1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Donald Macklyn
v
G&S Engineering Services Pty Ltd
(U2012/16795)
DEPUTY PRESIDENT ASBURY BRISBANE, 13 AUGUST 2013
Application for unfair dismissal remedy - health and safety policy and procedure - valid
reason - notification of reason.
BACKGROUND
[1] This is an application by Donald Bruce Macklyn under s.394 of the Fair Work Act
2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by G&S
Engineering Services Pty Ltd (G&S).
[2] G&S works in the mining, energy and infrastructure sectors and provides structural,
mechanical and electrical services to clients. The Company’s head office is in Mackay.
According to the Form F3 Employer’s Response to Application for Unfair Dismissal Remedy,
submitted under the signature of its Manager-Employee Relations in response to Mr
Macklyn’s unfair dismissal application, G&S had 920 employees at the time Mr Macklyn was
dismissed.
[3] Mr Macklyn was employed by G&S as a permanent, full time leading hand/store
person in the mining maintenance division, from 27 September 2010, until his dismissal on 30
November 2012. The reason given for Mr Macklyn’s dismissal was misconduct, said to
amount to a serious breach of G&S’s workplace health and safety policies and procedures.
[4] As required by s.396 of the Act, it is necessary to decide a number of initial matters
before the merits of the application are considered. These matters are not in dispute. Mr
Macklyn was dismissed on 30 November 2012. The application was made on 14 December
2012, within the time then required in s.394(2). Mr Macklyn is a person protected from
unfair dismissal as defined in s.382 of the Act. G&S is not a small business and the question
of whether the dismissal was consistent with the Small Business Fair Dismissal Code is not
relevant. The dismissal was not a redundancy.
[5] The matter was dealt with by way of a hearing, as it was considered that this was the
appropriate course, taking into account the matters set out in s.399 of the Act and the views of
the parties. The matter was heard in Rockhampton. Mr Macklyn was represented by Mr G.P.
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DECISION
E AUSTRALIA FairWork Commission
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Ebert of Finmore, Walters & Story and G&S was represented by Mr B. Cooper of
Livingstones Australia.
[6] Evidence was given by Mr Macklyn on his own behalf. Evidence on behalf of Mr
Macklyn was also given by Gregory Alan Leighton, a store person employed by G&S.
Evidence on behalf of G&S was given by Mr Clint Balsillie, Queensland Maintenance
Operations Manager and Ms Kirsty Middleton, Office Administrator.
EVIDENCE
Incident leading to Mr Macklyn’s dismissal
[7] Mr Macklyn worked out of G&S’s depot in Biloela. His duties involved loading and
preparing service vehicles and checking returned equipment and restocking service vehicles
as required. These activities are referred to as “mobing” and “demobing”.
[8] There are a number of facts which are not in dispute. On Friday 16 November 2012,
Mr Macklyn was replacing the lifting gear on a truck including shackles, by taking them from
a container in the store and placing them on the truck. While he was undertaking this task, Mr
Macklyn placed a compliance tag on a shackle, with a lifting capacity of 3.5 tonnes, and
placed that shackle onto the truck. The tag signified that the shackle had been inspected and
found to be fit for use by employees on site.
[9] It is the policy of G&S that the inspection and tagging of shackles is undertaken by a
qualified rigger or an external company qualified to undertake an assessment as to whether
such equipment is in a safe condition for use. Mr Macklyn was not authorised to place the tag
on the shackle and is not a qualified rigger.
[10] Mr Macklyn’s evidence as set out in his first witness statement made on 8 March
2013,1 was that while he was demobing the truck, he was called to the stores office by Ms
Middleton. On his way to meet with Ms Middleton, Mr Macklyn collected 3 shackles and
took them with him. Upon noting that one of the shackles was missing a test and compliance
tag, Mr Macklyn carried out a visual inspection of the shackle and placed a tag on it. Mr
Macklyn took this tag from a supply kept in the stores office for use by riggers. Mr Macklyn
acknowledged that he was not formally qualified to inspect lifting equipment but said that he
had practical experience.
[11] Mr Macklyn said that Ms Middleton observed him attaching the tag to the shackle, and
asked him whether he should be doing that. Mr Macklyn placed the shackle on the truck, but
said that within ten minutes, and before the truck left the work area, he took the shackle off
the truck, removed the tag from the shackle and returned the shackle to the container.
[12] Ms Middleton said that she called Mr Macklyn into her office to discuss the
whereabouts of caddy welders. According to Ms Middleton, Mr Macklyn had three 3.5 tonne
shackles in his hands when he arrived for the meeting. During the discussion, Mr Macklyn
asked Ms Middleton to pass him a yellow electrical zip tie from a box under the desk where
they were talking. Ms Middleton handed the tie to Mr Macklyn who proceeded to tag one of
the shackles. Ms Middleton said that she had a discussion with Mr Macklyn about this in the
following terms:
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“Kristy [Middleton]: Are you allowed to do that?
Don [Macklyn]: No, but I’m covering my arse.
Kristy: What would happen if something went wrong with that on site?
Don: [External contractor] or who ever put the tag on it would be in a great deal of
trouble.
Kristy: That’s what I thought.
Don: I didn’t see anything.
Kristy: Yeah well I did.”
[13] Ms Middleton said that as he was leaving the office Mr Macklyn took another tag and
tagged another shackle.
[14] Mr Macklyn disputed Ms Middleton’s evidence about the conversation on 17
November 2012. Mr Macklyn said that he did not say that the external contractor “or
whoever put the tag on would be in a great deal of trouble” and did not say “I didn’t see
anything”. Mr Macklyn said that he would not want to get anyone into trouble for something
he did. The external contractor was mentioned in the context of Mr Macklyn telling Ms
Middleton that there was no requirement to tag shackles and it was a “grey area”.
[15] Mr Macklyn said that he did say that he was “making it right” on the basis that he did
not want to get the employees on site into trouble because a shackle had come from the store
without a tag on it. Further, Mr Macklyn maintained that he did not tag a second shackle and
did not know that this was alleged until he read Ms Middleton’s witness statement in these
proceedings.
[16] Under cross-examination, Mr Macklyn agreed that he might have said that he was
“just covering his arse”. Mr Macklyn also said that he did not immediately remove the tag
from the shackle when Ms Middleton challenged him about it, because he needed to get
cutters to cut off the tag and had to go outside the office to do this. Mr Macklyn also said that
if he had not been interrupted by Ms Middleton’s request to come to the office, he would not
have tagged the shackle in the first place. Further, Mr Macklyn maintained that the fact a
shackle was tagged by a rigger did not mean it was safe but rather that it was OK at the time it
was inspected.
