T10048
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Shop, Distributive and Allied Employees Association, and Coles Myer Logistics Pty Ltd
Industrial dispute - alleged unfair termination of employment - breach of OH&S procedures - provocation - work practices - summary dismissal disproportionate to gravity of offence - re-employment ordered REASONS FOR DECISION (1) On 8 February 2002, the Shop, Distributive and Allied Employees Association, Tasmanian Branch (SDAEA) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Coles Logistics arising out of the alleged unfair termination of employment of Timothy Deegan. [2] The matter was set down for hearing (conciliation conference) at the Supreme Court, Cameron Street, Launceston at 10.30am Monday 4 March 2002. [3] When this matter came on for hearing, Mr P Griffin, together with Mr J Russell, appeared on behalf of Mr T Deegan. Mr A Cameron, of the Tasmanian Chamber of Commerce and Industry Limited, together with Ms K Hill and Mr G Stannard, appeared for the employer. [4] Following preliminary submissions the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This proved to be unsuccessful and the application was set down for hearing on 22 March 2002. [5] Upon resumption, Mr R Collinson, a legal practitioner, sought leave to appear for the applicant. Mr Cameron opposed this application. Following submissions from both parties, leave for Mr Collinson to appear was granted. [6] This application relates to an incident on 18 January 2002, in which Mr Deegan used his fork lift to propel a battery truck (BT), in the control of a fellow employee, Mr A Traill, some distance within the Distribution Centre (DC) confines. Whilst there was considerable dispute as to the facts of the incident, it was common ground that an incident did occur. [7] Mr Deegan was suspended on full pay pending an investigation by management. On 25 January 2002, Mr Deegan was summarily dismissed on the grounds of a serious breach of OH&S procedures. [8] Mr Collinson contends that the penalty of summary dismissal was disproportionate to the seriousness of the incident and seeks reinstatement, or in the alternative, re-employment. [9] Mr Cameron submits that even if Mr Deegan's version of the incident is accepted, there was still a serious breach of OH&S requirements and that summary dismissal was a position reasonably open to the employer, and, as such, should not be interfered with by the Commission. [10] Mr Collinson conceded that the investigation and subsequent interview processes had been conducted properly and no issues in relation to procedural fairness arose. Background. [11] Mr Deegan was employed at the DC on a casual basis in September 1998. In April 1999 he was appointed on a full-time basis. [12] Mr Deegan was initially engaged as a "picker" and at a later stage was appointed as a forklift driver. He had completed appropriate induction and training programs and had successfully completed competency assessments. [13] In April 2000, Mr Deegan was the victim of a serious physical assault [external to the work environment]. Mr Deegan said that this affected his personality in that he became withdrawn, irritable, crabby and moody. He also suffered from migraines and had been prescribed anti-depressant medication. [14] Management was aware of the assault and the apparent effect this had on Mr Deegan's well-being, behaviour and demeanour. On the available evidence the employer demonstrated considerable compassion and understanding in endeavouring to assist Mr Deegan through this difficult period. It was not clear as to whether management was aware that Mr Deegan was taking anti-depressant medication. [15] In the period following the assault, Mr Deegan was counselled on a number of occasions for poor timekeeping. In April and June 2001, Mr Deegan was given "final written warnings" for lateness. It would appear that timekeeping was much less of an issue in the latter part of Mr Deegan's employment. [16] In December 2000, Mr Deegan received a "final written warning" in relation to "totally unacceptable behaviour" at a staff Christmas function. [17] During the hearing the following witnesses gave evidence: Timothy Maurice Keith Deegan, the applicant. The Incident [18] The incident that led to Mr Deegan's summary dismissal occurred at approximately 2.10pm on 18 February 2002. Mr Adrian Traill was the driver of a BT. Mr Traill was due to cease work at 2.15pm. Mr Deegan was the driver of a forklift, a vehicle larger and more powerful than a BT. Mr Deegan's shift was due to finish at 2.30pm. According to the evidence, there were no material witnesses to the incident. [19] Mr Traill reported the incident to Mr Hills, the only management representative on site at the time. The investigation commenced on Monday, 21 February 2002. Ms Rigby initially took statements from both Mr Traill1 and Mr Deegan.2 Both statements could fairly be described as cursory. [20] Later that day, Mr Deegan was suspended on full pay pending completion of the investigation. A letter was sent to Mr Deegan that same day in the following terms:3
[21] The DC manager, Mr Stannard, became involved and interviewed both Mr Deegan and Mr Traill on Tuesday 22 February 2002. He said:4
And later:5
[22] Mr Stannard took handwritten notes as the interviews proceeded. The signed statement from Mr Deegan reads as follows:6
[23] Mr Deegan's evidence was quite consistent with this statement. The following extracts from the transcript are relevant:7
