| [2016] FWC 9104 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mark Hastilow
Daniel Cornish
v
Nestle Australia Pty Ltd
(U2016/11496 and U2016/11497)
DEPUTY PRESIDENT GOOLEY |
MELBOURNE, 20 DECEMBER 2016 |
Application for relief from unfair dismissal.
[1] Mr Mark Hastilow and Mr Daniel Cornish were both dismissed by Nestlé Australia Pty Ltd on 31 August 2016 for serious misconduct. Both were found to have taped Mr Harrison Bradshaw to a forklift, making him unable to operate fully and safely the forklift. Nestlé said that this was a serious breach of safety. Further, both were also found to have initially denied their involvement in the incident and only admitted their involvement when the denials became untenable.1
[2] Neither Mr Cornish nor Mr Hastilow disputed that there was a valid reason for the dismissal.2 However both put that the dismissal was harsh and they should be reinstated to their positions.3
[3] There are a limited number of facts in dispute.
[4] It is not disputed that:
1) Mr Hastilow, Mr Cornish and Mr Bradshaw are friends.
2) At around 9am4 on 23 August 2016 Mr Bradshaw was operating a forklift and parked it near Mr Hastilow. He had left the forklift and when he returned and mounted the forklift he turned the key on.5
3) Mr Hastilow, after making eye contact, approached Mr Bradshaw, while he was sitting in the forklift and gave him a hug.6
4) Mr Cornish wrapped tape around Mr Bradshaw’s body and arms and the back of the forklift seat.7
5) Mr Hastilow walked away when this was happening.8
6) Mr Bradshaw asked Mr Cornish what he was doing but he did not reply.9
7) Mr Cornish, Mr Hastilow and Mr Bradshaw were laughing.
8) Mr Sean Gorman, their line manager, saw Mr Bradshaw taped to the forklift.
9) Mr Gorman turned the key of the forklift into the off position.
10) Mr Gorman walked away and Mr Cornish cut Mr Bradshaw free.
[5] There was a dispute about whether the forklift was operational when the taping occurred.
[6] Mr Gorman said that the forklift was operational because he saw the lights on the forklift dashboard. He said this is why he turned the key to the ‘off’ position.10 Mr Bradshaw said the he had not taken the necessary steps to put the forklift into operation because Mr Hastilow had made eye contact with him and that was how someone indicated that they wanted to talk to him.11 Neither Mr Hastilow nor Mr Cornish noticed if the dashboard lights were on.12
[7] Nestlé also contended that Mr Hastilow was involved in taping Mr Bradshaw to the forklift. Mr Hastilow denies this as did Mr Bradshaw and Mr Cornish. Nestlé relied on Mr Hastilow’s interview on 26 August 2016 to support this contention. In that interview, Mr Hastilow, in response to a question about his involvement, is alleged to have said that “I cuddled – I call it a cuddle- Harrison on the forklift” He was asked if he was saying he acted alone, he said “No I’m not, Daniel was involved also, and we put a few rounds of tape and stuck Harrison to the forklift seat. It was not going, it was in safe operating mode.”13 Further Nestlé said that Mr Cornish confirmed Mr Hastilow’s involvement in his interview on the same day. When asked what were the specifics he said “Harrison had just hopped on to the forklift and we taped him to the chair.” When asked who “we” was, he replied “Me and Mark, joke that had just gone too far.”14 Both Mr Cornish and Mr Hastilow denied making these statements at the interviews.
[8] It is not disputed that Mr Hastilow and Mr Cornish did not admit their conduct until 26 August 2016.
[9] Mr Hastilow and Mr Cornish deny that they were asked by Mr Gorman immediately after the incident about their involvement.
[10] Mr Gorman said that immediately after turning off the forklift he said to Mr Cornish Mr Hastilow, Ms Nicole King and Mr Bradshaw words to the effect of “what are you doing?” and “this is ridiculous.” The conversation then proceeded as follows:
Mr Gorman: “Who has done this?”
Mr Cornish: “It was not me. We’ve been panning.”
Mr Hastilow: “It was not me. We’ve been panning.”
Mr Bradshaw: “Well it wasn’t me. I (sic) the one tied up.”
