[2018] FWC 654
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Daniel Palmer
v
USG Boral Building Products Pty Ltd
(U2016/6326)

COMMISSIONER CIRKOVIC

MELBOURNE, 31 JANUARY 2018

Application for relief from unfair dismissal – Appeal against decision ([2017] FWC 147) and order (PR589201) of Commissioner Cirkovic at Melbourne on 9 January 2017 in matter U2016/6326 – permission to appeal granted – matter referred back to Commissioner Cirkovic to hear and determine.

Introduction

[1] In Daniel Palmer v USG Boral Building Products Pty Ltd1 the Full Bench quashed a Decision2 and Order3 at first instance, referring Mr Palmer’s application for an unfair dismissal remedy back to me to hear and determine.

Background

[2] Mr Daniel Palmer (the Applicant) was employed by USG Boral Building Products Pty Ltd (the Respondent) as a product handler. 4

[3] The Respondent is a plasterboard, compounds, cornice, and other gypsum related building products manufacturer. The Respondent has three manufacturing plants in Australia. 5

[4] The Applicant was employed by the Respondent on 13 November 2013. He was employed at the Respondent’s Port Melbourne plant, principally to operate a forklift and load product onto delivery trucks. 6 The Respondent dismissed the Applicant on 30 March 2016.7 I have set out below the incidents that the Respondent alleges form the basis of the Applicant’s dismissal:

Incidents of 3 December 2015

[5] On 3 December 2015 the Applicant was observed lifting a pallet of plasterboard over a parked semi-trailer and lifting a load over a stacker at the Port Melbourne Plant. 8 The Respondent alleged that the Applicant performed unsafe forklift manoeuvres.9 Following these incidents, the Respondent handed the Applicant a letter that required the Applicant to attend a meeting to discuss the unsafe forklift manoeuvres. It is uncontested that the meeting of 14 December 2015 resulted in a positive discussion between the Applicant and the Respondent and that the Applicant seemed to understand what he needed to do in the future.10

[6] In my decision at first instance, I found that the incidents of 3 December 2015 occurred and rejected any assertion made by the Applicant that these incidents could not contribute to a finding as to a valid reason for the Applicant’s termination.

Incidents of 18 December 2015

[7] On 18 December 2015 the Applicant was loading two pallets of cornice onto a delivery truck with a forklift at the Port Melbourne plant. 11 During the manoeuvre, the load the Applicant was lifting was dislodged and fell, almost hitting the jockey.12

[8] Following an investigation into this incident, which included meetings between the Applicant and representatives of the Respondent on 22 and 23 December 2015, the Respondent issued a first and final warning to the Applicant during a meeting on 14 January 2016, 13 stating:

“First and Final Written Warning

I refer to our meeting on 14th January 2016, attended by yourself, your support person Jason Page, Ralph Frisina, Dean Dando, and Mike Gibson.

The purpose of the meeting was to discuss with you allegations that on 16 December you:

  Failed to report the seriousness of a near miss

  Withheld information relating to the investigation of the incident (of the near miss)

  Failed to follow processes in relation to recording damaged product

  Failed to ensure compliance to the 3m rule and exclusion zones of a forklift within your control.

We confirm we have now concluded the investigation. We are satisfied that you did engage in the conduct alleged.

This conduct is unacceptable and will not be tolerated. In having engaged in this conduct you have breached:

  OHS Act 2004, Section 25 — Your Duties

  Port Melbourne USG Bora! Site Induction - Truck Loading & Traffic Management

  HSEP0504 Traffic Management Plan Port Melbourne

  SOP Incident Report — Port Melbourne

  SOP Record Stock Adjustment — Port Melbourne

  SOP Loading Trucks —3.1.4

A decision has been made to provide you with a first and final written warning.

You should treat this matter very seriously. If you engage in further safety breaches, unsatisfactory conduct and/or performance, you will be subject to further disciplinary action which may include the termination of your employment.

Please remember that USG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300 00 2327).”

[9] I will deal with my findings as to this incident later in my decision but note at this point that the parties put forward a joint scope of findings that set out the findings the parties sought as to the 18 December 2015 incidents: 14

(a) was the Applicant aware that the jockey had left the green/safety zone before commencing or during the manoeuvre that knocked off the falling cornice?

(b) was the Applicant aware immediately after the incident that the jockey was almost hit by the falling cornice, or did he only first become aware of it the following Monday when he says he was informed by Jason Page, CFMEU Delegate?

(c) did the Applicant fail to report the damaged cornice after he cleaned up the damage cornice in accordance with an applicable policy of the Respondent that applied to and was enforced at the Respondent's site where the Applicant worked and in respect to which the Applicant had been educated and informed?

Incidents concerning the Applicant’s use of safety glasses

[10] The Respondent asserts that the Applicant was seen not wearing his safety glasses on at least 2 occasions in early 2016. It is uncontested that the Applicant attended a meeting on 23 March 2016 to discuss the allegations and was stood down on full pay until the investigations had concluded.

[11] On 23 March 2016 the meeting occurred. On this day, the Respondent also gave the Applicant a letter, which stated:

Notification of Consideration of Termination of Employment

I refer to our meeting on 23/03/16 attended by Vicki Neal (Distribution Manager), Mike Gibson (Regional Manager), yourself and your support person.

