[2016] FWC 3193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Mutimer
v
Quality Bakers Australia Pty Ltd
(U2016/4000)

COMMISSIONER MCKENNA

SYDNEY, 2 JUNE 2016

Application for relief from unfair dismissal.

[1] Travis Mutimer (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he seeks an unfair dismissal remedy concerning his dismissal by Quality Bakers Australia Pty Ltd (“the respondent”).

[2] The respondent is the well-known producer of foodstuff, including bread and baked product. It is part of the Goldman Fielder group. Since 1998, the applicant worked at one of the respondent’s production facilities at Malaga in Western Australia as a baker - initially as a casual contract employee and, from 2002, as a direct employee of the respondent.

[3] There are four main production lines at the Malaga facility, namely, the Bread Line, the Roll Line, the Crumpets Line and the Muffins Line. The applicant worked mostly on the Roll Line KRD Divider (“the machine”) and also on the Roll Line Mixer. There are various Safe Operating Procedures (SOPs) relating to the production lines which have individual differentiation, but which also have some common themes going to general and specific issues concerning safe operation - including lock-out tag-out (“LOTO”) procedures. The most recent SOP for the Roll Line had been in place since 2014.

[4] The applicant was initially stood-down with pay on 14 December 2015, and later dismissed on 4 January 2016, on the basis he did not LOTO the machine when cleaning a tray which was used to catch food oil drips (“the tray”). The tray was located under the machine. The tray in question was replaced in March 2016 (after the dismissal) with a different, sliding tray – which did not require employees to perform cleaning from under the machine. There was no objective photographic evidence as to what the tray looked like before the installation of the new tray, albeit there was (following my request) photographic evidence of the machine with its new tray.

[5] The applicant’s case contended that while LOTO applied to some aspects of accessing the machine, it had not ordinarily been applied to cleaning the tray and that, even if the SOP were properly to be read as requiring the use of LOTO procedures when cleaning the tray then, on a consideration of all the circumstances, the dismissal was unfair. The applicant submitted there should be an order in his favour for an unfair dismissal remedy.

[6] The respondent’s case contended that the applicant’s failure to LOTO when cleaning the tray was in disregard of its SOP as to when LOTO should be applied, being procedures in relation to which the applicant had been properly instructed. In this regard, following emailed correspondence dated 5 November 2015 headed “Safety Leadership & Zero Tolerance” from Goodman Fielder’s Julie Coates, the respondent introduced a zero tolerance approach to LOTO. Ms Coates’ correspondence read, in part:

“I want to ensure that everyone in our business understands the importance of Safety in their role in Safety Leadership and the consequences of breaching our safety standards; we have Zero Tolerance.

There have been a number of safety breaches with respect to our Lockout Tag out (LOTO) system over the past few weeks, and as a result there are a number of people who are no longer working for our business. That is what we mean by Zero Tolerance. …” (bold in original)

[7] The respondent submitted the application should be dismissed.

Preliminary matters

[8] As to the preliminary matters required to be considered pursuant to s.394 of the Act, there was no contest between the parties, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer, so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal was not a case of genuine redundancy.

Background

[9] On 14 December 2015, the applicant was observed by Simon Orr-Young, Regional Hub Manager (WA/SA/NT), underneath the machine. The applicant had turned-off the machine and put it into self-cleaning mode; he had otherwise not applied LOTO because, it is common ground, electricity is needed to power the water-based self-cleaning operation. The self-cleaning cycle does not empty or clean the tray; this is a separate manual task. The applicant was kneeling beneath the machine and tilting the tray in order to clean it when Mr Orr-Young approached the applicant and asked if he had used LOTO. The applicant said he had not, and stated to Mr Orr-Young words to the effect that LOTO was never used for cleaning the tray and there was a LOTO exemption. Mr Orr-Young replied with words to the effect that the applicant should LOTO or that he should do so in the future given the new rules; he also spoke about risk of injury. The applicant responded affirmatively. There does not appear to have been anything particularly, for the want of a better description, dramatic about the exchange between Mr Orr-Young and the applicant. After the conversation, the applicant went about continuing with the cleaning consequent upon advising Mr Orr-Young that LOTO did not apply to cleaning the tray; it is unclear whether the applicant then applied LOTO, but that seems unlikely as the machine was by then already in LOTO-exempt cleaning mode. For his part, Mr Orr-Young had never before seen an employee under the machine.

[10] Mr Orr-Young made some further inquiries as to the LOTO exceptions for the machine (and also made a log entry in the respondent’s systems). In this regard, Mr Orr-Young contacted Gerald Taylor, Manufacturing Manager, about the matter. Mr Taylor, in turn, contacted Crystal D’Silva, Human Resources Manager (WA). Ms D’Silva was informed by Mr Taylor there had been a LOTO procedure breach and that she was required to assist him investigate the incident. Ms D’Silva and Mr Taylor spoke with Mr Orr-Young, who reported that he had seen the applicant underneath the machine cleaning the tray, without having used LOTO as required by the LOTO procedure. It was quickly determined that the applicant should be stood-down. Mr Orr-Young then withdrew from any further steps that may be taken as to the applicant, given, for example, he was the one who had witnessed the applicant cleaning the tray.

[11] Mr Taylor spoke to the applicant not long after the conversation between Mr Orr-Young and the applicant, that is, about 30 minutes later. Mr Taylor advised the applicant there was to be a meeting, stated words to the effect the applicant would “know what this is about”, and advised the applicant he could bring a support person. The applicant was informed he should not attend the meeting for about 30 minutes, as a document was being prepared. The applicant duly attended a meeting with Mr Taylor and Ms D’Silva. The applicant was accompanied by Michael Jones, as his support person for the meeting. Mr Jones is employed by the respondent as a baker and is also a local workplace delegate of the applicant’s union, United Voice.

