Steven Pecoski v Alpha Flight Services

[2018] FWC 356

[2018] FWC 356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Pecoski
v
Alpha Flight Services
(U2017/9527)

COMMISSIONER MCKINNON MELBOURNE, 17 JANUARY 2018

Application for an unfair dismissal remedy.

Introduction

[1] Steven Pecoski (Pecoski) was employed by Alpha Flight Services (Alpha) as a Driver from late 2010 1 until 15 August 2017. On 15 August 2017, his employment was terminated for serious misconduct (failing to report an incident) after a steel oven fell from height onto the tarmac at Melbourne Airport.

[2] On 1 September 2017, Pecoski applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Act). In support of his application, Pecoski said he was not the only one who failed to report the incident; that he did comply with relevant safety rules; that there was no damage to company property; and that he was denied procedural fairness in the period leading up to, and including, the dismissal.

[3] On 12 September 2017, Alpha filed a response to the unfair dismissal application, saying the alleged incident was a serious reportable safety breach; involved a clear breach of safety policy and the process was fair in the circumstances.

[4] The matter was conciliated on 6 October 2017 and 30 November 2017 and was not settled. Materials were filed by Pecoski on 6 November 2017 and Alpha on 27 November 2017.

[5] On 7 December 2017, Alpha sought permission to be represented by a lawyer under section 596 of the Act. Taking into account the complexity of the matter, I was satisfied that legal representation would allow the matter to be dealt with more efficiently and permission was granted.

[6] The parties indicated a preference for the Commission to conduct a hearing to deal with the matter. Taking these views into account, I determined that a hearing would be the most effective and efficient way to resolve the matter.

[7] The matter was heard on 7 December 2017 in Melbourne. Pecoski was represented by the Transport Workers Union of Australia - Victorian / Tasmanian Branch (TWU) and gave evidence on his own behalf. 2 Alpha was represented by ClarkKann Lawyers and called four witnesses:

Domenic Amerena - Operations Manager (Amerena) 3

Brett Peiper - Unit Manager (Peiper) 4

King Cho Yeung – Driver (Yeung) 5

Trent Griffin - National Workplace Health and Safety Manager (Griffin) 6

Preliminary matters

[8] Under the Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed;

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy. 7

[9] There is no dispute that Pecoski was dismissed from his employment on 15 August 2017 and that this application was filed on 1 September 2017. I find that the application was filed within the standard 21 day time limit required by the Act.

[10] Section 382 provides that a person is protected from unfair dismissal if, at that time:

•  they have completed at least the minimum employment period; and

•  they are either covered by a modern award; or an enterprise agreement applies to them in relation to their employment; or their annual earnings are less than the “high income threshold” 8.

[11] It is common ground that Pecoski’s period of employment with Alpha was longer than the minimum employment period, and that the Alpha Flight Services Pty Ltd (Catering and operations) Fair Work Enterprise Agreement 2013 - 2016 applied to him in relation to his employment.

[12] I find that Pecoski was protected from unfair dismissal at the time of dismissal.

[13] According to Alpha, it employed more than 1600 employees at the time of dismissal. 9 I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code10 because Alpha was not a small business employer at that time.11

[14] No issue of redundancy arose in this matter and I am satisfied the dismissal was not a case of genuine redundancy.

[15] I now turn to consider whether the dismissal was harsh, unjust or unreasonable.

Matters agreed or in dispute

[16] The following matters were either agreed or not in dispute:

1. On Monday 14 August 2017, at approximately 7:00am, Pecoski began work alongside Yeung.

2. At approximately 7:10am, Pecoski was pushing a cart from an aircraft to a truck with an oven insert on top. The oven insert fell from the cart over the safety railing onto the tarmac, approximately 6 metres below.

3. No injury resulted from the oven falling.

4. Pecoski retrieved the oven insert and alerted Yeung to the incident. The two then continued working.

5. Yeung reported the incident to his manager, Amerena, at approximately 10:00am.

6. After receiving Yeung’s verbal report, Alpha commenced an investigation into the matter.

7. At approximately 11.30am, there was a meeting to discuss the incident between Pecoski, Amerena and Michelle Muir (Muir) from Human Resources (HR). Ken McKnight, a TWU representative, was also present in the meeting. At the end of the meeting, Pecoski was suspended on full pay.

