1
Fair Work Act 2009
s.394—Unfair dismissal
Debbie Green
v
H.J. Heinz Company Australia Ltd
(U2014/36)
Sharon Crilly
v
H.J. Heinz Company Australia Ltd
(U2014/37)
COMMISSIONER WILSON MELBOURNE, 22 MAY 2014
Application for relief from unfair dismissal Application for relief from unfair dismissal.
Introduction
[1] Debbie Green and Sharon Crilly worked with HJ Heinz Australia Pty Ltd (Heinz) at its
Echuca, Victoria food processing facility until 19 December 2013, when each was dismissed
for alleged serious misconduct arising out of events on a night shift on 4 and 5 December
2013 and for allegedly lying about what had occurred on that night in the subsequent
investigation undertaken by the company.
[2] Each contests their dismissal, having made applications for unfair dismissal to the Fair
Work Commission on 6 January 2014. Each argues their dismissal was an unfair dismissal
within the meaning of the Fair Work Act 2009 (the Act) and that consequently each should be
reinstated to their former position.
[3] For the detailed reasons set out below, I find each to have been unfairly dismissed
within the meaning of the Act, and that reinstatement is the appropriate remedy.
Preliminary issues
[4] Ms Green commenced employment with Heinz on 2 June 2000 and at the time of
dismissal was employed as a full time food preserver.
[5] Ms Crilly commenced employment with Heinz on 18 August 2000 and was also
employed as a full time food preserver at the time of her dismissal.
[2014] FWC 3402 [Note: Appeals pursuant to s.604 (C2014/4890 &
C2014/4892) were lodged against this decision - refer to Full Bench
decision dated 9 September 2014 [[2014] FWCFB 6031] for result of
appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB6031.htm
[2014] FWC 3402
2
[6] Heinz at Echuca is part of a larger corporation, with the Employer Response Form,
Form F3, advising that at the time of dismissal, the company employed approximately 591
people. At the time of the hearing, Heinz Echuca employed 91 or 92 employees.1
[7] Section 396 of the Act requires the determination of four initial matters to be
considered before considering the merits of the application. I will deal with those in turn:
It was not in dispute, and I find, that Ms Green and Ms Crilly’s applications were
made within the 21-day period required in s.394(2)(a).
It was not in dispute, and I find, that, at the time of their dismissal, Ms Green and Ms
Crilly were each a “person protected from unfair dismissal” within the meaning of
that expression in s.382.
It was not in dispute, and I find, that Heinz was not a “small business employer”
within the meaning of that expression in s.23. Therefore the issue of consistency
with the Small Business Fair Dismissal Code does not arise.
It was not in dispute, and I find, that Ms Green and Ms Crilly’s dismissal were not
cases of “genuine redundancy”, as defined in s.389.
[8] Mr B Terzic and Mr J Wieladek of the Australian Manufacturing Workers’ Union
(AMWU) represented the Applicants and Mr M Rodgers of Livingstones represented Heinz.
Mr Rodgers was granted permission by me to appear as a paid agent, pursuant to s.596(2)(a)
of the Act, for the reason that I formed the view that it would allow the matter to be dealt with
more efficiently, taking into account the complexity of the matter. The AMWU did not
oppose such representation.
BACKGROUND
[9] On 4 and 5 December 2013, Ms Green and Crilly were working a night shift. They are
friends who work closely alongside each other and both are smokers.
[10] The Heinz plant is a non-smoking plant, so when a staff member wants to smoke a
cigarette they must leave the factory and exit the plant through a secure perimeter gate, which
is around 80m from the front door of the plant that serves as an entrance for the plant’s
factory and its offices. There is a smokers’ “hut” adjacent to the secure perimeter gate, which
is rather like a picnic shelter found in recreation parks. The smokers’ hut consists of a roof;
rear and side wind barriers; a table and connected benches; and a large industrial ashtray. The
front side of the hut facing the factory is open to the elements and more or less in a direct line
from the plant’s front door although that line is partly obscured by a small shrub. Within a
few metres of the rear of the hut is the staff car park, which is well-lit with large commercial
flood-lights.
[11] When this decision refers to the “car park”, that is a reference to not only the car park
itself, but the smokers’ hut as well, unless the context indicates otherwise. When this decision
refers to the term ‘smoko’, that is a reference to what the parties plainly see as a work break.
1 Transcript, PN 2499
[2014] FWC 3402
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[12] Not long after 5am on 5 December, Ms Green and Ms Crilly left the plant and exited
through the secure perimeter gate. Why they left the plant and what they did is controversial.
[13] They were seen to have left by at least one other employee, Mr Les Middlebrook.
Another employee, Mr Gary Howarth, also claims to have seen them leave.
[14] Shortly before they left the plant, Ms Green and Ms Crilly were spoken to by Mr
Watts. What was said, and where he spoke with them is contested; however there is no contest
that he thought they may have been going for an unauthorised smoko and that he asked them
that, which they denied. The parties agree that Heinz employees may have four breaks per
shift. A fifth would be unauthorised, potentially leaving employees open to disciplinary action
if they took one.
[15] On Mr Middlebrook’s and Mr Howarth’s evidence Ms Green and Ms Crilly were seen
outside of the plant, and in the smokers’ hut, and it looked to Mr Middlebrook like the women
were having a cigarette.
[16] After Ms Green and Ms Crilly returned to the premises, and after each doing other
things for a short while, they spoke with Mr Watts. Ms Green’s and Ms Crilly’s evidence (of
which there is no alternative version) is that Ms Crilly went to the toilet and Ms Green went to
her locker. When they spoke with Mr Watts, he asked them about their reason for leaving the
premises. Again there is a contest on the evidence relating to this discussion.
[17] The night shift finished shortly after and the relevant staff were not scheduled to work
again until Monday 9 December.
[18] Overall, Ms Green and Ms Crilly explain their absence from the plant due to Ms
Crilly’s medical condition. The condition sometimes requires unexpected access to certain
supplies, and it is Ms Crilly’s evidence that this was the case on 5 December. She thought she
had enough supplies in her locker to get through the shift, but by 5 am this proved incorrect.
Ms Crilly spoke about this with Ms Green, who is a first aid officer and has a box of first aid
supplies and equipment in the boot of her car, parked that night in the Heinz car park through
the secure perimeter gate. Ms Green said to Ms Crilly that she might have supplies in her first
aid kit, which led to them both leaving the plant.
[19] On Monday 9 December, Mr Les Middlebrook, a Cook/Kitchen Operator with Heinz
Echuca went to see Mr Lester Gilmore, Human Resources/Continuous Improvement and
Operational Risk Manager, at the same site. Mr Middlebrook told Mr Gilmore that, with
reference to the night shift on 4 and 5 December, Ms Green and Ms Crilly “had taken a 5th
break at approximately 5:00 am and that he and Gary Howarth had witnessed them sitting in
the smokers’ hut”2. This observation followed a prior warning on the night of 4 and 5
December given by Mr Middlebrook to the Applicants’ team leader, Mr Brian Watts3. The
precise nature of the warning and the level of suspicion it might create is disputed.
[20] Mr Gilmore records Mr Middlebrook as informing him;
2 Exhibit R2, para 10
3 Exhibit R3, paras 7 - 8
[2014] FWC 3402
4
“Les told me that when Debbie and Sharon had returned, they had gone to talk to Brian
to ask if they were in trouble.
He told me that he had spoken with Brian after the 2 of them had left Brian’s office.
Les had asked if they had admitted to taking 5 breaks, and Brian had said ‘No’.”4
[21] Mr Gilmore commenced an investigation of this report. The key steps of the
investigation process are reported in his witness statement and include the following, which I
accept as an accurate chronology and reporting of the process;
9 December 2013
Mr Gilmore spoke with Mr Watts who broadly corroborated what Mr
Middlebrook reported.
Mr Gilmore asked for an Event History Report showing details from the
secure perimeter gate. The report corroborated that both Ms Green and Ms
Crilly exited the gate at 05:11 am on 5 December and returned at 05:17 am5
(and the Applicants do not dispute they exited and returned at these times);
Mr Gilmore notified Mr Matthew Pain, the Site Manager and Ms Jennifer
Tiffin, Human Resources Manager - Manufacturing;
11 December 2013
First Green Meeting - Mr Gilmore established a meeting with Ms Green for
Wednesday 11 December (the next date on which she was due to work) by
giving her a written “Notice to Attend a Meeting”. The notice was given to
Ms Green about 1 hour 20 minutes prior to the meeting and identified that
Heinz were investigating a concern she had provided misleading information
on two occasions on the shift commencing 4 December 2013.
The meeting took place on 11 December, however was adjourned by
agreement to Thursday 12 December.
At the end of the meeting on 11 December, Mr Gilmore suspended Ms Green
on full pay until the meeting on the following day.
12 December 2013
Second Green Meeting - Mr Gilmore held a further meeting with Ms Green
on Thursday 12 December who attended with AMWU representatives. In the
meeting, he put various allegations to Ms Green, who provided responses to
the questions and a statement for consideration by Heinz. At the end of the
meeting, Mr Gilmore told Ms Green he would contact her again in the
following week to arrange another meeting.