[17] Ms Middleton said that she made a telephone call to Mr Balsillie to advise him that
she had witnessed Mr Macklyn tagging some shackles and seeking advice on the correct
procedure for reporting this matter. Mr Balsillie told Ms Middleton to report the matter on
the following Monday (19 November 2012), through G&S’s hazard reporting process. Ms
Middleton was unable to attend work on Monday 19 November, and sent a Hazard Report to
Mr Balsillie by email, on Tuesday 20 November at 11.51 am.2
[18] Ms Middleton agreed under cross-examination that she did not ask Mr Macklyn to
take the tags off the shackles, and was not instructed to do this by Mr Balsillie when she
telephoned him to report the incident. Further, Ms Middleton confirmed her understanding
that the truck onto which the shackle had been placed by Mr Macklyn was scheduled to leave
the depot on Monday afternoon to go to site. Ms Middleton said that Mr Balsillie told her that
he was going to advise supervisors on site to check the trucks. In response to a question from
the Commission, Ms Middleton agreed that once the shackle tagged by Mr Macklyn was on
the truck, and the truck went to site, there was no way of ascertaining whether the tags were
properly inspected or not.
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[19] Under cross-examination, Mr Balsillie said that upon receiving the telephone call from
Ms Middleton on Friday 17 November, he took no positive steps to ensure that the shackle
tagged by Mr Macklyn was not put into service, because he knew that the truck would not
leave the depot until the following Monday afternoon, and the equipment on the truck would
not be used until Tuesday. Mr Balsillie agreed that he did not ask Mr Macklyn whether the
shackle was on the truck, and said that he worked by going backwards and addressing the
problem for the site, although in hindsight this did not seem logical.
[20] Mr Balsillie also said that Mr Clark notified the supervisors that when the truck got to
site on Tuesday, every single piece of lifting equipment needed to be checked to make sure it
had a current “tested” tag on it. Mr Balsillie agreed that an email to Mr Clark requesting that
lifting equipment be checked was not sent until 5.41 pm on Tuesday 20 November3, but
maintained that the email confirmed an earlier verbal instruction. In response to the
proposition that he did not refer to this conversation with Mr Clark in his witness statement,
Mr Balsillie said that there were some bits that he left out.
[21] Further, Mr Balsillie said that it was irrelevant that there was not a bin in the stores
area for out of service equipment to be stored in. The relevant issue was that Mr Macklyn
should have tagged the shackle in question as being out of service and taken it out of service.
Instead, Mr Macklyn placed the shackle back in the container.
[22] In response to questions from the Commission, Mr Balsillie said that he was not sure
how the shackle tagged by Mr Macklyn could have been identified once it was on the truck,
although he believed at the time that the Company would have had a way of identifying them.
Mr Balsillie also said that it seemed obvious now that the shackles should have been taken off
the truck, but he felt that he took adequate steps before the shackles were put into service and
could have been used.
Investigation of the incident
[23] The Hazard Report form used by G&S to record events or incidents requires an
assessment to be made in relation to the consequences of the incident. The scale ranges from
“insignificant” events (rated as 1) to “catastrophic” events (rated as 5). The form submitted
by Ms Middleton on 20 November 2012 rated the incident at level 3 in terms of the actual or
potential outcome. Ms Middleton described the incident as: “Noticed unqualified store
person putting a test tag on a shackle.” The hazard report submitted by Ms Middleton makes
no reference to a second shackle being tagged by Mr Macklyn. In relation to action taken, Ms
Middleton stated on the form that she had a conversation with the store person regarding the
fact that he should not be completing the task, and notified Mr Balsillie.4
[24] On reading Ms Middleton’s report and having a discussion with her, Mr Balsillie
became concerned about the incident due to the risk that the shackle would break while it was
suspending a heavy load. At 5.41 pm on the afternoon of Tuesday 20 November 2012, Mr
Balsillie sent an email to a number of persons including Mr Clark, a Senior Supervisor with
G&S, which contained the following points:
Ms Middleton had stated that Mr Macklyn was looking for green zip ties so he could
tag a 3-5 tonne shackle ready for use;
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When asked whether he was authorised to do this Mr Macklyn said that he was not
but was covering his arse;
Mr Macklyn is tagging lifting equipment and mobing it for use, thereby endangering
employees of G&S; and
Mr Macklyn is a leading hand store person and should know better.
[25] Mr Balsillie’s email concludes with the comment: “Gods [sic] knows what other
equipment he has tagged out without us knowing” and goes on to state that Mr Macklyn may
be terminated and to request that statements be taken from Mr Macklyn and Ms Middleton.5
[26] An “All Incident Reporting Notification Form” was completed by Mr Clark on or
around 21 November 2012 in which Mr Clark rated the incident at level 5 with a very high
potential hazard outcome. The incident was described in Mr Clark’s Report in the following
terms: “A G&S worker witnessed the unauthorised placement of a test tag on a bow shackle
in the Biloela store” and the Report provided additional detail that: “Worker continued to
place the test tag on the bow shackle despite being challenged about his competency to do
so.” In relation to prevention/rectification, the form states that the following steps were taken
to prevent re-occurrence/worsening of the Event or to rectify hazards.
“Challenged worker in regard to his competency to place the test tag on the bow
shackle. Removed test tags from the store and secured them in the office to prevent
recurrence.”6
[27] In a statement prepared on 21 November 2012 in connection with that Report, Ms
Middleton said:
“At approximately 12.30 pm on Friday 17 November I went down to the store to
discuss the whereabouts and tracking of our caddy welders. While I was there, I
noticed Don Macklyn putting a yellow test tag (from under his desk) on a small
shackle.” 7
[28] Ms Middleton’s statement goes on to set out the conversation she had with Mr
Macklyn in the same terms as those set out in her witness statement in these proceedings (see
paragraph [13] above). The statement concludes with Ms Middleton saying that: “We then
discussed the caddy welders and he walked out of the office. He had three shackles in his
hands and I seen [sic] him put tags on two.”
