Thomas v Newland Food Company Pty Ltd
[2013] FWC 8220
•21 OCTOBER 2013
[2013] FWC 8220 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Trevor Thomas
v
Newland Food Company Pty Ltd
(U2013/6376)
DEPUTY PRESIDENT SAMS | SYDNEY, 21 OCTOBER 2013 |
Termination of employment - summary dismissal for serious misconduct - shift restructure while employee on workers’ compensation - covert surveillance - supervisory role discontinued - employee sought redundancy - photographs taken by employee of improperly stored food - secret recordings of conversations with management - allegations of threatening and intimidating behaviour not substantiated - no valid reason for dismissal - no procedural fairness - dismissal substantively and procedurally unfair - reinstatement inappropriate - compensation to be ordered - parties directed to confer as to consent orders.
INTRODUCTION
[1] Mr Trevor Thomas (the ‘applicant’) was employed by Newland Food Company Pty Ltd (the ‘respondent’) from 27 May 2007 until he was dismissed on 8 February 2013. The respondent is a meat processing company with approximately 100-150 employees, depending on seasonal factors. It is located at Ernest Junction, Queensland. While the specifics of the reasons for the applicant’s dismissal were not extensively canvassed during the proceeding, they were shortly summarised by the respondent as ‘due to ongoing and persistent threats made to numerous staff and management over a considerable period of time’. While the respondent submitted the applicant’s conduct was of sufficient seriousness to justify his summary dismissal, he was nevertheless paid four weeks pay in lieu of notice. I proceed on the basis that the applicant was dismissed for serious misconduct.
[2] On 12 February 2013, the applicant filed a claim for reinstatement, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The claim was unable to be resolved during conciliation with a Fair Work Conciliator and was referred to me for arbitration.
[3] As I understand it, there are no jurisdictional objections to the applicant’s unfair dismissal application. Relevantly:
(a) the application was lodged within the 21 day time limit imposed by s 394(2) of the Act (s 396(a));
(b) the applicant was dismissed at the initiative of the employer (s 385(a) and s 386(1)(a));
(c) the applicant is a person protected from unfair dismissal in that he was covered by an enterprise agreement or an award and had completed the minimum employment period having been engaged for five and a half years (ss 382 and 383);
(d) the applicant’s dismissal was not a case of genuine redundancy (s 385(d)), although the issue of whether the applicant’s position was redundant when the night shift was closed down, was a matter of some significance in the case; and
(e) the applicant’s dismissal was not a case involving the Small Business Fair Dismissal Code, as the respondent employs around 100-150 employees, depending on the season (s 385(c)).
THE EVIDENCE
[4] The following persons gave written and/or oral evidence in the proceeding:
For the applicant
● The applicant;
● Mr Christopher Wilcox, Labourer, employed by the respondent for two years prior to January 2012;
● Mr Adam Mason, Factory Worker, employed by the respondent for between 12 and 18 months prior to March 2012;and
● Mr Alan Fowler, employed by the respondent for fourteen years prior to August 2012. For 11 of those years, he was the Quality Assurance Manager.
For the respondent
● Ms Suzanne Otto, Operations Manager of the respondent; and
● Mr Otto Wurth, Human Resource Advisor.
The applicant
[5] The applicant gave evidence about an injury he suffered at work in August 2007 which resulted in him making a WorkCover claim in October 2007. He eventually underwent surgery on his right elbow in August 2008. After about six to eight weeks he returned to work on light duties in the Quality Assurance Office. He worked there until around March 2010.
[6] The applicant said that during his time in Quality Assurance, he learned all aspects of the role under the Quality Assurance (QA) Manager, Mr Alan Fowler, including internal audits, dealing with the Australian Quarantine and Inspection Service (AQIS), monitoring import/export requirements, overseeing certifications and registrations and monitoring workplace health and safety.
[7] In March 2010, the applicant was offered and accepted the role of Senior Supervisor and Quality Assurance Officer (‘QA Officer’) on the night shift. In this role, he was responsible for the food preparation cooking areas and the slicing and packaging area. Around 35 employees, including cleaners, worked in these two areas.
[8] In July 2011, the applicant’s foot was crushed in a workplace accident. While he continued to experience pain for some months, he was not absent from work. He saw his GP in October 2011 and x-rays revealed he had broken a number of bones in his foot which would heal over time. While he did not make a WorkCover claim, he advised Ms Suzanne Otto, Operations Manager, of the injury and gave her a copy of the x-ray report.
[9] On 19 January 2012, the respondent’s General Manager, Mark Dale, informed the applicant that the Company was ceasing the night shift and his position was to end. In further conversations with Mr Dale, the applicant said he was told he would have short term miscellaneous duties (on his existing pay rate) until a new Brisbane office opened, where he would be offered the position of Factory Manager on a salary of $72,000.
[10] On 12 March 2012, the applicant injured his shoulder at work. After a few days of tolerating the pain and continuing to work, he advised Mr Dale of the incident. Mr Dale expressed disbelief at what the applicant told him and accused him of ‘trying to pull a WorkCover scam’. The applicant was upset by Mr Dale’s threat to fight him in ‘every Court in the country’ and by his presumption of dishonesty.
[11] The applicant obtained x-rays and doctors’ reports and ultimately underwent reconstructive surgery on his shoulder on 30 May 2012. He was certified as totally unfit for work from 19 March 2012 to 19 August 2012, when he was certified to return to work on light duties. This work involved putting stickers on boxes for dispatch.
[12] On 20 August 2012 (the day after returning to work), the applicant received a letter from Ms Otto confirming that his position on night shift was no longer available and that he was to be transferred to a position in the manufacturing section on a lower rate of pay when his light duties ceased. The applicant challenged the respondent’s right to forcibly demote him and told Ms Otto he would be inquiring as to his rights. Ms Otto told him the respondent’s actions were legal and Mr Gary Stone, the owner of the Company, would fight him ‘in every Court in the country’ if he challenged the decision.
[13] The applicant claimed that Fair Work Australia (FWA) (as it then was) told him he should have been offered redundancy and he should write to the respondent indicating that as his position no longer existed, he was redundant and eligible for fifteen weeks’ redundancy pay when he was cleared by WorkCover. The applicant was advised by WorkCover that the issue of redundancy and his WorkCover claims were two separate issues.
