1
Fair Work Act 2009
s.394—Unfair dismissal
Kamaldeep Singh
v
Fenner (Australia) Pty Ltd T/A Fenner Dunlop Engineered Conveyor
Solutions
(U2015/3762)
COMMISSIONER GREGORY MELBOURNE, 25 AUGUST 2015
Application for relief from unfair dismissal.
Introduction
[1] Mr Kamaldeep Singh commenced employment with Fenner (Australia) Pty Ltd
(“Fenner Dunlop”) as a mill operator in August 2013. The business operates under the trading
name of Fenner Dunlop Engineered Conveyor Solutions. Mr Singh was initially employed on
a casual basis but after completing some initial training and a probation period was engaged
as a full-time employee in November 2013.
[2] Mr Singh was dismissed following an incident in the weaving room on 4 February
2015. It is alleged he intentionally placed his hand close to the rotating drum of a machine
that was operating at high speed. He was subsequently dismissed on the basis that his actions
constituted serious misconduct. Mr Singh denies he acted in this way and lodged an unfair
dismissal application claiming his dismissal was harsh, unjust and unreasonable. He seeks to
be reinstated to his former position. This decision deals with that application.
[3] The application was dealt with in a hearing on 4 June 2015. However, at the
conclusion of that hearing Mr Singh’s representative requested to be able to provide further
written closing submissions. The Commission agreed to that request and further written
submissions were received from both parties in accordance with a timeframe set down by the
Commission.
[4] Mr Patrick Mulligan from Taylor and Preston Lawyers was granted permission to
appear on behalf of Mr Singh pursuant to s.596(2)(b) on the basis his involvement would
allow Mr Singh to be represented more effectively. Mr Tony Dalton from the Australian
Industry Group appeared on behalf of Fenner Dunlop.
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DECISION
E AUSTRALIA FairWork Commission
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The Issue to Be Determined
[5] There is no dispute that at the time of his termination Mr Singh was a person protected
from unfair dismissal under the terms of s.382 of the Fair Work Act 2009 (“the Act”).
[6] Section 385 of the Act continues to provide:
“A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”i
[7] In considering whether a dismissal is “harsh, unjust or unreasonable” the Act also
provides that the Commission must take into account the criteria in s.387. It states:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”ii
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[8] Therefore, having regard to the considerations contained in s.387, was Mr Singh
unfairly dismissed in that the Commission is satisfied his dismissal was “harsh, unjust or
unreasonable.”
The Evidence and Submissions
[9] Mr Singh submits, in summary, that he did not place his hand close to the rotating
drum of the warper machine. He also submits in the alternative that even if the Commission
finds he did place his hand in close proximity to the rotating drum, his actions were not
intentional. He also submits his behaviour did not constitute serious misconduct, but even if
he is found to have acted inappropriately his dismissal was harsh because summary dismissal
was a disproportionate response. Other options were available including counselling,
retraining or being provided with a warning.
[10] Mr Singh states in his witness statement that he commenced with Fenner Dunlop in
August 2013. He worked as a mill operator and was initially employed on a casual basis.
After completing a period of training he obtained a full-time position in November 2013.
[11] In May last year he fractured his left arm and wrist when his hand was caught in a
winder machine. However, he said he was not found to have been at fault in this incident. He
subsequently returned to work on light duties and reduced hours on 27 July while he
continued to receive further treatment for his injury. He returned to full-time work in
December but still continued to perform light duties. He also said he continues to take
painkillers to assist in dealing with his injury.
[12] On 4 February 2015 he said he went to the weaving room where the warper machine is
located to talk to one of the machine assistants, Mr Phil Smith. He said Mr Smith had also
been injured at work in a previous incident and the two men often had discussions about their
recovery, and their experience with the return to work coordinator. Mr Singh said he had met
with his rehabilitation provider earlier that day. He also said he recalls standing next to the
warper machine and for most of his conversation with Mr Smith stood with his back to the
machine. He said another machine operator, Mr Mark Roberts, was working at the other end
of the machine and Mr Singh did not speak to him.