Mr Gorman: “This has to stop”
[11] Mr Gorman prepared an incident report on the same day which was consistent with this version of events.15
[12] Mr Hastilow denied that this conversation took place16 and Mr Cornish only recalled the conversation between Mr Bradshaw and Mr Gorman.17 Mr Bradshaw said that when Mr Gorman first saw him he said “what’s going on here?” And he replied “don’t look at me, I can’t tape myself.” Mr Cornish gave the same evidence as Mr Bradshaw18 Mr Hastilow also gave the same evidence.19
[13] Mr Bradshaw recalled that when Mr Gorman returned after he had been freed that Mr Gorman spoke to Mr Cornish but he did not hear what was said.20
[14] Ms Nicole King said that after Mr Bradshaw had been cut free and Mr Gorman returned to the room he called them altogether. She said that there were other employees present as well. She said Mr Gorman said “why did this happen and who did it?” All of the employees remained silent. She further said that Mr Gorman said “I am giving those responsible the chance to step forward and own up to what happened or else the incident will be escalated.” Again everyone remained silent.21
[15] Mr Bradshaw said that about 40 minutes later Mr Gorman returned and called all seven employees together and said that what happened with the forklift was not on and that he had reported it. He said the meeting went for about five minutes.22 Mr Hastilow said that Mr Gorman returned about 40 minutes later and said “what I witnessed earlier was a silly thing and I will be reporting it.” He said the meeting went for a minute or two.23 Mr Hastilow accepted that at this time he chose not to come forward to say what had happened.24 Mr Cornish said that Mr Gorman returned after 40 minutes and called them altogether and told them that this sort of behaviour was not tolerated.25
[16] Mr Gorman said he returned 20 minutes later and got all the employees together. He said words to the effect of: “taping someone to a forklift is unacceptable. That sort of banter and horseplay will not be tolerated in this factory. This is also a safety issue taping someone to a forklift while in operation as it could have been a lot worse and the forklift could have taken off. This conversation will be recorded in the discipline database.”26
[17] Separately both Mr Hastilow and Mr Cornish attended meetings with Mr Gorman and Ms Debbie Collins on 23 August 2016. In response to Mr Gorman’s question about what happened Mr Cornish said “I didn’t see anything.” He also said that he was “not aware of who did it”. He said “walked into the panning room seeing Harrison taped up. At first glance admit I did chuckle.”27 Mr Hastilow said “no nothing, can’t tell ya- working pan 1. Spun around and saw Harrison taped to forklift then you walked in. Can’t tell ya.”28
[18] Mr Bradshaw was also called to a meeting and he said he not see who did it.29 He told them that there were multiple arms and that he assumed there was more than one person involved.30
[19] Ms King was called to a meeting with Mr Gorman and Ms Collins. Ms King said she had been on the ground moving the beans around the pallecon and turned around when she heard laughter.31 She recognised the laughter as coming from Mr Hastilow and Mr Cornish. She then saw Mr Bradshaw taped to the forklift seat.32
[20] On 24 August 2016, Mr Hastilow and Mr Cornish were called to separate meetings and advised by Ms Carolyn Gray, the human resources business partner, that this was a serious matter and they were to be stood down on full pay whilst the matter was investigated.33
[21] On the same day Mr Bradshaw was called to a meeting in which he again denied knowing who had taped him to the forklift.34
[22] Mr Bradshaw was then called to another meeting and he was advised he was being stood down on full pay.35
[23] On 26 August 2016, Mr Hastilow attended a meeting with Ms Collins and the factory manager, Mr Vince Giovanniello.
[24] In his evidence in chief, Mr Hastilow said that he was told that he had two clouds hanging over his head; one the incident and the other the dishonesty. He told them he was there to tell them his side of the story. He told them his job was important to him; that he was dedicated to his job; that he had been diagnosed with Asperger’s syndrome; that his two children had the same condition and they were home schooled; that he had helped the company with his trip to Spain; and that this was a difficult conversation for him to have.36 He briefly told them of his involvement. He told them the forklift was out of operation and there was no risk to injury in what happened. He said words to the effect of “I take responsibility for us being in this position because I’m the senior panner. I feel that the boys have followed my lead.” He said this was intended to mean that he had taken the lead role in following Mr Furlong’s advice and keeping quiet about what happened, not that he was admitting to being involved in the taping.37
[25] The notes taken at the meeting record that Mr Hastilow advised that he was fearful of his job and he had two children. He was told that Nestlé was treating the incident as wilful serious misconduct. He was also told that there was now distrust and a lot of dishonesty with information given to them so far. Mr Hastilow said he was not a dishonest person but that he was involved. He said that after the incident he panicked and he couldn’t find Kenny and he was not sure that he was given the best advice on how to proceed.
[26] The notes record him as saying “I accept responsibility for leading the guys and I took them into this. I am a leader out there and I am passionate about my job. I have led the guys through so much out there.”
[27] The notes also record that when asked about his involvement, he said what was set out at paragraph [7] above.
[28] Mr Hastilow was told there were two matters; the serious and wilful misconduct and dishonesty. Mr Hastilow apologised for his conduct. He was told that they needed to follow through a process and he would be advised of the outcome.38
[29] Mr Hastilow accepted that the record of the meeting was generally accurate except what was set out at paragraph [7] above.39 He said that when asked who else was part of it, he said “Daniel” and when asked what Daniel had done he said “Daniel taped Harrison and that was it.”40
[30] Mr Bradshaw attended a meeting on the 26 August 2016 after he had been told by Mr Hastilow that he was going to confess. He said he told the full story at the meeting.
