[2020] FWC 6596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Sameir Khoshaba
v
Woolstar Pty Limited t/a Sydney National Distribution Centre
(U2020/7915)

DEPUTY PRESIDENT SAMS

SYDNEY, 10 DECEMBER 2020

Termination of employment – application for an unfair dismissal remedy – Storeperson – serious misconduct – allegation of breach of safety policies and Code of Conduct – CCTV footage of incident involving applicant’s removal of large battery – potential risk of serious reportable incident – investigation – claims of lapse of judgement and no training or experience – failure to stop work and report incident – explanations not accepted – applicant’s conduct in breach of safety policies and Code of Conduct – valid reason established – no procedural unfairness issues – mitigating factors do not outweigh seriousness of conduct – dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] Mr Sameir Khoshaba commenced employment with Woolstar Pty Ltd (a division of the Woolworths Group) (‘Woolstar’) on 12 June 1996 as a Storeperson. He was employed under the terms and conditions of the Sydney National Distribution Centre Enterprise Agreement 2018 (the ‘Agreement’) on a salary of $1,228.20 per week. He worked on the afternoon shift at Woolworths’ major distribution centre at Yennora, New South Wales, known as the Sydney National Distribution Centre (‘SNDC’).

[2] Mr Khoshaba was dismissed on 25 May 2020 following a safety incident on 9 April 2020 when he was operating a forklift while performing battery change duties in the warehouse battery bay. The letter terminating Mr Khoshaba’s employment reads as follows:

‘Dear Samier

Your employment with Woolworths Group Limited

We refer to our investigation into concerns raised about the alleged unsafe behaviours and our letter dated 11 May 2020.

In our letter, we informed you that the allegations have been substantiated and that we were concerned your conduct had breached our Code of Conduct and caused us to question the trust and confidence we can place in you as a team member. We also informed you that we were considering the termination of your employment, and gave you a final opportunity to respond to these matters, including whether or not your employment should be terminated.

Response

You attended a meeting with Shane Manning (SNDC Operations Manager) and Natalie Mooy (Culture and People Partner) to discuss this matter and to provide a response on 12 May 2020. We note you were accompanied by Brad Donnelley (UWU Organiser), Walter Videla (Union Delegate) and Eddyson Anugoh (Union Delegate) as your support people. You also responded in writing on 12 May 2020.

In summary, your response contained statements including but not limited to:

• that you did not intend to damage company property and that your intention was to dislodge the battery;

• the battery does not fall to the ground;

• you apologised for your actions; and

• Outlined various mitigating factors including your age, employment history and personal circumstances.

You attended a subsequent meeting with Maree Marshall (Shift Operations Manager) and Natalie Mooy (Culture and People Partner) on 18 May 2020 to discuss the matter further with you, and in particular to show you CCTV footage. We note you were accompanied by Brad Donnelley (UWU Organiser), Walter Videla (Union Delegate) and Eddyson Anugoh (Union Delegate) as your support people.

In summary, your response to this footage contained statements including but not limited to:

• you had forgotten how many times you had hit the PT;

• you again apologised your for actions; and

• you admitted that what you had done was wrong.

Outcome

We have now carefully considered all of the available evidence and have made the decision to terminate your employment with 5 weeks’ notice.

Instead of being required to work during your notice period, your employment will end immediately and we will pay you 5 weeks’ pay in lieu of notice in accordance with clause 19.1 of the Sydney National Distribution Centre Enterprise Agreement 2018, plus payment of your accrued but untaken annual leave, and long service leave if applicable. We will post you a copy of your final pay slip.

You must return all Woolworths Group property to Natalie Mooy by 27 May 2020.

We remind you that you have various obligations, including in relation to confidential information, that continue to apply after your employment ends.

Ongoing support

We understand that this may be a difficult time for you, and encourage you to seek the support you may need. We encourage you to use our Assist program. This is a free and confidential counselling service provided by an external provider, which you and your family can contact directly on [phone number provided].

Yours sincerely,
Woolworths Group’

[3] As will be evident, the dismissal letter does not expressly state Mr Khoshaba was dismissed for serious misconduct and he was paid five weeks’ pay in lieu of notice. However, there is little doubt that Woolstar considered the applicant’s conduct as a serious safety breach, contrary to the Company’s Code of Conduct and it had lost trust and confidence in continuing the employment relationship. This would ordinarily constitute serious misconduct. I propose to characterise Mr Khoshaba’s dismissal in that context.

[4] On 9 June 2020, Mr Khoshaba’s Union, the United Workers’ Union (the ‘Union’), filed an application on his behalf, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking the remedies of ‘reinstatement and compensation’ for his alleged unfair dismissal. The Union subsequently filed a notice of ceasing to act and thereafter, Mr Khoshaba (hereafter the ‘applicant’) was represented by Just Relations Consultants, Melbourne.

[5] The application was the subject of a conciliation conducted by a Commission Conciliator, but was unable to be resolved. Following remittance to me for arbitration, I conducted a further conciliation on 29 July 2020. However, as no settlement was reached, I confirmed my directions for a hearing on 30 September 2020. As the arbitration involved a number of witnesses where credit issues were likely, and that CCTV footage of the incident was tendered and required to be observed in the hearing, the hearing was ‘in person’, notwithstanding the restrictions on ‘in person’ proceedings, due to the COVID-19 pandemic. Appropriate health and safety measures were applied in accordance with NSW Health’s guidelines for NSW Courts. I thank the parties for their cooperation in this regard.

[6] At the arbitration, Mr G Dircks, Paid Agent, appeared for the applicant, and Mr D Mahendra of Counsel appeared with Ms H Ormandy, Solicitor, Clayton Utz, instructed by Ms M Campbell and Ms K Hollings, for Woolstar (or the ‘respondent’ or the ‘Company’). Both parties were granted permission to be represented respectively by a paid agent and a lawyer, pursuant to the provisions of s 596 of the Act.

THE EVIDENCE

[7] The following persons provided statement and oral evidence in the proceeding:

• Mr Stuart Williams – Supply Chain Manager;

• Ms Natalie Mooy – Culture and People Partner;

• Mr Larry Pedrigal – Storeperson; and

• the applicant.

For the respondent

Ms Natalie Mooy

[8] Ms Mooy’s evidence dealt firstly with the applicant’s disciplinary, performance and training history. Despite the applicant’s claim of a good work history, Ms Mooy records as follows:

‘(a) In February 2012 Sameir was subject of a ROD about the importance of reporting matters when he sees a hazard rather than attempting to rectify them himself. The ROD notes that:

ROD held with Sam re the importance of reporting matters when he sees a hazard - not to try and rectify the problem himself. Today he attempted to correct a pallet on a lean at nth end top pallet too heavy for bottom - he was unable to correct it - in trying two cartons fells and were damaged

(b) In May 2012 Sameir was issued a first and final warning for taking an energy drink without payment.

