[2019] FWC 4178 [Note: a correction has been issued to this document]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Cassandra Ford
v
MARLAU NOMINEES PTY. LTD. T/A Paramount Liquour
(U2019/564)

COMMISSIONER WILSON

MELBOURNE, XX JUNE 2019

Application for an unfair dismissal remedy.

[1] This decision concerns the merits of the termination of employment of Cassandra Ford by her former employer Marlau Nominees Pty Ltd, trading as Paramount Liqour (Paramount Liquour). Ms Ford’s employment was terminated by Paramount Liquor on Monday, 14 January 2019 following an incident in the company’s warehouse the previous Wednesday, 9 January 2019.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Ms Ford’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the relevant time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] Prior to the commencement of proceedings I indicated to the parties my views about the form in which the proceedings should take (s.399) and suggested to them that I considered it appropriate for the matter to proceed by way of a determinative conference since neither party was represented. No person objected to this approach and so the matter proceeded in the suggested manner.

[4] Evidence was led by Ms Cassandra Ford on her own behalf as well as by a former colleague, Ms Huriana Taunoa. While Ms Ford submitted witness statements from several employees including Brian Luu, Ngaio Krause, Cheyanna Green and Tayla Walker they did not give oral evidence at the hearing. Evidence was also led on behalf of the Respondent by Samantha Campbell, Operations Manager, Mark Rowe, Director, Stacey Taylor, Manager, Heta Merotti, Manager and Steven Coleman, Warehouse Assistant for the Respondent.

[5] For the reasons set out below, I have found that Ms Ford was not unfairly dismissed.

BACKGROUND

[6] Ms Ford started work for Paramount Liquor as a casual employee on 15 November 2017, with her employment changing to full-time on or around 31 May 2018. Her employment was subject to the Storage Services and Wholesale Award 2010 1 and part of her duties required her to drive a forklift for the purposes of moving pallets of stock received from suppliers or to be sent to different customers of the company.

[7] Ms Ford was dismissed on 14 January 2019 arising out of an incident that occurred on 9 January 2019. On that date, on the afternoon shift, she had been working on duties that required her to operate a forklift. As she was working, and operating the forklift, at around 10:00 PM, her mobile phone rang and she answered it. That incident, the core facts of which are essentially agreed between the parties, led directly to Ms Ford’s dismissal.

[8] Ms Ford’s unfair dismissal application itself refers to the incident with her estimation being that she was on the phone for roughly 5 to 10 seconds:

“… the phone call I received was from my mum I was only on he phone for roughly 5-10 seconds, and the only reason I answered was because I believed it was an emergency and that is because of the time she rang which was around 10pm and I know she’s normally in bed by 7:30pm.

So initially I thought something was wrong. I had just dropped a load started reversing my phone rang and I answered as I was lining up to drive in and pick up another pallet with a load which was about a metre away from the one I had just dropped to the right! I said to my mum once I knew everything was okay, Mum I am still at work I can't talk and I hung up, I put my phone down, I was then asked by the 2IC manager, who had heard me talking, if I had just answered my phone i Replied yes because I thought it would be okay as I thought it was and emergency.

I then proceeded with my work by picking up the load and taking it for wrapping.” 2

[9] Ms Ford gave further information about the incident in her submissions and her oral evidence including that her forklift was not loaded at the time of the call and when she saw the call was coming from her mother she thought it was an emergency, since her mum is normally in bed by 7:30 PM to 8:00 PM. 3 Further:

“Yes I did answer my phone but my forklift was not fully loaded, i had just dropped my full pallet reserved and lined up the pallet next to it, my phone rang i seen it was my mum i thought it was an emergency ( as my mother is normally in bed by 7:30pm – 8:00pm ) i answered the phone. While I was stationary found out it wasn’t an Emergency said I’m Still at work I cant talk and Hung Up, I wouldn’t of been on the phone any longer than 10 – 15 Seconds. Put my phone down on the forklift Drove Forward and picked up the pallet in front of me, as I was reserving Our 2IC Manager who heard me talking said to me “if I had just answered my phone” I said yes and continued on with my Duties as she didn’t ask me anything else.” 4

And in relation to her motive for taking the call:

“This was my first ever Incident during my entire employment, And I only Answered my phone as I thought it was an emergency. My Mum had not been very well at the time and when I seen the call I panicked. I understand that if we are expecting any kind of calls from family members or we need to be contacted by anyone during work hours we are meant to give our Managers phone numbers, but I wasn’t expecting any calls. And as I mentioned above due to the time of the call, I know my mum is normally in bed by then I panicked. Had I known it wasn’t an emergency I would not of answered my phone.” 5

[10] Further, in relation to how she used the phone, Ms Ford argues she did not move until after she had hung up:

“… So I was stationary. And also I wasn't actually talking on the phone when I was like this. So it had already hung up, but obviously I was driving and didn't take my hands off the steering wheel.