The purpose of the meeting was to discuss allegations that on 17/03/2016 you:

During this meeting you were given the opportunity to respond to the allegations and to provide us with any information or material that you would like us to consider.

We have now concluded our investigation and are satisfied that you did engage in the conduct alleged.

This conduct is unacceptable and will not be tolerated. In having engaged in this conduct you have breached our mandatory PPE regulations: Safety glasses, Hi Viz vest and safety shoes are the minimum PPE for the site.

We are satisfied that your conduct amounts to misconduct, as you were provided with a First & Final written warning on 12/01/2016, we are considering whether to terminate your employment.

Prior to us making this decision, we are providing you with the further opportunity to provide us with any information or material you would like considered in respect of why we should not proceed to terminate your employment. If you would like to provide any such information or material, please do so by 24/03/16/ 5:00pm and this will be taken into consideration by us.

Please remember SG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300 00 2327).

If you have questions in relation to this letter, please contact me immediately.”

[12] The Applicant submitted an email into evidence that was sent on his behalf to the Respondent. The email stated:

“I am writing a submission to you behalf of CFMEU member Daniel Palmer.

In the notification letter you provided to Daniel yesterday, you gave us the opportunity provide further information for the reason that Daniel's employment shouldn't be terminated with USG Boral.

I ask that you to take into account that Daniel has been employed for some 4 years at Boral. He has a very good work history whilst working there. I understand that recently there has been a safety issue that you addressed and I believe Daniel has learnt a lot for that process. The circumstance that Daniel finds himself in at the moment is in no way as serious as the previous incident.

By terminating Daniel's employment in this circumstance I believe is manifestly unjust. The punishment should fit the crime. In Daniel's statement to you in the meeting, he explained that he was on his way to clean his safety glasses when you approached him. As you noted yesterday he was wearing the safety glasses but at the time they were on top of his head. As a matter of safety I would not encourage any forklift driver to drive with dirty glasses as I believe you wouldn't either.

So Vicki I ask that you allow Daniel to keep working at USG Boral, as I believe he will continue to show you that he will be able to work in a safe manner.”

[13] On 30 March 2016 the Applicant’s employment was terminated via a letter. The termination letter stated:

“On the 23rd March 2016, I met with you in respect to being observed not correctly wearing safety glasses as required at the Port Melbourne manufacturing site.

The meeting was also attended by your support person/delegate — Dean Dando and Ralph Frisna. Company support person was Mike Gibson.

In our correspondence to you on the 23rd March, we advised you that we had concluded our investigation into these allegations and are satisfied you did engage in the conduct alleged. You were given the opportunity to supply us with any additional information to be considered prior to the business determining to terminate your employment.

On the 24th March, an email was received from Dean Dando on your behalf, asking we reconsider the termination, stating:

  This incident was not as serious as previous

  Considers termination to be manifestly unjust

  You were on your way to clean your glasses

  You were wearing your safety glasses but on top of your head

A First & Final Warning was issued to you on the 15th January 2016 for a number of Safety breaches demonstrating a pattern of breaching safety requirements.
We have considered all the above matters and a decision has been made to proceed to terminate your employment, effective 31 March 2016.

Upon termination you will be paid statutory leave entitlements.

A separation certificate will be forwarded to you by our corporate payroll team, once your final payment is made.

Please remember that USG Boral provides a free and confidential counselling service for staff and family. BEAP can be accessed by free call to 1300 00 BEAP (1300002327),

If you have any questions, please do not hesitate to contact me.”

Permission to appear

[14] I granted permission to appear to Mr T Dixon of FCB Workplace Law for the Respondent and Mr P Boncardo of Counsel for the Applicant pursuant to s.596 of the Fair Work Act 2009 (Cth) (the Act).

Scope of the remittal

[15] This matter has a lengthy procedural history. Subsequent to the decision of the Full Bench, the matter was listed for mention before me on 23 May 2017 and 7 September 2017. Hearings were held on 25 July 2017, 18 September 2017, 21 September 2017, 18 October 2017 and 26 October 2017.

[16] There has been some disagreement between the parties as to the extent of the matter remitted to me for determination and whether the Respondent should be granted leave to file new evidence in the matter.

[17] On 9 June 2017 the Respondent sought to file two additional witness statements. These were the statements of:

  Ms Dianne Meakins, 15 transport operator; and

Mr Stuart Simpson, 16 shift supervisor.17

[18] The Applicant objected to the admission of this evidence.

[19] The matter was listed for hearing on 25 July 2017 to provide the parties an opportunity to be heard on the issue of whether I should grant leave to the Respondent to file the witness statements of Ms Meakins and Mr Simpson. Both parties advanced detailed submissions as to their respective positions. Although I have not set out the entirety of the respective submissions, I have sought to encapsulate below the essence of the parties’ respective positions. In coming to my conclusion, I have relied on the entirety of each party’s submissions and had regard to the authorities to which they referred me.