(c) In July 2012 Sameir was verbally warned for a safety breach where he did not complete his pre-start safety check. The breach was discovered after an incident involving the PT Sameir was using.

(d) In 2015 Sameir was subject of two RODs in relation to his performance. A 100% pick performance rate represents the average performance of an average worker on an average day. Sameir's pick rate was 61% and 65%.

(e) In 2017 Sameir was given refresher training on forklift use after an incident in which he damaged some racking with his forklift.

(f) In November 2019 Sameir was subject of a ROD in relation to his failure to record all his delay time.

(g) Sameir was subject of some performance management conversations, including as recently as November 2019 where Sameir's manager had a discussion with him about his pick performance (which at that point was 81%).’

[9] Ms Mooy described the respondent’s training regime which includes training and refresher training on the Code of Conduct, safety talks, meetings from time to time and monthly team talks conducted by the Shift Operations Manager; all of which are very much focussed on the safety, health and wellbeing of the employees, customers and contractors. Ms Mooy referred to specific refresher training the applicant was given to demonstrate the following by way of a slide presentation:

‘(a) the first slide says "No task is so urgent and no service is so important that we cannot take the time to do it safely'';

(b) the next slide indicates that "As a Forklift operator at SNDC, the statement on the previous slide is of critical importance to your safety and that of all others in our workplace";

If you are EVER in any doubt, stop what you are doing immediately and seek advice from your Supervisor or OH&S Representative.

(d) slide 8 deals with incident reporting, indicates that "It is vitally important that all incidents are reported'', and explains why that is the case;

(e) slide 33 explains that "Batteries contain sulphuric acid (a corrosive liquid) and produce hydrogen gas whilst being charged (this is explosive). If you are involved in an incident involving a battery, you must take action immediately ..."

(f) slide 35 explains that forklift batteries weigh over a ton and cost $9,000-$10,000;

(g) slide 42 highlights the "3 pick bay rule", which requires that a pedestrian be three pick bays (that is three pallet widths) from any operating forklift.’

[10] The respondent’s Code of Conduct provides:

‘We care deeply about the safety, health and wellbeing of our teams, customers and contractors. We are all responsible for working together to make sure that anyone who works or shops with us goes home safely. To achieve this, you must always, and you have our full support to:

• immediately stop any job or task that you believe is unsafe

• always address hazards as you become aware of them

• only use equipment that you are trained and authorised to use

• always wear Personal Protective Equipment (PPE) required for the task

• follow any safety and health processes including rules, policies or procedures

• report incidents and injuries immediately’

[11] Ms Mooy claimed the CCTV footage of the incident on 9 April 2020 disclosed that:

‘The CCTV footage shows that Sameir was working on the multishifter machine which replaces batteries in pallet transporters (or "PTs"). Sameir was attempting to replace the battery in a PT when the battery became wedged between the multishifter and the PT. Rather than report that fact, he attempted to force the battery into the PT by striking it with another PT. He tried this multiple times. This did not work and Sameir then attempted to hit it multiple times with a forklift which is significantly heavier machinery’.

[12] Ms Mooy was involved in the disciplinary process, but was not the decision maker. She set out the disciplinary process as follows:

‘(a) On 22 April 2020 Sameir was suspended from duties while we investigated his conduct. On that day one of the SNDC team leaders met with Sameir to inform him of the fact of the investigation and show him the CCTV footage. A copy of the notes of that meeting are exhibited at NM 91-93.

(b) On 28 April 2020, Sameir was provided a letter outlining the allegations against him and invited to provide a response. A copy of that letter is exhibited at NM 94-96.

(d) On 5 May 2020 two of the SNDC team leaders met with Sameir to discuss his written response and obtain further information regarding the incident.

(e) Our investigation concluded that the allegations against Sameir were sustained, and that Sameir had engaged in unsafe practices in breach of the Woolworths Code of Conduct.

(f) On 11 May 2020, Sameir was provided a letter explaining that Woolstar had concluded that the allegations against Sameir were substantiated, and that Sameir had engaged in unsafe practices in breach of the Woolworths Code of Conduct. The letter also explained to Sameir that based on the seriousness of the substantiated conduct Woolstar was considering terminating his employment. A copy of the letter is exhibited at NM 100-102.

(g) Sameir was invited to a meeting to explain why he should not be dismissed on 12 May 2020, and was invited to provide a written response to the proposed dismissal.

(h) Sameir attended a show cause meeting on 12 May 2020. I was at that meeting. Also present were Sameir's union organiser and two delegates. During the meeting Sameir explained why he did not think he should be dismissed. He also provided a written response. A copy of the written response is exhibited at NM 103. A copy of a set of notes I took of the meeting are exhibited at NM 104--107. They are consistent with my recollection of the meeting.’

[13] It was Ms Mooy’s evidence that in the 12 May 2020 meeting, the applicant said, ‘I wasn’t thinking, I was having a bad day’. When she reviewed the CCTV footage, it was not consistent with these comments, in that his conduct appeared deliberate and sustained, rather than a momentary lapse. It was decided to have another show cause meeting on 18 May 2020 with the Union Organiser and Delegates. The footage was played again. Notes were taken of the meeting. The Union Organiser raised a possibility of a lack of training and that the applicant may not have received refresher forklift training. Ms Mooy said that in fact, he did receive such training in 2017 (see: [8] above). There was also a suggestion that the applicant rarely worked in the battery bay. Ms Mooy’s review of the records disclose he worked 70 hours in the battery bay almost every week in the previous 9 months.

Mr Larry Pedrigal

[14] Mr Pedrigal was present during the incident on 9 April 2020. He made a statement on the day and a further statement during the investigation of the incident.

[15] The substance of Mr Pedrigal’s evidence was that when he walked past the applicant, he asked him to help him (with the stuck battery). As Mr Pedrigal was going for a break and did not work in the area, he told him to stop work and report it to a Supervisor or Team Leader. The applicant agreed to do so. However, when Mr Pedrigal noticed he was trying to push the battery with another machine, he pointed to the CCTV camera and said ‘look, big brother is watching’. He told him for a second time to stop and report it. He left for his tea break and believed the applicant would stop and report the incident. Mr Pedrigal understood, from many Team talks, that you will be in trouble if you do not report an incident. This was why he tried to have the applicant stop and report it.