[14] Around this time, he also raised a number of other payroll issues with Ms Otto and Ms Kim Dale. As he was not receiving pay slips, he believed he was getting conflicting information from WorkCover and the respondent. This continued unresolved for some months and he became increasingly frustrated. He was also concerned about Mr Dale and Ms Otto’s earlier threats and he asked FWA if he could record conversations with management. As FWA was unsure, the applicant sought advice from the Police at Coonera. He was told he could record conversations as long as he was a party to the conversation.
[15] In November 2012, he decided to record his conversations with Ms Otto and Ms Dale when he spoke to them about his leave and other entitlements. He wanted to protect himself against what the respondent was saying and in light of the earlier legal threats against him. On 6 November 2012, the applicant met Ms Otto and recorded their conversation without her knowledge. When the applicant raised the redundancy issue with her, she replied that their ‘hands were tied’ until he was rehabilitated. Ms Otto raised issues about the applicant’s performance as a supervisor. Apparently, under his supervision, there had been personality conflicts, the worst results for WorkCover cases and the greatest number of sackings. The applicant disagreed and said none of these issues had ever been raised with him. Ms Otto told him that the respondent did not have a senior position for him on either night shift or in QA. All they had available was back in the production line on a lower wage. Ms Otto undertook to take his claim of redundancy back to senior management.
[16] In early January 2013, the applicant wrote a letter of demand to Ms Otto, indicating that he:
● had had no response to his claim of redundancy;
● had had no response to his underpayment claim;
● believed his superannuation was underpaid; and
● demanded a response by 9 January 2013.
[17] On 19 January 2013, the applicant spoke to Ms Otto and again recorded their conversation without her knowledge. She told him his annual leave, sick leave and superannuation claims had all been rectified and redundancy could not be offered while he remained on WorkCover. She also said that legally, the respondent was not required to give him a reply.
[18] On 7 February 2013, the applicant recorded another conversation with Ms Otto, again without her knowledge. He advised her he was fit for normal duties, but maintained he was redundant. Ms Otto was reluctant to put him back on manual duties, as he had not been working normally for six months and there was a risk he might injure himself again and ‘we start this merry go round all over again’. She instructed him to stay on light duties until she obtained further advice from senior management. Towards the end of the conversation, the following exchange occurred:
Ms Otto: | I don’t know where we actually stand Trev because, as I said, you’ve made it quite clear you’re going to AQIS, you’re going to Safe Foods... |
Applicant: | I’m not going to AQIS. |
Ms Otto: | Sweetie, you’ve told everyone. |
Applicant: | I’ve turned around and said, ‘If Safe Food walked in here...’ |
Ms Otto: | Yes, well, why did you take pictures of the birds on the pallets? |
Applicant: | I said that’s ridiculous. |
Ms Otto: | I know, but people have come and told me, but as a company, where do we stand as a company? Because, really, you threaten our livelihoods and all theirs by doing it. |
Applicant: | Yeah, but the thing is being accused of going to Council too. I had nothing to do with that. |
Ms Otto: | Sweetie, you told them you were going to do it. |
Applicant: | I didn’t. |
Ms Otto: | You did. |
Applicant: | I did not. Whoever said that, you bring them in here and I’ll face them. |
Ms Otto: | I’m not dobbing them in. |
[19] The applicant said that the above reference to the Council was a complaint made to Council about the respondent having cut a tree down without Council approval. He denied reporting the issue to Council, but did have a joking conversation with the tree loppers about whether they had permission to chop the tree down.
[20] The applicant noted that the respondent opened its Brisbane premises in September 2013, but with only six employees. Nothing had been said about him moving to the Brisbane premises.
[21] On 8 February 2013, the applicant attended a meeting with Ms Otto and Mr Wurth. He recorded the conversation, assuming they were unaware he was doing so. Mr Wurth told him he was there to terminate his employment immediately on the grounds he had threatened, intimidated and made accusations against staff. Mr Wurth had said:
‘The question is, you’ve made a lot of comments to a lot of staff here about you’re going to take us down, you’re going to hurt us, you’re going to do all of these kind of things. I need you to be aware that I will sue you for defamation, I will sue you for damages. I have researched your property holdings and everything else. I’m quite happy to run you through the courts for as long as it takes. We are not about to walk away from our responsibilities. We will take anything you do towards us with the utmost seriousness.’
[22] Mr Wurth also accused him of being a ‘vexatious and sophisticated predator of the system’. The applicant said that none of these allegations had ever been made known to him and there was never any investigation of them. He was never given an opportunity to respond to the allegations and he was never provided with any details of them.
[23] The applicant specifically denied each of the allegations set out by the respondent in its response to his unfair dismissal application. He said he:
● had never intentionally sought to have an accident so as to allow him to apply for WorkCover. He had suffered a number of unfortunate injuries that had caused him ongoing pain and discomfort, but he always attempted to return to work as soon as he could;
● denied continually making threats to staff. He had raised concerns about safe food practices, but not to threaten or advance his own interests. In his QA role, he was responsible for product safety and he continued to take this role seriously, even when no longer in the role. He claimed that from time to time, raw meat in cardboard boxes was stored outside the warehouse, without any protection from animals or the elements. When he had seen birds pecking at the product, he had reported it to Management, but product continued to be stored inappropriately. He had told staff, ‘If Safe Food walked in now, they would shut the place down!’ He had taken photographs of the product, but never had cause to show the photos to anyone;
● denied being given numerous verbal warnings about his performance and denied threatening and intimidating staff. He had only received one verbal warning in 2008/09 in respect to not properly checking sealed product; and
● denied his conduct justified immediate dismissal.
[24] The applicant said that after his dismissal he had obtained work driving a concrete truck on 1 April 2013. He earns $22.10 per hour for up to 50 hours per week. Up to 10 June, he had been paid $10,115.43 gross or $8,263.20 net on an estimated annual salary of $43,689.36.
[25] In a reply statutory declaration, the applicant explained that when he was unfit for work in 2012, he was taking pain killers. However, he was still able to drive, but could not perform normal domestic duties. His doctor had certified him as unfit for any work at all during this period.