8. At approximately 11.40am on 15 August 2017, there was a second meeting between Pecoski, Amerena and Muir. Mr McKnight was not present. During the meeting, Pecoski was dismissed for serious misconduct.

9. Prior to 14 August 2017, Pecoski had participated in a number of Alpha training activities, including safety training.

[17] The parties agreed that the following matters were in dispute:

1. Whether Pecoski had an obligation to report the oven fall;

2. If yes, whether Pecoski knew, or should have known, about his obligation to report;

3. Whether Pecoski followed Alpha’s reporting policy; and

4. Whether the oven fall resulted in damage to property.

[18] I deal with each of these matters in turn.

Was the dismissal harsh, unjust or unreasonable?

[19] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 12 as follows:

“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[20] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following criteria 13:

(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.

Was there a valid reason for the dismissal related to Pecoski’s capacity or conduct?

[21] The reason given to Pecoski for dismissal was “failure to report an airside incident”, which Alpha said was in serious breach of its work, health and safety policies and procedures. The letter of termination also alleged failure to comply with company safety rules and failure to report damage to company property.

Did Pecoski have an obligation to report the oven fall?

[22] In short, yes.

[23] A number of safety policies, procedures and training documents were tendered as evidence in the proceeding. 14 One of these was the Alpha Flight Services Airside Safety Manual 2013 (the Handbook), which describes a range different rules, activities and procedures to be followed while working airside at the airport.

[24] The Forward to the Handbook is under the signature of Alpha’s Managing Director, Conrad Smith. It contains the following statements:

“We must never forget that all the good work can be undone if you decide to compromise safety procedures. I realise that pressures of whilst airside can be very demanding through numerous airside service providers attempting to be the first to reach the aircraft and ensure turnaround times are met and so avoid customer delays. Whilst Alpha wants to provide an excellent service to our customers, this should never be at the expense of personal or aviation safety.”

[25] The Handbook defines the terms “hazard”, “accident” and “incident”. A hazard is “something with potential to cause harm”. An “accident” involves unplanned or uncontrolled event(s) resulting in injury or damage. An “incident” involves unplanned or uncontrolled event(s) that have potential to cause injury, ill health or damage. 15

[26] In my view, the oven falling onto the tarmac met both the description of “hazard” and “incident”. In this respect, I note the finding of Worksafe Victoria on 16 August 2017 16 that the incident placed persons at risk of sustaining serious injuries, including death, as a result of being struck by the falling object.

[27] Hazard and incident reporting is dealt with in a number of places throughout the Handbook:

1. Page 13, “Radio & General Communication” states “If you see anything of use to operations, let them know – you are their eyes on the airport. Traffic congestion/accidents or other hazards.”

2. Page 22, “Unloading/loading At & On The Aircraft Products And Customer Service” states that “when transporting a mix of carts and canisters no more than one canister may be placed on top of a cart (the risk of over stacking is that the canister could fall over the handrails or the cart overturn causing injury to you or person(s) and/or equipment below).”

3. Page 26 deals with “Accident Reporting Procedures”. Under the subheading “Aircraft Accident/Incident” it states “all accidents no matter how small or even if no obvious damage to an aircraft have resulted, it must be reported. Minor damage or any contact made, however minor to an aircraft on the ground could become serious at altitude, endangering the lives of many.” It then sets out the process if an employee has an accident involving an aircraft. This includes the wording “immediately notify an airline official/handling agent/engineer. Always contact operations. The airport authority.” Having regard to the subheading above, I read this section as dealing with both “accidents” and “incidents” as defined.

[28] Pecoski’s name and signature appear on a form 17 which acknowledges receipt of a copy of the Handbook and confirms the signatory’s agreement to comply with the Handbook. There was some dispute in the hearing about when the document was signed. Pecoski could not recall when it was signed, and Griffin gave evidence that it would have been in the first quarter of 2013. Pecoski’s training record states that it was signed on 16 March 2017.18 Importantly, Pecoski did not dispute the existence of the document. Whatever the actual date of receipt, it is apparent that it was before the incident giving rise to dismissal.

