DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Dunn
v
Bega Cheese Limited
(U2019/4654)

Application for an unfair dismissal remedy – dismissal harsh – compensation ordered.

[1] The Australasian Meat Industry Employees Union (the Union) made an application to the Commission on behalf of Mr John Dunn pursuant to s.394 of the Fair Work Act 2009 for a remedy, alleging that he had been unfairly dismissed from his employment with Bega Cheese Limited (Bega Cheese or the Respondent). Mr Dunn seeks compensation and reinstatement to his former position.

[2] The matter was not resolved at conciliation and so a hearing was conducted in Bega and in Sydney. Ms O Forsyth-Sells of the Union appeared for Mr Dunn. Mr A Powter of the Australian Industrial Group appeared for Bega Cheese.

[3] Mr Dunn gave evidence on his own behalf, and evidence in support of his application was given by Mr D Knapp (Grinding Room Operator and Union delegate) and Mr W Thomas (Team Leader). Evidence was given for the Respondent by Mr J Gallagher (Continuous Improvement Manager), Mr M Taylor (Manufacturing Manager), Mr J Tierney (Forklift Driver) and Mr M O’Reilly (Supervisor).

Background

[4] The matters set out below are uncontested.

[5] Mr Dunn is 63 years old and commenced employment with Bega Cheese on 25 September 2001 as a process worker at its Ridge Street Factory located in Bega, New South Wales. He was dismissed on 16 April 2019 following an incident that occurred on 8 April 2019 (the Incident).

[6] Prior to his dismissal, Mr Dunn had never received a verbal or written warning for any cause related to his conduct, performance or safety. This unblemished record stretched over his seventeen years of employment with Bega Cheese.

[7] The Incident is described in the Statement of Agreed Facts as follows:

“On [8] April 2019 the Applicant was completing his normal employment tasks in the Depalletizing area. On this date, at approximately 10:30am the Applicant was in the de-cartoner area attending to a blockage in a machine that removes cardboard from packages arriving on site and funnels them to a conveyor belt then into a box-crusher.

The box crusher is located approximately 40-50 metres from the de-cartoner area where the Applicant was working. There is a CCTV camera installed in the de-cartoner area to view any blockages in the box-crushing machine when they occur.

At approximately 10:40am on 8 April 2019 the Applicant noticed on the CCTV camera that a blockage occurred in the box-crusher.

When the box-crusher is blocked, the boxes travelling down the conveyor belt begin to pile up on the belt. At peak production, as many as 12 boxes can be traveling down the conveyor belt per minute. The piling up can lead to overflow of boxes onto the floor below the conveyor belt and into the forklift path below.

The Applicant, after noticing the blockage, acted to clear the blockage.

The company safety procedure to access the box-crusher from the location of the Applicant is to travel through a boom-gate door, down a foot path behind a handrail path to the box-crusher.

Opening the boom-gate door requires pressing a button to release the lock. The boom gate door button will only release the lock if the roller-door which grants access to the forklifts in and out of the area is closed.

The roller-door is interlocked with boom gates and doors and activated by a magnetic sensor when forklift passes through.

Generally, the roller-door will close automatically when there are no forklifts traveling in or out.

When the Applicant was traveling to the box-crusher he saw that the roller-door which grants access to the forklifts into the building was open.

Unable to travel through the boom gate due to the open roller-door, the Applicant bypassed the boom gate and walked on the outside of the guardrail which the defined pedestrian access path entering into and the area where forklifts operate.

As the Applicant travelled further along this route, a forklift drove into the area via the open roller-door and turned right into the vicinity of the Applicant.

The forklift driver drove past the Applicant and continued its travels.

The Applicant continued to walk to the box crusher and cleared the blockage and returned to his duties for the remainder of his shift.”

[8] Following the Incident, Mr James Tierney, the forklift driver, completed and filed a ‘Hazard Identification and Near Miss Form’ (incident report) later that same day. This resulted in an investigation being carried out into the Incident.

[9] Mr Dunn was made aware of the incident report on 9 April 2019 and was asked to attend a meeting later that day with Mr Taylor, Ms A Thistlethwayte (Human Resources Manager) and Mr K Fisher (Supervisor). Mr Dunn was supported by the Union delegate, Mr Knaap.

