Stephen John Dyer v Steggles Pty Limited - [2023] FWC 2240

[2023] FWC 2240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Application for unfair dismissal remedy

Stephen John Dyer
v

Steggles Pty Limited

(U2023/1062)

COMMISSIONER SPENCER

BRISBANE, 20 SEPTEMBER 2023

Application for relief from unfair dismissal - issues of procedural fairness – mitigating factors, termination incident, prior warnings, no valid reason, reinstatement.

INTRODUCTION

Mr Stephen Dyer (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy pursuant to section 392 of the Act. The Applicant alleged that he had been unfairly dismissed from his employment with Steggles Pty Limited (the Respondent/Employer). The Applicant had been employed for more than 23 years and sought reinstatement and compensation for lost wages.
The Applicant stated he was dismissed due to the Respondent’s allegation that he had breached a workplace policy by failing to report an incident involving a forklift within the required timeframe. On the Separation Certificate provided to the Applicant, the reason for dismissal was listed as ‘unsatisfactory work performance.’[1] The Applicant was paid five weeks wages in lieu of notice and his accrued leave entitlements.[2] He argued that his dismissal was harsh, unjust and unreasonable. The Respondent submitted that the application for unfair dismissal remedy should be dismissed on the basis that there was a valid reason for the dismissal. The Applicant argued that there were mitigating reasons related to the disciplinary process and the circumstances of the final incident the termination was based on.

The Applicant, Mr Stephen Dyer had been employed since August 1999 by Steggles Pty Limited. At the time of termination, he was employed at the Respondent’s poultry processing plant at Mareeba in North Queensland. The Applicant’s employment was terminated on 2 February 2023. The Applicant worked on a full-time basis, in the position of Supervisor in the rendering plant. He held a forklift license and operated forklifts, as part of his usual work. The Applicant was employed under the Steggles Pty Limited Mareeba Plant (Production, De-boners and Maintenance Employees Distribution) Enterprise Agreement 2022-2026 (the Agreement).

Relevant legislative provisions

Section 387 of the Act sets out the criteria the Commission must take into account in determining whether a dismissal was harsh, unjust or unreasonable. Each of these criteria are considered later.

Section 390 of the Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed.

Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b)one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

The Applicant was employed under the Agreement at the time of termination, and his weekly earnings at the time of dismissal were $1,426.14 per week (less than the high-income threshold).

In accordance with section 396 of the Act, it must be determined:

(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d)whether the dismissal was a case of genuine redundancy.

The parties were in agreement that the application was filed in the Commission within the statutory 21-day period. It was not in dispute between the parties that the Respondent was not a small business employer, and that this dismissal was a termination of employment and was not a case of genuine redundancy. Accordingly, pursuant to section 396, I am satisfied that the Applicant was a person protected in terms of the unfair dismissal provisions.

Permission to appear

The Applicant was represented by Mr Craig Buckley of the Australasian Meat Industry Employees’ Union (the Union/AMIEU). The Respondent’s lawyer was granted legal representation and permission to appear, pursuant to section 596(2)(c), on the basis of fairness, given that the Applicant was represented by an experienced industrial advocate from the Union. It was submitted that the Respondent’s in-house industrial relations officer was not experienced in representing the Respondent in arbitration before the Commission but was also appearing as a witness in this matter. Mr Buckley also did not object to the Respondent being legally represented. Accordingly, at the hearing, the Applicant was represented by Mr Craig Buckley of the AMIEU, and the Respondent was represented by Mr John Stanton, Lawyer of AFEI Legal Pty Ltd.

BACKGROUND

In summary terms, the Applicant set out that on Friday 27 January 2023, he was operating a forklift to load pallets from a shed, into a parked trailer. The Applicant stated that he was rostered on shift until 1:00pm.

The storage area was described as a garage or shed-type structure with sloped Colourbond roofing. Inside the roof, there are multiple extruded metal supports which are approximately 50mm squared.[3] Given the dimensions of the shed, a shorter forklift was ordinarily used, due to its easier manoeuvrability in the space. However, at the material time, the Applicant stated it was unable to be used.[4] As such, the Applicant explained he was required to operate a ‘taller’ forklift which was a tighter fit, in relation to the height of the mast of the forklift and dimensions of the shed.[5]

The Applicant submitted that at approximately 12:30pm, when transporting a load of pallets, a board came loose from beneath a pallet. He did not see the board at the time, and it fell in front of the forklift’s path. The Applicant then drove the forklift over the board and as a result it was raised, which caused the high-mast forklift to strike one of the angled roof beams, bending it forward by approximately 10cm.[6]

The Applicant stated that he believed this incident with the forklift caused minor property damage as there were 10 other supports to the roof and there was no risk of its collapse.[7] He considered it would have been easy to knock the roof support back into shape with a hammer.[8] The Respondent submitted that the Applicant understated the damage, that the beam had been bent by 30-40cm and sheets of roof aluminium had ripped.[9] The photos of the roof damage showed some perforation of the roof and a bent roof strut.

The Applicant submitted he continued working after the incident, as he had to finish loading the pallets. He stated he then filled out an incident report from the incident report book in the shed. The Applicant submitted he left the completed incident report in the book and went back to the storage area completing the loading [10] within the shift, approximately 30 minutes after the incident.

At approximately 1:00pm, when the Applicant’s shift ended, he stated he spoke to some arriving workers about the incident, informing them to be careful in the affected area. He submitted he then went and retrieved the incident book and went to look for the Maintenance Manager and the Applicant’s direct supervisor. Unable to find the Maintenance Manager, the Applicant concluded he must have left for the day.[11]

The Applicant submitted that he next went to the Site Manager’s office to inform him of the incident, however the Applicant stated there was no one present, and the office light was off. The Applicant concluded they had left for the day.[12] The Applicant then went to the Production Manager’s office next door, which was also vacant. In cross examination he stated he then walked past the Work Health and Safety Manager’s office and submitted that he did not recall seeing anyone in there. He submitted that had there been someone in that office, he would have provided the report to them.[13] The Applicant submitted that he also informed the other employees about the incident on shift change.

The required policy/process as set out in the Task Instruction WHS-TI-261-MAR Operating Forklifts and Battery Charging (the Task Instruction) was:

Accident/near miss – step 3
If an accident, incident or near miss occurs, it must be reported immediately to your supervisor and written in the incident report book. The PMP operator will be removed from operating and a compulsory drug and alcohol test will be conducted as well as incident report to be completed.
Reporting Issues
·Report all incidents and hazards to your Health and Safety Representative or your Supervisor/Manager.
·Report all quality issues to the QA Manager, Site Manager, Manager or Section Supervisor.
·Report any Environmental incidents or hazards to your Supervisor/Manager.

The Applicant submitted his understanding of the necessary process for minor incidents was that they needed to be reported to the Respondent within 24 hours. He submitted that serious incidents were those that involved injury or environmental damage. The Respondent’s view was that when he could not find a manager to report the incident to the Applicant understood he needed to report it within, ‘24 hours.’ In this context that meant his next rostered working day, being Monday 30 January 2023.[14] It was the afternoon of Friday 27 January 2023 when the incident occurred, and the Applicant’s next rostered shift was 12:00pm, Monday 30 January 2023. Consequently, the Applicant reported the incident involving the forklift to the Maintenance manager, being available on Monday 30 January 2023.

The Respondent submitted the immediate reporting obligation applied to any accident/incident or near miss, regardless of the extent of any damage, and the operator must undergo a compulsory drug and alcohol test.[15] Mr Owen Burton set out that this is stated in the Task Instruction. However, Mr Burton’s evidence was that the termination did not relate to the Applicant not undergoing the drug and alcohol test.

The Applicant submitted that where there had been incidents with a forklift in the past, there would only be a drug test in some cases, but not for every forklift incident, due to their common nature.[16] The Respondent submitted that the dismissal was in relation to the Applicant’s failure to report the incident in a timely way.

The Applicant submitted he was not under the influence of alcohol or drugs, nor has he ever tested positive for any substances in the past.[17] Further, he submitted he never drinks alcohol in the 10-hour period prior to the start of a shift, and not at all when he was expecting a call out.[18]

On Monday 30 January 2023, on the Applicant’s next rostered shift, he commenced at 12:00pm, did the usual shift changeover and went to speak to the now available Maintenance Manager about the incident report, which he handed to him.

The Applicant completed his rostered shifts on 30 and 31 January 2023, working on the forklift without incident. He did not work on Wednesdays as the plant does not operate on Wednesdays.[19] He was not at any time removed from the forklift or subject to an alcohol and drug test on his return to the workplace.

On Thursday 2 February 2023, the Applicant was called to a meeting at the manager’s office. He submitted that in attendance was Ms Sonia Takla, National Industrial Relations Manager, Ms Amanda Sippel, Work Health and Safety Officer and Mr Burton, Site Manager. The Applicant was offered a support person but declined. Ms Takla in her witness statement denied being present at this meeting.[20] The Applicant conceded this was an error and accordingly by consent, amended his statement to reflect that Ms Lina Hamill, Industrial Relations Manager was present instead.[21]

The Applicant submitted that he was provided with the opportunity to have a representative present and that he declined the offer. The Applicant contended that during the meeting, Ms Hamill accused the Applicant of deliberately not reporting the incident immediately, in an effort to avoid the mandatory drug test. The Applicant claimed that he attempted to convey his reasons for having reported the incident in the prescribed timely manner, however his reasons were dismissed by Ms Hamill. The Applicant stated that Ms Hamill alleged he had not completed the incident report and questioned him why he had not done so. The Applicant claimed that he reiterated his actions following the incident, being that he completed the incident report, left it in the rendering office and that he informed the workers on the following shift, but he could not find a manager to give the report to.

The Applicant submitted that it was claimed in terms of the breach of step 3 of the Task Instruction, that he had not reported the incident immediately. The Applicant explained his reasons for not reporting the incident at the time, but he stated Ms Hamill was dismissive of them. The Applicant submitted, he offered to undergo a drug and alcohol test during the meeting which was refused by the Respondent.