4 Ibid, paras 11 - 13
5 Ibid, para 39
[2014] FWC 3402
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13 December 2013
Mr Gilmore contacted Ms Crilly by phone to arrange a meeting and told her
what it was about. At the time of his call, Ms Crilly was on annual leave. He
advised her she was suspended on pay, and they agreed to meet on Monday
16 December.
16 December 2013
First Crilly Meeting - Mr Gilmore met with Ms Crilly and her support
person; however Ms Crilly said she was not ready to meet and the meeting
was postponed by agreement to Tuesday 17 December. In the meeting on 16
December, Mr Gilmore gave Ms Crilly a written “Notice to Attend a
Meeting” which identified that Heinz were investigating a concern she had
provided misleading information on two occasions on the shift commencing
4 December 2013.
Because of a diary conflict for the AMWU organiser, Mr Jason Hefford, the
agreed meeting date was subsequently moved, by agreement, to Wednesday
18 December.
18 December 2013
Second Crilly Meeting - Mr Gilmore met with Ms Crilly who attended with
AMWU representatives. As with the Second Green Meeting, Mr Gilmore put
to Ms Crilly various allegations, who provided responses to the questions and
a statement for consideration by Heinz. At the end of the meeting, Mr
Gilmore advised Ms Crilly he would reconvene the meeting with her on the
following day, 19 December.
Third Green Meeting - Mr Gilmore met again with Ms Green and her
representatives and asked further questions of her, which she answered. At
the end of the meeting, Mr Gilmore advised Ms Green he would reconvene
the meeting with her on the following day, 19 December.
19 December 2013
Third Crilly Meeting - First Part - Mr Gilmore me with Ms Crilly at about
2:30 pm. Mr Gilmore’s notes of the meeting record that he warned Ms Crilly
of the consequences of dishonest answers to his questions and took Ms Green
through the key allegations. His notes record these as;
“The areas where we are of view that you have been dishonest are as
follows:
• Your interaction with your team leader, Brian Watts, prior to leaving
site on the morning of 05 December 2013. (Brian Watts has no reason
to make out a false case against you. Should he do so he would be
placing his own job in jeopardy. Brian’s version of what you told him is
[2014] FWC 3402
6
also consistent with what you were observed doing by 2 independent
witnesses).
• Your interaction with your team leader, Brian Watts, following your
break on the morning of 05 December 2013, and more specifically,
your denial that you and DG asked him whether you were in trouble.
(This was corroborated by an independent witness in conversation with
Brian Watts immediately after his conversation with you).
• Your denial that you visited the smokers hut or were smoking, or sat
down in the smokers hut on the morning of 05 December 2013 (this
was witnessed by 2 independent witnesses)”6
Having taken Ms Crilly through these allegations Mr Gilmore gave her an
opportunity to provide further information about the events on the morning of
5 December, which she declined. The meeting was adjourned until about 4.30
PM
Fourth Green Meeting - First Part - Mr Gilmore reconvened the meeting
with Ms Green at about 3:30 PM. Mr Gilmore’s notes of the meeting record
that he warned Ms Green of the consequences of dishonest answers to his
questions and took Ms Green through the key allegations. His notes record
these as;
“The areas where we are of view that you have been dishonest are as
follows:
• Your interaction with your team leader, Brian Watts, prior to leaving
site on the morning of 05 December 2013. (Brian Watts has no reason
to make out a false case against you. Should he do so he would be
placing his own job in jeopardy. Brian’s version of what you told him is
also consistent with what you were observed doing by 2 independent
witnesses).
• Your interaction with your team leader, Brian Watts, following your
break on the morning of 05 December 2013, and more specifically,
your denial that you and DG (sic) asked him whether you were in
trouble. (This was corroborated by an independent witness in
conversation with Brian Watts immediately after his conversation with
you).
• Your denial that you visited the smokers hut or were smoking, or sat
down in the smokers hut on the morning of 05 December 2013 (this
was witnessed by 2 independent witnesses)”7
Having taken Ms Green through these allegations Mr Gilmore gave her an
opportunity to provide further information about the events on the morning of
5 December, which she declined. The meeting was adjourned until about 4.30
PM.
Fourth Green Meeting - Second Part - In this part of the meeting, which took
place at about 4:00 pm, Mr Pain, the Site Manager, spoke to Ms Green and
6 Exhibit R2, Attachment LG BB
7 Ibid, Attachment LG CC
[2014] FWC 3402
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informed her that she was dismissed for misconduct. Mr Gilmore’s notes of
what was said by Mr Pain to Ms Green include;
“We have determined that your behaviour warrants misconduct and a
breach of our code of conduct and this misconduct was constituted by :
1. Providing misleading information to the team leader regarding the
number of breaks you had taken on the shift that commenced on 04/12
AND
2. That this was compounded by your dishonesty during the
investigation.
This has destroyed the relationship of trust and confidence between
Heinz and yourself and as such we will be summarily terminating your
employment today.”8
Fourth Crilly Meeting - Second Part - In this part of the meeting, which took
place at about 4.30 pm, Mr Pain, the Site Manager, spoke to Ms Crilly and
informed her that she was dismissed for misconduct. Mr Gilmore’s notes of
what was said by Mr Pain to Ms Crilly indicate what he said was in the same
terms as to Ms Green. 9
[22] The hearing of Ms Green’s and Ms Crilly’s application for an unfair dismissal remedy
received witness statements and evidence from eight people;
Ms Sharon Green and Ms Debbie Crilly, the Applicants;
Mr Jason Hefford, an organiser with the AMWU;
Mr Brian Watts, Relief Team Leader with Heinz Echuca;
Mr Les Middlebrook, Cook/Kitchen Operator with Heinz Echuca;
Mr Gary Howarth, Cook/Kitchen Operator with Heinz Echuca;
Mr Lester Gilmore, Human Resources/Continuous Improvement and Operational
Risk Manager, at the Heinz Echuca site;
Ms Jennifer Tiffin, Human Resources Manager - Manufacturing for Heinz, with
national responsibility and based in Brisbane.
[23] In addition to this oral and written evidence, I undertook an inspection of relevant
parts of the Heinz plant and the front part of its site on 9 April 2014. The inspection was
shortly after 7 pm, when it was completely dark, and apparently similar lighting conditions to
the period around 5 am on 5 December 2013.
8 Ibid, Attachment LG DD
9 Ibid, Attachment LG EE
[2014] FWC 3402
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[24] The Fair Work Commission approaches applications for an unfair dismissal remedy
matters involving serious misconduct with the view that the principle established in
Briginshaw v Briginshaw10 may be relevant:
“The standard of proof remains the balance of probabilities but ‘the nature of the issue
necessarily affects the process by which reasonable satisfaction is attained’11 and such
satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect
inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a
wavering finger to an affirmative conclusion.’”12
[25] The Full Bench in Budd v Dampier Salt Ltd13 noted that Briginshaw decided two
things;
“The first is that where allegations are made in civil proceedings which, if proven,
might found criminal liability, the standard of proof remains the civil standard. It
follows that it is necessary that the court only be satisfied on the balance of
probabilities. The second thing is that in such a case a proper degree of satisfaction is
required having regard to the seriousness of the allegations. In the words of Dixon J.,
as he was: ‘The nature of the issue necessarily affects the process by which reasonable
satisfaction is obtained.’”14
[26] After making these observations, the Full Bench noted that the High Court matter of
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd15, decided well after Briginshaw, pointed
out the need for care in its application. Relevantly, the High Court held;
“The ordinary standard of proof required of a party who bears the onus in civil litigation
in this country is proof on the balance of probabilities. That remains so even where the
matter to be proved involves criminal conduct or fraud. On the other hand, the strength
of the evidence necessary to establish a fact or facts on the balance of probabilities
may vary according to the nature of what it is sought to prove. Thus, authoritative
statements have often been made to the effect that clear or cogent or strict proof is
necessary “where so serious a matter as fraud is to be found”. Statements to that effect
should not, however, be understood as merely reflecting a conventional perception that
members of our society do not ordinarily engage in fraudulent or criminal conduct and
a judicial approach that a court should not lightly make a finding that, on the balance
of probabilities, a party to civil litigation has been guilty of such conduct.”16
(references omitted)
[27] Further, and after consideration of the decision in Briginshaw, the High Court in Neat
Holdings Pty Ltd v Karajan Holdings Pty Ltd commented about the standards of proof;
10 (1938) 60 CLR 336
11 Briginshaw v Briginshaw (1938) 60 CLR 336.
12 Ibid, p 362�3.
13 166 IR 407; [2007] AIRCFB 797
14 Ibid, at [14]
15 (1992) 67 ALJR 170, per Mason CJ, Brennan, Deane and Gaudron JJ
16 Ibid, at [2]
[2014] FWC 3402
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“When an issue falls for determination on the balance of probabilities and the
determination depends on a choice between competing and mutually inconsistent
allegations of fraudulent conduct, generalisations about the need for clear and cogent
proof are likely to be at best unhelpful and at worst misleading. If such generalisations
were to affect the proof required of the party bearing the onus of proving the issue, the
issue would be determined not on the balance of probabilities but by an unbalanced
standard. The most that can validly be said in such a case is that the trial judge should
be conscious of the gravity of the allegations made on both sides when reaching his or
her conclusion. Ultimately, however, it remains incumbent upon the trial judge to
determine the issue by reference to the balance of probabilities.”17
[28] While this matter does not involve any allegations of criminal liability, it does involve
allegations of serious misconduct and principally whether each Applicant took a break to
which they were not entitled, and then lied to their employer in the subsequent investigation.
It is appropriate therefore that the serious allegations made are subject to careful scrutiny; that
is, “a proper degree of satisfaction is required having regard to the seriousness of the
allegations”.18
[29] The applications before me involve two relatively long-serving, middle-aged
employees, both of whom live and work in a regional area and are reliant upon their
employment for income. Both were dismissed because their version of events is considered by
their employer to be untruthful because Heinz believes what others have to say is the truth.
