| [2017] FWC 4379 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Robert Marangon
v
Queensland Property Investments Pty Ltd
(U2017/4271)
COMMISSIONER CAMBRIDGE |
SYDNEY, 29 AUGUST 2017 |
Unfair dismissal - summary dismissal - breaches of safety procedures - no valid reason for summary dismissal - nature of misconduct not basis for summary dismissal - valid reason for dismissal with notice - summary dismissal unjust and unreasonable - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 20 April 2017. The application was filed by the National Union of Workers (the Union), and made on behalf of Robert Marangon (the applicant). The respondent employer is Queensland Property Investments Pty Limited (ABN: 92 009 661 027) (the employer or Woolworths).
[2] The application indicated that the date that the applicant’s dismissal took effect was 5 April 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 2 and 3 August 2017.
[4] The Commission granted permission under s. 596 of the Act for the Parties to be represented by lawyers or paid agents. The applicant was represented by Mr M Burns, a legal practitioner from the firm of McNally Jones Staff. Mr Burns called the applicant as the only witness who provided evidence in support of the unfair dismissal claim. Mr Burns introduced further evidence in the form of witness statements from two other individuals who were not required for cross-examination.
[5] The employer was represented by Mr R Warren, barrister, instructed by Ashurst Australia lawyers. Mr Warren called two witnesses who provided evidence on behalf of the employer. Mr Warren also introduced a witness statement from another individual which was admitted into evidence without the need for that person to be cross-examined.
[6] The applicant had worked for the employer for about 14 years. At the time of his dismissal the applicant was employed as a Level 6 Section Leader. The applicant worked in the salvage area of the employer’s Sydney Regional Distribution Centre located in the Sydney suburb of Minchinbury (the Sydney DC).
[7] The employer is part of the Woolworths Group of Companies, and it is the employing entity for the employees engaged at the Sydney DC. The Sydney DC is one of a number of distribution centres operated by Woolworths Limited. The Sydney DC receives perishable and non-perishable goods from suppliers which are subsequently distributed to Woolworths’ retail stores in the Sydney region.
[8] The Sydney DC includes a salvage area which contains a large open plan area with a series of elevated finger docks. The work undertaken in the salvage area essentially involves the collection, sorting, storage and dispatch of store equipment and packaging materials such as pallets, crates, bins and rejected stock. These items of salvaged store equipment and other materials are dispatched to external suppliers or other receivers.
[9] The work undertaken in the salvage area involves the use of various items of mobile handling equipment including forklifts of different sizes. The applicant, and other employees working in the salvage area, would frequently operate the mobile handling equipment, particularly the forklifts, in the course of their duties.
[10] On Friday, 17 March 2017, at approximately 11:30 am, an incident occurred in the salvage area of the Sydney DC which involved a Linde brand forklift (the first forklift), that was driven too close to the edge of a finger dock such that it became immobilised when one of the back wheels of the first forklift fell over the dock edge. The first forklift was being driven by an operator named Geoffrey Kirk, and the applicant was the Section Leader with supervisory responsibility for, inter alia, the work of Mr Kirk.
[11] The 17 March incident which commenced when Mr Kirk drove one of the wheels of the first forklift off the dock, and the subsequent series of events which culminated with the wheel of the first forklift being repositioned back onto the dock, were recorded on CCTV. The CCTV vision of these events became evidence in proceedings, as a CD marked as attachment “AG-3” to Exhibit 9.
[12] The CCTV record (“AG-3”) relevantly verifies a sequence of activities which involved the applicant directing another forklift operator, Romel Ishaq, to use the forklift that he was driving (the second forklift), to attempt to reposition the wheel of the first forklift back onto the dock. Following the unsuccessful attempts made by Mr Ishaq to reposition the wheel of the first forklift back onto the dock, the applicant left the dock area and called the maintenance department seeking their assistance to reposition the wheel of the first forklift back onto the dock.
