[2021] FWC 2404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wally Moszko
v
Simplot Australia Pty Ltd
(U2020/15864)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 SEPTEMBER 2021

Application for an unfair dismissal remedy.

[1] On 11 December 2020, Mr Wally Moszko (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Simplot Australia Pty Ltd (Respondent, Simplot). Mr Moszko seeks reinstatement, an order preserving continuity of service, compensation and any other remedy deemed appropriate.

Preliminary Matters

[2] Mr Moszko’s application was made within the 21-day period prescribed by s.394(2) of the Act. Simplot is not a small business within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply.

[3] At the time of his dismissal the AMWU, CEPU Simplot Australia Pty Limited, Employee National Collective Agreement 2018 – 2021 Agreement (the Agreement) applied to Mr Moszko’s employment and he earned less than the high-income threshold. Mr Moszko had completed a period of employment with Simplot that was at least the minimum employment period required by s.382 of the Act.

[4] There was no dispute and I find that Mr Moszko’s employment was not a case of genuine redundancy and that Mr Moszko’s employment was terminated at the initiative of Simplot.

[5] I am therefore satisfied that, at the time of dismissal, Mr Moszko was a person protected from unfair dismissal.

[6] Having considered each of the initial matters, I am required to consider the merits of Mr Moszko’s application.

Background

Uncontested facts

[7] The following sets out the uncontested factual background to the matter.

[8] Mr Moszko is a 62 year old male, he commenced employment with Simplot on 7 April 1997. Prior to his dismissal he worked as a ‘shift feeder’ at Simplot’s potato processing plant in Ulverstone, Tasmania. On the days Mr Moszko wasn’t rostered to work at Simplot he worked part-time for a freight company that mainly transports vegetables, grains and dairy products.

[9] Simplot is a private company in the business of production, manufacturing and supply of packaged food products.

[10] In addition to the Agreement, Mr Moszko’s employment was regulated by the terms of a letter of offer (3 April 1997) and company policies including the J.R. Simplot Company Code of Conduct and the Employee Counselling and Disciplinary Policy.

[11] During peak season, Mr Moszko worked in a team of three, and at the time of his dismissal, they included Mr Mark Bryant and Mr Don Lyon. Mr Moszko’s role as a shift feeder was to feed potatoes into the factory either directly from the trucks or from the Short-Term Sheds, or from the other sheds via a conveyor system. One of the tasks required to be performed by Mr Moszko is the cleaning and ‘draining’ of each bunker. The main purpose of a ‘bunker drain’ is to do a refresh of the Raw Materials (RM) Hoppers and to check that there is nothing wrong with the product in the RM Hoppers.

[12] On 21 October 2020, Mr Moszko contacted the Control Room at approximately 8:00am and spoke with Ms Stephanie Temple (Control Room Operator) about a bunker drain on Line 1. After calling the Control Room Mr Moszko took a break in the crib room between 8:30am and 9:00am. Sometime thereafter, Mr Bryant called in a bunker drain on Line 1. Mr Moszko did not complete a bunker drain on Line 1.

[13] On 21 October 2020 Ms Linda Pilgrim (Team Leader) spoke with Mr Moszko and Mr Bryant about why both men had called through a bunker drain at different times for the same drain. Ms Pilgrim then spoke to Mr Spinks raising her concerns that Mr Moszko and Mr Bryant had not completed the bunker drains properly. Subsequent to her conversation Ms Pilgrim sent Mr Spinks an email summarising the information she had provided him about the bunker drains not being performed correctly.

[14] On 30 October 2020 Simplot sent Mr Moszko a letter titled ‘RE: Allegation regarding your performance and behaviour’ requesting a meeting with Mr Moszko on 6 November 2020 to discuss his responses to the following allegations concerning his behaviour on 21 October 2020:

“1. At approximately 8:00am, you called through to the Control Room and reported that you had completed a bunker drain on Line 1 when, in fact, you had not completed a bunker drain at all.

2. At approximately 9:30am, Mark Bryant also called through to the Control Room to report a bunker drain on Line 1. Again, no bunker drain had been completed, but you were complicit in the falsification of the Shift Feeder Log Sheet in indicating that the bunker drain for Line 1 had been completed.

3. During the shift, your Team Leader, Linda Pilgrim, asked you why you had both called through to the Control Room to report a bunker drain on Line 1. You explained that Mark did not know that you had already done the bunker drain, so you both did it. It is alleged that this was not a truthful answer.”

[15] On 6 November 2020 a meeting took place. Present at this meeting were Mr Moszko, Mr Jason Spinks (Process Area Manager), Ms Sandra Wilson (Human Resource Manager) and Mr Wickham (“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) official). Mr Moszko was given an opportunity to respond to the allegations set out in the letter of 30 October 2020.

[16] On 12 November 2020, Simplot sent Mr Moszko a further letter titled ‘RE: Allegation regarding your performance and behaviour’ summarising and responding to the discussions on 6 November 2020 and requesting a meeting with Mr Moszko on 13 November 2020 to discuss his response to the following further two allegations:

“4. On Tuesday 20th October, you did not complete a bunker drain on Line 1 at any time during the shift.

5. You falsified the Shift Feeder Log Sheet on this date, indicating that the bunker drain for Line 1 had been completed.”

[17] On that same day at 4:20pm Mr Wickham emailed Ms Wilson and placed the matter into dispute as per clause 45 of the Agreement, and confirmed that neither Mr Moszko nor Mr Bryant would attend further meetings until the dispute had been resolved, alleging that Mr Moszko and Mr Bryant were victims of bullying and harassment.

[18] At 5:31pm 12 November 2020 Ms Wilson emailed Mr Wickham requesting further information regarding the grounds for the dispute. Mr Wickham responded at 6:25pm confirming he would detail the complaints from the first meeting.

[19] On 17 November 2020 Simplot lodged a Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure with the Commission concerning a dispute between Simplot and each of Mr Moszko and Mr Bryant.

[20] On 20 November Ms Wilson emailed Mr Wickham to confirm a meeting time of 8:00am on 21 November 2020. In this email Ms Wilson also noted that the situation resolved the dispute the subject of the Form F10 application and that there was no longer a need to go to the Commission.

[21] On 21 November 2020 Ms Wilson, Mr Spinks, Mr Wickham (AMWU) and Mr Moszko attended a meeting to discuss the allegations against Mr Moszko. During this meeting Mr Moszko was dismissed. On that same day Simplot provided Mr Moszko with a letter titled ‘RE: Termination letter’ in which Simplot confirmed that Mr Moszko’s employment was terminated effective immediately.

[22] On 24 November 2020 Simplot sent Mr Moszko a further letter titled ‘RE: Termination letter’ in further support of the decision to terminate Mr Moszko’s employment, setting out the 5 allegations and Simplot’s findings in respect of those allegations.

[23] On 24 November 2020 Simplot filed a notice discontinuing the dispute application with the Commission.

[24] On 5 January 2021 the Commission conducted a conciliation conference but the matter did not settle. It was then allocated to my Chambers and listed for a mention and directions on 22 January 2021.

Contested facts

[25] Of relevance, the parties have not reached consensus on the following:

• whether or not a bunker drain did occur on 20 October;

• whether, upon calling the Control Room on the morning of 21 October, Mr Moszko indicated that he had completed a bunker drain, and

• what, precisely, Ms Pilgrim and Mr Moszko said and intended during their conversation on 21 October about why a bunker drain had not taken place that morning.

