| [2016] FWC 7095 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Otto Pirko and Nono Bintoro
v
Toll Holdings Ltd T/A Toll Priority
(U2016/7326 & U2016/7329)
COMMISSIONER CAMBRIDGE |
SYDNEY, 7 OCTOBER 2016 |
Applications for unfair dismissal remedy - alleged serious safety breach - actual conduct of applicants misconstrued and exaggerated - inconsistent treatment - no valid reason for dismissals - dismissals harsh, unjust and unreasonable - reinstatements Ordered.
[1] This Decision is made in respect of two applications for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The applications were lodged at Sydney on 31 May 2016. The applications were made by Otto Pirko and Nono Bintoro (the applicants) and the respondent employer is Toll Holdings Ltd T/A Toll Priority (ACN: 25 006 592 089) (the employer or Toll).
[2] The applications indicated that the date that the applicants’ dismissals took effect was 24 May 2016. Consequently, the applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matters were not resolved at conciliation, and they have proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 12 and 13 September 2016.
[4] Prior to the Hearing, the applicants had been represented by the Transport Workers’ Union (the TWU). However, Mr C Santone, lawyer from Santone Lawyers, appeared for the applicants at the commencement of the Hearing. In the absence of any objection, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Further, the Commission formally joined the two applications, and the Hearing proceeded on the basis that both matters would be heard and determined together.
[5] At the Hearing, Mr Santone called both of the applicants to provide evidence as witnesses, and he called one further witness to provide evidence in support of the unfair dismissal claims. The employer was represented by its Manager, Group Employee & Industrial Relations, Ms K de Lange. Ms de Lange called a total of three witnesses who provided evidence on behalf of the employer.
[6] Each of the applicants had been long serving employees who had been engaged at the employer’s transport depot located in the Sydney suburb of Erskineville. Each of the applicants had been employed by previous operators of the Erskineville site when it was taken over by Toll in 2008. The applicant, Mr Pirko, had worked at the Erskineville site for 16 years while the applicant, Mr Bintoro, had worked at that site for 20 years.
[7] Toll is an international transportation and logistics company with operations in road, rail, sea, air and warehousing. Toll conducts various business units in Australia with principle activities which include domestic and international freight and distribution, freight forwarding by rail, road, sea and air, warehousing, storage and distribution, end-to-end supply chain management, and business logistics solutions. Toll has many thousands of employees engaged in its Australian business operations.
[8] The applicant, Mr Pirko, worked as a driver of an eight tonne rigid, general freight truck. The applicant, Mr Bintoro worked as a forklift driver and relevantly, he regularly loaded freight onto the truck driven by Mr Pirko.
[9] On the evening of 18 April 2016, Mr Bintoro, the forklift driver, had completed the loading of freight onto the truck driven by Mr Pirko when Mr Pirko asked him if he could help him fix a problem that had developed with the wheels that suspend the flexible, heavy vinyl side curtain of the truck. Two of the curtain roller wheels had been dislodged from the track or rail in which they would ordinarily run. Mr Pirko asked Mr Bintoro to use the forklift to lift Mr Pirko up to a height where he could relocate the dislodged curtain roller wheels.
[10] Initially, Mr Bintoro refused to help Mr Pirko with the relocation of the dislodged curtain roller wheels because he was too busy loading other vehicles. However, Mr Bintoro noticed a nearby metal cage of the type usually used to hold delivery satchels and referred to as a satchel cage. Mr Bintoro picked up the satchel cage with the forklift and took it back to Mr Pirko so that he could climb into it, and then be lifted up to a height where he could reach the dislodged curtain roller wheels.
[11] Mr Pirko climbed into the satchel cage and Mr Bintoro commenced to lift the cage so that Mr Pirko could reach the dislodged curtain roller wheels. As Mr Bintoro lifted the satchel cage with Mr Pirko in it, the site pm Operations Manager, Mr Croker, noticed what was happening and he called out to the two men to stop the lifting operation, and to return the satchel cage and Mr Pirko to the ground.
