T9242
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Robert William Lumley and King Island Dairies Pty Ltd
Industrial dispute - alleged unfair termination - valid reason found - procedural fairness on dismissal incident - breach of procedural fairness re previous final warning - compensation ordered REASONS FOR DECISION On 19 October 2000 Robert William Lumley (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with King Island Dairies Pty Ltd (the employer) arising out of the alleged unfair termination of his employment. On 25 October 2000 the A/President convened a hearing before myself at the Council Chambers, Currie, King Island to commence at 9.30am on Thursday 9 November 2000. Prior to the hearing the Commission was advised that the National Union of Workers (NUW) would not be representing the applicant. When the matter came on for hearing the applicant was represented by Mr Ian Lumley. Mr J O'Brien of the Australian Industry Group appeared for the employer along with Mr P Skene and Mr T Nalder. Following preliminary submissions the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This however proved to be unsuccessful and the matter proceeded to hearing. Background The applicant, a qualified cheesemaker, had been employed with the employer for two years and eleven months. At the time of his dismissal Mr Lumley was aged 19 years. In the 18 months leading up to the final incident Mr Lumley had been counselled on a number of occasions relating to disciplinary issues. On 29 September 2000 Mr Lumley was involved in an incident whereby he drove his own vehicle, allegedly in an unsafe manner, in a designated fork lift and pedestrian area. He was, as a consequence, issued with a written "first and final warning". On 6 October 2000 Mr Lumley was involved in an incident which resulted in a minor injury to a fellow employee. Following an investigation into the incident by management, Mr Lumley was summarily terminated on 9 October 2000. The applicant contends he had been unfairly dismissed, and further, the relevant provisions of the Discipline and Termination Policy had been breached. The employer and the NUW are parties to King Island Dairies Pty Ltd Enterprise Agreement 1997, an agreement registered with this Commission pursuant to Section 55 of the Act. A comprehensive Discipline and Termination Policy is contained in Appendix 3 of this agreement. The relevant extracts from this policy are set out below.
The evidence The following persons gave evidence relating to the application:
Having read the transcript I have decided that, rather than attempting to summarise the evidence of each of the witnesses, a better course is to apply the evidence to the critical issues, and make my findings accordingly. Prior Counselling and Warnings Prior to the incident which led to his dismissal, Mr Lumley had been formally counselled on six occasions, the last of which resulted in a written first and final warning. Five of these counselling sessions had occurred since May 2000. It is apparent that none of these counselling sessions concerned actual work performance. Rather, there appears to be something of a pattern with a common theme of skylarking and behaviour towards other employees. It was apparent that Mr Lumley felt aggrieved in relation to some of these counselling incidents. I must observe in passing, however, that I do not consider it the role of the Commission to review in fine detail prior counselling sessions going back over a considerable period of time. Management has to manage and I consider it far more relevant to look at an employer's overall approach to disciplinary issues. If there is a well-established and accepted procedure in place which is fairly and consistently administered, then I must accept that prior warnings and counselling sessions form part of an employee's employment history. Based on the evidence of a number of witnesses I am satisfied that these circumstances apply at King Island Dairies. A considerable amount of evidence was presented in relation to the incident on 29 September which resulted in Mr Lumley being issued with a written "first and final warning". The incident involved Mr Lumley, at 5.30am, driving his vehicle, allegedly at excessive speed, on a designated forklift and pedestrian access route. Whilst Mr Lumley did not deny his involvement in the incident, he did contest the assertion that he was driving in an unsafe manner. In outlining what followed shortly after the incident, Mr Nalder said: 1
Subsequently Mr Lumley was handed a document expressed in the following terms:2
Mr Lumley contended that this was not a valid warning in that he was not offered representation in accordance with the Discipline and Termination Policy which states:3
From the evidence of Mr Nalder and Mr Knowles it is clear that the company routinely invites the union representative to be present at all such interviews. Mr Nalder openly conceded that this did not occur on this occasion. In explanation Mr Nalder said: 4
It is common ground that Mr Lumley had declined the assistance of the union on at least one previous occasion but there is disagreement as to whether it occurred on more than one occasion. It was contended by Mr Lumley that, because of this procedural shortcoming, this incident should be viewed as a counselling session rather than a final warning. I will return to this issue later in this decision. Dismissal Incident The incident which led to the summary dismissal of Mr Lumley occurred on 6 October. Briefly stated, Mr Lumley was pushing a stainless steel trolley, approximately two metres in length, into position under a vat. The trolley hit a fellow employee, Mr Baly, in the hip area, causing an injury commonly referred to as a "corky". Mr Baly received minor attention from the first-aid attendant, did paper work for the balance of the shift and then went home. There was no lost time and it is common ground that the injury was relatively minor. In his evidence Mr Lumley said: 5
