DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jackson Macumber
v
Ace Bottle Printers Pty Ltd
(U2018/11097)

Unfair dismissal - summary dismissal for serious misconduct involving applicant engaged in burnouts on a fork lift - burnouts videoed by another employee - video of burnouts provided to employer - employee who provided video of burnouts not disciplined - dismissal not harsh, unjust or unreasonable - application dismissed.

[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 on 29 October 2018, and it was made by Jackson Macumber (the applicant). The respondent employer is Ace Bottle Printers Pty Ltd (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 22 October 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] Conciliation of the matter that was scheduled for 20 November 2018 was cancelled as the employer advised that it did not wish to participate in conciliation, and instead asked that the matter proceed to Hearing. In due course, the matter has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 12 February 2019.

[4] At the Hearing, the applicant was represented by his mother, Ms L Power. Ms Power called the applicant to give evidence as a witness, and she also gave evidence as a witness in support of her son’s unfair dismissal claim. The employer was represented by its Production Manager, Mr R Holmes. Mr Holmes also gave evidence as the only witness called to provide evidence on behalf of the employer.

Background

[5] The applicant is a young man of some 20 years of age who had worked for the employer for about one year and 10 months. The applicant was employed as a casual process worker. The applicant performed a broad range of menial and unskilled tasks associated with the employer’s operations conducted at a site in the Sydney suburb of Ingleburn.

[6] The employer’s business operation involves the decorating and direct printing onto wine bottles, shampoo bottles, cosmetic containers and other receptacles. There was no suggestion that the employer was a small business.

[7] Prior to the events leading directly to his dismissal, the work of the applicant was the subject of a number of verbal complaints and at least one written warning regarding his performance and/or conduct.

[8] Shortly after 4 pm on Thursday, 18 October 2018, the applicant and another employee, Joshua Hartley, realised that they had been left unsupervised at the Ingleburn site when the production manager, Mr Holmes, left the premises for a short time. The applicant decided to do burnouts on a forklift machine while Mr Hartley video recorded the burnouts on his mobile phone. Another employee also watched the burnouts of the forklift being performed by the applicant. At one point, the applicant poured thinner solution onto the concrete ground surface as an accelerant and lubricant so as to enhance the burnouts that he performed on the forklift. The applicant also smashed various glass bottles onto the concrete ground surface where he performed the burnouts on the forklift assisted by the thinner solution.

[9] On the afternoon of 18 October 2018, the forklift burnout incident occurred without the employer becoming aware of it when Mr Holmes returned to the Ingleburn site. However, on the following day, Friday, 19 October 2018, Mr Holmes noticed that there were skid marks, broken glass, and dirt on the concrete area of the backyard of the Ingleburn site. Mr Holmes commenced to clean up the broken glass and dirt, and the applicant came over to him and offered to assist Mr Holmes with the clean-up. As Mr Holmes and the applicant worked cleaning up the consequences of the previous day’s forklift burnout event, the applicant told Mr Holmes that Mr Hartley was responsible for the forklift burnout event.

[10] On Saturday, 20 October 2018, Mr Holmes received a text message from Mr Hartley which included a video of the applicant doing the burnouts on the forklift. Mr Holmes watched the video of the applicant engaged in the forklift burnout incident, including the pouring of the thinner solution onto the concrete ground surface, and the smashing of the glass bottles. Mr Holmes decided that the applicant’s conduct as shown in the video of the forklift burnout incident was serious misconduct for which he should be immediately dismissed.

[11] On Sunday, 21 October 2018, after Mr Holmes had viewed the video of the applicant doing the burnouts on the forklift, he sent the video to the applicant’s supervisor who was also the applicant’s brother. Mr Holmes informed the applicant’s brother that on the next day, Monday, 22 October, he would be dismissing the applicant as a result of the applicant’s misconduct displayed in the video.

[12] On Monday, 22 October 2018, the applicant commenced work as usual at 6 am. At about 8:20 am once Mr Holmes had arrived at the Ingleburn site, the applicant was summoned by Mr Holmes to a meeting in the production office. At this meeting the applicant was advised by Mr Holmes that he was being dismissed from his employment immediately as a result of the misconduct confirmed in the video of the forklift burnout incident.

[13] Following the verbal advice of his dismissal, the applicant gathered his belongings and left the Ingleburn site. The applicant was provided with payment for only the hours worked up to the time of his dismissal. The applicant was engaged as a casual employee, albeit apparently involving regular and systematic casual employment. Consequently, the employer did not consider that the applicant had any accrued leave or other entitlements, and upon his dismissal the applicant was not paid any amount in lieu of notice.

[14] Since the dismissal the applicant has apparently unsuccessfully sought alternative employment. However, the applicant provided no evidence about his post dismissal activities regarding the pursuit of alternative employment and any other remuneration that he may have obtained since his dismissal.

