| [2020] FWC 3924 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Patrick Stephenson
v
Metcash Trading Limited
(U2020/1706)
COMMISSIONER BISSETT |
MELBOURNE, 1 SEPTEMBER 2020 |
Application for an unfair dismissal remedy.
[1] Mr Patrick Stephenson (Applicant) was employed by Metcash Trading Limited (Metcash or the Respondent) in their warehouse in Laverton. He commenced in November 1991 and his employment was terminated on 10 February 2020 for misconduct relating to an incident in the warehouse.
[2] The Applicant has now made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). He seeks reinstatement to his position and payment for lost remuneration.
[3] Both parties were granted permission to be represented by a lawyer in proceedings.
[4] The submissions and evidence, including documentary evidence filed by the parties was collated into a single Court Book (CB). The Court Book was admitted into evidence and references to material in the Court Book is by page number. Further documentary evidence was adduced during the hearing.
[5] Oral evidence was given by witnesses who had filed witness statements in advance of proceedings.
[6] The Applicant worked in the Number 1 warehouse for the Respondent. There are a further 3 warehouses that form the “dry warehouse”. The warehouse contains rows of racking from floor to ceiling divided by aisles. There is a cross aisle that runs perpendicular to the racking aisles. 1
[7] There is another warehouse on site referred to as the ALM warehouse.
[8] The racking aisles are single directional aisles for electric pallet jacks (EPJs or “tuggers”) and multi-directional for forklifts. The cross aisle is multi-directional for all traffic with traffic required to stay on the left. The aisles in that part of the warehouse concerned are numbered B1, B2, B3, etc.
[9] There are a range of policies and procedures that apply in relation to work in the warehouse. Key extracts from these policies and safety presentations from toolbox meetings are set out below at [19].
[10] In operating a tugger, team members (or operators) are required to pick orders for dispatch. They keep in contact with the relevant supervisor for the allocation of work via the use of a system called “Talkman”.
[11] On 28 January 2020 the Applicant was involved in an incident in the warehouse. In brief, as he was exiting from aisle B3 and turning left into the cross aisle he made contact with another tugger being operated by Mr Viral P (referred to as Mr P 2 throughout this decision). That operator was driving in reverse (tines forward) to collect a pallet from the end of the racks immediately to the Applicant’s right. The collision resulted in the tugger being driven by Mr P locking up.
[12] On 28 January 2020 the Applicant was stood down on pay while an investigation took place.
[13] Arising from this incident the Applicant was given a letter of allegations on 30 January 2020. 3 That letter said, in part:
Allegations
We have commenced the investigation into this matter and are now in a position to formally present the allegations to you for your consideration and response. Specifically, it is alleged that:
• On 28 January 2020 at 7:01am, you have travelled down aisle B3 whilst operating an Electronic Pallet Jack (EPJ) and have approached the aisle exit as another team member was picking up a pallet in the crossway.
• You have failed to slow down, stop or proceed with caution as you approached the end of the aisle, resulting in a collision with the incoming EPJ.
• Your actions have breached the Electric Pallet Jack Operation Safe Work Operating Procedure (SWOP) which requires you to:
• Comply with other site safety/traffic rules
• Have your eyes in the direction of travel whenever you are moving
• Make eye contact with others and signal your intent especially around vehicles, mobile plant and people
These allegations, if substantiated, could amount to serious misconduct including breaches of the Metcash Code of Conduct, Electric Pallet Jack Safe Work Operating Procedure and site safety procedures as well as falling well short of acceptable behaviour of someone in your position.
[14] The Applicant provided his response to the allegations on 31 January 2020. 4
[15] On 4 February 2020 the Applicant was provided with a “show cause” letter. 5 The show cause letter indicated that the Applicant had received a formal written warning in February 2019, a formal written warning in July 2019 for misconduct in relation to a safety breach (the foot incident) and a final written warning in September 2019 for misconduct in relation to behaviours in breach of the Metcash Code of Conduct (the paper incident). The letter noted the response provided by the Applicant but expressed that he had not “provided an acceptable explanation for [his] behaviour.” The letter asked the Applicant to “show cause as to why [his] employment should not be terminated.”
[16] The Applicant responded to the show cause letter on 6 February 2020. 6
[17] On 10 February 2020 the Applicant was provided with a letter of termination of his employment. 7 That letter acknowledged the response of the Applicant to the show cause letter and said:
• Metcash notes the other team member was in in the cross aisle before you approached. As per site safety procedures, you are required to give way to traffic in the cross aisle. You should have stopped and waited for the path to be clear before proceeding, rather than assuming the path of the other EPJ.
• You acknowledge the team member was in the cross aisle in front of you. As such, the team member had right of way, and you should have proceeded with caution, only when safe, and maintained awareness of your surroundings.
• Throughout this process, you have continued to demonstrate a complete lack of acknowledgement or responsibility regarding this incident and have continued to place all responsibility on the actions of the other team member. Metcash is addressing the actions of the other team member with his employer and acknowledges that the actions of this team member played a role in the incident. Metcash does not accept that the actions of the team member caused the incident.
• You deny you have a disciplinary history or conduct that demonstrates a disregard for your safety or the company’s policies or procedures, and state that there is no pattern or history of similar incidents occurring. This is simply not true. Metcash reminds you that in the last 12 months, you have received formal written warnings for breaches of the Metcash Equal Employment Opportunity, Discrimination Bullying and Harassment Policy, Dry Grocery Assembler Voice Pick Standard Operating Procedure and Metcash Code of Conduct. This demonstrates to Metcash a pattern of repeated misconduct and an overall disregard for company policy and procedure.
• Your interpretation of the Enterprise Agreement is not correct. The relevant clause states that “warnings will be removed from the record when a period of nine months has elapsed since the last warning was given.” As nine months had not elapsed between each warning given last year, all three are valid. Further, you are reminded that the warnings procedure in the Enterprise Agreement covers “employee’s attendance, punctuality of attendance or work performance.” Your conduct (and the conduct resulting in your previous warnings) falls outside of these areas.
• You state that you don’t believe Metcash has considered your significant length of service. Metcash acknowledges that you have been an employee for over 20 years. It is disappointing that, notwithstanding your significant service, your actions in the last 12 months have forced Metcash to come to this decision. To this end, we note that it is your view that you have done nothing wrong and should not receive any disciplinary outcome.
[18] The letter advised that the Applicant’s “conduct and…responses during the investigation, demonstrates…a disregard for your own safety and our policies and procedures” and that for this reason the Respondent could not trust the Applicant to work in a safe and proper way. As a result of this the Respondent notified the Applicant that his employment was terminated.
[19] As mentioned above there are a range of policies and procedures relevant to the consideration of the application. The relevant parts of the policies and procedures are set out below:
General Safe Use:
1. …
10. When approaching a blind corner or exiting / entering a doorway, sound the horn and drive slowly.
11. Slow down when changing direction or when on wet or greasy surfaces.
12. …
13. …
14. Do not dismount from an EPJ until it has come to a complete stop. DO NOT COAST.
15. …
APPENDIX 1: Safe Traffic Management Plan Requirements
Safe Habits: Never Assume Right of Way
• Establish eye contact.
• Use hand signals to verify who has right of way, prior to proceeding.
• If you can’t see, don’t move.
Use hand signals to indicate intended direction of travel.
Confirmation must be received, prior to proceeding.
Use hand signals to confirm someone else has right of way. Or is safe to proceed.
Signal for someone to wait, by holding hand up to say “Stop.”
Acknowledge a hand signal with a thumbs up.
EPJ operators are permitted to reverse, only in the following situations:
• When taking an EPJ off charge
• When picking up an UFO
• When separating pallets to wrap
• When placing a pallet into a staging lane
• When loading a vehicle
• When placing pallets onto automated pallet wrappers.
1. …
25. SAFETY REQUIREMENT – Maintain a safe distance from other machinery while travelling.
26. SAFETY REQUIREMENT – Stop at end of aisles sound horn and give way to all cross-aisle traffic.
27. …
28. …
29. SAFETY REQUIREMENT – Ensure EPJ is stopped before getting off it.
30. …
General site rules:
Toot in and out of doorways, around corners
Give way to pedestrians
Maintain a 2 pallet bays distance from other mobile plant
Do not jump off moving plant – ensure it comes to a complete stop.
5.2.2 New Equipment
Before any mobile plant is brought on site a Risk Assessment must be provided by the supplier of the equipment and a risk assessment for the use of the equipment is to be conducted by the Site manager or nominated person. No mobile plant is permitted on site without a Risk Assessment.
…
5.5 Controlling Hazards
In order to minimise the risk of injury to people, the following precaution shall be taken:
• Mobile plant shall be made clearly visible…
• Reversing beepers shall also be fitted to all mobile plant where assessed
• …
11. Obtains Pallets from the “Dispensing Machine”
…
13. Traffic rules
• One-Way Aisles
• Give Way to Cross Aisle traffic
• No reversing
…
14. …
SAFE HABIT 1
Always walk within the confines of a walkway…
SAFE HABIT 2
Eyes in the direction of travel whenever you are moving. Make eye contact with others and signal your intent especially around vehicles and mobile plant or people
The 2019 SWOP was provided to employees which “outlines the Metcash safe and approved work method for Electric Pallet Jack Operation in a retail and warehouse environment.”
In the last few weeks we have had 3 serious incidents on site. A contributing factor in all of them has been that team members have not made EYE CONTACT with each other.
• JUST MAKE EYE CONTACT AND EITHER WAVE, SAY HI OR GIVE A THUMBS UP
• …
[20] Evidence was given in proceedings by:
• Mr Stephenson (Applicant);
• Mr Steve Vassallo, Shop, Distributive and Allied Employees Association (SDA) organiser;
• Mr Mark Van den Oever, Acting Warehouse Manager – Dry Grocery and National Distribution Centre (NDC), Laverton;
• Ms Kristina Sachdeva, Warehouse Supervisor, Laverton; and
• Ms Emma Addison, Logistic Operations Manager, Metcash Victoria.