Procedural background

[26] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

[27] After considering the views of Mr Moszko and Simplot and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the Act), and the matter was listed for hearing on 18 and 19 March 2021.

[28] After consultation with the parties, I also considered it appropriate that the matter be referred to a member assisted conciliation. A member assisted conciliation took place before Deputy President Gostencnik on 5 February 2021. The parties did not reach settlement at the conciliation conference.

[29] On 5 March 2021 Mr Moszko filed a Form F52 – Application for an order for production of documents, records or information to the Commission. The application was opposed by Simplot.

[30] On 11 March 2021 I issued an order to produce for some, but not all of, the requested materials. The following documents were produced pursuant to that order:

• a copy of the Good Manufacturing Procedures

• CCTV footage referred to in the witness statements of Mr Spinks, Mr Griffiths and Ms Pilgrim for 20 October 2020 and 21 October 2020 in a manner that can be viewed by Mr Moszko and the Commission;

• the Control Room diary records for 20 October 2020 and 21 October 2020;

• the J.R. Simplot Company Code of Conduct, and

• the Employee Counselling and Disciplinary Policy.

[31] On 15 March 2021 Mr Moszko filed a Form F51 – Application for an order requiring a person to attend before the Commission, requesting the attendance of Mr Mark Bryant. The application was granted and Mr Bryant ordered to attend the hearing and give evidence in this matter.

[32] Following the hearing directions were issued on 22 March seeking closing submissions from the parties addressing ss. 387, 391 and 392 of the Act.

[33] Closing submissions were filed by Mr Moszko on 16 April 2021. Simplot filed closing submission on 30 April 2021. Closing submissions in reply were filed by Mr Moszko on 12 May 2021.

[34] Mr Moszko was represented by Mr Miller from the AMWU and Simplot was represented by Mr Dixon from Ai Group.

Witnesses

[35] Mr Moszko gave evidence on his own behalf and the following witnesses gave evidence on behalf of Mr Moszko:

• Mr Michael Wickham (AMWU official);

• Mr Mark Randall (Shift electrical instrument tradesperson);

• Mr Rohan Smith (Operator/forklift driver).

[36] Mr Rohan Smith was not required to attend the hearing for cross-examination.

[37] The following witnesses gave evidence on behalf of Simplot:

• Ms Sandra Wilson (Human Resource Manager);

• Mr Jason Spinks (Process Area Manager);

• Ms Linda Pilgrim (Production Team Leader);

• Ms Stephanie Temple (Control Room Operator);

• Mr Tony Griffiths (Production Manager);

• Mr Donald Lyon (Feeder).

Submissions and Evidence

[38] Mr Moszko submits that there was no valid reason for the dismissal related to his capacity or conduct.

[39] Simplot submit it had a valid reason to dismiss Mr Moszko’s employment. The reasons relied on are set out in the termination letter dated 24 November 2020. I note that allegations 1 – 3 concern events of 21 October 2020, whilst allegations 4 and 5 concern those of 20 October 2020.

Allegation 1 - At approximately 8:00am, you called through to the Control Room and reported that you had completed a bunker drain on Line 1 when, in fact, you had not completed a bunker drain at all.

[40] Mr Moszko submits allegation 1 as set out in the letter dated 24 November 2020 simply ‘did not happen’. He submits that at no time on 21 October 2020 did he claim to have completed a bunker drain. In particular, Mr Moszko claims that around 9:00am that morning, he took his morning break whilst he waited for the remaining potatoes to run from the conveyors into the flumes before he could clean the RM Hoppers. Mr Moszko submits that when he called through to the Control Room, he did not advise he had completed a bunker drain, rather, that he was commencing one. Mr Moszko’s oral evidence is that he called the Control Room and told them he was starting a bunker drain.

[41] Mr Moszko submits he intended to complete the further steps upon returning from his break, but upon his return was informed by his colleague Mr Bryant that the bunker drain and flume flush had been completed. Mr Moszko submits he was entitled to rely on this advice from his colleague and that his conduct is reasonable and consistent with company policies and procedures.

[42] Simplot submits that the emphasis placed on whether Mr Moszko ‘completed’ or ‘started’ a drain is misplaced. Simplot submits that if a bunker drain is ‘called in’, ‘whether at the start or the conclusion it is expected to be done’.

[43] Mr Moszko explained in some detail when and how a bunker drain is performed. He says it is the Control Room or Team Leader that typically decides how the bunker drain is performed. Sometimes the level in the RM Hoppers is lowered and at other times it is necessary to do a complete bunker drain before starting on a new product. If there is bad product in the RM Hoppers then the Control Room or Team Leader would require the RM Hoppers to be completely emptied and cleaned out before new product is put through.

[44] Mr Moszko says he typically notifies the Control Room when he has started a bunker drain. He says it is important to advise the Control Room of the start of a bunker drain so that the Control Room knows what is going on in the event that the RM Hoppers run out of product.

[45] Mr Moszko’s evidence is that on the morning of 21 October 2020 he was working out of shed 15 before finishing up around 9:00am by running the potatoes off the conveyor belt before starting on shed 2B. Mr Moszko’s evidence is that once the conveyors were clear, he took his break which was an hour later than normal. Mr Moszko says because there was substantial product in the flume system it would take around half an hour to 45 minutes for the product to run through the flume system into the RM Hoppers. There were still potatoes on the conveyor that needed to travel to the RM Hoppers. This means the bunkers couldn’t drain until the potatoes had finished travelling to the RM Hoppers.

[46] Mr Moszko says he rang the Control Room to say that he had finished shed 15 and was “going to start a bunker drain and run the spuds off the conveyors”. He then had his break in the field services crib room. Mr Moszko says he called in the bunker drain on his way to taking a break so that the Control Room would know what was going on. If the remaining potatoes on the conveyors finished entering the Hoppers the RM Hoppers would begin to drain and Mr Moszko had previously been disciplined for letting the RM Hoppers run dry.

[47] Mr Moszko’s evidence during cross-examination is that he called in stating he had started a bunker drain at around 8:00am. Mr Moszko’s evidence is that he was running the potatoes off the conveyor belts or putting potatoes to the conveyers, a pre-step to doing a bunker drain, which would have taken about half an hour or so to finish. Mr Moszko says while he was doing this he took a break. Mr Moszko concedes that even if he started a bunker drain as late as 8:30am there would have been a drop in the level of potatoes at the time Mr Bryant started a bunker drain. Mr Moszko’s evidence is that he was with Mr Bryant at 9:00am when he was undertaking the bunker drain. On re-examination Mr Moszko gave evidence that he may have returned from his break at around 9:30am or even later.

[48] Mr Moszko says he called in a bunker drain in accordance with his usual practice being when he was changing product from one shed to product from a different shed. Mr Moszko says when this occurs, they clean and close off the shed first, then clean and flush the conveyors/flumes and then the bunkers. Mr Moszko says it was his usual practice to call in a bunker drain when he had finished the shed and was about to start on the flumes. He says he would be surprised if there was any confusion because he has done it the same way for seventeen years and no one has raised an issue or complaint about him calling in the bunker drain that way.