[16] In a reply statement, Mr Pedrigal denied that the applicant had told him he went to Maintenance, but no one was there. Even if this was correct, he should have found someone else. Mr Pedrigal believed that as the batteries are very heavy, it was dangerous to try and nudge the battery with another Pallet Transporter (‘PT’), as it could have fallen and exposed a risk of acid leak and explosion.

Mr Stuart Williams

[17] As Supply Chain Manager and Site Manager, Mr Williams has overall responsibility for the site, including for safety. He is the ultimate decision maker on employee matters, such as dismissal. SNDC employs 510 permanent and 250 casual employees involved in manual picking and packing and 200 items of material handling equipment, including various forklifts and PTs. The warehouse is a high-risk work environment, requiring strict adherence to safety rules and systems. Employees undergo training to follow safety rules and report incidents and hazards.

[18] During 2019, Mr Williams decided to remind the whole team of their responsibilities to always follow safety rules, including stopping, preserving an incident scene and reporting of incidents. This was crucial, as it ensures dangerous situations are dealt with by a properly qualified person.

[19] Relevant documents in relation to the Team talks undertaken, highlighted the responsibilities of all Team members to:

(a) notify your supervisor as soon as possible of any incidents or injury;

(b) report all hazards and unsafe conditions to your immediate supervisor;

(d) only use equipment (e.g. forklift) if trained and authorised; and

(e) adhere to company rules and protocols when conducting tasks.

Mr Williams said that reinforcement of these principles were reiterated on many subsequent occasions, including during Team talks.

[20] In respect to the incident on 9 April 2020, Mr Williams was not involved in the investigation and relied on the Team who provided their factual conclusions after the investigation. Mr Williams watched the CCTV footage and consulted with internal stakeholders, including the Safety Team, before making his decision to dismiss the applicant. Mr Williams concluded that:

‘(a) Sameir was involved in an incident where a battery he was attempting to load into an order selector pallet truck (or "PT") with the multishifter machine failed to align correctly and slid out of the machine;

(b) Sameir attempted to load the battery 8 times before ultimately causing the battery to fall out of the multishifter onto the floor and become wedged between the multishifter and the PT;

(c) Sameir, realising the battery was dislodged, he initially sought the advice of a fellow Team Member (Larry Pedrigal) however he failed to follow advice to stop and report the incident;

(d) having failed to report the incident, Sameir obtained a second PT and intentionally drove it 3 times into the first PT, in attempt to fix the problem, jolting the first PT, battery and multishifter machine;

(e) despite Larry intervening again to tell Sameir to stop and report it to a supervisor and this time visibly warning Sameir of video surveillance, he failed to stop and report and instead got a heavier piece of Manual Handling Equipment (MHE), a High Reach Forklift, and again intentionally drove that into the original PT twice, jolting the first PT, battery and multishifter machine;

(f) after each time of intentionally colliding MHE, Sameir got back onto the multishifter to attempt to push it into the machine, with the last time push so hard the cover popped off the battery; and

(g) it was only after that failed that he reported the incident.’

[21] Mr Williams found that the applicant’s conduct was obviously dangerous and created a risk of injury to himself and others, a risk of property damage, the environment and the potential for production downtime. Such conduct was serious and wilful misconduct.

[22] Mr Williams said the batteries weighed hundreds of kilos and contain tens of litres of acid. If damaged, there is a potential for an explosion or major environmental hazard if a significant acid leak occurs. It could result in a notifiable incident to SafeWork NSW. Apart from this, by not using the Material Handling Equipment (‘MHE’) as intended, and intentionally driving two pieces of equipment into the PT, the battery or the multishifter, this created a risk of injury to the applicant and others, and risked damage to the equipment and resultant loss of production time.

[23] Mr Williams said he took into account the applicant’s long service and personal circumstances, but decided the appropriate outcome was dismissal for serious misconduct. Some of the reasons included that:

• he did not stop what he was doing and report the incident once the battery did not go into the PT correctly and then became wedged between the multishifter and the PT. At this point, the applicant was only 20 metres from the Team Leader’s office;

• he made things worse by getting a PT and Reach Forklift (‘RF’) and drove them into the first PT multiple times, which crashed into the battery and multishifter. Damage or serious injury could have been a result;

• he continued to do the wrong thing, even though a colleague told him multiple times to stop. His conduct could not have been a momentary or inadvertent lapse;

• rather than stop and report, the applicant then got a second heavier piece of machinery and repeated the process; and

• he claimed he had not been trained and had not done the battery change very often. This is a concern, as no one would not need training to know you do not intentionally drive a forklift into a PT.

[24] Ultimately, Mr Williams believed that he could not be confident that in a similar high-risk situation, the applicant would make the right decision, even if a colleague told him it was wrong, stop and report it. Mr Williams said that he had recently dismissed another long-serving, well-liked employee for a serious safety breach. The applicant was not treated any differently in all the circumstances.

Mr Khoshaba

[25] The applicant said he worked a Monday and Thursday 4pm-1am shift. His income for the period of the last financial year up to his dismissal was $100,558.69, excluding superannuation. He believed he had a generally good work performance. He understood that under the Agreement, a warning lasts for 12 months. The applicant claimed he only worked on battery changes ‘a few times a year’, as it was only ever a small and irregular part of his job.

[26] In respect to the incident on 9 April 2020, the applicant said he did not regard the battery shift as an incident, which required an immediate report. However, in hindsight, he should have reported it straight away, rather than trying to fix the problem himself. He recalled the discussion with Mr Pedrigal, who could not help him. He went to get another PT in order to push (nudge) the PT closer to the multishifter, so as to place the battery, where it was supposed to be. The battery was still magnetically attached to the other PT. However, this did not work. There was no damage to the PTs. Mr Pedrigal returned about 30 seconds later and began pointing at the CCTV camera. Mr Pedrigal had a lot to say, but he could not recall the details. He did not recall him saying ‘go to maintenance’, although he had earlier done so, but no one was there. He tried again to push the disabled PT into position, but it did not work. However, he denied the battery had fallen on the floor. He went back to Maintenance again, but no one was there. Another employee told him Maintenance finished at 10:30pm. He realised there was nothing he could do, so he reported the incident to Team Leaders. The applicant claimed that two other employees and supervisors returned and just stood back. He observed a Maintenance employee, Mr Bruno Jurman (‘Bruno’), nudging the disabled PT – which is what he had attempted to do. After the battery was recovered, the applicant continued on other forklift work.

