1
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Tran
v
Parmalat Food Products Pty Ltd
(U2015/4581)
DEPUTY PRESIDENT LAWRENCE SYDNEY, 27 AUGUST 2015
Application for relief from unfair dismissal.
Introduction
[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for
unfair dismissal was lodged with the Fair Work Commission (the Commission) by Mr
Christopher Tran (the Applicant) against his former employer Parmalat Food Products Pty Ltd
(the Respondent) on 2 April 2015.
[2] The application was lodged by the Applicant’s union, the Transport Workers’ Union
of Australia (the TWU).
[3] The Applicant was notified of his dismissal on 17 March 2015 and it took effect on the
same day.
[4] The Applicant was employed at the Respondent’s factory at Lidcombe, in Sydney’s
western suburbs as a forklift driver. The factory manufactures, stores and distributes milk
related products.
[5] The Applicant commenced employment with the Respondent as a casual in 2002 and
then as a permanent employee from 31 January 2006.
[6] In his F2 form the Applicant sought reinstatement and compensation.
[7] The dismissal arose from an alleged breach of policy and trust arising from a safety
incident which occurred on 5 March 2015. A milk palette collapsed causing a milk spill in a
trailer. The leading hand, Mr Tiqui entered the trailer and the Applicant followed him. It
appears that the trailer was not locked out as required. A health and safety investigation took
place leading to a “show cause” letter on 13 March, the Applicant’s response on 16 March
and the termination letter the next day.
[2015] FWC 5535 [Note: An appeal pursuant to s.604 (C2015/6098) was
lodged against this decision - refer to Full Bench decision dated
6 November 2015 [[2015] FWCFB 7475] and 29 March 2016 [[2016]
FWCFB 1199]] respectively for result of appeals.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB1199.htm
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB1199.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7475.htm
[2015] FWC 5535
2
[8] The Applicant submits that the dismissal was harsh because the punishment was out of
proportion to the alleged offence and it was unreasonable because there was not serious
misconduct by the Applicant. Moreover, Mr Tiqui was not treated in a comparable manner.
[9] The letter of termination specifies the Applicant's offence as:
not properly securing the pallet of stock;
in order to clean-up the spillage, entering the truck without it being "locked-down".
An earlier incident on 19 February 2015 was also referred to in which the Applicant was
involved in collision with another truck.
[10] The Respondent notes that the death of the Applicant's brother overseas, which the
Applicant said had been distracting him, had not been mentioned prior to the disciplinary
interview. The danger to the Applicant, and potentially to other employees, from the incident,
represented a serious breach of policy. Accordingly, the Applicant was terminated without
notice.
[11] In its F3 response, the Respondent makes the following points:
The Applicant was involved in a collision with another forklift on 19 February 2015
for which he was stood down from forklift duties. He acknowledged that he was at
fault because of a lapse of concentration. The investigation of this incidence had not
concluded when the 5 March incident took place. Therefore it was also taken into
account when discipline was considered.
On 5 March, the truck in question contained both milk crates and a pallet of milk. The
milk was not secured whilst the crates were being unloaded. When the truck moved
off, the milk spilt. The Respondent's distribution manager saw this and ordered the
truck to be returned to the dock to be cleaned.
The Applicant and Mr Tiqui went onto the trailer to do the clean-up without locking it
out. The manager told them to get out because of the safety breach.
The employees were clearly trained in the safety procedure.
Both employees were stood down on full pay while the safety investigation took place.
The Applicant provided statements on 5 and 7 March. He acknowledged error but said
that he assumed Mr Tiqui, as leading hand, had locked out.
The Respondent maintains that adherence to safety policies and practices are the
responsibility of all employees.
The investigation consisted of:
o show cause letter, which was given to the Applicant during the meeting on
13 March 2015;
o applicant's written response, 16 March 2015;
[2015] FWC 5535
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o Meeting, 17 March 2015.
[12] The decision to terminate was taken following a break in the meeting and then
confirmed in writing. The Applicant was paid five weeks’ notice even though it was a
summary dismissal for serious breach of safety on two occasions. The Respondent asserts that
it had been about to issue a disciplinary action for the first incident when the second occurred.
[13] A telephone conciliation took place on 29 April 2015 but the matter was not settled.
[14] I conducted a telephone programming conference on 30 June 2015.