So when I stopped to pick up the pallet, that's when I pulled it off my shoulder. I wasn't actually talking then.” 6

[11] In proximity to Ms Ford at the time was Stacey Taylor whose position is the Afternoon Shift 2IC, in effect the supervisor of the area in which Ms Ford was working. Ms Taylor heard a phone ring and heard Ms Ford answer the phone and talk while she was operating forklift. 7

[12] The matters in evidence in relation to this incident are the witness statements and oral evidence from Ms Ford and Ms Taylor as well as some relatively poor-quality video footage of the particular work area. While other witnesses gave evidence on behalf of Paramount Liquor they did not directly see or hear the incident. Ms Ford sought to rely on the witness statements of a number of people with whom she once worked, however with the exception of Ms Taunoa, none gave oral evidence. The Respondent recorded an objection to me receiving the statements without the witnesses being available for cross-examination and initially sought to do so. 8 A perusal of these witness statements indicates that in the main they might be described as character references, or going to matters that are not directly relevant to the issues that need to be determined in this decision, and accordingly I place no weight upon them.

[13] Ms Ford’s evidence on the subject includes not only the reference to thinking the phone call from her mother was for the purposes of an emergency but also being adamant that when she hung up from the call she “was stationary at this time”. 9

[14] Ms Taylor’s evidence on the subject includes the following:

“MS TAYLOR: Okay, so I was scanning codes on a Kegstar. I was knelt down Kegstar level. I seen Cass drive up this side where I was. In regards to - I heard the phone ring and I heard Cass talking. I didn't look at her, so whether she moved loaded or not loaded, I cannot verify. I spoke to Cass in regards - - -

THE COMMISSIONER: What can't you verify?

MS TAYLOR: Whether she was loaded, why she moved, or stuff. I was wrestling with shrink wrap and my phone, trying to get the barcode correct. So yeah, I can't say whether she moved while loaded or unloaded. I asked Cass if she answered and spoke on her phone, to which she responded, "Yes," while driving away.

THE COMMISSIONER: Just in relation to that last point, can you say it again. You asked a question.

MS TAYLOR: So my question was, "Cass, did you just answer and speak on your phone?" Cass responded, "Yes," while she was driving away. Like, she didn't stay stationary to answer or for me to further ask questions.” 10

[15] Paramount Liquor argues that the work area video footage shows that Ms Ford’s answering of the phone represented a significant safety risk. Ms Campbell, Paramount Liquor’s Operations Manager argues that in the footage it may be seen that Ms Ford “has got the phone on her shoulder like this as she's talking” 11 at the same time she was driving the forklift and in proximity to Ms Taylor. While that claim is made, it needs to be noted that the work-area video footage is of poor quality, including for the reason that it is essentially a camera recording of a screen playing the video in question, rather than being a copy of the original file recording. As a result, the footage lacks sufficient quality to resolve the question of the things that were being done by Ms Ford. I seriously doubt that it may be seen from the footage shows that Ms Ford was actually talking at the same time she was driving.

[16] As Ms Ford’s forklift enters the area of vision, she can be seen moving her right arm toward her head. The contention that Ms Campbell put forward that Ms Ford had her phone cradled between her ear and her shoulder as she was driving can barely be seen, if at all. While her head is inclined in some respects, it would be a stretch to suggest that Ms Ford can be seen cradling a phone as she is driving. She may well have been, however far from being high definition video, the quality of the footage in question is at the supreme low-end of the video-definition spectrum. In some respects, the 1969 moon-landing footage, archived on kinescope has greater resolution.

[17] The footage is also prone to jumping with Ms Ford arguing that it skips from 46 to 51 seconds for no apparent reason. 12 The company’s response on the skipping frames was to indicate that the cameras are motion sensitive, with it being the case “they work on a sensor, so if there's no movement, there's no footage”.13 While it is likely the cameras are in fact motion sensitive, that fact as an explanation for the skipping seems unlikely, especially because the things being recorded at the time were moving.