[13] The CCTV record shows the subsequent arrival at the scene where the first forklift was immobilised, of a third forklift driven by a member of the maintenance department by the name of Parma Nand. Mr Nand can be seen to take photographs of the area of the dislocated wheel of the first forklift. Mr Nand then uses the third forklift to attempt to return the dislocated wheel of the first forklift back onto the finger dock. The initial attempts made by Mr Nand are undertaken in a similar manner to that used by Mr Ishaq, and these attempts are similarly unsuccessful. Mr Nand then used a different technique to that used by Mr Ishaq, and he eventually repositioned the wheel of the first forklift back onto the dock, thereby freeing the immobilised first forklift. Mr Kirk then drove the first forklift away from the scene of the incident.
[14] After the incident, the applicant and Mr Kirk both made respective written reports about the incident involving the wheel of the first forklift being driven off the dock, and the subsequent repositioning of the wheel of the first forklift by Mr Nand from the maintenance department. These written reports were provided to the relevant managerial staff at about 2 pm on the day of the incident.
[15] The relevant managers reviewed the written reports provided by the applicant and Mr Kirk, and the employer decided to immediately suspend Mr Kirk from forklift duties until an investigation into the incident had been completed. The applicant was not suspended or restricted from any duties, and he worked the following two days, Saturday, 18 and Sunday, 19 March, before he was rostered off duty for Monday, 20 and Tuesday, 21 March.
[16] On Monday, 20 March, the employer continued its investigation into the 17 March incident and relevant managers viewed the CCTV footage of the event. As a result of the review of the CCTV, the employer suspended the driver of the second forklift, Mr Ishaq, from forklift duties pending the outcome of the investigation. Also on Monday, 20 March, the employer interviewed the driver of the first forklift, Mr Kirk. Following this interview, the employer formed the view that the 17 March incident involved, at least potentially, a serious breach of safe working procedure such that it would interview the applicant immediately upon his return to work on Wednesday, 22 March 2017.
[17] On Wednesday, 22 March, the applicant was interviewed about the 17 March incident and he was suspended with pay from all duties pending the outcome of the investigation. On Friday, 24 March, the driver of the third forklift, Mr Nand, was interviewed by the employer. On Saturday, 25 March, the employer interviewed the driver of the second forklift, Mr Ishaq who had earlier been suspended from forklift driving duties. Also on Saturday, 25 March, the employer conducted interviews with other employees who had witnessed the 17 March incident.
[18] On Monday, 27 March, the employer considered the circumstances of the 17 March incident, and it determined that the applicant should be asked to show cause as to why his employment should not be terminated on the basis of the applicant’s role in what was considered to be a serious breach of safe working procedures. On 30 March, the applicant and his support people attended a meeting with the employer at which time the applicant was given a show cause letter. The show cause letter referred to the 17 March incident, and certain findings that the employer had made as a result of its investigation into that incident. Further, the show cause letter required a written response from the applicant by 3 April 2017, and advised that a further meeting would be held on 5 April. The applicant and his support people were also provided with an opportunity to view the CCTV footage of the 17 March incident.
[19] The applicant provided the employer with a written response dated 31 March, which, inter alia, addressed the various findings that were mentioned in the show cause letter of 30 March. The employer considered the applicant’s written response to the show cause letter prior to the meeting that had been scheduled for 5 April.
[20] On 5 April, the applicant’s Union representatives arrived at the employer’s premises prior to the time set for the commencement of the scheduled meeting. The Union representatives were granted a request to view the CCTV footage of the 17 March incident. The scheduled meeting was delayed to enable the Union representatives to view the CCTV. The meeting then commenced, and the employer articulated its findings and conclusions drawn from the investigation into the 17 March incident. Following two breaks to the meeting, the applicant was advised that his employment had been terminated and this advice was confirmed with a letter of dismissal dated 5 April 2017.
[21] The letter of dismissal stated, inter alia, that the employer had considered the behaviours and acts of the applicant and determined that his conduct represented serious misconduct. Further, the letter relevantly advised: “This is a summary dismissal and you will not be paid in lieu of notice.”
[22] Since the termination of employment the applicant has sought and obtained some temporary employment through the services of an employment agency. At the time of the Hearing that employment had ceased.