[12] The applicant was informed at the meeting on 14 December 2015 he was being placed on paid suspension pending a decision by the respondent concerning cleaning the tray without LOTO.

[13] The following day, 15 December 2015, Mr Taylor and Ms D’Silva briefly spoke to two Roll Line employees, Elizer Merioles and Matthew Wyatt, about their practices concerning LOTO. Mr Wyatt gave evidence in the proceedings; Mr Merioles did not. There is dispute on the evidence as to what was said in that conversation. The discussion with the two Roll Line employees appears to have constituted the extent of the inquiries made by Mr Taylor and Ms D’Silva (apart from reading the SOP). Ms D’Silva deposed that she and Mr Taylor had all the relevant material before them and were confident about putting allegations to the applicant.

[14] Among other matters, there then followed various meetings and exchanges of items of correspondence. There is no dispute as to what transpired in such respects. Shortly stated, United Voice made representations on behalf of the applicant concerning the LOTO issue and other matters, which were considered (and ultimately rejected) by the respondent.

[15] On 21 December 2015, the applicant’s written response to certain correspondence from the respondent was considered by Ms D’Silva and Mr Taylor, and was also shown to Mr Orr-Young. Lual Akoi (Acting Safety Coordinator) also provided training records and documents, which Ms D’Silva and Mr Taylor reviewed. Upon a review by Ms D’Silva and Mr Taylor of the documents, it seemed clear to them the applicant was fully aware of the requirement to LOTO when cleaning the tray.

[16] Ms D’Silva considered, among other matters, the applicant’s length of service; the applicant’s prior lack of disciplinary incidents; trust and confidence; likelihood of “imbedded behaviour”, rather than a one-off error and that it may happen again as repeat behaviour; the seriousness of the risk of injury such as slipping, getting his head caught in the conveyor belt or having a hand or finger maimed. On a consideration the applicant’s written response it was determined there were sufficient grounds to terminate the applicant’s employment for the serious safety breach.

[17] On 23 December 2015, the applicant attended a show cause meeting with his union representative. Discussion ensued around relevant matters and documents, including the applicant’s advice that he thought he was doing what he should have, and that others did the same. Ms D’Silva recalled that Mr Taylor had indicated that Mr Merioles and Mr Wyatt had confirmed that they applied LOTO to cleaning the tray. The result of the meeting was that the applicant was given a show cause letter, which was the subject of the applicant’s response through his union on 24 December 2015.

[18] A further meeting was held on 4 January 2016. According to Ms D’Silva the applicant relevantly indicated he had nothing further to put other than that he was sorry and that he would commit to not doing it again, and that he had a clean record in his employment history. Mr Taylor proceeded to read the letter of termination, and notified the applicant his employment was terminated forthwith with a payment of five weeks’ wages in lieu of notice.

[19] Thus, matters relevantly culminated in correspondence, signed by Mr Taylor and read by him on 4 January 2016, advising of dismissal with a payment in lieu of notice. The letter advising of the dismissal read in part:

“Consideration of your response

We are in receipt of your response dated Thursday, 24 December 2015 and have had a chance to carefully review and consider its contents. In addition, we have also taken into account your personal circumstances, disciplinary record and period of service.

In relation to your response, we would like to make the following comments:

I appreciate that you acknowledge the LOTO breach and the importance of safety in the workplace;

I dispute that the LOTO training which was conducted on Friday, 4 December 2015 lacked content, credibility or engagement when conveying the importance of LOTO.

Decision to terminate your employment

As you would be aware, safety at Goodman Fielder is of vital importance. Our standard safety policies apply to everyone and when individuals go outside those policies you place yourself, your co-workers, our customers/consumers and Goldman Fielder at risk. Your conduct, and your responses during the investigation, demonstrates to Goldman Fielder a disregard for your own safety and our policies and procedures. For this reason, we cannot trust that you will work in a safe and proper way when you are at work with Goodman Fielder.

Although we have considered your response, we do not consider that you have provided a valid alternative account of events or an acceptable explanation for your conduct and behaviour. In summary, your conduct in relation to this matter has been completely unacceptable. …”

The witnesses

[20] The evidence adduced in the applicant’s case comprised evidence from the following:

Travis Mutimer, the applicant, who has worked at the Malaga site for 18 years in total, with the 14 years preceding his dismissal mostly on the Roll Line.

Matthew Wyatt, a baker who has been employed by the respondent as a baker since 2006 and who works on the Roll Line.

Ryan Datson, a baker who has been employed by the respondent since 2010, and who has worked only on the Bread Line.

Michael Jones, a baker who has been employed by the respondent since 1998, and who has worked on both the Bread Line and the Roll Line (and presently works as an ovens man on the Roll Line).

Kanlayanee Mutimer who is the applicant’s spouse and who also works for the respondent. (Mrs Mutimer was not required for cross-examination; her evidence concerned the personal impact of the dismissal.)

[21] In the respondent’s case, evidence was given by the following witnesses:

Crystal D’Silva, the respondent’s Human Resources Manager WA, who was employed for less than a day in her new employment with the respondent when events concerning the applicant began unfolding on 14 December 2015.

Simon Orr-Young, the respondent’s Regional Hub Manager (WA/SA/NT). Mr Orr-Young commenced his current role with the respondent in October 2015 and had previously been the Site Operations Manager for Malaga since 2014.