[10] At the meeting Mr Dunn gave his version of events of the Incident. Specifically, Mr Dunn admitted that he had bypassed the boom gate, and claimed that he had made eye contact and had a verbal exchange with Mr Tierney, although Mr Tierney only returned eye contact but did not say anything in return. Mr Dunn also claimed that the rapid roller door was ‘stuck up on e-stop’ which meant that the boom gate would not open.

[11] At the conclusion of the meeting, Mr Dunn was told that Bega Cheese considered he had breached a safety “Golden Rule”, and a further investigation would be undertaken. Mr Dunn was stood down with pay and was asked to attend a second meeting on the following morning at 9.30 am.

[12] Present at the meeting on 10 April were Mr Dunn, Mr Knaap, Ms Thistlethwayte and Mr Taylor. At this meeting, Mr Dunn was informed that the Incident involved ‘serious and wilful misconduct’ which if proven, would be grounds for the termination of his employment without warning or notice.

[13] It was agreed at the end of the meeting that the matter would be referred to senior management within Bega Cheese for consideration.

[14] A third and final meeting was held on 16 April 2019. Mr Dunn was told that Bega Cheese was satisfied he had engaged in serious misconduct and determined that his employment be terminated. Mr Dunn was summarily dismissed but was paid five weeks’ in lieu of notice.

[15] Mr Dunn was not provided with a letter of termination.

Golden Rules

[16] Bega Cheese has six “Golden Rules for Safety”, which are described as minimum standards to assist in protecting people from the risks most likely to cause serious injury, illness or death. Relevant here are Rules 1 and 2 which are:

Rule 1 – Never bypass a safety control; and

Rule 2 – Keep clear of moving vehicles.

[17] The Rules are each expanded upon by some specific examples. In the case of Rule 2, for example, it includes a direction to stand well clear of an energised forklift, and to never walk in front of or behind an operating forklift or other vehicle.

Evidence and Submissions

[18] The facts surrounding the Incident are largely undisputed. The evidence and submissions set out below only deal with matters relevant to what needs to be determined to ascertain whether Mr Dunn’s dismissal was unfair.

[19] Bega Cheese submitted that Mr Dunn’s dismissal was for a valid reason arising from a fundamental and deliberate breach of safety protocols. The dismissal was not in any respect harsh, unjust or unreasonable. It was submitted that Mr Dunn had, by his actions and behaviours, shown a complete disregard for safety and breached his obligations toward the company to perform his duties in a safe manner and without risk to both himself and third parties. His deliberate and premeditated unsafe act had exposed himself and the forklift driver to potential injury, and the sanction of termination was appropriate in the circumstances as opposed to the issue of a warning given the severity of the safety breach.

[20] Bega Cheese contended that Mr Dunn knowingly and deliberately breached a ‘safety golden rule’ to never bypass a safety control. He was aware of the significance of his actions and the potential for significant disciplinary action for non-compliance.

[21] Bega Cheese argued that the safety obligations imposed on it as a result of the industry in which it operated, and the risks inherent to the pedestrian and forklift interaction, are relevant factors in assessing whether the decision to terminate was appropriate.

[22] Bega Cheese submitted that the Commission should consider the gravity of the misconduct. For the Commission to find termination as harsh, unjust or unreasonable in the context of a serious safety breach where a valid reason is established, there must be significant mitigating factors for a conclusion that a termination was harsh. It was argued that the matters raised by Mr Dunn as mitigating circumstances are not significant mitigating factors given the extreme risk to which he exposed the Respondent.

[23] The Respondent argued it is a large enterprise and takes occupational health and safety seriously. Mr Dunn did not have a satisfactory explanation for his actions and his explanation demonstrated a cavalier attitude to safety.

[24] The Union contended that there was no valid reason for the dismissal (s387(a)) and argued there were other matters relevant to the Commission’s consideration of whether the dismissal was unfair (s387(h)).

[25] On behalf of Mr Dunn, the Union submitted that his dismissal was unfair for four reasons:

1. Breach of Golden Rules - the dismissal was unreasonable because Mr Dunn’s conduct was not in breach of Bega Cheeses “Safety Golden Rules”;

2. Disproportionate outcome - the dismissal was harsh as the disciplinary action was disproportionate to the breach;

3. Inconsistent disciplinary action - the dismissal was unreasonable due to the inconsistency of disciplinary action taken by Bega Cheese for similar breaches in the past; and

4. Personal circumstances - the dismissal was harsh due to the age of Mr Dunn, his status as a sole income earner, and his untarnished employment history.