[29] Alpha also produced a “Safe Work Procedure” document titled “Transferring Goods To and From The Aircraft in Adverse Weather”. 19 The document deals specifically with objects falling from heights, and states “If you see something that’s not right report it immediately to your supervisor.” It was produced together with a “Falling Objects Fact Sheet” explaining the potential risks associated with falling objects in the airside environment, and stating “Workers are required to report any hazards and health and safety problems promptly so risks can be managed before an incident occurs.” Pecoski agreed that he signed the related Safety Briefing Summary record in the week of 30 January 2014 to 4 February 2014.

[30] A “Cabin Service Refresher Training and Competency Assessment”  20 completed by Pecoski over the period from 10 September 2015 to 8 June 2016 includes the following questions and “correct” answers from Pecoski:

Question: “What are the first two steps you must take in the event of an incident” Pecoski: “Stop immediately; Notify to your supervisor or manager.”

Question: “Why are you required to complete an Incident Report Form as soon as practicable after an incident?”

Pecoski: “So all the info in relation to incident recorded accurately; So the investigation process commence as soon as possible.”

[31] Two safety training programs were produced titled “Basic Principles of Safety Management Storyboard” (SMS 101) 21 and “SMS 201 Storyboard” (SMS 201)22. Pecoski did not recognise, and was unable to recall having received, this training and there was some dispute about when it may have occurred. Griffin said Pecoski attended each of the training programs. Both Pecoski’s Statement23 and Alpha’s records24 show he participated in SMS 101 on 6 March 2017 and SMS 201 on 21 March 2017. It is likely that Pecoski’s lack of recognition of the program relates to the format of the document produced as evidence in the proceeding, which shows both screen images and notes pages. At the time of training, Pecoski would only have seen the relevant screen images. I am satisfied on the evidence that Pecoski participated in both SMS 101 and SMS 201 training programs on the dates recorded in Pecoski’s training record summary.25

[32] SMS 101 explains Alpha’s safety policy and “just culture”, described as encouraging “open reporting of any and all errors, near misses and incidents.” 26 It includes a section on “Safety Reporting” which relates to “reporting of all errors, near misses, near misses involving others in the workplace and incidents”.

[33] SMS 201 includes a number of relevant statements:

“Please, always submit a Hazard Report where hazards, risks and/or near misses occur. Where doubt exists as to whether a report should be raised, always take the best approach and submit an Incident Report.”

“Notifiable Incidents” include “Objects falling from heights”.

“Alpha is legally obliged to report ALL Notifiable Incidents to Work Safe Australia, and we are all responsible to ensure we report these incidents to our Managers/Team Leaders/Supervisors as well as Alpha Safety Representatives.”

“Minor Incidents” are to be “reported as soon as possible to your Manager, Team Leader, Supervisor or Safety Representative” (the slide also outlines the relevant reporting steps).

“Any person involved in an incident must submit an Incident Report as soon as possible in to order to accurately capture the sequence of events.”

“Any safety related matter must be reported to ensure timely response by investigators and also help identify areas where safety can be improved.”

[34] A “WHS General Induction” record evidences Pecoski’s participation in training on “Reporting Incident and Hazards” on 19 July 2017. 27

[35] A “Driver Awareness Program” document 28 includes a “Pledge” to, among other things, “report any incidents or unsafe behaviour.” Pecoski gave evidence that he recalled the Driver Awareness Program, including a barbeque held with management to support it. He understood the program was about driving trucks. I accept that the document is targeted at reducing vehicle collisions. That said, the language of the pledge it contains is couched in more general terms.

[36] The “Level 2 Rules for Drivers Operating Airside at Melbourne Airport” (Level 2 Rules) 29 includes relevant statements including:

“All airside spills, accidents and incidents must be reported to Melbourne Airport Coordination Centre.”

“Remember that all incidents must be reported to Melbourne Airport.”

[37] Pecoski said he was familiar with the Level 2 Rules given his many years of service at Melbourne Airport and his statement refers specifically to the Level 2 Rules.

[38] All of these materials together demonstrate that Alpha had an emphasis on workplace safety and an expectation of its employees, including Pecoski, that all hazards or incidents would be reported to the appropriate person. The incident on 14 August 2017 was such an incident. It involved an object falling from height that could have resulted in serious injury or death.

[39] I am satisfied that Pecoski had an obligation to report the incident to Alpha.

Did Pecoski know, or should he have known, he had an obligation to report the incident?