[13] Mr Singh said he stood in a position that he considered to be a safe distance from the
machine, being approximately one metre away. He said his conversation with Mr Smith lasted
for approximately five minutes and during this time neither Mr Smith nor Mr Roberts said
anything to him about placing his hand in a dangerous position, or otherwise doing anything
that put him at risk.
[14] Mr Singh said at no stage did he place his arm or hand in or near the rotating drum of
the warper machine and at no stage did he put himself, or anyone else, at risk of serious
injury. He also states that at no time during his conversation with Mr Smith did the safety
laser guard of the drum activate and bring the machine to a stop.
[15] Mr Singh said he first heard about the alleged incident when he was advised by his
supervisor, Mr Darren Santospirito, that Mr Smith and Mr Roberts had made a complaint. Mr
Singh said he then told Mr Santospirito about the discussion with Mr Smith and denied he had
done anything wrong.
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[16] Mr Singh states he was then called into a meeting on 9 February, five days after the
incident, with Mr Santospirito and Mr Frank Spina, the National Human Resources Manager.
His union representative, Mr Craig Guy, also attended. He said he was told by Mr Spina that
it was claimed he had acted dangerously and had been told to stop acting in that way by the
two Machine Operators in the weaving room. Mr Singh said he responded by providing his
version of what occurred. He said Mr Spina ended the discussions by suggesting it appeared
Mr Singh was either guilty of serious misconduct and would likely be dismissed, or he was
blameless and no further action would be taken.
[17] Mr Singh said he was then asked to attend a further meeting on 16 February with Mr
Spina, Mr Santospirito and Mr Robert Hoskin, the Plant Manager. Mr Guy was also present.
Mr Singh said he was asked to sign a statement detailing his version of the incident. Mr Singh
said he was then told his employment was terminated, effective immediately, and on the
following day this was confirmed in a letter provided to him.
[18] Mr Singh also denied in cross examination that Mr Roberts and Mr Smith had both
yelled at him to stop placing his hand close to the machine. He also denied he had changed his
story from a version provided previously. He also stated in response to a question from the
Commission that even though there were significant noise levels in the weaving room, and he
was wearing hearing protection, he would still have heard if someone had shouted at him.
[19] Mr Singh also submits that despite the alleged seriousness of the incident the two
machine operators did not report the matter until the following day. He also submits it is
inconceivable that he would place himself in danger of injury, given the serious injury he
sustained nine months earlier.
[20] He also submits the evidence indicates he had not been trained on the machine where
the alleged incident occurred, apart from a brief period of three hours on one day, and there is
no proof he was adequately trained to the extent he knew about the laser guard and other
safety features of the machine. He also submits the evidence indicates the laser guard did not
activate and it is highly probable this was because he was at least one metre away from the
rotating drum, as he states in his evidence.
[21] Mr Singh also submits the evidence of Fenner Dunlop, indicating re-enactments were
carried out as part of the process of investigating the incident, were flawed. He was not
present during those re-enactments to be able to provide his version of what occurred, and the
intent appeared to be about establishing how a person’s hand could be placed close to the
drum without activating the laser guard.
[22] Mr Singh submits, in summary, it is inherently unlikely he intentionally placed himself
in danger as alleged by Fenner Dunlop and, accordingly, his dismissal was harsh, unjust and
unreasonable. He also submits if this finding is made, and his version of events is accepted,
then there is no reason why he cannot be reinstated.
[23] Fenner Dunlop submits Mr Singh was terminated on grounds of serious misconduct in
that he was involved in a serious and wilful breach of its safety rules, which could have
resulted in a serious safety incident. In this context it refers to the meaning of “serious
misconduct” contained in regulation 1.07 of the Fair Work Regulations 2009, which states in
sub clause (2):
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“(2) For sub regulation (1), conduct that is serious misconduct includes both of the
following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.”iii
[24] Fenner Dunlop submits the witness evidence establishes it had a valid reason for Mr
Singh’s termination which was directly related to his serious and wilful misconduct.