[26] The applicant submitted that he only recorded his conversations with Ms Otto and Ms Dale about his leave and other entitlements because he was receiving conflicting information from WorkCover and the Company.
[27] The applicant conceded he had told one person he had been taking photos of the product being picked at by crows. He denied he took the photos to force the respondent’s hand over paying him redundancy. Nor did he tell anyone this was his purpose. He never told any management representative about the photographs. Ms Otto had raised the matter with him. He maintained that he raised the safe food issue with QA staff, the Factory Manager and Ms Otto.
[28] The applicant claimed Ms Dale told WorkCover there was no need for him to be retrained because there was a job for him to do. When he increased his hours, he was absent for a week with a virus. The applicant said the respondent never challenged any of his medical certification or his restricted duties. The applicant claimed the QA Officer position was only filled after he commenced light duties and it later became vacant. He believed he had the skills and experience to perform this role.
[29] The applicant denied ever expressing any intention ‘to force the Company’s hand in respect to his employment’. He reiterated that no allegation made by staff was ever put to him and he was never asked to respond to any allegation. It had never been put to him that he had been ‘whingeing about the Company’. No person who worked for the respondent, ever told him that they no longer wished to work with him. He denied threatening to use the photos he had taken, against the Company or working against the Company. He was simply trying to recover from his injury and return to full health. He still believed there were outstanding entitlements owed to him.
[30] The applicant denied making statements to staff that he was seeking a large redundancy payment and was gathering information to ensure the respondent would be forced to pay him out. He agreed he spoke to FWA and he openly told the Company he was entitled to redundancy. He had never been asked to respond to any allegations that he had threatened the livelihoods of other employees and had never given staff any reason not to feel safe working with him.
[31] During the termination meeting, Mr Wurth had not mentioned taking photos or recording conversations and said nothing about him allegedly telling staff that if he did not get a large payout, he would bring the Company down.
[32] The applicant deposed his average weekly income as determined by WorkCover was $1406. He said his conditions of employment in his current job are worse than when he worked for the respondent. His ordinary hours can be up to fifty hours per week.
[33] In cross examination, the applicant was questioned as to why he would take photos of stored product and retain them on his phone without telling anyone. He claimed it was to try to get something done about it. However, Ms Otto had said that she had heard of the photos from other factory staff. The applicant said he had only told Mr Kelvin Rowe.
[34] The applicant acknowledged that prior to working for the respondent, he had been on WorkCover for ‘quite a few years’ from an earlier workplace back injury around 1994. He had a few operations during this period. The applicant agreed he commenced work with the respondent from May 2007 and went on WorkCover on 1 August 2007 for a year and three months. WorkCover had made an offer of $16,000 as full and final settlement of his claim on 17 January 2013 and he was free to come back to full time work.
[35] The applicant was questioned about his current work as a concrete truck driver. He said his injuries were not inconsistent with his current job, as the technology had changed and he did not need to raise his left arm above his chest at any time. The applicant agreed he had now filed an application with WorkCover for a common law claim, including for ongoing economic loss, of $406,000. The applicant did not believe the $16,000 offer from WorkCover was adequate, because his physio was not finished and he did not think his shoulder was fully recovered. This was despite WorkCover’s doctor concluding he was fully recovered. He had not come up with the figure of $406,000, rather his lawyers had.
[36] Returning to the photos, the applicant deposed that he did not know what he was going to do with the photos and had never shown them to anyone or discussed them with anyone. The applicant denied again that he was taking photos to ‘blackmail’ the Company. He rejected that it was uncommon to do so, because Mr Westwood, Production Manager, had taken photos all the time.
[37] The applicant again denied contacting the Council about the tree removal issue. The day after this incident, the applicant was instructed to sit at the front of the gate and record vehicle registration numbers entering the site.
[38] The applicant reaffirmed that FWA had told him that because he had lost his night shift role, he was redundant. He had also asked the Police if he could tape conversations with Management and was told he could, if he felt threatened. He had felt threatened financially and had been threatened with legal action. However, he had also spoken, on many occasions to Ms Dale regarding correcting his pay and leave entitlements.
[39] The applicant believed that at the time, the Company had positions he could be appointed to, e.g. QA Officer. The applicant claimed he had the right to seek legal advice on his return to work and associated work issues. He believed the Company paid him in lieu of notice because it realised it had made a mistake in summarily dismissing him.
[40] In re-examination, the applicant explained that in 2013 WorkCover had told him his injury was ‘stable and stationary’, which meant WorkCover would cease paying for physio or any further rehabilitation.
[41] The applicant explained there was a QA job which he was well suited to perform. He had previously performed the tasks of quality assurance, including ensuring Safe Food and AQIS guidelines, conducting audits, checking and preparing the factory.
[42] In the photos taken by a surveillance company engaged by the respondent, the applicant agreed it was him at the petrol station. His injury was to his left shoulder. In a number of still images, he is seen holding a cup of coffee in his left hand, opening his door with his right hand, driving the car with his right hand and putting the pump back with his right hand. He believed none of the photos were inconsistent with the medical advice he had received and acted on at the time. He was about to have surgery on his shoulder a week after the surveillance photos were taken. He claimed his shoulder still gives him pain.
[43] The audio was played of the conversation with Ms Otto on 7 February 2013. This was the only time she had raised the issue of him going to Safe Food or to AQIS or had raised the issue of the photographs he had taken.
Mr Chris Wilcox
[44] Mr Wilcox was employed by the respondent as a labourer on the night shift for two years, until he was made redundant in or about January 2012. Throughout this time, the applicant was his supervisor. Mr Wilcox found him easy going and he respected him as a good supervisor. He was not rude or aggressive. Mr Wilcox’s impression was that the applicant was respected by the other staff and no one ever ‘bad mouthed’ him. Mr Wilcox never felt intimidated or threatened by the applicant. The applicant had never said anything to him to make him fear for his job.
[45] Mr Wilcox said he had never heard the applicant referred to as an ‘accident waiting to happen’ or heard it said that he would intentionally cause an accident to claim WorkCover. Moreover, Mr Wilcox had not known until these proceedings that the applicant had made a WorkCover claim.