[21] Mr Stephenson gave evidence that on 28 January 2020 at about 7.00am he was driving a tugger up aisle B3 towards the cross aisle. About 2-3 sections from the cross aisle he looked left and saw a tugger in aisle B4 heading down that aisle away from the cross aisle (the direction the tugger was pointed). He looked to the right at about the same place and then turned his head back to straight in front. He thought he entered the cross aisle 3-4 seconds later.
[22] The Applicant said that when he saw the tugger in aisle B4 he assumed it was moving down the aisle away from the cross aisle as he knew the tugger was subject to the direction rule in the aisle.
[23] The Applicant said that, as he approached the cross aisle, he was slowing down but did not attempt to stop. At the time his tugger and that driven by Mr P collided he was in the process of moving into the cross aisle to go down aisle B4 (the cross aisle incident).
[24] When his tugger and the other hit each other the other tugger “locked out” but his did not. He could not see any damage to the tuggers. He reported to Ms Sachdeva and had a short conversation about what had happened. Ms Sachdeva agreed that he should complete the order he was picking at the time. Once this was done he put the tugger in the battery room and had a drug and alcohol test. After the test he was told by Ms Sachdeva to go back to his work. He finished his scheduled work at 11.00am. As he was going to his locker he was paged to go to Mr Van den Oever’s office when he was told he was being stood down on full pay while an investigation occurred into the cross aisle incident.
[25] The Applicant attended a meeting on 30 January 2020 along with his representative where he was told that the Respondent did not consider his conduct met the Respondent’s standards, that he was under investigation and the Respondent wanted his version of the incident. The Applicant agreed that he was given a letter. He was shown the CCTV footage of the incident and requested a copy which was provided. He provided a response to the investigation on 31 January 2020.
[26] On 4 February 2020 the Applicant attended a further meeting attended by Mr Van den Oever and Ms Addison. Mr Vassallo from the SDA attended with the Applicant. He said that Ms Addison read out a letter and said that he had 24 hours to explain to them why his employment should not be terminated. He provided his response to the show cause letter on 6 February 2020.
[27] On 10 February 2020 the Applicant attended a further meeting again accompanied by Mr Vassallo. Mr Van den Oever and Ms Addison attended for the Respondent. Ms Addison read out a letter and advised the Applicant that his employment was being terminated. Ms Addison gave him a copy of that letter.
[28] The Applicant acknowledged that he was aware of the relevant policies and procedures (outlined above) although could not, in all cases, recall the specifics of when the policy or procedure had been explained (e.g. specific dates of toolbox meetings etc).
[29] The Applicant agreed that the notes he wrote of the incident soon after it occurred 17 did not mention that the other tugger was reversing but said that he did not invent his evidence in his witness statement only after viewing the CCTV footage.
[30] The Applicant said that he believed the operator of the other tugger was at fault in causing the collision as he was reversing into the cross aisle and was collecting a pallet from the end of the aisle and not the pallet dispenser.
[31] The Applicant denied that, on seeing the tugger in the cross aisle, he “decided to take a chance by pulling into the cross aisle” as put in Ms Addison’s statement.
[32] The Applicant said that the Safety Requirement item 26 – which requires that tuggers stop at the end of aisles – is not required to be observed in the warehouse.
[33] The Applicant does not agree with Ms Sachdeva’s account of the discussion he had with her immediately following the incident.
[34] The Applicant has been a trainer of new employees in the last 12 months of his employment, and at earlier stages of his employment with the Respondent.
[35] With respect to the foot incident which led to the formal written warning of July 2019, the Applicant, on viewing the video of the incident, 18 said that he was sorry he had hurt his colleague’s foot and that the incident occurred because he did not leave enough room as he pulled out to the left. The Applicant said that when he was moving to get off the tugger it was moving but by the time he got off it had come to a stop. He accepted that the incident was serious and that he should have been more cautious. The Applicant said he did not sign the acknowledgement in relation to the incident as he was considering disputing the outcome as he did not consider that the incident warranted a written warning.
[36] With respect to the paper incident 19 in September 2019 which led to the second safety breach written warning, the Applicant said he now felt silly about the incident and was remorseful for his actions. He gave evidence that the worker he threw the piece of paper at was a friend and they often joked about. The Applicant agreed that, contrary to his written evidence, the CCTV footage of the incident did not show the other team member ducking.
[37] The Applicant said that he had initially refused to sign the acknowledgement in relation to the warning as he had been advised by his union representative that he did not have to do so. He agreed however that a warning was appropriate, he took the warning seriously and understood the consequences of a second warning.
[38] The Applicant gave evidence that his father had died in workplace accident which made him very aware of safety at work
[39] Mr Vassallo is an organiser with the SDA, a position he has held since 2013. One of the sites he is responsible for is that of the Respondent. Prior to working for the union Mr Vassallo worked for the Respondent at the Laverton site as a forklift driver, picker and leading hand. When he worked at the site Mr Vassallo was also an Occupational Health and Safety (OHS) representative and union delegate.
[40] Mr Vassallo said that over his time working with the Respondent there were some changes in operating procedures but there were some rules with respect to the tuggers that did not change. These were that you drive on the left in the cross-aisle, you drive one-way down the racking aisles and you give way to traffic in the cross aisle.
[41] He further said that reversing a tugger is against the rules except when collecting a pallet from the pallet machine or picking up an unfinished order.
[42] Mr Vassallo agreed that he had attended each of the meetings of the Applicant with representatives of the Respondent.
[43] Mr Vassallo said that in the meeting of 4 February 2020 Ms Simmonds said that the Applicant was not looking in the direction of travel at the time of the incident and that Mr Vassallo explained to Ms Simmonds that “looking in the direction of travel rule was written to stop the guys reading their pick sheets while driving, it wasn’t written to stop people checking left and right to make sure the intersection was clear.” Further, he said that the Applicant “would have looked left through the racking to make sure it was clear before he looked right to make sure no one is coming from the right. You slow down, look right, and enter the intersection, that’s how give way works. What Pat did, everyone does…” Ms Addison said that “the other driver was in the cross aisle before Pat” to which Mr Vassallo said “he [the other driver] did the wrong thing to get into that cross aisle. If he hadn’t done the wrong thing in the first place we would not be sitting here today.” 20
[44] Ms Sachdeva is the Warehouse Supervisor at the Respondent’s Laverton North Distribution Centre.
[45] Ms Sachdeva gave evidence that the CCTV footage of the incident on 28 January 2020 showed Mr P reversing out of aisle B4 and the Applicant coming out of aisle B3. Whilst she agreed that both parties were at fault, she said that the Applicant should have initiated eye contact, should have stopped and should have let Mr P finish what he was doing prior to proceeding.
[46] Ms Sachdeva agreed that it was difficult to tell from the CCTV footage if the Applicant had slowed down coming to end of aisle B3 but believed that he should have seen Mr P. She did not consider he was operating with caution. She did, however, agree that if Mr P had not reversed the incident would not have happened. She said that the Applicant broke the rules and made a poor decision. 21
[47] Ms Sachdeva agreed that a tugger operator could not have their eyes straight ahead and, at the same time, be aware of their surroundings.
[48] Ms Sachdeva said that the Applicant came to her office and advised her that Mr P’s tugger had locked out but his own was fine. She said that the Applicant did not tell her that he had hit Mr P’s tugger but that Mr P had advised her of this.
[49] Ms Sachdeva said that she had the tuggers checked after the incident. Whilst she agreed that it was necessary to consider if the Respondent was at fault for the incident she did not consider it necessary to have an Incident Cause Analysis Method Investigation Report (ICAM report) completed for this purpose. 22
[50] Ms Sachdeva said that the “Engineered Standards” are important to her role as she is performance managing. She said that she has seen the Engineered Standards and does not consider that they are difficult to meet. She said that, to her knowledge, the Engineered Standards provide time for all of the things that employees are required to do. Ms Sachdeva agreed that compliance with the Engineered Standards was taken into account in awarding overtime shifts and in awarding shifts to casual employees and that they provided an incentive for employees who might want overtime and those who want more shifts to do things the quickest way.
[51] Ms Sachdeva agreed that a tugger operator is required to take pallets from the pallet dispenser but that, at the time of incident, Mr P was getting a pallet from the end of the racking aisle. Ms Sachdeva did not consider he was doing it out of a need to meet the Engineered Standards (rather she thought through laziness) although agreed that failure to meet the Engineered Standards effects the time of the shifts allocated to casual employees. 23
[52] Ms Sachdeva also:
• agreed that the tugger did not have a reversing beeper and that a reversing beepers on the tuggers could have prevented the incident;
• agreed that there was no requirement to stop at the end of the aisle on the cross-aisle;
• said tuggers lock out regularly including when they go over a bump or a pallet board.
[53] Mr Van den Oever is the acting Warehouse Manager – Dry Grocery and NDC at the Respondent’s Laverton site.
[54] Mr Van den Oever gave evidence of the training offered to new employees. He said that the training for casual employees was the same as that given to on-going employees. Training was for two days with further training provided as necessary. He considers the training as adequate. Mr Van den Oever agreed that the training, including that for Mr P, included that reversing of a tugger is not permitted.
[55] Mr Van den Oever said that the toolbox talk of 13 March 2019 included matters referred by the national safety team to be included in local toolboxes. The message of 13 March 2019 was about safe habits – eyes in the direction of travel, signalling when around other plant, maintaining a safe distance, etc. He said that keeping eyes in the direction of travel was designed to stop collisions.