The Applicant stated that he was then told to leave the room whilst the managers had a private discussion. Upon his return to the room, the Applicant was informed by Ms Hamill that his employment was terminated. The Applicant submitted that his last day of work was Thursday 2 February 2023 and that upon his termination he was paid five weeks wages in lieu of notice and accrued annual leave and long service leave. The Applicant stated that he was provided with an Employment Separation Certificate. The Applicant submitted that he received a letter of termination in the mail signed by Mr Burton. The Applicant stated that he was aware of other forklift operators who have caused personal injury to others who have not been treated in the same manner as him. The decision to terminate the Applicant’s employment was made by Ms Takla.[22]

The Applicant submitted he had spoken to Mr Burton after the meeting and Mr Burton said he had suggested in lieu of dismissal that the Applicant be removed from forklift duty, but Ms Takla had said “no, National have already made up their mind.”

The Applicant submitted that he offered to finish his shift that day, but that this was declined. He received a hard copy of the termination letter (by mail), as set out below:

2 February 2023

Dear Stephen

RE: Private & Confidential

The purpose of this letter is to confirm that the Company has taken time to investigate the allegation of unacceptable workplace conduct, being serious neglect of duty resulting in breach of health and safety processes and procedures.

During the investigation it became clear that on Friday 27 January 2023 there was a PMP incident involving the forklift you were operating down at the meal bag storage area which resulted in damage to Company property. Upon further investigation it was found that you failed to report the incident as soon as it happened and therefore at the time no DNA testing was conducted which is in serious breach of the Company’s procedures.

As previously explained to you, your employment is based on the mutual recognition that you will provide a high-quality service to fully meet customer requirements and continue to develop and maintain the most productive, safe, cooperative and harmonious working relationships possible. Clearly you have failed to meet these requirements.

The disregard you have shown for policies and procedures and the terms and conditions of your employment will not be tolerated by the Company and as such your employment has been terminated effective immediately.

You will be paid five (5) weeks in lieu of notice and all entitlements, via electronic funds transfer within 7 days from the date of this letter.

The Company reminds you of the ongoing requirements of confidentiality which is required as per your employment contract. This means that you will not disclose any information about the Company which you have in your possession.

Sincerely
Owen Burton
Site Manager[23]

(emphasis added)

The Applicant had received three prior warnings during his employment with the Respondent. The termination letter only obliquely referred to the warnings, as underlined above. However, the employer was able to rely on them in combination with the final incident.

The Applicant had been employed with the Respondent for some 23 years. The first warning he received was a verbal warning on 5 July 2021 for allegedly making inappropriate comments to another worker by swearing at them. The Applicant conceded to swearing but denied swearing at the complainant. This allegation was made in regard to an incident whereby the Applicant asked the employee to check whether one of the forklifts in the rendering section was operative. It was alleged that when the employee did not make an effort to check the functionality of the forklift as instructed by the Applicant, the Applicant expressed his frustration swearing but he clarified this was not directly at another worker. After the incident, the Applicant was called into a meeting with Mr Burton, Ms Hamill and Ms Danielle Rust, the then Human Resources Officer. The Applicant submitted that Ms Hamill dismissed his account of the incident and stated, “I would strongly advise you not to get the union involved.”[24]

The second warning the Applicant received was a written warning on 30 July 2021 for smoking outside of a designated smoking area, as set out below:

30 July 2021

Dear Stephen

We refer to our meeting on Friday 30 July 2021 regarding the following:
·Failure to follow Company GMP Policies and procedures – smoking outside designated smoking area
oVerbal warning issued on 5 July 2021 for making inappropriate comments to another worker.

On Thursday 29 July 2021 you were witnessed by the Distribution Manager lighting up a cigarette whilst using a forklift to unload offal from the dock area. Your actions are in breach of the Company’s policies and procedures which clearly states that smoking is only permitted in the designated areas being near ladies changing room and neat rendering and is not permitted in any OTHER area within the processing site.

During our meeting you were given the opportunity to respond to our concerns and you admitted the above is true and correct, you also advised you have no excuse for your actions sd you are fully aware of the processed in place.

As explained during our meeting it was your responsibility as an employee of our Organisation to follow Company policies and procedures at all times to ensure compliance. As the Rendering Supervisor it is expected that you must lead by good example at all times. We refer to our Disciplinary Guidelines that clearly state the following examples of behaviour may subject you to counselling and discipline that may include dismissal (copy of Guidelines is attached):
oSmoking anywhere in the site other than designated areas.

This Company cannot and will not tolerate such circumstances with regard to your employment and this warning is an official notice to illustrate our concern and advise that it will be placed in your personnel file.

We are expecting an immediate satisfactory improvement which is required to continue for the full term of your employment with us. Failure to improve to an acceptable level, in particular, a repeat of any performance incident will result in further disciplinary action and may include termination of your employment.

If you would like to discuss this further you may do so now or make an appointment to see me later.

Yours sincerely
Owen Burton
Site Manager[25]

The Applicant accepted responsibility for this breach of workplace policy. At the meeting he stated he had done the wrong thing and that he understood that. The Applicant’s evidence was that Mr Burton, who was present at the meeting, appeared to accept his explanation that he had unconsciously lit up prior to reaching the designated smoking area.[26]

The Applicant submitted the smoking rules were only selectively enforced, and he said this warning was received not long after his first warning, and that this incident did not warrant a formal written warning.[27]

The third warning was a final written warning issued on 16 August 2022, for not wearing a seatbelt while operating a forklift:

16 August 2022

Dear Stephen,

This is a final written warning. The reason for this warning is unacceptable workplace conduct, being the unsafe operation of PMP and not following Company’s safety processes and procedures. This issue was discussed in our meeting on 16 August 2022.

Despite receiving training regarding the safe and acceptable operation of PMP, you have failed to meet the requirements.

During an audit carried out in the Mareeba plant on Thursday 11 August 2022, it was reported that you were witnessed operating a forklift without wearing a seatbelt. You have failed to follow the proper processes and procedures in place in order to safely operate PMP by choosing not to wear a seat belt while the PMP is in motion.

As the area Supervisor, you are expected to lead by good example and you are also responsible for following correct safety processes and procedures in place to ensure the safety of yourself and others.

During the meeting you admitted to operating the forklift without wearing a seat belt and stated you were under the understanding that when a forklift is to be operated and is to move a short distance a seat belt is not required. You also stated its been a while since you have done any training.

As per the Steggles Pty Ltd (Mareeba Plant) Enterprise agreement, you are reminded that your employment is based on the mutual recognition that your provide a high quality service to fully meet Company requirements, continue to develop and maintain the most productive, safe, cooperative and harmonious working relationships possible by promoting trust and continually striving to assist maintain and improve the Company’s good reputation. On this occasion you have failed to meet these requirements.

An immediate improvement is expected. Any further instances of unacceptable workplace conduct including failing to follow policies and procedures may result in further disciplinary action, up to and including the termination of your employment.

Sincerely
Owen Burton
Site Manager[28]

Submissions

Prior to the hearing, directions were set for the filing of evidence and submissions. The parties filed their material in accordance with these. After the hearing, closing submissions were heard via Microsoft Teams, and by agreement parties were provided an opportunity to provide any further final written submissions. Further submissions were provided.

Witnesses

The Applicant provided evidence, and Ms Takla and Mr Burton provided evidence on behalf of the Respondent. All witnesses provided statements and were cross examined at the hearing.

As referred to at the hearing, the Applicant sought to amend his statement to replace Ms Takla’s name with Ms Hamill’s. Ms Hamill is the Industrial Relations Coordinator for the Applicant’s work region. He stated he has never met either of those representatives in person, however had interacted with them over the phone or via Microsoft Teams and that is why he had confused the two. The statement was amended by consent.

SUMMARY OF APPLICANT’S SUBMISSIONS AND EVIDENCE

In support of his application for an unfair dismissal remedy, the Applicant, with his Union representative, provided written submissions which outlined the chronology of events leading to termination.

The Applicant alleged his dismissal was unfair because it was not for a valid reason, and the disciplinary response of dismissal was disproportionate to the alleged conduct. His representative also took issue with a number of the prior warnings undertaken in an 18-month period. The Respondent submitted that the Applicant was on a final warning and that his conduct in relation to the forklift incident warranted dismissal. The Applicant stated that prior to these warnings he had not received any disciplinary warnings in his significant period of service.

In addition to those matters set out in the ‘background’ above, in summary, the Applicant submitted that he was unfairly dismissed from his employment with the Respondent on 2 February 2023, following a workplace incident that occurred on 27 January 2023.

The Applicant made several submissions regarding the previous written and verbal warnings that he received prior to the termination of his employment.

The Applicant received a written warning on 20 July 2021. The Applicant submitted that the written warning was not justified in the circumstances as he had already had a discussion with Mr Burton in a meeting held prior to receiving the written warning.[29] The Applicant submitted further that the rules enforcing the designated smoking areas are inconsistently enforced. The Applicant made reference to a time whereby employees, including Mr Burton, smoked in a designated non-smoking area between practical sessions of training to evidence his contention.

The Applicant received a final written warning on 16 August 2022. It was alleged that the Applicant was not wearing a seatbelt whilst operating a forklift. The Applicant asserted that he strongly disagreed with this warning, however, accepted that he had not been wearing a seatbelt whilst operating the forklift. The Applicant stated that the reason why he was not wearing a seatbelt was due to it not working and stated that the buckle had been faulty for months and that it did not function properly. The Applicant indicated that the seatbelt did not secure properly and that the belt and buckle were held together with grey gaffer tape.[30] The Applicant asserted that management were aware of the faulty seatbelt, as evidenced by the weekly reports conducted for ongoing forklift issues recorded on the Pre-Op and GMP sheets.[31] The Applicant submitted further that the faulty seatbelt had also been reported verbally to the Health and Safety Officer and the Site Manager. The Applicant submitted that he demonstrated its lack of function and that it did not secure properly and was held together with tape, to Ms Amanda Sippel, the Health and Safety Officer. The Applicant submitted that other employees that worked in the rendering section had also been using the forklift with the faulty seatbelt, including the live-bay operators and the maintenance workers. The Applicant had also noted this seatbelt issue on the training document, as set out below.