[40] According to Pecoski, he did not think the incident was reportable because it was only a “minor incident” (as it did not involve injury or damage) and he did not want to delay the aircraft. 30

[41] Pecoski’s relevant training history is canvassed in detail above. His direct evidence about his knowledge of Alpha’s reporting rules and training history was less clear – being at times inconsistent or lacking detail. He said he received “no training about reportable incidents” and had not been advised of Alpha’s reporting procedures; that he could recall training from Melbourne Airport but not from Alpha. His statement confirmed his participation in all training presented to him by Alpha, 31 but he had little memory of participating in that training, or of its contents. He agreed that safety issues were discussed in regular “toolbox talks” but did not admit to any detailed knowledge of those discussions.

[42] Pecoski described his understanding of “a reportable incident” as one that “affected the flight in any way, or anyone, or any immediate danger”. He said the phrase “reportable incident” was in common use at the airport between drivers and airport staff, but said “no-one has ever told me what to report and what not to. That’s the whole grey area”.

[43] I do not accept this evidence. It must be seen in a context where Pecoski was aware of at least two very similar incidents that had occurred, including one only two months before. In each case, the incident caused Alpha to take immediate steps to brief employees on “near miss falls”, including through regular toolbox talks. Pecoski agreed he had been given training after one of the incidents (as evidenced by his signature on the 2014 “Safety Briefing Summary”), although he did not recall receiving the “Falling Objects Fact Sheet” provided to employees at that briefing. In the incident involving “Bill”, a heavy unit (15-20 kilograms) fell over the safety rail to the tarmac. Pecoski was aware of the incident 32 and agreed it had been discussed at toolbox meetings. However, he did not remember the specific toolbox talk and even suggested he may not have been there at the time.

[44] Pecoski’s evidence is in contrast to that of Yeung, who gave clear evidence that employees had been “trained to report to the leading hand about every safety issue” and that “everyone should know that”. He recalled toolbox talks where it was discussed that if an “incident happen, report straight away.” He said it did not matter what the incident was – and gave examples of where catering was short, or there was a driving incident. He also explained his decision to report the incident on 14 August 2017 by saying he knew he had to report the incident to his manager, after a similar incident two months ago, where “someone dropped an object from an aircraft to the ground, and Alpha was very strict about it.”

[45] Amerena gave evidence that employees at Alpha reported “everything”, and gave the example of an employee who reported a cut finger, leading to the introduction of gloves and additional training.

[46] Notes taken by Griffin of an interview with Pecoski (with McKnight present) on 14 August 2017 indicate Pecoski saying to Griffin “Should have reported it immediately to leading hand”. 33 The notes were not the subject of any contest in the proceeding.

[47] Pecoski’s training records, together with his experience in the role and his knowledge of similar incidents all support a finding that Pecoski either knew, or at the very least should have known, that the incident was reportable to Alpha. I so find.

Did Pecoski follow Alpha’s reporting policy?

[48] Pecoski said he did report the incident in compliance with Alpha’s policy. It is not in dispute that once he was told the incident was serious and reportable, he completed an Incident Report about it. According to Alpha, Pecoski only reported the incident at its direction, and only after the incident had been reported by Yeung. But for Yeung’s report, the incident would have gone unreported.

[49] Pecoski also argued that he reported the incident to Yeung, and that they agreed not to report the incident together. The evidence establishes that Yeung did not challenge Pecoski’s comment that the incident did not need to be reported, but it does not go so far as to establish that Yeung agreed with his approach. The fact that Yeung reported it tells otherwise.

[50] I do not accept that reporting the incident to Yeung was sufficient compliance with Alpha’s reporting policy. Alpha has clear reporting lines for incidents of this kind, requiring a report to the relevant Manager, Team Leader, Supervisor or Safety Representative. According to Pecoski, the preferred method of reporting was to tell the Supervisor or to SMS management. According to Yeung, he had less experience than Pecoski, and I am not satisfied on the evidence that he was a Manager, Team Leader, Supervisor or Safety Representative in relation to Pecoski.

[51] There was a suggestion that Pecoski deliberately sought to avoid reporting the incident. According to Yeung, when the incident occurred Pecoski said to him “We don’t have to report it because no one saw.” Pecoski denied this, saying what he said was “I don’t think it needs to be reported”. 34 He agreed no-one saw the incident occur.