[15] The hearing took place in Sydney on 8 July 2015. The Applicant was represented by
Mr T. Warnes of the Transport Workers' Union (TWU). The Respondent was represented by
Mr B. Cooper of Livingstones, Solicitors. Mr Cooper was granted permission to appear
pursuant to s.596 of the Act.
[16] As well as oral submissions and evidence the Applicant relied on:
Written submission filed on 27 May 2015;
The Applicant's witness statement (Exhibit W1);
The witness statement of Mr Alejandro Sau, TWU delegate (Exhibit W2);
The witness statement of Mr Michael Nellems, TWU delegate (Exhibit W3).
[17] As well as oral submissions and evidence the Respondent relied on:
Written submissions filed on 18 June 2015;
Witness statement of Mr Kristian Brennan, NSW Logistics Manager (Exhibit C6);
Witness statement of Mr Geoff Gavan, Human Resources Manager at the Lidcombe
factory (Exhibit C7);
Witness statement of Mr David Rayner, Production manager (Exhibit C5).
Protection from Unfair Dismissal
[18] An order for reinstatement or compensation may only be issued where I am satisfied
the applicant was protected from unfair dismissal at the time of the dismissal.
[19] Section 382 sets out the circumstances that must exist for the applicant to be protected
from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment
with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
[2015] FWC 5535
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(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
[20] There was no dispute that the Applicant was covered by an enterprise agreement, the
Parmalat TWU Enterprise Agreement 2011 [AE893120] in compliance with s.382(b) nor that
the Applicant was below the high income threshold. His annual income was approximately
$53,700.
[21] The Applicant’s minimum employment period, over nine years as a permanent
employee, was well in excess of the minimum defined by s.383. The Respondent has
approximately 250 employees. Therefore, the Applicant was protected from unfair dismissal
pursuant to s.382.
Was the dismissal unfair?
[22] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Was the Applicant dismissed?
[23] A person has been unfairly dismissed if the termination of their employment comes
within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the
Act provides that:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated
on the employer’s initiative; or
[2015] FWC 5535
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(b) the person has resigned from his or her employment, but was forced to
do so because of conduct, or a course of conduct, engaged in by his or her
employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a
specified period of time, for a specified task, or for the duration of a specified
season, and the employment has terminated at the end of the period, on
completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of
the person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.”
[24] There was no doubt that the Applicant was dismissed. It is also clear that s.385(c) and
(d) have no application.
Harsh, Unjust or Unreasonable
[25] Having dealt with each of s.385(a), (c) and (d) of the Act, I must consider whether I
am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into
account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at
s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
[2015] FWC 5535
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(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.
Approach of the Commission
[26] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185
CLR 410 at 465 by McHugh and Gummow JJ as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[27] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998)
Q9292 (Rose) restated the above proposition and also stated:
“In my view whether there has been a `fair go all round’ is a matter which I think is
relevant and hence I am to have regard to it determining whether the termination was
harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be
taken into account.”
The Applicant’s Case
[28] The Applicant submits that the dismissal was harsh, unjust and unreasonable because:
The termination was excessive given the nature of the offence.
[2015] FWC 5535
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There was inconsistent treatment of employees because Mr Tiqui, the leading hand,
was not dismissed but received a warning.
The dismissal was harsh given the Applicant’s personal circumstances.
[29] The safety breach had two elements, the non-securing of the trailer and the failure to
secure the trailer when it was entered for the clean-up. Both are admitted.
[30] Neither, it is submitted, would be uncommon occurrences or the most serious danger
to health and safety on the site. Both actions by the Applicant had an explanation, if not a
justification. In respect of the first, the Applicant went to charge the battery on his forklift,
which was necessary as well. In the respect of the second, it was reasonable for him to assume
that the leading hand had secured the trailers.
[31] In truth, it is submitted, reliance was placed for the dismissal on the 5 March incident
almost exclusively. The Respondent is seeking to retrospectively use the earlier incident to
bolster its case.
[32] The Applicant’s evidence was that the incident on 19 February occurred whilst he was
reversing his forklift. The guard on the forklift was damaged. No-one was hurt and he
reported the incident immediately. He received no warning or even formal counselling. He
was taken off forklift duties for a period of time.
[33] Following the 5 March incident the Applicant was stood down on pay whilst the
investigation took place. He attended disciplinary meetings on 7, 13 and 17 March. He was
accompanied by the TWU delegate. He does not deny that he failed to secure the milk initially
but argues that the charging of the battery was an important task as well.
[34] The Applicant points out that the show-cause letter relies on the 5 March incident.
