[2013] FWC 4201

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel Henderson
v
Bradken Resources Pty Ltd
(U2013/646)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 19 JULY 2013

Application for relief from unfair dismissal; misconduct involving a forklift.

[1] Mr Joel Henderson (the applicant) made an application on 5 March 2013 for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Bradken Resources Pty Ltd (the respondent). The termination took effect on 20 February 2013. The matter was referred to me for determination and a hearing was conducted in Wodonga on 26 June 2013. The applicant was represented by Mr Vroland of the Australian Manufacturing Workers’ Union (AMWU) and the respondent by Mr Powter of the Australian Industry Group (AiG). A further hearing was conducted in Sydney on 12 July 2013 for final submissions, with Mr Terzic of the AMWU appearing for the applicant by telephone.

[2] The following witnesses gave evidence on behalf of the applicant:

[3] The following witnesses gave evidence on behalf of the respondent:

The Evidence

[4] The respondent is primarily engaged in the manufacture of products for the mining and quarrying industries. The Wodonga Foundry (where the applicant was employed) produces a wide range of products that support the mining industry, road transport and general industrial market sectors, as well as railway equipment. There are approximately 200 employees at the Wodonga Foundry, including labourers, welders, forklift drivers and process operators, as well as administrative and managerial staff.

[5] The applicant commenced employment with the respondent in October 2006. He was engaged in the ‘aftercast’ processing area within the ‘Dressing Shop’. The applicant was primarily engaged in forklift duties, though he also performed finishing duties.

[6] Most of the evidence in this matter concerns an incident that took place on the morning of 20 February 2013. According to Ms Hudson she was in the open area immediately adjacent to the Dressing Shop when she witnessed the incident. The applicant was in his forklift and was parked talking to another driver. She heard Mr Rixon (who was also driving a forklift at the time) sound his horn and saw the applicant turn around and look at him. The applicant then moved forward slightly. Mr Rixon then drove his forklift into the back of the applicant's forklift. The applicant was stationary at the time. She thought that Mr Rixon had probably driven into the applicant's forklift by accident. She then saw the applicant put his forklift into reverse and drive into Mr Rixon. There was nothing to prevent the applicant moving forward. Mr Rixon then attempted to lift the applicant's forklift using the tines on his own forklift which caused them to spark and bounce off under the applicant's forklift. Both the applicant and Mr Rixon ‘apparently saw the whole thing as a joke’ and then drove off. Ms Hudson said that she was standing only metres away and clearly saw the whole incident. 1

[7] Ms Hudson brought the incident to the attention of the Leading Hand, who then passed it on to the area supervisor, Mr O'Malley. This happened at around 7:30 am. Ms Hudson described the incident to Mr O'Malley. At around 7:45 am, Ms Hudson was interviewed by Mr O'Malley and Mr Rattray. They asked her to go again through what she had seen and outline the events of the morning. After doing so she drew a diagram as to what happened on the whiteboard in Mr Rattray's office. She agreed to make a statement about what she had witnessed. 2

[8] A short time later, Ms Hudson attended a second meeting with Mr Rattray and Mr O’Malley. In this meeting she was repeatedly asked if she was totally sure as to what she had seen, and to confirm whether in her view the collision between the two forklifts was an accident or whether the two drivers were intentionally hitting each other. She continued to maintain that the actions of both drivers were deliberate ‘and it was not an accident and that in my view the two were being what I call ‘idiots’. She then prepared and signed a statement and left Mr Rattray’s office.

[9] The statement signed by Ms Hudson on the day of the incident (which was attached to Ms Hudson’s statement to the Commission) , included the following:

[10] Ms Hudson’s oral evidence was consistent with both her statements to the Commission and the one she signed on the day of the incident. She was quite clear that the applicant’s forklift was not moving backwards when he was first hit by Mr Rixon’s forklift 4, and that the applicant ‘made a distinctive movement on the gear stick of the forklift, and then proceeded to reverse back into Shane’s [ i.e. Mr Rixon’s] forklift’5 after the initial collision. When asked whether the events that she saw could have been an accident Ms Hudson replied:

[11] Ms Hudson said that the initial collision was accompanied by a distinctive bang, and that both drivers jolted with their forklifts. 7 The impact of the applicant’s forklift reversing into Mr Rixon’s forklift ‘was not as hard as the initial impact because he did not move overly far but it was still enough to knock the pallet that was on there further back against Shane’s forklift, so it was still a fair tap’.8