Mr Lumley attributed the cause of the accident to a combination of faulty maintenance of the trolley and the uneven factory floor. The evidence suggests that there was some "skylarking" on the factory floor just prior to the incident although, according to Mr Lumley, this had ceased some minutes before the incident. There is also some evidence of laughter immediately following the incident, although this stopped when it became apparent that Mr Baly was injured. The Commission was assisted by the evidence of two witnesses to the incident. The injured employee Mr Baly apparently did not see who was pushing the trolley. The case made out on behalf of Mr Lumley could, I think, be fairly summarised as follows:
Findings as to Valid Reason for Dismissal Having reviewed the transcript I make the following findings. I am satisfied that Mr Lumley was aware that Mr Baly was in the immediate vicinity of the trolley at the time of the incident. I am satisfied that Mr Lumley pushed the trolley with undue force, and that it was this action which was the primary cause of the accident. I am unable to conclude that either inadequate maintenance and/or a sloping factory floor were significant contributing factors in the accident. I do not believe that Mr Lumley deliberately set out to injure Mr Baly. My best guess is that the injury resulted from an unfortunate carryover of the "skylarking" evident a few minutes prior to the incident. There is no evidence to suggest that the company had a cavalier attitude towards safety, nor that it acted inconsistently in dealing with safety issues. To the contrary, I formed the view that safety was afforded the highest priority, particularly in more recent times, and that the employer had proactively sought to foster a safety "culture" across the workforce. The Discipline and Termination Policy specifically identifies activities which constitute "gross misconduct" or "gross negligence". These include:
I am satisfied that the actions of Mr Lumley fall into this category and I therefore conclude that the employer had a valid reason for termination. Having said that, I am of the view that as an isolated incident, this is on the borderline of constituting "gross misconduct". Whilst no safety breach should ever be condoned, there are of course degrees of severity. An employer may well take a more lenient view if the same or similar incident had involved an employee with an otherwise unblemished employment history. In his opening submission Mr O'Brien contended that this issue alone was sufficient to justify termination in its own right. Whilst I would not necessarily take strong issue against this position, I am of the view that, set against the background of Mr Lumley's recent employment history, the decision to summarily dismiss is not something I would interfere with unless there was a significant breach of procedural fairness. Procedural Fairness The following is apparent from a review of the evidence. Mr Nalder, Production Manager, instituted a proper investigation into the incident in a timely manner. Mr Lumley was fully aware of this investigation. Mr Lumley was afforded representation of his choice. The union representative was present at the meeting on 9 October. More importantly, the meeting was delayed to allow Mr Lumley's father to attend. Further, the company agreed to the unusual request that Mr Lumley Snr be allowed to tape-record the meeting. The allegations arising from the investigation were put to Mr Lumley and he was given the opportunity to respond. I therefore conclude that there was no procedural unfairness in relation to the 6 October incident. The only hint of a breach of procedural fairness occurred in relation to the "first and final warning" incident which occurred one week earlier. I refer to the absence of representation which Mr Nalder admitted was not in accordance with the EBA6. Because Mr Lumley's employment history has some bearing on my overall view of this application, it is a matter which needs to be addressed. From the evidence of Mr Nalder and Mr Knowles it is clear that the union representative is routinely involved in disciplinary meetings as a matter of course. It did not occur on this occasion because Mr Lumley had declined union representation on at least one previous occasion and Mr Nalder presumably made an assumption that the same would apply in this instance. Mr Lumley made the valid point that the policy refers to a union representative "or friend". Given that the employer is bound by a Section 55 agreement to which the NUW is a party, I conclude that the routine presence of the union representative to be an acceptable practice. Of course, should an employee request that someone other than the union representative be present, then such a request must, in accordance with the agreement, and within reason, be acceded to. In this context it is of significance that no request for representation on the part of Mr Lumley had ever been declined.7 I am satisfied that Mr Lumley, as a consequence of the 29 September incident, was aware that he was on a final warning. The procedural breach is, in my mind, more of the nature of a technical defect, rather than something that materially impacted on how both parties stood in relation to each other. It was nonetheless a breach which should not have occurred. Given that I have concluded that the "first and final warning" was material in the overall context of this application, I am prepared to order modest compensation in recognition of this aspect alone. I emphasise, however, that I find no fault with either the ultimate reason for the termination or the procedure that followed. Order Pursuant to Section 31[1B] of the Industrial Relations Act 1984, I hereby order that King Island Dairies Pty Ltd pay an amount of one thousand five hundred dollars [$1500] to Robert William Lumley of 7 Beach Road, Currie, King Island 7256. Such payment is to be made within twenty-one days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript p. 47 |