DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andy Wong
v
Catalent Australia Pty Ltd
(U2016/9354)

Application for relief from unfair dismissal - valid reason – dismissal was fair.

[1] On 12 October 2016 I gave a decision in transcript which is now repeated below.

[2] Before I can consider any application for an unfair dismissal remedy, section 396 of the Fair Work Act 2009 requires that the Commission must decide certain matters before proceeding to a consideration of merit. 

[3] Section 396 is in the following terms:

“The Fair Work Commission must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.”

[4] Each of the parties in this matter has put propositions to me as follows:  (1) That the application was made within time; (2) that the applicant was protected from unfair dismissal;  (3) that the dismissal or the Small Business Fair Dismissal Code is not a relevant matter or is not relevant in this matter, and (4) that the dismissal was not a case of genuine redundancy.

[5] For the purposes of section 396, I decide as follows.  (1) The application was made within the period required in subsection 394(2).  (2) The applicant was protected from unfair dismissal within the meaning of section 382 and 383 and 384 of the Fair Work Act.  (3) That the Small Business Fair Dismissal Code does not apply in the present circumstances given that the employer is not a small business, and (4) that the dismissal of the applicant in the present matter was not a case of a genuine redundancy.

[6] The issue of redundancy never arose, dismissal was because of a specific course of conduct engaged by the applicant.  Having decided the initial matters under section 396, I can now turn to section 387 of the Fair Work Act.  That section reads:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[7] I now turn to dealing with each of the issues arising under section 387 and the first is in paragraph (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).  The word "valid" has its normal meaning.  In Selvachandran, 1 the court took the normal meaning from the Macquarie Dictionary and in Selvachandran it was determined that "valid" meant sound, defensible or well founded.

[8] The Selvachandran decision was made in the context of precursor legislation to the Fair Work Act but decisions of the courts and the Commission over a number of years have followed the approach adopted in Selvachandran in relation to the meaning of the word "valid".  The reason for dismissal in this matter was identified in the letter of dismissal, which is to be found at attachment one to exhibit A1 and the reason for dismissal was identified as being "A severe breach of our GMP processes and quality policies" and also the reason for dismissal identified that it was part of a process where "The fact that you were previously issued with a final warning for a serious breach of GMP policies in June 2015 was part of the reason for dismissal".

[9] The "severe breach of our GMP processes and quality policies" was identified in the letter of dismissal in the following language "Being negligent in that you had signed that you had collected and checked the materials for the packing of this batch and yet you used the wrong materials for the batch".  The evidence in this matter given by Mr Wong, the applicant, was that he had read the instructions for the job that he was to do but that he missed two steps out of those instructions.

[10] The evidence of Mr Cormack, Mr Cartwright and Mr Reddigudem was that Mr Wong said he had failed to read the instructions.  The evidence in this matter is clear that Mr Wong signed that he had collected and checked the materials and that evidence is to be found at page three of attachment AC1 to exhibit R3 and on page three of attachment AC1 to exhibit R3, appears a box of text with a place for an operator's initials and date and the box is titled Checks Before Starting and has three lines of text and for each line of text an operator is to initial and date.

[11] The first line of text is "Packing materials assigned to the batch checked and correct".  Second line is "Labels (and other printed components) checked and correct" and the third line is "Product obtained for packing checked and correct".  Against each of those three descriptors appears the initials of Mr Wong with the date 22/06/16.  That provides explicit evidence that Mr Wong signed that he had collected and checked the materials for the job that he was to do.

[12] The admission from Mr Wong in this matter is that he did not comply with the instructions for the job.  Whether Mr Wong read the shop floor instructions but didn't comply with it or whether Mr Wong never read the shop floor instructions and presumed that he was doing the job properly, the result is the same.  Mr Wong admits that he carried out the packing job in a manner completely inconsistent with the instructions for that job.

[13] The company puts Mr Wong's conduct as negligence resulting in a serious breach of GMP and quality and it puts it in that way in the letter of termination.  Whether negligence by commission or negligence by omission, the result of the negligence is still a serious breach of GMP and quality.  The negligent conduct of Mr Wong occurred in the context of him being on a final warning for being "Grossly negligent in the preparation" of a batch of a particular product in June 2015.