[27] The applicant said that on the following Monday, he noticed the floor line markings where the PTs were supposed to park, had been repainted. It was his evidence that he had never experienced this situation before and had no training about it, apart from being told to report all incidents. He did not believe he had undertaken refresher training for some six years, and had no training on how to handle what had happened.

[28] The applicant claimed in the first meeting he had with Management on 28 April 2020, the Safety Officer (Mr O’Loughlin) said that taking a battery out with a chain was dangerous and there was specialist equipment for this purpose. The Union delegate asked Ms Angela Brown, Lead Team Leader, if she was aware of this equipment and she was surprised and shocked when she said she was not. The CCTV was shown and the Safety Officer was critical as to how the battery was eventually recovered. However, the applicant said he was following Glenn (Mr Walker) and Bruno’s instructions, as he did not know how to do it. The applicant claimed that none of this was recorded in the meeting notes annexed to Ms Mooy’s statement.

[29] During the investigation meetings, the applicant said he was truly apologetic and remorseful, and he should have found a supervisor and reported the battery being stuck as soon as it happened. However, he made a number of countervailing claims:

• There had been two other similar incidents involving other employees, who did not ‘get into trouble’.

• He denied Mr Williams’ evidence that if the multishifter had been damaged, production would be delayed. In fact, there was a backup multishifter which is often used;

• He did not attend the Team talk in May 2019, because he had commenced work at 4pm and missed the PM shift meeting at 3:30pm;

• He was not told what the meeting was about and did not see any document on the noticeboard about it; and

• He did not attend the Team talk meeting on 16 January 2020, as he was on holidays from Christmas to the end of January.

Since his dismissal, the applicant had obtained some other casual warehouse work, but it is not guaranteed. His earnings up to 23 August 2020 from this employment, was $8,238.28.

[30] In a reply statement, Ms Mooy referred to her review of the CCTV footage and responded as follows:

(a) A casual labour hire employee of Allstaff Australia can be seen watching the applicant operate the multishifter. Ms Mooy said that there are a number of labour hire employees at SNDC. If an issue arises or allegations are made against such employees, the issue is referred to the labour hire agency with recommendations of what should be done in any disciplinary context. On this occasion, the employee was a new Team member and was given a verbal warning.

(b) The same labour hire employee did not park the PT incorrectly, as claimed by the applicant. The PT moved out of its designated spot when the applicant moved the battery/multishifter.

(c) Both Mr Walker and Mr Jurman can be observed extracting the battery by attaching a chain to it. This was usual practice at the time, but has since been stopped. They can be seen placing themselves in front of the elevated forklift, which was the wrong thing to do. They were both issued with ‘letters of expectation’ about their conduct.

(d) Mr Jurman can be seen nudging the PT with another PT which the applicant claimed was the same method he used. However, there are two key differences:

(i) As part of the Maintenance Team, Mr Jurman was authorised to perform that maintenance work; the applicant was not.

(ii) When the applicant did so, the battery is still connected to the multishifter. This had the potential to cause the battery to rupture and result in a major acid spill. Multiple parts of the multishifter could have been damaged. When Mr Jurman did so, the battery had already been moved, and is not attached to the multishifter.

[31] Ms Mooy distinguished the different disciplinary outcomes between the applicant, Mr Walker and Mr Jurman as:

‘(a) Sameir’s conduct involved the striking of a PT with two pieces of heavy machinery, which could have caused a serious safety incident;

(b) Sameir’s conduct was wilful, continuous and involved multiple decisions on his behalf to do the wrong thing, rather than stop and report the incident;

(d) the method that Glenn and Bruno used to change the battery (with use of a chain) was existing practice at the SNDC at the time. Sameir’s method was not.’

[32] Ms Mooy understood there was no specific machinery that should have been used to remove the battery – contrary to what the applicant said he was told by Mr O’Loughlin. In any event, Mr O’Loughlin was originally on a three-month contract which was terminated because he was unable to deliver the expectations of a Safety Lead.

[33] Ms Mooy noted that the applicant insisted he attempted to seek help from Maintenance. However, the CCTV footage shows he did not initially go in the direction of Maintenance. On the next occasion, he walks in the opposite direction to Maintenance and returns in less than a minute with the RF and then pushes the PT twice. It is only after this was unsuccessful, does he go to Maintenance, returns to look at the scene and returns with a Team Leader 50 seconds later. Ms Mooy said that at 22.49.45 of the CCTV footage, a Team Leader can be seen taking a photo of the incident. This is standard practice.

[34] Ms Mooy noted the applicant has had a number of prior disciplinary warnings. Although they did not go to the decision to dismiss the applicant, it is important for employees to learn from the reasons for such warnings. Ms Mooy rejected another similar incident alleged by the applicant, where an employee was not disciplined. Upon inquiry, she established that the employee did not try to fix the issue, but reported it straight away.

[35] Ms Mooy denied the applicant had not received the appropriate training. In any event, using a forklift to strike a PT was dangerous. She noted the applicant agreed he had received training about reporting any incident.

Oral evidence

Mr Pedrigal

[36] In cross examination, Mr Pedrigal was asked about the handwritten note he made on the night of the 9 April 2020 incident. He agreed the note was brief, and it included the following – ‘Ask maintenance for help and report it’. Mr Pedrigal said he had not seen the CCTV footage, but agreed there was a substantial amount of discussion with the applicant that night. He had also pointed out the camera to the applicant. Mr Pedrigal agreed the battery was stuck, but it was not on the ground.

[37] Mr Pedrigal was asked how he came to the view that the incident could have caused an explosion or acid spill. He replied that he worked in the area and knew it was a potentially dangerous situation. He added that no one suggested he put this concern into his statement, ‘because I work there’.

Ms Mooy

[38] Ms Mooy confirmed that she had attended the two meetings with the applicant and the Union on 12 and 18 May 2020, and accepted there was no discussion about the battery possibly causing an acid spill, damage to the multishifter or causing a delay in production. Her notes of the meetings confirm this, but there is reference to damage of one PT machine. Ms Mooy said that when she reported the outcome of the investigation to Mr Williams after the 18 May 2020 meeting, she had expressed concern as to a possible acid spill or explosion. This was based on advice from the Facilities and Maintenance Manager. She had also discussed a possible delay in production. Ms Mooy understood that there are two multishifters on site, with one being a backup if the other is non-operational. Ms Mooy stated that she had gone down to the battery area to view the location. She agreed there was no damage to equipment.