[25] Mr Darren Santospirito is the Production Supervisor at Fenner Dunlop and responsible
for overseeing and supervising the day shift operation. His responsibilities extend to
production, quality and safety. He states that on 5 February 2015 at around 7 a.m. he was
approached by Mr Mark Roberts, a Leading Hand in the Weaving Department, who said he
wanted to report a near miss incident involving Mr Singh that occurred at approximately
2 p.m. on the previous day.
[26] Mr Santospirito said he responded by commencing an investigation and subsequently
interviewed the two warper Machine Operators, Mr Roberts and Mr Smith, as well as Mr
Singh. He said he took statements from each employee and asked them to sign the statements
confirming their version of events.
[27] Mr Santospirito said Mr Roberts told him he believed Mr Singh’s behaviour had
placed him in danger, and had also exposed the business to significant cost and production
delays if the emergency stop had been activated. He also said Mr Roberts told him he yelled
at Mr Singh at the time, asking him to stop, after which Mr Singh walked away.
[28] Mr Santospirito said he interviewed Mr Singh on the morning of 5 February in the
presence of his support person, the elected site safety representative. He initially asked Mr
Singh if he recalled entering the Weaving Department at the time of the alleged incident and
his initial response was that he could not recall doing so. However, he then said he did
remember entering the Department to talk with Mr Smith, but denied being in close proximity
to the warper machine. He also could not recall being asked to take his hand away from the
spinning drum.
[29] Mr Santospirito said at the conclusion of the interview he specifically instructed Mr
Singh not to go back into the Weaving Department, however, Mr Roberts later told him Mr
Singh had returned to the room and approached both Machine Operators, protesting his
innocence and asking why they had reported the incident.
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[30] In cross-examination Mr Santospirito acknowledged Mr Singh had limited knowledge
of the operation of the warper machine, having only spent half a day working in that area.
However, he also said the first things he would have been shown were the safety devices, and
therefore he would have some knowledge of them. He also said he could not provide any
explanation for Mr Singh’s actions, particularly as he had suffered a previous workplace
injury. However, both of the Machine Operators had provided him with a similar version of
events and were, in his words, “horrified at what took place.”iv
[31] Mr Santospirito said that after interviewing the two Machine Operators he was
satisfied there was clear evidence of a serious safety breach in that Mr Singh had
“intentionally placed his hand within very close proximity of the rotating drum.”v He
proceeded to provide an update to the Plant Manager, and also decided to seek advice from
HR on how to proceed.
[32] He said Mr Frank Spina, the National Human Resources Manager, then proposed that
a performance counselling meeting be held with Mr Singh and this took place on 9 February.
Mr Singh again attended with a support person and after the meeting a decision was made to
stand him down while further investigations were conducted.
[33] Mr Mark Roberts is employed by Fenner Dunlop as a leading hand and has worked
with the company since April 2006. He said that one of the machines he operates is the
warper machine in the Weaving Department.
[34] He said that on Wednesday, 4 February 2015 at around 2 p.m. he was working with
another operator, Mr Phil Smith, when Mr Singh suddenly came into the area. He said he saw
Mr Singh place his hand very close to the spinning drum of the machine. It appeared he had
done this deliberately as he put his hand under the laser safety cut-off. Mr Roberts said the
drum was spinning fast at the time and if Mr Singh’s hand had been caught the consequences
would have been very serious. He said he instinctively yelled at Mr Singh to stop and then
asked him why he did that. He said Mr Singh did not reply and walked away.
[35] Mr Roberts said he then went to the Production Supervisor at the start of his next shift
to report what he considered to be a near miss incident. He was later interviewed as part of the
investigation process and provided the Production Supervisor with a written statement.