[12] When asked whether she would have expected the collisions to register with the motion sensors fitted on the forklifts, Ms Hudson replied:

[13] The applicant's version of the incident given in his written statement to the Commission was that he noticed Mr Rixon approaching him from behind. He thought that Mr Rixon was looking for something and might require assistance. He finished his conversation with the other driver and started to reverse backwards towards Mr Rixon to ask him what he needed. As he neared Mr Rixon's forklift he slowed down. However despite this, due partly to the fact that Mr Rixon was driving forward, he misjudged the situation and did not stop in time. In his written statement he said that:

[14] According to the applicant's statement about 20 minutes after the incident he was asked to go and have ‘a chat’ with Mr O'Malley. He recounted the incident as described in his written statement. He admitted some fault for the first collision, however he emphasised that it was a minor collision and that he did not consider that it should really be a big issue. Some time later he was asked to meet with both Mr O'Malley and Mr Rattray. They asked him to go through his story again, and asked him a number of questions. At the end of this interview he was sent home and told to come back again at 9am. He was told that the incident could potentially lead to his termination. 11

[15] The applicant sought some advice from the AMWU. He then attended the meeting at 9 am on Thursday 21 February 2013 with Mr O'Malley and Mr Rattray. He was asked to go through the events of the previous day again. The two managers then left the room but came back shortly thereafter and informed him that what had occurred was a ‘sackable’ offence. After they had spoken to the senior manager on site, Mr Gooding they returned, told him he had been sacked and gave him a brief letter of termination, confirming he had been dismissed for ‘a serious breach of safety’. 12

[16] During his examination-in-chief, the applicant largely reiterated the version of events he gave in his written statement. When asked whether he laughed at the incident he said ‘Oh, you just laugh it off, like, “What the?” and agreed it was ‘a minor incident...nothing to be too concerned about’. 13

[17] During his cross-examination, the applicant agreed that Mr Rixon was using his forklift inappropriately but added ‘that’s his decision. I can’t tell him’. He at first denied that Mr Rixon had tried to tip his forklift.

[18] The applicant then agreed that Mr Rixon had indeed retaliated by driving his forks into him - ‘by trying to lift it, yes’ - in response to his reversing into Mr Rixon’s forklift 15. He agreed that when he was interviewed by management he described the incident as a minor collision and an accident.16 He also agreed that he had been told he could have a representative present.17

[19] In his written statement, Mr Rixon said that on the morning of 20 February 2013 he was asked to move some pallet racking. He drove around a corner on his forklift and turned left into a concrete driveway area.

[20] During his examination-in-chief Mr Rixon denied that he intentionally hit the applicant with his forklift. 19 However when he was told that Ms Hudson’s evidence was that he had attempted to lift the applicant’s forklift with the tines on his forklift he agreed.20 His explanation for doing so was that he had ‘just had a brain snap’ in reaction to the incident.21 He said he had not seen any sparks but it was possible that there were sparks from the incident.22

[21] During his cross-examination, after having been told of Ms Hudson’s evidence, Mr Rixon conceded that he ‘might have’ misjudged the situation and his forklift might have hit Mr Henderson’s first. 23 He also said that it was possible that Mr Henderson had then retaliated and reversed back into his forklift.24 At the end of his cross-examination he agreed that there had not just been ‘a collision of a minor nature.’25

[22] When Mr Rixon was re-examined he said he was quite sure that Mr Henderson had not engaged reverse and attempted to retaliate by ramming his forklift into Mr Rixon’s after the initial collision and before he attempted to lift Mr Henderson’s forklift. 26

[23] Mr Rattray's statement described the investigation be conducted into the incident on 20 February 2013. After Mr O'Malley alerted him to the incident, they both met with Ms Hudson who described in some detail her version of what had occurred. According to Mr Rattray’s statement, Ms Hudson said that she had been only metres away and had a full view of what Mr Rixon and Mr Henderson were doing. Ms Hudson drew a diagram of what had happened on the office whiteboard. 27