[49] Mr Moszko’s oral evidence is that he started a bunker drain by finishing the shed itself and by the time those potatoes got over to the line then it would have been a case of going through and washing, flushing out the flumes and then do the Hoppers.

[50] Mr Moszko’s evidence is that when he returned from his break, he spoke with Mr Bryant who told him that he had called in a bunker drain. Mr Bryant told Mr Moszko he had finished flushing the flumes and he had hosed and cleaned the Hoppers and got them down. Mr Moszko informed Mr Bryant that he had also called a bunker drain from his phone. Mr Moszko says that Mr Bryant told him he had not been told that one had already been called in. Mr Moszko’s evidence is that Mr Bryant told him he had flushed the flumes and got the bunkers down and washed them so it was ok to feed more potatoes. Mr Moszko says he believed Mr Bryant because he had told him what he had done.

[51] Prior to his dismissal Mr Bryant worked as a feeder at the Ulverstone plant. Mr Bryant worked on the same shift as Mr Moszko. Mr Bryant gave evidence that his task was to keep product into the bunkers and to keep them full. Mr Bryant says they performed a bunker drain if the Team Leader tells them to or when they are changing product, other than those circumstances they take it upon themselves to decide whether to keep the product in the bunkers or run them down low. This includes if they are running the same product and when changing sheds. In those circumstances they hose the bunkers out to give them a clean and then let the Control Room know that there is raw product on the way. Mr Bryant says sometimes the line is running quickly and they can’t keep up by doing a complete bunker drain, so they check with the Control Room or at their own discretion they only run the product down to a 20% level and then start running raw material back on top. His evidence is that it takes on averaged around half an hour to 45 minutes for the bunkers to get down low.

[52] On 21 October 2020 Mr Bryant commenced his shift at 7:00am. Mr Bryant says Ms Judy Kelly was the Team Leader in charge on that day. Mr Bryant’s evidence is that he was working over at shed 15 until around 8:45am to 8:50 before heading over to do a bunker drain and a flume flush while Mr Moszko went for his break. Mr Bryant says he called the Control Room and let them know he was starting a bunker clean and a flume flush. Mr Bryant does not recall who he spoke to in the Control Room. Mr Bryant says he then went and did the flume flush and then proceeded upstairs onto the bunkers, he started hosing up the bunkers while the product was lowered to a level of around 20%. Mr Bryant then headed back to either shed 2A or 2B and says he called the Control Room to let them know he had raw material on its way. Mr Bryant’s evidence is that he spoke to Ms Kelly and let her know that he had the bunkers down low and had put product on top and that Ms Kelly did not have an issue with that.

[53] Mr Bryant’s evidence is that they didn’t drain the bunker completely because there was no rotten or smelly product in the bunker and if they emptied them completely, they would have struggled to keep up with the line. Mr Bryant also gave evidence on that day he recorded what time he had done the bunker drain in the Shift Feeder Log Sheet.

[54] Mr Bryant’s evidence is Mr Moszko was on a break while he had started to lower the bunkers, did the bunker drain and flume flush. He says Mr Moszko returned from his break at around 9:30am. Mr Bryant’s evidence is that he told Mr Moszko that he had “just done the clean on the Line 1 and I’ve got raw product on its way.” Mr Bryant says Mr Moszko replied stating “he called them in-he started a bunker clean, too.” Mr Bryant says Mr Moszko had rung the Control Room however he wasn’t aware of this at the time he himself called in a bunker drain. Mr Bryant says he did not tell Mr Moszko that no one had told him that Mr Moszko had already called one in. Mr Bryant says he then proceeded to take his break.

[55] Mr Lyon is also a feeder at Simplot. Mr Lyon gave evidence on how to perform a bunker drain. Mr Lyon’s evidence is consistent with Mr Bryant’s in that it was the Control Room and the Team Leader who decide if a full bunker drain is to be completed. Mr Lyon says when he calls the Control Room to call in a bunker drain, this means that he has started performing a bunker drain, not that he has finished one.

[56] Mr Lyon’s evidence is that when performing a bunker drain on Line 1 it is important to keep the line running because stoppages can be costly to the business. Mr Lyon’s evidence is that when performing a bunker drain on Line 1 it is enough to take it down as low as you can. Mr Lyon says the term bunker drain can mean either a full drain of potatoes or a lowering of the level of potatoes. Mr Lyon’s evidence is that whether it is necessary to conduct a full or partial bunker drain depends on different factors and is a bit of a grey area, however a bunker drain is supposed to occur every shift. Mr Lyon says that he isn’t aware of anyone ever being disciplined for taking the level down low instead of performing a full bunker drain.

[57] Ms Temple is a Control Room Operator (CRO) and has worked for Simplot for 30 years. Ms Temple’s evidence is that on 21 October 2020 she commenced work at 7:00am. During the morning Mr Moszko called her over the two-way radio to say he was doing a drain. Ms Temple says she noticed on the video monitor that neither Mr Moszko nor Mr Bryant had performed a bunker drain. Later that day Ms Pilgrim came to the Control Room where Ms Temple was working and Ms Temple informed Ms Pilgrim that she hadn’t seen either Mr Bryant or Mr Moszko do a bunker drain.

[58] Ms Temple’s evidence is that she called Mr Moszko up to the Control Room and showed him the video footage which she says shows that a bunker drain had not been completed by either Mr Bryant or Mr Moszko. Ms Temple also discussed the video footage with Ms Pilgrim.

[59] Ms Pilgrim’s evidence is that at around 4:15pm on 21 October 2020 she went to the Control Room and noticed Ms Temple had not recorded a bunker drain. Ms Pilgrim’s evidence is when asked why there had been no bunker drain recorded Ms Temple informed her that Mr Moszko had called in a bunker drain at 8:00am and Mr Bryant had called in a bunker drain at 9:30am but not actually performed a bunker drain. Ms Pilgrim says she then went to shed 2B to speak to both Mr Bryant and Mr Moszko and asked why they both called in a bunker drain for the same line. Ms Pilgrim says Mr Moszko replied that Mr Bryant was on his break when Mr Moszko performed a bunker drain and didn’t know he had done a bunker drain before. Ms Pilgrim’s evidence is that she informed Mr Moszko and Mr Bryant that she had viewed footage of the line and neither had performed a bunker drain at the times reported. Ms Pilgrim’s evidence is that if you call in a bunker drain that would mean that you would usually complete the bunker drain and if for some reason the bunker drain was abandoned or not completed it would be usual practice that she be notified.

[60] Ms Pilgrim’s evidence is that Mr Bryant told her that he had hosed the bunker. Ms Pilgrim says Mr Bryant did hose the bunker however this occurred whilst it was full. At 6:30pm that same day Ms Pilgrim sent an email to Mr Spinks, Process Area Manager, providing details as to what had occurred and her discussion with Mr Moszko and Mr Bryant.

[61] Mr Spinks’ evidence is that on the 21 October 2020 Ms Pilgrim reported that Mr Moszko and Mr Bryant were not performing bunker drains properly. Subsequent to their conversation, Ms Pilgrim sent him an email summarising the information she had provided about the bunker drains not being performed correctly.

