DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allan West
v
Holcim (Australia) Pty Ltd
(U2016/14182)

Application for relief from unfair dismissal.

Introduction

[1] On 28 November 2016 Mr Allan West (the Applicant) lodged with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against his former employer, Holcim (Australia) Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 11 June 2010. He was notified of his dismissal on 24 November 2016 and the dismissal took effect on 25 November 2016. He received five weeks’ pay in lieu of notice.

[3] The Applicant was a leading hand in the Respondent’s cement and concrete products factory in Tamworth, New South Wales.

[4] The Applicant seeks reinstatement and an order for payment of remuneration lost following the dismissal. In the alternative, the Applicant seeks compensation equivalent to 26 weeks’ wages.

[5] The Applicant was terminated as a result of an incident on 16 November 2016 where the Respondent alleged that the Applicant had allowed another employee to perform a task which was unsafe, did not provide adequate supervision and did not properly report the safety incident.

[6] The Applicant was provided a “show cause” letter on 22 November and a termination letter on 24 November.

[7] The Applicant says that a casual labour hire employee, who had been on site for 16 months, used an overhead crane to lift a rack of steel. The employee had performed the operation by himself on many occasions previously with no objection. The Applicant says that he did not see the incident but heard the noise and then saw the steel on the ground. The applicant then helped with the clean-up. He told the casual employee to file a safety report which occurred some 49 minutes later.

[8] The “show cause” letter required a written response by the Applicant by 10.30 am on 24 November and scheduled a meeting for 2pm on that day.

[9] The Applicant contacted his Australian Workers’ Union (AWU) organiser, Mr Serge Rindo, who sought to reschedule the meeting which was rejected and then to allow the Applicant to respond verbally which was also rejected. He sent a letter dated 24 November requesting responses and information in respect of nine items.

[10] The Applicant received the termination letter late in the morning of 25 November.

[11] The “Show Cause” letter sets out the Respondent’s version of the 16 November incident. It says that the steel nearly struck the casual employee. It further says that the employee was not fully trained or competent and that the Applicant did not provide adequate supervision. It further says that the Applicant, as Leading Hand, should have reported the incident. It referred to a “previous final written warning”. It required the Applicant to provide reasons in writing as to why he should not be terminated.

[12] The termination letter said, essentially, because the Applicant had not responded in writing and attended the meeting, the Respondent would “act on the show cause notice”.

[13] The Applicant submits that the Respondent did not have a valid reason for the dismissal of the Applicant. He further submits that the Respondent’s process was unfair to the Applicant in that it did not give him the opportunity of properly responding to the allegations against him.

[14] The Respondent says that the Applicant was responsible for allowing the casual employee to undertake a task which he knew he was not competent to perform.

[15] The Respondent also denied that the Applicant had his back to the incident. The Respondent’s rules were broken by the Applicant’s failure to immediately report the incident.

[16] The Respondent denies that the AWU requested that the meeting be rescheduled. Neither the Applicant nor the AWU attended the scheduled meeting although they knew that it would likely lead to the Applicant’s dismissal.

Commissions Proceedings

[17] The matter was conciliated on 21 December 2016 but could not be settled.

[18] A telephone programming mention was held by me on 18 January 2017.

[19] The hearing took place on 16 March 2017 in Sydney.

[20] The Applicant was represented by Mr G. Beard from the AWU. The Respondent was represented by Ms L. Elks.

[21] The Applicant relied on written and oral submission and witness statements by himself (Exhibit B1) and the organiser Serge Rindo (Exhibit B3). A statement was prepared by the casual employee Nick Dodd but he was unable to attend the hearing because he was looking for a new job. His statement was therefore not admitted into evidence.

[22] The CCT video of the 16 November 2016 incident was played in the Commission and admitted into evidence (Exhibit B2).

[23] The Respondent relied on written and oral submission and the witness statements of:

● Daniel Berryman (Exhibit E1)         Production Supervisor;

● Roy Simon (Exhibit E2)                  Regional Operations Manager;

● Paul Jackson (Exhibit E3)               Regional General Manager.