[14] The terms of the final warning letter are attached to exhibit A1 and constitute attachment two to exhibit A1.  The Commission takes into account the evidence of Mr Wong about the size of the batch of papers which contain the specific shop floor instructions for his job and the Commission also takes into account the detailed evidence of Mr Cormack about the same batch of papers.

[15] What is clear is that the shop floor instructions for the particular job that Mr Wong had to carry out are expressed in simple English in a clear sequence.  The shop floor instructions are set out on the first page comprising attachment AC1 to exhibit R3 and the shop floor instructions read as follows:

"(1) Ensure area is clear of all materials from previous job. 
(2) Count sample into weighing pan of scale.
(3) Weigh required quantity. 
(4) If product is coated, inspect all tablets across sorting line passing directly into poly bulk bag and seal bag by tying. 
(5) Place poly bag with tablets into foil bulk bag. 
(6) Place one 250 gram silica gel sachet between poly bulk bag and foil bulk bag. 
(7) Seal foil bulk bag using heat sealer. 
(8) Place both bulk bags with tablets into bulk carton and apply bulk label to bulk carton.  (9) Seal carton and stack on pallet".

[16] Immediately after the specific shop floor instructions, there are two notations, each commencing with the letters "NB" and the first NB says "Bulk label to show batch number and date of manufacture" and the second NB is "No shipper is to be delivered with more than the requested amount.  Any additional quantity must be added to another shipper".  As the first instruction makes clear, Mr Wong had to ensure that the booth he was working in was clear of all product from any previous job and clear of all labelling from previous jobs and was thoroughly cleaned for the job that he was about to start.

[17] Mr Wong's own evidence was that once he cleared the booth, he then had to take into the booth the product to be packaged and the packaging materials.  The negligent actions of Mr Wong cannot be attributed to anyone else as no-one else was involved in either the cleaning or the gathering of the product and the packaging.  Mr Wong was solely responsible for what he did and Mr Wong was solely responsible for what he did not do.

[18] Mr Wong described his negligent conduct as an honest mistake.  I accept this in the sense that there is nothing to suggest that Mr Wong set out to deliberately mis-package the product.  However, describing the negligent conduct as an honest mistake does not lessen the seriousness of the negligent conduct.  I do not accept evidence from Mr Wong that he was under pressure to work quickly and that this led him to error.

[19] I accept the evidence of Mr Reddigudem that Mr Wong took a much longer time than was necessary to do the cleaning job.  As Mr Reddigudem's evidence made clear, Mr Wong took from 8.00 am to 9.45 am to clear the booth and get ready for his job.  I accept the evidence of Mr Reddigudem that he never expressed any concern to Mr Wong over the amount of time taken in the cleaning and preparation of the booth.  The very length of the cleaning and preparation time makes the negligent conduct of Mr Wong even more obvious and even more serious.

[20] I accept evidence that Mr Wong had received notice the evening before that his aunty had died and that on the morning of the incident that he was upset.  I accept the evidence from the company that they took this into account in their consideration of his conduct and in considering to dismiss him.  Weighing all of this together leads to the conclusion that the reason for the dismissal was a valid reason relating to the conduct of Mr Wong.

[21] I turn now to other elements of section 387.  I'll deal with section 387(b), (c) and (f) together.  Each of these matters which must be taken into account all weigh in favour of the respondent.  Mr Wong was notified of the reason for his dismissal.  Mr Wong was given an opportunity to respond to any reason and to the reasons which related to his conduct and it is clear that the size of the employer's enterprise had a positive impact on the procedures followed by the employer in effecting the dismissal.  Thus each of these factors weigh in favour of a finding that the dismissal would be fair.

[22] I deal with the criteria raised in section 387(d), (e) and (g) on the basis that none are relevant.  There was no unreasonable refusal by the employer to allow Mr Wong to have the support person present so section 387(d) is not a relevant matter to take into account.  The dismissal did not relate to unsatisfactory performance.  It was a specific conduct issue and on that basis it wasn't an issue where Mr Wong had to be warned about his conduct, and there is clearly dedicated human resource management specialisation within the business, in which case 387(g) does not have any relevance in this matter.

[23] That then leaves 387(h), any other matters that the Fair Work Commission considers relevant.  In the present circumstances of this matter, there are a number of matters which are relevant.  The first is long service.  It is clear that the applicant has been employed for over 20 years and has only two specific incidents of negligence.  One in June 2015 and the current matter.