[29] Mr Macklyn travelled to the Rolleston Mine, on 19 November and started work there
on 20 November. On 21 November 2012, he was removed from the Rolleston Mine site and
told to travel to Biloela. Upon arrival in Biloela Mr Macklyn said that he was informed by his
Supervisor Mr Aldridge that that G&S would be investigating an alleged breach of the safety
rules. According to Mr Macklyn, the instruction from Mr Aldridge was that he should
prepare a written statement about the incident, sit back, put his feet up, have a beer and wait
for a phone call. Mr Macklyn said that he was also informed that he would be paid in full
throughout the investigation, but only received the minimum base pay of 7 hours each day.
[30] Mr Macklyn wrote a statement as requested, wherein he admitted that he had placed a
compliance tag on a shackle. Mr Macklyn said in that statement that when Ms Middleton
questioned him, he told her that according to the external contractor responsible for tagging
shackles, they don’t need to be tested, but that G&S tested them for compliance reasons. Mr
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Macklyn also said in his statement that he had “a rethink of his actions” because they had
been questioned by Ms Middleton, and because of the current situation between G&S and a
particular customer in relation to safety breaches, and “thought it best” to remove the shackle
he had tagged from the truck.
[31] The statement asserts that the shackle never left the demob area and that the situation
could have been averted if he had been asked if the shackle had gone to site. Mr Macklyn
further asserts in the statement that the replacement of compliance tags was a common
practice by “a past employee”, but had been ceased by current staff because they did not have
the authority to do so.8
[32] On 28 November 2012, Mr Macklyn was called in for an investigation meeting. The
meeting was attended by Mr Balsillie, Ms Middleton and Mr Clark. The meeting took the
form of a “Why Tree” investigation, which is a process used by G&S to investigate safety
issues. The process involves all attendees agreeing on what went wrong and why, the
sequence of events and the failures. Information is written on “post it” notes, grouped and
stuck to a wall.
[33] Mr Macklyn said that the “Why Tree” and an incident report had been prepared prior
to him attending the meeting. Mr Macklyn also said that although he made suggestions for
inclusion in the “Why Tree” few of his suggestions about why the incident had occurred, were
taken into account or included in the final incident report. In particular, Mr Macklyn pointed
to the fact that he suggested that the reason he had tagged the shackle was because the
Company had a bad safety culture, and while this reference was included in the “Why Tree” it
was not included in the final report.
[34] Mr Macklyn said that he found the whole process confusing and disputed the rating of
the incident as a level 5 incident. Mr Macklyn also said that he was told that the incident
would be downgraded from a level 5 to a level 3 in the final incident report, but that he had
not received a copy of the final incident report.
[35] Mr Balsillie said that during the “Why Tree” investigation Mr Macklyn was asked for
information by Mr Clark, who then wrote what Mr Macklyn said on post it notes which were
stuck to the wall. If Mr Macklyn was unhappy or expressed a reservation about what was
written on a particular post it note, the note would be rewritten and replaced.
[36] Mr Balsillie also said that during the process, Mr Macklyn mentioned several times
that it was “only a shackle” and “it did not matter”. Under cross-examination, Mr Macklyn
agreed that he made the comment that “it is just a shackle” but could not remember saying
“it’s not as if it matters” and said that the former comment was taken out of context. Mr
Macklyn did not elaborate about the context of this comment.
[37] Mr Balsillie said that in response to a question during the meeting about what he
thought would happen if he was found performing a process he was not authorised to perform,
Mr Macklyn said that he thought he would be shown the same leniency as others had been
shown in the past. Mr Balsillie said that Mr Macklyn was unable to provide further
information about the assertion that leniency had been shown to other employees in the past.
Mr Balsillie also said that Mr Macklyn was unable to provide a satisfactory response to
questions about why he had placed the shackles back on the rack after being questioned by
Ms Middleton, rather than taking them out of service, and had simply said: “I don’t know”.
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[38] Mr Balsillie maintained that the “Why Tree” was in draft form at the commencement
of the meeting on 28 November, and was completed with input from Mr Macklyn. Mr
Balsillie said that he explained the process to Mr Macklyn during the meeting including how
the post it notes were used to record information that was then moved into an agreed category.
Mr Balsillie also said that he worked with Mr Macklyn to ensure that the responses he gave
were his words and that he understood what it meant. Mr Balsillie’s version of the “Why
Tree” process was supported by Ms Middleton. Mr Balsillie conceded that he may have
given the impression to Mr Macklyn that the incident was going to be downgraded from a
level 5 to a level 3. Ms Middleton could not recall any discussion about this matter.
[39] Mr Balisillie said under cross-examination, that he told Mr Macklyn during the
meeting of 28 November that he should put any allegations or concerns about other
employees breaching safety rules into writing, and these would be investigated. There had
been no investigation of these alleged matters, because Mr Macklyn had not put the details of
the allegations into writing. Mr Balsillie also said that he could not recall whether he asked
Mr Macklyn if he had tagged any other equipment and agreed that this was an important issue
in the view of the Company.
[40] According to Mr Balsillie, the assessment of the incident as a level 5 incident did not
mean that Mr Macklyn would be dismissed, but had been “bumped up from the safety
department” on the basis that there had been previous experience in the same circumstances,
where shackles had failed and people had been killed.
[41] Mr Balsillie also said that he did not consider the discrepancy between the statements
of Ms Middleton and Mr Macklyn about the number of shackles that had been tagged, but had
it in his mind that Mr Macklyn tagged a number of shackles. Further, Mr Balsillie agreed that
at the meeting of 28 November he did not tell Mr Macklyn which of the “golden rules” he had
breached.
[42] The meeting of 28 November 2012 was adjourned and Mr Balsillie told Mr Macklyn
that he would “take it back to Mackay” for consideration.
The dismissal of Mr Macklyn
[43] A further meeting was subsequently arranged for 30 November 2012. Mr Balsillie
said that prior to that meeting, he asked G&S’s General Manager Human Resources to review
the situation. Consideration was given to matters including that Mr Macklyn:
had signed a written commitment to G&S’s safety culture on 29 September 20109;
was aware that tagging could only be done by an authorised person;
was aware of the testing and tagging procedures as evidenced by Hazard reports he
had lodged earlier in 2012 in relation to untagged equipment;10
was aware of his responsibilities to report potential hazards as evidenced by the
Familiarisation Checklist he signed on 28 December 2011;11
had completed Job Safety Environment Analysis Safety Training Module (JSEA) on
16 May 2012;12
had admitted a breach; and
had shown no remorse and made the incident out as trivial.