Atteo Bontempo, the respondent’s Team Line Manager – Roll Line, Baked Foods and Hygiene, who commenced employment with the respondent in 1972. Around June 2015, Mr Bontempo was appointed at the Team Manager of the Roll line (having previously held a similar team manager position on the Bread Line since 2010).

Gerald Taylor, who commenced his employment with the respondent as its Manufacturing Manager at the Malaga facility in September 2014 (albeit he had, following employment with other companies in the interim, some years previously worked for the Goodman Fielder group in New Zealand between 1995-2001, including as an apprentice and then plant manager).

[22] Nathan Lyttle, the employee who had conducted LOTO training in early-2015, that is before the LOTO refresher training in late-2015 in connection with the introduction of the zero tolerance policy, was not called to give evidence as to the training he had provided. The respondent’s Acting Safety Coordinator was not called to give evidence.

Consideration – evidence

Knowledge of LOTO

[23] The evidence in the applicant’s case, including evidence of the applicant himself, Mr Wyatt and Mr Jones (the only witnesses who have actually worked on the Roll Line) was to the overall following effect:

They knew there was a LOTO exemption in the SOP concerning the cleaning cycle for the Roll Machine (this much is common ground in the parties’ cases, because the cleaning cycle itself requires electricity to run); and they knew that if the back of the machine was to be opened, where there was some form of electrical circuitry, that LOTO was applied.

For his part, the applicant had always undertaken cleaning tasks, including cleaning the drip tray, when the machine’s cleaning cycle was occurring, as well as at other times, without LOTO ever being applied. While the cleaning cycle was running, the applicant typically undertook manual cleaning - including cleaning the zig-zag, scraping bars, cleaning the oil tray, blowing down the divider, the caps etc. The applicant had never in his 14 years on the Roll Line used LOTO for cleaning the tray.

In all their years of working on the Roll Line they had never understood LOTO to be required when cleaning the tray beneath the machine, albeit they clearly understood LOTO was to be used for other purposes in connection with aspects of the machine.

They had never been verbally informed that LOTO was to be applied when cleaning the tray by supervisors, by managers, or in training sessions.

There was no document they had ever seen specifically indicating that LOTO was to be applied when cleaning the drip tray.

They had personally cleaned the tray over their years on the Roll Line without ever using LOTO.

They themselves had been observed cleaning the tray over the years without LOTO.

They personally had observed other employees clean the tray over the years without LOTO.

Until the applicant’s suspension on 14 December 2015, neither they nor other Roll Line employees understood the SOP to require the use of LOTO for cleaning the tray.

As to the applicant and Mr Wyatt, they separately had each cleaned the zig-zag component of the machine without applying LOTO.

They did not consider cleaning the tray to constitute an occupational risk to health or safety, or at least no risk greater than, for example, ordinarily might apply to their working in a production facility.

They well-understood that a failure to apply LOTO would result in dismissal, following the introduction of the zero tolerance policy; but they did not apply LOTO to the tray cleaning simply because it was never understood by any Roll Line employees to be required for that task.

[24] For his part, Mr Jones had not seen the tray being cleaned during the automated cleaning cycle, but he had seen the tray being cleaned during production. Mr Jones had been taught, at a time when there was 24 hour production, that employees should just lean under the machine to clean the tray. Regardless, Mr Jones was of the understanding that tray cleaning was LOTO-exempt and so were the buckets beneath the machine. Mr Jones said he did not know what was going on when the applicant was called to the suspension meeting, because he and all the other Roll Line employees had done what the applicant had done, and that nobody knew LOTO was to be applied to tray cleaning.

The applicant’s own evidence

[25] More particularly, as to the applicant’s evidence concerning LOTO, he was aware that during parts of cleaning the machine that LOTO did not need to be applied because the machine cannot be the subject of LOTO when it is self-cleaning. Otherwise, the applicant used LOTO when opening the back of the divider or scraping the mixer lid, among other matters. The applicant’s evidence was that LOTO had never been used when he cleaned the tray; it was never his understanding LOTO applied to cleaning the tray; and he had never been told by anyone that LOTO applied to cleaning the tray. In this regard, the applicant’s evidence was that in the 14 years he had been working on the machine he had never used LOTO while manually cleaning the tray and had never been told that he had to do so, even though he had (prior to 14 December 2015) been observed manually cleaning the tray without LOTO and, separately, he had observed on many occasions that other employees cleaned the tray without LOTO.

[26] The applicant’s evidence was that he had never read the SOP, as he was never required to. The applicant indicated he “has a problem with reading and that management are aware of this problem”, but that certain parts of the SOP have been read to him during training. He could not, however, recall the tray ever having been mentioned in any of the training sessions as requiring LOTO when it was being cleaned.

Lack of knowledge and confusion among employees following refresher training in late-2015

[27] There was evidence of:

Confusion more broadly among employees as to when LOTO applied and when it did not (e.g. the zig-zag, the addition of fruit when mixing fruit loaf, etc., and when LOTO applied during production as opposed to when production had ceased).

Responses to employees’ questions in refresher training sessions concerning LOTO, following the introduction of the zero tolerance policy, being unable to be answered, being taken on notice, being unanswered and being described as “grey areas”.

Refusal by employees (following the suspension and/or dismissal of the applicant) to agree to management requests that they sign documentation to indicate they understood the SOP, on the basis they did not actually understand the SOP and when LOTO applied.

Management’s request to Mr Datson to re-work one of the SOP (for the Bread Line), so it could be better-understood by employees.

Management’s intention to re-work the Roll Line SOP, with an anticipated release date being in the first half of 2016.