[18] On balance, the work-area video footage clearly shows a person driving a forklift at the same time as they are in proximity to another person. The footage is 34 seconds long and initially shows one person in the warehouse, bending over and attending to a pallet, which is consistent with the evidence of Ms Taylor that she was barcoding at the time. Shortly after, a forklift enters from the bottom of the screen. The forklift is carrying a pallet on the front of the machine. Ms Ford agrees that it was her driving the forklift.

[19] While jerking once or twice, to the extent that the footage is capable of accurate scrutiny, Ms Ford can be seen moving her right arm towards her head, consistent with the action of someone answering a mobile phone. It is impossible to make out that Ms Ford is actually answering a phone (which is unnecessary since she agrees she was), but more significantly, it is impossible to make out that she is speaking into the phone at the same time as the forklift being driven by her is moving. At the point in question, Ms Ford is relatively close to Ms Taylor, perhaps no more than two to three metres away, passing her for a first-time.

[20] Ms Ford moves away from Ms Taylor; the footage jerks again, and Ms Ford parks a pallet load adjacent to some other pallets; at that time, she appears to be about four to five metres away from Ms Taylor. It is unclear from the vision whether Ms Ford is still using the mobile phone at that point. At the same time another person can be seen working in the top left of the work area and a ride-on pallet mover enters the work area from the top left of the screen. At around the same time Ms Ford reverses and moves to the left of the screen and in doing so passes past Ms Taylor for a second time; she picks up another load and moves from the left to the right of the screen, again passing Ms Taylor. Shortly after she passes Ms Taylor for a third time the ride-on pallet mover that had entered from the top of the screen moves down towards the area in which Ms Ford is working and the two pass close to each other (perhaps within two to three metres apart).

[21] Despite the difficulties with the video footage, it is broadly consistent with both Ms Ford’s recollection of the incident, save for two important details, and with Ms Taylor’s account, with it importantly corroborating her claim that Ms Ford was using the phone while driving the forklift in proximity to where she was working.

[22] While noting Ms Ford’s contention that the video footage may be missing frames for about six seconds the work area video footage does not corroborate her contentions either that she was stationary at any point or that the forklift was stationary when she answered the phone. When her forklift is within vision of the camera concerned, Ms Ford’s forklift at all times is moving or undertaking tasks associated with lifting or depositing stock. In particular, there is no point at which it could be discerned that her forklift has stopped in order for her to attend to something not related to the primary activity of moving loads of stock around the warehouse.

[23] Shortly after the incident, at 10:29 PM, Ms Taylor sent an email to Ms Campbell, Paramount Liquor’s Operations Manager as well as to the afternoon shift Manager, Heta Merotti. The email consisted of the following:

“Evening Sam

Please can you advise steps/ warnings that need to be given.

Tonight@ 10:15pm while I was scanning kegstars cass was operating the forklift near me (no issues with this)

Cassandra did however answer and talk on her mobile while operating the fork. When asked if she had answered her phone Cass replied "yes" while driving away.

This occurred near door 51/ 52

Kind Regards

Stacey” 14

[24] In addition to sending the email to Ms Campbell, Ms Taylor also made a file note the following day, which is broadly consistent with the email other than to say that she first completed product scanning before emailing Ms Campbell shortly before the end of her shift at 11:00 PM. 15

[25] On Thursday, 10 January 2019 at the start of her shift, Ms Ford was told that she had been stood down from using mobile plant equipment for the day, pending the company’s consideration of the incident, and that “Ms Taylor said she reported me for answering my phone, and Ms Campbell had advised her to tell me that I wasn't allowed to use any mobile equipment. And then so that day “I didn't until later on actually I use tuggers, but I'm sure, like, I was allowed to then.” 16 Ms Ford was not due to work on Friday the 11th and when she attended for work on Monday, 14 January 2019, about 15 minutes after starting her shift she was asked to meet with a number of people at 2:30 PM.17

[26] Before the meeting took place, Ms Campbell had undertaken a basic investigation into the circumstances of the incident on Wednesday, 9 January 2019. On 10 January 2019 she spoke with Mr Merotti and Ms Taylor and asked whether either of them were aware of a reason why Ms Ford might be in possession of her mobile phone during the shift. Her evidence is that each replied “no”. She then asked Ms Taylor to stand down Ms Ford from using any machinery and to advise her that the incident would be investigated and that due to its severity, dismissal may be a possibility. She then advised the company’s human resources people of the incident and arranged for Ms Ford’s file to be viewed to ensure that all policies and procedures were signed and dated. She then viewed the camera footage and formed the view that “it clearly showed Cassandra operating a fully loaded forklift answering and talking on her mobile phone whilst driving with a pedestrian within 1 metre”. 18 In her oral evidence Ms Campbell elaborated upon the investigatory actions she took:

“MS CAMPBELL: Okay. So on the next day, once I received that email from Stacey, I asked her to do statements up for me. I then went and checked the video footage with the day shift manager just to confirm that there actually was - what Stacey was saying was correct. Then I approached our HR manager, Amanda, and had a discussion with her. We pulled out the files and just checked that she had actually signed all the site policies and procedures, because obviously she hadn't signed them then she's not aware of the fact that you're not allowed to have a mobile phone on you.

I confirm that yes, she had signed everything. Then we had the discussion on: it is a major breach of company policies and procedures. We take safety very seriously. Cassandra didn't work on the Friday, so on Thursday she was actually advised - well, she was stood down from her machine, advised that it would be investigated and she would be notified of the outcome.” 19

[27] In attendance at the meeting on Monday, 14 January 2019 were Ms Ford, Ms Taylor, Ms Campbell and Mr Merotti. Ms Campbell’s recollection both of the meeting and the steps she took immediately prior to the meeting includes the following evidence:

“MS CAMPBELL: On Monday I organised a meeting with myself, Stacey, Cassandra, and I got Heta in as a support person, just as a neutral person in the meeting, to go through exactly what happened. I had already done up a termination letter because as far as I was concerned, unless on the actual day she provided me with something else than she was to be terminated.

When we had the meeting on the Monday she was quite aggressive in the meeting had a go at Stacey, basically made her feel uncomfortable; swore; told Stacey that it's all because of her. So we were basically getting nowhere with the discussion. She seemed to think that what she had done, there was nothing wrong with it, just a slap on the wrist would be sufficient. After that I basically just said to her, "Here's your termination letter. You know longer work for our company."

I also offered her a chance to view the footage if she wanted to, which she said she would like to. At that stage all the guys that operate the cameras had gone home, so I organised for her to come in. I just basically said to her, "When you can come in, let me know, and we will show you the camera footage," which we did.” 20

and

“MS CAMPBELL: I basically ran through the incident. I advised her that I had looked at the camera. She had a fully loaded forklift; she was driving; why did she have her mobile phone on her; she signed policies and procedures; she's not aware. She then told me that she thought it was an emergency, which she had also told me Heta. And then I basically said but we have an emergency process. If there's emergencies at home you need to advise your supervisors; that's why we have policies and procedures in place. But she was given an opportunity to explain herself, but then, like I said, the meeting just sort of got a bit out of hand. She got quite aggressive towards Stacey, so basically I cut the meeting and handed her her termination. So I didn't hand it to her. I handed it to her at the end.” 21

[28] Ms Campbell’s other pertinent evidence in relation to the meeting includes that she asked Ms Ford “why did you have your mobile phone on you. Her answer to that was oh, I'd just come back from a break”. 22 Ms Campbell did not think this to be an adequate explanation since Ms Ford’s break had concluded about an hour and 15 minutes earlier. Ms Campbell explained that she had a purpose in asking the question which went unfulfilled in Ms Ford’s response:

“MS CAMPBELL: My questions asking her was more I wanted her to tell me that she'd done the wrong thing. At no stage has she shown any remorse for what she's done. You kill people with forklifts. It's a two-tonne piece of equipment and then three-tonne if you've got a pallet on it. I've got 35 pieces of equipment, and you know, at any stage I can have 40 or 50 people working in the warehouse. The reason we put policies and procedures in place is to protect staff; protect the business, protect the employees, visitors - that's why I have policies in place. At no stage has she actually said to me: I'm sorry for my actions.” 23

[29] In relation to the meeting on 14 January 2019, Ms Ford submits that she was not aware of the purpose of the meeting and that she does not recall being aggressive in the course the meeting:

“MS FORD: I wasn't aware that I - like, because I wasn't aware of what that meeting was for and nothing like that. I wasn't aware, because I've never, like, been fired before, that I was allowed to have a support person, like, by my choice. So therefore I didn't take anyone there. So when I arrived I was by myself in the conference room at first, and then Heta and Stacey came in, and then Sam afterwards. Then Sam started going back through sort of revising of what she had investigated and been told about the incident, and then she handed me my termination letter and said have a read through this, and that's when I - I don't think that it was threatening or aggressive. It was more of upset - like, I'd been there for quite a long time and this is the first time any incident or anything had ever happened. I've never had any warnings or anything previously.” 24