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[44] Mr Balsillie also said that he formed the view that there was potential future risk
attached to Mr Macklyn’s behaviour. On the basis of these matters, a preliminary view was
taken that justification existed for the dismissal of Mr Macklyn. In particular it was
considered that he had breached a Life Saving Rule and that this justified dismissal.
[45] Mr Macklyn attended the meeting of 30 November 2012 with a support person, Mr
Leighton. According to Mr Balsillie, during the meeting, Mr Macklyn said that he could not
see what the big deal was, causing Mr Balsillie to form the view that he did not share the
Company’s safety values. Mr Balsillie also said that Mr Macklyn was given the opportunity
to read all of the information gathered during the investigation process, and chose to read only
the statement made by Ms Middleton, commenting that “it is all lies” and “worth nothing”.
Mr Balsillie said that he asked Mr Macklyn to explain himself again, as he wanted to see if he
could understand the problem with his actions and attitude. Mr Macklyn repeated his
previous explanations and said that he could not see what “the big deal” was.
[46] Mr Balsillie said that he adjourned the meeting to review the information and
comments made. During the adjournment, Mr Balsillie considered the actions of Mr Macklyn
and came to the conclusion that G&S could not continue with Mr Macklyn’s employment, for
reasons including that he had committed a serious breach of a safety rule and considerable
risk resulted. Mr Balsillie considered that the Company had lost trust and confidence in Mr
Macklyn’s ability to comply with the safety aspects of his position in the future, particularly
as he was a leading hand working under limited supervision. It was also considered that Mr
Macklyn had shown no remorse and had downplayed the seriousness of his actions.
[47] Mr Macklyn was informed that his employment had been terminated and received a
termination letter dated 29 November 2012, in the following terms:
“This letter is to confirm the termination of your employment with G&S Engineering
Services.
It was reported that on 17th November 2012, you placed a yellow test and compliance
tag on a shackle. You are not a person who is authorised to perform this task and your
actions in doing this potentially could put the lives of others in danger when
performing lifting tasks.
A full investigation of the facts and circumstances surrounding the incident has been
conducted, including a statement from you, in which you recognised that you were
aware that your actions were not in accordance with G&S requirements.
In accordance with the Biloela Workshop Agreement 2012-2015, you will be paid 2
weeks’ pay in lieu of notice.
All other monies owing to you will be deposited into your nominated bank account.”13
[48] Under cross-examination, Mr Balsillie said that the letter advising Mr Macklyn of his
dismissal was written the day before the meeting of 30 November, but maintained that this
was because he did not feel competent to write such a letter. Mr Balsillie also said that the
dismissal was “option A” and had he may have decided to issue a warning instead. Mr
Balsillie agreed that he did not invite Mr Macklyn to comment on the concern that Mr
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Macklyn may engage in the same behaviour in the future and said that he did not want to lead
Mr Macklyn to an answer.
[49] Mr Balsillie agreed that no consideration was given to the fact that Mr Macklyn took
the tag off the shackle within ten minutes, because Mr Balsillie believed that he only did this
because he was challenged by Ms Middleton. Mr Balsillie also agreed that he did not offer
Mr Macklyn an opportunity to change his statement.
[50] Mr Macklyn said that in his view, the incident leading to his dismissal was a
convenient excuse to get rid of him, in circumstances where in June 2012, he had been asked
to sign a new contract as a casual employee, and had also been told that his position was
redundant. Mr Macklyn refused to sign the casual contract, and was left as the only
permanent employee at the Biloela site.
[51] Mr Balsillie said in response to this assertion, that redundancy had been mentioned
only as a last resort, and that after reviewing the situation it had been decided that a full time
employee was needed in the Biloela store. Mr Balsillie rejected the proposition put to him in
cross-examination, that he did not really want a permanent employee in that role.
[52] Mr Macklyn maintained that he had done nothing wrong in that the shackle did not go
to site and did not put anyone in danger. Mr Macklyn said that he had never denied that he
had tagged the shackle when he was not authorised to do so, but had denied that it was going
to cause harm to anyone. Mr Macklyn also maintained that when he left the meeting on 28
November, he firmly believed that the rating of the incident would be lowered from level 5 to
level 3.
[53] Mr Macklyn denied that he was given an opportunity to review all the material, and
said that he was only shown Ms Middleton’s statement because he asked to see it. Mr
Macklyn’s evidence on this point was supported by Mr Leighton, who said that Mr Balsillie
did not offer any information to Mr Macklyn and that Mr Macklyn had requested a copy of
Ms Middleton’s statement.
[54] Mr Macklyn also denied that he had tagged a second shackle and maintained that he
did not know that Ms Middleton was alleging he tagged a second shackle until he read her
witness statement in these proceedings, and did not note that she had said this in her statement
of 32 November when he read it at the
G&S workplace health and safety policies and procedures
[55] According to Mr Balisillie’s evidence, G&S has a zero tolerance of safety breaches
and emphasises its approach and philosophy on the G&S web site. The Company also has a
Safety Charter which states:
“Safety is our first consideration and a value that is fundamental to our culture.
There is a shared belief across all levels of the business, that every accident, and
therefore every injury, is preventable.
Our goal is for our "Zero Exposure" environment to deliver "Zero Harm.
We will continue to invest in training and systems that support such a
philosophy and transfer that knowledge into every G&S project through a
combination of on site processes and ongoing training programs.
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Every G&S employee has a right to stop working if they feel it is unsafe to continue.
"If it's not safe, stop - then make it safe".
All our subcontractors and partners have to adopt our commitment to safety.
Working safely means better customer relationships because where less time is lost
to incidents then operating costs reduce and productivity increases.” 14
[56] G&S also has in place a policy document setting out “Life Saving Rules”.15 These
Rules include the following:
“5. Equipment Operation
Only operate equipment on which you are trained, assessed and authorised.
6. Safety Protection Devices
Do not tamper with any equipment that is designed for the safety of personnel - such
as guarding.”
[57] The Rules also state that a breach may result in disciplinary action being taken. The
Life Saving Rules are underpinned by a Procedure, which states:
“Incidents and rule breaking will be investigated thoroughly. If the violator is aware
of the rule or required procedure through training, experience or communication and
did not comply with that rule or procedure, the maximum appropriate disciplinary
procedure will be applied.”