[46] In cross-examination, Mr Wilcox said that the applicant would sometimes come and help the labourers if they were short on the night shift. Mr Wilcox understood the seasonal nature of the business and redundancies would sometimes occur. Mr Wilcox said he had a very good working relationship with the applicant. However, he had had no communication with him since he himself was made redundant in January 2012.
Mr Adam Mason
[47] Mr Mason was similarly employed on the night shift for between twelve and eighteen months until the night shift was discontinued. He worked with the applicant, who was his supervisor. Mr Mason found him polite and respectful and never observed him threatening or speaking inappropriately to any member of staff. He believed the applicant was very good at his job and got things done.
[48] Mr Mason believed the applicant was respected by the staff. He never felt intimidated or fearful of him. He had never heard the applicant referred to as an ‘accident waiting to happen’ or heard it said that he would intentionally cause an accident in order to claim WorkCover.
[49] In cross examination, Mr Mason said he took instructions from both Mr Swan and the applicant. When things needed to get done, the applicant would ‘chip in’ and help. The workplace was harmonious and there were no conflicts. Mr Mason understood the seasonal nature of the business.
Mr Alan Fowler
[50] Mr Fowler had worked for the respondent for 14 years as a QA Manager, until he resigned in August 2012. He was responsible for:
● Internal audits;
● Chairing external audits;
● Dealing with AQIS;
● Import/Export;
● Staff training;
● Certifications;
● Registrations;
● Chairing Management Review Committees; and
● Workplace health and safety issues.
[51] In 2009, Ms Otto informed Mr Fowler that the applicant would be working for him on light duties after returning from a workplace injury. The applicant had started as a trainee, and ended up sufficiently skilled to be able to perform the duties of a QA Officer in his own right. Mr Fowler said that the applicant was a very good employee who took his work seriously and applied himself with diligence. He had told Mr Dale of his favourable views of the applicant.
[52] In early 2010, Mr Dale asked Mr Fowler’s opinion as to whether the applicant was suitable for appointment as the Night Shift Manager, and he was ultimately engaged. Mr Fowler believed the applicant performed well in this role. Mr Dale was also pleased with his performance as he said so, on more than one occasion, over two years. Mr Fowler never observed the applicant threatening any person.
[53] Mr Fowler had regularly raised the issue of raw meat product being stored outside the warehouse, where it was open to the elements and contamination from birds and their droppings. He believed this was a serious issue which Safe Food and AQIS would have regarded as requiring a ‘critical warning’. This was its most serious warning and could result in the plant’s shutdown. Mr Fowler said the applicant also raised this issue with him on more than one occasion. He believed that, given the consequences for the respondent’s business, the applicant wanted things to be done properly and according to the rules.
[54] In cross examination, Mr Fowler said he had heard that someone had complained about the applicant bullying them, but he had not been instructed by management to take preventative action.
[55] Mr Fowler had heard that the applicant had been taking photos of the stored product, but could not recall who had told him. Mr Fowler never saw the applicant taking any photos, but thought it might be happening. Mr Fowler’s role was to report matters, not actually take any actions to correct safety concerns. In any event, he did not believe it was prudent to submit the photos to management, because they knew about the issue.
[56] Mr Fowler said not all reports of safety issues were provided to management. He would act to report on his own behalf. Nothing was be concealed from management and management would have access to all photos taken during the course of the QA officer’s work.
[57] In re-examination, Mr Fowler said he had raised these issues with the Factory Production Manager, Mr Tim Westwood. He expected that middle management would handle them and they would not necessarily be raised to senior management levels. He said that sometimes, issues were not resolved to his satisfaction.
[58] Mr Fowler deposed that if there was a quality issue, it should be reported to the Quality Manager or his/her representative. If it is unresolved, the quality and management teams get together. If it is remains unresolved, an NCR (Non-Conformance Report) is prepared by the Quality Assurance Manager (himself).
For the respondent
Ms Suzanne Otto
[59] Ms Otto described the applicant’s early employment with the respondent, his work as Night Shift Supervisor and the injuries he received in August 2007 and 12 March 2012. Ms Otto said that when the night shift ceased, the applicant, together with all permanent employees, were offered positions on day shift. While the applicant had expressed interest in a QA role, none was available at the time, nor were any supervisory roles.
[60] In respect to the WorkCover coverage from March 2012, Ms Otto said she had been informed by WorkCover that the applicant had said he was unable to get out of bed and was heavily sedated with painkillers. However, another employee (unnamed) told Ms Otto he had observed the applicant performing normal domestic duties and he was not bedridden. As a result, the respondent engaged a private investigator to covertly photograph and report on the applicant’s mobility. Ms Otto said she was disappointed that the applicant had lied by saying he was bedridden when he was not.
[61] Ms Otto referred to her meeting with the applicant on 6 November 2012, in which he had said he had spoken to WorkCover and would prefer a redundancy when cleared by his doctor. Ms Otto told him that redundancy would not be offered until he was fully cleared by WorkCover. The applicant told her he was not suing the Company and just wanted it all over and to leave. However, Ms Otto learned that he had made a civil claim against the Company the same day.
[62] Ms Otto claimed she had repeated reports from staff (unnamed) that the applicant was taking photos which she described as ‘acquiring proprietary information about the Company’ in order to coerce the Company’s hand to pay him a redundancy package. In early January 2013, Ms Otto became aware that WorkCover had offered the applicant $16,000 to settle his claim, but he had rejected it.
[63] Ms Otto said she had been concerned in 2012 at the prospect of returning the applicant to full time manual labour, on the production floor, after his long period on light duties. She was concerned he would aggravate his past injuries. She was also concerned about the applicant’s common law claim, his redundancy claim and what employees had told her about the photos. On the applicant’s first day back on full time duties, she sought advice from Mr Otto Wurth. She discussed with him that a ‘lot of staff’ (unnamed) were concerned for their livelihoods, if the applicant used the photos to jeopardise their jobs by taking them to the authorities. This was affecting staff morale and production. Some staff (unnamed) also told Ms Otto that they no longer wished to work with the applicant because of his constant ‘whingeing’ about the Company. Ms Otto claimed one employee (unnamed) had told her the applicant had said: ‘Look at this. I’ve got these photos. I’m gonna use them against the Company.’