[62] Mr Spinks’ evidence is that the CRO’s can view CCTV footage of the RM Hoppers throughout their shifts. On or around 29 October 2020 Mr Spinks watched the CCTV footage recorded on 21 October 2020. Mr Spinks says he also watched CCTV footage recorded on 20 October 2020 however he could not recall the specific date that this occurred. He observed Mr Moszko and Mr Bryant had not performed bunker drains correctly on either of those days. His evidence is that he watched the footage on several occasions as he was trying to make sure he was correct in his observation that neither Mr Moszko or Mr Bryant had performed a bunker drain.

[63] Mr Griffiths is the Production Manager at Simplot. His evidence is that he reviewed the CCTV footage taken on 21 October from approximately 8:45am to 11:00am. The Shift Feeder Log Sheet state that on 21 October Bunker 2 was cleaned at 9:45 am and Bunker 3 was cleaned at 10:00am. Mr Griffiths’ noted that at approximately 9:38am Mr Bryant attend the bunkers and hosed them out, however he did not correctly drain or empty the bunkers and Mr Moszko did not attend the bunkers during the period from 8:45 to 11:00am. Mr Griffiths’ evidence is he reviewed all of the CCTV footage for 21 October 2020 and neither Mr Bryant or Mr Moszko could be seen doing a bunker drain at any other time.

Allegation 2 - At approximately 9:30am, Mark Bryant also called through to the Control Room to report a bunker drain on Line 1. Again, no bunker drain had been completed, but you were complicit in the falsification of the Shift Feeder Log Sheet in indicating that the bunker drain for Line 1 had been completed.

[64] Mr Moszko’s evidence is that if Mr Bryant had not informed him that he had done the flume flush and bunker drain he would have called the Control Room to find out how the RM Hoppers were going and then he would have gone through the process of doing the bunker drain himself.

[65] After speaking to Mr Bryant Mr Moszko went to shed 2B and started feeding potatoes from there. After Mr Bryant returned from his break Mr Moszko says he went over to shed 15 and turned off the conveyer belts.

[66] Mr Moszko’s evidence is that he did not falsify the Shift Feeder Log Sheet. Mr Moszko says that his writing and signature do not appear on the sheet and that the times indicating when the Hoppers were cleaned do not match up with the times that Mr Moszko stated he would commence his bunker drain.

[67] Mr Moszko submits that there is also no evidence that the Log Sheet is false. Mr Moszko says Mr Bryant completed the Log Sheet on that day and submits Mr Bryant’s evidence about when he completed his bunker drain aligns with those in the Log Sheet and further, that even if the Log Sheet is false, there is no evidence establishing that Mr Moszko was complicit in its falsification.

[68] Mr Bryant’s evidence is that on the 21 October 2020 he completed the log sheet, he put in the times that he had completed the bunker drain into the shift feeder log sheet and Mr Lyon finished the shift feeder sheet.

[69] Mr Spinks’ evidence is that he became aware during the investigation that the person who performs the bunker drains is not always the person who completes the Log Sheet. However, he reached the conclusion that Mr Moszko was complicit in the falsification of the 21 October 2020 Shift Feeder Log Sheet because the Log Sheet recorded that a bunker drain had been completed and that he believed Mr Moszko had told Ms Pilgrim that he had completed a bunker drain on that day. Mr Spinks’ evidence is that both Mr Moszko and Mr Bryant work as a team and were both responsible for ensuring a bunker drain was completed and neither of them did a bunker drain on 21 October 2020.

Allegation 3 - During the shift, your Team Leader, Linda Pilgrim, asked you why you had both called through to the Control Room to report a bunker drain on Line 1. You explained that Mark did not know that you had already done the bunker drain, so you both did it. It is alleged that this was not a truthful answer.

[70] Mr Moszko denies this account of the conversation between himself and Ms Pilgrim and contends that he did not represent to Ms Pilgrim that a bunker drain had been completed. Mr Moszko says Ms Pilgrim approached both he and Mr Bryant in shed 2B. He says Ms Pilgrim asked why both he and Mr Bryant had called a bunker drain, Mr Moszko replied “I called it over the phone, Mark called it over the radio. Neither of us knew the other had done it.” Mr Moszko says by saying “done it” he was referring to the act of calling in the bunker drain to the Control Room. Mr Moszko says Ms Pilgrim told him she wanted the RM Hoppers emptied and he responded with words to the effect of “Point taken, understood”.

[71] Mr Moszko submits that Simplot’s reliance on his response to the question of why he called a bunker drain is misplaced, because Mr Moszko’s answer was in response to a question of why he called a bunker drain, not why he completed one.

[72] Ms Pilgrim’s evidence is that when she spoke to Mr Moszko and asked why both he and Mr Bryant had called in a bunker drain for the same Line 1 at different times Mr Moszko replied that Mr Bryant was on a break when he performed a bunker drain and didn’t know he had done one.

[73] On that same day Ms Pilgrim sent an email to Mr Spinks. In her email Ms Pilgrim states the following:

“ … I was back in the Control Room and noticed Steph hadn’t recorded a bunker drain for today and I asked her why. She told me that Wally had called a bunker drain through at 8:00 for line 1 but hadn’t actually done it and then Mark called a bunker drain through at 9.30 for line 1 also and also hadn’t done the bunker drain.

…

I then asked them about the bunker drain and why they had both called through a bunker drain at different times for the same line? Wally said Mark was at break when he did the bunker drain and didn’t know Wally had done it.”

[74] During cross-examination Ms Pilgrim gave the following recollection of the conversation she had with Mr Moszko on 21 October 2020:

“Wally said that Mark was at break when he called it through. He didn't know that he called it through and then Mark come back from his break and called it through again. And there was no – to my recollection – no reference to whether Wally had called his bunker drain through on the phone or on the radio.”

[75] Ms Pilgrim later stated that she recalled Mr Moszko saying he had done a bunker drain on that day.

Allegation 4 - On Tuesday 20th October, you did not complete a bunker drain on Line 1 at any time during the shift.

[76] Mr Moszko does not admit or deny this allegation; Mr Moszko’s evidence is that he could not recall what happened on 20 October 2020. Mr Moszko’s evidence is that it was not his writing signing off on the Shift Feeder Log Sheet. Notwithstanding, Mr Moszko submits there is no reliable evidence to prove that he did not perform a bunker drain on this date.

[77] Mr Moszko’s evidence is that his recollection of the day was that the product coming out of shed 15 was of reasonable quality and shed 2B was of very poor quality and therefore it would have been off greater importance to do a complete drain after and clean. Mr Moszko’s evidence is that the product they had on that day was causing them “a lot of grief” however he doesn’t recall doing a clean because of all the other issues that were going on at the time due to the poor quality of the product. Mr Moszko was able to recall specific details as to which sheds he worked in and the quality of the potatoes on that day however he could not recall any details about whether he did a bunker drain or not. Mr Moszko concedes it is usual practice to do a bunker drain if a change in shed from where the potatoes are being fed occurs however he does not recall doing a bunker drain at the time they changed from shed 15 to 2B.

[78] Mr Moszko submits that there several potential explanations as to why a bunker drain did not occur, 1 but that even if it didn’t occur, a failure to drain a bunker should not justify dismissal. Mr Moszko submits this is so because he has not previously been cautioned regarding bunker drains, has not changed his practice during his time as a ‘shift feeder’ and that to apportion blame solely to Mr Moszko (who was one feeder in a team of three during that shift) would be unfair.