In the absence of the pending issuing of the new Roll Line SOP, the failure by management (post the applicant’s dismissal) to advise employees whether the SOP as to LOTO applied to the new sliding tray.

[28] As to the re-working of the Bread Line SOP, Mr Datson’s evidence was that after what had happened to the applicant, management tried to hand-out a copy of the existing SOP for employees to read; and that management informed employees that they had to sign-off that that they understood the procedures. However, a number of employees refused to sign the SOP because it was confusing. Management asked Mr Datson to go through the SOP for the Bread Line and to change it, so that it would be easier for employees to understand. In that regard, Mr Datson added information to make the Bread Line SOP clearer and to avoid ambiguity. Mr Datson also changed some of the wording and more clearly listed the steps to be taken, because the previous SOP was very basic. Mr Datson was of the view that the Bread Line SOP appeared to have been written by someone who did not understand the machinery and that he, as an operator who uses the machines, tried to make the material more operator-focused. While Mr Datson’s understanding was that some employees had received the new Bread Line SOP, and for reasons which were not clear, he personally still had not been given a copy of the respondent’s new SOP for the Bread Line at the time of the hearing.

[29] Mr Taylor separately gave evidence that the Roll Line SOP (which had been in place since 2014) was anticipated to be revised around May 2016.

of knowledge and confusion among management representatives about the SOP and LOTO

[30] There was evidence of lack of knowledge or confusion as between management witnesses about when LOTO applied, including among those who had been charged with the responsibility for providing training to employees about LOTO after the introduction of the zero tolerance policy. For example:

When Mr Orr-Young saw the applicant cleaning the drip tray and the applicant advised it was a LOTO exception, Mr Orr-Young did not know straight away whether this was the case. Mr Orr-Young apparently next spoke to Mr Taylor and, after Mr Orr-Young’s reviewing the SOP, only then determined that a potentially serious safety breach may have occurred and that the incident would require further investigation.

Ms D’Silva was then contacted by Mr Taylor. For her part, Ms D’Silva, when asked in cross-examination how many times she had read the SOP before the suspension meeting on 14 December 2015, she responded “Probably once briefly”. This is entirely understandable because 14 December 2015 was Ms D’Silva’s first day of employment with the respondent.

In circumstances where Mr Orr-Young did not know whether tray cleaning required LOTO, and Ms D’Silva literally had been in her new job for a matter of hours, it may be noted that Mr Taylor’s evidence was that he knew that the applicant had engaged in a LOTO breach after discussing it with Mr Orr-Young and Ms D’Silva.

[31] A decision to stand-down the applicant was then made by Mr Taylor, Ms D’Silva and Mr Orr-Young, and Mr Taylor was tasked with informing the applicant of the stand-down. As to all of this, I am bound to observe that:

Mr Orr-Young had been given the responsibility of providing the LOTO refresher training to the Roll Line employees, but he apparently did not know whether there was a LOTO exemption concerning cleaning the drip tray – because Mr Orr-Young initially approached Mr Taylor concerning the matter.

Mr Taylor who had conducted LOTO refresher training for the Bread Line employees (that the applicant had attended because he had been sick on the day of the Roll Line training) and who had fielded employees’ questions with responses including that there were LOTO grey areas, apparently did not know, until he had discussed matters with Mr Orr-Young and Ms D’Silva, that in cleaning the tray without LOTO there was a breach of SOP procedures.

Ms D’Silva, as I have noted, was in her first day in her new job as the respondent’s Human Resources Manager, and she had read the SOP once before the suspension decision.

These matters notwithstanding, Mr Taylor’s evidence was that he formed his view about the applicant’s breach of LOTO after discussing it with Mr Orr-Young and Ms D’Silva.

[32] I intend no undue criticism of the witnesses themselves, but nonetheless there is a certain unsatisfactory circularity to aspects of the evidence as to the conclusion that the applicant had breached LOTO procedures and should be dismissed for that reason – particularly given the lack of knowledge of the two Malaga managers who themselves had actually been providing refresher training for employees about LOTO in the specific context of the respondent’s then-newly introduced zero tolerance policy. Here, the two management employees who had provided refresher training for employees in connection with the respondent’s introduction of its zero tolerance policy did not themselves know whether LOTO applied to the regular, routine necessity for cleaning the tray on the Roll Line machine. If those individuals in their capacity as managers and trainers did not personally know up to 14 December 2015 whether LOTO applied to cleaning the machine’s tray, one must, with respect, reasonably query what it was that was practically conveyed by them to employees in the refresher training sessions they conducted.

[33] The respondent’s case seemed, in part, to be advanced on the basis that knowledge of the LOTO requirement for the tray cleaning was to be discerned by processes involving a type of deduction or elimination from a reading of the SOP – a reading Mr Orr-Young and Mr Taylor had undertaken, apparently for the first time, after the applicant was observed cleaning the tray without LOTO. Mr Orr-Young, for example, said that the guiding principle was the SOP and it was very clear in the SOP that there was only one LOTO exemption, and that was the one related to the cleaning cycle. Mr Orr-Young indicated that in his communications and presentations to employees that he had made clear what the respondent’s LOTO expectations were. Mr Orr-Young described the SOPs as being very specific about what LOTO exemptions apply. He explained there is no general statement of a broad LOTO exemption for the cleaning processes on any machine. Rather, LOTO applies to all cleaning areas unless there is a specific exemption – and there is no employee discretion to interpret the LOTO exemptions in the SOPs. Mr Orr-Young described the steps in the Roll Line KRD Divider as having an exemption only for when the employee is required to flush the divider head with hot water, and that the machine must not be in LOTO so that it can run and allow the water to internally flush through. Following a description of the steps in the SOP, Mr Orr-Young said it was clear from the SOP that no LOTO exemption applies to cleaning the tray, which was the process in which the applicant was involved in breach of the LOTO procedure.