[39] Ms Mooy said that Mr Walker and Mr Jurman were given ‘letters of expectation’ in May or early June 2020. Ms Mooy denied that Team leaders had stood back and had no role in the incident. Mr Jurman had authority to move the disabled PT in the same way the applicant had. Ms Mooy was referred to the 2008 SNDC Safety Rules, but was not aware how the Rules were communicated to staff, as she was only on site from February 2020. She had no knowledge of whether the applicant had been provided with the document.

[40] Ms Mooy accepted that in respect to the applicant’s record, there is a difference between a ‘record of discussion’ and a warning. She relied on the applicant’s evidence that he had been trained six months earlier, although the warnings go back much later in time. Nevertheless, Ms Mooy insisted that all incidents must be reported. Ms Mooy was referred to the definition of an incident:

‘An undesired event that results in or has the potential to result in harm to people and/or damage to property and/or the environment’,

She agreed that it is up to the person/s involved to decide if the incident has a potential to result in harm to people or damage to property and/or the environment. The same assessment must be made about stopping work and reporting the incident. Ms Mooy said the applicant did not do this; rather, he attempted a number of manoeuvres before he ultimately reported it.

[41] As to the applicant’s attendance at Mr Williams’ safety talk on 16 May 2019, Ms Mooy said that the records show he was at work that day and started at 4:09pm. Mr Williams’ presentation was at 8:30am and 3:30pm that day.

Mr Williams

[42] Mr Williams confirmed that he had relied on the factual conclusions made by Ms Mooy and Operations Manager, Mr Shane Manning and on viewing both versions of the CCTV footage. Mr Williams said that he had observed from the footage that the battery slid out and down after a failed attempt to load it into the PT machine. As to the potential risk of explosion or acid leak, Mr Williams was advised of this by the investigators. He agreed he did not seek advice from the battery’s manufacturer. As to lost production, Mr Williams said that had there been a notifiable incident, the area would need to be preserved. This would mean the area was unusable.

The applicant’s oral evidence

[43] Through further evidence in chief, Mr Dircks tendered through the applicant, his earnings from casual agency work of termination to date, and established he continues to look for permanent work. The applicant claimed he had not previously seen the document – Destination Zero – and was not aware of the following rule:

‘Only authorised maintenance staff are permitted to push/shunt any machinery at any time in or around the warehouse. Charge bay attendants are not permitted to perform this task.’

The applicant said that Mr Walker was not a Maintenance person – he was a Storeperson Safety Officer and Union delegate.

[44] In cross examination, the applicant was asked about the verbal warning he received in May 2012. It concerned him trying to pick up a heavy pallet when a couple of boxes fell to the floor. He acknowledged that at the time, he was told by management that you should not try to fix a problem, but report it to the appropriate person. In 2017, there was a further incident in which he had damaged some racking with a forklift. He was required to undertake forklift refresher training. He could not recall during this training, if he had seen the document ‘Destination Zero’. Further, he could not recall if he was told how to replace a battery on the forklift.

[45] The applicant conceded that he knew if an incident involved a battery, there was a risk of the battery being damaged and that it contained sulphuric acid. He accepted that he had changed batteries in the past, but he would only rarely use the multishifter and had not worked in the battery bay for a full day. He agreed he was familiar with changing a battery. However, the applicant did not accept that the incident on 9 April 2020 required him to stop working and get Maintenance to attend. He conceded, however, that this was what was required if a battery gets stuck, as he knew this from his refresher training.

[46] The applicant agreed that safety was a major priority for Woolstar. All employees were required to attend safety talks, where safety issues would be discussed and later posted on the notice board. However, he did not have time to read the noticeboard information and would only pass the notice board on the way to a break. He believed that it was the Team Leader’s job to make everyone aware of what they might have missed from the safety talks.

[47] The applicant reiterated he did not consider the circumstances on 9 April 2020 was an incident because the battery did not fall to the floor and he had just tried to retrieve it. He agreed he stood away from the forklift and the multishifter, paused and looked at the situation to work out how to fix it. He conceded that by attempting to retrieve the battery, there was a risk of the battery dropping. He had wanted to avoid it falling to the floor. He understood that if the battery fell, it could crack, but it did not. He did not think about reporting the incident at the time or what would have happened next.

[48] During the investigation, the applicant was asked if an incident occurs, what was he expected to do? He answered ‘report straight away’ and continued:

‘Didn't lose the battery, did not fall on the floor, still on the edge of the machine and multi-shifter.’

He agreed he knew the Company policy is to ‘stop, preserve the scene and report’ and he said: ‘Yes, judgement was the wrong one’. The applicant added that he did not think it was an incident because he thought he could fix it, notwithstanding what he was told in respect to the 2012 incident. When pressed, the applicant now accepted that the battery was misaligned and he should have reported it as an incident, as it had the potential to result in harm to people and/or damage to property, but he did not realise the battery was stuck. The applicant claimed that he went twice to Maintenance to report the incident, but he could not find anyone. He said Mr Pedrigal ‘probably’ told him to go to Maintenance.

[49] Mr Mahendra then took the applicant through the CCTV footage. The applicant claimed the casual employee who parked the forklift, did so incorrectly, and the lines were repainted the following Monday. The applicant agreed the old battery came out with no difficulty and when he attempted to replace it, it was misaligned and dropped a little. At this point, he accepted there was a risk of the battery dropping, be he had not noticed it at the time. He got off the multishifter and walked up and down around the PT. Mr Pedrigal is seen to arrive, but the applicant denied he had told him to stop and get assistance.

[50] Next, the applicant is seen getting into another PT and turning it on. At this point, he is seen nudging the other PT, with the one he was driving. He accepted ‘this was a bad choice, yes, a bad judgment’, but not at the time, because the battery did not fall. Mr Pedrigal is seen to return, but the applicant claimed he did not hear him say to stop; rather, he said ‘we don’t do this anymore’. Mr Pedrigal points to the CCTV camera and then walks with him to park the PT. He did not go to Maintenance and did not hear Mr Pedrigal telling him to. He returned with a larger forklift, but had still not gone to Maintenance. He is then seen trying to nudge the PT with the forklift. He gets back on the multitasker and is looking directly at the battery, which drops down again. The applicant stated that he was not being evasive, or unwilling to concede a very reasonable proposition, in order to avoid a finding of his misconduct.

[51] The applicant said at this point the battery falls a ‘bit lower’, but not to the floor. It was at this point, he went to Maintenance. He returns and puts the larger forklift away. He agreed he knew throughout this incident that he had an obligation to cease what he was doing and go to Maintenance. He reiterated he did not immediately do so and ‘it was a bad judgment’. When he realised he could not fix the problem, he reported it, even though it was not an incident. Another employee, Mr Tony Mammo, is seen with the applicant looking at the situation. Mr Mammo asked him what had happened. Mr Walker and Mr Jurman then came and assisted him in extracting the battery. They were both giving him instructions throughout.