There is only a general reference to the earlier incident to support the case for dismissal.
[35] The Applicant is 63 years old. He is a Vietnamese speaker who was born in Laos. He
has not been able to find employment since the dismissal. His wife is ill and supported by
him.
[36] Mr Nellem’s evidence was that there is no Parmalat policy for locking out a truck
when it leaves the dock and then comes back again without leaving the loading area which is
what occurred here.
[37] Mr Sau’s evidence was that it is a common occurrence for the milk to be spilled in this
way. However, it was rare for a truck driver to pull away without checking that the load is
secured.
The Respondent’s Case
[38] The Respondent submits that the dismissal was not harsh, unjust and unreasonable
because:
The Applicant had already received a verbal warning for the 19 February incident.
[2015] FWC 5535
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The Applicant was well aware of the loading dock procedures.
His actions on 5 March represented a serious breach of policy notwithstanding the
actions of any other employee.
[39] The Respondent submits that it undertook a thorough investigation and disciplinary
process. The Applicant was notified of the reasons for his dismissal and had an opportunity to
respond.
[40] The Respondent further submits that the nature of the Applicant’s safety infringements
means that dismissal was not a disproportionate response.
[41] Mr Tiqui received a final warning for his role on 5 March. The Respondent submits
that its differential treatment of the two employees was justified because of Mr Tiqui’s
31 years’ service without a prior safety incident. The prior verbal warning to the Applicant is
therefore relied on.
[42] Mr Gavan, in his evidence, sets out the procedures that were in place to govern the
loading dock. He was the author of the show-cause letter given to the Applicant at the meeting
on 13 March. The Applicant had been fully trained in the procedures and should have been
aware of what was required (see Exhibit C1). Exhibit C3 is the Safety Incident Investigation
Report with respect to the forklift collision on 19 February.
[43] Mr Rayner deals with the 19 February incident in his evidence. He says that on
27 February, he told the Applicant he was issuing a warning to him. He prepared a written
warning for Mr Tran and asked the Team Leader, Mr Moussa to provide it to the Applicant.
[44] The decision to terminate the Applicant was made by Mr Gavan and Mr Rayner
following a break in the meeting with the Applicant on 17 March.
Valid Reason
[45] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench
said ‘In our view, the consideration of whether there was a valid reason for termination is a
separate issue from the determination of whether a termination was harsh, unjust or
unreasonable’.
[46] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct, or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are each treated fairly ...”
[2015] FWC 5535
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[47] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench
held:
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[48] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia
Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the
Commission in weighing the factors to be considered under s.387:
“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v
Commonwealth – that s.170DE(2) by its operation could render invalid a reason that
would otherwise have been a valid reason. The fact that some dismissals are “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” means that
the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class
of dismissals where there is no “valid reason” for the dismissal.
[21] Section 387 specifies a range of matters that must be considered in each case.
Section 387(h) requires consideration of “any other matters that FWA considers
relevant”. In any given case, there will be a range of matters, beyond those specified in
s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or
unreasonable” and thus are “relevant matters” that must be considered pursuant to
s.387(h).
[22] Often it will not make any difference to the ultimate outcome whether a particular
circumstance is considered pursuant to s.387(a) in determining whether there is a valid
reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate
determination of whether the dismissal was “harsh, unjust or unreasonable”. However,
in some cases it may matter greatly. That will tend to be so when the particular
misconduct, shorn of the personal circumstances of the employee and the broader
context beyond the particular acts or omissions that are said to constitute the
misconduct, is clearly a matter that a reasonable employer is entitled to take seriously.
This is such a case.
...
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the
reason(s) being considered are the employer’s reason(s). In a misconduct case, the
Commission is concerned with whether the misconduct in fact occurred, not with
whether the employer has reasonable grounds to believe that it occurred (eg. Yew v
ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998)
88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). ”
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is
assessed from the perspective of the employer and by reference to the acts or
[2015] FWC 5535
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omissions that constitute the alleged misconduct on which the employer relied,
considered in isolation from the broader context in which they occurred. It is the
reason of the employer, assessed from the perspective of the employer, that must be a
“valid reason” where “valid” has its ordinary meaning of “sound, defensible or well
founded”. As Northrop J noted, the requirement for a valid reason “should not impose
a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the
fundamental term of the contract of employment that obliges employees to comply
with the lawful and reasonable directions of the employer. In this way, a substantial
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for
dismissal.
. . .