The Applicant submitted that he spoke with the Site Manager and Ms Hamill at the time of the incident. The Applicant submitted that it was his understanding that he was not required to wear a seatbelt when operating the forklift over a short distance. The Respondent stated that SafeWork required a seat belt to be used where fitted. The Applicant submitted that he was not wearing a seatbelt in the circumstances as he was only driving the forklift across approximately 10 metres.[32]

In the meeting for the incident, the Applicant agreed he had informed Ms Hamill at the time that he believed he was not required to wear the seatbelt when moving short distances as per SafeWork.[33] He submitted that Ms Hamill read him several sections of the Baiada Task Instructions which stated otherwise. The Applicant stated he had not been trained on that document.[34]

When Ms Hamill indicated the Applicant had signed the document, the Applicant stated he had initialled it (instead of signing) to indicate his acknowledgement of receiving the assessment document, not that he had received training on it.[35] The Applicant contended that he had initialled the relevant section so that it could not be filled in later and that Mr Burton acknowledged his lack of training.[36] The Applicant further submitted that there were other, more serious issues regarding the operative function of other equipment at the facility.

In summary, the Applicant submitted that he had held various positions within the company and has acquired numerous competency and achievement awards in relation to various areas, that he had worked in and supervised. He submitted further that he had also completed a range of different qualifications throughout the course of his employment.[37]

The Applicant stated that he had received minimal income since his employment was terminated. He submitted he had derived some income by undertaking some work for his friends (pig and kangaroo shooting), but he had mainly been paid in kind for such.[38] The Applicant stated that he had intended to continue to work out his employment until age 67, and then to retire. The Applicant set out that the potential for gaining alternative employment in Mareeba (a regional town) outside of Cairns was remote.[39] The Applicant’s further submissions are addressed under section 387.

SUMMARY OF RESPONDENT’S SUBMISSIONS AND EVIDENCE

In addition to those matters set out in the ‘background’ above, the Respondent submitted that the termination of the Applicant’s employment was for a valid reason and was not harsh, unjust or unreasonable.

In summary terms, the Respondent submitted that its procedure for dealing with an incident is that an incident report is required to be completed by the operator and to be immediately reported to Management.

The Respondent submitted that the Applicant was aware of the incident reporting procedure and that his knowledge of this procedure was demonstrated when he participated in training on 16 August 2022 in that procedure. The Applicant agreed he had received the relevant document but disagreed he had received any ‘training’ on it.[40] The training was conducted due to an earlier episode of his non-compliance regarding the operation of a forklift without a seatbelt. At that time the Applicant had initialled a record, confirming his completion of the re-training which set out the possible risks to his safety and the safety of others.

The Respondent submitted that the Applicant had failed to comply with the reporting procedure, and as the Operator was also required to undertake a drug and alcohol test. The Respondent submitted that contrary to the procedure, the Applicant did not report the incident to management as soon as it happened, and therefore he did not undergo the mandatory drug and alcohol testing.

Accordingly on 2 February 2023, the Applicant attended a meeting about the incident with Mr Burton, the site manager, Ms Hamill, the Queensland Industrial Relations Coordinator, and Ms Sippel, the Workplace, Health and Safety Coordinator. The Applicant was invited to have a representative attend the meeting with him. He declined this opportunity of his own volition. The Respondent submitted that the Applicant was informed of the facts which management had become aware of regarding the incident investigation and was provided with an opportunity to reply at the meeting. The Respondent submitted that the Applicant conveyed he could not find the Maintenance Manager to report the incident to at the time it occurred. It was put to the Applicant that he could have reported the incident to another manager. The Respondent submitted that the Applicant’s response was considered unsatisfactory given that at the time of the incident, there were other managers available to whom the Applicant could have reported the incident. There was a contest on the evidence in regard to whether there were managers available at the workplace at 1:00pm on Friday 27 January 2023. The Applicant stated he could not find one. The Respondent did not bring specific evidence to dispute this.

The Respondent set out that at the time of the incident in question, the Applicant was subject to the effect of a previous disciplinary final warning given on 16 August 2022. In the final warning, the Respondent stated that it was issued for the reasons of unacceptable workplace conduct, being the unsafe operation of PMP, and not following the company’s safety processes and procedures.[41] Further, the final warning provided a further instance of unacceptable workplace conduct, including the failure to follow policies or procedures may result in further disciplinary action up to and including termination of employment.[42] The Applicant signed the document on 29 August 2022, confirming his understanding and acceptance of the warning.

Further, the Respondent pointed to the second warning in relation to the Applicant’s failure to follow the Company GMP Policies and Procedures in relation to smoking outside designated areas.[43] The written warning also stated there was a failure to improve to an acceptable level in particular, and that a repeat of any performance incident would result in further disciplinary action and may include termination of employment. The Applicant signed the written warning on 3 August 2021, in acknowledgement of receipt of that warning.

In regard to the termination meeting, Ms Takla agreed that the Industrial Relations Coordinator was present, and spoke to her by phone when the meeting broke. Ms Takla stated she received a recommendation, and she authorised the Applicant’s termination.

Mr Burton, the Site Manager of the Steggles poultry processing plant at Mareeba also gave evidence on behalf of the employer. Mr Burton had been employed with the Respondent for nine years and had been in his current role since July 2021. He has held other senior management positions during the course of his employment at this particular plant, including that of Distribution Manager and Production Manager. Accordingly, he said that he had a good knowledge of all aspects of the poultry processing activities at the plant, and he was also experienced in forklift operation, having a current forklift license. He confirmed the Applicant had worked at the site during those nine years and he agreed that the Applicant had not had any issues with forklift operation in that time.

Mr Burton stated that he signed the Applicant’s termination of employment letter dated 2 February 2023 and confirmed the reason for the dismissal as set out in the letter of termination. Attached to Mr Burton’s statement was an index of documents including the Applicant’s letter of termination, photos of the roof, beams and meal bag storage area at the Mareeba plant, the Task Instruction, which he stated was signed by the Applicant on 16 August 2022, the final written warning issued to the Applicant on 16 August 2022, signed by the Applicant on 29 August 2022 and the written warning of 30 July 2021, signed by the Applicant on that same day.

Mr Burton argued that the Applicant’s submission understated the extent of the damage caused by the Applicant, and that the full extent of the damage can be evidenced in the photos taken by the Maintenance Manager at the plant, attached to his statement.[44] Mr Burton stated that the photos showed that three beams were hit and bent, not just one beam, and that the second beam had been bent approximately 30-40 cm. Further, Mr Burton stated that the photos showed ripped sheets of the roof and sunlight being visible through the torn areas. Mr Burton asserted that the level of damage as evidenced by the photographs submitted, indicated that the forklift strike had been very forceful in its impact.[45]

Mr Burton stated further that it was not the Applicant’s responsibility, and it was wrong of him, to make any judgement about the extent of the damage, or to make any assessment of the risk, and that those kind of judgements and assessments are done by qualified people with the designated responsibilities, such as the plant workplace Health and Safety Coordinator and the Maintenance Manager.[46] Mr Burton submitted that the Applicant should have stopped operating the forklift immediately after the mast struck the roof. Mr Burton was clear in his evidence that an operator is required to immediately report any accident/incident or near misses.[47]

Mr Burton further stated that there was no discretion in relation to the requirement to report and that the mandatory requirement is outlined in the Task Instruction under step 3 ‘accident incident or near miss.’ This document further details driver responsibilities and reporting requirements.

The applicant was clear that there were no manages available to reporter on that Friday afternoon.[48] Mr Burton stated he did not understand that the applicant had originally included in his evidence that the workplace health and safety officer was not available.

Mr Burton stated that on 2 February 2023, the Applicant was asked by Ms Hamill, to explain why he had not immediately reported the incident to management. Mr Burton set out the exchange of information between the Applicant and himself throughout the meeting, whereby the Applicant, in summary terms, had said he could not find the Maintenance Manager. He stated further that he went to the Maintenance Manager’s office, but he also was not there. Mr Burton put to the Applicant that he could have reported the matter to the Production Manager or the Workplace Health and Safety Coordinator. Mr Burton stated that the Applicant had his mobile phone number and that he and the Applicant regularly exchange texts about work matters, such as the levels of tallow oil, which the Applicant had texted him about on 24 January 2023.[49] However, Mr Burton had not been on site that day. Mr Burton provided further evidence of these exchanges, stating that he had texted the Applicant on 2 February 2023, to inform him that he needed to meet with him about the forklift incident and that he could bring a representative to that meeting.

Mr Burton stated that the Supervisor and Team Leaders are responsible for the implementation of this procedure. He stated that this clear instruction is stated at page one next to the heading ‘Responsibilities’ under the second point, and that the Applicant, being a Supervisor, was expected to implement the procedure.[50] Furthermore, Mr Burton’s evidence was that the Applicant was aware of the requirement to immediately report the incident as he had been re-trained in the Task Instruction on 16 August 2022 and his participation was receipted by way of signature on page 15 of that document. He submitted that this confirmed that the Applicant was re-trained in that procedure.[51] It was further warranted as the Applicant had operated a forklift without wearing a seatbelt and due to this unacceptable conduct, he was given a final written warning, dated 16 August 2022.

In defending the decision taken to terminate the Applicant’s employment, Mr Burton stated he was satisfied that the Applicant was aware of the requirement to immediately report the incident and that the Applicant had been re-trained in the Task Instruction on 16 August 2022.[52] The reasoning, however, has unfairness given that it has been established that there was no manager on site to report to. If an alternative process should be used that needs to be documented in the task sheet.

Mr Burton stated that he took into account the Applicant’s submission that it did not occur to him to telephone any of the managers to let them know about the incident. In response to the Applicant’s statement that it had not occurred to him that anyone would want him to undergo a drug test, Mr Burton said he could not reconcile this given that drug and alcohol testing is a compulsory practice as stated on page 3 at step 3 of the Task Instruction procedure, concerning accidents, incidents or near misses.[53] There is a difference in the evidence between the parties and under cross-examination, Mr Burton stated the termination did not relate to the failure to undertake the drug and alcohol test. Mr Burton reiterated that the Applicant had been re-trained in this Task Instruction on 16 August 2022, and the Applicant had signed off on that document verifying his participation in the training.