[79] Mr Lyon’s evidence is that by ticking “bunker 1 cleaned Line1” on the Shift Feeder Log Sheet means that either a full or partial drain has been performed. Mr Lyon’s evidence is that he couldn’t be sure of his recollection of what occurred on 20 October 2020 as he had fallen quite ill shortly after that day and as a consequence has been off work for a period of time. However, his evidence is that on 20 October 2020 he completed the Shift Feeder Log Sheet after he had spoken to Mr Moszko and Mr Bryant. His evidence is that he had asked them what time the bunker drain was started and completed the Shift Feeder Log Sheet with the information they provided.

[80] Mr Griffiths’ evidence is that the 20 October 2020 Shift Feeder Log Sheet stated that Bunker 2 was cleaned at 4:00pm and Bunker 3 was cleaned at 3:30pm. Mr Griffiths reviewed the CCTV footage taken on 20 October 2020 from approximately 2:30pm to 4:30pm and says that neither bunker was cleaned or drained by anyone from 2:30 to 4:30pm.

Allegation 5 - You falsified the Shift Feeder Log Sheet on this date, indicating that the bunker drain for Line 1 had been completed.

[81] Mr Moszko evidence is that he does not recall the events that took place on 20 October 2020. He says however that he did not falsify the Shift Feeder Log Sheet. Mr Moszko submits that there is no evidence before the Commission to suggest that a bunker drain did not occur at the times listed in the Log Sheet on this day, and even if the Commission did find the Log Sheet was falsified, there is no evidence suggesting Mr Moszko is complicit.

[82] Mr Moszko’s oral evidence is that he doesn’t always sign off on the Shift Feeder Log Sheet. It can be the case that he simply informs the person who is filling out the Shift Feeder Log Sheet what time he performed a bunker drain. This occurs by either Mr Moszko approaching the person who is completing the Shift Feeder Log Sheet or he is approached by the person responsible so as to obtain the information prior to completing the Sheet. On 20 October 2020 it was Mr Lyon who completed the Shift Feeder Log Sheet. Mr Moszko does not recall having spoken to Mr Lyon about completing a bunker drain on that day. Mr Moszko’s evidence is that Mr Lyon never came to see him that day to ask him about the bunker drain.

[83] Mr Bryant’s evidence is that he has no recollections whatsoever of the circumstances of 20 October 2020. Mr Bryant says Mr Lyon hadn’t at any stage approached him and asked what time the bunker drain was started and denies having told Mr Lyon that he had done a bunker drain on that day. During cross-examination Mr Bryant’s evidence is that Mr Lyon should come and ask what they had done, and he’s normally around all of the time.

[84] Simplot submits that Mr Lyon’s evidence on this point is clear; that someone (either Mr Bryant or Mr Moszko) told Mr Lyon what time the relevant bunker was started. Simplot submits that notwithstanding it is not clear who communicated with Mr Lyon, both men had a collective responsibility to undertake the drain and ensure that the log sheet was properly completed, which it was not.

[85] Mr Lyon’s evidence is that he does not recall who he spoke to on 20 October 2020 and he does not usually put down who it was that told him they performed a bunker drain. His usual practice is to ask what time the bunker drain was done and then he records the time that he is told the bunker drain was performed. Mr Lyon’s evidence is that due to suffering a serious illness shortly after 20 October 2020 his recollection of the events that occurred that day are impaired.

Was the dismissal harsh, unjust or unreasonable?

[86] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

[87] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 2

[88] I set out my consideration of each below.

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

[89] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5

[90] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁶ The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 7

[91] The reasons relied on for the termination of Mr Moszko’s employment are set out in detail in the termination letter of 24 November 2020. Below I address each allegation in turn. For completeness I note that allegations 1 – 3 concern events of 21 October 2020, whilst allegations 4 and 5 concern those of 20 October 2020. Before I address each of the allegations it is useful to first set out how and when bunker cleans are performed.

[92] It is well accepted that it is necessary to undertake a bunker drain and that is a requirement for the shift feeders to complete a bunker drain on each 12 hour shift. It is not the case that each shift feeder has to perform a bunker drain on each shift that they work. When a bunker drain is performed during a shift generally depends on what is occurring during the shift. The shift feeders have to manage the cleaning of the bunkers and it seems in the absence of any specific direction from the Control Room or the Team Leader they are to complete a bunker drain once per shift using their discretion.

[93] The evidence in these proceedings is that the main purpose of a bunker drain was to refresh the RM Hoppers to remove any product that’s stuck to the sides and to check that there is nothing wrong with the product in the RM Hoppers. How a bunker clean is performed will vary depending on the circumstances at the time. Some of the factors that will influence how a bunker clean is performed include what kind of product is going through the Hoppers and how the line is running. The bunkers can be cleaned by lowering the levels of the potatoes in the Hoppers and then hosing them down. If there is a change in product a flume flush is performed by allowing the water in the flume to flow through until there is no more product left in the flume. Although the reasons for why a bunker clean is performed might vary, it is essentially performed in a manner that enables the shift feeder to be able to see if there is any product stuck to the sides or if there is any bad or old product in the bottom. A bunker clean might be performed when there is an issue with the product being fed through or if there is a complete change in product.

[94] The first step in a bunker clean is to run the potatoes off the conveyor belts and ensure they are all in the flumes. This can also be done by stopping the metering wheel and holding the product in the metering wheel. A flume flush is then performed to help stop spoilage. The RM Hoppers don’t need to be fully drained every clean. The Hoppers have to be drained down to a level to enable the feeder to visually see that there isn’t any spoil or bad product in them. Once the Hoppers have been lowered to a level where the feeders can see that there’s no bad or old product in the Hoppers then they can bring in new product over the top.

[95] A bunker drain has a number of variables and it is primarily at the shift feeder’s discretion as to how and when they need to occur. It appears to be that for those reasons employees are trained in how to do bunker drains through on the job learning. In addition to on the job learning there are factory memo’s that get distributed that set out the details of any changes to the process. Employees are required to sign off on those memos once they have read them.

[96] As previously stated, there is no set time at which the bunker clean occurs. The time that the bunkers are drained is recorded on the Shift Feeder Log Sheet. The purpose of the Shift Feeder Log Sheet is so that there is a record of when the last clean occurred should there be an issue with the product.

[97] It was alleged that Mr Moszko called through to the Control Room and reported that he had completed a bunker drain on Line 1 when in fact he had not. Simplot also submits that regardless of whether he called through he was starting a bunker drain or completing a bunker drain, he simply did not do either and therefore they had a valid reason to dismiss Mr Moszko.

[98] It is not in contention that on 21 October 2020 Mr Moszko and Mr Bryant were changing from shed 15 to shed 2B. Further there is no dispute that Mr Moszko did not complete a bunker drain on Line 1 on that day. Simplot submit that the issue is when someone calls in a bunker drain whether it be at the start or at the completion it is expected to be done. Simplot also submit that there is no evidence that Mr Moszko started a bunker drain because there was no drop in the product level that you would expect if one has been started.