[36] Mr Roberts said he took issue with a number of matters in Mr Singh’s witness
statement. He did not agree that he did not take notice of Mr Singh when he came into the
area, but states instead that he yelled at him to stop when he observed him place his hand
close to the spinning drum. He also disagreed that Mr Singh was standing a safe distance from
the machine, and did not observe Mr Singh having a conversation with Mr Smith, let alone for
a period of five minutes. He said both he and Mr Smith had instead yelled at Mr Singh to stop
when he walked into the room and put his hand close to the spinning drum. He also said Mr
Singh appeared to act intentionally in a way that placed him at risk of serious injury.
[37] He said Mr Singh again came into the weaving area on the following day and asked
why both men had reported him to the Plant Supervisor.
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[38] Mr Roberts also stated he had been involved in training Mr Singh during the half day
he had previously spent working on the warper machine. This had occurred in January 2015.
He said this training commenced by going through the safety features of the machine,
including the pressure mat and the laser light barrier that prevents an operator from leaning
forward into the machine. However, after an initial half day training session Mr Singh said he
was not interested in working on the machine and would speak further with the Plant
Supervisor about this.
[39] Mr Roberts also denied in cross-examination he had been told or pressured in any way
to make his statement about the incident involving Mr Singh.
[40] Mr Philip Smith works as a Machine Operator with Fenner Dunlop and has been
employed since July 2013. He said he works on various machines at different times and on 4
February 2015 was operating the warper machine in the weaving area.
[41] He said he was working on the warper machine with Mr Roberts when Mr Singh came
into the area. He said Mr Singh then placed his hand underneath the laser guard and close to
the spinning drum. He estimated his hand was within one to two centimetres of the drum. He
said Mr Singh’s actions appeared to be quite deliberate and he had placed his hand under the
laser safety cut-off. He said his actions could have been very serious, possibly fatal.
[42] He said both he and Mr Roberts instinctively yelled at Mr Singh to stop and both then
asked him why he did that. He said Mr Singh then just walked away. He also stated that Mr
Roberts then said he was going to report the incident as “a near miss.” He said he was later
interviewed by the Production Supervisor and provided a written statement about the incident.
He also said Mr Singh later returned to the weaving area and asked where Mr Roberts was.
He said he wanted to speak with him because he had reported him to the Production
Supervisor.
[43] Mr Smith also acknowledged he had been involved in previous discussions with Mr
Singh because both men had previously suffered injuries at work. However, he said he did not
have a conversation with Mr Singh at the time of the alleged incident, and the only
communication with him on that day was to yell at him in response to his actions in placing
his hand close to the spinning drum. He also said it was not easy to have a conversation in the
weaving area as there is too much noise, and the operators are wearing hearing protection.
The only way to communicate was to yell. He also said he believed Mr Singh’s actions were
deliberate and disputed his version of events when Mr Singh said he was standing a safe
distance from the machine.
[44] Mr Smith was also asked in cross-examination about a text message he had sent to Mr
Singh on 16 February. It read, “I signed it but never wrote it. Don’t even remember what it
said. How could I say anything else. No win situation for me. I wish you never went there that
day.”vi Mr Smith was asked whether he had sent that message to Mr Singh and, if so, did it
mean he was forced to provide his statement about the alleged incident. Mr Smith indicated in
response he did send the text to Mr Singh but it did not mean he had been forced to provide
his statement to the Plant Supervisor. He said, “It means that Kam should never have come
there, otherwise I wouldn’t have had to make that statement. That’s what that means.”vii He
also stated in re-examination he had sent the text to Mr Singh after he had asked him to help
him get his job back. He said when he stated “I can’t help you” he meant there was nothing he
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could do because Mr Singh had already been dismissed and Mr Smith was on sick leave at the
time.viii
[45] Mr Frank Spina is the National Human Resources Manager at Fenner Dunlop and has
been employed since June 2011. He states he was advised by the Production Supervisor on 6
February 2015 about the alleged safety incident reported by Mr Roberts. He said he was also
provided with copies of the signed statements from the Machine Operators and the Production
Supervisor, who also said Mr Singh had gone back into the weaving area on the following day
after being instructed to keep out of the area.