Applicant’s submissions

Efficiency and case management principles in the Act and relevant authorities

[20] The Applicant’s submissions were based on the requirements in the Act for matters to be dealt with efficiently. 18

[21] The Applicant submitted that if I were to grant leave to the Respondent to file additional witness statements, my decision to do so would be contrary to ss.381(1)(b)(i) and 577 of the Act. Section 381(1)(b)(i) of the Act describes the object of that Part of the Act, which deals with unfair dismissal, as establishing procedures that are quick, flexible and informal. Section 577 similarly provides that the Commission must perform its functions quickly, amongst other directives.

Unfairness - The Respondent should be bound by its case

[22] The Applicant submitted that it would be manifestly unfair if an applicant could appeal a decision and then, following the appeal, a respondent could be provided with another opportunity to present its case in a way that is different to the way it was presented at first instance. 19

Full Bench decision

[23] The Applicant submitted that the Full Bench did not make factual findings about what had occurred on 18 December 2015 (the cornice incident) and that the matter was sent back to me to “hear and determine”. The Applicant submitted that the matter was not remitted to me for a “full rehearing where…the parties could lead new evidence.” 20

Respondent’s submissions

Efficiency and case management principles in the Act and relevant authorities

[24] The Respondent submitted that there was nothing in s.590 of the Act, which gives the Commission broad powers to inform itself in relation to any matter before it, which purported to fetter my discretion in the circumstances of this matter. 21

Unfairness - The Respondent should be bound by its case

[25] The Respondent submitted that there was no unfairness in admitting the two additional witness statements as the Applicant would be provided with the opportunity to cross-examine the witnesses. 22

Relevance

[26] The Respondent submitted that both Ms Meakins and Mr Simpson were direct witnesses to the alleged misconduct that occurred at the cornice incident, which led to the Applicant’s dismissal. The Respondent submitted that the Commission should accept these statements into evidence due to their direct relevance to the contested facts surrounding the cornice incident. 23

Conclusion regarding the scope of remittal

[27] In my view, the Full Bench quashed the decision and order at first instance and remitted the matter back to me effectively as a hearing de novo. The Full Bench did not place any fetter or limits on the manner in which I was to determine the matter. I have accepted the Respondent’s submissions in relation to this issue and am of the view that the weight of authority supports this approach. In my view, the Full Bench, having quashed the decision and order at first instance and remitted the matter to me to “hear and determine” without qualification, enabled me to allow the Respondent to adduce further evidence.

[28] Having determined this question, I have also formed the view that the evidence of Ms Meakins and Mr Simpson is highly probative given that Ms Meakins was present during the incident and Mr Simpson spoke with the Applicant shortly after. On this basis, I have chosen to allow the evidence.

Issues in Dispute

[29] There were various submissions made by the parties as to the issues in dispute. This has now been resolved.

[30] At the hearing before me on 18 September 2017, the parties confirmed that the documents that I was to take into account in the matter were as follows:

  an untitled document submitted by Counsel for the Applicant that provided the consent position of the parties. The document set out the relevant paragraphs of the witness statements that were germane to the issue as to what occurred in the cornice incident. The document at paragraph 2(a) also provided that all previous directions issued in relation to the matter and correspondence relating thereto had been superseded; 24

  a document titled ‘Scope of Findings’ filed by the Applicant on 14 September 2017 (reproduced at paragraph [9]). 25

  a document titled ‘Statement of Agreed Facts and Issues’ dated 5 September 2017. 26

volume 1 and 2 of the Appeal books; 27 and

  the witness statements of Ms Meakins and Mr Simpson. 28

[31] I have relied on the above documents in coming to my decision.

[32] The untitled document referred to above confirmed that the matters in dispute between the parties were confined to the events of 18 December 2015 and actions taken in relation to the cornice incident, and that the scope of the contention was confined to the issues examined at paragraphs [45] to [61] of the Full Bench Decision. 29 The parties confirmed that they were in disagreement in terms of what occurred on 18 December 2015.30

Adoption of earlier findings

[33] Firstly I adopt my unchallenged findings from paragraphs [47]-[48] and [51]-[53] of my decision at first instance which detail why the Applicant is someone who is protected from unfair dismissal. 31

Findings regarding the 3 December 2015 incidents

[34] On the balance of probabilities I accept that the incidents of 3 December 2015 involving unsafe forklift manoeuvring by the Applicant occurred and that these issues were discussed with the Applicant extensively during the meeting of 14 December 2015. 32

[35] In that respect, I adopt my findings in my decision at first instance at paragraph [65].

Findings regarding Safety glasses incidents

[36] I have accepted the Respondent’s submission that the Applicant understood that the wearing of safety glasses was a workplace policy that applied to him. I have also accepted that the Applicant was in breach of this policy. My earlier finding that the Applicant failed to establish that the Respondent’s safety glasses policy was applied inconsistently remains. I remain of the view that this safety breach was unacceptable but for reasons discussed later I cannot find the dismissal following this event was valid.

Scope of findings – 18 December 2015 incidents

(a) was the Applicant aware that the jockey had left the green/safety zone before commencing or during the manoeuvre that knocked off the falling cornice?