Neither Applicant recanted their version during the investigation phase, or since, and so Heinz
believes each was untruthful in the course of the investigation as well.
[30] The evidence of what happened outside of the secure perimeter gate on 5 December is
from the Applicants on the one hand, and that of Mr Middlebrook and Mr Howarth on the
other. There is no relevant documentary or surveillance evidence other than the entry and exit
times for the gate.
[31] An event that is said to have happened after the report of misconduct to Heinz that
requires consideration is what was said by Ms Green to Mr Watts around a drinking fountain
after a first investigation interview.
Summary of the Applicants’ case
[32] Overall, Ms Green and Ms Crillys’ explanation for their absence from the plant is a
problem associated with Ms Crilly’s medical condition. The evidence they presented is
extensive however can be summarised in the following ways;
Ms Crilly’s medical condition sometimes requires unexpected access to certain
supplies, and it is Ms Crilly’s evidence that this was the case on 5 December. She
thought she had enough supplies in her locker to get through the shift, but by 5 am
this proved incorrect.
Ms Crilly spoke about this with Ms Green, who is a first aid officer and has a box of
first aid supplies and equipment in her car boot, parked that night in the Heinz car
17 Ibid, at [3]
18 Budd v Dampier Salt Ltd 166 IR 407; [2007] AIRCFB 797, at [14]
[2014] FWC 3402
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park through the secure perimeter gate. Ms Green said to Ms Crilly that she might
have supplies in her first aid kit, which led to them both leaving the plant.
The Applicants agree that Mr Watts spoke to them as they were leaving the plant.
Their recollection of this interaction is that they were in a corridor and Mr Watts was
coming from the other direction19 and;
“He asked us ‘are you going for another smoko?’ I can’t recall whether it was
one of us or both of us that said it, but the reply was ‘no’.”20
When they passed the canteen, Ms Crilly says that she said to Ms Green “let’s see if
any of the ladies are in here” in order to see if they could assist with the supplies
required. Ms Crilly recollects that she stepped through the doorway of the canteen
and looked around and that Mr Middlebrook was the only person she saw in the
canteen and that he saw her.21
When the Applicants were in the car park it took some time to find the supplies from
Ms Green’s boot and that Ms Green also took the opportunity to locate some anti-
bullying documentation Ms Crilly wanted (and which Ms Green had in her capacity
as a union delegate).
When they returned to the plant and after briefly going separate ways, they went to
make a notation in the overtime book outside Mr Watts office. Mr Watts asked them
“did you have 5 smokos?” to which question both answered “no”.22
Ms Green agrees that she had a conversation with Mr Watts shortly after the first
meeting with Mr Gilmore on 11 December. She agrees making a reference to Mr
Watts about having been suspended on pay for having taken five smokos and
accusing Mr Watts of having been the instigator of the complaint. However she
denies saying that the reason for the break was only for an extra smoko or to have a
cigarette.23
[33] The Applicants’ evidence given separately with Ms Green giving evidence first in the
absence of Ms Crilly, is broadly consistent with each other and their written statements.
[34] The Applicants each accuse Mr Watts, Mr Middlebrook and Mr Howarth of
misrepresenting or being untruthful about what occurred. Their case in this regard includes
that;
Mr Watts is wrong in his recollection of what he said to them immediately before
leaving the plant and where he saw them. They say that he did not pursue them down
a corridor, but rather that he was passing the other way.
19 Transcript, PN 610; 1696
20 Exhibit A3, para 35; see also Transcript, PN 617 - 620; 1696 - 1702
21 Exhibit A3, para 37 – 38
22 Ibid, para 44 – 45; Transcript, PN 801- 804
23 Exhibit A1, para 64
[2014] FWC 3402
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Mr Howarth was not in the canteen at the time that he says and so could not have
seen them leaving the plant (with the consequential implication that if he was not in
the canteen at that time he would then not have seen them in the smoker’s hut, as he
claims to have done from the planning office near the canteen a few minutes after
having been in the canteen).
Each is adamant that they were not sitting in the smoker’s hut when they went to the
car park, and each is adamant they did not have a cigarette whilst in the car park.
While they agree that when they returned to the plant they went to Mr Watts’ office,
they say this was the purpose of making a notation in the overtime book. Each
Applicant agrees that Mr Watts asked them whether they had had five smokos and
that they denied they had.24
Summary of Heinz’s case against the Applicants
[35] Heinz’s case against the Applicants is extensive, with many elements. The key
elements, that would likely be seen as contributing to a view that the company had a valid
reason for dismissal, include the following;
A prior warning from Mr Middlebrook on the night of 4 and 5 December, specific to
each of the Applicants, caused Mr Watts to pursue the Applicants down a corridor as
they were leaving the plant and question them about where they were going, putting
to them “[y]ou have already had 4 breaks” which was denied by Ms Green who said
“[n]o, we haven’t, you can’t count”25;
Each of the Applicants were seen leaving the plant by Mr Middlebrook and Mr
Howarth;
Each of the Applicants were seen sitting at the table in the smokers’ hut by Mr
Middlebrook26 and Mr Howarth27;
Perhaps realising they had been seen, when the Applicants returned to the plant, they
went to see Mr Watts on the pretext of making an alteration to an overtime book.
When they saw Mr Watts, Ms Green asked him whether they were in trouble, which
led to this interaction;
“They came back into the team leader’s office and then who says what first? Do
you say something to them or they say something to you or what? -I can’t
recall whether I said anything first. I can only recall what was said.
What do you say was said next? -I was asked by Debbie, ‘Are we in trouble?’
That’s Ms Green.
She asked you that question? That’s your evidence? -That’s my evidence.
24 Ibid, paras 51 – 53
25 Exhibit R3, paras 11 - 12
26 Exhibit R4, paras 31 – 36
27 Exhibit R5, paras 36 – 40
[2014] FWC 3402
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Yes. What did you say? -I said, ‘How many smokos did you?’ to that effect.
Yes? -And the reply was ‘four’.
Yes? -And I said, ‘Well, you’re not in trouble then.’”28
In the course of the investigation conducted by Heinz, when Mr Gilmore spoke with
Ms Green on 11 December she asked “Is it not OK to go into the car park to get
paperwork from my car?”29
On 11 December 2013 after the meeting Ms Green approached Mr Watts and said to
him “Thanks very much, you’ve got me suspended on pay for reporting me for
having 5 smoko breaks the other night” and moments later “I only had 10 minutes
and a quick smoke”.30
Also in the course of the investigation these explicit allegations were put to each
applicant and denied by them. These denials amount to misleading Heinz about the
truth, which is misconduct in and of itself.
Review of the evidence
[36] Determination of these applications requires a reconciliation of competing evidence.
That task requires assessment of the credit of each witness, and the weight to be accorded to
their evidence. Having listened to all of the evidence presented, as well as having read all
prepared witness statements, I make the following findings of credit about each of the
witnesses.
[37] I accept without reservation the evidence of Mr Hefford, Ms Tiffin and Mr Gilmore.
Each is a witness of truth who did not seek to embellish or avoid the evidence they had to
give.
[38] Mr Hefford’s evidence was in his capacity as an AMWU organiser, who represented
Ms Green in meetings on 12, 18 and 19 December and Ms Crilly in meetings on 18 and 29
December.
[39] Ms Tiffin’s evidence was that she participated by telephone in each of the
investigation meetings with the Applicants and that, on 19 December, she provided a
recommendation to Heinz senior managers for the dismissal of each of the Applicants, which
was approved. Ms Tiffin did not personally interview either of Mr Watts, Mr Middlebrook or
Mr Howarth, however she formed the view their evidence was truthful and that while Mr
Watts “had no motive to lie”, on the other hand, since they were on final warnings, the
Applicants “had every motive to lie”31.
28 Transcript, PN 2680 -2685; see also Exhibit R3, paras 20 – 21
29 Exhibit R2, para 49
30 Exhibit R3, paras 29 – 32
31 Exhibit R1, para 55 - 56
[2014] FWC 3402
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[40] Mr Gilmore’s evidence comprehensively reviews his interaction with each of the
Applicants and Mr Watts, Mr Middlebrook and Mr Howarth and each of the meetings with
the Applicants from the time he received the report about their conduct from Mr Middlebrook.
Mr Gilmore’s evidence is that he was not involved in the decision to dismiss either
Applicant.32
[41] While accepting the evidence of Mr Hefford, Ms Tiffin and Mr Gilmore, I note the
evidence of each is of limited value to the resolution of the contest and conflicts in this matter.
This is because none were physically present during the shift in question. Of these three
witnesses;
Mr Gilmore’s evidence is the most cogent and relevant since he was present during
the investigation phases.
Ms Tiffin was not physically in Echuca for the meetings associated with the
investigation and participated by phone (of which I am not critical) and was not
involved in as many of the investigation stages as Mr Gilmore.
Mr Hefford was physically present for only some of the meetings in the investigation
phase and so the benefit of his evidence was quite limited.
[42] Ms Green and Ms Crilly gave evidence that they both left the plant through the secure
perimeter gate, walked a few metres to Ms Green’s car, opened the boot, and rummaged
through Ms Green’s first aid box. Their evidence is that it took a short while to locate the
relevant supply, however the women were successful in this task. It was dark; the box is a
single container; the supplies are small and not used very often, meaning they would fall from
the top of the box to the bottom. While they were searching in the boot, Ms Green took
advantage of the circumstances to locate some printed brochures and material that were also
in her car boot. The Applicant’s evidence is that the material was on the subject of workplace
bullying and that it had been sought some time earlier by Ms Crilly.