[24] What this establishes is that, for nearly all of 20 years, Mr Wong has been a good employee and the Commission notes that Mr Wong has received awards for his conduct at work.  Issues relating to long service of Mr Wong and his general conduct at work favour the applicant and favour a finding that the dismissal would be harsh, unjust or unreasonable.  I've also taken into account the impact on Mr Wong of the dismissal.

[25] The dismissal will have quite a harsh outcome on Mr Wong.  I note it is a loss of a long term job.  I note the impact upon Mr Wong of losing paid employment.  I note the fact that after 20 years doing a specific set of jobs for the respondent that Mr Wong may not be readily employable elsewhere.  I note that Mr Wong's age works against him getting future employment.  I also note that Mr Wong's language skills, where English is not his first language, will impact on his employability.

[26] Each of these matters, when considered under the rubric of section 387(h), also favour the applicant's case that the dismissal was harsh, unjust or reasonable.  I also take into account the issue of proportionality.  I've taken into account the fact that the crime was negligence, which was able to be rectified, and that the punishment was dismissal and the issue that arises under a question of proportionality is does the punishment fit the crime?

[27] I've taken into account the fact of the final warning and the evidence given by
Mr Wong about the circumstances leading to that final warning.  I've also taken into account the fact that the final warning led to an effective demotion and loss of pay by Mr Wong when he was transferred to the job he was in at the time of his dismissal.  When I take into account all of the issues relating to proportionality, any consideration of proportionality favours the respondent and favours a finding that the dismissal was not harsh, unjust or unreasonable.

[28] I've also taken into account mitigating circumstances.  It is very clear that a mitigating circumstance in relation to Mr Wong's conduct was the fact of his aunty dying the night before and the impact that that would have on him at work the next day.  Whilst it is a relevant factor, the non-disclosure of a death and not requesting leave or absence from work must all be taken into account.  Overall, any issue relating to mitigating circumstances favours the applicant and would favour a finding that the dismissal was harsh, unjust or unreasonable.

[29] I've also taken into account all the procedural issues in relation to the way in which the matter was investigated and the way in which the matter was dealt with leading to dismissal of the applicant.  All of the procedural issues favour the respondent and favour a finding that the dismissal was not harsh, unjust or unreasonable.  I am required to take into account each relevant matter arising under section 387 and I'm also required not to take into account any irrelevant matter.

[30] In the present circumstances, I've identified at least two irrelevant matters.  I draw attention to them to make clear they have not played a role in my consideration of this matter.  The first irrelevant matter has to be the contentions raised by the applicant challenging the fairness of the 2015 final warning.  In circumstances where the applicant was represented by the NUW, the arguments as to unfairness of that warning are simply not relevant to any consideration of the determination of the dismissal matter.

[31] The second matter which I consider to be completely irrelevant is the contention that there is significant differential treatment which is a - or that differential treatment which has been accorded is a relevant matter for me to take into account in considering the fairness of the dismissal of the applicant.  The evidence or contentions that the respondent treats each case of error on its merits does not give rise to an issue of differential treatment which is to be considered as a relevant matter under section 387(h).

[32] A decision is reached by weighing those factors which favour a finding that the dismissal is not harsh, unjust or unreasonable against those factors which favour a finding that the dismissal was harsh, unjust or unreasonable.  I have weighed the existence of a strong valid reason and the issue of proportionality against length of service, impact of dismissal on Mr Wong, mitigating circumstances and the scales are tipped very strongly in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

[33] I would say that what very strongly tips the scale is the strength of the valid reason.  Other issues have less weight on the scales but once I had considered the issue of valid reason and we're starting from the premise of considering section 387 as part of the package, once 387(a) got put on the scales, the scales tipped very strongly in favour of the respondent and notwithstanding the number of issues which favoured the applicant, the scales always remain in favour of a finding that the dismissal was not harsh, unjust or unreasonable.

[34] I cannot be satisfied that the dismissal was harsh, unjust or unreasonable.  I therefore dismiss the application in this matter. 

COMMISSIONER

Appearances:

Ms K. Sheehan for the Applicant.

Mr T. Dalton of the Ai Group for Catalent Australia Pty Ltd.

Hearing details:

2016.

Melbourne:

11, 12 October.

 1   Selvachandran v Peteron Plastics Pty Ltd,(1995) 62 IR 371 at 373, 7 July 1995, Northrop J.

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