[31] In his evidence in chief, Mr Cornish said that he attended a meeting on 26 August 2016 after he had been advised by Mr Bradshaw and Mr Hastilow that they had confessed. It was his evidence that he opened the meeting by saying “I’ve come to own what has been done.” When he was asked to explain he said “come on, let’s not beat around the bush, you know”. He says he was then told that the investigation would continue and he would be contacted again.41
[32] In the meeting notes Mr Cornish is recorded as saying “here to fess up what I’ve done. Lying – we were scared of what the outcome was.”42 Mr Cornish then said what is set out at paragraph [7] above. He was told that there were two issues, a serious safety breach - serious wilful misconduct and dishonesty. He was told there would be further investigation and he would be contacted again.
[33] On 31 August 2016, Ms Gray and Mr Giovanniello met with Mr Cornish and advised him that they were considering terminating his employment and asked if there was anything he wished to say.
[34] Mr Cornish said he gave a full account of what happened and expressed remorse for his conduct. The meeting was adjourned for 10 minutes and he was told that he was being dismissed.43
[35] Mr Giovanniello said that he recalled Mr Cornish referring to the fact that he shouldn’t have lied; that he had panicked; that he had six years of employment and didn’t wish to lose his job; the incident was intended as harmless fun; and he knew what he did wasn’t right but things got out of hand.44
[36] Mr Hastilow also met with Ms Gray and Mr Giovanniello. He said that he had nothing more to add about the incident except to say there was no risk to injury in what he did because the forklift was out of operation. He emphasised how important his job was to him and his family. He also raised his Asperger’s condition.45
[37] Mr Giovanniello said that Mr Hastilow referred to the fact that what he did was stupid and that he regretted it; that he was disappointed in himself and that he didn’t take his job more seriously; that he was a family man with kids at home and he had let them down too; he had 14 years of service; he had been a dedicated staff member; and he couldn’t afford to lose his job and wanted another chance.46
[38] In his evidence in chief, Mr Hastilow said about ten minutes after the incident occurred he approached Mr Ken Furlong, the AMWU shop steward and told him about the incident and that Mr Gorman had seen Mr Bradshaw taped to the forklift and he was going to report it. There was a group of employees assembled around Mr Furlong and he said words to the effect “just don’t say anything; stay quiet and it will take care of itself.”47 Mr Hastilow subsequently said that he spoke to Mr Furlong before the group gathered around him.48
[39] Mr Cornish said that later in the day whilst employees were being called into interviews with Mr Gorman and Ms Collins, Mr Furlong dropped by. He said after Mr Furlong was told what happened that Mr Furlong said words to the effect of “say nothing until you seek further advice.”49 Mr Furlong did not give any evidence of this second discussion.
[40] Mr Furlong gave evidence and was not required to cross examination.50 He said that around 10am he saw Mr Bradshaw with some tape on him. He spoke to Mr Hastilow about this and he told him that Mr Cornish had put tape around Mr Bradshaw as a prank. He told him that Mr Gorman saw this. He said to Mr Hastilow and perhaps some others words to the effect of “don’t do anything until I find out what’s going on. Don’t say anything until we get the union in.”51
[41] Ms King gave evidence that on 23 August 2016, before she was interviewed, Mr Hastilow and Mr Cornish told her not to say anything about what happened. They told her “if you don’t say anything, they can’t do anything.” She told them that she was not going to risk her job for them.52 In evidence in chief, Ms King agreed that in addition to Mr Cornish and Mr Hastilow, Mr Bradshaw, Mr Furlong and Mr Wayne Cornish were present.53
[42] Ms King said that on 24 August 2016 she was again approached by Mr Hastilow and Mr Cornish and they said “don’t say anything about this. As long as we all stick together then they can’t do anything. Just as long as you keep your mouth shut, we will be okay.” She said that she felt stressed and uncomfortable about this. She felt she was being asked to do something that could risk her job. She said she felt intimidated by Mr Hastilow and Mr Cornish. She said to them words to the effect of “I am not risking my job and my livelihood for you guys. I will tell them only what I know and saw, but I am not bullshitting them.”54
[43] In evidence in chief, Mr Hastilow denied these conversations took place. He said that in a group situation [he] sought Ken’s advice. At the time of talking to Ken Furlong everybody had begun to mill around. It was at that time that Ken addressed the group. And on the 24th, the next day, [he] addressed the group and basically said that we would follow Ken’s advice.”55
[44] In cross examination Mr Hastilow said in relation to the discussion that occurred on 23 August 2016, that he relayed Kenny’s opinion on the matter.56
[45] Mr Hastilow denied having any conversation when only he, Mr Cornish and Ms King were present.57