[30] In addition Ms Campbell recollects that she told Ms Ford about the video footage that she had seen and in particular that “you're carrying a pallet; you were moving whilst talking on your mobile phone”. 25 She also recollects Ms Ford having mentioned that the phone call she answered was from her mum and that she assumed it was an emergency.26 Ms Campbell’s evidence also included that she did not necessarily go into the meeting expecting that there would be a termination of employment but that when no insight on the part of Ms Ford as to what she had done, with it also being the case that no remorse was shown, there was no turning away from a dismissal:

“MS CAMPBELL: Like, I have obviously terminated people before, and at the final meeting, you know, something could come up - you know, I want to see a remorseful person; I want someone to show me that they've done the wrong thing, or they've admitted guilt, or anything. I mean, I've had people come into a termination meeting where they have just gone, oh yeah, whatever; or I've had others that have burst into tears and shown a reaction of some sort. You know, when things like that happen, I might look at it a whole different way.

THE COMMISSIONER: But you - well - - -

MS CAMPBELL: There was aggression. There was no remorse. There was nothing. There was no I'm sorry for my actions. It was all: I didn't do anything wrong; that attitude. So that concerned me. That made me think that she's a safety hazard in my warehouse.” 27

[31] As it turns out, Ms Ford’s employment was terminated in the course of the meeting, after Ms Campbell consulted with others including Mr Rowe, the owner of the business.

LEGISLATION

[32] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[33] Determination of whether Ms Ford’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[34] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 28

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 29

  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 30

  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 31

  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 32 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 33” (original references)

[35] I will deal with each of the criteria within s.387 in turn.

(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)

[36] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 34

[37] The essential facts in the matter are not in dispute. Ms Ford agrees that at around 10:00 PM on Wednesday, 9 January 2019 she was driving a forklift and briefly answered her mobile phone. She puts the length of the call at around 5 – 10 seconds. Neither the evidence of the Respondent’s witnesses or the video footage particularly contradicts Ms Ford’s estimated length of the call.

[38] The parties are also essentially agreed that while Ms Ford was driving the forklift and using the phone, she was in proximity to another employee, namely Ms Taylor. To the extent that Ms Ford contests the closeness of the proximity, I find that the video footage, imperfect though it may be, suggests she was at the time of closest proximity to Ms Taylor within the range of two to three metres distant.

[39] The characterisation given by Paramount Liquor about the circumstance is that Ms Ford’s use of the mobile phone was contrary to its policies and her training and that in overall effect, such amounted to serious and wilful misconduct justifying her termination of employment.

[40] In such circumstances, where serious misconduct is put forward on the part of the former employer as its reason for dismissal, the Commission is obligated to itself find whether the conduct alleged actually occurred.

[41] Some of the physical elements of the conduct, are agreed between the parties. In particular, it is agreed by Ms Ford that she answered a phone call while driving a forklift at around 10:00 PM on the afternoon shift of Wednesday, 9 January 2019. It is also established on the basis, both of the witness evidence as well as video footage that when she answered the phone call Ms Ford was in close proximity to Ms Taylor. As estimated by me above, after viewing the video footage the distance between Ms Ford’s forklift and Ms Taylor might be no more than two to three metres. Since the video footage is of poor quality, it is difficult to be conclusive about the length of the call or whether Ms Ford passed by Ms Taylor while she was using the phone only on a single occasion or multiple occasions. Similarly, it is impossible to establish whether Ms Ford was still using the phone when the second forklift moved into her range towards the end of the video clip.

[42] Paramount Liquor argue that when viewed through the prism of its Occupational Health & Safety policies and obligations, and specifically by its Mobile Phone Use Policy As well as the training provided to Ms Ford about the use of forklifts, those matters combine to mean that Ms Ford’s actions were serious misconduct.