Protection from Unfair Dismissal

[24] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[25] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[26] The Applicant was covered by the Holcim (Australia) Pty Ltd – NSW/ACT Staff Enterprise Agreement 2013 [AE403764] (the Agreement). His salary was $47,025 per annum plus his leading hand allowance of $2,309.40 per annum. It was conceded, therefore, that he was a person protected from unfair dismissal in accordance with s.382 of the Act.

[27] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC 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;


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

[28] None of these matters were at issue in this case.

Was the dismissal unfair?

[29] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(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.”

[30] No issue was raised pursuant to s.385(a), (c) or (d). I note that the Respondent has some 2,354 employees.

Harsh, Unjust or Unreasonable

[31] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“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.”

Applicant’s Case

[32] In addition to the matters summarised above, the Applicant submits that the dismissal was harsh, unjust and unreasonable because:

● The three day period of time between the “show cause” letter and the dismissal when the AWU official was requesting a delay and asking for further information, is significant evidence of a breach of s.387(c).

● The Applicant received a “final written warning” on 17 December 2015 for an emotional reaction to the breakdown of a machine which hurt him. The Applicant provided a written apology to the Respondent for any damage he caused to the machinery.

● This incident had nothing to do with the 16 November incident.

● Being 58 years old in a regional area, the Applicant will have significant difficulty in finding another comparable job.

● The Applicant had a satisfactory work history, having been promoted to Leading Hand.

● There is no evidence of a breakdown of the relationship or loss of trust between the Applicant and the Respondent or other employees which would weigh against the reinstatement of the Applicant.

● The Applicant, in his statement concedes that one of his duties was to allocate duties to fellow employees in the Shed. He therefore knew that Mr Dodd was moving the steel with the overhead crane. He says, however, that he had done this many times before and been seen by the supervisor and at least two managers.

● The Applicant told Mr Dodd to file a safety report following the incident.

● The Applicant says that he has earned a little less than $3,000 as a labour hire casual since his dismissal.

The Respondent’s Case

[33] In addition to the matters summarised above, the Respondent submits that the dismissal was not harsh , unjust or unreasonable because:

● The Applicant should not have let the casual worker perform a task he was not competent to perform.

● The Applicant did not report the incident quickly enough and therefore breached the Respondent’s health and safety policies.

● The Applicant’s previous warning involved the Applicant striking a machine in anger which rendered it inoperable.

● The Respondent says it undertook a proper investigation. An interview took place on 21 November with the Applicant which led to him being stood down.

● That the AWU requested an extension of the process is denied. The opportunity to attend the meeting on 24 November also was not taken up.

● The Respondent says that it took into account the Applicant’s age, length of service and personal circumstances.

● Roy Simon describes the incident as a “category 5” incident in which the steel narrowly missed the casual employee. He also says that the incident was initially misreported as being not as serious as it was. The Applicant failed to take adequate action in allowing the team to clean up before the incident was reported. The rack that it was reloaded on was damaged, as well. He confirmed that Mr Rindo had requested on the phone on 21 November that the 22 November meeting be delayed. The Applicant refused to sign the “show cause” letter at that meeting. Mr Simon testified that both he and Ms Elks had told Mr Rindo on the phone on 23 November that the meeting the next day would go ahead. It is said that there was no request for delay. The letter from Mr Rindo requesting a “suite of information” was received by the Respondent at 10.04 am on 24 November. Mr Simon says:

“I phoned Serge and advised him of the company’s position. He responded that we are now in dispute under the Agreement. There was no request for any extension of time.”

The meeting of the Respondent’s managers that led to the Applicant’s dismissal then went ahead without him or the AWU official.

● Daniel Berryman’s evidence was that the casual employee was not qualified to perform the lift. He also said that the Applicant was not qualified to undertake the task. He said the Applicant did not respond to the incident adequately and did not ensure that there was a safe work environment after the incident. He also says that the Applicant apologised for “what I put you through.”