[46] Mr Cornish also denied that he had a conversation as described by Ms King on 23 August 2016. He said that Mr Hastilow had spoken to Kenny and Mr Hastilow told them about Kenny’s advice namely that they should wait until they got further advice from the union. Ms King was in the group that Mr Hastilow spoke to.58
[47] Mr Cornish said there was a second conversation with Mr Bradshaw, Ms King and another employee where he did most of the talking. He said Ms King was a bit nervous about going up and being interviewed and he just reassured her and referred to what Kenny said.59 In cross examination he said he told her “just remember what Kenny said, stick with that and you’ll be fine.”60
[48] Mr Bradshaw said that when he returned to the shop floor on 24 August 2016 he met Mr Furlong who advised that the best way to deal with this was to keep quiet and it will blow over.61 Mr Bradshaw said he had a further discussion with Mr Cornish and Mr Hastilow about whether they should keep quiet or confess. Mr Bradshaw’s statement suggests that this conversation occurred whilst they were still at work.62
[49] After being stood down Mr Bradshaw, Mr Cornish and Mr Cornish’s parents and sister went to visit Mr Hastilow. They then discussed the matter in some detail. They discussed whether they should confess. However they decided to stick with Mr Furlong’s advice because he was a long-term shop steward and he knew how to handle things.63 Mr Bradshaw confirmed this discussion.64
[50] Before the meeting on 26 August 2016 Mr Hastilow went to Mr Furlong’s house to seek his advice. Mr Furlong told him that he had met with Ms Gray and it was his impression that if those involved confessed, everything would be all right. They would perhaps receive a final warning.65 Mr Furlong said that he had told Mr Hastilow that he had discussed the matter with Ms Gray and that she took the view that the denials were looked at very seriously so a confession would be helpful.66
[51] Mr Hastilow then rang Mr Bradshaw and Mr Cornish and told them that he would be telling Nestlé the whole story when he attended work that afternoon.67
[52] Ms Nicole Tullo, the Safety Hill and Environment Coordinator, gave evidence68 about changes in the approach of the company to Occupational Health & Safety. She was not required to cross examination.
[53] She also gave evidence that both Mr Hastilow and Mr Cornish had been given general and specific training,69 in particular both were licensed forklift operators and have attended training on the “three metre rule.”70
[54] Ms Debbie Collins, a Human Resources Coordinator, attended the meetings with Mr Hastilow and Mr Cornish on 26 August 2016. She took the minutes of those meetings and she gave evidence that her recollection of what was said in each of those meetings is set out in the minutes of the meetings which she attached to her witness statement.71 She was not required for cross examination.
[55] Mr Hastilow gave evidence about his work history at Nestlé. He commenced work in 2005. Nestlé, he said, was one of the major employers in Bradford which is located 90 km north of Melbourne.72
[56] Mr Hastilow has two young children, who due to their medical condition, are home schooled. The dismissal has had a significant financial effect on him and he has been unable to obtain ongoing work. He has undertaken a small amount of casual work for a friend.
[57] Mr Hastilow attached a letter from his treating psychologist, Ms Pam Copperwaite. She said that Mr Hastilow has many symptoms indicative of Asperger’s.73 She said that the fact that his “entire family are reliant on him as the breadwinner made it incomprehensible to think that he would knowingly jeopardise his employment and reputation in one act of thoughtlessness. Mark reported that he has an unblemished employment record with Nestlé and he has accepted most, if not all, overtime requests over the last 11 years. Mark has always spoken fondly of his workplace and it has been a defining identity in his life and it has been more than just a job. [She] urged the Commission to consider the context of this issue and the ramifications the dismissal has had on Mark and his family.”74 Ms Copperwaite was not called as a witness and was hence not available for cross examination.
[58] Nestlé disputes that Mr Hastilow had an unblemished work history. Mr Gorman exhibited a copy of Mr Hastilow’s performance and conduct record.75 In the twleve months prior to the incident the report shows that Mr Hastilow was spoken to about poor work performance, in particular taking too long on a morning tea break, and misconduct relating to failure to wear PPE. In the preceding ten years there have been a number of issues raised with Mr Hastilow particularly in relation to his failure to wear the appropriate PPE in breach of the health and safety requirements. There was no evidence that Mr Hastilow had ever been given any written warnings about these matters. Mr Hastilow explained the late return from morning tea. He said that because they often miss out on their afternoon break they make up for it in the morning. In relation to the failure to wear PPE Mr Hastilow acknowledged his breaches explaining that sometimes it was inadvertent and on other occasions he acknowledged his failure to comply.