[34] I simply do not accept matters advanced in the respondent’s case that the Roll Line SOP and its LOTO requirements had the clarity of information for which the respondent’s case contended. Indeed, the very fact of the considerable extent of the detailed written and oral evidence in the proceedings seeking to explain why it was the case that the SOP operated so as to require LOTO for tray cleaning speaks for itself as to how inadequately the SOP otherwise conveys that LOTO was to apply to that task. It would, for example, have been a simple and unremarkable matter of advice and instruction to employees for the respondent’s SOP to read, for any of the training session power point presentation slides to read, or for managers or trainers to say:

“You must always LOTO before starting to clean the oil catch/drip tray under the Roll Line KRD”; or

“You must never manually clean any part of the Roll Line KRD when it is in self-cleaning mode, including the oil catch/drip tray”.

[35] Another managerial employee, Mr Bontempo, said he was, as the applicant’s Team Manager, responsible for practically assessing employees on the Roll Line after they had completed the LOTO refresher training, which had included completing a pre-assessment questionnaire. The refresher training the applicant received, it may be reiterated, was conducted by Mr Taylor on 4 December 2015 as part of the training session for the Bread Line employees. The applicant attended the Bread Line refresher training session because the applicant had been on sick leave when the Roll Line session was conducted by Mr Orr-Young.

[36] Mr Bontempo’s evidence was that on 13 December 2015 he subsequently undertook a review of the applicant’s pre-assessment questionnaire (where the applicant had scored 9/13) and conducted a practical assessment. Mr Bontempo said he took the applicant through the incorrect responses and signed-off to acknowledge he had done this, and that the applicant was also required to demonstrate the four LOTO steps on the machine - including isolating the machine and walking around the machine with the applicant so that the applicant could demonstrate how LOTO was to be applied during operating and cleaning. As the applicant was able to demonstrate how LOTO applied to the machine, he was signed-off by Mr Bontempo as being competent. For his part, the applicant was emphatic in his evidence that at no time had he ever gone down the machine with Mr Bontempo and locked it out in the manner described in Mr Bontempo’s evidence. Separately, it was not contended or otherwise suggested in Mr Bontempo’s evidence that he had informed or instructed the applicant that LOTO was to be applied to tray cleaning.

[37] Given the significance of the matter of training and instruction by Mr Bontempo on the day immediately preceding the applicant’s suspension, I am bound to make findings. With respect to Mr Bontempo, it appears, among other matters, he apparently mis-marked at least one question in the questionnaire completed by the applicant and he apparently mistook the identity of the person who conducted the applicant’s LOTO refresher training (i.e. confusing training provided by Mr Orr-Young to the Roll Line employees with that provided to the applicant by Mr Taylor as part of the Bread Line training). Moreover, there was evidence from Mr Bontempo himself which strongly indicated that he had, on an earlier occasion, actually squatted beside the applicant as the latter cleaned the tray without LOTO and, even more significantly, without Mr Bontempo otherwise applying LOTO himself or instructing the applicant to do so. Against the background of such matters, I am unable to accept any significance of evidence (competing though it is) as to the quality or calibre of instruction that Mr Bontempo may have provided on 13 December 2105 - such as might otherwise have led to a conclusion that the applicant was fully and properly appraised of LOTO and the cleaning tray through his training-related interactions with Mr Bontempo on the day immediately preceding the suspension. On a separate note, for this happened after the dismissal, I note Mr Bontempo did not otherwise inform those for whom he was responsible as Team Manager on the Roll Line whether LOTO applied to the new sliding tray after it had been installed in March 2016. As of the date of the hearing, the employees still had not been informed.

[38] Whilst on the topic of evidence, the evidence of Ms D’Silva and Mr Taylor was that Mr Wyatt said to them on 15 December 2015 that he always used LOTO when cleaning the tray, and Ms D’Silva’s notes in that regard were in evidence. Mr Wyatt presented as a taciturn and reserved type of witness; he was, nonetheless, directly to the point and emphatic in his denial about what he was alleged personally to have said. I have noted the evidence to the contrary adduced in the respondent’s case, including the notes. I tend to the view that Mr Taylor and Ms D’Silva may have, for example, heard what they may have expected or perhaps even wanted to hear during the “general chat” with Mr Wyatt (and Mr Merioles, who was not called to give evidence even though the respondent has taken a statement from him) – for I have no cause to consider, for example, that Ms D’Silva deliberately would have made incorrect notes. Mr Wyatt gave his evidence before the Commission and he had personally had never used LOTO for tray-cleaning. In any event, as with the evidence concerning the conversation on 15 December 2015, I am bound to make findings and, in that regard, I prefer and accept the evidence of Mr Wyatt on that disputed matter.

[39] As to the evidence concerning training:

There was evidence as to LOTO training having been conducted in February 2015 by Mr Lyttle and that he used a certain power point presentation. There was no evidence that LOTO training addressed cleaning the drip tray. The evidence for the applicant indicated it did not; and Mr Lyttle was not called by the respondent to give evidence.

The undisputed evidence is that the applicant was absent from work on sick leave on the day the refresher training for Roll Line employees was conducted, but Mr Wyatt was in attendance. The Roll Line training session was conducted by Mr Orr-Young, who did not mention LOTO for tray cleaning during the session. There was no contest in the evidence in this regard.