[37] The Respondent asks me to find that the Applicant was aware that Mr Mita-Anderson (the jockey) had left the green/safety zone before commencing or during the manoeuvre that knocked off the falling cornice. 33

[38] It is the Applicant’s position that prior to commencing the manoeuvre to remove the cornices, he was not told by the jockey, nor by Ms Meakins, that the jockey was going to go around the opposite side of the trailer to either tighten the load or do whatever else he was intending to do, and that Mr Palmer was focused on the load.34

[39] It is the Applicant’s position that he checked before he commenced the load that Ms Meakins and the jockey were in the safe zone.35

[40] The Respondent presents a different version of events, specifically that the jockey told Mr Palmer before he commenced the manoeuvre that he was going around to the far side of the truck to check that the load was secure.36 Further, Ms Meakins claims to have told Mr Palmer during the manoeuvre to stop loading the truck.37

[41] On the basis of the evidence before me, and taking into account my observations and reasoning at paragraphs [47]-[57], I am not satisfied that the Respondent has established, on the balance of probabilities, that Mr Palmer was aware “before commencing or during the manoeuvre” that the jockey had left the green/safety zone.

(b) was the Applicant aware immediately after the incident that the jockey was almost hit by the falling cornice, or did he only first become aware of it the following Monday when he says he was informed by Jason Page, CFMEU Delegate?

[42] The Respondent asks me to find that the Applicant was aware on 18 December 2015 -immediately after the incident - that the jockey was almost hit by the falling cornice.

[43] The Applicant’s evidence is that at no point after the incident was he informed that the jockey had been almost seriously injured and was consequently unaware that the jockey was almost hit with the falling cornices.38

[44] It is the Applicant’s evidence that on the Monday following the cornice incident he was told something about it by one of his colleagues.39

[45] The Respondent submits that Ms Meakins told Mr Palmer immediately after the incident that there had been a incident involving potential serious harm to an employee. In support of this proposition, the Respondent also refers the Commission to the oral evidence of the distribution manager, Ms Vicki Neal, where she states that Ms Meakins told her that she had spoken with the Applicant after the incident and advised him that there had been a serious incident potentially involving injury to the jockey.

[46] On the basis of the evidence before me, and taking into account my observations and reasoning at paragraphs [47]-[57], I am not satisfied that the Respondent has established on the balance of probabilities that Mr Palmer was aware “immediately after the incident that the jockey was almost hit by the falling cornice.”

[47] In coming to my conclusion in this matter, I have also taken into account the below list of events which I have distilled from the CCTV footage of the incident:

  the Applicant was commencing the manoeuvre while the jockey was in the green zone, within the Applicant’s view;

  the Applicant does not appear to engage with the jockey before commencing the manoeuvre;

  during the manoeuvre, the Applicant does step out of the forklift seat seemingly to view the load. The footage does not depict any interaction between Ms Meakins or the Applicant at this juncture, nor does it depict any gesture made by the Applicant to indicate that he is observing or interacting with Ms Meakins;

  at that time, the jockey is standing in the green zone, albeit on the opposite side of the load;

  the Applicant appears to be concentrating on the load, fully seated, at the time the jockey leaves the green zone and walks into a red zone again on the Applicant’s blind side;

  at that point the load topples;

  the Applicant backs his forklift up and continues the manoeuvre;

  the jockey walks around to the front of the truck and to the driver’s side door which is opened;

  Ms Meakins comes out from the back of the truck to where the jockey is standing at the driver-side;

  the jockey takes off the shoes he is wearing and puts on another pair. He places the shoes he was wearing in the truck and closes the door;

  Ms Meakins and the jockey moved to the front of the truck and look at the fallen cornice;

  and Mr Palmer is continuing with the manoeuvre.

The evidentiary contest

[48] The Applicant and Ms Meakins give opposing accounts as to key issues related to the ‘cornice incident.’

[49] Where there has been a contest between the Applicant’s evidence and that of Ms Meakins as to these key events, I have preferred the Applicant’s version and, in so doing, I have been persuaded by the following:

  I find Mr Palmer to be a credible witness. In my view, he answered questions directly and was highly indignant about the allegations raised against him, consistent with his evidence that he was unaware the jockey had been almost seriously injured until 22 December;

  Mr Simpson presented as an honest witness who gave his testimony in a consistent and forthright manner;

  Ms Meakins gives evidence that she had a conversation with Mr Simpson after the incident and told him that there had been a “near miss.” 40 I find this evidence difficult to reconcile with the evidence of Mr Simpson. During cross-examination on this issue, the following exchange occurs between Mr Simpson and the Applicant’s Counsel:41

“Mr Simpson, you have recorded in your statement at paragraphs 7 and 9 conversations you had with Mr [Mita]-Anderson and Ms [Meakins] on 18 December? - Yes.

And you were also careful to ensure that it set out the totality of your conversations with Ms [Meakins] and Mr [Mita]-Anderson on 18 December?  - Correct.

And that is in fact what you do at paragraphs 7 and 9 of your statement?  - Sorry, what was that?

That’s what you do at paragraphs 7 and 9 of your statement?  - Correct.

And similarly with Mr Palmer at paragraph 10?  - Correct.

Now, you weren’t told anything by Ms [Meakins] or Mr [Mita]-Anderson on 18 December about there being a near miss during the incident?  - No.

And if you had been told that by Ms [Meakins] or [Mr Mita]-Anderson, you would have, no doubt, investigated the issue immediately and taken action about it?  - Correct.