[59] Mr Hastilow gave evidence of his involvement in the “panning for gold” project which started in 2011. His role was recognised by senior Nestlé management in 2015 and 2016.76
[60] Mr Cornish did work experience at Nestlé in 2010 and left school to take up a casual position with Nestlé. He was subsequently employed on a permanent basis.77
[61] Mr Cornish received that what he called an unofficial verbal warning on 19 August 2016 because he argued with Mr Gorman.78 He said apart from this warning, his employment record was otherwise good. Mr Gorman produced a copy of “verbal warning” provided to Mr Cornish which stated that he had used abusive/inappropriate language directed at another employee.79 He also produced a detailed file note of the incident.80 While Mr Cornish accepted that he used inappropriate language towards Mr Gorman it was his evidence that Mr Gorman used inappropriate language towards him. Mr Gorman denied this.81
[62] Mr Gorman produced Mr Cornish’s performance and conduct record82 which showed that in the last twelve months Mr Cornish have been spoken to about poor work performance including failure to wear PPE, as well as returning late from morning tea break and he was also spoken to about absenteeism. Mr Cornish said his absenteeism was a result of his glandular fever.83 Mr Cornish acknowledged some of the issues relating to PPE, and in relation to returning late from tea breaks, he gave the same explanation as Mr Hastilow.
[63] Both Mr Hastilow and Mr Cornish attended training on the three metre rule in 2013.84 The three metre rule requires that pedestrians try to achieve the maximum separation possible between material handling equipment (MHE). If a pedestrian comes within three metres of MHE the pedestrian must stop and give way. The MHE must slow down and “ensure full awareness and eye contact” made and if “no eye contact made” the MHE must stop. If a pedestrian has business with a MHE driver the MHE driver must stop until the business has been completed and three metre separation achieved.85
[64] It was not disputed that to start a forklift the key must be turned to the on position and a code must be entered then the green button pressed. The lights on the dashboard then turn on. Once the handbrake is taken off, the forklift can move.86 After the code is entered and while the handbrake is on the tines can be moved.
[65] It was not disputed that if the forklift had been turned off it could be restarted without the code being entered if a short period of time had elapsed. However there is a dispute over how long a time elapses before the code must be re-entered. Mr Hastilow says it is between 30 seconds to a minute.87 Mr Bradshaw said it was about 30 seconds.88 Mr Gionvanniello said if the forklift was turned off for about 5 minutes, then turning the key would not cause the forklift dash lights to come on.89 In cross examination, Mr Gionvanniello accepted that this time period was 30 seconds and his reference to 5 minutes was what he thought before he did the test.90
[66] It was put by Mr Cornish that a stationery forklift will timeout, that is, become non-operational, even if the key is on after about a minute and will require the code to be entered to restart the forklift. He then said he couldn’t recall how long the timeout period was.91 Mr Gionvanniello said that if the key is not turned off then the “lights will remain on for an indefinite amount of time until you turn the forklift key off.”92
[67] It was not disputed that there was a valid reason for the termination and there was no issue that Mr Hastilow and Mr Cornish were afforded procedural fairness. However it was submitted that there were significant differences between the findings that should be made in relation to them.
[68] It was submitted that I should find that Mr Hastilow did not tape Mr Bradshaw to the forklift.
[69] It was further submitted that I should not find that Mr Hastilow had breached the three metre rule as the forklift was stationary and non-operational when he approached it. Mr Hastilow accepted that he had been dishonest in the investigation but he was acting on advice from his shop steward. Mr Hastilow denied organising others to be dishonest in particular he denied intimidating Ms King. Further Mr Hastilow did finally admit his dishonesty. It was put that Mr Hastilow’s personal circumstance makes his position particularly dire and this makes the termination harsh. It was submitted that he should be reinstated.
[70] In relation to Mr Cornish it was submitted that he did not breach the three metre rule as the forklift was stationary and non-operational. Mr Cornish accepted that he had been dishonest but he had acted on his shop steward’s advice. Further, he denied organising others to be dishonest in the investigation in particular, he denied intimidating Ms King. While Mr Cornish had found other employment it was casual in nature and he should be reinstated.
[71] Nestlé submitted that it had three valid reasons for dismissing Mr Hastilow and Mr Cornish, namely safety breaches, dishonesty and attempting to get others to be dishonest.
[72] Nestlé submitted that I should find on the evidence that both Mr Hastilow and Mr Cornish were involved in taping Mr Bradshaw to the forklift seat.