[26] In its submissions, the Union supplemented the Statement of Agreed Facts with the following:

a. Mr Dunn took action to resolve the blockage so as to avoid disruption in production and avoid an emergency safety risk to himself and other employees;

b. the safety risk that occurs if the box crusher is not attended to with haste is the overflow of cardboard from the conveyor belt into the path of the forklifts located below. Should this occur, Mr Dunn would be exposed to a potential safety risk for a substantial period to clean up the cardboard that had fallen onto the forklifts path floor;

c. before entering the demarked forklift area, Mr Dunn paused and allowed for the potential of the driver to come through prior to walking through the higher risk area. He submitted that an auditory and visual alert was given to the forklift driver to ensure he was visible to the driver and that he gave the forklift driver “the right-of-way”;

d. Mr Dunn was a long serving employee who had worked in and around forklifts in the factory for over 15 years and was aware of the dangers associated with forklifts, and he used appropriate precautions when travelling in the environment at the time of the Incident; and

e. Mr Dunn was wearing his standard workwear which included a fluorescent orange strip across the body of a white shirt.

1. Breach of Golden Rules

[27] Bega Cheese alleged Mr Dunn breached Golden Rule 1 and 2. Mr Dunn and Mr Knaap asserted that during the three meetings that occurred after the Incident and before his dismissal, it was only put to him that he breached Rule 2 (ie. keep clear of moving vehicles).

[28] Mr Dunn, in his witness statement, said that: “I decided to bypass the last boom gate and walked outside the handrail into the forklift designated area with the goal of accessing the box crusher as quickly as I could”. 1

[29] He went on to say that:

“… I looked around and there was no forklift traffic anywhere. With the history of the use of the roller door by the forklift drivers stated above I took it upon myself to walk down the side of the walkaway avoiding the last boom gate that I knew I couldn’t get through because the roller door was up. I acted quickly and made a heat of the moment decision to walk outside of the designated foot path to avoid the safety risk of cleaning up the spilt over boxes from the forklift floor or clearing the conveyor belt from the forklift floor with a large stick.

Because the roller door was up, I knew that there was a possibility a forklift might appear. I was about 2 meters before the roller door, which was still up and Jim [Tierney], a forklift driver driving a forklift, appeared. He slowly rolled out of the cool room while I was standing still up against the handrail. I paused my travels at this point to ensure the path was clear and safe to move forward and to ensure I could give the right of way to any potential forklift drivers.

When I encountered the forklift driver I said, ‘Hi Jim.’ I believe we made eye contact with each other and I believe Jim saw me. Jim then turned right and drove off, passing me. I believe I was acting as safely as I could in the moment.”

[30] When asked about the Incident in cross examination, Mr Dunn said:

“… I broke that rule to stop any other hazardous actions happening with boxes and everything falling all over the floor and what not, putting other people in a dangerous situation where they might have to go and clean up those messes as I call them and also I did that for the sake of other forklifts that might be driving through that area.  So if any boxes come falling down or anything like that, as you say with a lot of these things in here, which could cause them to have a visual problem of some area and maybe crash or something. …” 2

[31] Mr Dunn agreed in cross examination that he attended a safety briefing referred to as a ‘One Point Lesson’ on 1 April 2019 about forklift and pedestrian interaction which highlighted that ‘no pedestrian is to leave the walkway if there is a forklift operating in the area’.

[32] In relation to Golden Rule 1, the Union submitted that the evidence showed that the boom gate was often bypassed and that this occurred frequently. It admitted Mr Dunn contravened the demarked footpath but argued that it was necessary to do so to avoid a further risk to Mr Dunn and fellow colleagues. It submitted that the evidence showed that Mr Dunn acted with haste and walked around the boom gate as the pending blockage and subsequent clean-up was extremely time sensitive.

[33] It was submitted that Mr Dunn's decision making was further coloured by the fact that the forklift drivers in the area often engaged the roller doors and maintained them in the up position using the E gate or other blockages of the metal sensors.