[52] In further questioning, the applicant agreed that he had every opportunity to respond to the allegations, participate in the investigation and provide his version of events. His responses:

‘Therefore what I did was a mistake and an act that lacked judgment.’

and

‘I admit I was wrong and a stupid decision. I have learnt a lot.’,

were not him trying to play down his conduct.

[53] The applicant was asked about his unfair dismissal application which made no mention of him going to Maintenance and blaming a lack of training for his conduct. He stated again that it was not his normal job.

SUBMISSIONS

For the respondent

[54] Mr Mahendra relied on the respondent’s written submissions, and submitted that at the heart of this case was the applicant’s conduct in knowingly engaging in behaviour he knew was wrong, but he asserts in submissions that there was no incident which required reporting because it did not fit the definition of an incident. However, through cross examination, he changed his position that with the benefit of hindsight, he should have reported it and this was a ‘bad judgement’ and a mistake on his part. Counsel put that the applicant had undertaken refresher training and he knew, or ought to have known, that handling batteries of this size was dangerous and posed a potential risk of harm and damage. He conceded that he knew the batteries contained sulphuric acid, and if the casing cracked, there was a safety risk.

[55] Mr Mahendra noted on his own evidence, the applicant conceded that there was a problem and he was determined to try and fix it. It was only when he could not fix it, that he now says it became an incident, which he then reported to Maintenance. However, this evidence unravelled because the CCTV footage makes clear he did no such thing. Rather, as Mr Pedrigal made clear, he was required to stop. However, he gets a bigger forklift and attempts the same nudging on the PT to somehow dislodge the battery. It was obvious that the battery was not going back into the multishifter, as it had dropped down. Mr Mahendra put that the applicant’s answers were evasive when asked about the battery dropping down. The applicant knew at least from 2012, that it was not his job to fix incidents, but to stop work and report it to Maintenance. It was Counsel’s submission that the applicant’s attempts to fix the problem was a cover up of his actions in the hope it would not be reported. This intention backfired and he was forced to report it. He knew full well what he was doing was wrong.

[56] Having reviewed the CCTV footage, the Commission would not accept the applicant’s evidence that at the time, he did not believe his actions were wrong, but now in hindsight accepts they were. He now attempts to downplay the seriousness of his conduct by claiming it was a mistake or a lapse of judgement. Mr Mahendra said that his multiple steps to engage in nudging the multishifter could not be a momentary lapse of judgement, particularly given his training. He knew he had to report incidents and Mr Pedrigal told him to stop and report it. The applicant’s evidence was that Mr Pedrigal had at least said: ‘We’re not doing this anymore’.

[57] Counsel put that the Commission would find the applicant deliberately and knowingly engaged in a flagrant breach of the employer’s lawful and reasonable instruction that, in such circumstances, he stops what he is doing and reports the incident.

[58] Mr Mahendra submitted that the applicant’s conduct is difficult to understand. He clearly engaged in conduct which posed a serious and imminent risk to the health and safety of his co-workers and a possible risk of damaging the Company’s property. The applicant’s dismissal was for a valid reason. He acknowledged that he had every opportunity to respond to the allegations against him and to respond to the proposal to dismiss him.

[59] In responding to the applicant’s submissions as to the harshness of his dismissal, the respondent put:

‘(a) The applicant's length of service is a relevant but ambivalent factor. As the Commission has pointed out previously, length of service may tell against a finding of harshness if the employee could be expected to be familiar with the employer's safety policies and procedures.2 This is such a case.

(b) It is not at all clear that the applicant is sincerely contrite. Although he accepted during the investigation process that he had done the wrong thing, he attempted to minimise his culpability. In his application to this Commission he denies wrongdoing and points the finger at his employer.

(c) The applicant's work record is not excellent. He has a long history of moderately serious disciplinary and performance issues including safety breaches.

(d) As to personal impact, it is not self-evident that current economic circumstances make it difficult for a person to obtain employment in the warehousing sector. It may however be broadly accepted that dismissal will have a negative impact on the applicant's personal situation. That is relevant but insufficient to outweigh the seriousness of his conduct or countermand the need for disciplinary action in response to deliberate breaches of safety rules.’

For the applicant

[60] Mr Dircks relied on his written submissions, which I have taken into account and he made further oral submissions as follows.

[61] In respect to valid reason, Mr Dircks said the focus in this case was really only on the potential for a battery acid spill, not any actual risk of damage, or putting other people at risk. It was a theoretical risk. He claimed this potential only emerged after the investigation and was not mentioned in the employer’s F3. Accordingly, this was not a genuine issue and not put to the applicant, or his Union, at the relevant time, for him to respond to. He noted that this was conceded by Ms Mooy. Mr Dircks claimed there was no acceptable technical evidence that the nudging or pushing one PT into another had the potential to cause the potential risk the respondent asserts. In fact, the procedure adopted by the applicant was the very same procedure used by the maintenance employee shortly after. It would seem that a bit of ‘rough handling’ is built into the system and the machinery.

[62] Mr Dircks submitted that the applicant had consistently conceded he had made an error in judgement, a simple mistake, in attempting to fix the problem of the stuck battery. In light of this, his conduct fell short of misconduct; see: de Leon v Spice Temple Pty Ltd[2010] FWA 3497 (‘Spice Temple’). Mr Dircks said that Counsel did not take the Commission through to the end of the CCTV footage, where Mr Walker and Mr Jurman performed the same method of dislodging the battery, which also must have been a potential for risk. Their actions did not even prompt a warning; yet the applicant was dismissed.

[63] Mr Dircks relied on Lawrence v Coal & Allied Mining Services Pty Ltd T/A My Thorley Operations/Warkworth [2010] FWAFB 10089 (‘Lawrence v Coal & Allied’) where a dismissal was found to be harsh in very similar circumstances as was evident in this case, particularly as there was an absence of any real risk to the health and safety of others, the applicant gained no personal advantage for his conduct and he had a long period of service with the respondent.

[64] In referring to the respondent’s Code of Conduct, Mr Dircks stressed that an employee is permitted to use their own judgement to assess, whether in a particular incident, work must cease and it be reported immediately, or it is simply reported later. In this case, it fell in the latter category, as there was no injury or damage. This is a matter at the lighter end (of seriousness) and may have warranted a first and final warning, but not dismissal. Mr Dircks added that the earlier warnings were ‘stale’ and in any event, did not relate to the same issue.