[73] Nestlé submitted that I should accept the evidence of Mr Gorman that the forklift was operational at the time Mr Bradshaw was taped to the seat. This is because Mr Gorman saw the lights on the dashboard and that was the reason he reached over to turn off the forklift. The only other evidence about whether the forklift was operational was given by Mr Bradshaw who said that he had left the forklift, gone to pick up some labels and when he returned, he turned the key to the ignition stage. Because Mr Hastilow wished to speak to him he said he took no further steps to put the forklift into operation. Nestlé submitted that I should prefer Mr Gorman’s evidence because Mr Gorman made a contemporaneous note of what occurred; he had no reason to lie (he didn’t make the decision to terminate nor was he involved in the final meetings) and Mr Bradshaw had already lied about this incident because he is best friends with Mr Hastilow and Mr Cornish. He has a strong motive to recall things differently.
[74] In any event, it was submitted that that both Mr Hastilow and Mr Cornish breached the three metre rule. Both were aware of the rule and both approached the forklift when they had no operational need to do so and when they did not know what the status of the machine was as neither of them had seen Mr Bradshaw turn the forklift off and had no way of knowing whether he had or had not entered the code. Neither of them checked the dashboard to ensure the machine was off.
[75] Both, it was submitted, were reckless in fooling around when they did not know if the forklift was operational and this was a serious safety breach.
[76] It was submitted that if the forklift was operational, even if the handbrake was on, the tines could move and in the circumstances the conduct created a safety risk. Nestlé relied on Ms King’s evidence to support that contention that it was unsafe. Ms King gave unchallenged evidence that when she saw what was going on she was “worried about [her] safety and the safety of the other guys.” She said to a fellow worker “be careful and stay out of the forklift’s path.” She herself moved to get out of the forklift’s path.93
[77] Nestlé disputed the contention that Mr Cornish and Mr Hastilow were dishonest because of advice given to them by Mr Furlong. Nestlé submitted that I should find on the evidence that Mr Cornish and Mr Hastilow lied to Mr Gorman about their involvement prior to speaking to Mr Furlong. While differing in their recollection of whether Mr Hastilow or Mr Cornish responded to Mr Gorman’s questions, both Ms King and Mr Gorman gave evidence that immediately after the incident Mr Gorman asked them who was involved and asked those involved to step forward. Further it was submitted that in formal interviews on the same day Mr Cornish and Mr Hastilow lied. Nestlé submitted that this was not a spur of the moment lie but a carefully considered lie that was persisted with after Mr Cornish and Mr Hastilow had had a significant discussion about what they should do.
[78] And while Nestlé accepted that both Mr Hastilow and Mr Cornish confessed, it submitted that they should receive little credit for this decision as they only changed their position after Mr Furlong told Mr Hastilow that it was likely if they confessed they would only get a warning.
[79] Nestlé submitted that the most serious aspect of the conduct was their attempts to get other employees to lie. While initially Nestlé relied on Ms King’s evidence to support their contention that Mr Hastilow and Mr Cornish both spoke to Ms King and told her to lie to Nestlé, at the hearing, Nestle submitted that it was clear that on at least one occasion Mr Hastilow spoke to a group of employees and on another occasion Mr Cornish spoke to employees to get them to lie to Nestlé. Nestlé submitted that Mr Hastilow admitted his key role in encouraging others, including Mr Bradshaw, to lie.
[80] The Commission must decide if the dismissal was harsh, unjust or unreasonable.
[81] In Stewart v University of Melbourne94 Vice President Ross, as he was then, considered the decision of the High Court in Byrne v Australian Airlines95 and concluded:
Given that the observations in the joint judgment were made in a different context they are not binding, but I find them highly persuasive. In my view, for the purpose of s.170CG, a termination of employment may be:
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
· unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or
· unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.
[82] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:
[83] In this matter there is no dispute that there was a valid reason for the dismissal. However it was submitted that it is necessary for me to make specific findings in relation to the conduct relied upon by Nestlé.
[84] I am not satisfied that Mr Hastilow was involved in taping Mr Bradshaw to the forklift. I accept that the records of interview are accurate and I do not accept Mr Hastilow’s denials about their inaccuracy in relation to what is being called his admissions. I do so because the accuracy of the records of interview were confirmed by both Mr Giovanniello and Ms Collins. Ms Collins was not cross-examined on the accuracy of the notes she took. Further Mr Hastilow accepted that apart from that part of the record of interview which contained his admissions, that the records were accurate.
[85] However I do not consider that because he used the word “we” in reference to putting a few rounds of tape around Mr Bradshaw that Mr Hastilow was in fact admitting that he had put tape around Mr Bradshaw. I am not satisfied that Mr Hastilow was doing anything more than acknowledging his general involvement in the incident.
[86] I am also not satisfied that Mr Hastilow breached the three metre rule. It was Mr Bradshaw’s uncontested evidence that he had made eye contact with Mr Hastilow before Mr Hastilow approached him and it was then Mr Bradshaw’s responsibility to make sure that the forklift was not operational.