[43] In relation to the possibility that a sanction other than termination of employment could have been employed, Ms Campbell was adamant that the seriousness of the situation required dismissal:

“… it was a massive breach of safety. It breached three of our company policies. I mean, we put policies in place to protect people. It was a blatant disregard of three of our policies.” 35

[44] Ms Galea, Paramount Liquor’s General Manager, Recruitment and Development referred to her concern being not only a matter of safety, but that there was no acceptance by Ms Ford of the seriousness of the situation:

“Samantha and I had multiple discussions around whether it would be a warning letter or a termination, and can I refer to the Act in that we are required to maintain a safe working environment for all our employees, and so Samantha went into that meeting consulting Cassandra, and I actually reside next to the office, so I heard the meeting get heated, where it did end up concluding prematurely, because the discussion wasn't able to take place. So there was - you know, Samantha did have discussions and consulted people within our business, myself and Mark Rowe, our director, around what the best course of action is, but she went into that meeting to have a discussion with Cassandra that ultimately resulted in the termination.” 36

[45] Part of Ms Ford’s explanation to the Commission about her situation included that she worked in a leadership position and that there was some latitude given to such people for the use of technology while operating machinery. In addition, she argued that the company itself sanctioned the use of technology while operating machinery in the form of iPods and iPads and that those devices enabled voice calls to be made and taken.

[46] In support of Ms Ford’s argument that she was in a leadership position evidence was given by a former co-worker Ms Taunoa that:

“… I first met Cassandra as the bottle line team leader, her roles including making sure the bottle line was ready and fill, filling out a roster for the other workers on the bottle line so they know where they are working that day and which role they will be playing. Doing such a job she would have to come in at least half an hour earlier to see how much work they had and decide how many workers would be scanning, how many would be packing the stock into the boxes and how many would be filling and closing the boxes. She was also allocated trainer for the bottle line and also in some other aspects of the warehouse…” 37

[47] Another former co-worker, Steven Coleman was asked about the subject and stated:

MR COLEMAN:  Well what is the fact is that during Cassandra's time on the bottle line, she worked alongside myself as a full-time worker.  Not once was she ever given the definition of a team leader.  I was never told about her being a team leader, so specifically for the bottle line.  There was no such person, and to my knowledge there is still no such person as a team leader of the bottle line.  New people, new workers for the bottle line, were walked over and they were introduced to myself and Cassandra because we were at the start of the bottle line and we were the most experienced workers on there.  So they were given to us to train up and to gain all the knowledge they needed to do the job successfully. 38

[48] Paramount Liquor’s witnesses each deny that Ms Ford was in a leadership position. While others may have looked upon her as being slightly more senior it did not see her as such and certainly did not pay her in that capacity.

[49] Ms Ford argues that other employees use various handheld devices in the course of their work, some people “use their phones for music and whatnot on tuggers and forklifts” 39 and that the company issues other equipment including iPods and iPads for checking barcodes. Mr Merotti’s evidence however, distinguished how the items are used:

“THE COMMISSIONER: So just give me your understanding about those uses. When I asked you the question about who could use a mobile phone and you said two, it is a broader than that for people who can a phone for a barcode or to send a photograph?

MR MEROTTI: So what we use in terms of the system is we use iPods, so Apple. So as we know, Apple has obviously an iPhone and iPod and an iPad. In our warehouse we ask we use iPods, which don't have SIM cards, so they cannot be used as obviously phones, because it's an iPod. Tablets are the same, so they're not - they don't have SIM cards so you can't make phone calls on those either. And then phones are really only for the drivers, but in terms of our warehouse side that we use, they're mainly only iPods, which don't have the function to be able to use to have - they don't have the phone function for that purpose of speaking.

THE COMMISSIONER: All right, but they can take photographs and check barcodes?

MR MEROTTI: They can take photographs. Some devices can take photographs. But yes, no phone calls.

THE COMMISSIONER: And of the 12 or 15 people there on that particular evening, how many of those would have been authorised to use an iPod or iPad for those reasons that we've just spoken about?

MR MEROTTI: All of them.

THE COMMISSIONER: And does that mean that all of them would have an iPod or something in their pocket for that purpose?

MR MEROTTI: For the purpose of using it for, I guess for the process, yes.” 40

[50] The company’s Mobile Phone Policy – Warehouse Operations signed by Ms Ford on 29 January 2018 says amongst other things that the company is “committed to promoting a zero tolerance culture whether risk of harm to our people, through our work activities is unacceptable” and that “the purpose of this policy is to help us all get the most out of the advantages mobile phones offer our company while minimizing distractions, accidents and frustrations improper mobile phone use can cause” as well as:

“Mobile Phone Use Guidelines

The following are Paramount Liquor’s basic guidelines for proper employee mobile phone use during work hours. In general, mobile phones should not be used when they could pose a security or safety risk, or when they distract from work tasks.