[23] Mr Burns, solicitor, who appeared for the applicant, made oral submissions in elaboration of the written submissions which had been provided on behalf of the applicant. In summary, the submissions made on behalf of the applicant asserted that there was not a valid reason for the dismissal of the applicant. In particular, it was submitted that the circumstances of the 17 March incident did not justify the applicant’s summary dismissal.
[24] In reference to the 17 March incident, Mr Burns submitted that the employer had exaggerated the seriousness of the event, and, that on any objective analysis, the penalty of termination of employment was entirely disproportionate to the nature and severity of the applicant’s conduct in respect to the 17 March incident. Mr Burns submitted that the exaggerated seriousness with which the employer treated the 17 March incident was reflected by evidence that the employer had not considered any other outcome for the applicant other than the termination of his employment.
[25] Mr Burns further submitted that the absence of valid reason for the dismissal of the applicant was supported by what he described as the differential treatment that the employer provided for other individuals who were involved at different stages of the 17 March incident. Mr Burns submitted that the applicant had made an assessment of the immobilised forklift and he believed that he was able to rectify the situation without great difficulty. According to the submissions made by Mr Burns, although the applicant’s assessment of the circumstances may have been inappropriate it ultimately turned out to be correct as the forklift was ultimately relocated using another forklift driven by Mr Nand.
[26] The submissions made by Mr Burns examined in some detail the particular aspects of the applicant’s conduct during the 17 March incident. Mr Burns noted that there was no evidence that the applicant had placed himself or any other employee in danger and that he was always a safe distance from the second forklift when it was making the initial attempts to relocate the first forklift. Further, according to the submissions made by Mr Burns, there was evidence that it was common for forklifts to be used to move other forklifts in the circumstances as presented on 17 March.
[27] In further submissions, Mr Burns acknowledged that the process that the employer had adopted by way of its investigation into the 17 March incident was broadly not in dispute. However, Mr Burns made submissions which criticised that the employer had not previously mentioned two earlier incidents which involved the applicant, and which had been introduced as evidence in proceedings. Mr Burns also made submissions which were critical of the inexperience of one of the employer’s managers who had primary responsibility for undertaking the investigations into the 17 March incident. Consequently, Mr Burns submitted that the applicant did not have an opportunity to properly respond to issues regarding prior incidents during the actual investigation into the 17 March incident.
[28] Mr Burns further submitted that the applicant had not been counselled nor suspended from forklift driving. Instead, Mr Burns said that the employer went straight to summary termination which he described as the “highest bar” and something that “… you get from stealing in your employment or fighting.” Mr Burns reiterated that there was no evidence that the employer had considered any other sanction, and that such an approach was “unbelievable” given that the applicant was a man of 60 years of age with 15 years employment history.
[29] In summary, the submissions made on behalf of the applicant asserted that the dismissal of the applicant was an entirely inappropriate penalty for the particular circumstances involving the 17 March incident. Mr Burns said that it was a case where the punishment did not fit the crime. Consequently, according to the submissions made by Mr Burns, the dismissal of the applicant was harsh, unjust and unreasonable.
[30] Mr Burns made further submissions on the issue of appropriate remedy. In this regard, Mr Burns said that reinstatement of the applicant should be provided together with back pay taking into account amounts that the applicant had earned during his temporary, alternative employment since dismissal. Mr Burns stressed that the applicant sought reinstatement as remedy for his unfair dismissal. However, in a further submission Mr Burns indicated that if the Commission was of the mind not to reinstate but to award compensation to the applicant, there should be no deduction made for any misconduct on the part of the applicant.
[31] The employer was represented by Mr Warren, barrister, who referred to and relied upon expansive written submissions that had been made on behalf of the employer. The written submissions made on behalf of the employer were broadly constructed by reference to the various factors contained in s. 387 of the Act. Mr Warren relied upon this material and provided further oral submissions.