Instead, I think your evidence is that you found out on 22 December that there had been a near miss?  - Correct.

What, if any, action was taken against Ms [Meakins] and Mr [Mita]-Anderson as a result of this incident, sir?  - By myself or by USG Boral?

We’ll start with you. What, if any, action did you take?  - Initially I used the incident or the time there just to review the restricted zones, which are commonly do with the drivers, in relation to the red zone and green zone, just to keep it in the forefront of their minds. Other than that, nothing.

What about in relation to USG Boral?  - I believe later Mr Anderson was banned from the site, but that wasn’t a decision that I made. That was upper management.

And that was as a result of his conduct during this incident?  - Yes. After reviewing the footage. Yes.

And what about Ms [Meakins]?  - I’m not quite sure.”

[50] Ms Neal, in her oral evidence, states that she was told by Ms Meakins that the latter had advised the Applicant after the incident that there had been a serious incident with potential injury to the jockey. 42 It is unclear from the evidence when this conversation occurred or its context. In her written statement, Ms Neal notes the following exchange between her and Mr Simpson and Ms Nicole McGillivray on 22 December 2015:43

“On or about 22 December 2015, Stuart Simpson, Shift Supervisor for USG Boral, and Ms McGillivray came to my office where a conversation to the following effect took place:

Mr Simpson: “Hi Vicki. We’ve just reviewed some video footage of an incident that happened last week and it looks to be more serious than what was originally reported.”

Me: “What happened? Who was involved?”

Ms McGillivray: “Daniel Palmer was loading a truck on Friday, and knocked a load of cornices over the other side of the truck. The driver’s jockey was standing on the other side of the truck and the load almost hit him. The video footage is pretty clear.”

Me: “Why wasn’t this reported to me sooner?”

Mr Simpson: “Daniel’s incident report left out that it almost hit the jockey. He also told me it was a couple of lengths of cornice, not a whole load. We just reviewed the tapes and it looks to be much more serious than what he reported.”

Me: “We’ll need to investigate this properly and stand Daniel down until the investigation is complete. I’ll get in contact with Daniel and tell him he is stood down while we investigate.”

[51] On the basis of the evidence before me, it is apparent that neither Ms Neal nor Mr Simpson were aware that the jockey had almost been injured on 18 December 2015. This supports my finding that Mr Palmer was not made aware of the jockey almost being injured immediately after the incident.

[52] In coming to this conclusion, I have also considered the Applicant’s explanation during his examination-in-chief as to the completion of the incident report:

“MS MALONEY:  So when you filled this in, you weren't aware that the jockey had almost been hit?---Not at all.

What do you mean there by, "Jockey told he must say in green zone"?---When I spoke to him, I had to load the B-trailer.  The incident happened on the A-trailer, so I've gone to drop the cornice off, come back to load the B-trailer - - -

So after you've loaded the load that is in question - - -?---Yes.

- - - you have gone to - - -?---So then I've gone to get rid of the damaged stock and then I've gone to retrieve the next pack to put on the second trailer of the truck.

All right?---So I've spoken to the jockey and said, "You've got to" - you know, "You'll need to stay" - Dianne stayed in the appropriate zone, our three-meter zone, the exclusion zone.  There is actually two - there's a square at the front of the loading bay that's green, so that's an obvious spot where - you know, if there's only one driver, that's where they have got to stay.  If there is two, there's a driver and a jockey, then obviously one of them stays at the green zone at the front of the truck.  If there's no actual green zone, from memory - but if there is, it doesn't matter, and that's where the secondary person stands.  It's just an obvious point where - you know, it's obviously three metres away from the forklift.  That's the conversation I had with him.

Did you tell him that because you had realised after it had fallen that he had left the green zone?---Yes, the fact that he was around the other side of the truck, it was pretty clear, you know.  It was clear that he had moved.  When he moved, I don't know, because I was focused on the cornice.

You weren't aware that he almost got hit?---No, not at all.

[53] I have also taken into account the following interchange between the Applicant and Mr Marshall as to the completion of the incident report:

“MR MARSHALL: But if we go back to the incident report that you submitted on the day and if you have a look at the folder there, it is at page 265?---The green zone issues you're alluding to?

You say here "Description of what happened when" - I'm not sure what the second word is - "re positioning cornice off top of track on truck, it fell on corresponding side"?---Mm.

Then you say "What immediate actions were taken:  Jockey told he must stay in green zone"?---That's correct.

So at the time you filled out the report you knew he wasn't in the green zone when the cornice fell off?---I knew he wasn't in the green zone by driving around and he was there, that's the only information that I could get from the end of that.  Of course he was in the green zone, he was around there helping me put the cornice on.  Did I know how - how could I engage - I couldn't get - I wouldn't have assumed anything with the cornice flying off where anyone was, because my eyes were focused on the cornice and the truck.  So, Diane could've walked round for all I know, but because he was around the other side of the truck at the time when I walked around to clean it up, that's what - I assumed he wasn't in the green zone when he walked around there, I don't know.”