[58] Reaching an overall determination of whether a given dismissal was “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a
weighing process. The Commission is required to consider all of the circumstances of
the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in
favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may
properly be brought to account as weighing against a finding that
dismissal was a fair and proportionate response to the particular
misconduct.”
[49] In David Johnston v The Trustee for The MTGI Trust T/A Macquarie Technology
Group International [2014] FWC 7098 Boulton J put the task this way:
“[40] The assessment as to whether there was a valid reason for the dismissal entails a
consideration of the nature of the conduct in the full context in which it occurred.
Conduct relied upon to justify a dismissal cannot be considered in a vacuum and
consideration must be given to matters which mitigate the seriousness of any conduct
relied upon by the employer. Even if it is found there was a valid reason for the
dismissal, an overall assessment must be made as to whether the dismissal was
nonetheless harsh, unjust or unreasonable. For example, a dismissal may still be harsh
having regard to the circumstances of the employee concerned and the impact of the
dismissal. Such considerations may be matters considered to be relevant under
s.387(h) of the Act.”
[50] I propose to adopt this approach.
Finding as to Valid Reason
[51] I found the Applicant to be a truthful witness. Any hesitancy in answering questions
can be attributed to some difficulty with English. He did not seek to avoid responsibility for
what happened on 5 March but rather to explain the reasons for his actions. See, for example,
[2015] FWC 5535
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the following response to the question as to whether it was everyone’s responsibility to check
whether the trailer was locked out.
“PN146
But you said before that it was everyone's responsibility to check. Yes?---Yes, but on
the time - the second time the trailer come back, I didn't realise it's coming back and
then - until Mr Kristian coming back and say that we got a spilt milk pallet. It fall on
the floor; all milk on the floor - because I just come back from the battery bay. I didn't
realise it come back. It just be there. But when there before that, the first time it been
locked - everything locked - until I just put the spilt milk, the spoilt milk, inside there in
trailer. Everything is secure and locked already, but I move out - because my battery
getting flat, so - because it been pushed further to secure the spoilt milk pallets, my
battery will get flat and can't move out, and we get stuck in there. I go to change
battery, but, during, I just stay inside the battery bay. Eddie, the man who unlock it and
let the truck move trailer away, I am not aware of it. Then when I come back from the
battery bay, I just - I didn't realise that - I didn't know that the trailer come back, return
to the dock, until Kristian said, "Who done it?" I just said, "Who done? That mean let
the spoilt milk pallet fall on the floor?" I say, "I did. I did," because I thought it just
stay there. I didn't realise it come back the second time, so Eddie just said that - look at
me, "Who done it?" I said, "I did," because I didn't see that move at all, but the first
time that has been locked, everything secure - lock and everything - and I load it at the
spot in there, and I go to change my battery and coming back. I state it all on the
statement there. On the statement, I have done on there.”
[52] The Applicant conceded that the forklift collision on 19 February was significant (see
Transcript PN177). He co-operated in the health and safety investigation that took place. He
denies that he was formally warned but was stood-down from forklift duties (PN231 –
PN236). There is a conflict of evidence on this point. Mr Rayner’s evidence was that he
prepared a written warning but it was not delivered:
“PN528
Now, the Commission has heard evidence today that Mr Tran was not disciplined for
his involvement in that incident. Could you please tell the Commission what your
view of that is?---On 27 February we re-convened with Mr Tran and also Mr Joseph to
review the outcome of our investigation, and, at that stage, it was clearly stated that Mr
Tran was to be given a warning, a final warning for his involvement in the incident on
– it was on 19 February. Subsequently that was written and given to the shift
supervisor but was not delivered.
. . .
PN532
MR WARNES: Mr Rayner, just picking up on what Mr Cooper just asked you, at
paragraph 18 and 19, you’ve just given evidence that Mr Tran was to be given a
warning letter for the conduct alleged against him on 19 February; is that
right?---That's correct.
And you said that you made it clear that he’d be receiving a warning letter on the 27th;
is that right?---Yes.
And then at paragraph 19 and just in your evidence just then you’ve said you prepared
a written warning to be given to Mr Tran. You did that?---Yes. That's correct.
Well, you did that on your computer, did you?---Actually I did it at home because of –
I had commitments that I had to leave work, so I did that at home, emailed a copy
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through to work, but due to the – it never arrived, so I don’t actually have a copy of
what I wrote.
So you emailed a copy from your home email address to someone at work?---To
work. No, to my email address at work. I printed a copy at home and signed it, but
the email, subsequently had someone try and find it for me but we are unable to find it.