[43] Each Applicant denies strenuously that either smoked a cigarette while in the car park
or that they were in the smokers’ hut. Each acknowledges the duration of their absence
recorded by the perimeter security gate as accurate. That system shows each was absent for
about 6 minutes between 5:11 AM and 5:17 AM.
[44] While I accept Ms Green’s evidence overall and prefer it to that of either of Mr Watts,
Mr Middlebrook or Mr Howarth, Ms Green was not always accommodating in her evidence
of contrary views and sometimes she appeared to have difficulty remembering events when
views contrary to her own were put to her. Overall, her evidence, as well as her answers in the
investigation meetings show her as not especially forthcoming, which cannot all be explained
by the shock of the circumstances or a poor understanding of the implications of the issues.
For example, she had no explanation of significance about why she did not tell Mr Watts
where she was going with Ms Crilly; instead, she said that “I wouldn’t tell him anything
personal”.33 She also did not adequately explain why she had not said to Mr Gilmore in the
32 Exhibit R2, para 130
33 Transcript, PN 639
[2014] FWC 3402
14
first investigation meeting that she left the premises to help out Ms Crilly because of her
medical condition; instead she says “it wasn’t up to me to discuss that”.34
[45] Having viewed Ms Green’s evidence and that of the other witnesses, and despite the
defects in her evidence to which I have referred, I view Ms Green as an overall credible
witness.
[46] I draw the conclusion that I saw her display behaviours that have likely been
accumulated over time and which are associated with poor relationships between Ms Green
and some of the other staff involved in giving evidence. For the reasons set out below about
the credit of some of the Heinz witnesses, and despite the defects in Ms Green’s evidence I
prefer her evidence to that of each of Mr Watts, Mr Middlebrook and Mr Howarth where
there is a conflict between her evidence and theirs.
[47] I also accept Ms Crilly’s evidence and prefer it that of each of Mr Watts, Mr
Middlebrook and Mr Howarth. Even so, Ms Crilly did not adequately explain why she and
Ms Green did not take alternative action to leaving the premises. At times in giving evidence,
as in the investigation meetings, Ms Crilly was not as forthcoming as she could have been.
Her evidence about what procedures she had associated with her medical condition and when
they were in proximity to her dismissal was unclear and overall not persuasive. Since it is not
necessary for me to find that the problems being experienced by Ms Crilly on 5 December
were directly or causally related to proximate medical procedures, it follows that it is
unnecessary for me to resolve this lack of clarity. Ms Crilly’s overall evidence was
satisfactory and it is accepted. There is no alternative evidence available to what she put
forward about her medical condition and so I accept that on 5 December she was experiencing
the symptoms she described in her evidence. I put her lack of clarity about the medical
procedures down to either, all, or a combination of embarrassment in publicly discussing her
condition; being relatively uneducated; and having similarly poor relationships as with Ms
Green with some of the other Heinz staff involved in giving evidence.
[48] For similar reasons, the lack of information volunteered to Mr Watts and those
involved in the investigation, can be explained by possible embarrassment or poor
relationships.
[49] Having viewed Ms Crilly’s evidence and that of the other witnesses, and despite the
defects in her evidence to which I have referred, I view Ms Crilly as an overall credible
witness. As with Ms Green, I draw the conclusion that I saw her display behaviours that have
likely been accumulated over time and which are associated with poor relationships between
Ms Crilly and some of the other staff involved in giving evidence. For the reasons set out
below about the credit of some of the Heinz witnesses, and despite the defects in Ms Crilly’s
evidence, I prefer her evidence to that of each of Mr Watts, Mr Middlebrook and Mr Howarth
where there is a conflict between her evidence and theirs.
[50] Mr Watts’ evidence was not impressive for several reasons. His recollection of detail
was not strong. Although his recollection of what was said to him by the Applicants, both
before and after they had returned from the car park correlated closely with the words in his
statement, this strong recollection stood in distinction to his evidence on other subjects where
34 Transcript, PN 640 - 641
[2014] FWC 3402
15
he could not remember what might have happened or been said; wanted an explanation; or
professed no knowledge of the situation that was the subject of the enquiry.
[51] His evidence in three key respects is not plausible - what was said by him to the
women on their way out of the plant; what was said by him to them when they returned; and
what was said by him about a conversation with Ms Green after the first investigation
meeting, when she was suspended on pay. His evidence also contains no recollection of a key
part of Mr Middlebrook’s evidence, who relayed information to Mr Gilmore given to him by
Mr Watts.
[52] Mr Watts evidence is that Mr Middlebrook told him to keep an eye on the Applicants
before they left. When he saw the Applicants go past his office after the warning, he got up
and followed them out35 in a “fast paced walk” as he was determined to catch up to them.36
He caught up with them on the other side of a set of hygiene barrier doors with glass
windows. The Applicants had their back to him and he started talking to them;
“So how did you say it? -I said, “What are you guys doing?”
That’s what you said and then they responded to you? -“We’re going smoko.”
Now, how did they do that? -In unison, concert.”37
...
“Were you facing ahead or on your side? -I would have been facing directly south
down the corridor.
Directly south down the corridor? So they said, “Going for a smoko”? -They said,
“We’re going for smoko.”
They said, “We’re going for smoko.” Then what did you say? -I said, “You’ve
already had four.”
You said, “You’ve already had four”? -Yes.
Then what happened after that? -The reply I got was, “No, we haven’t.”
Then what did you do? -I said, “Yes, you have.”
So you challenged then on it? -Yes.
And then what did they say back? -It was, “No, we haven’t. You can’t count.”
What did you say in relation to that? -I don’t believe I said anything after that.”38
35 Transcript, PN 2601
36 Transcript, PN 2613 - 2614
37 Transcript, PN 2633 - 2635
38 Transcript, PN 2640 - 2648
[2014] FWC 3402
16
...
“You said earlier that Les Middlebrook had already told you they’d had
four smokos? -Yes.
So someone was obviously spinning you a lie at this point. It was either Les was
telling you a lie or the ladies were telling you a lie. Did that enter your
head? -Whether someone was lying to me?
Yes? -Yes, I suppose it did.
So you look like you might have been duped by one side or the other and you didn’t
take it up any further, you just walked off? -There’s circumstances after the fact that
will (indistinct) to that.
So, what, the ladies then walked off? -Yes.
Where did you see them go? -Around the corner in the corridor.
... (omitted)
So you saw them walk around the corner. Did you poke your head around to see where
they kept going to? -No.
You just decided to turn back? -Turn back and return to the team leader’s office.
When you got back to the team leader’s office, what did you do then? -Continued my
team leader duties.”39
[53] The way Mr Watts describes this exchange, it appears brusque, or even rude and
hostile on the part of the Applicants, with them telling him he can’t count and continuing to
walk around a corner. The context is he pursued after the women in a “fast paced walk”
following a pointed warning from Mr Middlebrook that he should “[k]eep an eye on them.
They’ve already had their four breaks.”40 That he, or any supervisor, would leave the
exchange after the Applicants had responded rudely seems implausible.
[54] Instead, Mr Watts went back to the team leader’s office and did not make a note of
what had happened41 or take any other action relating to the exchange.
[55] The implausibility of this exchange is reinforced with Mr Watts’ evidence about the
Applicants’ conversation with him upon return from the car park. The women came to his
team leader’s office about 10 minutes after the first exchange;
“They came back into the team leader’s office and then who says what first? Do you say
something to them or they say something to you or what? - I can’t recall whether I said
anything first. I can only recall what was said.
39 Transcript, PN 2650 - 2661
40 Transcript, PN 2576
41 Transcript, PN 2664
[2014] FWC 3402
17
What do you say was said next? - I was asked by Debbie, “Are we in trouble?” That’s
Ms Green.
She asked you that question? That’s your evidence? - That’s my evidence.
Yes. What did you say? - I said, “How many smokos did you?” to that effect.
Yes? - And the reply was “four”.
Yes? - And I said, “Well, you’re not in trouble then.”
Were they in the room, according to your evidence, much longer after that? - No.”42
[56] Again, this is an implausible exchange if the earlier evidence is to be accepted that
there was a specific warning about the Applicants from Mr Middlebrook and that Mr Watts
pursued the women in a fast paced walk, which was terminated by them in a brusque if not
rude manner. Within that context, at the point the women returned to the team leaders’ office,
Mr Watts could likely be expected to ask some detailed questions; instead his evidence is that
he accepted a short denial without follow-up inquiry. Mr Watts’ evidence is also unpersuasive
about why he did not report the women after they returned and why he waited until Mr
Gilmore approached him the following Monday after receiving a complaint from Mr
Middlebrook.
[57] After Mr Middlebrook made his report to Mr Gilmore, Ms Green was the first to be
interviewed about the matter, on 11 December. After she had her first interview, she needed
to see Mr Watts to have him sign an overtime form. She approached him near a drinking
fountain and on Mr Watts evidence, there was the following exchange;
“And then she had a brief few things to say to you. Can you just recall what you
remember her saying? -To the best of my ability, she said - she handed me the two
overtime sheets and she said to me, “Thanks very much. You’ve just got me suspended
on pay for reporting me for having five breaks.” And my reply was, “I didn’t report
you,” and then she said, “We only - I only went out for 10 minutes and a quick
smoke.” I said, “Well,. I think this conversation is over,” and she agreed and left the
factory.”43
[58] While Ms Green agrees there was an exchange and she made reference to Mr Watts
being the cause of her suspension, she denies that she mentioned her absence from the plant
was only for “a quick smoke”.