[32] Mr Warren submitted that the employer had a valid reason for the dismissal of the applicant. The valid reason for the dismissal of the applicant was examined in detail by reference to identified aspects of the conduct of the applicant during the 17 March incident. Mr Warren said that particular failures of the applicant to comply with established and understood safe work practices could be clearly identified by examination of the CCTV footage. Mr Warren submitted that when the series of events that occurred during the 17 March incident were examined and considered, the conduct of the applicant that was revealed established valid reason for his dismissal.
[33] Mr Warren made submissions which referred to various policy and procedure documents that the employer had promulgated regarding safe work practices and procedures. It was submitted that the applicant had been trained in and had knowledge of the correct procedures to manage and report events such as the 17 March incident. However, Mr Warren submitted that the applicant had disregarded the established safe work practices whereby he; (a) failed to isolate and secure the scene of the incident, (b) instructed another, untrained, employee to attempt to reposition the forklift, (c) did not immediately report the incident to a relevant manager, (d) left the unsecured scene of the incident, and (e), it further became clear that he had made a telephone call whilst driving a forklift vehicle.
[34] According to the submissions made by Mr Warren, the actions of the applicant in respect to the 17 March incident provided sound, defensible basis for the dismissal of the applicant. In this regard, Mr Warren submitted that the applicant had intentionally disregarded a series of well understood safe work practices. Mr Warren stressed that the applicant was the most senior person present at the scene of the 17 March incident, and he had responsibility for acting in accordance with what he knew to be the correct safe work practices.
[35] Mr Warren further submitted that the Commission should reject the applicant’s assertion that the punishment of dismissal did not fit the crime. Mr Warren made submissions which suggested that the applicant provided misleading information to the investigator particularly in respect to the order of events as they had occurred during the 17 March incident. Further, Mr Warren submitted that the applicant had initially stated that the forklift was not moving when he was on the phone, and that proposition had now clearly been disproven by the CCTV footage.
[36] The further submissions of Mr Warren raised doubt as to the general credibility of the applicant. It was submitted that the evidence provided by the applicant introduced contest about matters that had not been raised in response to the material filed by the employer, and further, the applicant introduced new evidence for the first time during his attendance in the witness box. Mr Warren submitted that the Commission should have serious doubt as to the overall veracity of the evidence of the applicant. Mr Warren said that it was of concern that the applicant had not openly admitted that he had failed to properly adhere to the safe work policies and procedures, but instead he had endeavoured to equivocate over the identification of notification to a particular manager. Mr Warren submitted that in this case the applicant had not done himself any favours as he tried to reconstruct the events to suit his own circumstances.
[37] Mr Warren summarised his submissions by stating that there was clearly valid reason for termination. Further, Mr Warren said that the applicant had every opportunity to respond to the matters which were the subject of the employer’s investigation into the 17 March incident. Mr Warren further submitted that the applicant had not been denied the opportunity to have the assistance of his support people who were involved during various stages of the investigation process. Consequently, according to the submissions made by Mr Warren, the employer had correctly formulated its findings in that the applicant had engaged in serious misconduct which justified his dismissal and the process that the employer had adopted was entirely fair and appropriate.
[38] By way of a further, alternative or secondary submission, Mr Warren indicated that if the issue of harshness arose and some remedy was contemplated, the Commission should be concerned about any re-establishment of the employment relationship. In this regard, Mr Warren submitted that there was particular difficulty whereby the applicant refused to accept that he had done the wrong thing and instead he blindly denied that he had done anything wrong. In these circumstances, Mr Warren submitted that it would not be appropriate to provide for any remedy involving the re-establishment of the employment relationship.
[39] In conclusion, Mr Warren returned to his primary submission, and he asserted that there was valid reason for the dismissal of the applicant. Further, Mr Warren said that the process by which the employer investigated the 17 March incident, and determined that the applicant’s role in relevant events constituted a series of serious safety breaches amounting to misconduct, provided proper opportunity for the applicant to respond, together with any assistance from support people that he wished for. Consequently, Mr Warren submitted that the dismissal of the applicant was for valid reason and without procedural error. Therefore, Mr Warren submitted that the Commission should find that the termination of the applicant’s employment was an appropriate outcome and the unfair dismissal application should be dismissed.