[46] Mr Spina said he told the Production Supervisor he would like to interview the
employees involved and met with Mr Santospirito and Mr Hoskin to advise them of his initial
view that the incident could be a serious breach of the Fenner Dunlop’s risk protocols and
safety standards, and further investigation was accordingly required.
[47] He said he then interviewed the employees involved again, and also reviewed Mr
Singh’s training records. He also checked his height as he believed this was relevant to the
issue of whether Mr Singh had breached the safety area deliberately or accidentally. He then
scheduled a further meeting on 9 February with Mr Singh, who attended with a support
person. He put the allegations to Mr Singh that he had intentionally placed his hand close to
the rotating drum, and indicated if this was true Fenner Dunlop may proceed with disciplinary
action up to and including possible termination of employment. He then asked Mr Singh to
respond.
[48] He said Mr Singh reiterated that he walked into the weaving area, after a meeting with
his return to work coordinator, to speak to Mr Smith. He spoke with him for approximately 5
minutes and then left the area. He said he could not recall placing his hand near the spinning
drum, but the two Machine Operators may have been confused because he often gestures with
his hands and arms when he speaks. Mr Singh said he could not recall anyone telling him to
stop what he was doing. He also said Mr Roberts did not speak to him during the time he was
in the room. He also said “Why would I do such a thing”,ix given the previous work related
injury he had sustained. He could not explain why the two Machine Operators had a different
version of events, and had reported the incident, when they were standing within one to two
metres away from the incident when it allegedly occurred. Mr Spina said the meeting then
adjourned and he and Mr Santospirito subsequently decided, given the potential seriousness
of the incident and Mr Singh’s failure to follow the instruction to not re-enter the weaving
area, that he should be stood down on full pay while further investigations were completed.
[49] Mr Spina said it was then decided, in conjunction with the Plant Manager and the
Plant Supervisor, to again examine the machine and to endeavour to re-enact the incident to
attempt to validate the statements made by Mr Singh and the other witnesses. He said this
examination concluded it was not possible for someone of Mr Singh’s height to get their hand
as close to the drum, without activating the laser safety mechanism, unless there was a
deliberate intent to do so.
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[50] Mr Spina was also asked in cross-examination about whether the fact the laser safety
mechanism did not activate could be explained by the fact Mr Singh had not placed his hand
close to the machine, but was standing more than a metre away from it, as he claimed. Mr
Spina said this explanation did not accord with the accuracy and consistency of the statements
provided by the two Machine Operators. He also said the investigation had taken account of
Mr Singh’s possible explanation, being that he waves his hands and arms around when he is
speaking, but this did not provide an explanation of how his hand could have been close to the
rotating drum without triggering the laser activation.
[51] Mr Spina also acknowledged in cross examination that there were no records of Mr
Singh’s training on the warper machine, but there were training records kept in regard to the
critical risk protocols that applied across the workplace.
[52] A further meeting was then held with Mr Singh on 16 February to discuss the outcome
of the further investigation. Mr Spina said Mr Singh was told in that meeting Fenner Dunlop
had concluded his actions were considered to constitute serious misconduct, and the final
decision in response was likely to be termination of his employment. He said Mr Singh was
asked whether there was anything further he wished to add before a final decision was made.
He said Mr Singh advised he had been taking medication as part of his treatment for the
previous workplace injury and this may have caused him to not be able to accurately recall
what had occurred. Mr Spina said this response was taken into account and the meeting then
adjourned. He said he and Mr Santospirito then undertook an evaluation of all of the available
information. They also took into account Mr Singh’s length of service, experience and
training. He said it was concluded, firstly, that no reason could be found to doubt the accuracy
of the statements provided by Mr Roberts and Mr Smith and, secondly, there appeared to be
no reason or rationale as to why they would be motivated to fabricate those statements.
[53] He said it was decided that Mr Singh’s actions were a breach of the safety rules and
his actions had placed himself at risk of serious injury by potentially becoming entangled,
entrapped or crushed by the machine. It had also been decided that he could no longer be
trusted to act safely in the workplace, and that termination of his employment was justified.