[64] Ms Otto said her concerns about the applicant’s intentions were highlighted when a dangerous tree had been removed from the site and the applicant had commented that he was going to contact Council and complain the Company was removing the tree without a permit. As a result, the site was visited by a Council representative, but nothing further was done. Ms Otto declared, ‘The Applicant was not working for the company, but rather was working against it.’
[65] Ms Otto said it was Mr Wurth who terminated the applicant’s employment. She said he was paid in lieu of notice, outstanding annual leave and four weeks adjustment for the notice period when his classification was altered. Ms Otto confirmed that, due to an oversight, the applicant and other employees had not accrued superannuation or annual leave while on WorkCover. This was corrected as soon as it was brought to the respondent’s attention.
[66] In oral evidence, Ms Otto said that, at no time, was she aware her conversations with the applicant were being recorded.
[67] Ms Otto said that when the applicant returned to full time duties, the role of QA Manager required someone with tertiary education. The applicant was not in a position to fulfil this role and there was no other position in QA available at the time.
[68] In further evidence in chief, Ms Otto named Mr Rowe and Ms Casey Galt as two employees who told her the applicant was taking photos of stored product. She claimed Mr Rowe had told her the applicant had said, ‘The company is going to pay for what they’ve done to me.’ It was also Ms Galt who told her that Mr Rowe had told her that the applicant had told him about his tree cutting report to Council (hearsay on hearsay on hearsay).
[69] Mr Wurth, during his questioning of Ms Otto, said that the Company had not sought to call Mr Rowe as he had lodged an unfair dismissal application with the Commission for a dismissal based on gross misconduct.
[70] In cross examination, Ms Otto said it was not her decision to dismiss the applicant and she was unsure if the decision was made by Mr Wurth or Mr Stone. However, she and Ms Dale were the people dealing with the applicant on a day to day basis and she would convey any information about him to Mr Wurth.
[71] Ms Otto had known the applicant had two instances of surgery for the injury to his elbow in 2007. He returned to light duties in QA with Mr Fowler. Ms Otto claimed there had been problems with the applicant dealing with other staff, both in QA and when he was promoted to Night Shift Supervisor. She agreed the supervisor’s role was an autonomous position, involving supervision of 30-35 employees across manufacturing, production, despatch and cleaning. Ms Otto claimed she discussed the applicant’s personal issues with staff with Mr Wurth after the applicant commenced night shift. Ms Otto acknowledged that the applicant was not counselled formally or informally or disciplined for any of these issues. However, there had been informal discussions with him at the time.
[72] In questioning about her conversation with WorkCover concerning the applicant’s injury in 2012, she was told that the applicant could not get out of bed, could not drive or do anything and was constantly taking painkillers. As a result of the covert surveillance, Ms Otto formed the view that the applicant had not been truthful about his condition. She said if he could drive, he could have performed light duties for the respondent. She was aware that the applicant had an operation on his shoulder in the following week after the surveillance and the orthopaedic surgeon had said he was unfit for work from 9 May to 31 May 2012 - the period in which the covert surveillance had taken place. Ms Otto conceded that she had not provided the covert surveillance report to WorkCover.
[73] Ms Otto acknowledged that when the night shift ceased, the applicant’s position no longer existed and was redundant. She agreed the applicant had not accepted an 18% drop in his pay. However, he had never transferred to the production floor because he was on WorkCover on an average salary of $1406 a week performing light duties. She agreed his hours increased from 5 to 6, then 8 over the latter part of 2012 in accordance with his doctor’s recommendation.
[74] Ms Otto further explained the accrual of superannuation and annual leave while on WorkCover and how the respondent immediately addressed the underpayment issues with the applicant and two other employees as soon as it was raised. Ms Otto acknowledged that the documents which were said to show that the applicant’s underpayment issue had been addressed, did not make it clear.
[75] Ms Otto said the issue of the applicant’s redundancy could not be addressed until he resumed normal duties. The respondent’s first duty was to rehabilitate him. Ms Otto said the new role of QA was totally different to the one the applicant had performed in the past, so he was not appropriate for the role vacated by a person named Sandy. She added that the supervisor’s role at the new plant in Brisbane had been filled by a person who had been with the Company for years. Ms Otto believed there were roles in the less manual section of the plant, but she had taken no steps with WorkCover or an occupational therapist to identify whether the roles were suitable.
[76] Ms Otto denied ‘lining the applicant up’ to terminate his employment from as far back as November 2012. She denied an email from Ms Dale to Mr Wurth dated 19 November 2012 was anything other than an inquiry as to how the respondent was intending to handle the applicant’s WorkCover claim. During Ms Otto’s cross examination, she was shown this email between Ms Dale and Mr Wurth. Because of its significance, I reproduce it in full below:
‘Otto
I had a phone call from Susan Rhodes (case worker) on Friday afternoon. Trevor is reaching the point in his claim where Workcover deem him as ‘stable and stationery’ he is due to see his specialist again Mid December and Susan believes he will be cleared for normal duties. Her suggestion to us was that an independent occupational therapist is appointed by Workcover to assess Newlands as a workplace & find a suitable role for Trevor to continue his employment.
When I spoke to both Mark & Sue about this on Friday we were all of the same opinion.
If he finds a job here that he feels nice & cozy in we can never get rid of him. What do you think the reply to Susan should be?
Yes, bring in a Occ Therapist & we risk him snaking his way back into a job that will be even hard to get rid of him or No, we let it play out for the last month of his light duties and see what his next move is? He has stated that he doesn’t see himself long term with Newland’s??? can we head off legal moves or be prepared more if we do go common law? What do you think???
Kim’
[77] Ms Otto agreed that when trucks were unloaded, the product was sometimes left outside until room could be found inside the warehouse. However, it was never outside for very long. Ms Otto was not aware that Mr Fowler had raised this as an issue. She had heard that the applicant had raised the matter, but not directly from him. Ms Otto agreed the applicant had never threatened her by saying that he would use the photos if he was not paid a redundancy. Nor had he threatened to go to the relevant food safety authorities. In fact, she had raised the matter with him.
[78] When asked about the two persons who told her about the photos - Mr Rowe and Ms Galt - Ms Otto conceded that neither of them had told her they had felt threatened. If they had felt concerned about the respondent’s licences, Ms Otto would have assured them that there was no cause for concern. The appropriate course was for the concerns to be dealt with in-house. Ms Otto said that Mr Rowe had told her that the applicant had told him he was going to use the photos against the Company.