The Case for the Applicant

[15] The applicant was represented by his mother Ms Power. Ms Power made oral submissions in elaboration of an outline of submissions document which had been filed on behalf of the applicant.

[16] The submissions made on behalf of the applicant did not dispute the reason for the applicant’s dismissal, and it was accepted that the applicant had acted in a dangerous manner with the employer’s forklift. However, it was submitted that the applicant’s actions were not the only unsafe practice that occurred at the Ingleburn site, and therefore the dismissal of the applicant was asserted to be unfair.

[17] Ms Power submitted that there was another party involved in the forklift burnout incident, and that other party had not been reprimanded. Further, Ms Power said that the fact that the other party was filming the incident on their phone provided clear evidence of their involvement and participation in the incident, and the absence of any disciplinary action against that person, established unfairness with the dismissal of the applicant.

[18] Further, during the Hearing Ms Power acknowledged that the potential corollary of the purported unfairness as she had advanced may only mean that the other person involved in the incident should be dismissed. In addition, Ms Power also acknowledged that the particular depth of individual involvement in the forklift burnout incident might provide for different outcomes. However, according to the submissions made by Ms Power, one of the participants in the incident was dismissed whilst no action was taken against the other individual, Mr Hartley.

[19] Ms Power said that she found it extremely unfair that Josh Hartley who was involved in the forklift burnout incident, was not punished at all, yet her son received punishment of immediate dismissal. Ms Power also mentioned that the applicant had mental health issues which the employer was aware of, and for which they had been very considerate. Ms Power said that she acknowledged that the actions of the applicant in respect of the forklift burnout incident represented what the employer described as “the straw that broke the camel’s back.”

[20] Ms Power further submitted that she believed it was extremely unfair that there was no consistency in the manner in which the employer treated the applicant compared with the other person involved in the forklift burnout incident, Mr Hartley. Ms Power also mentioned that it was relevant to note the fact that both boys were left unsupervised at the factory for a period of time during which the forklift burnout incident occurred. The applicant was not seeking reinstatement as remedy for his alleged unfair dismissal but instead a “cash settlement” as it was stated that it would be too uncomfortable for him to return to the workplace.

The Case for the Employer

[21] The employer was represented by its Production Manager Mr Holmes, who had filed written submissions on behalf of the employer. Mr Holmes also made further oral submissions during the Hearing.

[22] The submissions made on behalf of the employer asserted that the dismissal of the applicant was not unfair. The employer submitted that the video evidence of the serious offence committed by the applicant during the forklift burnout incident, combined with a number of previous workplace offences, provided sound basis for the decision to dismiss the applicant.

[23] The submissions made by the employer also included reference to a number of previous incidents that involved misconduct in the workplace on behalf of the applicant. A number of very disturbing events including; physical altercations, safety breaches, drunkenness, and property damage, were included as unchallenged material contained in the employer’s written submissions.

[24] Further, in respect of the alleged inconsistent treatment of the applicant as compared to Mr Hartley, the employer submitted that if it had been provided with evidence of the involvement of Mr Hartley in the same manner as the applicant, he too would have been dismissed. Mr Holmes said that the extent of the employer’s knowledge of the involvement of Mr Hartley was confined to him filming the forklift burnout incident.

[25] The employer further submitted that the behaviour of the applicant as witnessed in the video and as admitted by the applicant was something that in 34 years of his working life Mr Holmes had not come across before. Further, Mr Holmes submitted that the applicant had failed to properly grasp the seriousness of his actions and that it was inappropriate to try to use other events involving workplace misconduct as some means to reduce the seriousness of his own misconduct.

[26] Mr Holmes made submissions which criticised that the applicant was only seeking financial compensation and he did not want his job back. Mr Holmes said that Mr Hartley had been spoken to about his involvement in the incident but that there was no proof to establish that Mr Hartley had any involvement in the incident other than filming it. Further, Mr Holmes said that the employer was not on trial in the proceedings, and that it was clear from the video evidence that the misconduct of the applicant justified his dismissal.

[27] In conclusion, Mr Holmes submitted that the video evidence speaks for itself, and if the employer had evidence of the involvement of Mr Hartley in the actual forklift burnout incident he would have suffered the same fate as the applicant.

Consideration

[28] 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 identified as:

“(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.”

[29] 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.

[30] 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 stipulated as:

“(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.”

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[31] In this case the applicant was dismissed for serious misconduct. The employer’s findings of serious misconduct were not contested by the applicant and are unequivocally established by the vision provided in the video recording of the forklift burnout incident which became Exhibit 4.

[32] Upon any contemplation of viewing the vision provided by Exhibit 4, the misconduct of the applicant provides, prima facie, valid reason for immediate dismissal from employment. The nature of the misconduct as can be seen in Exhibit 4, is so extreme that it does not warrant any further inquiry, and no explanation or mitigation could conceivably emerge so as to avoid the logical consequence of dismissal. In many respects, the employer would be compelled to dismiss any employee who misconducted themselves in the manner that the applicant is seen to do in Exhibit 4. In any event, the applicant did not challenge that there was valid reason for his dismissal.

