 2013 outlining the respondent’s allegation over his failure to provide employees under his control with a safe workplace.

[57] The letter asked the applicant to respond to the allegation. The applicant did so in writing in an undated letter received in late August.

[58] The response led to further meetings between Mr Hamilton and the applicant. The applicant was invited to a meeting on 10 October 2013 with Ms Gillespie and Mr Hamilton where he was invited to provide a further response about his role in the safety breach.

[59] Ms Gillespie and Mr Hamilton took into consideration the applicant’s responses before determining that he had failed to provide employees under his control with a safe workplace. The applicant was informed that the respondent no longer maintained trust and confidence in his ability to maintain a safe workplace before being told that he was being demoted to Waste Operator.

[60] The respondent submits that the decision to demote Mr Butler was considered at great length. The recommendation of Ms Gillespie, in the first instance, was to terminate the applicant for failing to provide a safe workplace. Mr Hamilton took into account that the applicant’s partner, Ms Moorfoot, was also facing serious disciplinary action over the safety breach. He did not want to deprive a household of all of its income. Based on industrial precedent provided to him by Ms Gillespie he decided that a more equitable disciplinary action was demotion.

[61] The respondent submits that Mr Hamilton’s compassion in this matter should be taken into account.

Legislation

[62] The factors to be taken into account are prescribed in section 387 of the Act below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

Valid reason

[63] In this case there are valid reasons for the dismissal of Mr Butler related to his conduct effecting the safety and welfare of other employees.

[64] The conduct of Mr Butler was that whilst observing an employee, for whom he was responsible, preparing to enter a piece of plant he failed to notice that one of the safety measures they were required to follow before entering the plant, specifically to lock the cover on the isolation switch box, had not been followed. This failure exposed an employee to grave risk of harm. Separately Mr Butler during the investigation into the safety incident lied to his employer as to the position he had observed the isolation switches to be in.

[65] This conduct of Mr Butler was obviously contrary to the respondent’s relevant policies and his general duty as an employee and his specific duties as the Acting Business Manager Waste Operations.

Notification of the reason

[66] Mr Butler was notified of the reasons the employer intended to dismiss him for before it took this action and he had the opportunity to concede on the face of the evidence of others that he was wrong as to the position of the isolation switches.

Opportunity to respond

[67] Mr Butler was given the opportunity to respond to the reason for which he was dismissed and he did so.

Support person

[68] There was no refusal to allow Mr Butler to have a support person present during discussions that related to his likely dismissal.

Performance warnings

[69] This is not applicable in this case.

Size of the enterprise

[70] The respondent is a large enterprise and the procedure adopted in this case was as would be expected in an enterprise of this size.

Human resource specialists

[71] The respondent does have dedicated human resource specialists and these were involved in this matter and consequently the procedure adopted is also as would be expected.

Other relevant matters

[72] The formal written procedure detailing the safety measures applicable to this situation was not up to date however the correct current procedure was known and understood by the relevant employees and apparently usually complied with. This deficiency did not affect the central failings of Mr Butler in the circumstances.

[73] Mr Butler has been employed with the respondent since 1997.

Conclusion

[74] The Commission has previously found that dishonesty by an employee during an investigation does amount to a valid reason for dismissal that is likely to justify the employee’s dismissal 1. Mr Butler’s dishonesty would in all the circumstances here warrant his dismissal.

[75] The Commission has previously considered balancing the issue of seriousness of an employee’s misconduct against the consequences of the employer’s disciplinary action. Relevantly the Full Bench of this Commission in Soliman v University of Technology, Sydney [[2014] FWCFB 6394] held at paragraph [30]:

“These findings demonstrate that Vice President Watson balanced the seriousness of Dr Soliman’s conduct as found by the Misconduct Investigation Committee against the personal consequences for Dr Soliman of his demotion. That consideration was consistent with the test for harshness of a dismissal enunciated by McHugh and Gummow JJ in Byrne v Australian Airlines, namely whether it was “harsh in its consequences for the personal and economic situation of the employee or ... it is disproportionate to the gravity of the misconduct in respect of which the employer acted”. We therefore consider that the central point of Dr Soliman’s case was properly considered.” (Reference omitted)

[76] In its consideration of the appropriate penalty in this case the respondent initially considered it would dismiss Mr Butler solely because of his failure to provide employees under his control with a safe workplace. It however, taking into account the personal circumstances of Mr Butler, decided to apply the lesser penalty of demotion. In the circumstances, balancing the seriousness of Mr Butler’s conduct in failing to ensure the employee’s safety and in addition his dishonesty during the investigation against the relative penalty of the demotion and considering his lengthy service I find that there is no basis at all to find this was a disproportionate penalty.

[77] The demotion and therefore in this case the dismissal of Mr Butler was not harsh, unjust or unreasonable. The dismissal was not unfair and this application will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

K Trainer, of Industrial Relations and Advocacy Services for the applicant.

S Roffey, of WALGA Workplace Solutions for the respondent.

Hearing details:

2014.

Perth:

August 6 and 7.

Final written submissions:

Respondent, 22 August 2014.

Applicant, 1 September 2014.

 1   Streeter v Telstra Corporation Ltd (2008) 170 IR 1.

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