[58] G&S also has a procedure entitled “Just Culture Decision Tree” dealing with the
consequences of breaches of systems, policies or procedures. The manner in which such
breaches are dealt with is dependent on the nature and severity of the violation and the
whether or not the breach was intended or committed knowingly. That procedure includes the
“Why Tree” process which is used to investigate and analyse safety breaches.
Mr Macklyn signed a personal commitment to safety on 29 September 2010 wherein he
agreed to:
“Place health, safety and environment as my highest priority.
Take personal responsibility for my own safety and that of my workmates by
- Stopping, thinking and assessing the risk prior to any job;
- Continually asking myself “What things could go wrong?”; and
- Taking action to prevent injury to myself and others or damage to
property.
Learn and comply with any relevant G&S health, safety, environment standards and
site safety rules and procedures including use of PPE.
Not attempt any job or task unless I am competent and can do it safely." 16
[59] Mr Balsillie said in his evidence that the lifting of heavy equipment is a daily
occurrence in the operations of G&S and shackles are used to suspend heavy loads. The
shackles in question had a working load limit of 3.5 tonnes. Before use, they need to be
visually inspected and tested by an authorised person every three months to establish there is
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no damage or metal fatigue or corrosion. The failure of a shackle could lead to a fatality, and
the failure of Mr Macklyn to follow the correct procedure could have put the lives of others in
jeopardy.
[60] Mr Balisillie also tendered hazard reports lodged by Mr Macklyn earlier in 2012,
where Mr Macklyn had identified slings in the Biloela store which had not been tagged or
where the tag was out of date, indicating that he had organised for one sling to be retested and
for the other to be cut in half and disposed of in the industrial bin.
[61] Mr Macklyn did not dispute the existence of the workplace health and safety policies
and procedures referred to by Mr Balsillie, or his knowledge and understanding of them. Mr
Macklyn did make a number of comments in his evidence to the effect that there was a
difference between what G&S said about safety and how it followed safety matters up.
[62] Mr Macklyn also gave evidence about a number of safety breaches committed by
other employees of G&S including an allegation that Mr Balsillie had been speeding in his
work vehicle. Mr Balsillie said that he was not aware of any of these incidents until Mr
Macklyn raised them in his witness statement in these proceedings, and said that Mr Macklyn
should have completed reports about them at the relevant time. Mr Balsillie also denied that
he had been speeding in his work vehicle, as alleged by Mr Macklyn.
LEGISLATION
[63] In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must
take into account procedural and substantive matters set out in s.387 of the Act as follows:
a) Whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees) and;
b) Whether the person was notified of that reason; and
c) Whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
d) Any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to the dismissal; and
e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.
[64] A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the
employee or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the
employer acted; and/or
[2013] FWC 5303
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Unreasonable - because it was decided on inferences which could not reasonably
have been drawn from the material before the employer.17
CONSIDERATION OF SECTION 387 CRITERIA
Was there was a valid reason for the dismissal related to Mr Macklyn’s capacity or
conduct (including its effect on the safety and welfare of other employees)?
[65] The employer carries the onus of establishing that there was a valid reason for a
dismissal, and in cases of dismissal for misconduct, that the misconduct took place.18 A valid
reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful,
spiteful or prejudiced.”19 The reason for termination must also be defensible or justifiable on
an objective analysis of the relevant facts20. The Commission must determine whether
alleged conduct took place and what it involved, on the basis of evidence before it21, and an
assessment of what the employee is capable of doing or has done.22 In determining whether a
reason for dismissal related to capacity or conduct is valid, it is not the role of the
Commission to stand in the shoes of the employer and determine whether it would have made
the same decision.23
[66] A serious breach of a workplace health and safety policy or an incident where an
employee places health and safety at risk, will generally constitute a valid reason for
dismissal. This is particularly so when the breach is wilful or reckless and is committed in
circumstances where the employee is aware of the employer’s policy and the risks associated
with his or her conduct. In my view the Commission should not lightly interfere with the
right of an employer to establish, maintain and enforce workplace health and safety policies,
through the use of appropriate disciplinary processes.
[67] Reasons for dismissal related to conduct, may encompass more than just the conduct
itself. Those reasons may also include perceptions about that conduct on the part of the
employer or conclusions about past or future conduct that the employer has drawn. In the
present case, it is clear from the evidence of Mr Balsillie that in addition to the tagging of a
shackle, the reasons for the dismissal included a belief that Mr Macklyn had tagged an
additional shackle; a concern that he may have tagged other equipment; and a view that he
could not be trusted in future.
[68] I accept that Mr Macklyn breached an important workplace health and safety policy of
G&S in circumstances where the policy was reasonable and Mr Macklyn understood that
policy. By tagging a piece of lifting equipment, in circumstances where he was not authorised
to do so, Mr Macklyn placed the health, safety and potentially the lives of other employees at
risk. Mr Macklyn also placed G&S at risk under workplace health and safety legislation, and
with respect to its contractual obligations to its employees and clients. This risk was
heightened by the fact that G&S undertakes work in industries where heavy lifting is a
common occurrence.
[69] Mr Macklyn knew that he was not authorised to tag shackles, and that to do so
breached G&S’s workplace health and safety policies. Despite Mr Macklyn’s evidence to the
contrary, I am satisfied that those policies were clearly and widely articulated and that Mr
Macklyn well understood them. Indeed, Mr Macklyn had previously raised hazard reports
over incorrectly tagged equipment, pursuant to those policies and procedures.
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[70] Mr Macklyn has not provided a reasonable explanation for his conduct in tagging the
shackle, either in his evidence in these proceedings or to G&S prior to his dismissal. I do not
accept as a reasonable explanation, Mr Macklyn’s assertion made under cross-examination,
that he tagged the shackle because he was interrupted by Ms Middleton. The interruption was
simply Ms Middleton asking Mr Macklyn to come to the office to have a discussion with her.
There was no evidence or urgency about the request, or that Mr Macklyn was under any
pressure to complete the task he was performing at the point Ms Middleton made her request.
The fact that Mr Macklyn was interrupted during the performance of his duties does not
constitute a reasonable explanation for his conduct in placing a compliance tag on a shackle in
circumstances where he was not authorised to do so. Further, Mr Macklyn was employed as a
leading hand store person and as such should have been capable of responding to an
interruption without committing a serious breach of workplace health and safety.