[56] Mr Van den Oever said that any traffic in the cross aisle has right of way over anyone coming out of an aisle and entering the cross aisle. Mr Van den Oever said that, on approaching the cross aisle, the Applicant should slow down, approach with caution, check left then right then turn into the cross aisle if safe to do so. He said that if the Applicant did not look left after he was at the spot marked “X” 24 on the warehouse map that was not an adequate final check. While agreeing that Mr P reversing into the cross aisle was wrong, Mr Van den Oever said that once Mr P was in the cross aisle he had right of way and the Applicant should have ensured it was safe to move into the cross aisle. For this reason the Applicant was in the wrong.
[57] Mr Van den Oever said that if there is traffic in the cross aisle an operator is required to stop, but if there is none the operator is not required to come to a complete stop. He agreed that perhaps thousands of times a day an operator failed to stop at the end of the aisle on reaching the cross aisle. He agreed that one of the reasons the Applicant had his employment terminated was because he failed to stop at the cross aisle. 25
[58] Mr Van den Oever agreed that the CCTV footage of the cross aisle incident provides no basis to conclude that the Applicant did not slow down as he approached the cross aisle because you could not see him until the moment when he reached the cross aisle. 26 He agreed that an indicator of caution would be if the Applicant looked around as he approached the cross aisle. He agreed that it was difficult to tell from the CCTV footage if the Applicant was looking around but said that if the Applicant had been cautious the incident would not have occurred and the contact between the Applicant’s and Mr P’s tuggers would suggest the Applicant did not give way.
[59] Mr Van den Oever agreed that tugger operators are meant to make eye contact but that an operator should have eyes in the direction of travel. 27 He also agreed that it is not possible to look left and right and keep your eyes in the direction of travel at the same time. He agreed that a tugger operator is required to look left and right before entering the cross aisle but cannot do that whilst moving forward and that there is no requirement to stop at the cross aisle.28
[60] Mr Van den Oever agreed that, for a tugger operator to signal using their hands, they have to take their hands off the controls and that this would happen hundreds of times a day and operators are not disciplined for doing so but that this was a reason for which the Applicant was disciplined. 29
[61] Mr Van den Oever gave evidence that in September 2019 a new SWOP 30 (the 2019 SWOP) was distributed to the workforce at a toolbox meeting. He said that, while the 2019 SWOP was in operation at the time of the cross aisle incident involving the Applicant, so was the 2015 SWOP and the Applicant’s conduct was assessed against the 2015 SWOP.
[62] Mr Van den Oever said that at first he assessed the incident as relatively minor 31 and considered a final warning the appropriate penalty. He was, however, unsure how to proceed and, after seeking advice from People and Culture, issued the Applicant with a show cause letter but did so to get more information.
[63] Mr Van den Oever said that the Applicant was dismissed because he failed to acknowledge his part in contributing to the incident. He said that if there had been no prior incidents the outcome would have been different. Mr P was issued with a fist warning arising from the incident.
[64] Mr Van den Oever agreed that sometimes incidents in the workplace can be the fault of the Respondent and that this will affect the disciplinary outcome. He acknowledged that an ICAM report analyses the causes of an accident. The degree to which the Respondent contributed to a specific incident is reflected in the ICAM report in evidence. 32
[65] Mr Van den Oever said that an ICAM report is produced where there is a “high potential incident”. An ICAM report was not done in relation to the cross aisle incident and the investigation into the cross aisle incident only considered the allegations put to the Applicant and did not consider the responsibility of the Respondent for the incident.
[66] Mr Van den Oever agreed that tugger lockouts occur about weekly and that not all lockouts are caused by tuggers colliding. He agreed that, following the cross aisle incident, an assessment was carried out on one of the tuggers involved in the incident 33 but not on both.
[67] Mr Van den Oever agreed that tuggers have no reversing beepers but said they do have a horn. He said that the provisions of SWSP – Mobile Plant Safety (see paragraph [19] item 4 above) which provides that “reversing beepers shall also be fitted to all mobile plant where assessed” only applies where the mobile plant is assessed as requiring a reversing beeper.
[68] Mr Van den Oever said that the Engineered Standards were designed to measure productivity. Overtime shifts are not awarded taking into account performance against the Engineered Standards but is based on time wasting which he agreed was measured as part of the Engineered Standards. The awarding of shifts to casual employees takes into account time wasting as measured by the Engineered Standards. He agreed that not wasting time for a casual employee effects whether they get another shift.
[69] Mr Van den Oever agreed that a tugger operator is meant to get an empty pallet from the pallet dispenser and to do so would not be considered time wasting.
[70] Mr Van den Oever said that he did not put to the Applicant the allegation that he saw Mr P in the cross aisle and “took a chance” in entering the cross aisle.
[71] Mr Van den Oever said that the “foot incident” in July 2019 resulted in a first warning to the Applicant. He said that although there was an already existing warning given to the Applicant in relation to inappropriate comments made to another employee, this did not result in the foot incident being a second warning as it was the first safety related incident the Applicant was involved in. The “paper incident” in September 2019 resulted in a second warning to the Applicant. He said that the concern was that the Applicant threw something at another operator who was operating plant at the time.
[72] Ms Emma Addison is the Logistics Operation Manager Victoria for the Respondent. She commenced in this role in December 2018 and says that she has been “driving cultural change to Metcash’s approach to work health and safety” by educating employees about work health and safety including in toolbox meetings, taking a more consistent approach to work health and safety, developing a culture where employees report incidents and reviewing each safety incident to determine what further action should be taken to control safety risks.
[73] Ms Addison was the decision maker in the decision to terminate the Applicant’s employment.
[74] Ms Addison referred to safety procedures of the Respondent including:
• SWOP;
• Dry Grocery Assembler Voice Pick Standard Operating Procedure (SOP);
• SWSP – Traffic Management; and
• SWSP – Mobile Plant Safety.
[75] She said that where there is potential breach of any of these procedures, warehouse management will generally investigate the potential breach by speaking to the employees concerned, taking written statements of the account of the incident and reviewing CCTV footage of the incident. She said that she is generally kept informed of such investigations and will become involved if the matter is more complex or where formal disciplinary action is being considered.
[76] Ms Addison said that the Engineered Standards set the timing for all tasks taking into account the SOP and that the Standards built in breaks and allowances for congestion. She said that an employee working at 100% is picking “on time” in accordance with the SOP. She said that the Standards are used to plan labour requirements given the picking requirements for the day. The Standards were last reviewed in December 2019/January 2020 following a “delay” study but that no changes were made.
[77] Ms Addison said that the ICAM report in evidence related to a racking incident in the ALM warehouse which is not where the Applicant works. An ICAM report was done in that instance as it was a high potential incident. Ms Addison said that the Incident Analysis on page 15 of the ICAM report was specific to the ALM. The ICAM report identified a number of contributing factors to that incident including inadequate training. Ms Addison agreed that the employee involved in the incident which led to the ICAM report did not have his employment terminated but said that was because the incident was found to be the Respondent’s fault and the worker concerned was blameless. The ALM warehouse is leased from the NDC, houses liquor and is a distinct part of the Laverton site.
[78] An ICAM report was not conducted in relation to the cross aisle incident the Applicant was involved in as the incident was not deemed to be a high potential incident. Ms Addison said that, while an ICAM report examines the underlying cause of an incident, an investigation (without an ICAM report) would still be very thorough including examining the root cause as to why the incident happened. She said that this was done in relation to the cross-aisle incident.
[79] Ms Addison said that the root cause of the cross aisle incident was that the Applicant “didn’t follow a safety direction, he chose to take that action at that time causing the collision. It was a…human decision”. 34
[80] Ms Addison agreed that it was “plausible” that if the Applicant had seen Mr P he would have avoided the collision. 35 Even though Mr P’s tugger was not fitted with a beeper Ms Addison said that the Applicant should have been aware of his surroundings.
[81] Ms Addison:
• Said that you can see on the CCTV footage of the cross aisle incident what the Applicant did when he got to the cross aisle but you only saw him for a second or two;
• Agreed that the CCTV footage does not show what the Applicant did prior to getting to the end of the aisle;
• Agreed that there was no evidence or CCTV footage to contradict the Applicant’s statement that he identified Mr P driving the tugger and concluded Mr P was following the rules for tuggers and not reversing in aisle B4; and
• Agreed that, even if the Applicant saw Mr P in aisle B4 before the Applicant reached the end of the aisle B3, she considered that he did not look again prior to proceeding when he reached the cross aisle.
[82] Ms Addison said that while it could not be seen on the CCTV if the Applicant had slowed down at the end of the aisle, if he had done so and proceeded with caution the incident would not have occurred. Ms Addison agreed that you cannot tell where the Applicant was looking at the point of collision and that the only basis on which it could be concluded that the Applicant did not proceed with caution was that the incident occurred.
[83] Ms Addison said that an employee could look in the direction of travel, make eye contact with other operators, look left and right when approaching the cross aisle and be aware of surroundings. She said such things could be done sequentially and by using peripheral vision. She said you did all of those things while driving a car but also that you could not look in the direction of travel and look left and right at the cross aisle at the same time. 36
[84] Ms Addison agreed that the CCTV footage does not show what the Applicant saw.
[85] Ms Addison agreed that the SWOP relied on in the dismissal of the Applicant is that from the 2015 SWOP and not the 2019 SWOP provided at the toolbox meeting in September 2019. By reference to the letter of allegations given to the Applicant she said that:
• Having your eyes in the direction of travel while moving is not in the 2015 SWOP; 37 and
• Making eye contact with others and signalling intent was not in the 2015 SWOP. 38
[86] In these respects Ms Addison agreed that the allegations (at least in relation to breaches of the SWOP) were wrong.