[12] Mr Croker admonished the two men for engaging in an unsafe act which was in breach of a safety rule. Mr Croker told the two men that he would be reporting the incident and that there would be further discussion about the matter on the following day. Mr Croker instructed Mr Bintoro to take the satchel cage away and to continue other forklift driving activities. Mr Croker and Mr Pirko further examined the curtain of the truck. It appeared that the truck was unroadworthy because of the dislodged roller wheels. However, after some manipulation of a supporting poll, Mr Croker and Mr Pirko decided that the truck could be driven, and Mr Pirko then completed the delivery using the truck with the dislodged curtain roller wheels.
[13] On or about 20 April, the applicants were suspended from duty with pay whilst Toll undertook an investigation into the incident involving Mr Bintoro lifting Mr Pirko in a satchel cage (the satchel cage incident). An investigation was undertaken by Toll’s relevant safety manager. As part of the investigation, the applicants and Mr Croker were interviewed and with the assistance of the TWU, each of the applicants provided written statements regarding the satchel cage incident. Subsequently, a report about the satchel cage incident was provided to more Senior Operations and Human Resource Managers at Toll.
[14] The relevant Senior Operations and Human Resource Managers formed the view that Mr Pirko and Mr Bintoro had wilfully engaged in extremely unsafe behaviours during the satchel cage incident. The written and verbal responses provided by the applicants together with an assessment of other relevant employment related factors were considered. The relevant Senior Operations and Human Resource Managers recommended that the employment of the applicants be terminated for a serious safety breach. Following some further investigation, this recommendation was endorsed by Toll’s General Manager Operations and the National Safety Manager.
[15] On 24 May 2016, the applicants were called to a further meeting at the Erskineville site at which time they were advised of Toll’s decision to terminate their employment as a result of conduct associated with the satchel cage incident. Each of the applicants was provided with a letter of dismissal which set out the basis for the termination of employment. Relevantly, the letters of dismissal advised, inter alia, that each of the applicants had intentionally engaged in an unsafe act which involved either, raising a co-worker, or being at a height of approximately 3 metres, in an unsecured cage, without appropriate harness or fall restraint.
[16] At the time of dismissal, each of the applicants was paid all accrued entitlements together with five weeks pay in lieu of notice. Following the dismissals, the applicant Mr Pirko has looked for other employment and he had obtained some casual work which provided considerably less remuneration, while the applicant, Mr Bintoro, had obtained slightly increased hours of work with his on-going second employer and he had not actively sought other employment.
[17] Mr Santone made verbal submissions on behalf of the applicants in addition to written outlines of submissions which had been filed by the TWU.
[18] Mr Santone commenced his submissions by referring to the evidence of the long and exemplary service records of the applicants. Mr Santone noted that Mr Pirko had 16 years of service during which time he had not received any formal written warning. Further, according to the submissions made by Mr Santone, Mr Bintoro had 20 years of exemplary service.
[19] In respect to the satchel cage incident, Mr Santone submitted that the evidence established that there was a very different understanding between the workers engaged on the floor as compared to management, about events such as the satchel cage incident. In this regard, Mr Santone noted that there was evidence that a common practice had developed, particularly on the weekends, which involved employees being lifted by, in some cases, forklift tines, so as to relocate dislodged curtain roller wheels. Mr Santone submitted that there was essentially uncontested evidence that a weekend manager actually instructed employees including Mr Pirko, to lift him whilst he stood on the tines of a forklift so that he could repair dislodged curtain roller wheels. Further, Mr Santone referred to evidence of other incidents involving employees being lifted by forklifts at the Erskineville site.
[20] It was further submitted by Mr Santone that the satchel cage was fenced on three sides to a height of 1.5 metres, and that at no stage would it have been lifted to a height of 3 metres, and that in fact it never went beyond about 1.25 metres. Mr Santone submitted that a proper assessment of the satchel cage incident meant that there was not a very serious risk of injury and that it was something that was not a “sackable offence”.