[52] The discrepancy might be explained by a miscommunication between Pecoski and Yeung. My impression in the proceeding was that Yeung was scrupulously honest, and that English is not his first language. Pecoski consistently confirmed his evidence that he did not think the incident was reportable, and he did not want to delay the aircraft. I accept this evidence. It shows disregard for Alpha’s safety policies as well as the safety of those around him, but it does not establish any dishonesty on his part.

[53] Having regard to the evidence as a whole, I am satisfied that Pecoski did not report the incident on 14 August 2017 as he was required to do by Alpha. The fact that he completed an Incident Report at the direction of Alpha as soon as he was asked to do so does not overcome this failure. He was the only person with direct knowledge of the incident and he was required to report it, on his own initiative, including to ensure that what happened was accurately captured at the relevant time and to reduce the workplace risk of any further hazard or incident.

Did the incident result in damage to property?

[54] The parties were at odds as to whether damage was caused to the oven insert as a result of the fall. Peiper expressed the opinion that damage would have been an automatic result of a steel oven falling 6 metres to the ground. Pecoski said he inspected the insert after retrieving it from the tarmac and identified no damage before placing it in his truck. No evidence of actual damage was produced in the proceeding.

[55] On the material before me, I am not satisfied as to what, if any, damage resulted from the oven insert falling onto the tarmac. To the extent that it was relied upon as a reason for dismissal, I am not satisfied that it was a valid reason.

[56] However, I am satisfied that his failure to report the incident was a valid reason for dismissal related to Pecoski’s conduct on 14 August 2017. The incident was a serious one. Pecoski did not report it. He knew, or should have known, that it was reportable, and his failure to do so was a substantive breach of Alpha’s policy.

Was Pecoski notified of the reason for dismissal?

[57] On 14 and 15 August 2017, Pecoski was required to attend meetings with Alpha to discuss the incident. In the latter meeting, his employment was terminated for his failure to report the incident. A letter of termination was sent to Pecoski the following day confirming the reasons for dismissal.

[58] I am satisfied that Pecoski was notified of that the reason for dismissal was his failure to report the incident, which I have found was a valid reason for dismissal relating to his conduct on 14 August 2017.

Was Pecoski given an opportunity to respond?

[59] Pecoski was initially interviewed informally by Amerena and then formally, three times before the decision was taken to dismiss him (twice on 14 August 2017 – once with HR and once as part of the safety investigation) and again on 15 August 2017). The evidence establishes that Pecoski provided his response to the allegations in the meetings on 14 and 15 August 2017 and these responses were documented. I note that the record of interview for the 15 August 2017 was not signed until 29 August 2017, and Pecoski sought to diminish its validity as a record. In the end it has not been necessary to given the record much weight, having regard to the direct evidence of the parties.

[60] I am satisfied that Pecoski was given an opportunity to respond to the reason for his dismissal related to his conduct on 14 August 2017 in those meetings.

Did Alpha unreasonably refuse to allow Pecoski to have a support person present to assist him with discussions relating to him dismissal?

[61] Amerena gave evidence that on 14 August 2017, he asked Pecoski if he wanted a witness/support person in the meeting they were about to have with HR. According to Amerena, Pecoski said “no”, but Amerena arranged for McKnight to attend anyway. It was not in dispute that McKnight attended the meeting as well as a subsequent meeting between Pecoski and Griffin, who was commencing the safety investigation into the incident. 35

[62] Amerena gave evidence that at the end of the meeting on 14 August 2017, Muir advised Pecoski to “come back tomorrow and you have the right to a support person”. Pecoski denied any such offer was made.

[63] Neither McKnight nor Muir gave evidence in the proceeding. There is no dispute that no support person attended the meeting on 15 August 2017. There is also no evidence that Pecoski requested a support person to assist him with discussions relating to the dismissal, or any evidence that such a request was refused.

[64] I am satisfied there was no unreasonable refusal by Alpha to allow Pecoski to have a support person present to assist him in discussions about the dismissal.

Was Pecoski warned about unsatisfactory performance?

[65] Pecoski’s dismissal was not related to unsatisfactory performance, but rather to his conduct during an incident at work on 14 August 2017. This criteria is not relevant to the consideration of the matter.

The size of the employer’s business and access to dedicated human resources management specialists or expertise

[66] At the time of the dismissal, Alpha employed more than 1600 employees. It had established processes and structures in place to support procedural fairness in dealing with matters involving termination of employment.