[87] With respect to the Safety Requirements, Ms Addison said that they did apply to the Applicant but that the requirement to stop at the end of the aisle was a “national standard” and “each site would have a different view” but that a “give way of all cross aisle traffic is the important thing”. 39 Ms Addison agreed that people do not stop at the cross aisle but said they would take the appropriate caution and look both ways.
[88] Ms Addison said that the Applicant was dismissed for his conduct that led to the collision in the cross aisle. She agreed that maybe thousands of times a day employees did not stop at the cross aisle and are not dismissed but that other people are not colliding with tuggers.
[89] On the SWSP – Mobile Plant Safety rules Ms Addison said that a risk assessment of the tuggers was done and, in accordance with that, beepers were not required to be fitted and it was determined that the horn was adequate. Ms Addison agreed that if there was a reversing beeper on the tuggers it is possible the Applicant would have heard Mr P reversing his tugger.
[90] Ms Addison said that:
• She did not consider the Applicant was treated more harshly than Mr P as the Applicant had a number of existing safety breaches;
• The Applicant was treated differently to the pedestrian involved in the forklift incident 40 because the Applicant had progressive disciplines for safety breaches;
• The Applicant was treated differently to the forklift driver involved in the incident with the pedestrian 41 as the Applicant had other safety breaches;
• The Applicant was treated differently to the driver who put a pallet down in front of another worker 42 as it would have been considered in its own right and it was decided, in that incident, that counselling was the appropriate action;
• The racking incident (to which the ICAM report relates) 43 resulted in no action against the driver because, while he was at fault, he was blameless due to little evidence of training and lack of supervision on the floor, and that situation was different to that of the Applicant;44
• With respect to the wall incident 45 while it involved a person with a long disciplinary history the person was given the benefit of the doubt because it appeared that training was inadequate. Whilst that person had a disciplinary history the Applicant’s disciplinary history was more recent.
[91] Ms Addison said that Mr P was adequately trained and had received thorough training but chose not to follow the safety rule of not reversing a tugger.
[92] Ms Addison said that the Engineered Standards are a means of managing labour but are underpinned by the Safe Work Operating Procedures and Safe Operating Procedures. They are not about doing things quickly but rather following the process correctly.
[93] The Applicant submits that the only direct evidence of what happened at the cross aisle is that given by him and that the Respondent relies on what it says the Applicant failed to do.
[94] The Applicant says that he was driving down aisle B3 intending to turn left into the cross aisle and then proceed down B4. He slowed down as he approached the cross aisle as he needed to check to the left and the right. He did this by looking through the racking to his left where he has a partial view of the cross aisle and aisle B4 through the racking. On looking left he saw Mr P on a tugger facing down aisle B4. The Applicant knew that tugger was subject to the tugger rules of not reversing in an aisle or out of an aisle and so thought, reasonably, that Mr P was travelling down B4 away from the cross aisle. The Applicant saw nothing else to his left to indicate any traffic in the cross aisle from that direction.
[95] The Applicant then looked to his right and proceeded unaware that Mr P had reversed into the cross aisle. The tugger does not have a reversing beeper so there was no audible sign that the tugger of Mr P was reversing. Mr P reversed his tugger out of aisle B4 and across aisle B3 the Applicant was coming out of, to pick up a pallet at the end of the racking between aisles B2 and B3.
[96] The Applicant’s evidence is that he had little time between him entering the cross aisle and the collision of the tuggers.
[97] The Applicant says that the CCTV relied on by the Respondent is blurry, grainy, movement is distorted and the footage does not run smoothly. Objects “appear” without it being apparent how they moved into vision. Speed, movement and fine detail are not obvious. The Applicant and his tugger become visible at about 31 seconds into the CCTV and the collision happens at 33 seconds. What cannot be seen from the CCTV footage is where the Applicant’s eyes are, what his body language is or how fast he is going. The CCTV footage does not show the conduct alleged to have occurred.
[98] If the Applicant’s version of what did occur is accepted then there is no valid reason for dismissal.
[99] The Applicant submits that a reason for dismissal will be valid because the conduct relied on did occur and that conduct justified dismissal. He says that the onus is on the Respondent to establish both of those things. However, not every established breach of policy will constitute a valid reason for dismissal.
[100] The Applicant submits that the Respondent’s witnesses were confused as to which policies applied to the Applicant. Both Ms Addison and Mr Van den Oever said that the allegations were put to the Applicant on the basis of the SWOP of June 2015 (attached to their written witness statements) but that allegations specified in the letter of allegations to the Applicant arose from the 2019 SWOP provided to employees at the September 2019 toolbox meeting. The Applicant says that management were not clear on which policy applied but the Applicant’s job depending on him knowing.
[101] The Applicant also said that the SOP requirement that tuggers stop at the end of an aisle was not a requirement. Rather an operator was required to look left and right and, if nothing was coming, could proceed into the cross aisle. However, the Applicant was dismissed for reasons including a failure to follow this requirement. A decision to terminate employment for not meeting a safety requirement no-one else is required to adhere to in the same circumstances is capricious.
[102] The Applicant further submits that the failure to fit tuggers with reversing beepers was a direct breach of the Respondent’s SWSP – Mobile Plant Safety and a breach of the Occupational Health and Safety Act 2004 (Vic) (OH&S Act) and the Occupational Health and Safety Regulations 2017 (Vic) (OH&S Regulations).
[103] The Applicant submits that the Respondent claims that his failure to “slow down, stop or proceed with caution” was a breach of policy and that this breach justified the dismissal because of its consequence – that is, the incident with Mr P. The Applicant submits however that he did not cause the incident. He says that Metcash caused the incident by failing to fit Mr P’s tugger with a reversing beeper. Had the tugger been so fitted the Applicant would have heard the sound and would have been alert to the fact that Mr P was reversing. The Respondent’s failure to fit beepers and, therefore, its breach of the OH&S Act and its SWSP – Mobile Plant Safety, therefore caused the incident.
[104] The Applicant submits that the Respondent also caused the incident by incentivising Mr P through the Engineered Standards (which effects shift allocation) to reverse and collect a pallet from the end of the aisle – both of which are contrary to rules. The Applicant also says that the Respondent caused the incident by not ensuring Mr P had received adequate training. The Applicant therefore submits that by Mr P reversing out of aisle B4 and crossing aisle B3 to collect an empty pallet he breached clauses 62 and 63 of the Safety Requirements, his training and the site safety rules. He says that, had Mr P not done so, the incident would not have occurred.
[105] By not undertaking an ICAM report the Applicant says that the Respondent failed to determine the cause of the incident. Such treatment was different to the employee involved in the racking incident (who was ultimately determined to be blameless). In this regard the Applicant submits that the Respondent’s decision to dismiss the Applicant was capricious.
[106] The Applicant breaks down the allegations set out in the letter to the Applicant of 30 January 2020 into seven components. These are that:
(i) The Applicant failed to slow down as he approached the cross aisle;
(ii) The Applicant did not proceed with caution as he approached the cross aisle;
(iii) The Applicant did not stop as he approached the cross aisle;
(iv) The Applicant didn’t have his eyes in the direction of travel as he approached the cross aisle;
(v) The Applicant did not make eye contact with Mr P;
(vi) The Applicant did not signal intent as he approached the cross aisle; and
(vii) The Applicant “took a chance” 46 on entering the cross aisle.
[107] I set out below the Applicant’s submissions in relation to each of these.
Failed to slow down
[108] The Applicant says that the CCTV footage tells nothing of the Applicant’s speed, his relative speed, or whether he slowed down on approaching the cross aisle because the Applicant is in the frame for a very short space of time and the video quality is poor. Mr Van den Oever, Ms Sachdeva and Ms Addison all accepted that the CCTV footage provided no basis to conclude that the Applicant failed to slow down.
Failed to proceed with caution
[109] The Applicant says that whether or not the Applicant proceeded with caution is a matter of fact concerning his mind. He says that Ms Sachdeva, Mr Van den Oever and Ms Addison all say that the Applicant should have seen Mr P and slowed down or stopped. Ms Sachdeva and Mr Van den Oever provide no basis for their conclusions and Ms Addison cannot explain why she concluded the Applicant did see Mr P.
[110] The Applicant gave direct evidence that he approached the end of the aisle and looked for traffic from the direction he thought it would come from, which was his right, and his direct evidence should be preferred to that of the Respondent’s opinions.
Failed to stop
[111] Mr Van den Oever and Ms Addison both agreed that there is no requirement to stop at the cross aisle and, in this respect, clause 26 of the SOP is not complied with and has never been complied with at Laverton. For this reason the Applicant submits it would be capricious to dismiss him on this basis.
Failure to have eyes in the direction of travel; failure to make eye contact; failure to signal intent
[112] The Applicant says that it is not possible to comply with each of these requirements at any one time. If each of these requirements exist at the same time wherever the Applicant was looking the Respondent could find a breach of its requirements.
[113] In addition the Applicant submits that the 2019 SWOP requires both that an operator have both hands on the controls and that they use hand signals to indicate intent or acknowledge others. This means that for Mr Stephenson to comply with one requirement he would be breaching another.
[114] Breaches of these provisions, the Applicant submits, would happen hundreds, maybe thousands of times a day.
[115] The Applicant says to single a person out for such breaches is capricious. Further the Applicant submits that the requirements cannot be considered reasonable and a breach, if it did occur, could not form a valid reason for dismissal.
The Applicant “took a chance”
[116] The Applicant denies that he saw Mr P in the cross aisle and says he did not “take a chance”. He submits that the CCTV footage contains nothing to indicate where his head was pointing such that there is any evidence contradicting his direct evidence. Further, the Applicant submits that he would not take a chance in such a manner having lost his father to a workplace accident.
[117] For these reasons the Applicant submits that there was no valid reason for his dismissal.
[118] The Applicant agrees that the allegations were put to him and he was given an opportunity to respond except for that raised in the evidence of Ms Addison that he “took a chance”.