In his evidence, Mr Burton responded to the allegations of the Applicant that other employees had been treated differently to him in similar circumstances. The Applicant referred to his understanding that other forklift operators who had caused injury and had not been stood down or had their employment terminated. Mr Burton stated that the Applicant had not provided adequate details regarding these other incidents and that if he had been aware of another incident causing injury or damage, he should have reported such to management. Mr Burton’s evidence was that if the Applicant was alleging that management ignores or mis-manages forklift incidents, then he strongly denied that allegation.[54]

Mr Burton referred to the Applicant’s evidence, whereby the Applicant stated that the rules about smoking in designated areas are only selectively enforced. Contrary to this, Mr Burton’s evidence was that the rules are enforced fairly, and a person breaching such a rule is disciplined. He accepted the Applicant’s evidence about the location of the smoking area and that the area where several employees had a cigarette was behind the main office which is a smoking area for the office staff.

The Applicant’s evidence was that he strongly disagreed with the final warning issued to him on 16 August 2022. Mr Burton, in his evidence stated he was surprised at the Applicant’s statement in this regard, given that the Applicant had signed the document that morning on 29 August 2022. Furthermore, Mr Burton’s evidence was that he had not been aware that the Applicant had previously disputed the seatbelt warning.[55] Mr Burton stated that the warning had been given to the Applicant as he was not wearing a seatbelt, that being a safety requirement of forklift operation, and accordingly, he wasn’t following the safety rules. In addition, if it was that the safety belt was broken, the Applicant should’ve tagged it out and not used the machine until it was repaired. When issues such as these are reported, it is the Workplace Health and Safety Coordinator’s job to log the faulty machine to be fixed and not used until repaired. Mr Burton reiterated the importance of this procedure. He stated in his evidence that wearing a seatbelt is a safety requirement of forklift operations and that it was imperative to follow the safety rules. Furthermore, he stated there was absolutely no expectation or requirement at the site that an operator should operate faulty machines.

RELEVANT AGREEMENT PROVISIONS

Reference was made by the parties to the Agreement in this matter, particularly the disciplinary clause set out below:

12. COUNSELLING/DISCIPLINARY PROCEDURE (THIS CLAUSE DOES NOT APPLY TO PROBATIONARY EMPLOYEES)
12.1 Throughout the counselling procedure an employee has a right to a support person and may request the support person to be a Union Representative.
12.1.2 The Company will advise the employee at each stage of the counselling or disciplinary procedure of their rights to have a support person.
12.2 In any case where the actions of an employee are deemed to be unacceptable to the Company, the employee will be counselled as a prerequisite to the commencement of discipline and or termination proceedings, except that this clause will not apply where the actions constitute serious misconduct.
12.2.1 Serious misconduct includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the Company’s business, the employee, in the course of the employee’s employment, engaging in theft or fraud or assault, sexual harassment, the employee being intoxicated at work, the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment, as outlined in regulation 1.07 of the Fair Work Regulations 2009.
12.3 Taking into consideration the severity of the allegations/incident, following an investigation and the provision for an opportunity for the employee to respond to the matters raised and to explain their actions and understandings with regard to the matters raised the counselling procedure will consist of one or all of the corrective measures as stated below:
12.3.1 The Company will either accept the employee’s response and no further action will occur or the employee will be counselled. The Company will clearly identify, in written advice to the employee, the unacceptable actions and advise on corrective measures that are required.
12.3.2 Where further unacceptable conduct occurs a further review will occur and may incorporate a written warning to the employee identifying the performance incident/unacceptable actions and the corrective measures required.
12.3.3 Where a performance incident/unacceptable actions are serious, but not so serious to warrant immediate dismissal, the Company may issue the employee with a final warning without having issued previous warnings.
12.3.4 Where a final written warning has been issued and there are no re-occurrences of any unacceptable performance matters/actions for a period of twelve (12) months the final written warning shall remain on file, however, will not be relied upon for any future counselling/disciplinary action.
12.3.5 When despite previous counselling, further performance incidents occur, the Company may consider the option of issuing a further written warning, a final warning or termination. The employee will be given the opportunity to respond and asked to provide reasons why the intended disciplinary action should not occur.
12.3.6 After reviewing· all the facts and having taken into consideration the information from the employee and their representative the Company may exercise the options available and inform the employee accordingly.

(emphasis added)

RELEVANT TASK INSTRUCTION EXCERPTS

The relevant Task Instructions referred to by the Respondent are set out below:[56]

Responsibilities
·The Site Manager has overall responsibility for the implementation of this relevant procedure.
·The supervisor and team leaders are responsible for ensuring this procedure is implemented.
·The staff member has the responsibility to follow this procedure and notify their supervisor, team leader or trainer if they are unable to do so for whatever reason.
·The trainee is responsible to follow the work instruction in the manner trained.

Accident/near miss – step 3
If an accident, incident or near miss occurs, it must be reported immediately to your supervisor and written in the incident report book. The PMP operator will be removed from operating and a compulsory drug and alcohol test will be conducted as well as incident report to be completed.

Pre-operational – step 4
…
·check seatbelt and clip is in good working order

…

Before you drive – step 5
·Adjust the operator’s seat and steering wheel to the most comfortable position.
·Fasten your seat belt and pull it snug.

NOTE: The forklift will not start without seat belt on.

TASK REVIEW
Reporting Issues
·Report all incidents and hazards to your Health and Safety Representative or your Supervisor/Manager.
·Report all quality issues to the QA Manager, Site Manager, Manager or Section Supervisor.
·Report any Environmental incidents or hazards to your Supervisor/Manager.

CONSIDERATION

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

Each of these criteria in section 387 are assessed according to the factual circumstances below.[57]

(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)

In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded'[58] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[59]

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[60] 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 Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s conduct. He had not in the circumstances breached company policy in failing to report the forklift incident. The Applicant submitted that he completed the incident form and took reasonable steps to inform management of the incident, despite them not being on site at the time of the incident occurring. Further, after attempts to report the incident as quickly as possible, the Applicant submitted that he considered it reasonable to report it at his next shift, as the damaged roofing support did not require immediate attention or create a risk to health and safety.

The Respondent submitted that there was a valid reason for the dismissal, this being serious neglect of duty in not reporting the incident immediately, resulting in breach of health and safety processes and procedures. The Respondent contended that it was not for the Applicant to categorise the level of damage and then apply the policy and report the damage on his own basis. The employer relied on the Applicant’s earlier warning and his re-training in the Task Instruction. The Respondent stated that the Applicant’s dismissal related to his non-compliance with the Respondent’s safety protocol, and that this qualified as a valid reason for dismissal.

The reason for termination was tested in cross-examination with Mr Burton. He confirmed that the reason turned on the Applicant’s failure to immediately report the incident, and that this was a breach of the policy and procedure. He clarified that the dismissal did not relate to an allegation against the Applicant that he had deliberately failed to report the incident to avoid the mandatory drug and alcohol test.[61] Whilst the Respondent made reference to its policies and procedures, none were provided by the Respondent in the evidence or submissions in this matter. The only document submitted that was related to the required conduct of the Applicant in the circumstances, was the Task Instruction. Step 3 of the Task Instruction sets out if an accident or near miss occurs, the Applicant is required to report it ‘immediately to [the] supervisor and [for it to be] written in the incident report book. The PMP operator will be removed from operating and a compulsory drug and/or alcohol test will be conducted as well as incident report to be completed.’ [62]

The Applicant stated he took a further 20 minutes or so to complete his job, and the incident report.[63] He could not provide the report to any managers at the site. This evidence was not overturned by the Respondent .. On Monday 30 January 2023, on his return to shift and alerting the employer of the forklift incident, the Respondent had him (contrary to Task Instruction, step 3) continue to work on the forklift on this day and Tuesday 31 January 2023, prior to his employment being terminated on the Thursday.[64]

In accordance with step 3 of the Task Instruction, the Applicant stated he completed the incident report and advised the oncoming shift to stay away from that area. He also considered that the damage was not serious, but minor. Consistent with this appraisal, the evidence at the time of the hearing (some months later) was that the Respondent had not fixed the damage,[65] although Mr Burton stated he quite recently had a tarpaulin put up to cover it.[66] He also confirmed that the product in that shed was covered by nylon bag and plastic.[67]

The Task Instruction was presented in cross-examination with Mr Burton. In relation to the Applicant endeavouring to report the incident to a manager, Mr Burton confirmed that he was not on site that day.[68] Mr Burton’s other evidence was that the office of the Workplace Health and Safety Manager was adjacent to the manager’s offices.[69] The evidence of the Applicant was that he did not see the Workplace Health and Safety Manager in her office, or any other managers. None of those managers were called to give evidence and no evidence was brought on behalf of the Respondent, challenging the evidence of the Applicant, that these managers were not available at the time for him to provide the incident report. Mr Burton did comment that the Applicant could have advised him by text message, although it was known that he was away from site that day.[70] Alternatively, he stated he could have advised the Security Officer on the way out of the site. The Applicant stated he did not think of that, and it was not documented as part of the reporting procedure.[71]

Mr Burton’s evidence was that what should have happened was:

“So, that afternoon, Steven should have reported to a manager immediately, then a manager should have organised for him to undergo drug and alcohol testing. If they came back all negative, he would have been okay to drive again.”[72]

The unavailability of the managers at site that Friday afternoon, impeded the Applicant completing the steps to report the incident and fully comply with step 3 of the Task Instruction. The Applicant had actively endeavoured to report the incident, but for the Managers not being present to report it to has to be seen as compliance. Whilst it was raised with the Applicant that he could have taken other steps to report the incident, the Task Instruction does not prescribe any steps that the Applicant should have taken in the alternative. The evidence was that there was no list of relevant work mobile numbers and contacts accessible at the work site to be used in situations such as this for the reporting of an incident or accident. Mr Burton stated there were numbers available ‘in the main office’, however the numbers were not displayed and there was no information on how they were to be used.[73] In line with the Task Procedure ‘Responsibilities’ set out earlier, the Site Manager, Supervisor and Team Leaders have the responsibility to implement the Procedure. It is not procedurally fair to recommend further steps in terms of the implementation of this procedure when these are not part of the written procedure. Training for employees has not covered possible additional procedures when management are not providing the implementation steps.