Okay. So are you saying that that’s the reason why you haven’t attached this written
warning to your statement?---That’s correct. Yes, I gave the written warning to our
shift team leader to give to Mr Tran. It was not delivered.
So what you did, you prepared the witness statement at home, you then emailed it to
your work email account and printed out a copy?---No, printed it out at home.
At home?---Yes.
And so would you agree with me that there should be a copy on your work
email?---Yes, but it’s not – I had people check it and it’s not there.
And there should be a copy in your home email from the sent box?---From the sent
box. Yes.
There should be a copy there?---Yes.
And you also had a hard copy printed out at home?---Yes.
And yet when it came to preparing this statement you couldn’t find any copies of this
written warning?---Not the one that we printed out to give to Mr Tran.
Yes. Can I put it to you that the reason you couldn’t find that written warning is
because it didn’t exist?---It did exist.
And, in fact, you never actually told Mr Tran that he was going to get a warning, did
you?---Yes, sir. Definitely. When we had the review of the investigation on the
27th.”
[53] In any event, the 19 February warning letter could not be produced. On the balance of
probabilities, I cannot be satisfied that the Applicant received a formal warning for the
19 February incident. Mr Gavan’s evidence was that he was “reminded” about the 19
February incident once the 5 March investigation had commenced (Exhibit C7 paragraph 27).
Also, Transcript PN910 – PN921.
[54] The Respondent has established that the Applicant breached its safety policy and
practices on 5 March. However, I am not satisfied that this constitutes a valid reason for his
dismissal. I have come to this view because:
There is, to say the least, uncertainty about the status of the Respondent’s response to
the 19 February incident. At the highest level, the Applicant had received a verbal
counselling and had been stood down from forklift duties for a week while the
investigation took place. He had not received a written warning. When the 5 March
incident occurred he was driving forklifts.
Even though the Applicant breached policy, there were rational explanations for his
actions.
The Applicant was honest and contrite in co-operating in the investigation.
[55] The Applicant’s service with the Respondent, taking account casual employment, was
over ten years. He had a good work and performance record. Dismissal, in the circumstances,
was not a proportionate response to the breach.
[2015] FWC 5535
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[56] I accept that a comparison of differential approaches to employees needs to be
undertaken with caution (see: Wayne Darvell v Australian Postal Corporation [2010]
FWAFB 4082, Sexton v Pacific National (ACT) Pty Ltd (PR931440), Daly v Bendigo Health
Care Group (PR973305). However, both the Applicant and Mr Tiqui had long and good
service. Given that Mr Tiqui was the Leading Hand and therefore should be expected to
accept greater responsibility, it is hard to see that the Applicant should receive a harsher
punishment. The evidence is the Applicant was co-operative at all times.
[57] I find therefore that although there was a breach of the Respondent’s health and safety
policies and practices, it did not represent a valid reason for dismissal. In all the
circumstances, there were lesser punishments open to the Respondent which would have been
appropriate.
Notification of a Valid Reason
[58] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made. See Chubb Security Australia Pty Ltd v
Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000)
98 IR 137, 151 and in plain and clear terms, Previsic v Australian Quarantine Inspection
Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full
Bench of the Australian Industrial Relations Commission dealing with a similar provision of
the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to terminate
their employment in order to provide them with an opportunity to respond to the
reason identified. Section 170(3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.”
[59] In a relevant passage from Previsic at page 34 Holmes C articulates the requirement
for the reasons for the dismissal to be put to the Applicant:
“True it is that Mr. Previsic was made aware of those three grounds as part of a range
of other possible grounds prior to her determination, but at no stage were those
grounds put explicitly to Mr. Previsic by the delegate who was to make the
determination in the terms specified in the final determination until after she had made
her determination.
Finally an examination of the text of the first two grounds cited leads to the conclusion
that they are not specific. It is not clear on the plain meaning of the words what actions
Ms. Lawrence is referring to in each of those grounds. Again true it is that by sifting
through the letters and attachments sent to Mr. Presivic by Mr. Prothero in the first
instance and later by Ms. Lawrence it is possible to come to an understanding of what
those grounds meant to Mr. Prothero but it is not clear and explicit that Mr. Lawrence
accepted and adopted those interpretations unconditionally and fully as the basis of her
own deliberations and determination.”
[2015] FWC 5535
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[60] There was no argument in this case that the Applicant was not given the reason for his
dismissal. The Respondent set this out in the show-cause letter and the meetings of 13 and 17
March. The Applicant set out his response in writing on 16 March.