[21] Mr Santone submitted that there had been a complete fabrication of the seriousness of the satchel cage incident as it was clearly wrong to suggest that the satchel cage had been lifted to a height of 3 metres. It was further submitted by Mr Santone that the satchel cage was only lifted to about 1.25 metres, and that the relevant code of practice did not require a safety harness unless a person was elevated above 2 metres.
[22] Mr Santone also submitted that the applicants were two men who had not acted dishonestly or deceitfully. Mr Santone said that the satchel cage incident had occurred in the open and in clear view of other employees. Further, Mr Santone submitted that the employer had not properly taken into account the long, exemplary employment history of the applicants.
[23] In further submissions, Mr Santone noted that the applicants had showed immediate remorse when they were admonished for their actions. Mr Santone submitted that in the circumstances there wasn’t a valid reason for the dismissals of the applicants. Mr Santone said that the dismissals of the applicants were for a reason that was blown out of all proportion and the dismissals were certainly harsh and unjust. Mr Santone urged that the applicants be provided with a remedy of reinstatement for their unfair dismissals, as it was a viable option in the circumstances.
[24] Ms de Lange, who appeared for Toll, relied upon a written outline of submissions which she supplemented with oral submissions.
[25] Ms de Lange commenced her submissions by stating that WorkSafe Australia data established that 50% of all fatalities in Australia for a period of over a year, related to falls of 3 metres or less. Ms de Lange submitted that the decision to terminate the applicants arose from their wilful act to engage in what amounted to a serious breach of safe work procedure.
[26] Ms de Lange made submissions which focused upon particular aspects of the satchel cage incident of 18 April. Ms de Lange submitted that it was safe to assume that despite the contested evidence, the satchel cage had been lifted to a height of around 2 metres. Ms de Lange said that at this height of 2 metres, it was not right to suggest that a fall could not result in any injury. Further, Ms de Lange made submissions about the training that the applicants had received about working safely. In this regard, Ms de Lange stated that the applicant, Mr Bintoro, had received relevant training and she acknowledged that Mr Pirko may not have received that particular training. However, according to Ms de Lange, there was a multitude of posters and signage and other information in the workplace which had been observed by both applicants.
[27] In further submissions Ms de Lange stressed that the applicants had acted wilfully and deliberately in an unsafe manner. Ms de Lange rejected that time pressure involving the requirement for deliveries could in some way excuse the applicants’ actions. Ms de Lange said that time pressure was an incident of the modern workplace, and could not be used as a reason for cutting corners and ignoring safety.
[28] The submissions made by Ms de Lange also asserted that the satchel cage was an entirely inappropriate means for lifting humans, as it lacked the appropriate safety harness and it was not secured to the forklift. Ms de Lange stressed that Toll had made a conscious decision not to have personnel lifting cages at its sites as they thought they would completely eliminate the risk associated with falls from height.
[29] Ms de Lange also submitted that Toll had conducted a proper and thorough investigation into all aspects of the satchel cage incident. Ms de Lange stressed that at no stage during the investigation process did the applicants ever mention that they had only been lifted to a height of 1.2 metres. Further, Ms de Lange submitted that Toll had investigated the suggestion that there was widespread use of forklifts for lifting people and had formed the view that if such unsafe practices had occurred, that had not happened for about the past 10 years.
[30] The submissions made by Ms de Lange referred to the various factors contained in s. 387 of the Act. Ms de Lange said that there was clear valid reason for the dismissal of the applicants involving their conduct during the satchel cage incident. Ms de Lange said that the reason for the dismissals of the applicants did not involve some capricious, fanciful or spiteful factor. Ms de Lange submitted that the reason for the dismissals was based upon the applicants’ deliberate behaviour which was inconsistent with the continuation of the contract of employment. Ms de Lange said that the applicants’ actions created a serious risk to the health and safety of themselves and other employees, and this represented valid reason for their dismissals.