[59] On either version of this event, Mr Watts was accused by Ms Green of being the
reason for her suspension and the subsequent investigation commenced by Heinz. Mr Watts’
evidence about what Ms Green said after he denied being the person whose report instigated
the suspension and forthcoming investigation is to suggest that she would entrust to him a
confession of her misconduct, when he was the person she accused of reporting her to
management. In the absence of corroborative evidence, and in the context of other
42 Transcript, PN 2680 - 2686
43 Transcript, PN 2739
[2014] FWC 3402
18
implausibilities in Mr Watts’ evidence, this evidence itself is implausible. It is also
implausible within the context of how Ms Green viewed the relationship between the two. He
is a man to whom she would not tell anything personal44.
[60] A further problem with Mr Watts’ evidence is in relation to the conversation the
Applicants had with Mr Watts after returning to the plant and his evidence about
communicating this with Mr Middlebrook.
[61] While it is agreed there was such a conversation, the content is disputed. Mr Watts
claims Ms Green asked him whether they were in trouble, which led to the interaction referred
to previously. Mr Middlebrook had knowledge of Mr Watts version of the exchange, however
Mr Watts cannot recall Mr Middlebrook coming to see him after the Applicants returned to
the plant on the night of 5 December.45 When Mr Middlebrook reported the Applicants to Mr
Gilmore, the latter made a contemporaneous file note as follows about what Mr Middlebrook
said to him (reported in part);
“When they returned, went and saw BW and asked if they were in trouble. LM thinks
BW asked if they had 5 breaks and DG + SC said no.”46
[62] This is a very precise relay of information to Mr Gilmore, however Mr Watts cannot
recall having told Mr Middlebrook anything about the incident between the time the women
left the team leader’s office and when Mr Gilmore spoke with him later that day.
[63] Mr Watts’ evidence about what was said by him to Mr Middlebrook was the
following;
“... After these events happened, what was the next thing you heard about the door? So
after the ladies left the office and going through this chain of events, what was the next
interaction you had with anyone in relation to all of this? - Excuse me. I believe it was
the Monday I was called in to see Lester.
Just to be sure, did Les Middlebrook come and see you again that night? - I don’t
recall.
You don’t recall that? So then the following Monday, Lester calls you up? - Yes.”47
[64] Mr Gilmore’s file note of his interview with Mr Watts later the same day records that
Mr Watts told him;
“BW saw DG + SL walk past TL’s office + caught them in passageway + asked ‘What
are you doing - they said going to smoko - both said - BW say you have already had 4
- they said ‘no we haven’t you can’t count - thinks it was SC. They had a short break
‘about 10 mins’ When they returned they went into TL’s office + DG asked ‘are we in
trouble’
44 Transcript, PN 639; 649
45 Transcript, PN 2728
46 Exhibit R2, Attachment LG A
47 Transcript, PN 2727 - 2729
[2014] FWC 3402
19
BW - how many breaks have you had - they DG said 4 - BW said ‘well you’re not in
trouble then”48
[65] The evidence about Ms Green asking upon return whether the Applicants were in
trouble is an important part of Heinz’s case, since it is assists in building the impression of
employees who knew they had done wrong and needing to understand from Mr Watts about
whether they were at risk and to possibly overcome the problem if it was confirmed as one.
Plainly Mr Middlebrook knew of the exchange before he approached Mr Gilmore on 9
December, and such information would most likely have come directly from Mr Watts.
[66] At best, the failure of Mr Watts to volunteer in cross-examination that he had told Mr
Middlebrook about the exchange gives a view of a faulty memory on the part of Mr Watts.
[67] This problem in Mr Watts’ evidence, along with the other problems to which I have
referred, leads me to view Mr Watts’ evidence as lacking credibility.
[68] Mr Middlebrook’s oral evidence is significantly at variance to his witness statement in
the key respect of what he said to Mr Watts about the Applicants before they left the plant.
His complaint to Mr Gilmore said he had told Mr Watts to “be careful because Sharon and
Debbie might try to sneak extra breaks in”49 is consistent with what Mr Gilmore says Mr
Middlebrook told him on 9 December50 (followed by the claim he had seen them sitting in the
smokers’ hut51). Yet in cross-examination, he moved from having giving Mr Watts a very
precise warning about the Applicants to the much more general comment about having
warned Mr Watts that the Applicants and “a few other names”52 may try to take another
smoko break. In contrast to the very precise impression of a warning given by his witness
statement, he had difficulty in cross-examination of recalling the location of the discussion
with Mr Watts; what was said; what Mr Watts said in reply; or whether it was part of a much
longer conversation.53
[69] The question of a prior warning to Mr Watts from Mr Middlebrook is a crucial part of
the Heinz case. With prior warning of a sufficiently pointed level, Mr Watts has cause to
pursue the Applicants after they passed his office in a “fast paced walk” and ask the question
he said he did. Without prior warning of a sufficiently pointed level, there is no such cause
and what is said by Mr Watts to have occurred probably did not happen. The variation in Mr
Middlebrook’s evidence between his witness statement and his oral evidence is sufficient to
view his overall evidence as lacking credibility, which I do.
[70] Mr Middlebrook’s evidence is significant to Heinz’s case in three other respects - who
saw the Applicants from the canteen on the way out of the plant; what they did in the car park;
and what knowledge he had of the Applicants’ conversation with Mr Watts upon return.
48 Exhibit R2, Attachment LG B
49 Exhibit R4, para 18
50 Exhibit R2, para 8
51 Ibid, para 10
52 Transcript, PN 2840
53 Transcript, PN 2841 - 2853
[2014] FWC 3402
20
[71] Mr Middlebrook’s evidence is that he was in the canteen from about 5.00 am and that
he was joined there by Mr Howarth “a bit later”, perhaps about 5 minutes later.54 As he was
sitting with Mr Howarth, he heard the women passed by. He heard Ms Green speak and a few
minutes later he and Mr Howarth stood to leave as Mr Howarth moved outside toward the
planning office. As they walked to the planning office, he showed Mr Howarth photos on his
phone.55 When he passed some bins, he could see the Applicants sitting in the smokers’ hut
and he thought they were having a cigarette.56 He observed them for about 20 seconds.
[72] Mr Howarth’s evidence is that he went to the canteen (or smoko room) at around 4.40
am to 4.45 am and that Mr Middlebrook was already there.57 He too heard Ms Green speak as
the women went by. Mr Howarth’s evidence is that he was in the canteen for a total of 15 to
20 minutes58 and that he remained there for about 10 minutes after he heard Ms Green pass
by.59 When he left the canteen, it was to go to the planning office (referred to in his witness
statement as the production office) and Mr Middlebrook accompanied him. As he walked to
the planning office, it was still dark, however he could see the Applicants sitting in the
smokers’ hut. This observation was a matter of seconds,60 after which he was in the planning
office for a maximum of two minutes.61 While he was in the room, the light was off and he
was looking for paperwork required for production activities. It was not necessary to have the
light on, since “there’s enough light to see” with the room lit by external lighting.62
[73] On the way back from the planning office to the plant Mr Middlebrook showed Mr
Howarth photos of a boating trip on a phone.63
[74] I have earlier referred to what was said by Mr Watts to Mr Middlebrook about the
conversation the Applicants had with Mr Watts upon return from the car park. Mr
Middlebrook’s very precise relay of the conversation (at which he was not present) to Mr
Gilmore is repeated in his witness statement;
“Brian said that they had asked him “Are we in trouble?” and Brian told me that he had
said “If you didn’t have 5 breaks then you are not in trouble”.”64
[75] However, despite being given the opportunity to repeat the information in his cross-
examination, he failed to do so;
“What did you say to Brian Watts about Ms Crilly and Green and this incident or the
fifth break or the - - -?---I did say, “Did Sharon and Debbie have the extra break?” and
Brian said, “They said they didn’t.”
54 Transcript, PN 2898
55 Transcript, PN 2983 - 2985
56 Transcript, PN 2994 - 2998; Exhibit R4, para 36
57 Transcript, PN 3187 – 3190
58 Transcript, PN 3248 - 3249
59 Transcript, PN 3249 - 3250
60 Transcript, PN 3292
61 Transcript, PN 3300
62 Transcript, PN 3305 - 3320
63 Transcript, PN 3345
64 Exhibit R4, para 49
[2014] FWC 3402
21
So you left it at that?---No. I think there might have been further words. Yes, I don’t
know the exact words, but that was the gist of the conversation afterwards. Yes.
Did you tell him you saw them in the smokers’ hut?---I could have at that stage.
Yes.”65
[76] A comparison of the evidence of Mr Middlebrook and Mr Howarth shows significant
inconsistencies; firstly on the time that Mr Howarth arrived and left; and their mutual recall
about the sequencing of what happened after they moved from the canteen. These
inconsistencies, coupled with the inconsistency between Mr Middlebrook’s and Mr Watts’
evidence about the extent of the prior warning provided by Mr Middlebrook about the
Applicants’ possible actions before they left the plant, means it is not possible to accept the
evidence of either Mr Middlebrook or Mr Howarth on the key issues of the Applicants’
departure from the plant or what they did in the car park or the smokers’ hut, and to view their
evidence as lacking in credibility.
[77] I have already referred to an inability to accept Mr Middlebrook’s evidence in regard
to his pre-departure warning to Mr Watts. I am also unable to view Mr Middlebrook’s
evidence as credible in respect of what, if anything, was said by Mr Watts to him about the
Applicants’ conversation with him in the team leaders’ office after they returned from the car
park.