[119] The Applicant says that he was not refused a support person.
[120] The Applicant submits that the dismissal did not arise from unsatisfactory performance.
[121] The Applicant submits that, given the size of the Respondent, the Commission can expect nothing less than exemplary procedural fairness from the Respondent who has People and Culture (human resources) expertise and in-house legal expertise. He submits that the Commission should put weight on the failure of the Respondent to put the “took a chance” allegation to him.
[122] With respect to other matters that the Commission should take into account, the Applicant submits that I should consider:
(i) That the Applicant never intended the collision to occur and that Mr P was in breach of rules;
(ii) That the Applicant reported the incident;
(iii) That the Respondent does not comply with its own procedures;
(iv) That the Applicant is an older worker with 28 years of service with the Respondent and that he will find it difficult finding alternative employment;
(v) The Applicant has been treated less favourably than:
a. Mr P who was given a warning in relation to the cross aisle incident;
b. The pedestrian involved in an incident with a forklift driver (who received a first written warning)
c. The forklift driver in the incident with the pedestrian (who received a first written warning);
d. The incident where a forklift driver placed empty pallets in the pathway of a co-worker (which resulted in formal counselling)
e. The operator involved in straightening of pallets using the wall (which resulted in formal counselling)
f. The forklift driver involved in the racking collision (which resulted in a record of discussion)
[123] The Applicant submits that his dismissal was therefore harsh, unjust or unreasonable and hence unfair.
[124] The Applicant seeks reinstatement.
[125] The Respondent submits that the decision was made to dismiss the Applicant following a series of safety breaches despite the shared culpability of Mr P for the incident and the Applicant’s 28 years’ service.
[126] The Respondent submits that it had a valid reason to dismiss the Applicant based on safety breaches of July 2019 (the foot incident), September 2019 (the paper incident) and the cross aisle incident in January 2020. The Respondent also says that the cross aisle incident, in and of itself provides a valid reason for dismissal.
[127] The Respondent submits that I should accord non-compliance with safety procedures significant weight in my decision in determining if there was a valid reason for dismissal. Further it submits that conduct that arises from carelessness, inattentiveness, deficient concentration or the lack of application of learned rules is sufficient to support a finding of a valid reason for dismissal.
[128] With respect to the foot incident, the Respondent submits that the incident resulted in an injury to a co-worker. It says that the Applicant refused to acknowledge the warning and did not consider the incident “warning worthy” 47 despite acknowledging the injury that occurred and that he had breached safety procedures by not maintaining a safe distance. The Respondent submits that the Applicant’s failure to accept that he breached safety procedures and maintaining the assertion that the tugger had stopped when he got off even though the CCTV footage shows that the Applicant was coasting is relevant.
[129] Despite acknowledging that he took the foot incident seriously the Respondent submits that the Applicant continued to engage in risk taking behaviour in the paper incident two months later. That incident occurred in a busy part of the warehouse amongst heavy vehicles. The Applicant screwed up a bit of paper and threw it at a co-worker. The Applicant admitted in his evidence that he had done this but denied it was premeditated, a claim the Respondent says should be rejected.
[130] The Respondent said that the Applicant attempted to downplay the seriousness of the incident by suggesting the other operator had said something to him to which the Applicant was responding. The Applicant also sought to downplay the incident by suggesting his co-worker ducked and he got hit in the eye accidentally. The Respondent says that attempts by the Applicant to downplay the seriousness of matters is a common theme in each of the safety breaches.
[131] The Respondent says that the Applicant has consistently accepted no responsibility for the cross aisle incident from the time of the investigation and throughout this hearing. The Respondent said the Applicant has made a number of statements as to why Mr P is to blame for the incident – in his initial written statement on the day of the incident (Mr P should have gone into the pallet straight or got pallets from the pallet machine), on seeing the footage of the incident (caused by Mr P reversing into the cross aisle) and in an email in response to the show cause letter (Mr P did not show caution or maintain awareness when he reversed into the Applicant’s path). The Respondent submits that the Applicant has maintained this stance through his evidence and, in addition, now seeks to blame the Respondent for the incident.
[132] The Respondent accepts that Mr P is partly responsible for the incident but says that this does not absolve the Applicant of any culpability.
[133] The Respondent relies on the Applicant’s assessment of where he was in aisle B3 when he looked to the left and saw Mr P in aisle B4. The Respondent submits that it is clear that the Applicant never looked left again after this point. Based on various assessments of where the Applicant was in aisle B4 when he last saw Mr P and on various speeds of the tugger, the Respondent submits that it would have taken the Applicant between 5.5 and 6.5 seconds for him to reach the cross aisle. On this basis the Respondent submits that for some period between 3 seconds (estimated by the Applicant) and 5.5 seconds, the Applicant did not look to the left again. For this reason the Respondent submits the Commission can conclude that the Applicant failed to exercise appropriate caution or care as he exited the aisle and his actions were careless. Further, the Commission should conclude that the Applicant did not act safely. 48
[134] The Respondent submits that it is implausible that the Applicant saw Mr P heading in the correct direction in aisle B4 and then, some 3 seconds later (on the Applicant’s estimate) Mr P was in front of him in the cross aisle. Mr Van den Oever’s evidence is that it was implausible for Mr P to change direction and get the cross aisle in the time estimated by the Applicant.
[135] The Respondent submits that the Commission should reject the Applicant’s evidence that he saw Mr P in aisle B4 when he looked left, with Mr P heading in the direction of travel away from the cross aisle at the spot marked “Y” on the map, and he was therefore satisfied there was no traffic on the left and saw nothing in the cross aisle. The Respondent submits that the Applicant’s evidence in this regard is not true. 49 It is relevant, the Respondent says, that this was not raised as a defence by the Applicant until he saw the CCTV footage after the show cause meeting. He had ample opportunity to raise it prior to this time. This a sufficient basis for the Commission to conclude that the Applicant’s evidence is not true.
[136] The Respondent submits that the most plausible explanation of what happened is the written statement of the Applicant at the time of the incident 50 which did not indicate he looked through the racking and saw Mr P in the next aisle.
[137] The Respondent submits that the safety procedures do not require an operator to look left and right before entering the cross aisle, rather they require that an operator give way to traffic in the cross aisle. This, it says, requires an operator to slow down and check that it is clear to proceed. An operator would look left and right to check for traffic and would, for a moment, take their eyes off the direction of travel to do so. An operator would be using their peripheral vision. The Respondent says that these rules or “safety hints or safety tips” 51 should be applied in a common sense way. Eyes in the direction of travel is a safety habit noted in the updated 2019 SWOP, but an operator would not be in breach of this if they slowed down and checked to ensure it was clear before entering the cross aisle.
[138] The Respondent submits that the requirement to signal a co-worker is something that should be done to avoid impact. It is not contradictory with the requirement to brace with both hands on impact.
[139] The Respondent says that its practice is to provide two days of training to new employees augmented with further training as required. The Respondent submits that what occurred in the ALM warehouse – a different warehouse to where the incident occurred - is not relevant and that Mr P had been competently trained.
[140] The Respondent submits that tuggers are fitted with horns which can be used as a warning device. It submits that, following an incident in February 2019 where a tugger reversed in breach of safety requirements, an investigation by WorkSafe Victoria did not identify any requirement that tuggers be fitted with reversing beepers. It is the Respondent’s view that this is not a requirement under OH&S Regulations. The Respondent submits that a risk assessment was done on the tuggers and it was not identified that reversing beepers were necessary.
[141] The Respondent submits that the Engineered Standards are used as a productivity and labour planning tool and that there is no evidence that these incentivised Mr P to breach safety procedures and reverse his tugger on this occasion.
[142] With respect to the coexistence of the 2015 SWOP and the 2019 SWOP the Respondent submits that it is clear from the evidence that both remain in place. In any event, it says they both show that the Applicant should have given way at the cross aisle. The Applicant failed to exercise the necessary caution and care and this view would not change regardless of which SWOP was relied on by the Respondent.
[143] The Respondent says that it met with the Applicant where it read out and provided to him a letter which outlined its concerns. The Applicant also attended a meeting where a letter was read out to him and provided to him that outlined the findings of the investigation and indicated that the Respondent was considering terminating his employment. In this regard the Respondent said that the Applicant was sufficiently aware of the concerns of the Respondent and given an opportunity to respond to those concerns prior to a decision being taken to dismiss him. It submits that, in the circumstances, that the Applicant “took a chance” was not required to be put to him and that, even if it had been, it would have been unlikely to affect the outcome.
[144] The Respondent agrees that it is a large employer. It submits that it has in place appropriate procedures that were followed in effecting the dismissal of the Applicant. There was an investigation, the Applicant was given an opportunity to respond, was given a show cause letter and given a further opportunity to respond. The Respondent did not undertake an ICAM investigation but says that the incident in question is not the type of incident for which an ICAM investigation is necessary.
[145] The Respondent agrees that it has substantial human resources specialists who were consulted on each step of the process in the decision to suspend and dismiss the Applicant.
[146] The Respondent recognises the Applicant’s lengthy period of employment but submits that he was involved in three incidents between July 2019 and January 2020 which demonstrated that he was not adhering to safety procedures. Despite his lengthy history this showed that he did not take safety seriously.