As the applicant had been absent on sick leave on the day of the Roll Line training session conducted by Mr Orr-Young, the applicant instead attended the session that was conducted for the Bread Line employees; the applicant was the only Roll Line employee in attendance at the session that day. That session was conducted by Mr Taylor. There was sharp contest in the evidence as to what transpired in that session. I strongly preferred the evidence adduced in the applicant’s case to what transpired in that session, including the applicant’s evidence he recalls that he asked about the drip tray (on the Roll Line machine) and Mr Taylor responded that this was “a grey area, make sure you follow the SOP”. Following the training session, the applicant held a discussion over a cigarette, in which he described the training session as a “joke”.

Putting aside my acceptance of the evidence of the applicant himself about the questioning that unfolded in the refresher training session, I also accept the evidence of Mr Datson’s clear recollection that Mr Park and the applicant asked multiple questions and at least two other employees also asked questions. Mr Datson was quite clear, for example, about having questioned Mr Taylor about the Bread Line’s mixer area which is covered by a gate, which cannot be accessed unless a button is pushed to open the gate; and once the gate opens all the power to the mixer shuts down. Mr Datson said he asked why employees had to LOTO the mixers for cleaning when they do not have to LOTO to manually remove dough. (In re-examination, Mr Datson further explained that, on the Bread Line, when the dough discharges from the mixer sometimes all of it does not come out, with the result that to keep the floor clean employees have to put their arms in the mixer, around the beater, and pull that dough out into the skip without LOTO – which is something that the employees have been told to do.)

I consider it implausible that the only unanswered questions put in the refresher training session on 4 December 2015 were those put by Mr Park to Mr Taylor albeit Mr Taylor subsequently sent an email concerning only Mr Park’s questions. Specifically, I accept the content and flavour of the evidence of the applicant and Mr Datson as to the refresher training conducted by Mr Taylor on 4 December 2015 concerning, for example, the inadequacy of the information provided and responses to questions asked by employees; that questions were left unanswered, even though Mr Taylor said he would “get back” to the applicant and to Mr Datson about certain questions; and that Mr Taylor had also commented on grey areas concerning LOTO.

To the extent that the evidence and submissions for the respondent referred to the applicant having referred to this training session as a “joke”, I reject the respondent’s characterisation of this comment as displaying an indifferent or cavalier attitude to occupational health and safety. I accept the applicant’s evidence that he takes safety “very seriously”. Rather, the use of such a descriptor, set out his own evidence-in-chief, was reflective of the applicant’s view of the inadequacy of the information in the session that had been conducted. In this regard, I note also Mr Datson’s evidence that he had discussed the training with the applicant and had commented: “I know we were hammering [Mr Taylor] with questions, but I don’t want to be the one who gets sacked over a grey area.”

Mr Datson said he also raised concerns regarding confusion about LOTO with a Scott Grieve on a number of occasions, and Mr Grieve’s answer was always: “I’ll look into it”.

[40] I note particularly that Mr Datson was (later) called-upon by Mr Taylor to update the SOP for the Bread Line, so they were clearer for employees. It is unclear why no one was tasked to undertake a similar revision of the Roll Line SOP. In this regard, as I have noted earlier, there was evidence of refusal by employees to sign-off on the SOP after the applicant was suspended/dismissed. Moreover, in March 2016 (i.e. after the applicant had been dismissed) and the ructions had occurred with employees refusing to sign that they understood the SOP, Roll Line employees arrived at work one day to find that the tray on the machine had been replaced by a newly-installed sliding tray which could be cleaned without having to go under the machine. As no advice was given to employees and a new SOP was not issued in conjunction with the installation of the new sliding tray, none of the employees knew whether LOTO applied to cleaning the new tray.

[41] It is breath-drawing that even after all that went with the dismissal of the applicant there was, in these proceedings, incompatible and directly contradictory evidence from two witnesses as to what LOTO procedures apply even in relation to the new tray. That evidence was, I note, from Mr Taylor and Mr Bontempo – the two managers who were said in the respondent’s case otherwise to have properly and adequately trained the applicant about LOTO including as it concerned the old tray.

[42] Mr Taylor gave evidence-in-chief that LOTO does not apply to the new tray:

“107. I have read the witness statement of Michael Jones. A new catch tray was installed on the Roll Line KRD Divider machine in March 2016 to ensure that operators did not have to get underneath the machine in order to clean the divider catch tray (rather it simply pulls out). Following this upgrade, operators do not need to apply LOTO to remove this tray as there is no interaction with the machinery. We have a similar tray removal process on the Muffin Line, which is where the inspiration for this improvement arose. The Roll Line SOP has not been reviewed or amended since January 2014 (as set out above).” (my underlining)

[43] Notwithstanding the Muffin Line “inspiration” described above in Mr Taylor’s evidence and his evidence that LOTO does not apply to the new tray (in addressing the concerns expressed by Mr Jones that, for instance, that he has “no idea” whether the new tray fits within the SOP because no training was provided and no safety procedures were explained after the otherwise previously-unannounced installation of that tray), Mr Bontempo, the Roll Line manager, is of the understanding that LOTO does apply to the new tray. Mr Bontempo’s cross-examination was:

“PN1080 Does LOTO apply to the new tray or not?---LOTO applies to – the tray comes out.