[33] Consequently, the employer’s finding of serious misconduct arising from the vision provided in the video record of the forklift burnout incident has been verified. Therefore, there was valid reason for the dismissal of the applicant. The findings of serious misconduct made by the employer, have established sound, well-founded and defensible reason for the dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[34] The employer did not provide written notification of the reason for the applicant's dismissal other than the contents of the employment separation certificate which stated; “DANGEROUS USE OF ACE BOTTLE PRINTERS FORKLIFT & OTHER ISSUES.”

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[35] The employer did not provide the applicant with an opportunity to respond, other than via the provision of the video of the forklift burnout incident that was sent to his brother prior to the implementation of the dismissal on the morning of 22 October 2018. In the rather extreme circumstances of this case, there would, in reality, be no basis upon which the applicant could provide any conceivable response that could in any way justify or mitigate the misconduct displayed in the video of the forklift burnout incident.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[36] The nature of the circumstances in this case would not provide for the need for the applicant to have the assistance of a support person in any possible contemplation of his misconduct. The unusual circumstances in this instance, whereby the employer had irrefutable evidence of gross and wilful misconduct of such a nature and magnitude that it almost compelled dismissal, without any need for further inquiry, meant that procedures involving opportunity for assistance from a support person became unnecessary.

S. 387 (e) - Warning about Unsatisfactory Performance

[37] This factor is not relevant to the circumstances in this instance.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[38] The size of the employer’s operation would have been likely to have an impact on procedures surrounding the dismissal of the applicant.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[39] The employer clearly did not have any management specialists that may have assisted with procedures. However, the nature of the misconduct of the applicant and the evidence provided by way of the video recording of the forklift burnout incident overshadowed any procedural errors.

S. 387 (h) - Other Relevant Matters

[40] The applicant’s challenge to his dismissal concentrated upon what he perceived to be the inconsistent treatment that he received when compared to the person who filmed the forklift burnout incident which established the misconduct for which he was dismissed. In some instances, established inconsistent treatment involving dismissal might represent a sound basis upon which to find that a dismissal was harsh or unreasonable.

[41] However, in this instance any inconsistency in the employer’s application of the disciplinary consequences arising from the forklift burnout incident could not operate so as to provide a basis to establish that the dismissal of the applicant was unfair. This was particularly the case because of the severe nature of the misconduct of the applicant. The applicant committed one of the most egregious acts of gross and wilful misconduct that I have witnessed in more than two decades of arbitrating unfair dismissal claims.

[42] Criticism can be made of the procedures that the employer adopted regarding the implementation of the dismissal of the applicant, and a level of inconsistent disciplinary treatment of the applicant vis a vis Mr Hartley could be identified. However, procedural errors, and a level of inconsistent treatment, could not provide any basis upon which the Commission would find unfairness with the dismissal of the applicant, because to do so would represent some implied condonation of the extraordinary misconduct of the applicant.

[43] Although it was not the subject of any articulated proposition that was advanced by the applicant, the state of the applicant’s mental health was mentioned in some of the evidentiary material. It appeared that the applicant may suffer from some manifestation of post-traumatic stress, and he was apparently being treated with medication for associated mental health symptoms.

[44] The evidence on this issue was unclear. However, it would be troubling if serious mental health issues of some form or another may have contributed to the applicant’s behaviour as exhibited in the forklift burnout incident. Assuming that such mental health problems were more than what might be described as the actions of “just an excitable boy”, then such issues might, sadly, impact on the applicant’s capacity for employment in any situation that involved use or access to moving machinery. In any event, consideration of any potential mental health implications could not establish any unfairness with the dismissal of the applicant in the circumstances as revealed in this case.

Conclusion

[45] In this case the applicant was dismissed for serious misconduct. The serious misconduct was unequivocally established by the vision provided in the video recording of the forklift burnout incident. The employer relevantly found that the applicant’s conduct represented serious misconduct for which he was dismissed.

[46] The serious misconduct of the applicant was not challenged. The applicant endeavoured to establish that procedural deficiencies and a level of inconsistent treatment created unfairness with his dismissal. The particular misconduct of the applicant in this case represented gross and wilful misconduct. Given the particularly extreme nature of the misconduct of the applicant, the identified procedural deficiencies, and a level of inconsistent treatment, together with all other factors under consideration, have not established any basis to find unfairness associated with the dismissal of the applicant.

[47] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. The conduct of the applicant represented gross and wilful misconduct of such severity as to justify summary dismissal without need for further inquiry.

[48] The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Ms L Power appeared for the applicant. unrepresented.

Mr R Holmes, Production Manager appeared for the employer.

Hearing details:

2019.

Sydney:

February, 12.

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