[99] Mr Moszko took his morning break whilst he waited for the remaining potatoes to run from the conveyors into the flumes before he could clean the RM Hoppers. Mr Moszko’s evidence that he called the control room and stated he had finished in shed 15 and was going to start a bunker drain and run the potatoes off the conveyors remained uncontested. Mr Moszko accepted that if he had started a bunker drain then it would be usual for a drop in the product level to have been notable however none was. Mr Moszko’s unchallenged evidence is that this may have been because there was a large amount of product on the conveyors at the time he took his break, and that could have explained why there wasn’t a large drop in the product levels. Mr Moszko’s evidence is that regardless he had intended on completing a bunker drain when he returned from his break however he was informed by Mr Bryant that he himself had in fact completed a bunker drain. Ms Moszko had no reason not to believe his colleague and therefore he did not proceed to take any further action.

[100] Simplot rely on their submission that should a bunker drain be called in then it is essential that it was done. To the best of Mr Moszko’s knowledge he held the belief rightly or wrongly that a bunker drain had been completed by his colleague Mr Bryant and he had no reason to believe otherwise. It was conceded by Mr Griffith in cross-examination that if one line feeder says they have done a bunker drain the other feeders are entitled to rely on that advice. If Mr Bryant lied about his conduct, which on the evidence before me it appears that he did, then Mr Moszko was unaware and there is no evidence before me to suggest otherwise.

[101] The evidence of Ms Temple and Mr Moszko supports a finding that Mr Moszko called the Control Room notifying them that he was commencing a bunker drain, which is common practice. There is no evidence before me that would lead me to a finding that Mr Moszko called the Control Room stating that he had completed a bunker drain. Calling in a bunker drain is usually done at the start of the process. The commencement of the process can be as early as running product off the conveyors, Mr Moszko’s evidence on this point went unchallenged. Further, Mr Moszko’s evidence as to why there may not have been an observed drop in the product level remained undisturbed. There is no evidence to suggest Mr Moszko had not intended to complete a bunker drain after calling it in, he simply didn’t need to because he was led to believe one had already been completed. Therefore, it stands to reason that there is no basis for a finding that Mr Moszko engaged in the conduct alleged.

[102] Simplot relies on its submission that shift feeders work as a team and that both Mr Moszko and Mr Bryant had the responsibility to ensure not only that a bunker drain was done but that the Shift Feeder Log Sheet is completed properly.

[103] The evidence before me is that Mr Bryant completed the Shift Feeder Log Sheet on 21 October 2020. At that time, Mr Moszko held the belief Mr Bryant had completed a bunker drain at the time he recorded on the Shift Feeder Log Sheet. Even if Mr Bryant had falsified the Shift Feeder Log Sheet there is no evidence before me that would lead me to a finding that Mr Moszko was complicit in falsifying the log sheet.

[104] The third allegation arises from Simplot’s findings that no bunker drain had been performed. It was alleged that Mr Moszko told Ms Pilgrim that he had performed a bunker drain.

[105] Ms Pilgrim spoke to Ms Temple who informed her that both Mr Moszko and Mr Bryant had called in a bunker drain yet no bunker drain had been performed. Ms Pilgrim later approached Mr Moszko and Mr Bryant. There are different accounts of what was said during that conversation. Ms Pilgrim’s evidence is that when she inquired with Mr Moszko as to “why they had both called through a bunker drain at different times for the same line” in response Mr Moszko stated that Mr Bryant was on his break when Mr Moszko performed a bunker drain and didn’t know he had done a bunker drain. Mr Moszko denies saying words to that affect.

[106] On the same day she had the conversation with Mr Moszko and Mr Bryant that led to the allegation, Ms Pilgrim sent an email to Mr Spinks providing details of the conversation. Ms Pilgrim’s version of events is as set out in her witness statement. During cross-examination Ms Pilgrim gave evidence that she had asked why Mr Moszko and Mr Bryant had both called through that they had done a bunker drain. Ms Pilgrim says that Mr Moszko responded stating that Mr Bryant was on a break when “he called it through”. Ms Pilgrim did not state that Mr Moszko claimed to have completed a bunker drain.

[107] Mr Moszko does not have an unblemished record at work and he has been actively involved in the work of a delegate. It is highly unlikely in my view that Mr Moszko would have launched into an explanation that would involve confessing to doing a bunker drain, especially when presented with the question in the nature that it was presented. My observation of Mr Moszko during the proceedings is that he would more likely have taken a cautious approach to how he responded. Further it does not make sense given the nature of the question as it was posed by Ms Pilgrim that Mr Moszko would respond stating he had done a bunker drain. I am persuaded by the evidence of Mr Moszko that it is more likely in the circumstances that he responded stating that he had called it in and not that he had completed or done a bunker drain. Moszko does not claim to have completed a bunker drain on 21 October 2020, his response was consistent with him calling in a bunker drain which the evidence supports.

[108] I am satisfied that Mr Moszko did not inform Ms Pilgrim that he had completed a bunker drain, he had informed her that he had called one in. Consequently, I am not satisfied that Simplot has established that the alleged conduct occurred.

Allegation 4 - On Tuesday 20th October, you did not complete a bunker drain on Line 1 at any time during the shift.

[109] It is my view that it was convenient that Mr Moszko did not recall the events of 20 October 2020. His inability to recall what had occurred was at odds with his ability to recall the specific events of the following day. Further I do not accept Mr Moszko’s evidence that there is a lack of understanding as to how bunker drains are performed. One cannot misconstrue the requirement for a shift feeder to be able to determine what process should be applied based on their ability to assess the variabilities that may present themselves with a lack of understanding as to the processes. Mr Moszko’s own evidence is that he is a highly experienced Shift feeder and he clearly demonstrated with his experience and training he was able to assess when to perform a bunker drain and what process he should apply in doing so.

[110] However, the evidence currently before me is that Mr Griffiths reviewed the CCTV footage recorded on 20 October 2020, specifically the times that correlated with those recorded on the Shift Feeder Log Sheet and although there was some footage of Mr Bryant performing certain activities, there was no footage of Mr Moszko performing a bunker drain. Neither does Mr Moszko claim to have completed a bunker drain on that day.

[111] The Shift Feeder Log Sheet has been completed however Mr Lyon could not recall who he spoke to when he filled it out. There is no conclusive evidence before me to suggest Mr Moszko provided Mr Lyon with the information that was subsequently recorded in the Shift Feeders Log Sheet.

[112] Even if I was to accept Mr Griffiths’ evidence that the CCTV footage shows that there was no bunker drain performed on 20 October 2020, that is the extent to which Simplot can advance their argument. There is no evidence before me that can lead me to believe that Mr Moszko has either falsified the log sheet or that he claimed to have performed a bunker drain when he had not.

[113] Prior to Mr Moszko’s dismissal Simplot had an opportunity to properly investigate the events of 20 October 2020. Other than their reliance on CCTV footage that they were unable to produce in any readable format that could be viewed by the Commission or Mr Moszko, Simplot advance no other evidence to support its allegation that Mr Moszko avoided performing his duties on 20 October 2020. Simplot has not met its onus of proving the misconduct and I find this allegation unsubstantiated.

Allegation 5 - You falsified the Shift Feeder Log Sheet on this date, indicating that the bunker drain for Line 1 had been completed.