[79] Ms Otto accepted that the applicant had denied complaining to the Council about the tree removal issue. In fact, the whole factory had known about the tree removal. She had relied on third hand hearsay and the fact the Council turned up on site, to assume the applicant had made the complaint.
[80] Ms Otto said that when the night shift ceased, all the permanent employees were moved to day shift and the casuals were let go. No one disputed their relocation because it was a seasonal issue - coming into September is the ham season up to Christmas and then the hocks start up in April-May when it picks up again. While noting the night shift had operated for two years, Ms Otto explained that for that period, the Company had a contract to supply bacon to Woolworths. However, when that contract ended, the seasonal pattern did not justify the night shift remaining.
Mr Otto Paul Wurth
[81] Mr Wurth said his role, amongst other things, was to deal with difficult staff issues. Mr Wurth said he had worked with Ms Otto for twenty years and ‘respected her judgment’. He first became aware of the applicant in March 2012 when Ms Otto told him she was expecting to have another problem with WorkCover after the applicant had been on WorkCover from 1 August 2007 to 1 December 2008 and was likely to make another claim. Mr Wurth said that when the applicant returned on light duties, he had received constant calls from Mr Dale, Ms Dale and Ms Otto that they were concerned the applicant was gathering information against the Company to ensure the Company would have no choice but to pay him a large redundancy payout.
[82] Mr Wurth attached a number of emails from Ms Dale about the applicant’s WorkCover claim (seemingly, omitting the 19 November 2012 email, see para [76]). When the applicant was due to resume full duties, Mr Wurth said he received a call from Ms Otto advising him that no one wanted to work with him, that he was intending to hurt the Company if he was not paid redundancy and that he was likely to reinjure himself to go back on WorkCover. Mr Wurth’s view was that if the applicant was threatening staff and they did not feel safe, this was grounds for dismissal and he would discuss it with the Boss (presumably Mr Gary Stone).
[83] When Mr Wurth spoke to Mr Stone, Mr Stone had said:
‘We have no choice this guy could hurt himself, and or someone else, and for sure and certain he will try and hurt us. We just can’t afford the risks associated with the guy, I am afraid that you will have to go down there tomorrow and terminate him. Give him four weeks pay and terminate his employment.’
[84] Mr Wurth claimed that Ms Otto told him that the applicant was recording every conversation with management to assist him in getting a large redundancy payment. Mr Wurth was unconcerned by this disclosure as he would be telling the truth. This also proved the applicant was trying to ‘set them up’.
[85] During the termination meeting, Mr Wurth said he was terminating the applicant ‘due to his intimidating behaviour with the staff, these things included taking photos, recording conversations and telling the staff if he did not get a large payout he would bring the Company down.’. Mr Wurth told him he was ‘a vexatious and sophisticated predator of the system’ and he noted the applicant’s claim for damages of $408,965.40
[86] Mr Wurth understood the applicant is now employed, full time, driving a concrete truck.
[87] In cross examination, Mr Wurth agreed that prior to the termination meeting, he had never met, or spoken to the applicant. Mr Wurth explained that he had established the Company 22 years ago, although it was now owned by his friend, Mr Stone. Mr Wurth claimed to have experience in smallgoods manufacture, including accounting, driving forklifts and paralegal work. He has an Honours degree in Law, but does not practice. Mr Wurth explained that the Group of Companies has operations in Victoria, South Australia, New South Wales and Queensland with about 500 employees in total. Mr Wurth claimed that he and Ms Otto had experience in dealing with HR issues over many years.
[88] Mr Wurth changed his statement to suggest it was Mr Dale who first spoke to him about the applicant, although he thought both Mr Dale and Ms Otto had done so around the same time when he had been visiting the plant. Mr Wurth accepted that Mr Dale had had a conversation with the applicant in which he said, ‘If you’re trying to pull a WorkCover scam, I’ll fight you in every court in the country’. Mr Wurth noted that Mr Dale now works for a competitor of the respondent. Nevertheless, he agreed that Mr Dale could have been subpoenaed for this case.
[89] Mr Wurth deposed that the difficulties Ms Otto said she was having with the applicant were not his WorkCover claim, but the way he treated other staff and the fact that as a supervisor, a number of persons were dismissed or were injured on his watch. As to the ‘numerous staff’ expressing concern about the applicant, Mr Wurth accepted that Ms Otto now said it was only two employees.
[90] Mr Wurth added that arising from the covert surveillance, there were suspicions the applicant’s WorkCover claims were not genuine. He said that once WorkCover accepted the claims, he personally did not have any further concerns. Mr Wurth referred to WorkCover’s offer of $16,000 to settle all of the applicant’s claims. He agreed he was concerned the applicant had rejected the offer and was proposing a common law action against the respondent. He acknowledged that such an action was not uncommon and was the employee’s right. He said the Company and WorkCover would work together on the matter. Mr Wurth accepted that in November 2012, Ms Dale and Ms Otto were seeking meetings with him to discuss ‘our next plan of attack’ as they were concerned the applicant was heading towards a common law claim. Mr Wurth conceded that WorkCover had suggested an independent occupational therapist be appointed to find the applicant a suitable role, but this had never happened.
[91] Mr Wurth gave a detailed explanation for the wording used in Ms Dale’s email to him of 19 November 2012. He agreed that, on its own, it appeared there was a plan to remove the applicant. However, Mr Wurth said the email must be viewed in a context in which two weeks earlier, in a conversation on 12 November 2012, the applicant had said that when he came off WorkCover, he would be seeking a redundancy and that he had no intention of working for the Company again. He claimed he had a right to redundancy, given he had made inquiries with the relevant authorities. Given it had been given an ultimatum and had had threats made against it, Mr Wurth said it was natural for the respondent to consider its options. Mr Wurth now conceded the applicant had not made ‘threats’, but had proposed a future course of action. Mr Wurth agreed there had been a Company restructure and although the applicant may have believed he was entitled to the same position on the same pay, there were no similar positions available - ‘At least he had a job’.