LEGISLATION
[78] The legislative provisions which are relevant to this matter are set out in s.387 of the
Act, which is as follows;
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
65 Transcript, PN 3118 - 3121
[2014] FWC 3402
22
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
CONSIDERATION
[79] The reasons for dismissal put forward by Heinz to each of the Applicants in their
dismissal letters is that the company was of the view that each provided it with false
information. This pertained to their interaction with their team leader prior to leaving the site
and upon return; their denial of having visited the smokers’ hut, or that they were smoking in
the smokers’ hut on 5 December. The company views these things as having been initial
misconduct which was then compounded by what Heinz saw as the dishonesty of the
Applicants during the investigation.66
[80] Heinz’s reasons for termination are founded firstly upon what it sees as the factual
circumstances of the events on 5 December, and secondly upon the failure of the Applicants
to agree with Heinz’s preferred version of events which was put forward to them in the course
of the investigation.
[81] While the standard of proof in this matter is the balance of probabilities, regard must
be had to the nature of the issue under consideration. In these matters the issues are whether
the Applicants lied to their supervisor in leaving the premises and upon return, and whether
they lied in the subsequent investigation. In order to find these things, it is appropriate to bear
in mind “a proper degree of satisfaction is required having regard to the seriousness of the
allegations”; per Budd v Dampier Salt Ltd67.
[82] This case falls to be determined on the competing versions of events as set out in the
evidence. That evidence shows inconsistencies and implausibilities in the versions of events
as given by Mr Watts, Mr Middlebrook and Mr Howarth, which in turn cause there to be, at
the least, serious questions about the integrity of other parts of their evidence. As a result, I
am unable to prefer their evidence to that of the Applicants.
[83] Because of this, I find the evidence given in these proceeding shows the following;
Ms Crilly needed the supplies for her medical condition referred to previously, and
Ms Green thought she had some in her car boot. They each saw leaving the plant to
search for them in Ms Green’s car as a solution to the problem.
It is likely that Mr Middlebrook did speak with Mr Watts prior to 5:00 am about the
possibility that various people may try to “sneak other breaks in” and it is likely that
he named the Applicants along with “a few other names”. There is no evidence that
66 Exhibit A1, Attachment DG 10; exhibit A3, Attachment SC 13
67 166 IR 407; [2007] AIRCFB 797, at [14]
[2014] FWC 3402
23
would support the view that Mr Middlebrook did not speak with Mr Watts about
these things, and so I do not make such a finding.
Objectively, Mr Middlebrook’s conversation with Mr Watts was not a pointed
warning of prior knowledge on Mr Middlebrook’s part, and it was not taken that way
by Mr Watts. At best, it was put forward by Mr Middlebrook and taken as such by
Mr Watts as a general warning along the lines of “watch out for this practice; certain
people will try you on”.
Mr Watts did not chase after the Applicants after they passed his office, instead, the
balance of probabilities suggests that he passed them going the other way. I find also
that he did not ask the Applicants the suspicion laden question “what are you guys
doing?”, followed by the challenge that “you have already had 4 breaks”. Rather, it
is consistent with the evidence elsewhere and his own conduct that he asked them
the less suspicious question “are you going for another smoko?” and did not
challenge them further when they replied they were not, and did not say anything
further. Mr Watts’ evidence of this interaction has been embellished by him.
Mr Middlebrook saw the Applicants leave the premises when he was in the canteen.
I do not accept Mr Middlebrook’s evidence that he saw the Applicants sitting in the
smokers’ hut. His statements to Mr Gilmore and in his witness statement evidence
about the nature of his prior warning to Mr Watts were embellished and he
subsequently retreated from them in cross-examination. As a result, it is likely on the
balance of probabilities that his evidence in regard to viewing the Applicants in the
smokers’ hut is embellished at the least. Since I have not accepted Mr Howarth’s
evidence that he was in the canteen at the time the Applicants were leaving the plant,
or that he was subsequently in the planning room, I also regard as unreliable Mr
Middlebrook’s evidence of being with Mr Howarth in either place.
I do not accept Mr Howarth’s evidence that he was in the canteen when the
Applicants were leaving the plant. The times recorded in his witness statement are
inconsistent with the times given by Mr Middlebrook about his presence in the
canteen and that of Mr Howarth. They are also inconsistent with the times he
referred to in his oral evidence which appear to have been adjusted to fit the other
aspects of his evidence. Since I do not accept this aspect of his evidence, I also do
not accept his evidence that he saw the Applicants in the smokers’ hut. He was most
likely not in the planning room at the time the Applicants were in the car park.
The balance of probabilities draws me to find that when the Applicants were in the
car park, they accessed Ms Green’s car boot for the supplies needed by Ms Crilly.
When they returned, the Applicants spoke with Mr Watts, however Ms Green did not
ask “are we in trouble”. Instead, it is consistent with the balance of probabilities and
Mr Watts’ evidence of his subsequent conduct that he asked “did you guys have five
smokos?’ to which the Applicants replied they had not.
While Mr Watts does not recall saying anything contemporaneously to Mr
Middlebrook about this alleged return conversation, he must have said something to
him before Mr Middlebrook reported the Applicants to Mr Gilmore.
[2014] FWC 3402
24
[84] As a result, and in consideration of the criterion set out in s.387(a) of the Act, I find
there was not a valid reason for Heinz to dismiss either Ms Green or Ms Crilly related to their
capacity or conduct (including its effect on the safety and welfare of other employees).
[85] In addition to the criteria of “valid reason”, s.387 requires the commission to take into
account a number of other criteria in order to be satisfied that a dismissal was harsh, unjust or
unreasonable. I am satisfied on the evidence that the further criteria set out in s.387 have been
either adequately met in favour of Heinz or are not relevant to my consideration. In particular,
I am satisfied that;
Heinz notified each Applicant of the reasons it held for dismissal both in the course
of its investigation and at the time of dismissal (s.387(b));
Heinz allowed each Applicant to respond to the allegations and have a support
person with them during each relevant part of the investigation (s.387(c) and (d));
the reasons put forward by Heinz did not relate to unsatisfactory performance by
either Applicant (s.387(e));
the size of Heinz’s enterprise did not impact on the procedures it followed in
effecting the Applicants’ dismissals and that the company had adequate access to
dedicated human resource specialists or expertise in deciding the procedures to be
followed in effecting the dismissal (s.387(f) and (g)); and
there are no other matters I consider relevant in my assessment under this section
(s.387(h)).
[86] For the reason that I have found Heinz did not have a valid reason for their dismissal, I
find that Ms Green and Ms Crilly were unfairly dismissed within the meaning of s.385, for the
reason their dismissals were harsh, unjust or unreasonable. I am also satisfied that it is
appropriate for a remedy to be ordered by the Commission in relation to their dismissals.
REMEDY
[87] The sections of the Act dealing with remedy once a finding of unfair dismissal has
been made are as follows;
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
[2014] FWC 3402
25
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for
remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer
at the time of the dismissal reinstate the person
by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of the
dismissal; and
(b) that position, or an equivalent position, is a position with an associated
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to maintain
the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection
(1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to cause the
employer to pay to the person an amount for the remuneration lost, or likely to have
been lost, by the person because of the dismissal.
[2014] FWC 3402
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(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.
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), the
FWC 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 the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC 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 the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
[2014] FWC 3402
27
(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.
[88] Pursuant to subsection 390(3) of the Act an order for the payment of compensation to
a person must not be made unless the Fair Work Commission “is satisfied that reinstatement
of a person is inappropriate” and also that the Commission “considers an order for payment
of compensation is appropriate in all the circumstances of the case.”
[89] The subject of whether reinstatement of a person is inappropriate has been considered
by the Full Bench in recent decisions; for example, see Colson v Barwon Health Appeal No.
268; B, C and D v Australian Post Corporation T/A Australia Post69.
[90] The Full Bench in Colson v Barwon Health Appeal No. 2 found that “[t]he
requirement to find that reinstatement is inappropriate before considering compensation in
s.390 of the Act gives effect to the emphasis on reinstatement in s.390(1)(c) of the Act”70, and
applied the earlier reasoning of the Full Bench in REX Airlines v Richards71;
“[31] The approach of the Deputy President is consistent with that of the Full Bench in
Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
‘[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a
remedy is appropriate, compensation must not be ordered unless the tribunal is
satisfied that reinstatement is inappropriate. Seen in the proper context the
Commissioner’s statement that reinstatement is the presumptive remedy is not
indicative of any error in the decision. The section provides that compensation
must not be ordered unless reinstatement has been found to be inappropriate.
There is no basis for concluding that the Commissioner interpreted the section
differently. Rex’s first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement
is appropriate.’”72 (references omitted)
68 [2014] FWCFB 1949
69 [2013] FWCFB 6191, at [117], per Lawler VP, Cribb C (under Judicial Review)
70 [2014] FWCFB 1949, at [29]
71 [2010] FWAFB 8753
72 Ibid, at 31
[2014] FWC 3402
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[91] The majority in B, C and D v Australia Post found the “language of s.390
demonstrates that the legislature intended reinstatement to be the primary remedy where FWC
was satisfied that the discretion to order a remedy was exercised”73. In B, C and D v Australia
Post the majority took into account, as a reason for remittal of the question of remedy, the
time elapsed since the original decision and the scope for changed circumstances that may
bear on the issue of the appropriateness of reinstatement.74 For the purposes of context to the
reference of time elapsed as a matter to be taken into account, in B, C and D v Australia Post,
the decision of the Commissioner in first instance was in November 2011 and the Appeal
decision was in August 2013.
[92] In this matter, Heinz argue that it has lost trust and confidence in the Applicants, in
submitting;
“In the event that the Fair Work Commission finds that the Applicants are entitled to a
remedy under the Act it is submitted that reinstatement into their former employment
is not appropriate.
