Sunil Meesala v Marvel Packers Pty Ltd T/A Marvel Packers

[2015] FWC 3627

[2015] FWC 3627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sunil Meesala
v
Marvel Packers Pty Ltd T/A Marvel Packers
(U2015/39)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Sunil Babu Meesala was employed by Marvel Packers Pty Ltd (Marvel Packers). Mr Meesala says his employment was terminated unfairly on 17 December 2014. Marvel Packers said it dismissed Mr Meesala for serious misconduct.

[2] I granted permission to Mr Meesala to be represented by a paid agent because I accepted that it would be unfair not to permit him to be represented because he would be unable to represent himself effectively.

[3] After conferring with the parties, I determined that it was appropriate for the matter to proceed by way of determinative conference.

Background

[4] It is not disputed that Mr Meesala had an accident at work in January 2012 which caused an injury to his knee. It is not disputed that Mr Meesala had at this time been driving a forklift without a licence. There is a dispute between the parties about whether Mr Paul McBeth, the General Manager / CEO of Marvel Packers, or Mr Roy Mahesan, the Production Manager, knew that he did not have a licence.

[5] It is not disputed that after his injury Mr Meesala returned to work but had some restrictions on the amount of time he could spend on his feet. To accommodate his restrictions, arrangements were made in January 2014 for Mr Meesala to attend training and obtain a forklift licence. Mr Meesala then drove a forklift as part of his duties.

[6] It is not disputed that on 17 December 2014, Mr Meesala was driving a forklift without wearing a seatbelt. Mr Meesala was summarily dismissed that day.

Issues in dispute

1. Was Mr Meesala aware that wearing seatbelts whilst driving a forklift was mandatory?
2. Did other employees also fail to wear seatbelts when driving forklifts?
3. Did Mr Meesala have a reasonable explanation for his failure to wear a seatbelt on this occasion?
4. Did Mr Meesala breach safe work practices on an earlier occasion?

1. Was Mr Meesala aware that wearing seatbelts whilst driving a forklift was mandatory?

[7] Mr McBeth gave evidence that in 2007 Marvel Packers bought a new forklift and he was told by the salesperson that it was a requirement that if a forklift was fitted with a seatbelt it must be worn. 1 He was also told by the forklift maintenance technician that forklift drivers were required to wear seat belts and that Worksafe was requiring seatbelts to be fitted to forklifts.2 As a result, he decided to retrofit the other forklifts with seatbelts.3 It was his evidence that at the same time a “seat belt must be worn” sticker was put on the forklifts. The sticker exhibited showed a seatbelt being connected above a danger sign which advised employees not to jump from a tilting forklift.4 The words described by Mr McBeth were not on the sticker but it was his evidence that is what the image was conveying.

[8] Mr McBeth gave evidence that as a result of a Worksafe inspection in 2009, a Safe Work Method Statement for forklifts was prepared. 5 That statement provides that the first operational safety check is to “fasten seat belt.” It was his evidence that this was displayed in the potato storage shed where the forklifts are kept. It was displayed along with other safety information.6

[9] Mr McBeth exhibited an extract from the Go Workplace Training materials given to employees as part of their training to get a forklift licence. 7 Mr Meesala agreed that he had received information from Go Workplace Training before he did the training, but could not recall seeing either of the pages which said “always wear your seatbelt whenever you operate the forklift. It will stop you falling out if the forklift tips over” and “seatbelts must be worn at all times.”

[10] The documents provided by Mr McBeth were dated 13 January 2015 and therefore could not be the documents provided to Mr Meesala. However, Mr Meesala gave evidence that at his training he was instructed that he should use a seatbelt if seatbelts were fitted to the forklifts at work. 8

[11] Mr Meesala gave evidence that he did not see the safe work method statement which was placed on the noticeboard in the potato shed. 9 He said he was never told the notice was there.10 He accepted that he went to this location every day but did not see it before his employment was terminated.11

[12] Mr Mahesan gave evidence that when the safe work method statement was delivered, he went through it with the then forklift drivers. He did not take Mr Meesala through the document because he had just done his training and he thought he would know the procedures. 12

[13] Mr Meesala was not sure he saw the stickers on the forklifts. 13 He said the forklifts were often dirty.

[14] It was Mr Meesala’s evidence that he was not told if he did not wear a seatbelt, his employment would be terminated. He was not told this during his training or by anyone at work. 14

[15] I accept that Mr Meesala knew that he was required to wear a seat belt if one was fitted. However, I am unable to find on the evidence before me that he was aware that if he did not wear a seatbelt his employment could be terminated.