The Union stated that the Applicant had not been disingenuous in not immediately reporting the damage. It was a matter of half an hour in terms of the time in which he had completed the incident report and endeavoured to report the incident but was unable to find a manager to report to. It is open to draw an inference in accordance with Jones v Dunkel[74] that if one those managers, had been available and present at the site to receive the Applicant’s incident report, Mr Burton would have provided that evidence, or those managers would have been called to give the evidence. Mr Burton, in response to cross-examination, suggested alternative managers to phone, but conceded that there was no list of available phone numbers at some designated place onsite for employees to ring to report an incident when required. His evidence was only that numbers generally were available at ‘the main office.’[75] However, no clear instructions were provided on this. As per the task sheet, it is the responsibility of the Managers as set out to implement the relevant procedure.

With regard to the incident with the forklift, as previously set out, the Applicant raised that the high mast forklift was being used rather than the regular mast forklift and that this mast created greater risk of collision as it ran very close to the roof of the shed. Mr Burton was asked about the differences in dimensions of the masts and the use of this other tall forklift and whether there was a greater risk in operating the taller forklift in the shed. Mr Burton could not provide any evidence in response on the use of the tall mast forklift.[76] This was surprising given that the Applicant had addressed this, Mr Burton had been the Operations Manager at that site for more than nine years, and the Applicant had referred to this in his evidence regarding mitigating conduct. The Applicant had stated in his explanation as to how the incident occurred, that the top of the tall mast ran very close to the roof and created a ‘foreseeable risk’ of collision.

Again, the Respondent made no response to this circumstance relevant to the incident that the Applicant raised. As such, an inference in accordance with Jones v Dunkel can again be drawn. Mr Burton was aware that this was the Applicant’s evidence, and it seems reasonable that if the risk with this forklift incident could have been rebutted, the Respondent would have done so.

The Applicant described the resulting damage as minor, however he understood that categorisation of the nature of the damage did not influence the obligation for him to report the damage immediately. The Applicant explained that the incident did not cause any structural damage to the shed and the Respondent’s response to the damage appeared consistent with this. The Respondent had not moved to repair the resultant damage until just prior to the time of Hearing,[77] (when a tarpaulin was put over it), therefore lending support to the Applicant’s assessment.

Training and prior warnings

With regard to the warnings that had preceded the termination of employment, the Applicant had been employed for 23 years and received three warnings in the last 18 months of his employment. In summary, the first warning was dated 5 July 2021 and was for use of inappropriate language, but the Applicant says he did not say to another employee. The second warning dated 29 July 2021, was for smoking in a non-designated smoking area. The final warning dated 16 August 2022, was for not wearing a seatbelt while operating a forklift. Clause 12.2 of the Agreement states that the Applicant will be counselled as a prerequisite to commencing a disciplinary process. There was only evidence of the warnings, and no suggestion to the Applicant to commence in counselling.

Clause 12.3.4 of the Agreement sets out that a final warning will lapse after one year if there are no other issues of performance in that time. In this case, the Applicant’s final warning was issued on 16 August 2022, however he refuted that it should have been a final written warning, on all of the circumstances of that matter. It is also noted that clause 12.3 of the Agreement requires that an investigation should be undertaken, and the employee should be given an opportunity to respond. There is no evidence of an investigation being undertaken with the seatbelt warning and no evidence that any findings were put to the Applicant at the termination meeting. Clause 12.3.5 allows for other options to termination.

At the hearing, the Applicant was transparent, showed candor with his evidence and was willing to concede, where matters were to his disadvantage, for example the smoking warning, which he conceded. There is also no record of the Applicant acting dishonestly in the events alleged or in his lengthy employment history. The evidence of Mr Burton was that he had been at the site during the last nine years of the Applicant’s 23 years of service and that he had not had cause during all of that time to raise a breach or have concern about the Applicant’s actual performance on the forklift.83

The Applicant took issue with the final warning. He had been disciplined on that occasion for not wearing a seatbelt whilst operating a forklift. The Applicant did not consider it was necessary when he was constantly getting on and off the forklift.[78] He also raised that the seatbelt on the forklift was broken.[79] The Respondent stated that the first time they were aware of this alleged fault was in relation to the hearing proceedings[80] and took issue with the Applicant using the Hearing to ventilate issues with the prior warnings when the Respondent stated they had not been made aware of this at the time.

Ms Takla’s evidence regarding the warnings the Applicant had received, and only those matters that she took into account in signing off on the recommendation for the Applicant’s termination of employment, is extracted below:[81]
“THE COMMISSIONER: And he provides some mitigating information with regard to the forklift being used that day. Are you aware of that?
MS TAKLA: I vaguely remember something about the forklift timber on the floor and forklift went over the timber or the initial forklift being used wasn’t available. I remember vaguely about that. Again an operational issue. I didn’t get too involved in that.
THE COMMISSIONER: But did you ask any questions about what was the impact of that operational issue in terms of the incident that occurred?
MS TAKLA: Is this before I made my recommendation?
THE COMMISSIONER: Yes
MS TAKLA: No. I wouldn’t have thought to ask, you know - I wouldn’t have thought to ask questions about what forklift was he using, what was - you know, what would have caused him to have that incident. That wouldn’t be something that I would ask. I’d be relying on information to be provided to me from the site and no such information was provided. I don’t -yes. I don’t quite understand the question as far as why was I asked that.
THE COMMISSIONER: …But the specific circumstances are here, as I understand it, that Mr Dyer has worked for the company, maybe in its various permutations, but for 23 years and as I understand it, your recommendation might have been different - your information provided to you may have been different, but what’s been provided on the papers before me is that he had three warnings for various reasons.… As I understand, there were no warnings. Again, I might be corrected. You might have different information. But up until the last 18 months, there were no warnings and therefore I’m wondering what level of interrogation was undertaken in terms of those incidents that he was involved in prior to the termination being concluded?
MS TAKLA: With all due respect, when it came to the incident and why and how the incident occurred was not the issue. It’s more the fact that there was a breach in not recording it. Not following proper process and reporting what had occurred. Whether it’s his fault, not his fault the forklift hit the roof, wasn’t the issue. The issue was, ‘An accident has occurred. You needed to report it. Why didn’t you follow proper procedure and make sure you reported it.’ That was the concern that the business had.”

The evidence as well as addressing the reporting of the accidents, the prior process was considered. As a result of the prior seat belt incident, he was required to undertake training associated with not wearing the seatbelt.[82] The training provided the form of the Applicant being provided a “training quiz” (being the Task Instruction) this covered a lot more material than just matters in relation to the procedure associated with wearing seatbelt on a forklift. It also covered the reporting procedure where there was an accident or incident. The Respondent then relied on this “re-training” document, for the final reporting incident as well. It is noted that whilst it is addressed as ‘retrain’ no prior training across the prior 22 was raised. The Applicant submitted that the sheet was handed to him. There was no trainer present to take him through the procedures prior to assigning the quiz the procedures in the, and no trainer to sign off or mark the paper to confirm whether he had the correct understanding of the procedure.[83]

The Applicant stated he had accepted the training and stated that he had not had any particular training in relation to the forklift for some time, and that he considered he had no alternative but to undertake the training quiz, and to sign the document.[84] He did in preparing his evidence for the hearing, indicate that the seatbelt on that forklift was not working, and this was consistent with what he had written on the training quiz document. Although given no one marked the quiz for the Applicant, it is uncertain whether they saw the comment.

The Respondent placed reliance on the Applicant’s completed training document, which was a series of questions, a majority of them being multiple choice questions. This document demonstrates that the Applicant was provided the document, and that in relation to question 5 which stated, “does a forklift start without a seatbelt on?” the Applicant wrote next to his circled answers of “yes” and “no” that “ours does but should not.”

He was also asked to sign the training document, which he did, he said as he felt compelled to do so.[85] However, next to the parts to be completed by the trainer in terms of scoring the Applicant’s correct answers and writing whether he was competent or not, these were left blank. The Applicant stated that the questionnaire regarding these matters was the only documentation he received, with no accompanying training or marking of his responses.[86]

The Union argued that it was inappropriate to present this as ‘training’ given no trainer was involved, and no trainer had taken the Applicant through any of the required procedures. Further, no trainer had received his completed quiz, marked it, or indicated whether he was competent or not. Ms Takla could not provide evidence in relation to this training process and stated that that was a matter for the trainer on site.[87] Mr Burton similarly could not provide further information on the ‘training’.[88] The Respondent did not provide any evidence in relation to the training process or call a trainer from the site as a witness.

There was no evidence provided regarding the prior 23 years of the Applicant’s employment of any training or retraining, except for the provision of the training quiz document of 16 August 2022. The document covered reporting of incidents and cannot be considered ‘training’ as it was merely a self-guided quiz that was not marked or assessed. In circumstances where the Respondent put significant weight on the ‘refresher’ training, there were a range of flaws in the manner in which the training was provided. The quiz was undertaken for the seatbelt matter, but then also relied on for the final incident reporting matter. All that can be established is that there was a multiple-choice quiz, that policies and procedures were not set out in in the training or the refresher quiz and further, was not marked to determine if the Applicant was competent or not.

Whilst the Respondent took issue with the Applicant raising objections to the seatbelt warning due to the Applicant’s assertion that it had been raised previously and that the seatbelt was faulty. It is a matter of record that the Applicant wrote on the Task Instruction document in relation to the seatbelt that “ours does but should not” and therefore it is possible to infer that had a trainer marked the multiple-choice questionnaire and followed this up, there could have been resolution of the issue or from an opinion and training perspective.

The union has raised the seatbelt matter (in the examination of a valid reason), on the basis that the Applicant should not have been on a final warning prior to the final incident. However, it is also taken into account that, the Respondent’s representative submitted that prior to the Hearing, the Applicant’s representative sought daily MAR Rendering Daily GMP sheets. The Respondent stated that had these documents supported the Applicant’s assertion that the seatbelt on the particular forklift had been faulty for some time, been repeatedly reported in fault sheets and management had not taken steps to fix it, the Applicant would have raised these sheets as part of his case.[89] However, no Daily GMP sheet demonstrating this was entered into evidence. No conclusions can be dawn in relation to whether the seatbelt was faulty and if so, the duration for which the forklift with the allegedly faulty seatbelt was in operation in that state.