[147] With respect to differential treatment of the Applicant compared to others, the Respondent generally submits that the Applicant is inviting a comparison of apples and oranges but on the specifics submits:
a. Mr P’s incident was his first safety breach whilst the Applicant is an experienced tugger operator with two previous warnings for safety issues. Mr P was given a written warning for his conduct.
b. The pedestrian involved in an incident with a forklift driver was given a warning for not using the marked walkways, not maintaining eye contact and not reporting the incident.
c. The forklift driver in the incident with the pedestrian was issued with a first warning for not operating his forklift safely by looking at the RF screen on his equipment.
d. In relation to the incident where a forklift driver placed empty pallets in the pathway of a co-worker, the driver of the forklift was given a warning not dissimilar to the first warning given the Applicant in July 2019.
e. In relation to the operator involved in straightening of pallets using the wall, it was found that there were no specific safety procedures in relation to such conduct and the employee concerned had a “light” disciplinary history mainly in relation to absenteeism.
f. With respect to the racking incident in the ALM warehouse, the employee concerned had no disciplinary history and the decision to not take any disciplinary action was reasonable in all of the circumstances.
[148] The Respondent further submits that the Applicant did not report the incident and, in this respect, the evidence of Ms Sachdeva should be preferred to that of the Applicant.
[149] Should the Commission find that the Applicant was unfairly dismissed the Respondent submits that the Commission should not consider reinstatement. The Respondent submits that a serious barrier to reinstatement of the Applicant is that he refuses to accept any responsibility for the cross aisle incident. The Respondent accepts that the Applicant is entitled to defend himself but says that, should the Commission find that there was a valid reason for dismissal based on the Applicant’s breach of safety requirements, his refusal to acknowledge any culpability for the incident cannot be ignored and is relevant in assessing reinstatement.
[150] The Respondent says that it has lost all trust and confidence in the Applicant’s capacity to operate safely and to reinstate the Applicant would present an unacceptable risk to the Applicant and his co-workers. The Respondent says that I can, and should, accept the evidence of each of Ms Sachdeva, Mr Van den Oever and Ms Addison in this respect. Their views, it submits, are reasonably held and are based on the fact that the Applicant has been given the opportunity to show he can comply with safety procedures but has failed to do so.
[151] There is little in contest in evidence between the parties. The differences are more in the conclusions that can be drawn from the fact of the cross aisle incident of January 2020.
[152] I found all the witnesses to be honest in their evidence. None dissembled or sought to paint themselves in a good light or unnecessarily cast doubt on others. They are each to be commended on their honesty and openness in responding to the matters before the Commission.
[153] The only true point of contention between the witnesses was the extent of the information provided by the Applicant to Ms Sachdeva when he advised her that Mr P’s tugger had locked out. Given the lack of dispute about other matters at the time – that the Applicant was told to finish picking his order then report for a blood and alcohol test and complete a statement – I have drawn nothing from this different recollection. It has not played a part in any assessment of the reliability of the remaining evidence before me and is not a matter that I need to resolve.
[154] Section 396 of the FW Act provides that the Commission must determine the following matters prior to considering the merits of an application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[155] I am satisfied that the application was made within time, that the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply and that the dismissal was not a redundancy.
[156] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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;
(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.
[157] I am satisfied – and it was not in contest between the parties – that the Applicant is protected from unfair dismissal in that he has served the minimum employment period and that an enterprise agreement applied to his employment.
[158] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
[159] In addition to my findings above, I am also satisfied that the Applicant has been dismissed.
[160] In order to determine if the Applicant has been unfairly dismissed it leaves me to determine if the dismissal was harsh, unjust or unreasonable.
[161] In considering if a dismissal was harsh, unjust or unreasonable the following matters must be taken 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 FWA considers relevant.
[162] I consider each of these factors below.
[163] The reasons for termination of the Applicant’s employment are set out in the letter of allegations given to the Applicant on 30 January 2020. In its show cause letter, the Respondent said that it was “of the view that the allegations of inappropriate workplace conduct are substantiated” and that the conduct amounted to a breach of the:
• Metcash Code of Conduct;
• Electric Pallet Safe Work Operating Procedure (SWOP); and
• Site safety procedures.
[164] The letter of allegations was more specific in what it said the Applicant had done. It said, with respect to specific conduct:
• You have failed to slow down, stop or proceed with caution as you approached the end of the aisle, resulting in a collision with the incoming EPJ.
• Your actions have breached the Electric Pallet Jack Operation Safe Work Operating Procedure (SWOP) which requires you to:
• Comply with other site safety/traffic rules
• Have your eyes in the direction of travel whenever you are moving
• Make eye contact with others and signal your intent especially around vehicles, mobile plant and people
[165] Evidence was given that the SWOP that was applied to the Applicant’s conduct was the 2015 SWOP attached to the witness statement of Mr Van den Oever 52 and Ms Addison.53 Both agreed that the 2019 SWOP was issued in September 2019 but this was not the one against which the Applicant’s conduct was assessed.
[166] Relevant extracts of the 2015 SWOP, to the extent it might apply to this case, are set out above at [19].
[167] The 2019 SWOP requirements, which it is said was not applied in this case, are also set out above at [19].
[168] It is incumbent upon the Commission, in a matter that involves misconduct, to determine for itself on an objective basis if the conduct relied on for the dismissal did, in fact, occur. 54 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.55 The standard of proof is on the balance of probability.56
[169] In Selvachandran v Peterson Plastics Pty Ltd 57 his Honour, Northrop J said:
In its context in subsection 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 subsection 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…
[170] The only direct evidence of what occurred at the cross aisle is that in the CCTV footage 58 and that of the Applicant. Mr P, who was involved in the incident, was not called to give evidence in these proceedings, nor was any other employee who was in the vicinity of the incident.
[171] The CCTV footage shows, at 25 seconds, Mr P reversing out of aisle B4. At 30 seconds you get glimpse of the Applicant as he drives into view coming out of aisle B3. At this point in time the tines of Mr P’s tugger – which are at floor level – are clearly within the space of the end of the aisle the Applicant is in.
[172] At 31 seconds, when Mr P and his tugger appear to be in the line of sight of the Applicant, the CCTV footage is not of such quality that it is possible to determine in what direction the Applicant had his head turned.
[173] The CCTV footage is jerky – that is, it is not smooth running as you would see on a high quality video. Whether the CCTV footage is grainy or not depends on the size of the playback window. Blowing the footage up to a standard laptop size window makes the footage blurry – it loses definition – but playing it with a higher level of definition means reducing the size of the playback window.
[174] The photograph taken from the CCTV footage 59 and provided by the Respondent does not provide any greater clarity.
[175] At 33 seconds on the CCTV, the Applicant appears to hit Mr P’s tugger.
[176] The CCTV footage does show that the Applicant did not stop at the end of the aisle before entering the cross aisle but, on this, I would note that it does not appear that anyone entering the cross aisle in the whole 1 minute and 12 seconds of the CCTV footage stopped before entering the cross aisle.
[177] The evidence of the Applicant is that, on approaching the cross aisle, he looked left through the racking and saw nothing to his left coming up the cross aisle. He did see Mr P in aisle B4. Mr P’s tugger was pointing in the expected direction of travel and the Applicant assumed Mr P was travelling in the correct direction of travel – that is away from the cross aisle. Such an assumption is not unexpected given the safety rules in relation to tuggers not reversing except in quite limited circumstances. The Applicant said he looked to the right as he got to the cross aisle as that was the natural direction from which he expected any traffic that he would need to give way to (given he was turning left) to come from.
[178] Neither the evidence of the Applicant nor the CCTV footage conclusively demonstrates that the Applicant failed to slow down or proceed with caution when he approached the cross aisle. The CCTV footage also does not show, on any objective view, whether the Applicant had his eyes in the direction of travel or whether he made eye contact with others.
[179] Mr Van den Oever and Ms Addison both assumed the Applicant engaged in the conduct specified in the allegations as each says that if the Applicant had slowed down or proceeded with caution or kept his eyes in the direction of travel or made eye contact the incident would not have occurred because the Applicant would have seen Mr P and avoided contact. This view was maintained despite the lack of any objective evidence to support it. There is no evidence from Mr P – the only other person involved in the incident – and the CCTV footage as presented to the Commission is not of such clarity to enable these conclusions to be drawn.
[180] It appears that, the incident having occurred, the Respondent considered that someone must be held accountable for it and that accountability must be based on a failure to follow rules.
[181] The only conclusion regarding the allegations that can be drawn from the CCTV footage is that the Applicant did not stop at the cross aisle. However, the evidence of Mr Van den Oever and Ms Addison is that this rule (Safety Requirement) does not apply and is not complied with in the warehouse. It is not apparent why the Applicant should be held to this standard when no-one else in the warehouse is. I would adopt the submissions of the Applicant that to hold him to a standard that is not otherwise enforced is capricious.
[182] Whilst I have found that the CCTV footage does not show where the Applicant was looking at the time he entered into the cross aisle, I do note that the “Safe habits” outlined at the toolbox talk on 13 March 2019 do indicate that employees should have:
Eyes in the direction of travel whenever you are moving. Make eye contact with others and signal your intent especially around vehicles and mobile plant or people.
[183] Ms Addison said in her evidence that the requirement to have “eyes in the direction of travel” and, at the same time, “make eye contact with others” means that operators should be aware of their surrounds and use their peripheral vision. It does not mean that the operator should only have their eyes in the direction of travel. She said that operators should behave as a car driver does. She said:
…You do all of those things while you're driving a car; you're looking in direction of travel, you give way, you look left and right, change gear, look at the steering wheel. You do a number of things at the same time. It's something we can do as human beings, so, yes, I think it's something people can do. 60
[184] The evidence of the Applicant is that he did do these things articulated by Ms Addison as expected – he looked left and he looked right and he watched where he was going, although not all at the same time. That the incident occurred is not evidence of a failure of the Applicant to do the things he said he did and what Ms Addison says she expects of operators. In this respect the failures relied on by the Respondent as articulated in the allegations letter do not provide a valid reason for dismissal.
[185] Alternatively I am not satisfied that an employee could meet each of the strict requirements of the “Safe habits” at the same time. To rely on the failure to meet all of the requirements at the same time is capricious.
[186] The Applicant’s employment was also terminated as he failed to “signal his intent”, presumably to turn left.