[24] Mr Rattray then interviewed the applicant in the presence of Mr O'Malley. The applicant was advised that he could bring a support person. According to Mr Rattray's statement the applicant told him that he had not known that Mr Rixon was there and he headed back into him. The applicant said that he did not think it was a big issue. However Mr Rattray told him that it was a very serious issue, that he was to be suspended on full pay pending further investigation, and that his termination was a possible outcome of the process. He was advised to obtain union representation and there would be a further meeting the next morning. 28

[25] According to Mr Rattray's statement, he then met again with Ms Hudson to make sure that she was certain as to the events that she was claiming had occurred. They proceeded to draft out a statement of her version of the events, which she then signed. 29

[26] According to Mr Rattray’s statement, the second meeting with the applicant occurred around 9am on 21 February 2013. The applicant indicated that he would attend himself and informed Mr Rattray that his union representative was not available. Mr Rattray asked if he still wanted to proceed with the meeting or wait till the union representative was available. The applicant indicated that he wanted to continue with the meeting. The applicant said that it was an accident and was not ‘a major thing’. Mr Rattray asked the applicant to leave the room. He and Mr O'Malley held a discussion and decided that they accepted Ms Hudson's version of events. It was a serious safety breach, and the two managers decided that the termination of the applicant's employment was warranted. 30

[27] The applicant was then called back into the room and told that the managers did not believe that it was an accident, and that he intentionally used his forklift to hit another. He was told that he was summarily dismissed and was given a letter of termination. 31

[28] Mr Rattray also gave evidence concerning the applicant's prior work performance. According to the applicant's employment file he had received a number of warnings. These included a Final Written Warning issued on 6 April 2009 for leaving the workplace without permission after an argument with his leading hand. 32 He also received another Final Written Warning on 14 April 2010 for striking a vending machine in the canteen.33 Finally a note was put on his file indicating that he had been sent home on 11 July 2012 for being on a forklift under the influence of alcohol.34 According to the applicant, he did not receive a warning for this last incident. He came into work at 5.55am after having lost his driver’s licence the previous night, having recorded 0.172 in a random breathalyser test conducted by the police. After getting on his forklift, and driving for a brief period, he realised he was not feeling well enough to drive. He spoke to his supervisor and left work35.

[29] Mr Vroland tendered detailed impact reports that show recordings of data sent from sensors fitted to the forklifts. 36 Mr O’Malley described these reports as measuring in G-force any collisions or any maximum swing of a forklift. Turning a forklift very quickly could register anything up to 1.2 Gs. A normal collision would be up to around 0.6.37

[30] Mr O’Malley said in his cross-examination that he checked the detailed impact report for the applicant’s and Mr Rixon’s forklifts to confirm that there had been a collision at the time reported by Ms Hudson. 38 He pointed out during the cross-examination that at 7:17am on 20 February 2013 there was a 0.7 G left side impact and a 0.8 G directional impact on Mr Henderson’s forklift. He said that whenever you have a collision you have two readings, a side impact and a directional impact.39

[31] Mr Vroland said to Mr O'Malley

[32] Mr Vroland then drew Mr O'Malley's attention to another entry which referred to an impact from the rear. 41

[33] Mr O'Malley agreed that the impact register highlighted only one incident at 7.17. He reiterated that he had only reviewed the document to see if the forklifts had collided. 43

[34] Mr O'Malley agreed that it was not at all unusual for minor collisions to occur with the forklifts. 44

Findings

[35] I did not find Mr Rixon a credible witness. I was unimpressed with the way in which he excluded from his witness statement any mention of his attempt to lift the applicant’s forklift with his tines. Moreover his oral evidence was vague and often contradictory. I have given no weight to his evidence.

[36] Ms Hudson was, by contrast, a very credible witness. She had no particular interest in reporting the incident (beyond a reasonable concern for her and others’ safety) and must be considered in effect an independent witness. She had a clear and unimpeded view of what occurred. She gave a very detailed and precise account of what she saw. She did so straight after the event, both orally and in writing. She has been entirely consistent in her version of events and was unwavering during cross examination. I do not consider that her relative youth or inexperience would have negatively affected her ability to understand what she was seeing.

[37] I attach less weight to the applicant’s evidence than Ms Hudson’s. He has an obvious interest in downplaying the incident and presenting it all as a minor accident. His credibility was not assisted by his blasé attitude to Mr Rixon’s attempt to use the tines on his forklift to lift Mr Henderson’s forklift.