[87] I am however satisfied that the forklift was operational at the time Mr Bradshaw was taped to the chair. I prefer Mr Gorman’s evidence on this point. There was no dispute that he reached over and turned off the forklift. I accept his evidence that he would not have done so unless the dashboard lights were on. I accept that unless the handbrake was off, the forklift could not move. It was uncontested that the tines were still operational.
[88] I am satisfied that Mr Cornish taped up Mr Bradshaw and was reckless as to the risk he created in doing so. I am satisfied that Mr Cornish breached the three metre rule as he did not make eye contact (or any contact) with Mr Bradshaw prior to approaching the forklift.
[89] I am satisfied that both Mr Cornish and Mr Hastilow were dishonest in the investigation process.
[90] I am satisfied that they did not honestly answer Mr Gorman’s question about who was involved immediately after the incident. I am also satisfied that they denied their involvement before Mr Furlong spoke to them.
[91] I make this finding because I prefer Mr Gorman’s evidence to that of Mr Cornish, Mr Hastilow and Mr Bradshaw. I do so because it is consistent with the note he made at the time and I accept that he had no reason to include this if it did not occur. The same cannot be said about Mr Cornish, Mr Hastilow and Mr Bradshaw. While Ms King’s evidence is not in the same terms, it is her evidence that Mr Gorman asked those involved to own up and no-one did.
[92] While there was some confusion about their interactions with Mr Furlong, it is clear that Mr Hastilow spoke to Mr Furlong after Mr Gorman told them the incident was to be reported. That occurred when Mr Gorman returned to the panning area 20-40 minutes later. That is consistent with the evidence that the incident occurred around 9am and Mr Furlong came into the area at around 10am.
[93] Further I am not satisfied that they can rely on advice from Mr Furlong to justify lying to Nestlé. I accept the submission of Nestlé that they persisted with this lie after careful consideration and only resiled from that position when they were told that the consequence if they confessed was less than dismissal.
[94] I am further satisfied that both Mr Cornish and Mr Hastilow encouraged others to lie in the investigation to Nestlé. I am satisfied that both Mr Cornish and Mr Hastilow encouraged Ms King and others to say they did not know what had happened. I am not satisfied that they intended to intimidate Ms King, but I am satisfied that she felt uncomfortable about their request. This is not surprising as she was being asked by her work colleagues to do one thing in circumstances where compliance could put her job at risk.
[95] But for the dishonesty, I would not have found that there was a valid reason for the dismissal of Mr Hastilow. However his dishonesty alone means that there was a valid reason for his dismissal. However Mr Cornish’s conduct both in taping up Mr Bradshaw and being dishonest during the investigation process means that there was a valid reason for his dismissal.
[96] Both Mr Hastilow and Mr Cornish were notified of the reason for the dismissal.
[97] Both Mr Hastilow and Mr Cornish were given an opportunity to respond to the reasons.
[98] Both Mr Hastilow and Mr Cornish were allowed a support person during the meetings.
[99] The dismissal did not relate to unsatisfactory performance.
[100] This criterion is not relevant.
[101] This criterion is not relevant.
[102] I have set out above the uncontested evidence of the factors both Mr Hastilow and Mr Cornish seek to rely on to support their submission that dismissal in their case would be harsh.
[103] I am aware that manufacturing jobs are increasing difficult to find. This is even more so in regional Australia. I accept that both Mr Hastilow and Mr Cornish will find it difficult to find ongoing employment. I accept that this will have a significant effect on Mr Hastilow who is the primary breadwinner for his family.
[104] Nestlé submitted that there were no significant mitigating circumstances that would render the dismissal harsh. Nestlé submitted that neither Mr Hastilow nor Mr Cornish had unblemished employment records. They point particularly to Mr Hastilow’s repeated breaches of health and safety requirements to wear appropriate PPE and note that unbeknownst to Nestlé Mr Hastilow was not wearing ear protection at the time of the incident. They point to Mr Cornish’s verbal warning given in the same month as the dismissal. I accept that neither employee had an unblemished employment record.
[105] It was submitted that Mr Hastilow’s claim for harshness is much stronger than Mr Cornish’s. To the extent that Mr Hastilow relies on his personal circumstances and the impact of the dismissal on him, this submission cannot be denied.
[106] I have considered whether Mr Hastilow’s and Mr Cornish’s conduct warrants them losing their jobs.
[107] I have found that there was a valid reason for the dismissal and that Mr Hastilow and Mr Cornish were afforded procedural fairness.
[108] I am not satisfied in Mr Cornish’s case that there are any significant mitigating factors that would result in a finding that the dismissal was harsh. I do not accept that the factors relied on by Mr Cornish weigh in favour of a finding that the dismissal was harsh. He had a shorter period of employment and he had only recently received a verbal warning about inappropriate language in the workplace.