[187] With all due respect to the Respondent’s submissions, it is not apparent from the evidence how this could have or did contribute to the incident such that it could provide a valid reason for dismissal. It seems that whether the Applicant was turning left or right, making such a signal as he approached the cross aisle would not have been seen by anyone in the cross aisle and there is no evidence it would have made any difference to the conduct of Mr P or to the incident occurring. To rely on such a reason for dismissal is capricious.
[188] It is also said that the Applicant “failed to … proceed with caution.” 61 Caution is defined in the Macquarie Dictionary as “prudence in regard to danger or evil; carefulness; wariness”.
[189] To the extent that the incident occurred it might be said that the Applicant was not careful enough to have avoided making contact with the tugger driven by Mr P or that he was not wary enough of where Mr P was, but that is not that he failed to proceed with [any] caution as is suggested in the letter of allegations.
[190] However, the incident did occur. The level of caution of the Applicant in approaching the cross aisle may well be considered deficient and I am satisfied that this is the case. That the incident occurred does support a finding that the Applicant did fail to give way to all traffic in the cross aisle (regardless of how it got there). Given the circumstances of the incident, the contribution of Mr P to it, and that the evidence does not support other findings as relied on by the Respondent, I am not convinced that this, alone, provides a valid reason for dismissal of the Applicant.
[191] Ms Addison, in her statement, said that the Applicant “decided to take a chance by pulling into the cross aisle.” 62 I am not satisfied, to the extent this may be relied on, that the evidence before the Commission supports a conclusion that the Applicant did “take a chance”. To the extent that anything can be concluded from the CCTV footage, it does not demonstrate that the Applicant did this.
[192] The Respondent also relies on two prior warnings given to the Applicant with respect to conduct he is said to have engaged in and for which he received written warnings.
[193] Even if I accepted the validity of the warnings given for these two incidents, I am not satisfied that the conduct I have found that the Applicant engaged in at the cross aisle, along with the two previous incidents, provides a valid reason for the dismissal of the Applicant.
[194] In reaching this conclusion I have had regard to the communication of Mr Van den Oever with Deanna (of People and Culture) that he considered the cross aisle incident did not warrant dismissal. In an email of 31 January 2020, having read the response of the Applicant of 31 January 2020, Mr Van den Oever said:
My thoughts on what the out come should be is that it may not be a strong enough case to push for termination however his track record of safety incidents in a short period of time (12 months) shows lack of care for safety of his colleges.
There are not major incidents however a pattern of risk taking behaviour I feel he is not currently taking seriously.
With that all said I believe a further and final written warning would be appropriate action in this circumstance. Happy to discuss your thoughts. 63 [sic]
[195] Mr Van den Oever has worked in the warehouse for 5 years and has worked as a supervisor and manager for 3 of those 5 years. There does not appear to be a reason to dismiss his assessment of the incident. I accept that Mr Van den Oever said he was not experienced in dealing with such matters and that he changed his view having consulted with People & Culture but I do not dismiss his initial assessment of the incident and the response of the Applicant.
[196] Further, I am satisfied that, whilst the incident was a matter to be taken seriously, it was not a major incident, it did not result in injury to either person, it did not cause any damage to property and it was not a “high potential” incident.
[197] Whilst I accept that the Applicant did not give way to traffic in the cross aisle, in circumstances where the traffic he failed to give way to was approaching from the wrong direction (that is, the Applicant’s left and not his right) I do not consider that the cross aisle incident provides a valid reason for dismissal. Further, I do not consider that there was a valid reason for the dismissal of the Applicant based on the cross aisle incident in conjunction with the two earlier incidents.
(b) & (c) whether the applicant was advised of that reason for dismissal and given an opportunity to respond
[198] I am satisfied that there was no deficiency in the processes in that the Applicant was advised in meetings with the Respondent at each step what was occurring. This was also set out in written information to him.
[199] The Applicant was aware of the allegations against him and was given an opportunity to respond. That response was considered by the Respondent prior to a decision being made.
(d) Support person
[200] The Applicant was given access to a support person and had a support person with him in his meetings with the Respondent.
(e) Poor performance
[201] The Applicant was not dismissed for reasons related to his performance. This is therefore not a relevant consideration in this matter.
(f) & (g) The size of the Respondent and access to specialist HR staff
[202] The Respondent agrees that it is a large employer. It says that it has in place appropriate procedures that were followed. It says that it did not undertake an ICAM investigation as it was not necessary in this case.
[203] The Applicant says that the Respondent should be expected to have an exemplary process.
[204] I do not criticise the Respondent for the process it used in this case to investigate the incident involving the Applicant. I am satisfied that he was afforded procedural fairness.
[205] I would observe however that the request of employees involved in an incident to write a short statement as to what happened immediately after the incident 64 does not appear to result in particularly useful contemporaneous notes of events. In this case the Applicant’s statement was quite short but that of Mr P was even shorter. Neither contained pertinent information including that Mr P was reversing. It seems that these “statements” would be of more value if they at least contained some questions to be answered. As they stand, they are not a contemporaneous record of the incident at all.
[206] I do not criticise the Respondent for not conducting an ICAM investigation although the Respondent would be reminded to ensure that any investigation consider the range of potential reasons for an incident. That a “please explain” letter is given to an employee should not then shut out other appropriate enquiries as to the cause of an incident. If such inquiries did occur in this case the evidence before the Commission does not bear this out.
(h) other matters
[207] The Applicant has failed to acknowledge any culpability in the cross aisle incident. Whilst he has maintained this stance from the time of the incident it does suggest a lack of awareness that he could have done things differently such as slow down more than he did, been more aware of the potential for an incident and taken more care on approaching the cross aisle. This failure to accept any contribution on his part to the incident does not sit well with the paper incident in particular where his lapse in judgement could have had serious consequences.
[208] I have considered that the Applicant has been involved in safety incidents in July and September 2019. The first, the foot incident, was caught on CCTV. It is not readily apparent from the footage that the Applicant did get off the tugger before it came to complete stop. However the Applicant does appear to be moving to dismount prior to the tugger stopping. He clearly did not take the care necessary in relation to his co-worker when moving off and did cause an injury to the operator’s foot, suggesting a lack of awareness of where others were and his responsibilities. In the second incident, the paper incident, the Applicant threw a piece of paper at a co-worker who was operating a tugger at the time. Such conduct, at best, was foolish. It could have resulted in injury to the other operator’s eye or caused him to lose control of his tugger. The Applicant’s conduct suggests some premeditation given he had the paper handy to throw. Neither of these incidents puts the Applicant in a good light and neither supports his claim to be safety aware.
[209] The Applicant submits that he was treated differently to other employees who have been involved in similar incidents. He particularly cites 5 incidents involving 6 operators – none of whom had their employment terminated as a result of the incidents in which they were involved.
[210] The extent to which differential treatment should be or can be taken into account was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. 65 The Vice President, in that matter, introduced a note of caution in considering differential outcomes where he observed:
[36] …There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.
[211] Each of the cases cited by the Applicant – except for Mr P – relate to the treatment of employees at the same general site as the Applicant but involved in quite different incidents and each employee with a different history of warnings. What each of these incidents and outcomes indicates is that the Respondent does not have a “cookie cutter” approach to dealing with incidents in the workplace but, properly, considers each matter separately, investigates the matter and takes action considered appropriate in the circumstances. This different treatment for different incidents should provide some comfort that safety incidents are considered on their merits.
[212] For these reasons I do not consider that the treatment of employees of the Respondent in different incidents and different circumstances are relevant to my consideration of the dismissal of the Applicant.
[213] The Respondent advised that Mr P, the other operator involved in the cross aisle incident with the Applicant, was placed on a final warning with respect to the incident but that it was his first safety breach whereas, for the Applicant, it was his third in the space of a year. Further, Mr P had been employed for less than a year and the Applicant for close to 30 years. For these reasons I consider there to be such differences that the treatment of Mr P is not relevant to my consideration of the decision in relation to the Applicant.
[214] The Respondent said that I should consider the written statement of the Applicant 66 as the most reliable evidence of Applicant as to what really occurred at the time of the incident – in particular the Respondent says that the Applicant did not make any reference to having seen Mr P in aisle B4 suggesting the Applicant had not looked to the left prior to entering the cross aisle. For the reasons given above at paragraph [205] in relation to the usefulness of such statements I do not consider this relevant.
[215] I do not consider that the Respondent was required to undertake an ICAM investigation into the incident and have not taken into account any failure to do so. It is apparent that this was not a high potential incident. I would observe however that this does not absolve the Respondent of the need to consider all matters that may have contributed to an incident. The evidence before the Commission does not allow a conclusion that the Respondent did have any inquiry beyond the errors in procedure it considered were made by the Applicant.
[216] Whilst there are no reversing beepers on tuggers I do not consider that the Mobile Plant Safety SWSP required that they be fitted. Rather, I take from the SWSP that a Risk Assessment is required to be undertaken on mobile plant and where that Risk Assessment assesses the need for reversing beepers they are fitted. The Risk Assessment for the tuggers do not, apparently, make such an assessment.
[217] I considered the Engineered Standards but, whilst they may have contributed to the actions of Mr P – they potentially encouraged him to act in an unsafe manner and cut corners – they did not contribute to the failures of the Applicant that I have found above.
[218] The evidence before me does not suggest any deficiencies in training of Mr P but, again, this says nothing of the conduct of the Applicant. This adds nothing to my consideration.
[219] Whilst there are matters that may have contributed to Mr P breaking the rules and reversing his tugger, safe working practices and care at work are everyone’s responsibility.
[220] That there was no valid reason for the dismissal of the Applicant leads me to conclude that the dismissal was harsh, unjust or unreasonable. None of the other matters I am required to take into consideration dissuade me from this conclusion.