[40] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[41] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[42] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[43] This was a case of summary dismissal. Summary dismissal is the most severe form of termination of employment. By its nature, summary dismissal indicates and records some very serious wrongdoing. Summary dismissal is implemented without any notice or payment in lieu of a period of notice. A summary dismissal may also remove entitlements to certain service related payments such as accrued long service leave. (In this instance, the applicant was paid all his accumulated leave entitlements.) Summary dismissal should be clearly distinguished from a dismissal with notice or payment for the notice period.
[44] The reason for the summary dismissal of the applicant was directly related to his conduct surrounding and following the 17 March incident. Any consideration as to whether that conduct provided a valid reason for dismissal should logically have regard for the summary nature of the dismissal. In simple terms, what may be a valid reason for a dismissal with notice, may not be a valid reason to dismiss someone summarily.
[45] Any employer should be very cautious about invoking a summary dismissal, as opposed to dismissal with the required notice. In this regard, it is relevant to repeat an extract from the Judgement of Mr Justice Hungerford in the case of Pastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v. Gartrell White (No 3), (Gartrell White) 1:
“The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it.” 2
[46] The following further extract from the same Judgement is relevant:
"...the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future." 3
[47] Much of the recent case law on the question of what particular conduct may justify summary dismissal has developed from a line of authority which, for present purposes, can be conveniently traced back to the case of Laws v. London Chronicle (Indicator Newspapers) Limited. 4 Although this was an English case from 1959, it established the concept that any conduct which is relied upon to provide basis for summary dismissal must "... have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions." 5
[48] The letter of dismissal dated 5 April 2017, referred to the applicant’s actions in respect to the 17 March incident, and further mentioned that during the investigation into that incident the applicant was found not to have provided credible responses. The combination of these behaviours and acts were deemed to be serious misconduct, a serious breach of the employer’s Code of Conduct and Site Safety Induction, Woolworths Group Safety and Health Policy.
[49] However, a careful examination of the CCTV vision of the 17 March incident does not demonstrate that the actions of the applicant involved a deliberate flouting of the essential contractual conditions which underpin the employment. Although the applicant’s actions were manifestly contrary to safe work practice, his erroneous activities were entirely devoted to attempts to get the first forklift remobilised as quickly as possible. Thus, when properly analysed, the applicant’s misconduct during the 17 March incident did not involve activity which could be construed to be a deliberate and direct attack upon one or more of the essential elements of the employment relationship.
[50] Further, in this case, it was surprising to find that the employer decided to invoke a summary dismissal, as opposed to dismissal with notice, in respect to an incident after which the applicant had performed further work without any restriction. Although on the afternoon of 17 March, the employer had not had the benefit of examining the CCTV vision, it had a broad understanding of the nature of the incident including the applicant’s role in requesting the second forklift operator to endeavour to “push the fork back onto the dock” 6. In the circumstances, the absence of any immediate suspension or restriction upon the applicant has meant that the employer could not subsequently invoke a summary dismissal of the applicant as opposed to dismissal with notice.7
[51] The circumstances which may provide for summary dismissal as opposed to dismissal with notice, are examined in detail in the often quoted sourcebook, Macken’s Law of Employment 8 and it is particularly relevant to note the following extract from that text where it is stated:
“…no rule of law defines the degree of misconduct which would justify summary dismissal without notice. This is a matter which turns on the facts and circumstances of each case.” 9
[52] In this instance, the misconduct of the applicant which involved his activities during the 17 March incident, and his subsequent responses during the employer’s investigation into that event, does not possess any characteristic of wilful attack against the employment relationship. Upon careful evaluation, the misconduct of the applicant cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for summary dismissal as opposed to dismissal with notice.
[53] A proper analysis of all of the evidence involving the misconduct of the applicant in respect to the 17 March incident, and his subsequent responses during the employer’s investigation of that event, has established that there was not a valid reason for the summary dismissal of the applicant. However, a proper evaluation of the misconduct of the applicant has led to the prospect that if the employer had decided to implement dismissal with notice, then valid reason for such a dismissal would have existed.