Mr Singh was subsequently informed of this decision in a further meeting that took place on
that day, and a letter confirming his termination was mailed to him on the following day.
[54] Fenner Dunlop submits in conclusion that it had a valid reason for termination based
on the consistent evidence of the two employees that witnessed the incident. It also submits
this evidence conflicts with the evidence provided by Mr Singh in a number of aspects. In this
context it refers to the length of the conversation, where Mr Singh was standing, and what
was said to him in the weaving room at the time.
[55] It also submits Mr Singh was initially evasive and noncommittal when first
interviewed, and had previously ignored an instruction not to return to the weaving area after
the alleged incident occurred. It also submits a thorough process of investigation was gone
through before the decision was made to terminate his employment, and the decision was only
made after Fenner Dunlop had evaluated all available information.
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[56] It also submits Mr Singh was provided with adequate notice of the reason for his
termination and was provided with various opportunities to respond. He also attended these
discussions with a support person. In addition, he had not previously been involved in
disciplinary action during his employment with Fenner Dunlop, but the present matter
involved a single instance of serious and wilful misconduct.
[57] It also submits Mr Singh has not been able to satisfy the burden of proof that requires
him to establish Fenner Dunlop’s actions were harsh, unjust or unreasonable. It submits
instead that the evidence demonstrates he has been provided with a “fair go all around” in
terms of its response to what occurred, and his application should be dismissed.
Consideration
[58] As indicated, s.387 of the Act sets out the criteria the Commission must take into
account when assessing whether Mr Singh’s dismissal was “harsh, unjust or unreasonable.”
What falls within that description has also been considered in previous decisions of the Courts
and this Tribunal, including in the High Court decision in Byrne v Australian Airlines
Limitedx when McHugh and Gummow JJ concluded:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”xi
[59] I now turn to deal with the circumstances of this matter, and the submissions of the
parties, by reference to these considerations and the matters in s.387 that I must take account
of.
(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);
[60] The decision in Selvachandran v Peteron Plastics Pty Ltdxii makes clear that the
reason for dismissal should be “sound, defensible or well founded” and, conversely, should
not be “capricious, fanciful, spiteful or prejudiced” if it is to be a valid reason for dismissal.xiii
[61] The nature of the evidence in this matter requires that two separate issues be
considered in the context of this consideration. Firstly, was there a reason existing at all
related to Mr Singh’s capacity or conduct that warranted action in response, including the
possibility of dismissal? Secondly, if such evidence does exist, was the decision to dismiss Mr
Singh a proportionate response?
[62] To deal first with the initial consideration. The evidence of the parties about what
occurred in the Weaving Department on 4 February 2015 is starkly contrasting. The key
aspects relied upon by each party have been summarised already and are not restated in detail
now. However, Mr Singh submits, in summary, that he went into the Weaving Department to
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talk to Mr Smith because the two men had a shared interest in their progress in recovery from
work related injuries each had previously sustained.
[63] Mr Singh’s evidence is that his discussion with Mr Smith lasted for approximately five
minutes. During that time he remained, at all times, at least one metre away from the spinning
drum of the warper machine, and for most of that time he actually had his back to the
machine. In addition, he is adamant he did not, at any time, get close to the machine and did
not deliberately place his hand close to the rotating drum in a way that deliberately avoided
triggering the safety laser beam mechanism.
[64] As indicated, the evidence relied upon by Fenner Dunlop is very different. The two
Machine Operators in the Weaving Department both deny any conversation took place with
Mr Singh. Their evidence is that Mr Singh came into the area, walked straight up to the
warper machine, and then deliberately placed his hand and arm under the safety laser guard to
a point where his hand was within one or two centimetres from the rotating drum. Their
evidence is also that rather than a five minute conversation taking place they both
immediately yelled at Mr Singh to stop what he was doing, before they then asked him why
he had done that, at which point Mr Singh immediately left the area. Both Machine Operators
also state that, in any case, the combination of noise levels in the room and the fact ear
protection is being worn, means conversation at any time is difficult, and any discussion can
only be had by yelling at the other person.