[34] The Union disputed that Mr Dunn wilfully and deliberately breached safety protocols with a cavalier attitude. It contended that Mr Dunn was faced with a choice of a lesser of two extremely unsafe options due to the operational circumstances that Bega Cheese created.

[35] It contended that when he made his decision, “he engaged his common sense that he'd accumulated over years and years in the industry and other previously unsafe machine-based industries in his previous employment. He was using his safety awareness and only did so to avoid an operationally flawed system that exposed to himself and other staff to further risk. It was a heat of the moment decision and considering the extenuating circumstances did not validate or justify termination”. 3

[36] On behalf of Mr Dunn it was argued that he did not breach ‘Golden Rule 2’ i.e. that employees must keep clear of moving vehicles. The Union said that he did not violate this policy when he bypassed the boom gate because he was, at all material times, clear of any moving vehicle and clear of, and subsequently gave way to, an energised forklift. Nor, was it argued, did he walk in front of, or behind, an operating forklift. It was therefore submitted there was no breach of Golden Rule 2. Accordingly, Bega Cheese did not have a valid reason for his dismissal as there was no breach the terms of the policy relied upon by it to justify the termination.

[37] The Union submissions noted that while Mr Dunn did concede that he deviated from the footpath demarcations, the conduct did not amount to a valid reason for his dismissal as he was acting to eliminate the possibility of a longer period of exposure in the forklift pathway and did so with due care.

[38] The evidence of Mr Taylor, Mr Gallagher and Mr O’Reilly on behalf of Bega Cheese was that it was not common for production employees to stand in the designated forklift area to clean boxes, and should there be a requirement to do so, traffic control measures were implemented in order for this to be done in a safe manner. Those control measures would include when and how pedestrians and forklifts must give way to each other for the period the pedestrian is in the forklift area. They also gave evidence that they had never seen, nor had it been reported to them, that forklift drivers placed pallets of cheese over the magnetic sensors to prevent the roller door from closing. They all said the roller doors were installed at considerable expense and were designed to open and shut in short timeframes. The roller doors also ensure the storage area maintains the correct storage temperature for the cheese. Neither Mr Taylor nor Mr Riley were aware, nor had it been reported to them, that forklift drivers interfere with the roller doors and leave the doors in an open position. They further gave evidence that leaving the roller doors in an upright and open position would lead to cold air escaping and result in cool room temperature issues and problems and potentially contaminate the cheese product leading to stock losses.

[39] Mr Gallagher gave evidence that he had reviewed the reportable hazards from the Bega Cheese records since 2015, and there were no reports of any of the practices claimed by Mr Dunn involving the roller doors.

[40] Mr Tierney, the forklift driver, gave evidence that he had driven and operated forklifts for over 25 years, and had been employed by Bega Cheese since 2000. He said that forklift traffic in the rear alleyway was high as it was the main access way to Cool Room 4. Because of this, pedestrians are completely separated by bollards and railings which restrict pedestrian access. He said that rarely, if at all, would there be a need for a pedestrian to be outside the controlled separation area, and if that were to be the case, then it would only occur in a controlled environment with full safeguards in place, such as safety cones and notification to the forklift drivers.

[41] Mr Tierney said that on the morning of the Incident, he was in the process of moving around 10 pallets of cheese from the rear alleyway into Cool Room 4. He said that when he saw Mr Dunn outside the designated pedestrian area walking between the pallets, he was ‘completely shocked’. He considered it a ‘near miss’ which scared him. He said he was motivated to submit an incident report because he had never been as frightened as he was with this Incident, as he had never had such a close call in nearly hitting someone as he did with Mr Dunn.

2. Disproportionate outcome

[42] The Union argued that while a breach of procedure did occur, the dismissal was disproportionate to the gravity of the misconduct. The Respondent, on the other hand, argued that the misconduct warranted dismissal.

3. Inconsistent disciplinary outcome

[43] The Union submitted that the dismissal was unfair because it was inconsistent with other disciplinary actions of past safety breaches involving other employees.