[31] Further, Ms de Lange noted that various other factors mentioned in s. 387 of the Act which related to the procedural aspects surrounding the dismissals of the applicants, was not subject to challenge. Ms de Lange submitted that the claims for unfair dismissal should be dismissed.
[32] Ms de Lange made a further, alternative submission which contemplated that if the applications were not dismissed, reinstatement would not be feasible or practicable. Ms de Lange said that Toll held serious concerns regarding the on-going well-being and safety of other employees if the applicants were returned to the workplace.
[33] In conclusion, Ms de Lange submitted that the applicants had been dismissed for valid reason and they had been afforded ample opportunity to respond to allegations that their conduct represented a serious contravention of known safety rules. Ms de Lange reiterated that the actions of the applicants manifested in the breakdown of trust and confidence necessary to maintain the employment relationship. Ms de Lange returned to her primary submission and she urged the Commission to dismiss the applications.
[34] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[35] In this instance, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissals of the applicants were harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
387 (a) - Valid reason for the dismissal related to capacity or conduct
[36] The reason for the dismissals of the applicants was set out in letters of dismissal dated 24 May 2016, 1 and provided to each of the applicants on that day. These letters were similar but understandably, not identical. However, for practical purposes the letters set out certain factual findings regarding the satchel cage incident of 18 April, which represented the reason for the dismissals of the applicants.
[37] The letters of dismissal include a fundamental and important factual error. Relevantly, each of the letters state that the satchel cage incident involved lifting an employee “at a height of approximately three (3) metres without an appropriate harness or fall restraint…” Each letter then describes this incident as “a serious safety breach.”
[38] If the satchel cage incident did involve the lifting of Mr Pirko to a height of approximately 3 metres it may have represented a serious safety breach. However, the evidence has clearly established that the height at which Mr Pirko would have been lifted to enable him to relocate the curtain roller wheels would not have been approximately 3 metres. The height of the top of the truck was measured at 4 metres. Therefore, it would have been plainly impractical for Mr Pirko to have been lifted 3 metres, which would have meant that he would have had to squat or bend down to relocate the curtain roller wheels.
[39] There was considerable contest about the precise height of the lift of the satchel cage. The applicants suggested that the satchel cage would be lifted approximately 1.2 metres in order to allow for Mr Pirko to reach up and relocate the curtain roller wheels. At the Hearing, Toll acknowledged that there was impracticality with a lift of 3 metres, and instead suggested that a height of approximately 2 metres would have been realistic. A careful and balanced evaluation of all of the evidence has established that the satchel cage would need to be lifted to approximately 1.75 metres in order to allow a man of Mr Pirko’s height, (178cm) 2 to conveniently reach up to relocate the curtain roller wheels.
[40] The evidence provided by witnesses for Toll confirmed that the height of the lift involved in the satchel cage incident was an important consideration, 3 a major consideration,4 and a relevant factor to make sure that you get it right.5 One of the managers who was involved in recommending the dismissals of the applicants gave evidence that she believed that the satchel cage incident involved a lift of approximately 3 metres in height.6 Another of the relevant managers believed the lift height to have been approximately 2 metres.7 The inaccuracy in establishing, with some reasonable degree of precision, the height involved in the satchel cage incident meant that what was acknowledged to be an important, major consideration was erroneously exaggerated to the level of approximately 3 metres.
[41] The erroneous exaggeration of the height involved in the satchel cage incident was reflective of a broader, general tendency for the consideration of relevant managers to artificially inflate the seriousness of the incident. There can be no doubt that the satchel cage incident involved the applicants adopting an unsafe work practice in an attempt to quickly fix the dislodged curtain roller wheels. However, the satchel cage incident should be properly and realistically evaluated in terms of the gravity/seriousness of the breach of safe working practice.