[54] I find it improbable that had Ms Meakins advised Mr Simpson after the incident that a serious incident had occurred, one which almost resulted in serious injury to an employee and the substantial loss of product, that he would have waited until the following Monday to take action. To the contrary, the evidence supports a conclusion that Mr Simpson first became aware of the seriousness of the incident after having reviewed the CCTV footage.

[55] After the event, the footage shows Ms Meakins and the jockey together close to the cab door whilst the jockey, seemingly in full view of Ms Meakins, changes his footwear. I find it improbable that she did not see the jockey do this.

[56] The CCTV footage does not support Ms Meakins’ account. As the footage in evidence has no audio, its utility is confined to visual context only. In my view, and given my observations at paragraph [47], it is reasonable to infer that if the Applicant had heard Ms Meakins yell out to him, at the very least the footage would record a visual movement beyond what appears to be Mr Palmer stepping out of the cab to view the load. It could well be that Ms Meakins yelled out to the Applicant but that he did not hear her. Given that we are dealing with a workplace situation where one can expect some associated noise disruption at the time that the Applicant was engaging in the manoeuvre, it is reasonable to infer that there may have been some difficulty hearing in the forklift cabin.

[57] Further, the assertion that Mr Palmer knew, before he commenced the manoeuvre, that the jockey was going to go to the far side of the truck to check the load is, for the reasons given earlier, unsupported by the evidence.

[58] Consequently, on the balance of probabilities, I am not satisfied that Mr Palmer was aware immediately following the incident that the jockey was nearly hit by the falling cornice.

(c) did the Applicant fail to report the damaged cornice after he cleaned up the damaged cornice, in breach of the relevant policy of the Respondent?

Is there an applicable policy?

[59] The Respondent sought to rely on clause 5.4.2 of the stock adjustment policy in support of its proposition that the Applicant was in breach of the relevant policy (the policy) of the Respondent. 44 The Respondent asks me to find that the Applicant failed to report the damaged cornice after he cleaned up the damaged cornice in breach of the policy. The Respondent submits that the policy imposed obligations on all employees including the Applicant and that the Applicant failed to report the damaged cornice in breach of the policy.45

[60] The Applicant contests the above submission and states that Mr Palmer was not required to comply with the policy; that the policy did not impose obligations on employees of the Applicant’s level; and that there was no requirement to record stock damage in a particular manner. 46

[61] At clause 5.4.2 of the policy, there is provision for mandatory information to be retained on the WH stock adjustment sheet, including:

The date stock is identified to be written off

  Item code, description and qty

  Reasons for stock adjustment (Reason code is allowed)

  Raiser’s signature

  Stock adjustment number

  Processor’s signature and date – Warehouse Manager

  Comments on major write offs”

[62] In my view, clause 5.4.2 does contemplate a situation where the “raiser” of the stock adjustment sheet can be an employee at any level including that of the Applicant.

[63] The fact that the ultimate responsibility for final processing and sign off rests with a manager does not in my view support a conclusion that employees of the Applicant’s level are excluded from documenting situational occurrences to initiate the process. In my view, the policy specifically contemplates real time responses to stock movement by employees involved in a circumstance resulting in “damage to stock by forklift.”

[64] Further, the Applicant’s position description (Product Handler Level B) identifies position specific duties and requirements/qualifications as:

Recording of stock adjustments;

  Reporting any potential hazards identified in the workplace or any mishaps, incidents or injuries that may occur during the course of work;

  Attention to detail.”

[65] The policy produced by the Respondent 47 contains an example of a stock adjustment summary sheet which by and large reflects the information referred to at 5.4.2 of the policy, reproduced at para [61].

[66] On the basis of the above, the answer to the question posed is in the affirmative: I find there was an applicable company policy and it applied to the Applicant.

Did the Applicant fail to report the damaged cornice resulting in a breach of the policy?

[67] While the Applicant concedes he could not find the stock adjustment report, he maintains that given his inability to locate the appropriate form, he “wrote on a plain piece of paper the item code, the amount of lengths that were damaged and left it with the incident report.” 48

[68] Mr Simpson maintains that he did not find Mr Palmer’s piece of paper upon arriving at his office on Monday morning. He does concede during cross-examination he is not certain as to whether cleaners may have gone through his office over the weekend or on the Monday night. 49 The Applicant’s cross-examination on this point is as follows:

“Q: You understand that you were told, I believe, at the time by Ms Neal and the company’s representative that there was no record?

A: Well, there was a record because I left a record with the incident report on Stuart’s desk. Was it on a stock adjustment Boral sheet? No, it wasn’t because I couldn’t find one but I write – I think it’s in here somewhere else as well – I wrote on a plain piece of paper the item code, the amount of lengths that were damaged and left it with the incident report.”

[69] This cross-examination should also be considered together with the record of the interview between Mr Palmer and Ms Neal on 23 December 2015 where the following exchanged occurred:

“Neal: What stock was damaged during this incident?

Palmer: 71 lengths of cornice.

Neal: What did you do with the damaged stock?

Palmer: Took it to the waste area at Door 3.

Neal: Where did you report the stock requiring write-off?

Palmer: I left a piece of paper with the contracting order number and type and quantity of what was put in the bin.”