[221] For this reason I am satisfied that the Applicant was unfairly dismissed from his employment with the Respondent.
[222] The Applicant seeks reinstatement. The Respondent opposes reinstatement.
[223] Section 390 of the FW Act states:
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.
[224] As is apparent from s.390(3) compensation can only be ordered “if reinstatement of the person is inappropriate”. As the Applicant seeks reinstatement it is necessary in the first instance to consider if it is appropriate or otherwise.
[225] The Full Bench of the Commission in Nguyen v Vietnamese Community in Australia 67 considered the authorities in relation to reinstatement and how issues of trust and confidence should be considered in a claim for reinstatement and concluded as follows:
[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• 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 a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• 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 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.
[28] Ultimately, the question is 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.
[footnotes omitted]
[226] A mere claim of a loss of trust and confidence is not enough on which to conclude that reinstatement is not appropriate.
[227] In this case evidence was given as to the loss of trust and confidence in the Applicant. Mr Van den Oever said that he had lost trust and confidence in the Applicant because his conduct had been “repeat behaviour” with a number of incidents over a period of time. This represented a “pattern of non-compliance” with safety procedures and a failure to take responsibility for his conduct. 68
[228] Ms Addison’s primary concern was whether, given the pattern of behaviour observed, the Applicant could be trusted to observe the safety requirements required by the Respondent:
Is the next appropriate step termination? And, in this case, we decided it was. More about that lack of trust and confidence in Mr Stephenson that this wouldn't happen again. And we got to a point where he'd already had two warnings for safety and we decided this was the appropriate action to take, but it's a difficult decision to make. He's been with the company a long time but, yes, just the repeated pattern of behaviour of unsafe acts and, yes, in this case we made the decision to terminate. 69
So for me I feel I would be negligent if I was to not manage my team appropriately, from a safety point of view, and I do have a duty of care to all of them, every single one of them, to make sure they go home in one piece to their family. So, for me, given Mr Stephenson's track record, I'd be really nervous about trusting him to follow the safety policies and not to have a further incident, either injuring himself or someone else. So that's how I feel. I just - that confidence is just not there for me. 70
[229] Ms Sachdeva gave evidence that she no longer had confidence in the Applicant, given his record over the previous 12 months. 71
[230] In the circumstances where I have found that there was no valid reason for dismissal, I am not satisfied that claims of a loss of trust and confidence are soundly based. Whilst I recognise that the claimed loss of trust and confidence is based on a pattern of behaviours in relation to safety, having found that the most recent conduct could not be proven I am not convinced, on balance, that the actual pattern of behaviour provides a sound basis for a loss of trust and confidence.
[231] The Applicant said that he is very safety conscious, having lost his father to a workplace safety incident in 1971. I would observe however that the Applicant’s record over the six month period prior to his dismissal is nothing to be proud of. He is sailing close to the wind and needs to demonstrate through his actions that he is, as he says, safety conscious.
[232] I do not consider the return to employment of the Applicant will create any embarrassment for the Respondent. There are lessons to be taken from this incident – particularly with respect to clear messaging about safety conduct and establishment of safety standards that can be complied with. The Respondent has shown that it is intent in improving its safety record and it should be commended for that. There is no criticism of it for seeking to achieve improvements in this area and no one, including the Applicant, should view his reinstatement as condoning conduct that is not in accordance with safety standards.
[233] I have taken into account that the Applicant has worked for the Respondent for almost 30 years since 1991 and that his working career has been as a store person. His employment is important to him from a self-esteem and economic perspective.
[234] In this case I am not convinced that there is such a breakdown in the relationship between the Applicant and Respondent that the Applicant should not be reinstated. I am satisfied that the Applicant will take from this incident and others that absolute necessity to observe safety procedures required of the Respondent and the need to take responsibility. He should remain aware of the consequences should he fail, again, to do so.
[235] I will therefore order that the Applicant be reinstated.
[236] Section 391 of the FW Act sets out those matters to be considered in relation to 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.
(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.
[237] I have decided that the Applicant should be reinstated by reappointing him to the position in which he was employed immediately before the dismissal. Such reappointment should occur within 2 weeks of the issue of the order giving effect to this decision.
[238] I am satisfied that continuity of service should be ordered. I am also satisfied that the period should count towards the Applicant’s continuous service.
[239] I am satisfied that the Respondent should pay to the Applicant an amount for his lost remuneration subject to the deductions detailed below. The Applicant gave evidence on his attempts to find alternative work as follows:
Since your termination have you been looking for a job?---I have.
What have you done to look?---I've been on line and looked at a lot of jobs related to warehouses as such. I've been in contact with Tolls, left my name and number and the type of work that I do. I've also applied with Drake, the casual agency, and I'm on the books at Labour Solutions Australia.
...
Have you received any shifts from Labour Solutions Australia?---I did get trained as doing the home deliveries, the groceries, and on (indistinct) - that was it, just the two days' training.
Were you paid for that?---Yes, I was.
How much?---It was two days of roughly eight hours and it was $26 an hour.
And have you received any other shifts out of that?---No, I haven't. 72
…
Are there any other opportunities you're seeking out at the moment?---There are - I'm still going through each day on the Internet looking for positions, yes. 73
[240] Whilst the Applicant did undertake training for a delivery driver position he says he found the work “daunting” as it involved deliveries in the narrow streets of Fitzroy and Brunswick.
[241] Mr Vassallo gave evidence of very few jobs available of the type performed by the Applicant in the current market. I am, in this respect, highly cognisant of the effect of COVID-19 on employment potential. Apart from a deduction of money earned I do not make any deduction
[242] I have decided therefore that the Applicant should be paid for the period he has been without employment less $416 (16 hours at $26/hour) advised as having been earned at the time of hearing and any further amount earned since then. I have also decided to deduct a further five weeks’ pay. I have decided to deduct this amount because I do not believe there to be no culpability on the Applicant’s part for the incident at the cross aisle. Further, I do not consider the Applicant’s conduct in relation to safety as having been exemplary.
[243] Long employment in the one area can lead to complacency. The Applicant should be wary of this and cognisant of its implications. It is not an excuse and can never be an excuse for breaches of safety standards at work.
[244] In reinstating the Applicant I do not intend to convey that the Applicant should not be subject to some disciplinary outcome by the Respondent with respect to his conduct. I note that the Applicant does not consider his actions played any part in the incident with Mr P at the cross aisle. For the reasons given above I am not convinced that this is the case. For a person with a stated commitment to safety at work I would observe that the Applicant appears to have adopted a position of not being responsible at any level for incidents in which he is involved or of attempting to pass them off as not serious. An environment that encourages responsibility for safety at work should be encouraged. At times this will involve appropriate disciplinary outcomes. It is, however, not the role of the Commission to determine what penalty should be imposed. I leave this matter to the Respondent.
[245] An Order 74 reflecting this decision will be issued with this decision.
COMMISSIONER
Appearances:
A. Mackenzie for the Applicant.
M. Sant for the Respondent.
Hearing details:
2020.
Melbourne by video.
May 21 – 22.
Final oral submissions:
2020.
Melbourne by video.
July 9.
Printed by authority of the Commonwealth Government Printer
<PR721297>
1 See map at CB 58.
2 Mr P is one of the few operators referred to by name in the hearing. I have chosen to anonymise him in the decision.
3 CB 198.
4 CB 18.
5 CB 20.
6 CB 23.
7 CB 25.
8 CB 78.
9 Exhibit R1.
10 CB 79-88.
11 CB 89-96.
12 CB 97-101.
13 CB 117-120.
14 CB 156.
15 CB 104-113.
16 CB 187-195.
17 CB 313.
18 CB 388, Respondent’s video 1.
19 CB 389, Respondent’s video 2.
20 Witness statement of Mr Steve Vassallo, paragraphs 35-40, CB 31.
21 Transcript PN1129.
22 Transcript PN1032.
23 Transcript PN1118-1123.
24 See MFI-1.
25 Transcript PN2039-2046.
26 Transcript PN1732.
27 Transcript PN1796.
28 Transcript PN1780-1791.
29 Transcript PN2070-2076.
30 Exhibit R1.
31 Transcript PN1857.
32 Exhibit A2.
33 Exhibit A9.
34 Transcript PN2519.
35 Transcript PN2712.
36 Transcript PN2778.
37 Transcript PN2534.
38 Transcript PN2537.
39 Transcript PN2550.
40 Exhibit A14.
41 Exhibit A15.
42 Exhibit A16.
43 Exhibit A23.
44 Transcript PN2453.
45 Exhibit A22.
46 Witness statement of Ms Emma Addison, paragraph 26, CB 321-322.
47 Transcript PN356.
48 Transcript PN3163.
49 Transcript PN3167.
50 Attachment KS-6 to the witness statement of Ms Kristina Sachdeva, CB 313.
51 Transcript PN3169.
52 CB 78.
53 CB 329.
54 Edwards v Justice Giudice [1999] FCA 1836.
55 King v Freshmore (Vic) Pty Ltd, 17 March 2000, Print S4213.
56 Briginshaw v Briginshaw [1938] HCA 34.
57 [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].
58 CB 389, Respondent’s video 3.
59 MFI-2.
60 Transcript PN2778.
61 Letter of allegations dated 30 January 2020, CB 16.
62 Witness statement of Ms Emma Addison, paragraph 26, CB 321-2.
63 Exhibit A6.
64 See for example the statement of the Applicant at CB 313 and that of Mr P at CB 314.
65 PR931440 (AIRC, Lawler VP, 14 May 2003).
66 CB 313.
68 Witness statement of Mr Van den Oever, paragraph 99, CB 55.
69 Transcript PN2444.
70 Transcript PN2640.
71 Transcript PN975.
72 Transcript PN169-175.
73 Transcript PN664.