Limited reliance can be placed on the provision of the Task Instruction, or refresher training. It was not put into the evidence, that a trainer was present and went through the Task Instruction or that the questionnaire was marked or discussed to the Applicant. Therefore, it can only be seen as an unmarked multiple-choice questionnaire. No reference was made to any original training session for the ‘refresher’ to build on. The Applicant stated he only initialled the document to indicate receipt of it. However, that particularised evidence cannot be accepted as a distinction made between initialling the document and signing the document. However, where the Applicant was provided the questionnaire with no training or follow up, it is understandable that knowing the Respondent may later place reliance on such a document, he was hesitant to agree with usage of the document as training by placing his signature on it in acceptance.

Ms Takla signed off on the termination of the Applicant’s employment upon a recommendation from Ms Hamill.[90] In response to questions on the nature of the training relied upon, she stated the following as extracted below:[91]

“MR BUCKLEY: Would it be your understanding that a task instruction like this, a trainer would actually train and take a worker through this document and explain it’s contents as part of training session?
MS TAKLA: Common sense perspective, I can answer that question. I mean, what they do and how they do, and why they do it, I don’t know, but from a common sense perspective, I would expect that a trainer would go through and explain the whole task instruction, yes, while the worker was doing the training.
MR BUCKLEY: You wouldn’t expect them to simply give this task instruction to the employee and have them read through it on their own and complete the question at the end and sign it?
…
MS TAKLA: It’s a little difficult for me to answer that question, because I really don’t know.
THE COMMISSIONER: Can you look at the document on page 94?
MS TAKLA: I have looked at the whole document. I can see from a common sense perspective, I would say that, you know, obviously if you are training someone and you want them to make sure they understand it, you’d go through and you’d explain the document to them, whether there’s been some training before hand and then they’ve given this document - gave them the document and said, ‘Okay. Now go through and review it again and make sure you understand it. I’m not sure if there’s been any prior training done. I just can’t comment on something that I don’t know anything about and how it’s rolled out.
THE COMMISSIONER: So did you - your IR coordinator at the site, and I understand this structure, Ms Takla, that you are referring to - did she provide any information to you on the phone call as to whether Mr Dyer had been trained prior to the completion of this document?
MS TAKLA: I didn’t get that information, no. Sorry, the only information I received was that, you know, we’ve got evidence there to show that he has been trained. And that’s when the document was provided to show that he had done the training. How they do the training and how they roll out the training, I honestly don’t know. That would be something that maybe the site manager or the trainer would be able to explain how that’s done.
THE COMMISSIONER: Well, the trainer hasn’t been called. But if you look at that page 94 where it says, ‘Assessment score, competent, yes, no’, who would that document normally be given to?
MS TAKLA: That should be maintained by the trainer I’d say and that would be the trainer and the trainer would then do the assessment and put it on file.
…
THE COMMISSIONER: And was there any information as to the situation as to how that training occurred, when in terms of the applicant’s daily duties or?
MS TAKLA: I honestly don’t know. I don’t know anything about how the training function works at the site.”

(emphasis added)

Ms Takla, the National Industrial Relations Manager had the responsibility of managing a significant workforce, overseeing some 5000 employees employed with the company and about 200 to 250 at the Mareeba processing plant.[92] Her specific knowledge of the Applicant’s circumstances was limited. It is recognised that the model used was dependent on the Industrial Relations Coordinators (like Ms Hamill) being more specifically involved at the worksites and providing a recommendation to the National Industrial Relations Manager. Accordingly, Ms Takla was dependent on the recommendation from the workplace level whereby there should be a particular investigation into the specific circumstances of an employee facing termination. This process was not discharged in the Applicants circumstances.

The Applicant raised issues associated with the reliance the employer placed on his failure to not report the forklift incident immediately. There was heavy reliance was placed on the final warning and the ‘training’ in response to that. This reliance on the final reporting procedure and is not able to be sustained, when considered with the other mitigating factors to the final incident and in support of the assertion of a valid reason for dismissal. This is particularly so when considered against the 23 years of service of the Applicant and that he had not been the subject of disciplinary action until recently. The combination of these matters; the deficiencies of the training processes that were associated with latter warnings, the forklift incident whether the employer did not respond that the tool forklift was not fit for purpose in the shed, and also that manages are not available to report to these all, detract from the enforceability of the process. Alternative options to termination were available. In particular, the Applicant had completed the majority of the steps required of him in the Task Instruction. In relation to the immediate reporting of an incident, it can be reasonably argued that the Applicant’s actions were compliant with the procedure, and that but for the lack of availability of the managers (which has not been challenged or addressed by the Respondent in evidence), he would have been able to report the incident within 30 minutes. His failure to do so was not due to his lack of endeavour to do so, but due to the Managers not being available at the appropriate time.

In relation to the alternatives to termination of employment, Ms Takla in her evidence stated she had attributed significant weight to the Applicant being on a final warning for not wearing a seatbelt at the time of the forklift incident,[93] and improperly, she had not considered alternatives.[94] Further, she stated that it was necessary for the Respondent to be able to rely on employees complying with reporting obligations in order to protect the employees and the equipment.[95] Ms Takla was not accurately advised on the deficiencies in the training or that no managers were available on site to report the incident to .

Mr Burton confirmed that, as part of the sequence of discussions he had raised with Ms Hamill the Industrial Relations Coordinator, (prior to her making the recommendation for the termination to Ms Takla), the possibility of having the Applicant removed from operating forklift at the site was not considered. However, this was rejected.[96]

The Respondent’s legal representative did put to Mr Burton for clarification, the provision in the Agreement that sets out the elevated position and duties of a supervisor at clause 15.2.7 of the Agreement, which the Applicant was. However, whilst there were three prior warnings, the issue in relation to the most recent reporting procedure could not be held against the Applicant. Accordingly, the Respondent failed to demonstrate any further disciplinary issues with the Applicant that repudiated his resumption of supervisory duties.

Prior to the further Hearing, the Respondent provided case authority, in support of closing submissions including that of BHP Coal Pty Ltd v Schmidt[97] (‘Schmidt’) to support the contention that their decision to terminate Mr Dyer’s employment was lawful. The Full Bench in Schmidt found that the circumstances of the Applicant’s termination were not harsh, unjust or unreasonable and that the dismissal was not disproportionate to the conduct that occurred in the light of the paramount issue of safety and his employment history.⁹²

In Schmidt, the Applicant’s employment was terminated following an incident in the workplace where the Applicant had failed to adequately report to his direct supervisors. Prior to the incident occurring, the Applicant had been subject to two previous warnings relating to his failure to adhere to reporting practises surrounding notification of leave and attendance at the workplace.[98] Following the workplace incident, the employer/ BHP sought to engage with the Applicant on multiple occasions to address his misconduct, as well as provided him with an opportunity to respond to a written notice. Following an investigation conducted into the incident, BHP found that the Applicants actions constituted misconduct and that he acted in an unsafe manner and failed to notify his supervisor of the damage within a reasonable timeframe.

In their decision, the Full Bench stipulated that the nature of Mr Schmidt’s employment operating in coal mines, required close attention to safety issues and strict compliance with safety procedures.[99]

The Respondent relied on this case in assessing the fairness of the termination and argued that there was a striking similarity of facts. However, in reviewing the case, I consider that there are distinguishing factors. In this case, the Respondent has not raised issues of safety as their primary concern or reason for dismissal. Instead, as set out by Ms Takla and Mr Burton, it was a failure to follow policies in a timely manner. It was not disputed by the Employer that forklift incidents do occur at the plant, nor was it argued that the final incident resulted from driver error. Mr Dyer had also not presented any frustration in dealing with him from Management’s perspective. He had been honest and responsive.

In this case, Mr Dyer stated he had to finish his work of loading the truck from the forklift by the end of his shift. This showed an intention to continue the employment relationship and his commitment to the work. The safety and welfare of employees has significance in this matter. There is evidence the Applicant raised the incident and damage with other employees on the incoming shift. The Respondent did not provide evidence of any resultant damage of any particular impact or effect on the safety or welfare of other employees, particularly given no repairs were undertaken for some 4 months later. Further, the Respondent immediately allowed the Applicant back on the forklift while the Respondent was investigating the incident. The case of Schmidt can be distinguished.

The Respondent also relied on the cases of BlueScope Steel Limited v Trevor Knowles[100]and Parmalat Food Products Pty Ltd v Wililo[101] to support their contention that Mr Dyer’s dismissal was due to his non-compliance with the Respondent’s safety protocol and that such a reason qualifies as a valid reason or the purposes of the Act. The consideration of these cases, however, did not take into account the mitigating factors raised by the applicant in terms of the forklift, that was in use and the absence of managers at the site for reporting purposes.

Conclusion s387(a)

The Respondent has been critical of the Applicant’s assessment of the Applicant classifying the level of damage caused by the incident prior to reporting it. However, consistent with the Applicants assessment it is noted they have not made any move to repair the minor damage. Further, the Respondent conceded that the Applicant appeared to have completed the incident report at the time of the incident. The Applicant’s representative on his behalf, raised valid criticisms of the training and the reporting processes that undermined the basis for the termination.

The core reasons for dismissal must be considered against the entire factual matrix. The evidence was that the core reasons for dismissal was the failure to report the incident immediately. The evidence of Mr Burton was that the fact that the drug and alcohol test was not undertaken was not a core reason.

The mitigating circumstances of the Respondent managers not being present must be given significant weight in the circumstances of the Applicant’s inability to report. There has been no contrary evidence from the Respondent that there were managers available at that time to report the incident to. The only position of the Respondent has been that the Applicant may have been able to text Mr Burton, who was offsite at the time, to report the incident. Further, Mr Burton confirmed there was no list of numbers for relevant managers on the worksite. This must be taken into account when considering the responsibility of the Respondent to ensure appropriate arrangements were in place and available in order for employees to be able to comply with their obligations. As there were no such arrangements, it is reasonably foreseeable that an employee may fail to report an incident immediately as the Applicant did.

The Respondent has not responded to the Applicant’s case that the tall mast forklift held foreseeable risk in that shed. When questions were put to Mr Burton, he was not able to give comparisons of the more commonly used shorter mast forklift. The Respondent also did not respond to the Applicant’s case of this being a mitigating factor in the occurrence of the incident.