In light of the Applicants’ response to the allegation of them providing misleading
information to their team leader, where they compounded their initial misconduct by
fabricating an excuse for their behaviour, the Respondent is entitled to consider that
the Applicants can no longer be trusted in the future. The relationship of trust and
confidence between the Respondent and the Applicants has been destroyed.”75
[93] While Ms Tiffin’s evidence elaborates on this submission76, as does Mr Gilmore’s77,
the submissions and evidence do not sufficiently or cogently go to the central issue of why the
relationship could not be constructively re-established in light of a finding that the
Applicants’ evidence was to be preferred. Neither Ms Tiffin or Mr Gilmore addressed the
issue of reinstatement in their oral evidence. Mr Gilmore’s witness statement on the subject of
reinstatement includes the following;
“Both Debbie and Sharon are seeking reinstatement. Given the circumstances of this
case, I regard reinstatement as being highly inappropriate, should the Commission find
that the dismissal of either Sharon or Debbie was harsh, unjust or unreasonable in any
way.
As the site HR Manager, it is extremely important that our team leaders have trust and
confidence in their team members, and that those team members do not wilfully
provide them with false or misleading information.
Both Debbie and Sharon knowingly provided false information to Brian Watts, and
then compounded their misconduct by not being truthful in the company investigation
of this matter.
73 [2013] FWCFB 6191, at [117]
74 Ibid, at [118]
75 Respondent’s Outline of Submissions, para 64 - 65
76 Exhibit R1, paras 89 - 97
77 Exhibit R2, paras 180 - 185
[2014] FWC 3402
29
As a management team, we have a requirement that team members be truthful in
company investigations into misconduct and do not deliberately mislead or provide
false information to us.
By Debbie and Sharon’s actions, they have completely destroyed our necessary trust
and confidence in them as employees. They have continued to advocate their
untruthful version of events in these proceedings, and, as such, have shown no remorse
for their actions.
In all the circumstances, the trust and confidence in them as employees is irretrievably
broken down and it would be extremely difficult to work with them, in the appropriate
spirit of mutual trust and confidence, were they to be reinstated.”78
[94] Ms Tiffin’s witness statement on the subject of reinstatement records not dissimilar
views79, and does not add appreciably to the arguments developed by Mr Gilmore. Ms
Tiffin’s witness statement adds a reflection about the need for Heinz to maintain the highest
ethical standards and adherence to procedures to ensure food safety and quality in the
manufacture of food for infants80, however that matter was not the subject of any evidence or
oral submissions.
[95] The question of trust and confidence was considered in detail by the Full Industrial
Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd81. The Court held that the loss
of trust and confidence is a relevant consideration in determining whether reinstatement is
impracticable, however the loss needs to be soundly and rationally based, and;
“At the same time, it must be recognised that, where an employer, or a senior officer of
an employer, accuses an employee of wrongdoing justifying the summary termination
of the employee’s employment, the accuser will often be reluctant to shift from the
view that such wrongdoing has occurred, irrespective of the Court’s finding on that
question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the
relationship of trust and confidence between employer and employee, and so made
reinstatement impracticable, an employee who was terminated after an accusation of
wrongdoing but later succeeded in an application under the Division would be denied
access to the primary remedy provided by the legislation. Compensation, which is
subject to a statutory limit, would be the only available remedy. Consequently, it is
important that the Court carefully scrutinise any claim by an employer that
reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits. There may be cases where any ripple on
the surface of the employment relationship will destroy its viability. For example the
life of the employer, or some other person or persons, might depend on the reliability
of the terminated employee, and the employer has a reasonable doubt about that
reliability. There may be a case where there is a question about the discretion of an
78 Ibid, paras 180 - 185
79 Exhibit R1, paras 89 - 97
80 Ibid, para 97
81 (1997) 72 IR 186
[2014] FWC 3402
30
employee who is required to handle highly confidential information. But those are
relatively uncommon situations. In most cases, the employment relationship is capable
of withstanding some friction and doubts. Trust and confidence are concepts of degree.
It is rare for any human being to have total trust in another. What is important in the
employment relationship is that there be sufficient trust to make the relationship viable
and productive. Whether that standard is reached in any particular case must depend
upon the circumstances of the particular case. And in assessing that question, it is
appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a
person the employer believed to have been guilty of wrongdoing. The requirement
may cause inconvenience to the employer. But if there is such a requirement, it will be
because the employee’s employment was earlier terminated without a valid reason or
without extending procedural fairness to the employee. The problems will be of the
employer’s own making. If the employer is of even average fair-mindedness, they are
likely to prove short-lived. Problems such as this do not necessarily indicate such a
loss of confidence as to make the restoration of the employment relationship
impracticable.”82
[96] In his decision in Colson v Barwon Health No. 283 (from which decision arose the
Colson v Barwon Health No. 2 Appeal matter referred to above), Deputy President
Gostencnik summarised certain propositions concerning the impact of the loss of trust and
confidence, with which I respectfully concur (noting that these propositions were not
disturbed on appeal);
“[25] From the foregoing, and putting to one side the obiter observations of the Full
Court in Perkins that the law imports into employment contracts an implied term of
mutual trust and confidence, the following propositions may be distilled concerning
the impact of a loss of trust and confidence on the question of whether reinstatement is
an appropriate remedy:
An assessment of whether there has been a loss of trust and confidence must be
decided on the circumstances of the particular case, including the nature of the
employment;
An allegation that there has been a loss of trust and confidence must be soundly and
rationally based and it is important to carefully scrutinise any claim by an employer
that reinstatement is inappropriate because of a loss of confidence in the employee;
The appropriateness of reinstatement does not depend on notions of a loss of trust
and confidence in the employee, although it is a relevant and even important
consideration;
Dismissal for misconduct, assuming the employer is acting honestly, will in most
cases imply a loss of trust and confidence in the employee. If the dismissal is
ultimately found to be ‘unfair’, the question becomes whether the relationship can be
restored if the employee is reinstated. In answering that question all of the
circumstances must be taken into account, not just the views of management;
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
82 Ibid, p 191
83 [2013] FWC 8734
[2014] FWC 3402
31
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed;
The fact that it may be difficult or embarrassing for an employer to be required to re-
employ an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate;
In most cases, employment relationships are capable of withstanding some friction
and doubt and in this context, trust and confidence are concepts of degree;
The question, so far as it relates to reinstatement is ultimately, whether there can be a
sufficient level of trust and confidence restored to make the relationship viable and
productive. In making this assessment, it is appropriate to consider the rationality of
any attitude taken by a party.
These propositions are accepted by both Dr Colson and Barwon Health”84
[97] Matters of trust and confidence have also been considered by the Full Bench in other
matters. In GlaxoSmithKline Australia Pty Ltd v Makin,85 the Full Bench considered
reinstatement was possible, notwithstanding that the Appellant deliberately overrode a safety
system and had acted highly inappropriately.86 In Linfox Australia Pty Ltd v Stutsel,87 the
Full Bench held that even though the Applicant had failed to provide truthful answers during
an investigation, and that the base conduct complained about by the employer was shown to
have happened, even though it did not rise to the level of serious misconduct, it was open to
the Commissioner in first instance to find that there had been no conduct on the Applicant’s
part that was so destructive of the employment relationship as to make reinstatement
inappropriate.88
[98] A critical issue is to resolve whether reinstatement is inappropriate before considering
compensation; per Colson v Barwon Health Appeal No. 289.
[99] The evidence given in these proceedings indicates a fraught, if not fragile, relationship
between the Applicants, Heinz and others working at Heinz, including those who gave
evidence. For example, the investigation meetings were plainly tense; there is evidence in the
Applicant’s evidence and of others of performance warnings and prior investigations; and
there are also references in the Applicants’ evidence about interpersonal dislikes. On the other
hand, the relationships at the time the investigation commenced were working and issues of
loss of trust and confidence were not actively under consideration.
[100] The submissions of Heinz on the prospect of reinstatement appear to be built around
the premise that, in view of the Applicants having been accused of being untruthful, it would
be embarrassing to accept that they were unfairly dismissed and that the company’s managers
and other employees would be unable to accept such a finding. Implicit in the submission is
the view that no party would be able to rebuild the employment relationship or view it as
having the requisite level of trust and confidence.
84 Ibid, at [25]
85(2010) 197 IR 266, [2010] FWAFB 5343
86 Ibid, at [21]
87(2012) 217 IR 52, [2012] FWAFB 7097
88 Ibid, at [41]
89 [2014] FWCFB 1949, at [29]
[2014] FWC 3402
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[101] In considering whether reinstatement is inappropriate, I have given consideration to
the attitude and levels of cooperation shown by each Applicant toward the Heinz’s
investigation and to the giving of evidence in these proceedings. Ms Green did not volunteer
information she had to the investigation about why it was necessary for her and Ms Crilly to
leave the plant (as she did not to Mr Watts). Her answers in cross-examination to questions
about this subject were inadequate and her evidence appeared combative at times. While Ms
Crilly was more accommodating in giving evidence, she was of no greater assistance in the
Heinz investigation than Ms Green. After considering all of the evidence in the matter, I
formed the view that these behaviours on the part of both Applicants likely had been
accumulated over time and likely associated with poor relationships between them and some
of the other staff involved in giving evidence.
[102] Likewise, I have formed the view that the evidence does not show that reinstatement
cannot succeed, or that the factors referred to within either Perkins or Colson v Barwon
Health No. 2 in relation to the consideration of mutual trust and confidence, mean that
reinstatement cannot succeed, or that it is otherwise inappropriate.