PN1081 It doesn’t apply does it? The new tray that actually comes out, no LOTO applies to that, it only applies to the old tray because it was attached and you had to go under, but the new tray is actually a LOTO exemption, that’s correct?---There’s – there’s no LOTO – there’s only one LOTO exemption for that machine, right. The only LOTO exemption for that machine is when we’re washing out the head part to clean the inside of the machine. That’s the only exemption on the machine. The LOTO [sic] tray hasn’t got an exemption.”
(my underlining)

[44] It is difficult to ascertain what position obtains in relation to LOTO and the new tray – the self-evident relevance of all the evidence about the new tray is that the applicant’s case contended there was equal lack of knowledge among himself and all other Roll Line employees about the old tray. Mr Orr-Young was of the opinion that if there had been any uncertainty among employees once the new tray was installed, it would have been appropriate for the employees to speak to their supervisor. Here, there is a difference of opinion on the evidence as between Mr Taylor and Mr Bontempo, and no new SOP had been issued. Mr Orr-Young’s evidence otherwise as to the SOP in relation to matters concerning LOTO for the old tray was “There is no employee discretion to interpret LOTO exemptions of the SOPs.” In his cross-examination, Mr Orr-Young explained:

“PN977 Is there a level of common sense you expect your employees to use?---No. I don’t believe in common sense.
…
PN980 Yes?---There is one task which has LOTO exemption applying to it and that is the flushing through of the divider head with hot water, which requires the machine to be running for that process to occur.

PN981 Aren’t there also some other cleaning jobs where you don’t really need to apply LOTO?---There may be some other tasks within our business that require an exemption in order for the cleaning to be conducted, but there are no other tasks on the KRD divider on the roll line that require a LOTO exemption.

PN982 What about the black tubs underneath the KRD divider?---There's no exemption for cleaning black tubs.

PN983 Are you aware that employees for - well, you’ve given in evidence before that employees just go straight under and take out the black tubs and clear them out and that’s how they’ve been clearing those black tubs for as long as they can remember?---No, I’m not aware of that. But I’m not sure that removing a black tub from underneath a machine would in fact be a LOTO requirement.”

PN984 But in saying that, are you saying that there’s no LOTO exemption required for someone to physically go under a machine and remove a black tub, but there is a LOTO requirement for someone to kind of kneel under a machine without fully getting under, to wipe down a tray?---So I'll answer that in two ways. First of all, I don’t believe there would be any reason for a person to need to even put any part of their body underneath, entirely underneath the machine to remove black tubs, from my knowledge of the machine in the area. And secondly, the task that was being done on the day that I identified was not kneeling partially under the (indistinct) underneath the machine. Full body underneath the machine.”

[45] Moreover, there was evidence that, at a time proximate to the hearing of this case, there was consternation among some of the employees who observed a maintenance employee beneath the machine, without LOTO, as he bolted-in the new tray, which had fallen off the machine. One can only imagine that, perhaps, the maintenance employee, like the Roll Line employees, is also waiting for the new Roll Line SOP to be explained as to accessing the underside of the machine in a manner similar to that which had resulted in the dismissal of the applicant who was cleaning, rather than reinstalling, a drip tray.

Consideration - Statutory criteria

[46] Section 387 of the Act specifies matters which must be taken into account in considering whether a dismissal was harsh, unjust or unreasonable. I turn now to those matters.

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)

[47] While it readily may be accepted that a disregard by an employee of measures implemented by an employer which have occupational health and safety purposes typically would constitute a sound basis for responses including counselling, warning and/or disciplinary action (including dismissal), I am not satisfied, in this case, that the respondent had a valid reason for the dismissal based on the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[48] If an employer is going to have a zero tolerance approach to LOTO breaches it must make it abundantly clear specifically as to when LOTO must be applied and communicate that information properly and effectively. An employer should, regardless of whether it has a zero tolerance approach, properly communicate such matters in any event given the importance of occupational health and safety measures such as LOTO. Here, I conclude there was no valid reason for the dismissal because the respondent did not properly or effectively communicate to the applicant what was entailed in its LOTO/SOP requirements or expectations as to the tray cleaning task. It is well and good for the respondent to say there is a proper construction of the SOP and/or otherwise to seek to rely on the aphorism “If in doubt, lock it out”. However, the fact of the matter is that there was not a skerrick of evidence adduced by the respondent to contest or controvert the evidence in the applicant’s case that LOTO had neither been used nor was understood by any Roll Line employee to have been required to be used for cleaning the machine’s tray over a period, I note, spanning more than a decade. It sought to rely on the proposition that Mr Wyatt said he had applied LOTO, but I have accepted Mr Wyatt’s own evidence in that regard.

[49] If LOTO was expected to be applied to cleaning the tray, there was no evidence in the respondent’s case that any of its employees applied LOTO or that any employee understood that he or she was supposed to apply LOTO when cleaning the tray - because there was no evidence that any employee, relevantly including the applicant, was informed by anyone, or otherwise understood, that LOTO was required for tray cleaning. Indeed, the evidence more broadly militated against any such conclusion. To the extent that there was evidence from only three witnesses who had worked on the Roll Line, I note there was no contest in the respondent’s case to the evidence adduced by the applicant that, following the applicant’s suspension/dismissal, employees other than the three witnesses in these proceedings refused requests from management that they sign-off that they understood the SOP.