[92] Mr Wurth’s evidence was that the respondent believed the applicant was abusing the WorkCover system. He had been on WorkCover for considerable periods of time in 1994, for two years, and between August 2007 and December 2011. When WorkCover had flagged their concerns, the Company worked with WorkCover to address these concerns. Mr Wurth acknowledged that there was no evidence that the claims in 1994, 2007 and 2012 were not legitimate.
[93] Mr Wurth conceded that it was Mr Stone who made the decision to dismiss the applicant. As far as he understood, Mr Stone had never spoken to, or met the applicant. Mr Wurth agreed Mr Stone relied entirely on what he had told him from Ms Otto. Mr Stone was absolutely comfortable with what he was told. He had told Mr Stone the applicant:
● was trying to hurt the Company, if the Company did not give him a redundancy;
● was likely to reinjure himself to go back on WorkCover; and
● that staff genuinely felt threatened by his attempts to damage their livelihoods and they did not feel safe working around him.
When asked why Mr Stone was not called to give evidence, Mr Wurth replied, ‘Well, he’s a busy man.’
[94] In respect to the termination meeting, Mr Wurth now accepted that the applicant was not dismissed for recording conversations, as this was not known at the time. When it was pointed out that this was inconsistent with evidence he had given earlier, that Ms Otto had told him prior to the termination meeting, that the applicant was recording conversations with Management, Mr Wurth said he told the applicant he was terminated and then asked, ‘Do you have any questions?’ The applicant replied, ‘Who told you this?’ Mr Wurth conceded that he had had no intention of changing the decision before the meeting. The decision to dismiss him had been made by Mr Stone because Mr Wurth had told him that if the applicant had known he was to be dismissed, he might jeopardise the business or seek to deliberately injure himself. When I asked Mr Wurth why he just did not suspend the applicant until he responded to the allegations, he replied: ‘I have no answer to that, Your Honour.’
[95] After the audiotape of the termination meeting was played, Mr Wurth conceded that he had not mentioned anything to the applicant about taking photos, recording conversations or seeking a large redundancy payout. Further, he had refused to give the applicant particulars of the allegations. He did this because he knew he would be going straight to his solicitors. Mr Wurth had told him the Company would be obtaining affidavits from witnesses about threats. However, when pressed for details, he conceded that none had been obtained. Nevertheless, Mr Wurth knew the persons who had said they had felt threatened, but he had decided not to tell the applicant.
SUBMISSIONS
For the applicant
[96] In written submissions, Mr Rich put that the applicant’s dismissal was unfair because there was no valid reason for his dismissal. The applicant had not been notified of the reason for his dismissal and he was not provided with an opportunity to respond. He outlined the injuries suffered by the applicant and the events leading up to the termination of employment.
[97] Mr Rich said that the evidence demonstrated that the applicant had injured his shoulder while at work on 12 March 2012. He stopped working on 19 March 2012 and made a WorkCover claim, which was accepted. He was unfit for work from then until 20 August 2012, when he returned on light duties. During this period, the night shift was stopped and a number of staff were made redundant.
[98] Mr Rich said that when the applicant returned on 20 August 2012, he was given a letter by the respondent which set out that his previous role as Leading Hand on the night shift was no longer available. As a consequence, he was to be transferred to manufacturing and his pay was reduced by $3.94 per hour to $18.06 per hour. The applicant made his objections to his demotion known to Ms Otto. When the applicant spoke to FWA some time around September 2012, he was advised that he might be entitled to redundancy.
[99] Mr Rich noted that the applicant then wrote to the respondent on 7 October 2012, indicating that he thought his position was redundant and that, accordingly, he should receive redundancy pay. He discussed this with Ms Otto in October, November and December 2012. In a discussion between them on 6 November 2012, Ms Otto explained to the applicant that the respondent was under an obligation to employ him until he was rehabilitated, that his position had gone, there was no other supervisor’s position for him and that the respondent would not be offering him redundancy, because he was reemployed to another position.
[100] Mr Rich said that the applicant wrote to the Company again on 2 January 2013 repeating his claim for payment of redundancy pay. Ms Otto reaffirmed him that the respondent would not be offering redundancy pay while he was on WorkCover and that the respondent was not even legally required to respond to his letter. On 1 February 2013, he advised the respondent that he would be fit to return to work full time from 7 February 2013. When he attended on that date, he was told by Ms Otto that there was no job for him to do full time, that the respondent would not be placing him in the manufacturing section as it believed he would make another workers’ compensation claim if it did so.
[101] Mr Rich said that Ms Otto was aware of the issue with meat product stored outside the warehouse because the applicant had raised it with her, as well as the factory manager and QA staff. She had alleged that the applicant had made threats to report the respondent to Safe Food and/or AQIS, but did not provide details of these allegations. In any event, the applicant denied these allegations, but admitted having raised concerns that the respondent did not meet the safety requirements of those authorities. Ms Otto told the applicant to work in the box room that day while the matter was further considered. On 8 February 2013, the Company held a meeting with the applicant where he was terminated on the grounds that he had threatened, intimidated and made accusations against other staff. These allegations had never been put to the applicant until that day.
[102] Mr Rich observed that Ms Otto had accepted, during cross examination, that the applicant’s position was redundant in August 2012. Nevertheless, she had told the applicant that Mr Stone would ‘fight him in every court in the country’ if he did not accept the lower paid position. Ms Otto had also said during cross-examination that she had considered that nothing could be done in relation to the applicant’s employment, while he was in receipt of WorkCover benefits. Mr Rich noted that when the applicant returned to work, he had raised concerns in relation to his weekly income which were reported to WorkCover. He had also raised concerns that the respondent had incorrectly calculated his annual leave and that it had failed to supply pay slips. The resolution of these issues took a number of months. The first of these issues were resolved, the others were not.
[103] Mr Rich accepted that the covert surveillance undertaken of the applicant in May 2012 obviously showed that the applicant was not bedridden. However, there was no evidence to indicate that the applicant had ever told WorkCover that he was bedridden due to his injuries or the consumption of painkillers. Rather, he had said that he was unable to work or drive while on painkillers. In any event, he did not take medication constantly. The surveillance photos were consistent with the injury reported by the applicant and the restrictions on using his left shoulder. He had provided Ms Otto with WorkCover medical certificates which set out that he was not fit for work at the time of the covert surveillance. The medical report of Dr Gilpin also confirmed this assessment. Ms Otto’s conclusion that the applicant was dishonest as to his medical condition was unreasonable. However, it informed the way in which she later treated the applicant.