[70] On the basis of the above, and given my finding at para [49], I accept that Mr Palmer recorded the item code and amount of damaged cornice on a piece of paper and left it with an incident report on Mr Simpson’s desk. Whilst I accept Mr Simpson’s evidence that he did not find the piece of paper when he returned to work on the Monday following the incident, there is insufficient material before me to conclude that Mr Palmer fabricated this evidence.

[71] I accept that Mr Palmer made an attempt to record and report the damaged cornice in circumstances where he could not find the appropriate stock adjustment form. There is insufficient evidence before me to make a finding as to the procedure in place at the Respondent’s Port Melbourne facility which mandated that Mr Palmer report the damage in a particular manner.

[72] In those circumstances, I am unable to conclude that Mr Palmer failed to record the damaged cornice in breach of the policy.

Was the Applicant educated and informed as to the policy?

[73] The Applicant submits that there is no evidence to suggest that the Applicant was trained as to when to complete a stock adjustment process.

[74] Conversely, the Respondent claims that the Applicant was trained as to how and when to complete a stock adjustment report.50

[75] Attached to Ms Neal’s statement are a series of documents including, at Attachment VN4, the Applicant’s position description, skill assessment and training module records. These documents, signed by Mr Palmer, indicate that the Applicant is required to perform stock adjustments and has been trained and verified accordingly.

[76] VN5 is a record of an employee refresher course which the Applicant attended and which includes incident/hazard reporting, amongst other topics.

[77] Given the Applicant’s evidence that he completed both an incident report and the equivalent of a stock adjustment report, albeit, the latter on a piece of paper, it is disharmonious to then suggest that the Applicant was not educated and informed as to the policy.

[78] On the basis of the above, I accept the Applicant was educated and informed in relation to the policy.

Was the policy enforced?

[79] There is insufficient evidence before me to determine that the policy was enforced and the extent to which it was enforced. Given my finding at paragraphs [86]-[89] and [96], the lack of determination has no bearing on my overall finding.

Assessment as to whether dismissal was harsh, unjust or unreasonable

[80] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. McHugh and Gummow JJ explained as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 51

[81] I now turn my attention to s.387 of the Act, which requires me to consider a certain criteria when assessing whether a dismissal is harsh, unjust or unreasonable. The factors are as follows:

“(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 (g)

(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 FWA considers relevant.”

Valid Reason – s.387(a)

[82] ‘The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.’ 52 It will not be enough for an employer to say that they acted in the belief that the termination was for a valid reason.53

[83] This is not a matter which concerns whether there was a valid reason for the Applicant’s dismissal which related to his capacity to perform the role of Product Handler as was required by the Respondent. There is currently nothing before the Commission which I consider demonstrates otherwise. This matter concerns whether there was a valid reason for the Applicant’s dismissal which related to his conduct.

[84] In cases relating to alleged misconduct, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. It is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it. 54 The reason is valid where the Commission finds that the conduct occurred and justified termination of employment. The reason might not be a valid reason where the conduct did not occur or where it did occur but did not justify termination.55

[85] The Respondent relied on a pattern of behaviour to establish that there was a valid reason for the dismissal. The reasons submitted by the Respondent relate to the 3 December 2015 incident involving unsafe ‘forklift’ manoeuvres, the 17 March 2016 incident involving ‘safety glasses’ and the 18 December 2015 ‘cornice incident.’

[86] On the material before me the Respondent has failed to establish to my satisfaction that there exists a valid reason for the termination of the Applicant’s employment. Its reliance on the events of 3 December 2015, involving the unsafe work manoeuvre and the incident of 17 March 2016 involving the Applicant’s failure to wear safety glasses do not constitute either individually or collectively conduct that can be characterised as sufficiently serious to justify the termination of the Applicant’s employment.

[87] In coming to this conclusion I have considered and accepted the following:

  that the 3 December 2015 incident was one for which the Applicant was not warned but rather was counselled and responded positively;

  that the Applicant’s conduct in relation to the safety glasses can form the basis of a valid reason for dismissal; and

  that the glasses incident of 17 March 2016 was of itself insufficient to warrant termination of the Applicant’s employment. 56

[88] As has been noted by the Respondent, my findings in relation to the 18 December 2015 events are “critical” and are of “relatively narrow compass”. 57 In coming to my conclusion in this matter, I have had the benefit of 2 additional witnesses and the parties presenting me with a scope of findings document.

[89] I am unable to conclude on the material before me that there was a valid reason for the Applicant’s termination given my findings as to the 18 December 2015 incident that:

  the Applicant was not aware before, during or after the incident that the jockey had left the green/safety zone and nearly been hit by the falling cornice;

  I have accepted the Applicant’s evidence over that of Ms Meakins - the only other person present at the time of the incident who gave evidence; and

  my findings as to the relevant policy of the Respondent.