[65] Mr Dircks submitted that the applicant’s conduct was ‘out of character’, as he had a largely clean record over a substantial period of service. He had devoted the bulk of his working life to the respondent. It was unlikely he would obtain comparable employment in the short or medium term, particularly given the impacts of COVID-19. He is the primary breadwinner for his family.

[66] Mr Dirks said that the Commission would find the applicant’s dismissal ‘harsh, unjust and unreasonable’ and as reinstatement is the primary remedy, this should be the result for an employee of very long and good service.

In reply

[67] Mr Mahendra submitted that the applicant’s submissions misunderstand the key aspect of the respondent’s submission. What we have here is an applicant who says ‘I deserve my job back’ in circumstances where he knew full well the conduct he engaged in was contrary to his obligations, and then he seeks to ‘play down’ that conduct.

[68] Counsel said that the specifics of the risk were so obvious and well known that he was obliged to report a safety risk, and he failed to do so. Rather than report it, he continued to engage in conduct he knew was wrong and contrary to his obligations as an employee. The attack on Mr Williams about the risk of an acid spill or an explosion, ignores the refresher training the applicant did in 2017, which clearly highlighted the risk of handling batteries. Moreover, Mr Dircks’ reliance on a theoretical risk, was not put to any of the respondent’s witnesses, so it cannot be relied on in submissions to assert the risk was not genuine.

[69] As to Mr Jurman’s and Mr Walker’s conduct, this was adequately explained in Ms Mooy’s evidence which was not challenged. In any event, the shunting was done at the direction of a qualified person.

[70] Mr Mahendra submitted that Mr Dircks’ reliance on Spice Temple and Lawrence v Coal & Allied Mining Services was misplaced. Neither case dealt with an employee who knowingly engaged in conduct they knew to be wrong and repeated it after being told to stop and report the incident. Such conduct must constitute a valid reason. It was Mr Pedrigal’s evidence that he knew there was an obvious risk and the applicant would have or should have, also known of the risk.

CONSIDERATION

Statutory provisions and relevant authorities

[71] An unfair dismissal is defined at s 385 of the Act. That section is to be read in conjunction with s 396. The two sections read:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[72] Specifically, I find as follows:

(a) the applicant was dismissed at the initiative of the employer on 25 May 2020;

(b) the applicant is a national system employee and Woolstar is a national system employer (ss 13 and 14);

(d) the applicant completed the minimum employment period set out at ss 382 and 383, being over 24 years; and

(e) the applicant’s employment was governed by an enterprise agreement; namely, the Sydney National Distribution Centre Enterprise Agreement 2018 (s 382(b)(ii)).

[73] It follows that the only matter required to be determined by the Commission in this case is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, pursuant to s 385(b) of the Act. It is to that question I now turn.

Meaning of ‘harsh, unjust and unreasonable’

[74] The matters required to be taken into account by the Commission under s 387 of the Act are:

(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.

Whether there was a valid reason for the applicant’s dismissal (s 387 (a))

[75] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran,the Full Bench said at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[76] In B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number of employees of Australia Post’s IT policies, in respect to the sending, receiving and sharing of pornographic material. The plurality said at [34]-[36]:

‘[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.’

[77] Further, the Full Bench of the Australian Industrial Relations Commission said in Container Terminals Australia Limited v Toby [2000] Print S8434 at [15]:

‘[15] In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice v Hepburn (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct..."; see: Walton v Mermaid (1996) 142 ALR 681, at 685.’

[78] The above authorities (and many more), make clear that a ‘valid’ reason must be ‘sound, defensible or well founded’ and not ‘capricious, fanciful, spiteful or prejudiced.’

The allegations

[79] The allegations against the applicant arise from the ‘Show Cause’ letter which ultimately led to his dismissal for serious misconduct. The respondent described the applicant’s conduct as a significant and serious breach of a number of its safety policies. In this context, the definition of serious misconduct in the Act’s Regulations has some resonance. Regulation 1.07 sets out a non-exhaustive definition as follows:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. (my emphasis)

[80] It may be accepted that Woolstar’s belief as to the nature of the applicant’s conduct was in breach of the highlighted provisions in the Regulation above. In cases of dismissal for serious misconduct, the onus rests on the employer to prove, to the Commission’s satisfaction, that the misconduct had in fact occurred. This is why I have adopted the practice of reversing the directions so as the employer provides its evidence first. While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Briginshaw, at page 362, Dixon J said:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

[81] Further, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:

‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted)

[82] That the Commission for itself, must be satisfied that the misconduct occurred is well-established by the authorities of this Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd (2000) Print S4213, a Full Bench of the Australian Industrial Relations Commission (‘AIRC’, as the Commission was then styled) said at [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.’ (my emphasis)

[83] Even accepting that a finding of serious misconduct was open to Woolstar, such a finding must not be confused with the statutory language. The statutory instruct still requires the Commission to find that there was a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA, as the Commission was then styled) relevantly held at [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

Did the applicant breach Woolstar’s safety policies and procedures, and if so, was his conduct a valid reason for dismissal?

[84] In my view, the applicant was not a credible witness. His evidence was contradictory, inconsistent and self-serving, and contrary to the best evidence of the CCTV footage. When answering self-evident propositions, he was evasive, or answered when he did not want to make an admission by saying ‘I can’t recall’. As each significant point in his evidence crumbled, he came up with a new explanation, or self-serving or implausible excuse. For example, the applicant claimed there was no incident and he could not recall discussions about the dangers posed by moving batteries. He then accepted he knew that moving batteries was dangerous as they contained sulphuric acid. Contrary to the claim there was no incident, when the battery got stuck, he got off the multishifter, surveyed the scene and decided he would fix it. This begs the question, of course, if there was no incident, what was there to fix?

[85] The applicant conveniently could not recall Mr Pedrigal telling him a number of times that he should stop and report the incident. I do not accept the applicant’s evidence in this respect, particularly given the CCTV footage plainly shows Mr Pedrigal emphatically pointing to the camera.

[86] In cross examination, in the face of incontrovertible CCTV evidence, he accepted that in hindsight, he should have stopped and reported the incident. He described it as a mistake or bad judgement. If the intention was to claim he had a momentary lapse of judgement, then I reject this explanation. One does not attempt, by deliberate steps to nudge the battery, if you have a momentary lapse of judgement. His actions were deliberate, intentional and entirely inconsistent with his training, refresher training and what Mr Pedrigal told him to do multiple times.