● Paul Jackson made the decision to send Roy Simon to site after watching the initial CCT footage. He then attended the site and conducted the interviews. He took the decision to dismiss the Applicant because he did not intervene “when an employee was doing an unsafe act”, “displayed no visible leadership” and did not report the incident.

Valid Reason – s.387(a)

[34] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[35] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[36] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[37] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). “

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[38] I respectfully adopt this approach.

[39] I also accept the Respondent’s submission that a serious breach of a workplace health and safety policy or an incident where an employee places health and safety at risk may constitute a valid reason for dismissal, see: Parmalat Food Products Pty Ltd v Wililo (2011) FWAFB 166; Douglas v SSX Services Pty Ltd T/A The Australia Reinforcing Company (2010) FWA 2693. Whether there is a valid reason, however, depends on an analysis of the full circumstances of the case.

[40] The Applicant is accused of breaching the Respondent’s safety policies and practices by:

(a) allowing the casual employee to perform a task that he was not competent to perform;

(b) not acting speedily to ensure that the workplace was safe by allowing the employees to clean up after the accident;

(c) not reporting the incident speedily himself.

[41] As to accusation (a), the Applicant’s evidence was that he was doing other difficult work at the time and did not directly see the incident. The CCT footage that I viewed seems to support this. The Respondent did not directly challenge this account.

[42] The Applicant says that the casual employee had performed the task many times and that a number of managers had seen him do so. Again, this was not directly challenged. Mr Berryman, under cross-examination, said:

“I know he was operating the gantry crane, but I didn’t realise he was operating that to that extent.”
(Transcript PN282)

[43] Even if there was a lack of training of the casual employee, the Applicant was not responsible for that. That would be the role of more senior management. I do not think that this accusation is substantiated.

[44] The Applicant’s evidence was that he wanted to put the onus on the casual employee to clean up once he established that no one was injured. (Transcript PN119 – 120)

[45] The Applicant agreed that incidents must be reported at once. He did not do this. Rather, he told the casual employee to do it. This was done 49 minutes after the incident. It is not clear from the Respondent’s policy (Exhibit E4) that the Applicant had to report the incident. He had a responsibility to make sure that it was reported and he did. Whether 49 minutes is too long is a question of judgement. It partly depends on one’s view of the severity of the incident. My view is that the Respondent’s witnesses embellished the possible danger to the casual employee of the incident. There was no suggestion of danger to other employees.

[46] The Applicant also says that the urgent job he had to complete justified his approach. I do not think that, taking all the circumstances into account, there was a valid reason for dismissal arising from the 16 November incident.

[47] The Respondent sought to rely on the Applicant’s previous warning. I do not think that this assists to provide a valid reason. It was a spur of the moment reaction which was different to the 16 November incident.

[48] This the Applicant’s explanation for the incident:

“[148] THE DEPUTY PRESIDENT:  Can I just ask you before Mr Beard has got anything in re-examination, attached to your statement is a warning letter that you received previously and this is one of the things that is relied on by the company in dismissing you.  It's a warning letter of 17 December 2015?---Yes.

[149] Attached to it is a letter of apology really by you.  I have read both of those, but it's still not clear to me what the warning was for completely.  Can you explain that?---Yes.

[150] In your words?---Leading up to that incident, I had the death of my mother - - -

[151] Yes, but what was the incident?---The actual incident?

[152] Yes?---I was using a Reo bending machine, which actually bent a round bar into a particular shape.  I had reported numerous times to have the machine repaired because it wasn't operating properly.  At one stage I had actually - when bending the - I was using a 16 mil Reo bar which is quite a big bar.  The machine would go in reverse all of a sudden with no warning and quite - I was able to get it out because I was using short lengths.  On the incident that happened, I was using an extra bigger bar.  It came around and swept me off - hit me in the leg, knocked me to the ground.  Out of frustration, I grabbed the bar and hit the machine.” (Transcript PN 148 – 152)

[49] Overall, I am not satisfied that there was a valid reason for the dismissal of the Applicant.