The damage to the aluminum roofing of the shed, shown in the photographs annexed to Mr Burton’s statement present as perforations rather than rips as the Respondent suggested. This is further supported by the lack of repairs, as at the hearing date and the use of a tarpaulin to cover the meal bags. The Applicant’s evidence is that the product was wrapped and protected in its own plastic sheeting anyway. The implications of this are that the damage was not significant and there is no evidence of its impact on the safety and welfare of other employees. Further, the Respondent did not present evidence that they investigated whether the use of the tall mast forklift caused a foreseeable risk and was mitigating.

It was argued on behalf of the Applicant by the Union that there was no fundamental difficulty with the Applicant’s driving of the forklift, and that had been demonstrated by the Respondent in allowing him to operate the forklift on the proceeding Monday and Tuesday prior to the termination. This was not refuted by the Respondent.

Considering the full factual matrix, taking into account the prior warnings, which the Respondent is able to rely on as part of the Applicant’s disciplinary record, there must also be a valid reason. The conduct complained of by the Respondent taking into account all of the circumstances does not present a valid reason for termination. Considering the Applicant’s length of service of 23 years and that whilst the prior warnings are still applicable, but the incident causing the termination was not able to be complied with when no managers were present on site. Thus, my conclusion is that there is no valid reason for termination of the Applicant’s employment. Further, it is the Respondent’s responsibility to ensure there is reasonable implementation of the policies and Task Instructions. There was no evidence that there was a notice on the front of the Incident Report Book or on the manager’s office doors stating, ‘please contact this manager to report an incident.’

The Applicant had been held to account to a different standard to that of the employer in terms of absolute compliance with the task requirements. The Applicant had not disregarded his obligations under the step 3 of the Task Instruction titled ‘Accident/Incident or Near Miss’ and took reasonable steps to try to comply with it. His non-compliance resulted from the employer not having managers on site.

I find that the termination was not for a valid reason and was unfair. It was harsh considering the Applicant’s length of service and the mitigating factors. As outlined, it is also considered to be an just given that after the dismissal, and examining the circumstances, the employer could not defend such, and it is unreasonable that the applicant has had to be subject to the circumstances.

Mr Burton had some reluctance to dismiss the Applicant given his consideration of an alternative to termination. Further, there is nothing resulting from the incident that indicated the Applicant would not be able to return to operate a forklift. The Applicant set out the incident clearly and there is nothing to suggest the incident was as a result of operator failure or deliberate noncompliance. The Respondent has not refuted this fact. Therefore, there is no valid reason for the termination or any impediment preventing his return to his position held prior to the termination.

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

Proper consideration of s.387(b) and(c) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the alleged valid reason found to exist under s.387(a).[102]

The Applicant submitted that he was notified that the reason for the termination of his employment was noncompliance with the reporting procedure and his subsequent failure to immediately report the forklift incident to management. The Applicant submitted that the specific details and the reasons presented were inconsistent and that during the termination meeting, he was accused of attempting to avoid the mandatory drug and alcohol testing. It was confirmed at Hearing that this test was not part of the reason for dismissal.

Having regard to whether the Applicant was given a proper opportunity to respond prior to any dismissal decision being made, the Applicant submitted that whilst an opportunity was provided to him, a comment made to him after the meeting with his direct supervisor, Mr Burton, suggesting that the decision to terminate had been made by someone in the National Office prior to the meeting being held. The Applicant argued that he was denied with an adequate opportunity to defend his position with regards to the decision to terminate his employment and he considered those at the meeting were dismissive of his reasons for non-compliance.

However, on the evidence, the Respondent stated that the Applicant was notified of the reason for dismissal on 2 February 2022. This information was conveyed to him by a letter of the same date it was confirmed in the correspondence by the Respondent’s site manager, that the Applicant had been dismissed, and the reasons for such were included the Respondent argued in the letter of termination.

The Respondent argued the Applicant was given a clear opportunity to respond to the reason for the dismissal, and that the Applicant did respond at the meeting on 2 February 2023, and that, no issue can be taken against the Respondent in relation to a failure to allow this opportunity.

The Respondent stated in the termination letter and at the final meeting that there had been an investigation into the incident on 27 January 2023, however there is no evidence of the results of that investigation in the form or a report it was put to the Applicant that he was notified that the final warning was a significant factor being relied upon in the termination of his employment. given the specific impediments to compliance with the incident reporting that emerged during the hearing and have been validated. This reflects on the opportunity provided to the employee at the meeting further. Further on the evidence, no details of the investigation outcome were provided to the applicant prior to termination.
In Newton v Toll Transport it was found that:

“The Deputy President took into account an irrelevant consideration in concluding that any unfairness was ameliorated in the Commission proceedings. Any opportunity to respond to a reason for dismissal must be afforded prior to the dismissal occurring. It was not reasonably open to the Deputy President to conclude that the failure to provide Mr Newton an opportunity to respond to the valid reason as found by the Commission was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable. The weight accorded to a failure to comply with s 387(c) may hinge on whether an employee was deprived of the possibility of a different outcome.”[103]
“It is apparent that Mr Newton’s ‘dishonesty’ during the investigation was not the reason given by Toll for his dismissal – indeed the Deputy President reached the same conclusion.”[104]

Further whilst the termination letter did not set out direct reference to the written warnings. In accordance with the case law in Newton, the employer is entitled to rely on the prior warnings, however the Applicant’s final warning was subject to legitimate criticism on the basis of the training provided and on the reporting procedure. Further, no indication was provided that an initial ‘counselling’ was to be afforded to the applicant prior to commencing this disciplinary process. If this was conducted this prior warning may not have been a final warning. The counselling is in accordance is in accordance with cl 12.2 of the Agreement.

These matters weigh in the Applicant’s favor.

(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

Where an employee is protected from unfair dismissal and has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[105]
The Respondent stated that there was no refusal by the employer in response to a request by the employee to have a support person. The employer stated that the applicant was informed that he could have a support person or representative with him at the meeting with Management but that he declined.

Given the employer provided for the Applicant to have a support person, therefore in the circumstances were the Applicant did not proceed with one, no interpretation can be made that there was a refusal to allow the Applicant a support person.

This matter is a neutral consideration.

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

In Newton v Toll Transport,[106] it was established that “the Commission is required to conduct an objective analysis of all relevant facts in determining – on the basis of the evidence in the proceedings before it – whether there was a valid reason to dismiss.”

Further, in Virgin Australia Airlines Pty Ltd v Blackburn[107] it was summarised that prior warnings form part of the factual matrix that existed at the time of dismissal and the Commission must consider them when determining whether a valid reason existed for the termination. This is so even if those facts do not appear explicitly in the Show Cause notice. It becomes relevant to the overall weighing exercise performed with the section 387 factors in determining whether the decision was harsh unjust or unreasonable.

In the circumstances of this matter, the Respondent emphasised that the Applicant had been subject to previous disciplinary action, whereby the Applicant had received a written warning relating to what the employer described as unacceptable workplace conduct. The Respondent argued that the Applicant was on clear notice that the termination of his employment could result from any further conduct of this nature. The Respondent detailed that the Applicant had received a written warning dated 30 July 2021 and final written warning dated 16 August 2022, and the Respondent referred to the Applicant’s confirmation of these emails where he had signed them in acknowledgement of receiving them.

In relation to the final written warning of 16 August 2022, the employer emphasised that the Applicant was re-trained in the Task Instruction and that this re-training had included mandatory reporting of any accident or incident or near miss and that the Applicant had signed in confirmation of this instruction. In addition, the employer argued that this retraining provided an awareness for the Applicant of the possible risks to himself, and other employees if he failed to comply with the relevant operation, and or the mandatory reporting of any accidents or incidents, the Respondent set out that within five months after the re-training on 27 January 2023, the Applicant engaged in conduct of the kind, for which he had been forewarned by the final written warning, in August 2022. Whilst the warning in 2021 does not have the same proximity to the events, it does form a profile of the disciplinary matters relevant to the termination of employment. The previous warnings remain applicable and have certainly been factors when taken together with the circumstances of the further warning thought about the termination of the Applicants employment. The circumstances where the Applicant was not responsible for his inability to confirm the reporting of the incident have undermined the final warning. However, the applicant’s conduct in being in receipt of the prior warnings, (even taking into account, his commentary regarding the seatbelt.) demonstrate his contribution to the situation, which remains applicable.

(f) and (g) the degree to which the size of the employer’s enterprise 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

The Respondent submitted that there was no absence of dedicated human resources management in the enterprise, and that the size of the employer did not have any adverse unfair impact on the procedures, followed in affecting the dismissal.

The structure of reports provided from the workplace officer elevated to the decision-making authority (national industrial relations manager) whereby the reporting chain has not communicated all information relevant to the consideration of the termination. The evidence demonstrated that a series of matters were not considered or were deemed irrelevant.

This element is considered against the employer.

h) any other matters that the FWC considers relevant

There were no other matters of relevance.

Conclusion of s387

Taking into account all the facts in this matter, particularly in relation to the final incident and an assessment of this as set out, confirms that the termination was unfair, it was harsh, unjust and unreasonable in all of the circumstances. There is nothing arising from this final incident that would prevent reinstatement, however the Applicant’s prior warnings in place before the termination have to be taken into account. Considering the Applicant’s age and the limited regional employment market, the termination was harsh. Given that the employer was not able to support the termination on the basis of the mitigating circumstances, relating to the reporting procedure, the termination was unjust and, further taking into account the matters that the employer did not respond to in relation to the evidence of the Applicant, the dismissal is considered to be unreasonable. If a proper opportunity to respond to these matters had been afforded prior to termination, the dismissal may well have been voided and in those circumstances the dismissal was unreasonable.