[38] I do not give much significance to the detailed impact register. It appears to show that the applicant’s forklift was involved in a collision around the time that Ms Hudson says it occurred. Of course, none of the witnesses denied that a collision occurred. Mr Vroland made much of the fact that the register could be read as suggesting that the collision was to the front of the applicant’s forklift. However even on the applicant’s version he hit Mr Rixon’s forklift while he was reversing. The register only appears to record one collision. However, Ms Hudson’s evidence was that she would have only expected the initial collision to register. The second two collisions between the forklifts would probably not have registered, presumably because of the limited force involved.

[39] In conclusion, I find, on the balance of probabilities, that Ms Hudson’s version of the events of the morning of 20 February 2013 was correct. In particular, I find that Mr Rixon drove his forklift into Mr Henderson’s forklift (probably by accident); Mr Henderson then deliberately engaged reverse and drove his forklift back into Mr Rixon. Mr Rixon then moved forward and tried to lift Mr Henderson’s forklift with his tines. Both Mr Henderson and Mr Rixon treated the whole incident as a joke. This was not simply a case of a ‘minor collision’. Rather both men were engaged in ‘skylarking’ in a manner completely at odds with the safe operation of a forklift.

Was the dismissal harsh, unjust or unreasonable?

[40] It is not in contention that the applicant was protected from unfair dismissal at the time his employment was terminated. The Small Business Fair Dismissal Code has no application, and the dismissal was not a case of genuine redundancy. The issue to be determined therefore is whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides that in answering this question I must take into account:

[41] Forklifts are potentially dangerous pieces of heavy equipment and should be driven in a safe and careful manner at all times. Forklift related accidents can and do lead to fatalities. Mr Terzic properly conceded on the final day of hearing that ‘if there was a finding that there was deliberate skylarking or dangerous operation in the use of a forklift by the applicant, that would be sufficient reason or a valid reason for the termination of the applicant.’ I agree. Having found that the applicant did indeed engage in skylarking on his forklift I find that there was a valid reason for his dismissal.

[42] The applicant was told the allegations against him at his meeting with Mr O’Malley and Mr Rattray on 20 February 2013. He was told the matter was potentially serious and could lead to his dismissal. He was given the opportunity to have a representative present, but chose to continue without one. The matters under (e) (f) and (g) have no relevance in the circumstances of this case.

[43] I have had regard to the length of the applicant’s service, and his prior performance record. Given that he had received two written warnings he could hardly be said to have had an unblemished record. I have also taken into account his learning difficulties and the relative difficulty in obtaining alternative employment in the Wodonga area. However I do not consider that these make the termination harsh, given the serious nature of the misconduct engaged in by the applicant.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D Vroland and Mr B Terzic from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for Mr Henderson

Mr A Powter from the Australian Industry Group for Bradken Industrial

Hearing details:

2013

Wodonga

26 June

Sydney

12 July 2013

 1   Exhibit B1, paragraphs 9-15

 2   Exhibit B1, paragraph 29

 3  Exhibit B1, attachment A

 4   PN772, 812

 5   PN767

 6   PN769

 7   PN814

 8   PN829

 9   PN839

 10   Exhibit H2, paragraphs 31-38

 11   Exhibit H2, paragraphs 41-45

 12   Exhibit H2, paragraphs 46-48, Exhibit B3, attachment M

 13   PN287-9

 14   PN658-675

 15   PN679

 16   PN693-4

 17   PN702

 18   Exhibit H1, paragraphs 5-15

 19   PN121-2

 20   PN122-3

 21   PN124-5

 22   PN128-9

 23   PN186

 24   PN187

 25   PN204

 26   PN210-1

 27   Exhibit B3, paragraph 29

 28   Exhibit B3, paragraph 31

 29   Exhibit B3, paragraph 32, and attachment L

 30   Exhibit B3, paragraph 35

 31   Exhibit B3, paragraph 42

 32   Exhibit B3, paragraph 40, and attachment I

 33   Exhibit B3, attachment J

 34   Exhibit B3, attachment K

 35   PN 355-372

 36   Exhibit H3

 37   PN961-964

 38   PN976-8

 39   PN984-986, Exhibit H3, page 16

 40   PN987-8

 41   PN989

 42   PN990

 43   PN996

 44   PN1025

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