[103] Further, the evidence of Ms Tiffin and Mr Gilmore in relation to the asserted loss of
mutual trust and confidence does not show to a sufficient standard that Heinz cannot have
trust and confidence in either Applicant upon reinstatement. Considered objectively, their
witness statements references to mutual trust and confidence having gone is a justification of
Heinz’s actions rather than evidence that would support their assertions.
[104] Viewed objectively, and after taking into account the circumstances of the matters
before me, I am persuaded that there is sufficient trust to make a reinstated relationship viable
and productive.
[105] I have taken into account that the Heinz Echuca plant is relatively large, with different
shift rotations and there is likely sufficient human resource management and other support
available to minimise such friction as may arise. I do not consider the time elapsed since the
date of dismissal to be a factor that would make reinstatement inappropriate, or that elapsed
time in conjunction with other factors would make reinstatement inappropriate.
[106] In all the circumstances I am satisfied that it is appropriate that there be an Order
pursuant to s.391(1)(a) requiring Heinz to reinstate each of Ms Green and Ms Crilly by
reappointing each person to the position in which they were employed immediately before the
dismissal.
[107] Notwithstanding such Order, liberty will be given to either party to apply for variation
to this aspect of the Order should they wish to argue that I should instead consider
reinstatement to an alternative position, such as to separate the Applicants from working
alongside other witnesses in this matter, or from each other.
[108] Having formed the view that reinstatement is not inappropriate, I must consider
whether it is appropriate for there to be an Order to maintain continuity of the Applicants’
employment (s.391(2)) and whether it is appropriate for there to be an order to restore lost pay
(s.391(3)).
Continuity of employment
[2014] FWC 3402
33
[109] In all the circumstances, I consider it appropriate to make an order pursuant to s.391(2)
to maintain the continuity of the employment of the Applicants and their period of continuous
service for all purposes, other than in respect of the accrual of annual leave and long service
leave in the period between termination and reinstatement.
Restoration of lost pay
[110] I have given consideration to whether it is appropriate to make an Order for Heinz to
pay to the Applicants an amount for the remuneration lost, or likely to have been lost, by each
Applicant because of their dismissal. While I consider it appropriate to do so, I do not
consider it appropriate to make an Order for the full amount of remuneration lost. In assessing
an Order for restoration of lost pay, the Act requires I take into account the criteria set out in
s.391(4), namely;
“(a) 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
reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person
during the period between the making of the order for reinstatement and the actual
reinstatement.”
[111] The evidence shows that upon termination neither Applicant was paid an amount in
lieu of notice of their termination, although each was paid their leave entitlements90, however
these amounts were not quantified to the Commission.
[112] The evidence shows that neither Applicant received any remuneration earned from
employment or other work during the period between the dismissal and the date of the hearing
(other than an incidental amount earned by Ms Green referred to below). There is also no
evidence before me that either Applicant is presently in employment and so would be unlikely
to earn any remuneration between the date of the last hearing and the date of an Order for
reinstatement.
[113] As a consequence, I will not make any deduction from an Order under s.391(3) for
either element contained within s.391(4).
[114] Within the context of an earlier statutory provision, in Kenley v JB Hi Fi91 the Full
Bench found that an Order for restoration of lost pay is not only discretionary in and of itself,
but so too is the quantum that may be ordered. In particular, the Commission has the capacity
to take into account all of the of circumstances of the case;
“[36] In summary we think that the discretion conferred by s.170CH(4) is general in
nature and it is to be exercised having regard to the context in which it appears and the
scheme of the Workplace Relations Act 1996 as a whole. In deciding whether or not it
is appropriate to make an order in respect of lost remuneration we think that the
Commission may properly take into account all of the circumstances of the case,
90 Exhibit R1, Attachments JT CC and DD
91 (2000), Print S7235
[2014] FWC 3402
34
including the conduct of the applicant which led to the termination of employment in
question. On the construction of s.170CH(4)(b) we have adopted, it was open to the
Commissioner to have regard to Mr Kenley’s conduct, but whether the result arrived at
was plainly unjust, as contended by the appellant, remains to be decided.”92 (emphasis
added)
[115] In the matter considered by the Full Bench in Kenley v JB Hi Fi, the Commissioner at
first instance reinstated the Applicant but ordered no restoration of lost pay; on Appeal, the
Full Bench considered that the practical consequence of the decision was to impose a
substantial financial penalty on the Applicant. The Full Bench assessed the full quantum of
lost pay at $19,633 and ordered the payment of $14,100.93
[116] The date on which the Order in these matters will be issued is 22 May 2014, which is
22 weeks after the date on which the Applicants were dismissed.
[117] As I have recorded, I do not consider either Applicants to have been as cooperative or
as forthcoming with either the investigation or the giving of evidence as they could have been.
On the other hand, this is not a case where the company’s investigation or Fair Work
Commission proceedings would have been avoided through the Applicants being as
cooperative or as forthcoming as they possibly could.
[118] Ms Green’s evidence is that she worked for two shifts under supervision at a hotel94,
although the remuneration received by her from that position was not quantified to the
Commission. Since her undisputed evidence is that this work was two shifts only, I will
consider it as incidental remuneration only and include it within the global reduction I assess
below. Ms Crilly’s evidence is that she has not had any work since dismissal.95
[119] Overall, the Applicant’s evidence shows relatively lukewarm efforts by each
Applicant to obtain alternative employment after their dismissal. While they have registered
their names with a recruitment agency, and even after taking into account their relative age,
lack of skills and domicile in a regional area, there is not evidence before me of energetic job-
searching by either, or of a level that would be expected from someone faced with permanent
separation from a long term, full time employer.96
[120] I therefore intend to reduce an Order to restore lost pay by a factor that takes account
of this lack of cooperation and lack of effort to mitigate their loss.
[121] The reduction I have determined also takes account of any and all contingencies
otherwise associated with employment and Ms Green’s incidental earnings. The reduction
takes into account that the Applicants, if at work, would have received shift penalties, and for
the purposes of clarity, penalty rates are not applied to the amounts below, since neither
Applicant worked the penalty time.
92 Ibid, at [36]
93 Ibid, at [38] and [41]
94 Exhibit A1, para 89; Transcript, PN 1139
95 Exhibit A3, para 87
96 Transcript, PN 1121 - 1149; 2037 - 2043
[2014] FWC 3402
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[122] After considering the relative position of Ms Green and Ms Crilly, I consider it would
be unfair to each for me to apply a reduction which is not the same for each.
[123] The evidence records that Ms Green’s ordinary hourly rate of pay at the time of
dismissal was $32.26 per hour97 and Ms Crilly’s was $32.260798. The Order made will use an
hourly rate of $32.26 per hour for each Applicant.
[124] I will make Orders pursuant to s.391(3) on the basis of an assessed total loss of 22
weeks remuneration at the hourly rate of $32.26 for each Applicant to which will be applied a
discount of 33%. The Orders will require the following payments to each Applicant within 7
days of the date of the Order, with the payments to be subject to taxation according to law;
Debbie GREEN Sharon CRILLY
22 WEEKS PAY OF 38
HOURS EACH WEEK AT
THE RATE OF $32.26 PER
HOUR
$26,969.36 $26,969.36
LESS reduction for conduct,
mitigation of loss and
contingencies (33%)
- $8,899.89 - $8,899.89
PAYMENT $18,069.47 $18,069.47
[125] Taking into account that my decision is for reinstatement together with an Order for
continuity of employment and that each Applicant was paid their accrued leave entitlements
upon termination, I will give liberty to either party to apply for variation to this aspect of the
Order should there be a need to consider the return of all or part of the accrued leave
payments in return for the re-crediting of accrued leave.
CONCLUSION
[126] After consideration of the foregoing issues, I find;
Debbie Green and Sharon Crilly were unfairly dismissed by Heinz, within the
meaning of the Fair Work Act 2009;
that it is appropriate to Order a remedy in relation to their dismissal;
that it is appropriate to Order each should be reinstated to the position in which they
were employed immediately before the dismissal and that such reinstatement will be
on and from the date of the published Orders (22 May 2014);
97 Exhibit A1, para 6
98 Exhibit A3, para 6
[2014] FWC 3402
36
it is appropriate for there to be an Order to maintain the continuity of employment of
each and their period of continuous service for all purposes, other than in respect of
the accrual of annual leave and long service leave in the period between termination
and reinstatement;
it is appropriate for there to be an Order for the amount for the remuneration lost, or
likely to have been lost, by each Applicant because of their dismissal, and that such
Orders should be in the amount of $18,069.47 for each of the Applicants;
it is appropriate that the Orders for the Amount for the Remuneration Lost require
payment to the Applicants within 7 days of the date of this decision.
liberty is given to any party to apply within 7 days of the date of this decision for a
variation of the Orders for Reinstatement or Amount for the Remuneration Lost
should they wish to submit either;
that reinstatement of either Applicant should be to a position other than to the
position in which they were employed immediately before the dismissal; or
that the amount for the remuneration lost should be varied for either
Applicant to take account of the return of accrued leave payments.
[2014] FWC 3402
37
[127] Orders to the above effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr B Terzic and Mr J Wieladek (AMWU) for Ms Green and Ms Crilly
Mr M Rodgers (Solicitor, Livingstones) for HJ Heinz Co. Ltd.
Hearing details:
2014.
Shepparton:
9 and 10 April 2014
2014.
Melbourne:
13 May 2014
Printed by authority of the Commonwealth Government Printer
Price code G, PR550927
& THE FAIR WORK - OMMISSION THE SEA