2. Did other employees also fail to wear seatbelts when driving forklifts?

[16] Mr Meesala gave evidence that he never saw anyone wearing a seatbelt at work. 15 Mr Mahesan was the main forklift driver at the factory. He gave evidence that he always wore a seatbelt when driving a forklift.16 He also gave evidence that other workers, including Mr Meesala, always wore a seatbelt when driving forklifts.17

[17] Mr Rajbir Singh gave evidence that there was no practice of wearing seatbelts when he worked there. 18 Mr Singh gave evidence that he worked on night shift on the production line.

[18] Mr McBeth gave evidence that he had not seen Mr Meesala not wearing a seatbelt before. 19

[19] Mr McBeth gave evidence that after he spoke to Mr Meesala about not wearing a seatbelt on 17 December, he reviewed CCTV footage to see if it supported Mr Meesala’s statement that other workers did not wear a seatbelt. He said he reviewed the footage for that day and the preceding two days and it showed Mr Mahesan wearing a seatbelt at all times. He said Mr Meesala was not wearing a seatbelt on 15 and 16 December. 20 This CCTV footage was not tendered as evidence.

[20] There is contradictory evidence before me about the practice of wearing seatbelts.

[21] I am not satisfied that it is readily apparent to observers whether a forklift driver is or is not wearing a seatbelt. So much is clear from the contradiction between Mr Mahesan’s evidence that he had not observed Mr Meesala not wearing a seatbelt, yet Mr Meesala gave evidence that he did not always wear a seatbelt. I accept Mr Mahesan’s evidence that he wore a seatbelt at all times.

[22] I am unable, on the evidence before me, to find that other employees did or did not always wear a seatbelt.

3. Did Mr Meesala have a reasonable explanation for his failure to wear a seatbelt on this occasion?

[23] Mr Meesala gave evidence that he did not wear a seatbelt because it hurt his leg. 21 There was no medical evidence called to support this. Further, Mr Meesala had not advised his employer that the seatbelt was causing him pain.

[24] If Mr Meesala was not able to operate the forklift safely, he was obliged to advise his employer. It was not appropriate for him to decide that he would not wear the seatbelt.

4. Did Mr Meesala breach safe work practices on an earlier occasion?

[25] In January 2012, Mr Meesala had an accident at work. He said he was required to move a stack of iron frames from a container with a pallet jack and the frames tumbled on him and caused injuries. He was off work and returned to work in May 2012 on partial hours and then gradually increased his hours until December 2012 when he returned to full time hours, though he still had some restrictions.

[26] Mr McBeth gave evidence about the incident but he was not on site that day. It was his evidence that Mr Meesala attempted to move a whole pallet of steel frames with a pallet jack. It was his evidence that the steel frames needed to be moved manually and by using the pallet jack, Mr Meesala was taking a short cut and as a result, pulled the load on top of himself. He also said that Mr Meesala had parked a forklift near the container where the frames were stored and this prevented him from jumping out of the way when the frames were toppled. Mr McBeth was told by Mr Mahesan that Mr Meesala had been driving the forklift on occasion and that he had a forklift licence. It was after this that Mr McBeth found out that Mr Meesala did not have a forklift licence.

[27] Mr Meesala gave evidence that he never told Mr Mahesan that he had a forklift licence. He said he was never asked if he had a licence. 22 He said he was asked three days after the accident if he had a licence and he told Mr Mahesan that he did not have a licence.23 He denied that Mr Mahesan told him to take his ID and forklift licence with him to the hospital.24 Mr Meesala gave evidence that Mr McBeth knew that he did not have a forklift licence. He said that a few months before the accident, a Worksafe inspector was at the plant and he was taking a pallet to the freezer and Mr McBeth approached him and asked him if he had a licence and he said no. Mr McBeth then told him to leave the forklift.25 Mr McBeth denied this incident occurred. It was his evidence that Worksafe inspectors walk around the site with him and “to suggest that [he] would run away from the inspector and tell Mr Meesala to hop off a forklift and leave it in the middle of the driveway is just ridiculous.”26

[28] Mr Meesala said he was instructed by Mr Mahesan to use the pallet jack and bring the frames out. He denied that he was told to do it manually. He said it could not be done manually because the frames are stacked up to the ceiling of the container. He also said there were three wooden bins filled with rubbish in the way and first you have to remove the bins with the forklift. He did that and then used the pallet jack to get the frames out. 27

[29] Mr Mahesan denied the frames were stacked to the ceiling. 28 Mr Mahesan denied he instructed Mr Meesala to use a pallet jack to move the frames. It was his evidence that he instructed him to “carry out more frames.” He said the job had been done before and it involves manually carrying out portable steel frames one by one.”29 He said that Mr Meesala could not avoid the falling frames because he had parked a forklift in front of the container. Mr Mahesan was not cross examined on this evidence.