[114] The Shift Feeder Log Sheet shows that Bunker 1 was cleaned at 9:30am, Bunker 2 was cleaned at 9:45am and Bunker 3 was cleaned at 10:00am. Mr Lyon’s evidence is that he filled in the Shift Feeder Log Sheet on 20 October 2020. It was Mr Lyon’s evidence that he spoke to Mr Moszko and Mr Bryant and asked them what time the bunker drain was started and then he recorded what they had told him. I intend no criticism of Mr Lyon however he did not provide any precise information as to who provided him with what information. Mr Lyon openly admitted he was struggling to recall what had occurred as he had unfortunately been quite unwell. Regardless Mr Lyon’s evidence was that he never recorded who actually did the bunker drain nor who the person was that informed him a bunker drain was performed. This is a process Simplot may wish to re-consider moving forward.

[115] Whilst I am inclined to accept Mr Griffiths’ evidence that he reviewed the CCTV footage which showed neither Mr Moszko or Mr Bryant completed a bunker drain at the times recorded on the Shift Feeder Log Sheet, there is no reliable evidence before me that persuades me that it was Mr Moszko who falsified the Log Sheet on that day.

[116] For the reasons I have set out above there is no basis upon which Simplot could have reasonably concluded that on 21 October 2020 Mr Moszko reported to have completed a bunker drain and yet failed to do so. Mr Moszko did notify he was commencing a bunker drain which is the usual practice for shift feeders, however he did not proceed to take any further action because he relied on the information of Mr Bryant being that he had completed a bunker drain whilst Mr Moszko was on his break. Further, there is no evidence to support a finding that Mr Moszko falsified the Shift Feeder Log Sheet on that day. He again relied on the information provided by Mr Bryant which he was entitled to do so. I am also not satisfied that Mr Moszko told Ms Pilgrim that he had completed a bunker drain. On the evidence before me it is reasonable to conclude in response to the question posed by Ms Pilgrim that Mr Moszko informed her he had started a bunker drain. Further, Mr Moszko provided an explanation as to why prior to the time Mr Bryant called in his bunker drain the product levels hadn’t lowered. That evidence went unchallenged. I am therefore satisfied that allegations one through to three have not been substantiated and therefore Simplot cannot rely on them as a valid reason for Mr Moszko’s dismissal.

[117] Simplot submit that Mr Moszko did not perform a bunker drain on 20 October 2020 thus failing to perform his duties. Simplot merely sought to establish that a bunker drain was not performed on 20 October 2020. However, during proceedings it was established that there are a number of reasons why a bunker drain is performed and that a bunker drain is to be performed once per every 12 hour shift and that does not mean that every individual feeder has to performed a bunker drain. Merely stating that a bunker drain was not performed on 20 October 2020 when responsibility to do so does not rest solely with Mr Moszko is insufficient reasoning and not a valid reason for dismissing an employee. Further, there is no evidentiary basis upon which Simplot relies that would lead me to conclude that Mr Moszko had falsified the shift feeder log sheet on 20 October 2020. I am therefore satisfied that allegations four and five have not been substantiated and therefore Simplot cannot rely on them as a valid reason for Mr Moszko’s dismissal.

Was Mr Moszko notified of the valid reason?

[118] Mr Moszko submits that he was notified of the reasons for his dismissal (albeit belatedly).

[119] Simplot says that Mr Moszko was also notified of the reasons at the conclusion of the second meeting on 21 November 2020, such reasons then confirmed in the letter of 24 November 2020.

[120] Mr Moszko was notified of the reason for his dismissal prior to the decision to dismiss being made, s.387(b) is therefore a ‘neutral factor’.

Was Mr Moszko given an opportunity to respond to any valid reason related to their capacity or conduct?

[121] Mr Moszko submits that he did not have an opportunity to respond to any valid reason. In particular, Mr Moszko submits that the meeting on 6 November 2020 was little more than a ‘box checking exercise’. Mr Moszko submits Simplot did not consider his responses to allegations 1 – 3 which provided a complete and thorough explanation to the allegations.

[122] Simplot submits that there was considerable opportunity to respond to the allegations and refutes the allegation that the meeting was a ‘box ticking exercise’. Simplot submits it did consider what Mr Moszko said as demonstrated by its decision to adjourn the first meeting to undertake further investigations. Simplot also submits that it was under no obligation to blindly accept what Mr Moszko put forward.

[123] Mr Moszko was interviewed on a number of occasions and the allegations were put to him in full. Whilst Mr Moszko has concerns as to whether or not his responses were accepted as truthful and being a reasonable explanation for what occurred I am satisfied that in all the circumstances, Mr Moszko was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

Did Simplot unreasonably refuse to allow Mr Moszko to have a support person present to assist at discussions relating to the dismissal?

[124] As Mr Moszko was permitted a support person, this factor is not relevant to the present circumstances.

Was Mr Moszko warned about unsatisfactory performance before the dismissal?

[125] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of Simplot’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[126] Mr Moszko submits that Simplot is a large, well-resourced company with dedicated HR representatives and legally qualified personnel; Simplot submits that it was a medium-sized business with a dedicated human resources team.

[127] Accordingly, I find that the size of Simplot’s enterprise to be a neutral consideration.

Other relevant matters

[128] Section 387(h) requires the Commission consider any other matters that the Commission considers relevant.

[129] Mr Moszko submits that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

• the dismissal was disproportionate to the alleged offences given Mr Moszko’s length of service with Simplot (23 years);

• Mr Moszko was dismissed despite having raised a dispute under the Agreement, which at the time of the dismissal, remained unresolved;

• the investigation undertaken by Simplot was extremely limited – Ms Pilgrim’s email account of the 21 October 2020 events formed the basis of the allegations and these accounts were not tested by Simplot, and other important individuals, including Ms Kelly and Ms Temple were not interviewed; and

• the conclusions reached by Mr Spinks and Ms Wilson regarding allegations 4 and 5 were unreasonable – Ms Wilson simply sacked both Mr Bryant and Mr Moszko assuming one of them had falsified the log sheet.

[130] Simplot submits that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

• Simplot is entitled to take disciplinary action against employees in the circumstances of the case;

• if the Commission is minded to find that the circumstances as asserted by Simplot have transpired, then it must also find that Mr Moszko lied during the investigation, the disciplinary meetings and during these proceedings;

• Mr Moszko has a history of misconduct, including written warnings for misconduct of a similar nature; and

• Mr Moszko knew what to do and did not require any further training - by Mr Moszko’s own admission, he knew the job ‘inside out’.

[131] The above submissions have been taken into account in my determination of whether Mr Moszko’s dismissal was harsh, unjust or unreasonable.

[132] I agree that Simplot is entitled to take disciplinary action against an employee. It is however incumbent on them to properly substantiate their findings before dismissing an employee. Whilst this is not Mr Bryant’s unfair dismissal application, on the evidence before me it is Mr Bryant who claimed to have completed a bunker drain when no drain was completed and it was Mr Bryant who completed the Shift Feeder Log Sheet providing details that a bunker drain had been performed although it had not.

[133] Further there is no evidence to support a finding that Mr Moszko lied about performing a bunker drain or that he falsely completed the Shift Feeder Log Sheet.

Findings

[134] I have made findings in relation to each matter specified in section 387 of the Act as relevant.

[135] For the reasons set out above I find in all of the circumstances that there was no valid reason for the dismissal of Mr Moszko, and am satisfied his dismissal was harsh, unjust and unreasonable. Having determined that Mr Moszko’s dismissal was harsh, unjust and unreasonable I will now determine what remedy, if any, should apply.