[42] There was some troubling evidence provided by one of the relevant managers from Toll which demonstrated that the satchel cage incident was not carefully and realistically evaluated, but instead the subject of almost histrionic misconception. In this regard, the proposition was advanced, and subsequently confirmed, that a fall from a height of 2 metres was highly likely to result in death or serious injury. 8
[43] A balanced, objective and realistic evaluation of all of the evidence regarding the satchel cage incident does not support the employer’s conclusion that the applicants engaged in a serious safety breach of such gravity and significance as to provide valid reason for their dismissals. The significant factual error whereby the height of the lift was exaggerated in the minds of some of the relevant managers to almost twice the actual level, would have naturally translated into an artificially elevated assessment of the severity of the incident. The propensity for significant overstatement of the severity of the safety breach was not the only erroneous aspect of the reason for the dismissals.
[44] During the investigation into the satchel cage incident, the applicant, Mr Pirko, was noted to have mentioned that it was a common practice to lift people using forklifts to relocate curtain roller wheels which occasionally became dislodged. The notes that were taken of the interview with Mr Pirko 9 recorded mention of this alleged common practice, but also suggested that the last time that Mr Pirko saw this was 10 years ago.
[45] The issue of whether it was common practice to lift people using forklifts was a matter that raised concern in the minds of Toll’s more senior managers, Mr Joshua Peacock, General Manager Operations, and Ms Bernadette Goulding, then National Safety Manager. When Mr Peacock and Ms Goulding were presented with a recommendation for dismissals of the applicants they requested further information about, inter alia, whether the use of cages to repair curtain malfunctions was a common practice.
[46] Toll’s local managers who were undertaking the investigation into the satchel cage incident, made further inquiries about whether the use of cages to repair curtain malfunctions was a common practice. Unfortunately these investigations were confined to asking other managers, and subsequently Mr Peacock and Ms Goulding were informed that it was not common practice for forklifts to be used for lifting people. Mr Peacock and Ms Goulding then endorsed the recommendation for the dismissals of the applicants.
[47] The applicants presented as credible and believable witnesses, as did one further witness called in support of their claims, Mr James. The evidence provided by these witnesses confirmed that there was occasional use of forklifts for lifting people. In particular, evidence established that a weekend supervisor had directed Mr Pirko to lift him, the supervisor, while he stood on the tines of the forklift and relocated dislodged curtain roller wheels. This event was said to have occurred approximately one year ago. Mr Bintoro also provided evidence that he had similarly seen a driver lifted by another forklift on an unspecified occasion within the last year. Mr James also provided evidence that a couple of months prior to the Hearing, he had witnessed the use of forklifts to lift persons to enable them to gain easier access to the contents of satchel cages.
[48] In fairness to the employer, the evidence about other incidents involving the use of forklifts to lift people only became clear during the Hearing. However, importantly, as neither Mr Peacock nor Ms Goulding gave evidence, the Commission had no evidence from the ultimate decision makers about what impact the true position concerning the common practice of using forklifts to lift people may have had on their decision to dismiss the applicants.
[49] The issue of whether the applicants’ conduct in respect to the satchel cage incident may have been something that could be described as common practice was clearly a matter of concern to the ultimate decision makers. Unfortunately, this issue had not been properly or thoroughly investigated and the ultimate decision makers were provided with what has now been established to be false information. The extent to which forklifts were used for lifting people to repair dislodged curtain roller wheels was encapsulated by the following evidence provided by Mr Pirko during cross-examination when he was asked:
“What could have been the potential outcomes of your actions? --- Usually nothing happened because we used to do this all the time.” 10
[50] There was also evidence which clarified the notation made regarding Mr Pirko having mentioned something about the use of forklifts for lifting people occurring 10 years ago. During the Hearing, it became clear that English was the second language for both Mr Pirko and Mr Bintoro, and on occasions it was necessary to reframe and specify questions in order to clarify answers. Mr Pirko confirmed that the last time that he had seen a personnel cage which was specifically designed for lifting people, was about 10 years ago. This information appeared to have been misconstrued to represent the proposition that the last time that he had seen anyone being lifted by a forklift was 10 years ago.