[87] The applicant claimed he was unaware of the safety procedures for replacing batteries, it was rare for him to do so, and he had not been trained or not been present when training occurred. This was a witness who was desperately struggling to find any explanation, no matter how implausible or unlikely, to downplay his deliberate misconduct. I do not accept the applicant’s evidence about his alleged lack of training, or that he was not aware of the Company’s safety policies. His answer to the evidence that all safety notices were placed on the noticeboard, was that he did not see the notices, as he only passed the noticeboard when going on a break. This is absurd rubbish, particularly as the relevant safety advice was already well known to the applicant; namely, that he must stop work and report an incident. Even if I was to accept the applicant’s claim that he was not properly trained (which I do not), this does not explain that he was told multiple times to stop and report the incident.

[88] Lastly, it was the applicant’s evidence (and Mr Dircks’ submission) that the incident was not significant and was not really a risk to persons or property, because the battery was not damaged, there was no acid spill or explosion and there was no loss of production. Such a submission is absurd and wrong. It is contrary to every State and Federal Work Health and Safety law and the employer’s safety policies, which do not, and cannot distinguish between potential and actual risks to the health and safety of persons; see: [40] above. Were it otherwise, and on the applicant’s submission, one would not have to report a safety incident simply because no one was injured and no property was damaged. Such a submission is either naïve or breathtakingly stupid.

[89] In either case, it would be utterly unthinkable to reinstate an employee who holds such a view. The risk that the applicant would apply his own misconceived notions of what is reportable and what is not, is an untenable position the employer should not be put in. Mr Mahendra’s submission that the applicant’s actions were a botched attempt to cover up his conduct by trying to fix the problem, knowing full well that he had to report it, is compelling. It is a conclusion I embrace as readily open on the evidence.

[90] For all these reasons, I consider that the reasons for the applicant’s dismissal constituted a valid reason for dismissal and to go further, was the only decision the respondent could have reasonably made in all the circumstances.

Further matters to be considered under s 387 of the Act

[91] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, in unfair dismissal cases, I cite four authorities on the subject. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[92] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[93] Nevertheless, procedural fairness steps should be applied in a common sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[94] It goes without saying that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity (such as proven fraud) as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition or personal and family circumstances.

[95] In Bostik Australia Pty Ltd v Gorgevski (No 1) [1992] FCA 271; 36 FCR 20, the Federal Court of Australia Industrial Division said at [37]:

‘Harsh, unjust and unreasonable

37. These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.’ (my emphasis)

[96] It cannot be seriously suggested, nor do I understand Mr Dircks enthusiastically put otherwise, that there were any procedural fairness concerns in the steps taken by the respondent in investigating the incident and the disciplinary process in respect to the applicant’s dismissal. Given the inherently dangerous nature of the respondent’s activities, it is hardly surprising that employees were continuously reminded of their safety obligations through training, Team talks and published policies and procedures. Nevertheless, the Commission must make findings on the matters under sub-ss (b)-(e) of s 387 of the Act.

Whether the employee was notified of the reason for his dismissal – s 387(b)

[97] It is clear the applicant was notified of the reasons for his possible dismissal in a letter dated 11 May 2020. Mr Dircks agreed that the applicant was ‘generally notified in these terms, but not at the full range of Mr Williams’ concerns’. Presumably, this related to the actual risk of an acid spill or explosion, damage to equipment and possible loss of production, which crystallised during the investigation. To the extent that this may have been of some concern, it is of no moment. The applicant knew of the risks of moving large batteries and did not contend that he was uncertain or surprised by the allegations as they developed with more specificity. In any event, this is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[98] The applicant was involved in the investigation and attended two meetings with Management on 12 and 18 May 2020. He was shown the CCTV footage and asked to respond. His responses are recorded in summary in the termination letter; see: [2] above. This factor tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[99] In the meetings referred to above, the applicant was accompanied by the Union Organiser and two Union delegates. This is a neutral factor in this case. As an aside, it is curious as to why the Union did not represent him in this case.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[100] While there was some history of the applicant’s poor performance, more recently in a serious safety incident in 2017, these matters were not taken into account by the decision maker. The applicant was dismissed for his misconduct on 9 April 2020. In any event, this is not a relevant factor in a serious misconduct case.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), 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 – s 387(g)

[101] Woolstar is a large, well resourced and experienced employer with dedicated Human Resources and employment relations personnel, and with a suite of relevant safety policies, procedures and training arrangements. This is a neutral factor in this case.

Any other matters the Commission considers relevant – s 387(h)

[102] I accept and have taken into account that during the meetings with Management, the applicant apologised for his actions, but I apprehend he had little alternative when confronted with the reality of the CCTV footage. His apologies during this proceeding were for a mistake or lapse of judgement, which I have earlier rejected. His misconduct went much further than mere inadvertence or innocent mistake. His rather hollow apology does not sit well with his more recent explanations of a lack of training, or unfamiliarity with the battery change job for his actions.

[103] On the other hand, I have given deliberative consideration to the applicant’s long period of service of 24 years and a reasonable service record, albeit hardly exemplary. However, very long service can work both ways in that it might be expected an employee with long service and regular training and knowledge of the Company’s safety expectations, would have acted very differently that thinking he could just fix the problem himself, and get away with it not being reported.

[104] I have no evidence of the applicant’s personal or family financial circumstances and he has secured alternative warehousing work, albeit not permanent or comparable to his employment with Woolstar. I have taken into account that the applicant was paid five weeks’ notice, which would ordinarily not be paid where a dismissal is for serious misconduct. Further, given his service, the applicant would have also received his full entitlement to outstanding long service leave.

[105] In weighing all the matters I am required to take into account under s 387 of the Act, I do not consider any ‘harshness’ factors outweigh the seriousness of the applicant’s conduct which would warrant the Commission’s intervention to interfere with the respondent’s decision to dismiss him.

CONCLUSION

[106] For the aforementioned reasons, I am satisfied that the applicant’s dismissal on 25 May 2020, was not ‘harsh, unjust or unreasonable’ or unfair. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[107] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the employee and the employer.

[108] Accordingly, application U2020/7915 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks, paid agent, Just Relations Consultants, appeared for the applicant

Mr D Mahendra of Counsel appeared with Ms H Ormandy, Solicitor, Clayton Utz, instructed by Ms M Campbell and Ms K Hollings for Woolstar

Hearing details:

2020.

Sydney:

30 September.

Printed by authority of the Commonwealth Government Printer

Sameir Khoshaba v Woolstar Pty Limited t/a Sydney National Distribution Centre