[104] Mr Rich drew attention to an email from Ms Dale to Mr Wurth on 19 November 2012 which noted WorkCover’s suggestion that an independent occupational therapist assess the respondent’s workplace and determine a suitable role for the applicant. Ms Otto denied that anyone had ever suggested this proposal to her. Mr Rich noted the statement by Ms Dale that if the applicant found ‘a job here that he feels nice and cozy in we can never get rid of him.’
[105] The applicant had been offered a lump sum settlement by WorkCover dated 28 December 2012, which he rejected. The result was that his weekly compensation and medical benefits were discontinued at the end of January 2013. On or around 1 February 2013, the applicant advised Ms Dale that he would be able to recommence working full time, the following week. Mr Rich submitted that this was the point at which that the respondent believed it was freed from the restrictions it had been under, while the applicant was receiving WorkCover benefits. When the applicant went to work on 7 February 2013 to discuss the matter with Ms Otto, she raised concerns as to the applicant’s common law claim, which the applicant confirmed was ongoing. Ms Otto also raised concerns that the applicant would injure himself if put back to work. The applicant responded that he hoped his shoulder would improve and noted that he had returned to work normally after his last injury. Ms Otto also expressed concerns that the applicant might complain to AQIS in that he had already complained to Council about a tree removed by the respondent. The applicant denied both of these allegations.
[106] Mr Rich noted that the very next day, the termination meeting between Mr Wurth and the applicant began with Mr Wurth announcing that the applicant was to be dismissed immediately on the basis that he had threatened, intimidated and made accusations against other staff. Mr Wurth had described the applicant as a ‘vexatious and sophisticated predator of the system’.
[107] Mr Rich argued that the applicant’s version of events in relation to the photos taken of the meat product stored outside the warehouse, should be preferred to the hearsay version of events described by Ms Otto. Mr Rich drew attention to the fact that the incident allegedly occurred in November 2012, but was relied upon by the respondent to dismiss him in February 2013. He added that Ms Otto had expressed confidence in relation to the respondent’s Safe Food practices. There was no evidence to show that the applicant had made ‘repeated threats’ against staff of the respondent. Ms Otto had accepted that the applicant had not told her that he would be going to AQIS or Safe Food. There was no direct evidence to show that the applicant had told any staff member that he was planning to use the photos to force a redundancy payment. The applicant had said that he had raised the safety issues with Mr Fowler, other QA Managers and even Ms Otto. Both Mr Fowler and Ms Otto had accepted these were appropriate ways of dealing with the issues. He had not mentioned to any of these persons that he had taken and kept photos, but had kept them ‘in case it ever became an issue.’
[108] Mr Rich submitted that the further claim that the applicant was ‘scamming’ the WorkCover system was not reasonable and had no basis in evidence. It was based on a mere generalised feeling of distrust, the fact of his previous claims in 2004 and 2007 and the fact that he had refused the WorkCover lump sum offer and had commenced common law proceedings. There was no evidence to suggest that the 2004 claim did not arise from a genuine injury. The applicant was entitled to choose to prosecute his claim under common law principles, rather than the statutory claims under the workers’ compensation legislation. There was no basis to an allegation that he would try to manipulate the system to receive further WorkCover benefits.
[109] Mr Rich drew my attention to the well known joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines (1995) 185 CLR 410 (‘Byrne’) setting out the meaning of ‘harsh, unjust or unreasonable’. Mr Rich submitted that the termination of the applicant was unjust, as he was not guilty of the misconduct on which the respondent had purported to act. It was also unreasonable because the purported reasons given by the respondent, were not the real reasons as to why he was terminated. In reality, the respondent was motivated by its antipathy to paying him his redundancy entitlements; the fact that he made two worker’s compensation claims; that he had been absent arising from injuries he had sustained at work; and the fact that he had been forthright in raising concerns about safe food practices.
[110] Mr Rich put that the reasons given for the applicant’s dismissal - his abuse of the WorkCover system and his threatening, intimidatory and accusatory behaviour - were not proven and there was no valid reason for the dismissal (s 387(a)). Mr Rich also submitted that where an employer alleges misconduct as a basis for dismissal, it is subject to the onus of proving that the misconduct took place; See: Yew v ACI Glass Packaging Pty Ltd (1991) 71 IR 201 (‘Yew v ACI Glass’) and Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243 (‘Culpeper’). The test is not whether the employer believed, on reasonable grounds, that the employee engaged in the misconduct; See: King v Freshmore (Vic) Pty Ltd Dec [2000] AIRC 1019 (‘King v Freshmore’) and Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883. Where serious misconduct was alleged, the Commission was required to be satisfied, to the civil standard of proof, set out in Briginshaw v Briginshaw (1938) 60 CLR 336 that the conduct had occurred. The respondent relied on inadmissible hearsay evidence and irrelevant assumptions. It had therefore not made out that the misconduct had occurred to the requisite standard. Mr Rich said that the evidence led to a positive conclusion that the applicant had not engaged in the alleged misconduct and that the dismissal was therefore unjust; See: Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
[111] Mr Rich further submitted that the process undertaken by the respondent was also relevant to the Commission making a determination as to whether the dismissal had been ‘harsh, unjust or unreasonable’. He said the applicant had not been provided with sufficient reasons prior to the dismissal. If the respondent had relied on other considerations which it had not identified to the applicant, this would be contrary to s 387(b) of the Act. The respondent failed to respond to requests by the applicant for information as to who he was alleged to have threatened, intimidated or made accusations against. In any event, he strongly denied the allegations. Mr Rich noted that these allegations were repeated in the Form F3 Employer’s Response, again with no detail as to how the applicant had engaged in this behaviour or who he had directed it to. The applicant had not been given any opportunity to respond to the allegations made against him (s 387(c)).
Appearances:
Mr A Rich, Solicitor, for the applicant.
Mr O Wurth, for the respondent.
Hearing details:
Brisbane:
2013.
20, 21 August.
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