[54] The applicant’s participation in the 17 March incident could be generously construed to represent the well-meaning but foolhardy endeavours of a diligent employee seeking to keep the wheels of the employer’s business rolling. Unfortunately, the applicant’s subsequent responses to the employer’s investigation, and his on-going assessment of his role in the 17 March incident, have provided basis upon which the employer has understandably lost the necessary trust and confidence to maintain the employment relationship.
[55] The applicant provided what might be described as equivocal responses about important issues such as; (a) his use of a mobile phone whilst driving a forklift; (b) the sequence of the particular events when he attempted to remobilise the first forklift before seeking assistance from the maintenance department; and (c) an assertion that contacting the maintenance department represented a report to the relevant manager.
[56] Further, and most alarmingly, during the employer’s investigation process the applicant failed to appreciate and acknowledge the significant mistakes that he made during the 17 March incident. Regrettably, the applicant has continued to demonstrate that he has failed to grasp the serious misconduct involved in his actions during the 17 March incident for example, he provided the following evidence during re-examination:
“Your evidence as I understand it is that at all times you thought you were doing the right thing? --- I think so. I believe so.” 10
[57] Regrettably, this evidence was adduced during questioning from the applicant’s own representative, and it was not qualified by any acknowledgement that even if the action taken during the 17 March incident was considered at that time to be correct and appropriate, upon careful reflection and reconsideration it involved significant mistakes. The approach that the applicant adopted as defence of his actions during the 17 March incident was destined to fail because he engaged in numerous breaches of safe work procedures that can be clearly identified from even a cursory viewing of the CCTV footage. Even if at the time of the 17 March incident, the applicant genuinely believed that he was acting in accordance with established safe work procedures, such a belief could not be sustained following any objective contemplation of the vision provided by the CCTV footage. The failure of the applicant to recognise his mistakes has compounded the misconduct.
[58] Consequently, a proper and thorough analysis of all of the evidence surrounding the misconduct of the applicant during the 17 March incident, and his subsequent responses during the employer’s investigation into that event, has confirmed that the applicant’s actions did not provide valid reason for summary dismissal. However, the misconduct of the applicant during the 17 March incident, combined with his subsequent responses during the employer’s investigation would have provided sound, defensible basis for dismissal with notice.
[59] The employer provided written notification of the reasons for the applicant's dismissal. The written notification was firstly provided by way of the show cause letter dated 30 March 2017, and subsequently reiterated in the termination of employment letter dated 5 April 2017.
[60] The employer conducted an extensive and detailed investigation into the 17 March incident and the role of the applicant in that event. The applicant was given an opportunity to respond to allegations which arose from the investigation. The applicant provided a written response to the issues which were raised in the show cause letter of 30 March 2017.
[61] The employer did not unreasonably refuse or otherwise avoid the presence of a support person to assist the applicant at any stage of the investigation. The applicant was accompanied by support people at both the show cause meeting of 30 March, and the subsequent termination meeting held on 5 April 2017.
[62] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.
[63] The employer is a large business operation and broadly adopted appropriate procedures in respect to the investigation into the allegations made against the applicant.
[64] There was no evidence that the employer did not have management specialists or other expertise.
[65] The evidence revealed that the employer adopted a degree of inconsistent treatment between the various individuals who were participants in and observers of the 17 March incident. It was clear that the applicant was the most senior employee with immediate responsibility to deal with the 17 March incident and he failed to follow various fundamental safe work practices for which he has paid the high price of the loss of his employment.
[66] However, there were various other individuals who were involved in the incident and who received considerably lesser disciplinary responses than the applicant. The first and second forklift drivers apparently received formal warnings, and there was no sanction for the third forklift driver. However, at no stage did any of the employees who were either directly involved in the incident or the various interested bystanders, take any step to properly secure the site of the incident.
[67] The third forklift driver was apparently trained in the techniques for relocating a forklift in circumstances such as those presented during the 17 March incident. The third forklift driver apparently obtained managerial authority to proceed with the relocation of the first forklift via telephone and having sent the photographs of the incident to the relevant manager. However, the site of the incident had not been secured at any time, and the first forklift driver became actively involved in the recovery operation at the invitation of the third forklift driver. It would seem to have been appropriate for a relevant manager to have been in attendance at the scene of the incident before any relocation attempts were made by anyone.