[30] Mr McBeth was not present on the day of the accident. It was his evidence that Mr Meesala had been shown how to move the frames one at a time. He said his investigation of the accident established that Mr Meesala attempted to move all the frames at one time with a pallet jack. The load was heavy and unstable and it fell on top of him. 30 In cross examination, Mr McBeth said that he had performed the task manually with Mr Meesala in reverse whereby the frames were dismantled and put away by hand.31 Mr McBeth denied that the frames were stacked to the top of the container.32

[31] I do not accept Mr Meesala’s evidence that he was instructed to use the pallet jack to move the frames. I prefer Mr Mahesan’s evidence. There was no dispute that the frames were not secured. I do not accept Mr Meesala’s evidence that the frames were stacked to the ceiling. There is no dispute that a forklift could not get into the container. The pallets could not be stacked to the ceiling using a pallet jack.

[32] Given I have not accepted Mr Meesala’s evidence that the frames were stacked to the ceiling, I am unwilling, without other evidence, to accept his evidence that he was instructed to use the pallet jack to take the frames out.

[33] The instructions given by Mr Mahesan were to carry out the frames. This instruction was not clear. I do not accept that Mr Meesala breached safety instructions on this occasion as I cannot be satisfied that any safety instructions were given. While I accept Mr McBeth’s evidence that he had loaded the frames manually with Mr Meesala, this does not constitute an instruction about how to unload them. I am not satisfied that Mr Mahesan gave Mr Meesala clear instructions about how he was to perform the task assigned to him.

[34] That is supported by the fact that Mr Meesala was not issued with any warning about the incident. He was not issued with a warning about driving a forklift without a licence nor was he issued with a warning about unsafe work practices. Not only was he not issued with a warning, there is no evidence that the incident was even discussed with him after he returned to work.

Was the termination of employment harsh, unjust or unreasonable?

[35] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[36] It is not disputed that Mr Meesala was not wearing a seatbelt at the relevant time. On Mr Meesala’s own evidence, I accept that this was not a one off event. Mr Meesala did not have a reasonable explanation for not wearing a seatbelt. If he was unable to wear a seatbelt because of his injury, he had an obligation to inform his employer.

[37] I accept that a worker who drives a forklift without a seatbelt exposes him or herself to a risk of serious injury if the forklift tips over. I accept that Mr Meesala was aware of the obligation to wear a seatbelt. I have not found that it was common practice at the workplace for employees to not wear seatbelts.

[38] In this case, where Mr Meesala was dismissed for serious misconduct, I must determine if the conduct occurred and if it justified termination of employment.

[39] In this case, there is no dispute that Mr Meesala did not wear a seatbelt. I accept that the policy of Marvel Packers was clear. Employees were required to wear seatbelts. This was clear from the safety notices which I accept were placed in an area that could be seen by forklift drivers; from the sticker on the forklifts; and the instruction given to forklift drivers by Mr Mahesan. I accept that Mr Meesala was not given that instruction but I accept it would have been part of his training.

[40] I do not accept the submission of Mr Meesala that it is merely desirable that forklift drivers wear seatbelts. Worksafe reported that in the period 1985-2006, 10 deaths occurred when forklift operators either jumped or fell from a forklift in a tipover and were crushed between the forklift and the ground. Tipovers were in this period the second highest cause of forklift deaths. 33 That document makes the importance of wearing seatbelts clear.

[41] I accept that a failure to comply with the company policy to wear a seatbelt is a breach of company policy.

[42] However, Mr Meesala was terminated because Mr McBeth formed the view that Mr Meesala was a serial offender. As Mr McBeth said, he “determined that Mr Meesala’s persistent determination to take short cuts in his work practices posed far too great a risk to both himself and our work place.” 34

[43] I am unable to find on the evidence before the Commission that Mr Meesala persistently took short cuts in his work practices. Yes, he failed to wear a seatbelt and he was involved in an accident at work, but this does not support a finding that he persistently took short cuts.

[44] I find that there was no valid reason for the termination of Mr Meesala’s employment.

s387(b) whether Mr Meesala was notified of that reason;

[45] Mr Meesala was questioned by Mr McBeth about why he was not wearing a seatbelt. He was not told at this time that Mr McBeth was considering terminating his employment.

[46] On Mr McBeth’s own evidence, Mr Meesala was not told the reason for the dismissal prior to the decision being taken to dismiss him.

s387(c) whether Mr Meesala was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[47] Mr Meesala was given an opportunity to tell Mr McBeth why he was not wearing a seatbelt. He was not given an opportunity to respond to the reason for the dismissal.

s387(d) any unreasonable refusal by the employer to allow Mr Meesala to have a support person present to assist at any discussions relating to dismissal;

[48] Mr Meesala did not request a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Meesala had been warned about that unsatisfactory performance before the dismissal;

[49] Mr Meesala was not dismissed for unsatisfactory performance so this criterion is neutral.

s387(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;

s387(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;

[50] Marvel Packers is not a small business as defined in the Act. It had 18 employees at the time of the dismissal. It has no dedicated human resources personnel. Mr McBeth is a member of the Ai Group but there is no evidence that it sought its advice before dismissing Mr Meesala. Mr McBeth did refer to an Ai Group flyer. That flyer advises members to consider all the circumstances.