[44] In this respect, Mr Knapp gave evidence that:

a. Based on his experience, Mr Knapp advised Mr Dunn prior to the meeting of 9 April 2019 that he would likely be given a second or third written warning;

b. management has on occasion reduced strict observation of the safety protocols to ensure the speed and continuity of production and such behaviour may have had an impact on Mr Dunn’s motivation regarding his conduct;

c. he had on multiple occasions witnessed forklift drivers engaging the emergency stop function to keep the roller door open for ease of access. 4

[45] In cross examination, Mr Knapp conceded that he had never been involved in any workplace investigation or review involving safety issues. 5 Mr Knaap was taken to the incidents referred by him as similar incidents to the Incident involving Mr Dunn, and accepted that some of these incidents had circumstances which were different to that of Mr Dunn’s.6

[46] The evidence of Mr Thomas, a Team Leader who has been employed by Bega Cheese for over 18 years, given in cross examination, was that a different employee had been dismissed for breaching a Golden Rule in an incident involving a forklift since Mr Dunn’s dismissal.

[47] The evidence given by the relevant officers of Bega Cheese, and its submissions, was to the effect that each of the ‘comparisons’ to other employees had not actually compared ‘apples with apples’ and care should be taken in finding that there was evidence of inconsistent disciplinary outcomes.

4. Personal circumstances of Mr Dunn

[48] The Union contended that the dismissal was harsh due to Mr Dunn’s age and length of unblemished service. In this regard it submitted Mr Dunn was 63 years of age and had never been counselled for a safety breach or conduct issues in over 17 years of employment. He was also the sole income earner for his family, and Bega has a relatively high rate of unemployment (6.6%).

[49] As outlined earlier, Bega Cheese argued that for the Commission to find Mr Dunn’s dismissal was harsh, unjust or unreasonable, in the context of a serious safety breach where a valid reason is established, there must be significant mitigating factors for a conclusion that the dismissal was harsh. It was argued that the matters raised by Mr Dunn as mitigating circumstances are not significant mitigating factors given the extreme risk to which he exposed the Respondent.

Consideration

Protection from Unfair Dismissal

[50] There is no dispute and I am satisfied that Mr Dunn is a person protected from unfair dismissal by virtue of s.382 of the Act.

[51] I will now consider if the dismissal of Mr Dunn was unfair within the meaning of the Act.

Was the dismissal unfair?

[52] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[53] There is no dispute that Mr Dunn was dismissed and that subsection (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

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

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[55] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd⁷ 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.’

[56] In considering the criteria for assessing fairness, a Full Bench in Metro Quarry Group Pty Ltd v John Ingham 8, said:

“[24] The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is ‘a fair go all round’. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.”

[57] I am required to consider each of these criteria in reaching my conclusion⁹, which I now do.

Valid reason - s.387(a)

[58] Bega Cheese must have a valid reason for the dismissal of Mr Dunn, although it need not be the reason given to him at the time of the dismissal. 10 The reason(s) should be ‘sound, defensible and well founded’11 or justifiable on an objective analysis of the relevant facts, and should not be ‘capricious, fanciful, spiteful or prejudiced’.12

[59] The question I must address here is whether there was a valid reason for the dismissal related to his conduct (including its effect on the safety and welfare of other employees).

[60] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred 13. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the 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 it14.

[61] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason 15.

[62] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[63] In this case, Bega Cheese dismissed Mr Dunn because of his failure to follow its safety procedures.

Was there a breach of the Golden Rules?

[64] On Mr Dunn’s own evidence and the Statement of Agreed Facts, it is clear he did in fact breach Golden Rule 1 and 2, in that he did bypass a safety control by bypassing the boom gate, and he did not keep clear of a moving vehicle when he walked outside the guard rail into the area where the forklifts operate.

[65] I do not accept the arguments put on behalf of Mr Dunn that his conduct can be excused for the reasons put forth. First, I do not accept that Mr Dunn’s conduct was necessary in that if he did not attend to the box crusher with haste, it would result in an overflow of cardboard boxes, which would in turn expose him to a potential safety risk in having to clean the boxes up for an extended period of time in the path of forklifts. The evidence shows that it was not uncommon for the box crusher to get blocked, not least because it was a part of Mr Dunn’s job to clear the blockages. There was a process in place for removing the blocked boxes, one that Mr Dunn was aware of, and other than in respect of the Incident, a process that he undertook with regularity.