[65] I have decided on balance that the evidence of the two Machine Operators is to be
preferred. The following considerations, in particular, have led me to this conclusion. Firstly,
the evidence of the two Machine Operators is corroborated, at least by the evidence of each
other. Mr Singh’s evidence is uncorroborated. Secondly, there is no strong evidence of any
reason or rationale as to why the two Machine Operators would seek to concoct or
manufacture their version of events. Mr Singh did submit that evidence of text messages
between him and Mr Smith suggested Mr Smith had been pressured by management to
provide the statement he did. However, Mr Smith provided an explanation for the text
message he sent to Mr Singh. He said at the time he was approached by Mr Singh for
assistance the matter had progressed beyond his control and, in any case, Mr Singh was off
work on sick leave at the time. Mr Smith also indicated he generally had a friendly
relationship with Mr Singh and bore him no ill will. The evidence also indicates the noise
levels in the area make it difficult for a casual five minute conversation to take place in the
way Mr Singh said occurred.
[66] Mr Singh also submits he had only ever been trained in the operation of the warper
machine for half a day and therefore could not be expected to have known about the operation
of the machine, or its safety features. However, Fenner Dunlop submits in response any initial
training to do with the operation of the machine focused on its safety features and, in any
case, the generic training provided to employees emphasises the potential dangers associated
with any machine operation, including issues to do with entanglement.
[67] There are also some apparent inconsistencies in Mr Singh’s evidence. When
questioned about the alleged incident he initially denied going into the Weaving Department
on the day in question. He also then denied being told not to go back into the area after the
alleged incident occurred.
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[68] I have also had regard to the submissions provided on behalf of Mr Singh which assert
there was no reason for him to have acted in the way Fenner Dunlop alleges, particularly as he
was still recovering from a previous injury sustained at work and, as a consequence, he would
be only too well aware of the potential of being injured at work. It was also suggested the
medication he was taking for his injury might have affected his judgement and/or behaviour,
although no medical evidence was provided in support of this contention. It was also
submitted that Mr Singh often gesticulates when speaking, and these actions could have been
what the Machine Operators observed, rather than any deliberate act to place his hand close to
the rotating drum. However, the subsequent re-enactments and other work done by Fenner
Dunlop to establish what might have occurred indicate it would be almost impossible to
unintentionally place one’s hand close to the rotating drum without activating the laser alarm.
[69] It is acknowledged that there is no obvious reason or evident explanation for why Mr
Singh acted in the way Fenner Dunlop submits he did, and I have taken this into account in
coming to a decision in this matter. Nevertheless, I am not satisfied this consideration alone
can account for the weight of evidence relied upon by Fenner Dunlop.
[70] As indicated at an earlier point in this decision Mr Singh submits, in the alternative,
that if he is found to have acted in the way Fenner Dunlop alleges his behaviour did not
constitute serious misconduct, and his dismissal was therefore harsh because summary
dismissal was a disproportionate response. He submits other options were available including
counselling, retraining, or being provided with a warning.
[71] However, Fenner Dunlop submits Mr Singh’s actions were a serious breach of its
safety protocols and requirements, and placed him at risk of serious injury by potentially
becoming entangled, entrapped, or crushed by the machine. It concluded he could no longer
be trusted to act safely in the workplace and the significance of his actions warranted
summary dismissal. While acknowledging that the health and safety of its employees is the
overriding consideration Fenner Dunlop also submits that if Mr Singh’s actions had caused
the machine to be stopped, either through activation of the laser safety guard or for any other
reason, the disruption to its production process would have resulted in an extended period of
downtime and significant additional cost.
[72] Having come to the conclusions that I have about what occurred in the Weaving
Department on 4 February, and the processes of investigation and review that followed, I am
satisfied Mr Singh’s summary dismissal was not an inappropriate response. The potential
implications of his actions have already been described, both in terms of serious injury, if not
worse, and significant cost resulting from disruption to the production process. As a
consequence Fenner Dunlop submits it can no longer be satisfied Mr Singh will, at all times,
act in a safe manner in the workplace.