[51] I accept that the size of the business and the lack of dedicated human resources management specialists or expertise did impact on the procedures followed in effecting the dismissal.

s387(h) any other matters that the FWC considers relevant.

[52] Mr Meesala said he had worked for the business since August 2005. Mr McBeth said the company records indicated he had been employed since January 2006. Nothing much turns on this discrepancy. He was clearly a long standing employee. He had received two written warnings, one in May 2014 and one in July 2014. One involved a failure to remove a rock from a conveyor belt which destroyed a chipper. As a result, he was issued with a warning and he was advised that he needed to improve his performance. The second incident involved him allowing the temperature on a cooker to fall below acceptable levels. He was warned that he had failed to perform his duties. Neither of those warnings clearly put him on notice that his employment was at risk.

[53] Neither of these incidents involved allegations of a breach of safety policies.

Conclusion

[54] There was no valid reason for the termination of Mr Meesala’s employment. He was denied procedural fairness. I accept that Mr Meesala should have worn his seatbelt. I accept that his conduct warranted a warning. He should have been told that a failure to wear a seatbelt again would result in the termination of his employment. In all the circumstances, I find that the termination of Mr Meesala was harsh, unjust and unreasonable.

Remedy

[55] Mr Meesala is not seeking reinstatement of his employment.

[56] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[57] Mr McBeth submitted that an order of compensation sought by Mr Meesala would have a huge impact on the business. Mr McBeth said it was a small family run business. No financial records were produced in relation to this submission.

(b) the length of the person’s service with the employer;

[58] While there was a dispute about Mr Meesala’s starting date, he was clearly a long serving employee.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[59] Mr Meesala earned $641.06 per week. It was submitted that but for the dismissal, he would have been employed for one year. No submissions to the contrary were made. This meant he would have earned $33,426.70 plus $3,175.54 in superannuation.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[60] Mr Meesala commenced a new job on 19 January 2015. He said that after losing his job, he contacted his friends but it was difficult because it was just before Christmas. He contacted his friends after Christmas and he had gone to different employment agencies and consultants.

(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;

[61] Mr Meesala’s new job is as a forklift driver and some process working duties. He said the work is temporary. At the date of the hearing, Mr Meesala had earned $13,999.48 plus $1,555.95 superannuation.

(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;

[62] I estimate that Mr Meesala would earn in the three week period between the making of the order and actual compensation would be $2619.40.

(g) any other matter that the FWC considers relevant.

[63] I will deduct an amount of 15% for the possibility that, Mr Meesala may have been made redundant or no longer been able to be employed because his injury meant that he could not safely drive a forklift and Marvel Packers may have concluded that it no longer had suitable duties for Mr Meesala given his restrictions.

Conclusion

[64] Mr Meesala’s remuneration would have been $36,602.24. He has earned $15,555.43. Having regard to the total amount he will have earned when the actual payment will be made I calculate his loss at $36,602.24-$15,555.43-$2,619.40 =$18,427.41. Allowing for a deduction of 15%, this amounts to $15,663.30.

[65] I therefore order that Marvel Packers pay $15,663.30 to Mr Meesala, subject to deduction for taxation in accordance with law, within 21 days of the final order in this matter.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks on behalf of the Applicant.

Mr P McBeth for the Respondent.

Hearing details:

2015.

Melbourne:

May 5.

 1   Exhibit R1 at [10]

 2   Ibid at [11]

 3   Ibid at [12]

 4   Ibid at attachment F

 5   Ibid at attachment I

 6   Ibid at [17]

 7   Ibid at attachment N

 8   Exhibit A1 at [31]

 9   Transcript PN 39

 10   Ibid

 11   Ibid PN 45

 12   Ibid PN 546

 13   Ibid PN 67

 14   Ibid PN 195

 15   Exhibit A1 at [33]

 16   Transcript PN 496

 17   Ibid PN 505, 532

 18   Exhibit A4

 19   Transcript PN 462

 20   Exhibit R1 at [60]

 21   Exhibit A1 at [36]

 22   Transcript PN 50

 23   Ibid PN 51

 24   Ibid PN 61

 25   Ibid PN 63

 26   Ibid PN 350

 27   Ibid PN 60

 28   Ibid PN 589

 29   Exhibit R2 at [12]

 30   Exhibit R1 at [31]

 31   Transcript PN 409

 32   Ibid PN 413

 33   WorkSafe Victoria, A handbook for workplaces Forklift safety reducing the risks, February 2006

 34   Exhibit R1 at [61]

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