Remedy

The Act sets out the following in consideration of a remedy:

“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1)         Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)         the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)         the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3)         the FWC must not order the payment of compensation to the person unless:
(a)         the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)         the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note:      Division 5 deals with procedural matters such as applications for remedies.
… …
392 Remedy—compensation
Compensation
(1)         An order for the payment of compensation to a person must be an order that the person’s Employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2)         In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a)         the effect of the order on the viability of the Employer’s enterprise; and
(b)         the length of the person’s service with the Employer; and
(c)         the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)         the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)         the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)          the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g)         any other matter that the FWC considers relevant.
Misconduct reduces amount
(3)         If the FWC is satisfied that misconduct of a person contributed to the Employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded

The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the Employer during the 26 weeks immediately before the dismissal; and
(b) if the Employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the Employee for the period of leave in accordance with the regulations.”

In accordance with the directions set, submissions were also required in relation to circumstances where a remedy was awarded, and the parties provided submissions in this regard.

Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate, and that compensation is appropriate in all the circumstances. The Applicant sought reinstatement and whilst he had three prior warnings, the disciplinary response in relation to the final reporting procedure was not warranted.

There is nothing in the evidence or the circumstances, to suggest that workable relationships could not be re-established in the workplace.

Mr Burton stated in his evidence that it is necessary for all employees at the site to be able to operate a forklift given that forklift driving is incidental to the duties of all the employees at the site.[108] Mr Burton expressed some reservations generally that it might be difficult to reform the employment relationship if the Applicant was reinstated. However, no particularised evidence was provided in relation to this but referred to the prior warnings also needed to be taken into account. He acknowledged the mitigating factors with the Applicant reporting the incident. Mr Burton stated if the Applicant returned, it may be difficult to rely on him to comply with the safety procedures. However, in consideration of the Applicant returning to site, the Applicant’s inability to comply with the reporting procedure given no managers were on the site was raised as was information referred to in the prior warnings. Whilst the warnings remained, nothing emerging from the dismissal proceedings prevented the Applicant returning to site.

Mr Stanton in his closing submissions emphasised the difficulty of retrieving the workplace relationship with the Applicant. However, the reference to Mr Burton querying alternatives to termination at the final meeting; if the Applicant could be removed from forklift duty, demonstrated his knowledge of the Applicant and a reluctance on his part to move to termination of the Applicant’s employment. The Applicant’s part in incurring the seatbelt warning and the 2 prior warnings must be recognised. However, Mr Burton attested to the fact that in over nine years of shared employment history there were no issues with the Applicant’s forklift operation.

In the submissions of the Applicant regarding the final incident, Mr Dyer stated he had to finish his work of loading the truck from the forklift by the end of his shift. This showed an intention to continue the employment relationship and his commitment to the work. The safety and welfare of employees has significance in this matter was recognised by the Applicant. There is evidence the Applicant raised the incident damage with other employees on the incoming shift. The Respondent did not provide evidence of any resultant damage of any particular impact or effect on the safety or welfare of other employees, particularly given no repairs were undertaken by the employer until some 4 months later. Further, the Respondent immediately allowed the Applicant back on the forklift while the Respondent was investigating the incident.

Mr Burton stated that if the Applicant was seeking reinstatement at the plant, he considered this would have to be considered in line with ensuring the interests of safety of the plant, as the Applicant was dismissed for breaching safety related procedure, for which the Applicant had received previous written warnings regarding safety related breaches. Mr Burton argued that safety is critical at the plant, and that all employees at the plant must be safety conscious and willing to comply with safety procedures and protocols. He set out that the Applicant’s previous breaches of safety protocols and procedures did not provide the Respondent with the required confidence that the Applicant appreciated the need to be safe, conscientious and comply with critical safety rules and regulations.[109] However, the applicant should not have been held responsible for not successfully reporting the incident after he had made endeavours to, because the managers were not present to take the report.

It was reinforced on behalf of the Applicant by the Union that there was no fundamental difficulty with the Applicant’s driving of the forklift, and that had been demonstrated by the Respondent in allowing him to operate the forklift on the proceeding Monday and Tuesday prior to the termination. This was not refuted by the Respondent. However, whilst the Applicants significant length of service is taken into account, so also is that he had incurred three warnings. The evidence in relation to those warnings applicable to his employment record that must be taken into account in this matter. Whilst as set out in detail there were procedural flaws and mitigating circumstances in relation to the termination incident, the warnings in the matter have not been unsettled. It is however relevant that the final warning would now have lapsed in accordance with the Agreement provisions. Furthermore, it would be considered that if a further disciplinary process were to be commenced, the Agreement provisions, relevant to an initial counselling, would be applicable.

CONCLUSION

For the aforementioned reasons, I have found that the dismissal of the Applicant was harsh, unjust, and unreasonable. Taking into account all of the facts and circumstances of the matter, on balance, reinstatement is appropriate and an order for continuity of service is issued. In recognition of the Applicant’s prior warnings and his contribution to the current situation, as detailed in the decision an Order for the continuity of wages is not issued. However, the wages paid in lieu of notice is not recoverable by the Respondent.

A separate Order is made.

COMMISSIONER

[1] Witness Statement of Stephen Dyer at [28].

[2] Witness Statement of Stephen Dyer at [32].

[3] Witness Statement of Stephen Dyer at [8].

[4] Witness Statement of Stephen Dyer at [9].

[5] Witness Statement of Stephen Dyer at [9], Form F2 – Application for Unfair Dismissal Remedy, question 3.2 at [5].

[6] Witness Statement of Stephen Dyer at [11]-[12].

[7] Witness Statement of Stephen Dyer at [12].

[8] PN334, PN409.

[9] Witness Statement of Owen Burton at [8].

[10] Witness Statement of Stephen Dyer at [13].

[11] Witness Statement of Stephen Dyer at [14].

[12] Witness Statement of Stephen Dyer at [15].

[13] Witness Statement of Stephen Dyer at [16].

[14] Witness Statement of Stephen Dyer at [17].

[15] Witness Statement of Owen Burton at [12].

[16] Witness Statement of Stephen Dyer at [19].

[17] Witness Statement of Stephen Dyer at [21].

[18] Witness Statement of Stephen Dyer at [20].

[19] Witness Statement of Stephen Dyer at [23].

[20] Witness Statement of Sonia Takla at [2]-[3].

[21] Second Witness Statement of Stephen Dyer at [3].

[22] PN711, PN712, PN719.

[23] Witness Statement of Stephen Dyer, SD-02; Witness Statement Owen Burton, OB-01.

[24] Written Statement of Stephen Dyer at [36].

[25] Witness Statement of Stephen Dyer, SD-03; Witness Statement Owen Burton, OB-04.

[26] Witness Statement of Stephen Dyer at [37]-[39].

[27] Witness Statement of Stephen Dyer at [40]-[41].

[28] Witness Statement of Stephen Dyer, SD-04; Witness Statement Owen Burton, OB-05.

[29] Witness Statement of Stephen Dyer at [40].

[30] Witness Statement of Stephen Dyer at [48].

[31] Witness Statement of Stephen Dyer at [47].

[32] Witness Statement of Stephen Dyer at [49].

[33] Witness Statement of Stephen Dyer at [49].

[34] Witness Statement of Stephen Dyer at [50].

[35] Witness Statement of Stephen Dyer at [50].

[36] Witness Statement of Stephen Dyer at [51].

[37] Witness Statement of Stephen Dyer at [55].

[38] PN59.

[39] PN60, PN90.

[40] PN487-488.

[41] Witness Statement of Stephen Dyer, SD-04; Witness Statement Owen Burton, OB-05.

[42] Witness Statement of Stephen Dyer, SD-04; Witness Statement Owen Burton, OB-05.

[43] Witness Statement of Stephen Dyer, SD-03; Witness Statement Owen Burton, OB-04.

[44] Witness Statement of Owen Burton at [7].

[45] Witness Statement of Owen Burton at [8].

[46] Witness Statement of Owen Burton at [10].

[47] Witness Statement of Owen Burton at [12].

[48] Witness Statement of Owen Burton at [14] and [16].

[49] PN1013 and Witness Statement of Owen Burton at [17].

[50] Witness Statement of Owen Burton at [20].

[51] Witness Statement of Owen Burton at [21].

[52] Witness Statement of Owen Burton at [21].

[53] Witness Statement of Owen Burton at [5].

[54] Witness Statement of Owen Burton at [32].

[55] Witness Statement of Owen Burton at [30].

[56] Witness Statement of Owen Burton, Annexure OB-03: Task Instruction.

[57] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[58] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[59] Ibid.

[60] Edwards v Justice Giudice [1999] FCA 1836 at [7].

[61] PN983.

[62] Witness Statement of Owen Burton, Annexure OB-03: Task Instruction, step 3.

[63] PN282, PN330, PN357, PN375.

[64] Witness Statement of Stephen Dyer at [23], PN958, PN908.

[65] PN1129.

[66] PN1344.

[67] PN1348.

[68] PN1318.

[69] PN920.

[70] PN944, PN994, Witness Statement of Owen Burton at [23].

[71] PN484, Witness Statement of Owen Burton at [16].

[72] PN904.

[73] PN1019-1021

[74] (1959) CLR 298.

[75] PN1019-1021.

[76] PN877, PN884, PN885.

[77] PN1129, PN1346.

[78] Witness Statement of Stephen Dyer at [47] and [49].

[79] PN1183 and Witness Statement of Stephen Dyer at [47]-[48].

[80] Witness Statement of Owen Burton at [30].

[81] PN810-813.

[82] PN1206-1209.

[83] PN182, PN600, PN653, PN658.

[84] PN179.

[85] PN657, PN179.

[86] PN600.

[87] PN773.

[88] PN1257.

[89] PN1907.

[90] PN712, PN718.

[91] PN769-776.

[92] PN783, PN789.

[93] PN718, PN727, PN729, PN796.

[94] PN803, PN813.

[95] PN803.

[96] PN1045.

[97] [2016] FWCFB 1540.

[98] BHP Coal v Schmidt[2016] FWCFB 1540 at [14].

[99] BHP Coal v Schmidt[2016] FWCFB 1540 at [7].

[100] BlueScope Steel Limited v Trevor Knowles[2020] FWCFB 3439.

[101] Parnalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166 at [24], [18] - [19].

[102] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[103] [2021] FWCFB 3457 at [189].

[104] [2021] FWCFB 3457 at [118].

[105] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[106] [2021] FWCFB 3457 at [76].

[107] [2022] FWCFB 232 at [78].

[108] PN1426.

[109] Witness Statement of Owen Burton at [36].

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