[66] I accept the evidence of the Messrs Taylor, Gallagher and Reilly set out earlier. There was no suggestion that the records of Bega Cheese, which confirmed there had been no reportable hazards or reports related to the practices alleged by Mr Dunn to excuse his behaviour, were incorrect.

[67] There is no evidence to support a view that Bega Cheese prioritised production over safety. To the contrary, the evidence demonstrated a significant investment in ensuring a safe place of work and safe work procedures for employees. I accept the evidence given on behalf of Bega Cheese in this regard.

[68] I further accept that there was a process in place for occasions where a person was required to enter the designated forklift area. Mr Dunn did not utilise this process.

[69] I accept Mr Tierney’s evidence as to how seriously he viewed the Incident.

[70] On Mr Dunn’s own evidence, he knew a forklift may be working in the area, and yet he decided to bypass the controls that were in place to protect him. There was no suggestion he was unaware or unclear about the Golden Rules. Only a week or so before the Incident, he had participated in a safety briefing relating to forklift and pedestrian interaction, the main point made being that no pedestrian is to leave the walkway if there is a forklift operating in the area. I find that Mr Dunn did deliberately breach Golden Rule 1 and 2, and this constitutes a valid reason for his dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[71] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,¹⁶ in explicit terms¹⁷ and in plain and clear terms.¹⁸ In Crozier v Palazzo Corporation Pty Ltd¹⁹ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”20

[72] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern. 21 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.²²

[73] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Dunn before his dismissal was effected.

[74] On the evidence before me, I am satisfied that Mr Dunn was notified of the reason for his dismissal and was given an opportunity to respond to the reason. I also note there is no suggestion by the Union to the contrary.

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

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

[76] There is no dispute that Mr Dunn was provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[77] Mr Dunn was not dismissed for unsatisfactory performance and this factor is therefore not relevant in my consideration.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[78] I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[79] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[80] The Union submitted that there are a number of considerations relevant to this criterion which are set out earlier in this decision.

[81] In most circumstances, a finding of a valid reason for a dismissal based on a serious safety breach will lead to a conclusion that the dismissal was not unfair. However there may be occasions where there are discernible and significant mitigating factors. In my view, this can be demonstrated in the case of Mr Dunn. Mr Dunn had 17 years of completely unblemished employment with Bega Cheese. He is 63 years of age. He does not have a highly transferrable skill set. Bega is located on the south coast of NSW and is a small regional town. I consider it will be difficult for him to find alternative employment.

[82] I acknowledge that length of service can “work both ways”, as contended by Bega Cheese. However in this case, Mr Dunn’s employment history was unblemished. There is simply no history of a ‘cavalier attitude to safety’ as submitted by the Respondent. The other factors referred to above are in my view significant. Each case turns on its own facts, and in this case the dismissal of Mr Dunn was, in all the circumstances, harsh, and I so find.

Conclusion

[83] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Dunn was harsh because of the matters identified under s387(h), and accordingly unfair.

[84] In relation to the other arguments put by the Union, there is no clear evidence before me that supports a finding that Mr Dunn was treated differently to another employee in the same or similar circumstances. Each of the examples referred to were, in my view, distinguishable on their own facts. Accordingly, I do not consider that Mr Dunn’s dismissal was unfair for this reason. Nor do I consider that the disciplinary action was disproportionate to the seriousness of the safety breach – it is only the ‘other relevant matters’ that in my view make his dismissal unfair.

[85] I now turn to the appropriate remedy.

Remedy

[86]  Having found that Mr Dunn was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Dunn seeks the remedy of compensation.

[87] Under section 390(3) of the Act, I must not order the payment of compensation to Mr Dunn unless:

a. I am satisfied that reinstatement is inappropriate; and

b. I consider an order for payment of compensation is appropriate in all the circumstances of the case.

[88] While Mr Dun seeks reinstatement, in this case, I am satisfied that reinstatement is inappropriate. Mr Dunn’s actions were a serious breach of Bega Cheese’s safety procedures. Bega Cheese has invested heavily in ensuring that it provides a safe workplace. While his dismissal was harsh because of his personal circumstances, I consider that reinstating Mr Dunn could undermine the considerable efforts made by Bega Cheese in relation to safety.