[51] The evidence has established that the use of forklifts for the lifting of people is a practice that occurs occasionally and in some instances at the direction of management. This revelation would logically invalidate the fundamental reason for the dismissals of the applicants. The prospect that in other circumstances, the conduct for which the applicants were dismissed was performed at the direction of management would constitute such significant inconsistent treatment as to confirm that the reason for dismissal was not a sound, proper, defensible, valid reason for dismissal.
[52] The letters of dismissals also included mentioned that Toll had given consideration to implementing an alternative penalty to dismissal. An alternative to dismissal was apparently ruled out because the applicants had been provided with information and instruction regarding working safely around plant and equipment only weeks earlier.
[53] The evidence revealed that in the case of the applicant, Mr Pirko, he had not received any recent instruction regarding working safely around plant and equipment. It appeared that the particular working arrangements for Mr Pirko meant that he missed out on a toolbox meeting which involved the recently promulgated Rules to Live By safety instructions.
[54] In addition, there was evidence which strongly suggested that there was an obvious practical impediment for compliance with the 3 m clearance zone stipulated by rule number 1 of the Rules to Live By proclamation. As was identified during the Hearing, the 3 m clearance zone rule number 1 of the Rules to Live By appeared to be directly contradicted by that part of the contents of the letters of dismissals which described the “circumstances when a person may be raised in a cage using a forklift.”
[55] Following a careful and balanced consideration of the totality of the evidence that was presented in connection with the reasons for the dismissals of the applicants, those reasons were without proper foundation. The satchel cage incident of 18 April was erroneously exaggerated and elevated to a level of seriousness such that the actual conduct of the applicants did not represent valid reason for dismissal. In particular, upon careful analysis, there can be no finding made that the applicants deliberately flaunted well understood and consistently applied safe work practices in respect to a prohibition on the use of forklifts for the lifting of persons.
[56] Further, the reason for the dismissals of the applicants included various erroneous factual findings in respect to significant aspects of the satchel cage incident and thus could not represent valid reason for the dismissals. Therefore, the dismissals of the applicants were not for valid reason. Consideration of the other elements contained in s. 387 of the Act must also be undertaken.
[57] There was no dispute that the applicants were provided with notification of the reason for their dismissals.
[58] There was no dispute that the applicants were provided with an opportunity to respond to the allegations made against them surrounding the circumstances of the satchel cage incident of 18 April.
[59] There was no dispute that the applicants were not unreasonably refused the assistance of a support person during the various stages of the employer’s investigation and determination into the allegations made against the applicants surrounding the satchel cage incident of 18 April.
[60] This factor has no relevance in this instance.
[61] The size of the employer’s operation was not a factor that impacted upon the determination in this instance.
[62] There was no evidence of any absence of dedicated human resource management specialists or expertise and this factor has not impacted upon the determination in this instance.
[63] The applicants’ long and fundamentally unblemished employment records of approximately 16 and 20 years respectively were matters that Toll said that it had considered.
However, the applicants submitted that Toll did not provide appropriate recognition of their commendable employment records.
[64] On balance and consideration of all of the available evidence, although there was documented mention of consideration of the employment records of the applicants, I have not been persuaded that this consideration was undertaken with genuine conviction. Regrettably, the approach to consideration of the applicants’ age, length of service, and unblemished employment history were matters which manifested more as words contained in standard form letters, rather than issues that were consciously and carefully given serious and compassionate evaluation.
[65] It is also relevant to mention one further aspect of the nature of the safety breach committed by the applicants. The evidence established that satchel cages are similar in appearance to personnel cages. It was therefore surprising that the safety investigation into the satchel cage incident of 18 April, did not identify any contributing factor involving “Inadequate signage or warning systems”. 11 If satchel cages had signs on them which stated something like; “Not to be used for lifting persons” with the accompanying international symbol showing a circled person crossed over with a diagonal bar, then the conduct of the applicants would have involved a very different assessment.