[71] Regardless of the exact terms of the discussion between Ms Middleton and Mr
Macklyn, and whose version is accepted, Mr Macklyn did not immediately acknowledge the
correctness of the fundamental point made by Ms Middleton - that he should not tag the
shackle. Instead Mr Macklyn debated the point with Ms Middleton and left the office without
indicating any intention of removing the tag. Mr Macklyn then proceeded to put the shackle
on to a truck that was scheduled to be mobilised to site.
[72] It is not to the point that Mr Macklyn took the shackle off the truck within ten minutes
and that it did not leave the depot. It is clear from Mr Macklyn’s statement during the
investigation of the incident that Mr Macklyn put the shackle on the truck after he was
challenged by Ms Middleton and did not take it off the truck for a further period, that Mr
Macklyn states was only 10 minutes. The fact that Mr Macklyn had to go out of the office to
get cutters to remove the tag is also irrelevant. Mr Macklyn went to get the cutters after he
had placed the shackle on the truck. There is no evidence that Mr Macklyn would have taken
steps to remove the tag or take the shackle off the truck, if he had not been challenged.
Further, when Mr Macklyn removed the tag from the shackle, he did not place it out of
service or tag it so that it could be identified and checked by an appropriately qualified
person.
[73] Further, I do not accept Mr Macklyn’s assertion made during the “Why Tree”
Investigation, and repeated in these proceedings, that G&S has a poor safety culture. That
assertion is at odds with the evidence in relation to the documented policies and procedures of
G&S and Mr Macklyn’s acknowledgement of those procedures through signing documents
recording his commitment to them, and using those procedures during the course of his
employment. I am also of the view that there is insufficient evidence upon which I could be
satisfied that the breaches of workplace health and safety alleged by Mr Macklyn against
other employees and managers occurred or were comparable with the conduct for which he
was dismissed.
[74] Against these factors I have taken into account the following considerations in
deciding whether there was a valid reason for Mr Macklyn’s dismissal. I do not accept that
Mr Macklyn tagged more than one shackle. Ms Middleton’ evidence on this point was
entirely unconvincing. That evidence is also at odds with the hazard report completed by Ms
Middleton at the time she witnessed the incident, and with Mr Clark’s interpretation of that
report as evidenced by the All Incident Reporting Notification Form he completed.
[2013] FWC 5303
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[75] I also do not accept that Mr Balisllie had a reasonable basis for believing that Mr
Macklyn had tagged more than one shackle when he emailed Mr Clark about the Hazard
Report submitted by Ms Middleton and instigated the investigation into the incident. That
email was sent on 20 November, before Ms Middlton asserted - contrary to her earlier hazard
report - that Mr Macklyn had tagged two shackles. Mr Balsillie did not investigate the
discrepancies in Ms Middleton’s statements.
[76] I am also of the view that there is a significant disconnect between Mr Balsillie’s
views about the seriousness of the incident which lead to Mr Macklyn’s dismissal as
expressed in his evidence in these proceedings, and his response to the incident when it was
reported to him by Ms Middleton.
[77] As far as Mr Balsillie knew, on the afternoon of Friday 17 November 2012, a shackle
(or shackles) capable of lifting up to 3.5 tonnes, tagged as safe for use by a person with no
authority to make that assessment, was ready to be loaded (or had been loaded) onto a truck
which was to be despatched to a work site early the following week. Mr Balsillie did not
know the type of tag that had been placed on the shackle or where Mr Macklyn had placed the
shackle after being challenged by Ms Middleton.
[78] Inexplicably, Mr Balsillie took no steps to have the shackle identified and isolated and
could not provide any information about how the shackle could have been identified once it
was on a truck and bound for site. Even more inexplicably, Mr Balsillie failed to issue an
instruction to Ms Middleton about isolating the shackle, or to contact Mr Macklyn to clarify
what he had done with the shackle or to instruct him to deal appropriately with it, when he
was informed of the incident by Ms Middleton.
[79] The email sent by Mr Balsillie to Mr Clark asking that all lifting gear be checked, was
not sent until 5.41 pm on Tuesday 21 November. The email is in the form of an instruction
rather than confirmation of a previously issued verbal instruction. I am not satisfied that there
was a verbal instruction, and if there was, on Mr Balsillie’s evidence, it was not issued until
the morning of Tuesday 21 November. For all Mr Balsillie knew, the shackle could have
arrived at site on the morning of Tuesday 21 November and been used before the instruction
he asserts that he gave was received and conveyed to relevant personnel on site.
[80] If, as asserted by Mr Macklyn, the procedures on site would have required that the
shackle was checked before it was used, the potential risk of a catastrophic event may have
been reduced. Mr Balsillie did not give any evidence to the contrary on this point, and it may
explain Mr Balsillie’s failure to take more direct action in relation to the shackle.
[81] Notwithstanding these matters, the tagging of a shackle capable of lifting 3.5 tonnes in
circumstances where Mr Macklyn was not authorised to undertake this work was a serious
breach of G&S’s workplace health and safety procedures. Mr Macklyn was aware that his
conduct was in breach of G&S’s procedures and had been provided with training in relation to
those procedures. The tag Mr Macklyn placed on the shackle indicated that it was compliant
with G&S’s procedures for ensuring that it was safe and fit for purpose.
[82] Mr Macklyn’s evidence about what he did with the shackle after he tagged it was far
from clear. In his first witness statement, he said that he was demobing a vehicle when he
tagged the shackle, and made no mention of the fact that he had put it on a truck, until his
second witness statement in response to the statement of Mr Balsillie, which attached a
[2013] FWC 5303
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statement Mr Macklyn made during the investigation of the incident which made it clear that
he put the shackle he had tagged on to the truck after being challenged by Ms Middleton.
[83] Had the shackle gone to site, the result could have been catastrophic in terms of
workplace health and safety and the relationship of G&S with clients. Further, Mr Macklyn
took no steps to undo the potential damage until he was challenged about the matter by Ms
Middleton. On his own evidence, Mr Macklyn did not rethink his actions until Ms Middleton
questioned him about tagging the shackle. After Ms Middleton questioned him about tagging
the shackle, Mr Macklyn put it on to a truck that was scheduled to go to site. After a further
period of time, Mr Macklyn removed the tag and did not take the shackle out of service. I am
not satisfied that left to his own devices, Mr Macklyn would have removed the tag from the
shackle or taken it off the truck.