[61] Accordingly, I find that the Applicant was notified in accordance with s.387(b).
Opportunity to respond- s.387(c)
[62] An employee protected from unfair dismissal must be provided with an opportunity to
respond to any reason for dismissal relating to the conduct or capacity of the person. This
criterion is to be applied in a common sense way to ensure the employee is treated fairly and
should not be burdened with formality see RMIT v Asher (2010) 194 IR 1, 14-15.
[63] It follows that the Applicant had an opportunity to respond and did do so.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[64] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present.
[65] There was no breach of this section. TWU delegates were in attendance at the
meetings.
Warnings regarding unsatisfactory performance – s.387(e)
[66] As this was a summary dismissal, no performance warnings are relevant. I have
already noted the evidence with respect to safety policy breaches.
Impact of the size of the Respondent on procedures followed – s.387(f)
[67] Given the nature of the Respondent, this was not an issue.
Absence of dedicated human resources management specialist/expertise on procedures
followed – s.387(g)
[68] Experienced human resource specialists managed the Respondent’s investigation and
disciplinary procedure.
Any other matter that the FWC considers relevant
[69] Section 387(h) allows the Commission to consider any other matters it considers
relevant. These must be considered in the context of the object of Part 3-2 of the Act
contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and
the employee concerned”.
[70] I have decided to take account of the Applicant’s personal circumstances. He is 63
years old, English is not his first language and his wife is ill. It will be difficult for him to
obtain alternative suitable employment. His work and attendance record have been blameless,
[2015] FWC 5535
15
until this incident He co-operated openly and honestly with the Respondent’s disciplinary and
investigatory process.
[71] Having found that there was no valid reason for the dismissal, the factors I have taken
into account pursuant to s.387(h) support the finding that the dismissal was harsh, unjust or
unreasonable. The Applicant was not accorded “a fair go” in the sanctions imposed by the
Respondent in response to his actions. Accordingly, I find that the dismissal was unfair within
the terms of s.385.
Remedy
[72] Having found that the dismissal was unfair, I now turn to the appropriate remedy.
[73] Section 390 of the Act sets out the circumstances in which I may make an order for
reinstatement or compensation.
“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:
(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.”
[74] I have already dealt with the issues at s.390(1)(a)-(b) above. I am satisfied the
Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant
was dismissed unfairly. Accordingly, I am required to determine whether to order the
reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an
order for compensation if I am satisfied such an order is appropriate in all the circumstances.
[75] Reinstatement is the primary remedy and I can see no reason why it is inappropriate in
this case.
[76] There was no issue raised concerning the Applicant’s work attendance or attitude.
Prior to these two incidents, there was no issue with respect to his performance as a forklift
driver. Given his previous record and his attitude to the disciplinary process, I am confident
that he will be able to resume his previous role. I am sure that he has learnt his lesson and will
[2015] FWC 5535
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be more careful in the future. In my view, the Respondent can have confidence in his
adherence to company practices and procedures.
Conclusion
[77] I find the Applicant was protected from unfair dismissal, that his dismissal was unfair
and a remedy of reinstatement to his former position is appropriate. He claims maintenance of
continuity of employment and restitution of lost wages pursuant to s.381(2)(3)(4). The
Applicant has not worked since the dismissal. He was paid out his accumulated entitlements
and five weeks pay in lieu of notice. The re-crediting of entitlements is also claimed.
[78] I find that maintenance of continuity of employment is appropriate. However, the
Applicant should suffer some penalty in lost wages because of the breach of policy. There
was no evidence as to the amount received for untaken annual leave etc. I decline to order
restitution of lost wages between the dismissal and the date of this decision. The Applicant
should have his entitlements restored and not have to pay any amount back to the Respondent.
I assume there will still be some shortfall in lost wages. If there is any difficulty in
implementing this decision, the parties can provide details of the payments to the Commission
and the Order can be refined.
[79] In accordance with s.381(2) of the Act, I am further satisfied that each party has been
accorded a “fair go all round”.
[80] An order (PR571310) will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
T. Warnes, Transport Workers’ Union for the Applicant.
B. Cooper, paid agent with F. Milic for the Respondent.
Hearing details:
2015
Sydney:
July 8.
Printed by authority of the Commonwealth Government Printer
Price code C, PR570749
FSTHE FAIR WOR AUSTRALIA MISSION THE S