[73] The obligation to provide and maintain a safe and healthy workplace must be the
paramount consideration in any workplace. It is also self-evident that the requisite safety
protocols and requirements are made known and understood by employees from the outset
through appropriate guidance, training, instruction and other mechanisms. It is also
acknowledged that the appropriate response to some safety breaches can involve counselling,
retraining, or the provision of a warning.
[2015] FWC 5583
13
[74] However, it is also clear that simply providing a warning and, in effect, a second
chance, cannot be the appropriate response in every case involving a safety breach,
particularly if the importance of establishing and maintaining a safe and healthy workplace is
to be emphasised and supported. In some cases the nature of the breach will warrant summary
dismissal. I am satisfied that this is the case in the present matter, given the nature of the
safety breach involved, and its potential consequences. I am also satisfied it has led to a
situation in which Fenner Dunlop can no longer have confidence Mr Singh will act, at all
times, in accordance with its safety requirements and protocols.
(b) whether the person was notified of that reason;
[75] This matter is not at issue in the proceedings. Mr Singh was notified of the reason for
his dismissal after an extensive process of investigation and review. Fenner Dunlop’s decision
was finally conveyed to him in a meeting on 15 February 2015, and confirmed in a letter
provided to him on the following day.
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
[76] The processes of review and investigation that took place after the incident on 4
February was brought to the attention of management have been detailed at length in this
decision and are not restated now. I am satisfied Mr Singh was given adequate opportunity on
more than one occasion to respond to the allegations made about his conduct. Again, this is
not a matter at issue in these proceedings.
(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;
[77] Mr Singh had a support person present at various times in the discussions about the
incident that finally led to the decision to dismiss him. There is nothing to indicate that at any
stage he was denied the opportunity of having a support person present in any of these
discussions.
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
[78] This consideration is not relevant in the circumstances of this matter.
(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;
[79] I am satisfied that it is appropriate to deal with each of these considerations together.
Nothing was put in the proceedings to suggest the size of the business or the absence of any
dedicated human resource management expertise impacted on the procedures followed in Mr
Singh’s dismissal. Fenner Dunlop is a relatively large organisation with dedicated human
resource management expertise, and an extensive process was gone through involving various
[2015] FWC 5583
14
management representatives, including the National Human Resources Manager, before the
decision was taken to dismiss Mr Singh.
(h) any other matters that the FWC considers relevant.
[80] I am not satisfied that anything further requires to be considered in this context.
Conclusion
[81] Having considered each of the matters in s.387 that the Commission is required to take
into account, and the authorities I have referred to, I am satisfied in all the circumstances that
Mr Singh’s dismissal was not harsh, unjust or unreasonable. In coming to this decision I have
had particular regard to the conclusions reached in respect of s.387(a). The application is
dismissed.
COMMISSIONER
Appearances:
Mr P Mulligan of Taylor and Preston Lawyers appeared on behalf of Mr Singh.
Mr A Dalton from the Australian Industry Group appeared on behalf of Fenner Dunlop.
Hearing details:
2015.
Melbourne:
4 June.
Final written submissions:
The Applicant filed final submissions on 11 June 2015.
The Respondent filed final submissions on 17 June.
Printed by authority of the Commonwealth Government Printer
Price code C, PR570805
i Fair Work Act 2009 (Cth) at s.385
ii Ibid at s.387
iii Fair Work Regulations 2009 at 1.07
iv Transcript at PN658
THE FAIR WORK COMMISSION SEAL THE
[2015] FWC 5583
15
v Exhibit FD1 at para 16
vi Transcript at PN809
vii Ibid at PN817
viii Ibid at PN820
ix Exhibit FD4 at para 17
x (1995) 185 CLR 410
xi Ibid at 465
xii (1995) 62 IR 371
xiii Ibid at 373