[84] Mr Balsillie frankly acknowledged in his evidence to the Commission, the
shortcomings with respect to the steps he took to deal with the incident and the investigation
that followed it. The failure of Mr Balsillie to respond appropriately to the incident does not
reduce its potential impact or remove the capacity of G&S to rely on it as a valid reason for
dismissal. Accordingly, I am on balance, satisfied that there was a valid reason for the
dismissal of Mr Macklyn.
Was Mr Macklyn notified of the reason for his dismissal?
[85] Consideration of whether a person facing dismissal is notified of the reason for
dismissal, is fundamentally linked to the principles of natural justice encapsulated within the
considerations in s.387. Notification of the reason for dismissal underpins the ability of a
person whose job is at risk, to respond to allegations and to attempt to convince the employer
that the reasons are not a basis for dismissal.
[86] Reasons for dismissal may be more than the conduct of the employee and may also
include the employer’s perceptions about that conduct or conclusions the employer has drawn
based on the conduct. Those perceptions and conclusions may constitute substantive reasons
for dismissal. In order for a person to be notified of the reason for dismissal, he or she must
be notified of all of the substantive reasons.
[87] In the present case, I am not satisfied that Mr Macklyn was informed of the reasons for
his dismissal. It is true that Mr Macklyn was informed that the employer was investigating an
allegation that he had tagged a shackle in circumstances where he was not authorised to do so.
However the persons who decided to dismiss Mr Macklyn also based their decision on
conclusions drawn from the incident, and these were substantive reasons for the dismissal of
which Mr Macklyn was not notified.
[88] The “Why Tree” process is an investigative tool. In order for procedural fairness to be
given to Mr Macklyn, the conclusions reached through the process about his conduct and the
inferences drawn from that conduct, should have been notified to him, so that he had an
opportunity to respond to the reasons for his dismissal and to attempt to convince G&S that its
concerns about matters such as his past or future conduct were unfounded.
[89] It is clear from the evidence that following the investigation of the incident, including
the Why Tree process, Mr Balsillie formed the view that on 16 November 2012, Mr Macklyn
tagged more than one shackle. It is also apparent that Mr Balsillie believed that Mr Macklyn
[2013] FWC 5303
16
may have tagged other items that he was not authorised to deal with in this way. Further, it is
clear that Mr Balsillie formed the view that Mr Macklyn could not be trusted and would likely
repeat the conduct in the future.
[90] I accept Mr Macklyn’s evidence that he was not provided with all of the relevant
documentation. The statement of Ms Middleton was provided to Mr Macklyn at his request,
and after he had been told that the decision had been made to dismiss him. At very least, Mr
Macklyn should have received that documentation, or a summary of what it was said to
establish, before he attended the meeting of 30 November 2012. Mr Macklyn should also
have been informed about which of G&S’s Life Saving Rules he had breached.
[91] There is insufficient evidence upon which I could find that Ms Middleton’s statement
made on 21 November for the purposes of the investigation was different to the version
tendered in these proceedings. However I accept that at the time he was dismissed, Mr
Macklyn was not aware that Ms Middleton was alleging that he tagged two shackles.
Assuming that Mr Macklyn was shown the same version of that statement at the meeting of
30 November where he was dismissed, he did not note that Ms Middleton had changed her
earlier report and was now asserting that he had tagged two shackles. Such an important
matter should have been highlighted to Mr Macklyn so that he could comment on it before his
dismissal.
[92] I do not accept the submissions on behalf of G&S that Mr Macklyn was told the
reasons for his dismissal at that meeting. The discussion on 30 November focused on the
tagging of the shackle and not the other substantive matters about which Mr Balsillie had
formed views and upon he based the decision to dismiss Mr Macklyn.
[93] Those matters are not an afterthought raised in the context of a submission to the
Commission about why Mr Macklyn’s application should not be granted or what remedy he
should receive if his application is granted. They were the substantive and motivating reasons
for the dismissal.
[94] These matters should have been put to Mr Macklyn so that he could respond to them
before the decision as to whether he should be dismissed was made. The failure on the part of
G&S to ensure that those matters were put to Mr Macklyn before the decision to dismiss him
was made, results in a situation where I am unable to be satisfied that Mr Macklyn was
notified of the reasons for his dismissal.
Was Mr Macklyn given an opportunity to respond to any reason related to his capacity
or conduct?
[95] As previously stated, in order for an employee to be afforded procedural fairness, the
substantive reasons for dismissal must be notified to the employee so that the employee has
an opportunity to respond. Because Mr Macklyn was not notified of the substantive reasons
for his dismissal before the decision to dismiss him was made, he did not have such an
opportunity.
[96] Mr Balsillie went to some effort to convene a number of meetings for the purposes of
discussing the allegations with Mr Macklyn and giving him an opportunity to respond.
Unfortunately, the failure to properly notify Mr Macklyn of the reasons for his dismissal, has
resulted in a situation where those meetings are not a sufficient basis upon which I could be
[2013] FWC 5303
17
reasonably satisfied that Mr Macklyn was given an opportunity to respond to the reasons for
dismissal related to his conduct.
Was there any unreasonable refusal by the employer to allow Mr Macklyn to have a
support person present to assist at any discussions relating to dismissal?
[97] Mr Macklyn had a support person of his choice at the meeting with the Respondent on
30 November 2012, and there was no unreasonable refusal by G&S in relation to allowing
him to have a support person.
Was Mr Macklyn warned about unsatisfactory performance before the dismissal?
[98] The dismissal related to a single incident of misconduct, rather than ongoing or
repeated incidents of unsatisfactory performance. Prior to the incident on 17 November 2012,
Mr Macklyn had no prior safety warnings or breaches and had not been given any warnings
about unsatisfactory performance during his employment.
The degree to which the size G&S’s enterprise would be likely to impact on the
procedures followed in effecting the dismissal
[99] According to the information provided to the Commission by G&S in its response to
the application, the Company has 920 employees. In my view, an employer of that size
should be expected to deal with an incident such as that which occurred on 16 November, in a
manner that ensured procedural fairness was afforded to an employee accused of a serious
safety breach. For the reasons set out above Mr Macklyn was not afforded procedural
fairness.
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
[100] G&S has dedicated human resource specialists, and it would be expected that the
Company would have dealt more appropriately with Mr Macklyn in relation to this incident.