Remedy

[136] Section 390 of the Act provides the following with respect to remedy:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

Reinstatement

[137] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.

[138] Mr Moszko seeks reinstatement. He submits reinstatement is the primary remedy in unfair dismissal matters. He submits a finding that reinstatement is not appropriate is necessary before an order can be made for compensation in lieu of reinstatement. Mr Moszko submits there are no factors that would render reinstatement inappropriate and any submission by Simplot to that effect should be heavily scrutinised.

[139] Simplot submit they have lost all trust in Mr Moszko to undertake the tasks he is required to perform. Simplot submit that Mr Moszko wilfully failed to undertake his duties prior to his dismissal. Simplot submit that due to the loss of trust and confidence in his ability to perform his tasks, should he be reinstated Mr Moszko would have to be closely supervised at all times. It is Simplot’s submission that they would have to double check Mr Moszko’s work because he has in the past demonstrated that he does not follow company directions. Simplot further submits Mr Moszko has had previous issues with respect to his conduct at work which have more recently resulted in both a first warning and a second final warning. Simplot submit further indiscretions of a similar nature were brought to their attention after Mr Moszko’s dismissal and those incidents occurred after the allegations of misconduct were made against him.

[140] Whilst I found allegation four was unsubstantiated and that Simplot had not met its onus to prove the allegation it is clear the circumstances as to why the bunker drain did not occur that day remain unresolved. This is likely to have an ongoing affect on the relationship between Mr Moszko and Simplot in that he is likely to have his work practices closely scrutinised because Simplot no longer trust Mr Moszko’s ability to work unsupervised.

[141] There is also the issue of further allegations that will be put to Mr Moszko should he be reinstated. Whilst I make no assumptions or pre-empt an outcome from an investigation or any disciplinary proceedings that may occur, it is without doubt that Simplot has lost trust in Mr Moszko and that loss of trust when considered with Mr Moszko’s prior work history will likely affect the prospects of a healthy working relationship being re-established.

[142] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider if an order for compensation is appropriate.

Compensation

[143] Section 392 of the Act sets out the criteria to which I must give regard in determining any amount of compensation I might order Simplot to pay Mr Moszko. Section 392 provides as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

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

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

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[144] I will consider each of these criteria in succession below.

The effect of the order on the viability of Simplot’s enterprise

[145] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Length of Mr Moszko’s service

[146] Mr Moszko submit that consideration of length of service would favour the determination of a more generous amount of compensation.

[147] Simplot submit that consideration of Mr Moszko’s length of service would favour the determination of a lesser amount of compensation because it is disappointed that someone with such significant service would be derelict in his duties.

[148] Mr Moszko commenced employment with Simplot on 7 April 1997, he had a considerable length of service. I have taken Mr Moszko’s length of service into consideration in determining the amount of compensation ordered.

Remuneration that Mr Moszko would have received, or would have been likely to receive, if Mr Moszko had not been dismissed

[149] Mr Moszko’s gross earnings per week at the time of his dismissal were $1967.99. 8 He submits had he not been dismissed his employment would have been likely to continue indefinitely or at the very least for further period of six months.

[150] Simplot submit that it may be presumed that Mr Moszko’s employment would have continued for some time however they submit that it should be noted further matters alleging that he had failed in his obligation to perform his duties on 15 and 16 November 2020 would need to be investigated. Simplot submit it is possible if he had continued in his employment he would have been terminated by the end of November 2020.

[151] Simplot further submit it had only been a matter of months since Mr Moszko’s previous Second and Final Warning. Therefore, Simplot submit his employment would not have extended beyond a period of three months.

[152] Mr Moszko certainly did not have an unblemished employment record. In the 10 months prior to his dismissal he had been issued with a First Written Warning and Second and Final Written Warning. If Mr Moszko had not been dismissed he still would have had to answer to the events of 15 and 16 November 2020. Whilst I make no assumptions or pre-empt the outcome of any such investigation given the status of the relationship I am not persuaded that Mr Moszko’s employment with Simplot would have any longevity. It is likely Mr Moszko’s would have remained in his employment the next four months. Mr Moszko’s gross earnings during that period would have been $31,487.84.

Efforts of Mr Moszko to mitigate the loss suffered by Mr Moszko because of the dismissal

[153] I make no discount for failure to mitigate, as Mr Moszko found new employment almost immediately.

Amount of remuneration earned by Mr Moszko from employment or other work during the period between the dismissal and the making of the order for compensation

[154] Mr Moszko’s evidence is that he had an estimated total earnings as at 10 February 2021 of $14,878.83 since his dismissal.

[155] That evidence is not challenged by Simplot.

[156] Mr Moszko’s average earnings from the time of his dismissal were $1482.00 gross per week. Mr Moszko had ongoing employment with Zam Haulage and there is no evidence to suggest that he would not have continued to be employed by them up and until the making of an order for compensation. It is therefore estimated that Mr Moszko would have likely earned a further amount totalling $7410.00.

Amount of income reasonably likely to be so earned by Mr Moszko during the period between the making of the order for compensation and the actual compensation

[157] I am satisfied that the amount of income reasonably likely to be earned by Mr Moszko between the making of the order for compensation and the payment of compensation is $31,487.84.

Any other matter that the FWC considers relevant.

[158] Mr Moszko submits the Commission should take into account the fact that he has to work additional hours and still earns less money per week than what he was earning at Simplot.

[159] Whilst I acknowledge Mr Moszko’s circumstances he provides no basis for his submission. The test for the Commission to consider is the remuneration earned and not how an individual came to obtain that remuneration.

Conclusion

[160] I have estimated the remuneration Mr Moszko would have received, or would have been likely to have received, if Simplot had not terminated his employment to be $31,487.84 on the basis of my finding that Mr Moszko would likely have remained in employment for a further period of four months.

[161] I have found that the amount of remuneration earned or was likely to be earned by Mr Moszko from the date of dismissal was $22,288.83.

[162] I do not consider it appropriate to deduct an amount for contingencies or misconduct.

[163] I consider an order for compensation in this matter is appropriate. Simplot must pay to Mr Moszko the amount of $9,199.01, plus Mr Moszko’s superannuation entitlements, less appropriate taxation by law. The amount of compensation that I have determined is less than the compensation cap imposed by s.392(6) of the Act. It is not an amount that is clearly excessive or inadequate. The compensation order will be made payable within 14 days of this decision.

[164] An order 9 for the payment of compensation will be issued separately.

COMMISSIONER

Appearances:

G Miller of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
I Dixon of Ai Group

Hearing details:

2021.
Melbourne (by video link via Microsoft Teams):
March 18, 19.

Final written submissions:

Applicant: 16 April 2021
Respondent: 30 April 2021
Applicant: 12 May 2021

Printed by authority of the Commonwealth Government Printer

1 See Applicant closing submissions, 16 April 2021 at [115]

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

3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

4 Ibid

5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685

6 Edwards v Justice Giudice [1999] FCA 1836, [7]

7 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) [23] - [24]

8 Exhibit A1 Witness Statement of Wally Moszko at Attachment WM-7

9 PR733481

Wally Moszko v Simplot Australia Pty Ltd

[2021] FWC 2404

4 SEPTEMBER 2021

DECISION

Was the dismissal harsh, unjust or unreasonable?

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