All Warehouse Operation staff are not to carry their mobile phones on them whilst they are on site. Mobile phones are to be kept in personal bags in the lunch rooms or left in cars. Mobile phone usage will only be allowed while employees are on their designed break times.

In cases of emergencies or family health issues where you need to be contacted during working hours, you will be given your Supervisor/Managers number for your family to contact you on.

Warehouse Operation Drivers/Team Leaders/Supervisors/Managers may use their phones when:

  For making or receiving work calls in the appropriate place and situation to do so

  For other work-related communication, such as text messaging or emailing, in appropriate places and situations

  To schedule and keep track of appointments

  To carry out work-related research

  To keep track of work tasks

  To keep track of work contacts

Warehouse operation Drivers/Team Leaders/Supervisors/Managers may NOT use their phones for:

  Do not use mobile phones for surfing the internet or gaming during work hours

  Avoid using mobile phones for personal tasks

  Do not use mobile phones to record confidential information

Disciplinary Action:

Improper use of mobile phones may result in disciplinary action. Mobile phone usage for illegal or dangerous activity eg; whilst operating mobile equipment on site, or for the purpose of harassment, or in ways that violate the company confidentiality policy will result in employee dismissal.” 41

[51] Further the Paramount Liquor Warehouse Introduction and OHS Awareness document, signed by Ms Ford on 19 March 2018, provides

“Mobile Phones

Personal Mobile phones are not allowed on site and must be left in your bag or car. During you designed break times you are allowed to use your phones, but they must be returned to your bag or car prior to returning to work.” 42

[52] At one level the policies are reasonably clear, however the company’s provision of mobile devices to what appears to be all employees seems to be in direct contradiction to the policy that mobile phones are not to be carried or used in the workplace. While, of course, there can be a distinction made between a device with mobile telephone capability and one without and that distinction extends to the reasonable safety risk of the device in question, the same can be said for the fact that handheld devices of any kind even if used for the purposes of taking photographs or checking a barcode can just as easily be used, potentially unsafely, while driving a forklift. The fact that a mobile phone presents a safety risk while using a forklift is obvious. However, potentially equally as obvious is that other handheld devices may well present a similar risk. While there is no direct evidence before the Commission that would suggest that there were prevalent or ongoing risks from the way other employees use their mobile devices, the fact remains that Ms Ford is being criticised for using a potentially distracting mobile device when others also had potentially distracting mobile devices.

[53] Paramount Liquor would do well to ensure that its overall policy environment was adapted to deal with this problem.

[54] The difference of course in Ms Ford’s case is that she actually answered the phone when it rang. The evidence, both of Ms Taylor and the work area video footage suggests that it is more than likely that Ms Ford is not correct when she says that she was stationary at the time of taking the call or that she stopped to take the call. Instead on the balance of probabilities it is more than likely that Ms Ford was moving while taking the call and that such was an unjustified and unjustifiable safety risk. That risk was exacerbated by the fact that Ms Taylor was within two to three metres of the forklift for at least some of the time that Ms Ford was engaged in the phone call with her mother.

[55] In this particular case, a determination of whether the misconduct actually occurred requires a consideration of whether the factual elements amount to misconduct in the light of the company’s policies and obligations. Having considered the factual elements against the company’s policy environment, I am satisfied that Ms Ford’s actions were serious misconduct. In finality, this is because there was at least one occasion in which Ms Ford passed by Ms Taylor on her forklift within a range of two to three metres.

[56] At the point that one answers a phone call neither the length of the call nor the extent to which its content will require the recipient’s undivided attention are known. Having accepted the call and being in proximity to Ms Taylor either at the very moment of the call or within seconds of it commencing both the potential for significant distraction as well as the catastrophic consequences of distraction are reasonably foreseeable. Even though the call was ended within a few seconds with Ms Ford arguing there was no particular distraction as a result, those matters are not the questions to be considered; instead the questions to be considered are firstly whether or not distraction and catastrophe may have been reasonably foreseeable, and secondly whether it was known to Ms Ford that answering the call was contrary to policy and training.

[57] My findings in this regard are firstly that the potential consequences of taking the call were reasonably foreseeable and secondly that Ms Ford should have been aware as result of her training that taking the phone call was a breach of Paramount Liquor’s expectations. As a result, I find the conduct alleged by Paramount Liquor took place and that the conduct was serious misconduct.

[58] Consequently, I find there was a valid reason for Ms Ford’s termination of employment.