[50] There was no evidence to contradict the evidence adduced in the applicant’s case which had the collective effect of indicating that employees on the Roll Line had not used LOTO when cleaning the tray, i.e., at least preceding the applicant’s suspension on 14 December 2015. It was not even suggested to any of the witnesses in cross-examination that their evidence in such respects was incorrect. The applicant was aware that the “penalty for failing to follow the LOTO procedure” was “the sack”. The applicant’s failure to LOTO when cleaning the tray was not, for example, an instance of some form of wilful disregard of the requirement to apply LOTO or, alternatively, some form of negligent disregard for LOTO procedures; the applicant just did not know what the respondent expected concerning LOTO and cleaning the tray and/or that what he had been doing for 14 years in cleaning the tray without LOTO was not what was required of him. Indeed, the evidence indicated that at some point in the time following his comparatively recent appointment as the Team Manager for the Roll Line, Mr Bontempo had squatted beside the applicant to instruct him on how better to clean the tray while the applicant was beneath the machine - and at a time when the machine was not put in LOTO by either the applicant or his manager.

[51] To the extent the applicant was given refresher training by Mr Taylor on 4 December 2015, the evidence made it quite plain that questions were unanswered or not satisfactorily answered. Approached another way, there was not one assertion in the respondent’s evidence that anyone in the employ of the respondent had ever said or given a training session to the applicant (or to any other Roll Line employees) where it was said, for example: LOTO applies to cleaning the tray.

[52] In and of itself, a conveyor belt for bread rolls would not ordinarily be considered to be inherently dangerous plant or machinery (or a potentially hazardous power source) even it were the case an employee were situated on the underside of a conveyor belt (a potentially moving component) - and in this case, the evidence indicated the machine was quite high and there was at least some clear distance between the applicant’s head (measured from his kneeling position) and the underside of the conveyor belt. Admittedly, kneeling beneath a part of a machine which has a conveyor belt is certainly sub-optimal as it may create at least the potential for an occupational health and safety hazard of its own for an employee. In that regard, I note that the respondent’s employees were otherwise expected to duck-beneath the machine concerning the movement of tubs for cleaning – and Mr Orr-Young did not appear to consider that this task involved a requirement for LOTO because it involved only part of an employee’s body going under the machine rather than, as in the case of the applicant when he was cleaning the tray, his full body.

Whether the person was notified of that reason

[53] The applicant was notified of the reasons for dismissal in the letter dated 4 January 2016. The letter was in evidence.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[54] The applicant was given an opportunity to respond in the period that followed the suspension on 14 December 2015 up to and including the date of dismissal. The applicant’s union principally advanced those responses on the applicant’s behalf. The respondent effectively disregarded what were, I consider, quite legitimately-based responses.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[55] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions. The applicant was supported by his union delegate and union representative in discussions.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[56] The dismissal did not relate to unsatisfactory performance. The applicant had an entirely unblemished employment record.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[57] The respondent is a company which employs a large number of people and it, in turn, is part of the larger Goldman Fielder group. The respondent has in-house human resource management specialists among other such related resources.

Any other matters that the FWC considers relevant

[58] While it was not a matter addressed in the parties’ cases, for my own part I am bound, in passing, to observe that it seems to me that Mr Taylor properly ought not have been involved in the decision-making concerning the applicant after United Voice had squarely raised concerns about the adequacy of the training Mr Taylor himself had provided in the LOTO refresher training session conducted on 4 December 2015. Those concerns about the training were initially broached in United Voice’s correspondence of 21 December 2015 and then more squarely put in subsequent correspondence of 24 December 2015 - including writing that “the person delivering the course had repeated frequently that they didn’t understand the new LOTO regulations themselves”. The person who had conducted that session on 4 December 2015 was Mr Taylor himself. It is troubling that in his letter of 4 January 2016 advising the applicant of the dismissal Mr Taylor wrote, among other things, that “I dispute that the LOTO training which was conducted on Friday, 4 December 2015 lacked content, credibility or engagement when conveying the importance of LOTO”.

[59] Mr Taylor properly should not have been responding in defence of himself personally in any of the communications to United Voice concerning the applicant’s employment; it is, put at its lowest, disconcerting that he should have done so. Mr Taylor most likely should not have been involved at all in determining whether the applicant should be dismissed when United Voice’s correspondence went directly to matters concerning what Mr Taylor himself had presented in the LOTO refresher session on 4 December 2015 - and in which, I note I have otherwise accepted, the applicant specifically asked Mr Taylor about LOTO and the drip tray but Mr Taylor gave no definitive response.

Consideration - remedy

[60] I am satisfied the dismissal of the applicant was, in all the circumstances, harsh, unjust and unreasonable. The applicant has established a strong case in favour of making an order for an unfair dismissal remedy concerning reinstatement. I have considered the matters advanced in the respondent’s case arguing against that remedy. On my consideration of all matters, I am well-satisfied that the primary legislative remedy of reinstatement is appropriate here. The applicant had worked at Malaga for the better part of two decades and had an unblemished record. I am confident there would be no breach by the applicant of any LOTO requirements that may be in place from time to time under the relevant SOP. In that regard, I trust the respondent’s managerial representatives come to a common understanding and agreement as between themselves as to when LOTO does apply, or does not apply, and clearly articulate that to employees – including for the benefit of the applicant when the reinstatement order takes effect and he returns to work.

[61] I propose to relist the matter initially for directions with a view to promptly settling the form of the order for reinstatement, and also to discuss programming to allow the parties to be heard on an order for continuity and the amount in any order to restore lost pay, given particularly the matters required to be considered in ss.391(3)-(4) of the Act and about which there was little or no specific evidence. A Notice of Listing in that regard will issue shortly.

COMMISSIONER

Appearances:

M Girgis, United Voice, for the applicant.

D White, solicitor, for the respondent.

Hearing details:

2016.

Perth;

27, 28 April.

Printed by authority of the Commonwealth Government Printer

Travis Mutimer v Quality Bakers Australia Pty Ltd

[2016] FWC 3193

2 JUNE 2016

DECISION