Notification of a valid reason – s.387(b)

[50] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[51] The Respondent met with the Applicant on 17 and 21 November. The 22 November “show cause” letter required a written response from the Applicant by 10.30 am on 24 November and scheduled a meeting at 2.00 pm. In the circumstances, I do not think that requiring a written response was reasonable nor was the time frame allowed reasonable especially as there was a contest about the facts.

[52] I am not satisfied that the Respondent carried out an appropriate investigation process which gave the Applicant and the AWU a fair opportunity to be heard.

Opportunity to respond s.387(c)

[53] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[54] Mr Rindo’s evidence was that his request for the meeting to be rescheduled and for the Applicant to be given an opportunity to make a verbal response was refused. The Respondent denies that Mr Rindo requested a delay in the meeting. The opportunity to attend the 24 November meeting was not taken up by the Applicant. Mr Rindo was still away.

[55] Mr Rindo’s evidence, which I accept, was contained in the following cross-examination:

“[180] My recollection is, on the 23rd, you spoke to Mr Simon and then I phoned you 10 minutes' later and actually walked you through the process in terms of a written response and then we would have a verbal meeting at 2 o'clock the same afternoon.  At no point did you request for any extension?---Previous to that, I did request extensions and at the end I - - -

[181] When?  Sorry?---Then I wrote a request out and sent it to you before the meeting was on.

[182] So your letter that you sent us was received at the time of the written response, which was due on the 24th.  Is that correct?---I sent you the letter there.  It would have been about four minutes past 10 in the morning and the meeting was 2 o'clock in the afternoon.

[183] No, there was a written response which was due at 10 am in the morning if Mr West would have wanted to submit a written response and then a verbal discussion was scheduled for 2 pm that afternoon?---I sent you that letter, which is there, at 10.04 in the morning requesting more time for the meeting.  It's written down there.

[184] Yes, so I suppose our view is that at no time did you actually request a formal extension to the time.  Your conversation with Mr Simon was that we're now in a dispute under the enterprise agreement and we advised that - Mr Simon advised at that time that Mr West was able to come in and have a conversation with us at 2 pm, but at no point was there any formal request made?---I told Allan, "We're not going to the meeting.  I've sent a letter.  We need further time" - that was before the meeting - "to discuss more of what's happening, so we get more information."

[185] Given our conversations - you say the conversations with Mr Simon on the 21st - the show cause letter was issued to Mr West on the 22nd.  Why did we get a letter on the 24th when, you know, you could have actually requested a formal request prior to that date?---On the 21st, I rang Roy Simon up.  I was in Newcastle hospital.  He was on a phone conference.  He rang me back.  I wasn't going to get back to Tamworth until after - on the 22nd or vice versa.  I had a phone call from Allan and I told him to attend the meeting.  "Do not say nothing.  Just sign the letter.  Attend the meeting and then we'll sort it out when I get back home - when I get back from Newcastle."  Then I spoke to you on the phone again - to Roy - "Can we talk about this?" and then he - I can't remember exact words and he didn't want to do that, and I think you got on the phone after.  You rang me back about this.  After I sent the letter, I got - I think it was after you sent the letter, you got straight back.  I said, "We're not attending the meeting," and said, well - the email was saying that, "We're going to go on with whatever goes on whether you're there or not."  Whatever you reckon is fair.

[186] I will just make one correction.  You actually advised Mr West not to sign the letter?---Yes, I did.  I said, "Do not sign the letter because once your signature is on it, you've opened yourself" - and we've got to go through the whole procedure first to make sure everything is above board.

[187] I would challenge your statement in terms of there was no formal response to delay any response time by Mr West.  Your statement actually excludes a conversation that you and I had, and that was clearly not requested in our conversation.  We gave Mr West ample opportunity to provide input into a response.  Would you not agree to that?---No, I disagree with that, because Allan was - at the time he has been stood down.  He is under pressure.  He has come and seen me.  He wanted some more information, what to do, and I gave him information to the best of my knowledge what to do.  That's why we pursued these ways and you had whole knowledge, as you said - the letter there what we sent to you - exactly what we really wanted.  He is more than happy to oblige whatever was asked of him, but as is written down there, never got the opportunity to basically.