[89] I am also satisfied that an order for the payment of compensation is appropriate, for the reasons I have found Mr Dunn’s dismissal was harsh.

[90] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation including:

(a) the effect of the order on the viability of Bega Cheese;

(b) the length of Mr Dunn’ service;

(c) the remuneration that Mr Dunn would have received, or would have been likely to receive, if he had not been dismissed;

(d) the efforts of Mr Dunn (if any) to mitigate the loss suffered by him because of the dismissal;

(e) the amount of any remuneration earned by Mr Dunn from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by Mr Dunn during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

[91] In determining an amount to be paid as compensation, and as was noted by a Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 23 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages24.”

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Remuneration received, or likely to be received (s392(2)(c))

[92] While the evidence in this regard is limited, and while there is clearly an element of speculation in determining specifically how long Mr Dunn would have remained employed, I consider that it is likely that Mr Dunn’ employment would have continued for at least 12 months. It is unlikely after 17 years of employment that Mr Dunn would decide to change jobs. Given his unblemished work record, and had he received a final warning rather than being dismissed, it is likely he would not have made the same decision (to breach a Golden Rule) again.

[93] Mr Dunn’s gross weekly earnings, as evidenced by the Employment Separation Certificate provided by Bega Cheese, was $1084 per week. Had he remained employed for 12 months he would have received $56,520.

Remuneration earned and income likely to be earned (s392(2)(e) and (f))

[94] Mr Dunn had not found alternative employment as at the conclusion of the hearing. He did receive 5 weeks’ pay in lieu of notice at the time of his dismissal. This is to be deducted from the amount above, leaving $51,100.

Length of service (s392(b))

[95] Mr Dunn had been employed for approximately 17 years. This is a lengthy period of employment, however I consider it does not support reducing or increasing the amount of compensation ordered.

Viability (s392(a))

[96] There is no direct evidence before me as to the effect of an order for compensation might have on the viability of Bega Cheese.

Mitigation efforts (s392(d))

[97] Mr Dunn’s second witness statement set out the efforts he had made to find alternative employment. This was a reasonable effort to mitigate his loss. I do not consider it appropriate to reduce the amount of compensation otherwise calculated for this factor.

Other relevant matters (s392(g))

[98] There are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Dunn was subject might have brought about some change in earning capacity or earnings.

Misconduct (s392(3))

[99] I am satisfied that Mr Dunn’s misconduct contributed to the decision of Bega Cheese to dismiss him, and accordingly I reduce the amount otherwise ordered by $40,000 on account of the misconduct.

Shock, distress etc (s392(4))

[100] The amount of compensation does not include a component for shock, humiliation or distress.

Compensation cap (s392(5) and (6)

[101] The amount of $11,100 is less than the amount of remuneration Mr Dunn was entitled in his employment with Bega Cheese during the 26 weeks immediately before the dismissal. I am satisfied there is no basis to reduce the amount by reason of s 392(5) of the Act.

Conclusion

[102] In my view, the application of the Sprigg formula does not yield an amount that is clearly excessive or inadequate.

[103] For the reasons outlined above, I am satisfied that a remedy of compensation in the amount of $11,100 less appropriate taxation in favour of Mr Dunn is appropriate in the circumstances of this case. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:
O Forsyth-Sells for John Dunn.
A Powter for Bega Cheese Limited.

Hearing details:
2019.
Bega:
July 30.
Sydney:
August 14.

Printed by authority of the Commonwealth Government Printer

<PR715068>

 1   Exhibit 1 at para 20.

 2   Transcript PN195.

 3   Transcript PN22.

 4   See Exhibit 4.

 5   Transcript PN412-413.

 6   Transcript PN473-480.

7 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

 8   [2016] FWCFB 47.

9 Sayer v Melsteel [2011] FWAFB 7498.

 10   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 11   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 12   Ibid.

 13   Edwards v Giudice (1999) 94 FCR 561.

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

 15   Miller v University of New South Wales (2003) 132 FCR 147

16 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

17 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

18 Previsic v Australian Quarantine Inspection Services Print Q3730.

19 (2000) 98 IR 137.

20 Ibid at 151.

 21   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

22 RMIT v Asher (2010) 194 IR 1, 14-15.

 23   (1998) 88 IR 21.

 24   [2013] FWCFB 431.