[67] The size of the enterprise clearly influenced the procedures followed by Alpha in effecting the dismissal. There were clear procedures in place for dealing with concerns and investigating matters, and arrangements were made within the organisation to ensure that the relevant allegations were put, and an opportunity to respond was given before a final decision was made.

[68] Alpha had access to dedicated internal HR expertise which it drew on in relation to the dismissal.

[69] I am satisfied that both the size of Alpha’s enterprise and its access to human resources expertise assisted in affording Pecoski procedural fairness in relation to the dismissal.

Other relevant matters

[70] Pecoski suggested that he was unfairly treated because there was no evidence of disciplinary action taken against Yeung, who also failed to report the incident for three hours. However, that evidence was given before materials were filed in the proceeding confirming that Yeung was given a formal “record of discussion” 36 and additional training as a result of his delay in reporting.37

[71] Amerena explained the approach taken to disciplinary action for Yeung on the basis that he felt Yeung had “done the right thing” and the delay was because Yeung felt “intimidated”. Yeung gave evidence that the delay in reporting was because he did not want to “speak against” Pecoski. Both Amerena and Pecoski agreed that, consistent with this position, Amerena initially withheld from Pecoski the fact that the incident had been reported by Yeung.

[72] I am not satisfied that the different disciplinary actions taken against Pecoski and Yeung are a sufficient basis to find that the dismissal of Pecoski was unfair. The relevant facts in each case were different, and in my view the conduct of Pecoski was more serious than the conduct of Yeung.

[73] Pecoski also said he was not advised that dismissal was a possible consequence of his actions in the meeting on 14 August 2017, and that this made the dismissal harsh. The evidence does not establish whether or not Pecoski was advised his employment was at risk on 14 August 2017. In this regard, I note that he had access to a union representative in each of his meetings with Alpha on 14 August 2017 when the nature of the allegations against him were made clear. Given my findings about Pecoski’s conduct that led to his dismissal, I am not satisfied that formal advice that his employment was at risk on 14 August 2017 would have altered the outcome such that its absence made the dismissal harsh or otherwise unfair.

Conclusion

[74] Having considered each of the matters specified in section 387, I am satisfied that Pecoski’s dismissal was not harsh, unjust or unreasonable and that Pecoski was not unfairly dismissed.

[75] The application is dismissed.

COMMISSIONER

Appearances:

C Guyett for the Applicant

M Procter for the Respondent

Hearing details:

2017.

Melbourne:

December 7.

 1   Either 20 September 2010 or 25 October 2010 (see Form F2, Form F3, Exhibit 1 - Attachment SP3).

 2   Exhibit 1.

 3   Exhibit 5

 4   Exhibit 8

 5   Exhibit 4.

 6   Exhibit 6.

 7   Fair Work Act 2009 (Cth), s.385.

 8   See s. 382(b)(iii) and Reg. 3.05 of the Fair Work Regulations 2009.

 9   Form F3.

 10   Fair Work Act 2009 (Cth), s.388.

 11   Fair Work Act 2009 (Cth), s.23.

 12 [1995] HCA 24; (1995) 185 CLR 410 at 465.

 13   Fair Work Act 2009 (Cth), s.387.

 14   Exhibits 1 and 6.

 15   Exhibit 6, Attachment TG-1 .

 16   Exhibit 6, Attachment TG-17.

 17   Exhibit 6, Attachment TG-2.

 18   Exhibit 1, Attachment SP3.

 19   Exhibit 6, Annexure TG-4.

 20   Exhibit 6, Annexure TG 5.

 21   Exhibit 6, Annexure TG-6.

 22   Exhibit 6, Annexure TG-8.

 23   Exhibit 1.

 24   Exhibit 6, Annexure TG-16.

 25   Exhibit 1 and Exhibit 6, Annexure TG-16.

 26   SMS 101, at 7.1.

 27   Exhibit 6, Annexure TG10 .

 28   Exhibit 6, Annexure TG11.

 29   Exhibit 6, Annexure TG12.

 30   Exhibit 1.

 31   Exhibit 1.

 32   Exhibit 6, Annexure TG-13.

 33   Exhibit 6, Annexures TG-13 and TG-16.

 34   Audio Recording, 7 December 2017.

 35   Exhibit 6.

 36   According to Amerena, a record of discussion is a form of disciplinary action but not a formal warning.

 37   Exhibit 5.

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