[109] However I accept that Mr Hastilow’s position is different as I have found he was not involved in the incident that led to the investigation. I have however found that he was both dishonest in the investigation and encouraged others to be dishonest in the investigation.
[110] I accept that Mr Hastilow’s lengthy period of employment; his personal circumstances; his lack of any written warnings; and the commitment to his job evidenced by his involvement in the panning for gold project all weigh heavily in favour of a finding that the dismissal was harsh.
[111] Not every case where an employee is dishonest in an investigation results in his or her application for an unfair dismissal remedy being dismissed. However this dishonestly was not a case of a spur of the moment decision to deny involvement. Mr Hastilow persisted with this dishonesty after discussing it with others. More concerning, Mr Hastilow sought to involve his fellow employees in that dishonesty. That was unfair to those employees who were torn between their friendship with their fellow employees and their obligations to their employer. Whether the employees acted on the advice as a result of loyalty or fear of the consequences is irrelevant. They should never have been put in that position. This action compounds Mr Hastilow’s dishonesty and has led me to conclude that despite the significant mitigating factors relied upon by Mr Hastilow, the termination of his employment was not harsh.
[112] Consequently both Mr Cornish and Mr Hastilow’s application for an unfair dismissal remedy is dismissed and orders to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
B. Terzic for the Applicants.
L. Izzo for the Respondent.
Hearing details:
2016.
Melbourne:
5 and 6 December.
1 Exhibit A1 at attachment E and Exhibit A2 at attachment B
2 Submissions of the applicants at [6]
3 Ibid
4 Exhibit A3 at [20] and Exhibit A1 at [37]
5 Exhibit A3 at [20]-[21]
6 Ibid at [21] and [23]
7 Ibid at [24]
8 Ibid
9 Ibid at [25]
10 Exhibit R2 at [10]
11 Exhibit A3 at [21]
12 Transcript PN 140 and PN 662-3
13 Exhibit R1 at VG3
14 Ibid at VG4
15 Exhibit R2 at SG5, SG10 and SG11
16 Transcript PN 142-143
17 Ibid PN 558
18 Exhibit A2 at [22]
19 Exhibit A1 at [39]
20 Exhibit A3 at [28] and [30]
21 Exhibit R5 at [20]-[22]
22 Exhibit A3 at [31]
23 Exhibit A1 at [40]
24 Transcript PN 342
25 Exhibit A2 at [24]
26 Exhibit R2 at [18]
27 Exhibit R2 at SG2
28 Ibid at SG4
29 Exhibit A3 at [33]
30 Exhibit R2 at SG1
31 Exhibit R5 at [7]
32 Ibid at [9]
33 Exhibit A1 at [45] and Exhibit A2 at [28]
34 Exhibit R2 at SG6
35 Exhibit A3 at [44]
36 Exhibit A1 at [51]
37 Ibid at [53]
38 Exhibit R1 at VG3
39 Transcript PN 241
40 Ibid PN 237-243
41 Exhibit R2 at [31]
42 Exhibit R1 at VG4
43 Exhibit A2 at [33]
44 Exhibit R1 at [28]
45 Exhibit A1 at [58]
46 Exhibit R1 at [32]
47 Exhibit A1 at [41]
48 Transcript PN 344
49 Exhibit A2 at [25]
50 Exhibit A4
51 Ibid at [4]-[5]
52 Exhibit R5 at [24]
53 Transcript PN 1146
54 Exhibit R5 at [32]-[34]
55 Transcript PN 107
56 Ibid PN 358-360
57 Ibid PN 108
58 Ibid PN 499-505
59 Ibid PN 516-526
60 Ibid PN 682
61 Exhibit A3 at [41]
62 Ibid at [42]
63 Exhibit A1 at [46]
64 Exhibit A3 at [45]
65 Ibid at [49]
66 Exhibit A4 at [10]
67 Exhibit A1 at [50]
68 Exhibit R3
69 Ibid at [6]
70 Ibid at [13]-[19]
71 Exhibit R4
72 Exhibit A1 at [3]-[4]
73 Ibid at attachment F
74 Ibid
75 Exhibit R2 at SG11
76 Exhibit A1 at [27]
77 Exhibit A2 at [3]-[7]
78 Ibid at [37]
79 Exhibit R2 at SG8
80 Ibid at SG9
81 Transcript PN 1042
82 Exhibit R2 at SG10
83 Transcript PN 588
84 Exhibit R3 at NRT15 and NRT16
85 Ibid at NRT15
86 Exhibit A3 at [22]
87 Transcript PN 264
88 Ibid PN 841
89 Exhibit R1 at [41]
90 Transcript PN 972-980
91 Ibid PN 642-649
92 Ibid PN 938
93 Exhibit R5 at [12]-[13]
94 Print S2535
95 185 CLR 410
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