[68] Consequently, the applicant may have some legitimate basis to complain of differential treatment, in that his dismissal may be seen to be a disproportionate penalty when compared to the employer’s treatment of others that were involved in the incident. Further, the stringent requirement for adherence to safe working procedures is the responsibility of all employees and management. A fair and objective analysis of the 17 March incident should have included scrutiny of various other apparent failures, including an analysis as to whether the actual presence of a responsible manager should be a mandated requirement before any relocating procedure of an immobilised forklift is commenced.
[69] It is also relevant to mention the absence of any consideration for penalty other than dismissal of the applicant. There was evidence that the employer did not consider a lesser penalty other than summary dismissal. 11 It appeared that the fixed approach of the employer which was focused upon dismissal rather than any lesser penalty, may have emerged as a consequence of the applicant’s responses during the investigation, and his absence of any contrition or recognition for his wrongdoing.
[70] In this case the applicant was summarily dismissed for serious misconduct involving his participation in a serious breach of safety incident and his responses to the employer’s investigation into that incident. Upon proper analysis, the nature and severity of the misconduct of the applicant could not provide sound, valid reason for summary dismissal.
[71] The employer invoked a summary dismissal in circumstances where it was aware that the employee had performed work without restriction following the particular misconduct event. In these circumstances, the employer was deprived of the capacity to dismiss without notice. This particular procedural error made by the employer has rendered what would have otherwise been a fair dismissal with notice, to be an unreasonable and unjust summary dismissal.
[72] Therefore, the summary dismissal of the applicant must be held to have been unreasonable and unjust. The applicant is entitled to remedy for unfair dismissal.
[73] The applicant has sought reinstatement as remedy for his unfair dismissal. In this instance, there was no valid reason for summary dismissal. However, there was a valid reason for the dismissal of the applicant with notice for his serious misconduct involving both the 17 March incident, and his subsequent responses during the employer’s investigation of that event. The particular nature of that serious misconduct has provided proper basis upon which the employer would have legitimately lost trust and confidence in the applicant. Therefore, any remedy of reinstatement would be inappropriate. Alternatively, in the particular circumstances of this case, the appropriate remedy would be some limited amount of compensation.
[74] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 12 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd13.
[75] Firstly, I confirm that an Order of payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[76] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter, including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act. In particular, I mention that there was no evidence of any effect that any Order of compensation would have on the viability of the employer’s enterprise. The applicant had been employed for a considerable period of about 14 years.
[77] I note that the applicant has made efforts to mitigate his loss, and I have taken into account remuneration that he has received from alternative, short-term employment. I also note that the amount of compensation that I am prepared to provide does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal. In the circumstances of this matter, I believe that it would be appropriate to Order an amount of compensation commensurate with the notice period that the applicant should have received.
[78] Consequently, for the reasons outlined above I have decided that an amount approximating with five weeks remuneration at the ordinary weekly rate before dismissal, should be Ordered as compensation to the applicant. That amount is $6,898.00. Accordingly, a separate Order [PR595541] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr M Burns, solicitor from McNally Jones Staff appeared for the applicant.
Mr R Warren of Counsel, together with Ms A Linton, solicitor from Ashurst Australia appeared for the employer.
Hearing details:
2017.
Sydney:
August 2, 3
1 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3), Industrial Commission of NSW, [Hungerford J], 35IR @ page 70.
2 Ibid @ page 84.
3 Ibid @ page 74.
4 1 WLR [1959] @ 698.
5 Ibid @ 701.
6 Exhibit 9 – Annexure “AG-1”
7 See for example: McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan J], 25IR 107 @ page 114.
8 Macken’s Law of Employment , [Sappideen et al,] Seventh edition, Lawbook Co.
9 Ibid @ [8.190] page 315.
10 Transcript @ PN768.
11 Transcript @ PN1146.
12 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
13 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
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