Any other relevant matters
[101] I do not accept Mr Macklyn’s assertion that his dismissal was motivated by G&S
seeking to avoid redundancy payments. G&S has provided sufficient evidence of the reasons
for the dismissal to counter that assertion. Although there are flaws in the process followed
by G&S in effecting the dismissal, I am unable to be satisfied that the process was designed to
avoid redundancy payments.
CONCLUSIONS
[102] After weighing the evidence in relation to the matters set out in s.387 of the Act, I
have concluded that Mr Macklyn’s dismissal was unfair, on the grounds that it was
unreasonable. Mr Macklyn’s dismissal was decided on inferences that could not reasonably
have been drawn from the material before G&S when the decision was made.
[2013] FWC 5303
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[103] The procedural defects in the dismissal process were significant and denied Mr
Macklyn the opportunity to argue that the incident was not as serious as was contended,
because he had taken steps to rectify the effect of his conduct, and to attempt to convince Mr
Balsillie that he would not engage in such conduct again. The procedural failures also denied
Mr Macklyn the opportunity to convince those who were deciding whether to dismiss him,
that the conduct was a one off incident and had not occurred in the past. Those opportunities
are significant matters when an employee is facing dismissal, and in the present case, are not
outweighed by the gravity of the conduct.
[104] As required by s.390 of the Act, I am satisfied that Mr Macklyn was protected from
unfair dismissal and that he has been unfairly dismissed. Mr Macklyn should have a remedy
for his dismissal, and I am satisfied that reinstatement is not appropriate, given the
circumstances of this case, including the fact that Mr Macklyn does not seek reinstatement
and the stated loss of confidence in him on the part of Mr Balsillie. Accordingly, I consider
that an award of compensation should be made.
[105] The remedy of compensation is dealt with in s.392 of the Act in the following terms:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu
of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA
must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, FWA must reduce the amount it would otherwise order
under subsection (1) by an appropriate amount on account of the misconduct.
[2013] FWC 5303
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Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not
include a component by way of compensation for shock, distress or humiliation, or
other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not
exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[106] At the time of his dismissal, Mr Macklyn’s base earnings were $1146.10 per week.
His actual earnings averaged over the six month period prior to his dismissal, were $1460.55
per week. There was no evidence about what components were included in actual earnings
and I assume that this amount includes overtime payments. On termination of his
employment Mr Macklyn was paid two weeks wages in lieu of notice at the base rate of
$1146.10. At the time this application was heard, Mr Macklyn had obtained only casual work
averaging 12 to 24 hours per week, worked on the basis of 12 hour shifts.
[107] Considering the circumstances of the case, including the factors in s.392 of the Act, I
have determined that Mr Macklyn should be compensated for his unfair dismissal by the
payment of 16 weeks wages at the rate of $1146.10 per week. I have not included actual
earnings in this calculation, because there is no evidence that overtime or whatever other
amounts made up the actual earnings, were other than discretionary matters and how those
earnings may have fluctuated each week.
[108] There is no evidence that an order for compensation will affect the viability of G&S.
Mr Macklyn had less than two years service with G&S. I am not able to conclude that Mr
Macklyn would have remained in employment for longer than 16 weeks. At very least, had
Mr Macklyn been given an opportunity to explain his conduct with respect to the shackle, and
[2013] FWC 5303
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to address the Company’s concerns about his past and future conduct, G&S would have been
entitled to take a dim view of what had occurred, and to give Mr Macklyn a final warning,
notwithstanding that he had received no previous warnings. Given Mr Macklyn’s failure to
adequately explain why he tagged the shackle in these proceedings, it may also have been the
case that even if Mr Macklyn was afforded procedural fairness, he would not have satisfied
the concerns held by Mr Balsillie about past and future conduct.
[109] I am also of the view that there was at least a discussion about redundancy prior to the
dismissal and that Mr Macklyn’s employment may have been terminated on that ground in
any event. Had this occurred, Mr Macklyn would have been entitled to the two weeks pay in
lieu of notice he received and a further amount of six weeks severance pay.
[110] Had Mr Macklyn remained in employment for a further 16 weeks, he would have
earned the amount $18,337.60. In that period, Mr Macklyn was paid the amount of two
weeks in lieu of notice, which should be deducted. I have considered whether a deduction
should be made for earnings from other employment. In circumstances where the actual
earnings exceeds the base earnings by a significant amount, and that Mr Macklyn has only
obtained casual employment, I do not propose to make a further deduction for the earnings
from that casual employment. It is also the case that there is no evidence about when this
income was earned and Mr Macklyn was not cross-examined about his efforts to obtain
alternative employment and when that employment commenced.
[111] I have also decided to reduce the amount of compensation by a further four weeks on
the basis of misconduct on the part of Mr Macklyn. That reduction reflects the finding that
notwithstanding the procedural defects in the manner in which his dismissal was effected,
there was a valid reason for the dismissal.
[112] Accordingly, I have determined that Mr Macklyn should be paid an amount of
compensation of $11,461.00 less taxation at the appropriate rate.
[113] The amount $11,461.00 less taxation at the appropriate rate is to be paid to Mr
Macklyn within fourteen days of the date of this Order. An Order to this effect will issue with
this Decision.
DEPUTY PRESIDENT
Appearances:
Mr. G.P. Ebert for the Applicant
Mr. B. Cooper for the Respondent
[2013] FWC 5303
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Hearing details:
2013.
Rockhampton:
22 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR539704
1 Exhibit 1 Witness Statement of Donald Bruce Macklyn.
2 Exhibit 5 Witness Statement of Kristy Middleton Annexure KM2 and KM3.
3 Exhibit 6 Statement of Clint Balsillie Annexre CB12.
4 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB11.
5 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB12.
6 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB13.
7 Exhibit 5 Witness Statement of Kristy Middleton Annexure KM1.
8 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB14.
9 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB16.
10 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB17.
11 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB18.
12 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB19.
13 Exhibit 6 Witness Statement of Clint Balsillie Annexure CB22.
14 Statement of Clint Balsillie Exhibit 6 - Annexure CB2.
15 Statement of Clint Balsillie Exhibit 6 - Annexure CB20.
16 Respondent’s submissions, dated 28 March 2013, paragraph 30.
17 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines
(1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.
18 Yew v ACI Glass Packaging Pty Ltd 71 IR 201.
19 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
20 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
21 King v Freshmore Print S4213 per Ross VP, Williams SDP and Hingley C.
22 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
23 Walton v Mermaid (1996) 142 ALR 681 at 685.