[66] In this matter, the applicants were dismissed for alleged serious safety breach. The safety breach involved the conduct of the applicants during an incident on 18 April 2016 referred to as the satchel cage incident. Upon a detailed analysis of all aspects of the satchel cage incident, the conduct of the applicants did not represent a serious safety breach of such gravity and significance as to provide valid reason for their dismissals.
[67] Regrettably, the employer’s findings in respect to important aspects of the satchel cage incident involved significant factual mistakes. These factual mistakes contributed to a general propensity for various Toll managers to artificially elevate the level of seriousness of the breach of safe working practice that occurred during the satchel cage incident. In addition, the conduct of the applicants, although a clear breach of safe work practice, was conduct that occurred occasionally and in some instances at the direction of management.
[68] Consequently, the substantive reason for the dismissals of the applicants has been held to be invalid.
[69] The dismissals of the applicants were harsh, unjust and unreasonable because they were without valid reason. Consequently, the applications for unfair dismissal remedy have met the legislative requirements and are granted.
[70] The applicants have sought reinstatement as remedy for their unfair dismissals.
[71] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss. 390 - 393) of the Act. Section 390 is immediately relevant to the consideration in this instance, and is in the following terms:
“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.”
[72] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicants. It is well established that reinstatement is the primary remedy for unfair dismissal.
[73] There are various factors which, in the circumstances of this case, operate to strongly support reinstatement. Firstly, various personal factors such as, the age of the applicants, their long employment at the Erskineville site, and their highly commendable employment records, provide sound foundation for re-establishment of the employment relationship. These factors also indicate potential difficulty for obtaining alternative employment. Secondly, the nature of the factual mistakes, the artificial elevation of the seriousness of the satchel cage incident, and the subsequently established common practice element, which represent factors that have ultimately invalidated the reason for the dismissals of the applicants, manifest a plain injustice for the applicants. An injustice of this character will often require rectification in the terms sought by those who have suffered the injustice. Thirdly, the employer is a very large organisation with thousands of employees and its standards of employment practice should be able to accommodate any rectification in the form of reinstatement.
[74] Against these factors which support reinstatement, I recognise the employer’s understandable resistance to reinstatement, particularly in circumstances which involve a breach of safe working practice. As mentioned earlier, the satchel cage incident did involve the applicants engaging in unsafe work practice, albeit not at the level of seriousness erroneously attributed by the employer. This aspect of the matter shall be appropriately reflected in Orders which will ultimately not provide for restoration of all lost pay.
[75] I have decided that reinstatement of the applicants would be appropriate in the circumstances. Further, consequential Orders for maintenance of continuity of employment shall be made. The Parties shall be provided with an opportunity to adduce further evidence and make submissions in respect to the detail of any Orders that should be made to restore lost pay pursuant to subsections 391 (3) and (4) of the Act.
[76] Orders providing for the reinstatement and continuity of employment of the applicants will be issued separately.
[77] Further proceedings regarding the detail of any Orders for lost pay shall be arranged within 21 days from the date of this Decision.
COMMISSIONER
Appearances:
Mr C Santone, solicitor from Santone Lawyers appeared for the applicant.
Ms K de Lange, Manager, Group Employee & Industrial Relations appeared for the employer.
Hearing details:
2016.
Sydney:
September 12, 13.
1 Exhibit 9 - Annexure EC-03.
2 Transcript @ PN230.
3 Transcript @ PN1968.
4 Transcript @ PN2049.
5 Transcript @ PN2270.
6 Transcript @ PN2259, PN2265-2266.
7 Exhibit 8 - paragraph 9.
8 Exhibit 8 - paragraph 11, transcript @ PN2150-2160.
9 Exhibit 7 - Annexure WB-01, @ page 8.
10 Transcript PN462.
11 See Exhibit 7 - Annexure WB-01, @ page 2.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR586053>