(b) whether the person was notified of that reason

[59] Overall, I am satisfied that Ms Ford was notified of the reasons held by Paramount Liquor for her dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[60] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 43 It is accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[61] I am satisfied that Ms Ford was given an opportunity in the meeting held on Monday, 14 January 2019 to respond to the reasons held by Paramount Liquor for questioning her ongoing employment.

(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

[62] There was no unreasonable refusal on the part of Paramount Liquor to allow Ms Ford to have a support person present to assist at the discussions relating to dismissal. While Ms Ford argues that she was unaware of the purpose of the meeting and that she would have a support person in attendance had she known, such does not enliven a contrary finding in relation to this criterion. That is because there was no request on Ms Ford’s part to have a person in attendance and no such request was denied.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[63] There is no evidence that Ms Ford was dismissed in relation to ongoing unsatisfactory work performance. Her dismissal arose out of a single incident on Wednesday, 9 January 2019 and there were no relevant prior warnings in relation to that circumstance. My finding in relation to Ms Ford’s conduct being serious misconduct does not rely upon the existence of prior warnings.

(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

[64] Paramount Liquor employed 78 warehouse casual and full-time staff and drivers at the time of Ms Ford’s dismissal. There is no evidence before the Commission that would support a finding that the size of Paramount Liquor may have impacted upon the procedures it followed in effecting Ms Ford’s dismissal.

(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

[65] Paramount Liquor was represented in the determinative conference by Ms Galea, its General Manager, Recruitment and Development. There is no evidence before the Commission that would support a finding that Paramount Liquor did not have access to dedicated human resource management specialists or expertise or that the absence of such expertise impacted upon the procedures that followed in effecting Ms Ford’s dismissal as such this is a neutral factor in my decision.

(h) any other matters that the FWC considers relevant

[66] There are no other matters before the Commission that I consider relevant to the matter of whether Ms Ford’s termination of employment was unfair or not.

[67] Having considered each of the criteria within s.387, I am satisfied that the primary finding that there was a valid reason for Ms Ford’s termination of employment is not impacted upon by any failures of fair process on the part of Paramount Liquor that may flow from the consideration of the other criteria within section. As a result, my finding is that Ms Ford’s termination of employment was not unfair.

[68] Consequently, Ms Ford’s application for unfair dismissal remedy will be dismissed. An order to that effect will be published at the same time as this decision.


COMMISSIONER

Appearances:

Ms C. Ford on her own behalf.

Ms A. Galea and Ms S. Campbell for the Respondent.

Hearing details:

2019.

Melbourne:

1 May.

Printed by authority of the Commonwealth Government Printer

<PR709410>

 1   Employer Response Form, Form F3, item 1.1.

 2   Application for unfair dismissal remedy, Form F2, item 3.2.

 3   Exhibit A1, Applicant’s Outline of Arguments: Merits, item 4(c); see also Transcript, PN 60.

 4   Ibid (with unnecessary capitalisation removed).

 5   Ibid, item 4(d).

 6   Transcript, PN 211 – 212.

 7   Exhibit R1, Witness Statement of Stacey Taylor, 3 April 2019.

 8   Transcript, PN 24 – 43.

 9   Ibid, PN 60, 84.

 10   Ibid, PN 109 – 113.

 11   Ibid, PN 205.

 12   Ibid, PN 211.

 13   Ibid, PN 230.

 14   Exhibit R1, Attachment ST – 2.

 15   Ibid, Attachment ST – 1.

 16   Transcript, PN 61.

 17   Ibid, PN 62.

 18   Exhibit R2, Witness Statement of Samantha Campbell, 3 April 2019, pp. 1.

 19   Transcript, PN 310 – 311.

 20   Ibid, PN 323 – 326.

 21   Ibid, PN 391.

 22   Ibid, PN 395.

 23   Ibid, PN 397.

 24   Ibid, PN 385.

 25   Ibid, PN 403.

 26   Ibid, PN 404 – 407.

 27   Ibid, PN 411 – 413.

 28   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 29   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 30   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 31   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 32   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 33   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 34   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 35   Transcript, PN 474.

 36   Ibid, PN 479.

 37   Witness Statement of Huriana Taumoa, 24 April 2019.

 38   Transcript, PN 706.

 39   Ibid, PN 175.

 40   Ibid, PN 292 – 299.

 41   Exhibit A2, Applicant bundle of documents, 24 April 2019, Attachment A – 3, pp. 1 - 2.

 42   Exhibit A2, Attachment A – 5, pp. 2.

 43   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].