Notification of the Valid Reason – s.387(b)

[90] I reiterate my finding at first instance that Mr Palmer was notified of the reasons for receiving disciplinary action for each of the respective incidents including the cornice incident. 58

Opportunity to Respond – s.387(c)

[91] I reiterate my finding at first instance that Mr Palmer was given the opportunity to respond to the Respondent’s allegations against him. 59

Unreasonable Refusal of a Support Person – s.387(d)

[92] I reiterate my finding at first instance that the Respondent allowed the Applicant to have a support person with him and therefore did not make an unreasonable refusal to allow the Applicant to have a support person present with him. 60

Warnings regarding Unsatisfactory Performance – s.387(e)

[93] I reiterate my finding at first instance that dismissal of the Applicant did not relate to his performance and therefore consider this factor neutral. 61

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f) – (g)

[94] I reiterate my finding at first instance that the Respondent is a large employer with dedicated human resources professionals. 62 Therefore I reiterate my finding that I do not consider there to be any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting the Applicant dismissal.63

Other Relevant Matters – s.387(h)

[95] I have considered the same factors as mentioned in my decision at first instance including the Applicant’s length of services and financial circumstances. 64

Conclusion

[96] In these circumstances it follows that the termination of the Applicant’s employment was unfair.

[97] Based on the evidence and submissions provided in the proceedings, I am unable to come to a concluded view about what remedy is appropriate. Directions on the filing of submissions dealing with remedy will be issued to the parties following this decision.

Seal of the Fair Work Commission with member's signature

COMMISSIONER

Appearances:

P Boncardo, of Counsel for the Applicant;

T Dixon, of FCB Workplace Law for the Respondent.

Hearing details:

2017

25 July

18 and 21 September

18 and 26 October

Final written submissions:

Applicant’s Final Submissions, 9 October 2017

Respondent’s Final Submissions, 18 October 2017

Applicant’s Final Submissions in reply, 18 October 2017

 1   [2017] FWCFB 1929.

 2   Daniel Palmer v USG Boral Building Products Pty Ltd [2017] FWC 147.

 3   PR589201.

 4   Exhibit A3, [3].

 5   Statement of Agreed Facts, [2a]; Respondent’s Outline of Submissions, 4 July 2016, [3] .

 6   Statement of Agreed Facts, [3a].

 7   Respondent’s Outline of Submissions, 4 July 2016, [27].

 8   Statement of Agreed Facts, [9].

 9   Respondent’s Outline of Submissions, 4 July 2017, [10].

 10   Statement of Agreed Facts, [11].

 11   Statement of Agreed Facts, [12].

 12   Statement of Agreed Facts, [14].

 13   Statement of Agreed Facts, [22].

 14   Scope of Findings, 12 September 2017, [1].

 15   Exhibit R2, Witness Statement of Dianne Meakins, 9 August 2017.

 16   Exhibit R1, Witness Statement of Stuart Simpson, 19 June 2017.

 17   Respondent’s list of witnesses to be cross-examined, plus two additional witness statements to be tendered, filed 9 June 2017, [3(a)]-[(b)].

 18   Transcript, 25 July 2017, PN56-65.

 19   Transcript, 25 July 2017, PN54, PN79.

 20   Applicant’s Submissions, 19 June 2017, [7].

 21   Transcript, 25 July 2017, PN187.

 22   Respondent’s Submissions Regarding Direction 4(b) in Reply, 13 June 2017, [6].

 23   Ibid [4].

 24   Untitled document handed up by Mr Boncardo, Counsel for the Applicant at hearing on 18 September 2017; Transcript, 18 September 2017, PN9-13, PN30.

 25   Transcript, 18 September 2017, PN31-34.

 26   Ibid PN116.

 27   Ibid PN109.

 28   Ibid PN130.

 29   Ibid PN30; Untitled document handed up by Mr Boncardo, Counsel for the Applicant at hearing on 18 September 2017, [2].

 30   Transcript, 18 September 2017, PN44.

 31   (2017) FWC 147.

 32   (2017) FWC 147 [65].

 33   Scope of Findings, 2(a).

34 Transcript, 18 September 2017, PN160.

35 Ibid PN161.

36 Exhibit R2, [7]; Transcript 21 September 2017, PN590-597.

37 Exhibit R2, [9].

38 Transcript, 18 September 2017, PN161-162.

39 Ibid PN168; Applicant’s Final Submissions, 9 October 2017, [10].

 40   Transcript, 21 September 2017, PN639-643.

 41   Transcript, 18 September 2017, PN254-268.

 42   Transcript, 15 September 2016, PN1552-1553.

 43   Witness Statement of Vicki Neal, 4 July 2016, [21].

 44   Attachment VN3 to Witness Statement of Vicki Neal, 4 July 2016.

 45   Respondent’s Final Submissions, 18 October 2017, [43].

 46   Applicant’s Final Submissions, 9 October 2017, [28].

 47   Attachment VN3 to Witness Statement of Vicki Neal, 4 July 2016.

 48   Transcript, 14 September 2017, PN148.

 49   Ibid PN948.

50 Respondent’s closing submissions, 18 October 2017, [44]-[45].

 51   (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

 52   Rode v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) [19].

 53   Ibid.

 54   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].

 55   Edwards v Giudice (1999) 94 FCR 561, 565.

 56   Respondent’s Closing Submissions, 18 October 2017, [6](b).

 57   Ibid [6](b), [11].

 58   [2017] FWC 147 [79]-[81].

 59   Ibid [82]-[84].

 60   Ibid [85]-[86].

 61   Ibid [87]-[88].

 62   Ibid [90].

 63   Ibid.

 64   Ibid [91]-[94].

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