…

[193] MS ELKS:  I was merely making a statement that you and I had gone through on the 23rd - it was around lunchtime - very clearly the steps in terms of we would expect a written response, we would then go into an interview in the afternoon and if we didn't get the written response, then we would obviously have the interview, you could have your verbal opportunity to engage with us then and then we would make a decision.  Why on the afternoon of the 23rd did you not present us with a formal request to delay - - -?---I presented it before the meeting, at 4 minutes past 4.  I sent it to you and that's what is in the letter, and that's what I asked for and you didn't come back to - you said no.  You said, "We're going to continue on with the meeting."  That's what happened.  Anyway, that's it. (Transcript PN180 – 187, 193)

[56] I am satisfied that the Respondent knew that the AWU was seeking that the process be delayed so that Mr Rindo could be involved and the information requested in the AWU letter of 24 November could be considered. Mr Simon confirmed that Mr Rindo requested on the phone on 21 November that the 22 November “show cause” meeting be delayed. It was obvious from the 23 November telephone exchanges, Mr Rindo’s letter of the morning of 24 November and his statement that we are “in dispute”, that the Applicant and the AWU wanted the process delayed.

[57] The fact that the Applicant did not attend the 24 November meeting does not detract from the unfairness of the process. Mr Rindo, for example, did not have an opportunity of reviewing the CCT film.

[58] I am therefore not satisfied that the Applicant had an opportunity to respond as required by s.387(c).

Unreasonable refusal by the employer to allow a support person – s.387(d)

[59] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[60] There was no support person at the 17 and 21 November meeting. The Respondent raised the issue on 22 November. Of course, the subsequent process meant that the Applicant and his support person did not participate in the 24 November meeting.

Warnings regarding unsatisfactory performance – s.387(e)

[61] This factor was not relevant in this case.

Impact of the size of the Respondent on procedures followed – s.387(f)

[62] The Respondent is a large business so this was not a factor.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[63] It follows that this was not a factor.

Any other matter that the FWC considers relevant

[64] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[65] I do not think that the Respondent took adequate account of:

● The Applicant’s age;

● The difficult of obtaining a comparable job in a regional area;

● His satisfactory work record that meant he was promoted to leading hand.

[66] Even if a view was taken that the Respondent’s policy required reporting of the incident immediately by the Applicant, which I do not, dismissal would be too harsh a punishment.

[67] I have found that there was no valid reason for the dismissal. I also find that the deficiencies in the Respondent’s process make the dismissal unjust. Because of the factors I have considered, pursuant to s.387(h), I find the dismissal to be harsh. I therefore find the dismissal to be harsh, unjust and unreasonable. Accordingly, I find the dismissal to be unfair within the terms of s.385.

Remedy

[68] Having found that the dismissal was unfair, I now turn to the appropriate remedy.

[69] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation.

“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.”

[70] I have already dealt with the issues at s.390(1)(a)-(b) above. I am satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[71] Reinstatement is the primary remedy and I can see no reason why it is inappropriate in this case.

[72] The Applicant presented as a responsible person. There was no issue raised as to his work attendance or attitude. I am confident he will be able to resume his role as a Leading Hand. I am sure that this episode will have made him more conscious of health and safety requirements. I see no evidence of any real breakdown in the work relationship.

Conclusion

[73] I find the Applicant was protected from unfair dismissal that his dismissal was unfair and a remedy of reinstatement to his former position is appropriate. He claims maintenance of continuity of employment and restitution of lost wages pursuant to s.381(2)(3)(4). The Applicant has only received about $3,000 as a labour hire casual since the dismissal.

[74] I will order reinstatement of the Applicant to his former position. I find that maintenance of continuity of employment is appropriate. I will also order restitution of lost wages between the dismissal and the date of this decision, less $3,000 and less the payment he received in lieu of notice.

[75] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a “fair go all round”.

[76] An Order (PR592591) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

G. Beard for the Applicant;

L. Elks for the Respondent.

Hearing details:

2017

January 18 (telephone mention);

March 16.

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<Price code C, PR592490>