[24] It is common ground that Mr Deegan and Mr Traill crossed paths a few minutes later and heated words were exchanged. Mr Traill then left the DC and Mr Deegan proceeded to repack the fallen stock. [25] Whilst the 21 January letter refers to "damage of Company property and stock", there was no evidence of any damage. Mr Stannard in his evidence made it clear that the termination was based on a breach of OH&S procedures, rather than damage to stock or equipment. [26] A statement relating to Mr Traill's recollection was prepared in a similar manner. Mr Traill declined to sign this statement. Mr Stannard said that this was part of the union culture in the DC and that it was not uncommon for employees to refuse to sign statements. Nonetheless, the following exchange during Mr Traill's evidence is enlightening:8
[27] Mr Traill's statement reads as follows:9
[28] Mr Traill's evidence before this Commission was quite inconsistent with his earlier statement. [29] He said that Mr Deegan was travelling at "not quite half pace", or "a fraction over walking pace". He agreed that Mr Deegan may have stopped and may have sounded the horn. [30] Under cross-examination Mr Traill acknowledged that his evidence to this Commission was different in a number of respects to what he told management during the investigation. Findings as to the incident [31] Mr Deegan presented as an honest witness whose evidence before the Commission was consistent with his earlier statements. His recollection of the incident was clear and, again, internally consistent. [32] The evidence of Mr Traill was largely consistent with, or at least did not contradict, the evidence of Mr Deegan. It is common ground, however, that what Mr Traill told the Commission was quite different, in important respects, to the account he had previously provided to management. Mr Traill must therefore be considered an unsatisfactory witness, and to the extent that there remain differences between his evidence and that of Mr Deegan, the latter is to be preferred. [33] Having regard to the totality of the evidence, I find, that on the balance of probabilities, the following to be the most likely sequence of events. [34] Mr Traill had completed tying off his load and was sitting on his stationary BT, possibly engaged in a conversation with a fellow employee. The brake was visibly off. [35] Mr Deegan approached in his forklift and stopped approximately one metre from the BT. He sounded the horn with three short blasts. Mr Traill turned and looked at Mr Deegan and then looked away again. No words were exchanged and Mr Traill made no effort to move the BT out of the way. [36] After five or six seconds had elapsed, Mr Deegan moved the forklift forward and made a controlled contact with the BT. He then pushed the BT at walking speed a distance of 10 to 12 metres. [37] Mr Traill accelerated the BT and thus broke the contact with forklift. He steered at right angles into an aisle. When the BT stopped a quantity of stock fell off. [38] I am unable to positively find that Mr Traill deliberately drove the BT into the rack as this question was not put to Mr Traill to refute or confirm. [39] There was no apparent damage to vehicles or stock. The Workplace Culture [40] A considerable amount of the evidence went to the matter of workplace culture, particularly in regards to "hi jinks" and the use of forklifts to move BTs, either in a hi jinks or operational context. [41] Mr Deegan said it was common practice for forklifts to be used to move BTs in order to create operating space.10 On the question of hi jinks, Mr Deegan said:11
[42] Mr Hamilton was also asked about the workplace culture. He said:12
[43] On the question of safety, Mr Hamilton said:13
[44] Mr Hamilton said the furthest he had seen a forklift move a BT was "nearly a full aisle". [Note: Mr Hamilton estimated this distance to be about 30 metres, whereas the Commission understands that the length of an aisle exceeds 100 metres.] [45] Mr Traill agreed that there was a culture of vehicles running into each other and pushing each other, although he said it was unlikely that management was aware of the skylarking. On the use of forklifts to move BTs for operational reasons, the following exchange took place:14
[46] Mr Traill said that following Mr Deegan's termination, Mr Stannard had led a specific discussion concerning the use of forklifts. Since that time the staff had been more careful. [47] Mr Hills said that skylarking certainly happens, but all incidents should be reported and acted upon. [48] Mr Stannard said that he had not seen incidents like this one before. He agreed that he gave a "team talk" on forklift safety immediately following Mr Deegan's termination. Mr Stannard had read some of the previous team talk minutes but could not recall whether acceptable forklift operation had been specifically mentioned. [49] Mr Lewis said that he had not witnessed any instances of forklifts which had bumped into other vehicles. He considered the DC staff to be well focussed on OH&S issues. Provocation [50] It is common ground that Mr Deegan and Mr Traill were at one-stage reasonably good friends, both inside and outside the work environment. Both agreed that the relationship had soured over more recent times. It would appear that the assault suffered by Mr Deegan, and his consequent personality change, may have contributed to this falling out. [51] The evidence of Mr Hamilton was:15
[52] Of his relationship with Mr Deegan, Mr Traill said:16
[53] There was further evidence involving an assertion that Mr Traill had been spreading rumours to the effect that Mr Deegan had been involved in cutting microphone cords. Mr Traill denied this, and, in any event, the timing of the assertion suggests that it should be disregarded insofar as a consideration of provocation is concerned. [54] Mr Deegan's evidence was, that after sounding the horn and waiting five or six seconds, Mr Traill "was just going to sit there". In closing submissions, Mr Collinson said that Mr Deegan took that as a slight, effectively thumbing his nose in that Mr Traill wasn't going to move his truck. Further, Mr Deegan's action was taken purely to allow him to carry out the course of his duties, rather than a deliberate act to somehow cause inconvenience to Mr Traill [55] Mr Collinson referred to Bishop v BTR Engineering,17 whereby Drake S.D.P. said:
Mr Collinson submitted that provocation was a very real consideration in this case. OH&S Guidelines and Policies [56] Immediately prior to the termination Mr Deegan was handed a letter, which said in part:18
[57] The Company document titled Employee Behaviour Standards, states as follows in relation to "Safety":19
[58] This document is supplemented by a series of documents known as Job Safe Practices [JSP]. Two such JSPs are relevant to this case, namely, JSP 13, Traffic rules - pedestrians and vehicles and JSP 24, Moving stock using the forklift.20 [59] JSP 13 contains the following references:
[60] Other than the requirement for valid certification and pre-operational checks, JSP 24 does not, on its face, contain any references of direct relevance to the instant case. [61] Mr Stannard said that the reason for the termination was pushing the vehicle, which was a breach of the JSP.21 Submissions of the Applicant. [62] Mr Collinson submitted that, if Mr Traill's original version of events was to be accepted, then he would not argue that there was no valid reason for termination. However, if Mr Deegan's version is to be accepted, then the termination is disproportionate to the gravity of the conduct, and, it follows there was not a valid reason for termination. Mr Collinson identified five factors which should lead the Commission to this conclusion. 1 Mr Deegan sounded the horn. [63] Mr Collinson said that he was not suggesting that Mr Deegan's actions were acceptable, indeed it could be categorised as misconduct. He said:22
[64] Mr Collinson submitted that the process of the investigation and subsequent interviews were sound and he did not raise any contentions as to lack of procedural fairness. The flaw, however, was that Mr Stannard did not reach a conclusion or finding on the critical factors of speed, distance and amount of force used. Mr Collinson said that this was a necessary precursor before going to the next step. That is, objectively viewing the circumstances, taking into account any mitigating factors, and then determining an appropriate response. [65] Mr Collinson submitted that it was not generally known that using a forklift to move a BT in an operational sense could, or would lead to dismissal. It was not specifically mentioned in the JSPs, and it had not been specifically raised by management until after Mr Deegan's termination. [66] Mr Collinson submitted that it was established in Shepherd v Felt and Textiles23, and confirmed recently in Concut v Worrell, that information coming to light subsequent to a termination can properly be used to justify that termination. He said that logically the converse should also apply. That is, the Commission, in objectively reviewing the fairness of the termination, should take circumstances that did exist at the time of termination, but may not have been known to the employer, into account. [67] Mr Collinson relied on the principle established in Laws v London Chronicle Indicator Newspapers:24
[68] Mr Collinson submitted that the onus was on the employer to prove the existence of serious and wilful misconduct and that it had failed to do so. It followed that there was not a valid reason for termination. [69] If the Commission was against him on this point, Mr Collinson submitted that, in accordance with s.30[6] of the Act, the termination was unfair in all the circumstances. He cited in support AMACSU and Migrant Resource Centre (Southern Tasmania) Inc, where the Commission as presently constituted said:25
[70] Mr Collinson said that that there was no evidence that would allow the Commission to conclude that reinstatement or re-employment was impracticable. The applicant sought reinstatement, but, in the circumstances, re-employment would do justice to the "balancing process" of recognising the primary remedy of putting people back in the workplace where unfairness is found, but not imposing a financial burden on the employer. Submissions of the Respondent [71] Mr Cameron submitted that the "fair go all round" test inherent in s.30[2] of the Act applies equally to employers as it does to employees. [72] To emphasise this point he referred to Peter Fraser & Anor v Transport Accident Commission26 in which Murphy JR referred to an unreported judgement of Moore J in Wadey v YWCA Canberra:27
[73] In a similar vein Mr Cameron referred to AWU and Pasminco Metals - EZ 28 which in turn adopted principles espoused in Loty and TEMCO:
[74] Mr Cameron contended that the issue was not what the Commission might have done faced with the same set of circumstances, but rather, whether it was a reasonable and rational decision on the part of Coles management to terminate Mr Deegan's services. [75] In relation to the incident, Mr Cameron said:29
And later:30
[76] Mr Cameron said that the person with the discretion to make the decision, Mr Stannard, had said that distance and speed didn't matter. The act was in direct contravention of the Employee Behaviour Standards and the State OH&S Legislation. Mr Stannard came to the rational conclusion that summary dismissal was justified. [77] Mr Cameron submitted that it was not necessary to codify every work practice, and that commonsense dictates that you do not use forklifts in the manner of the instant case. [78] Mr Cameron rejected the argument in relation to the alleged workplace culture and noted that it was not raised as a defence during the investigation process. He asked the rhetorical question:
[79] On the question of the degree of seriousness, Mr Cameron submitted that in terms of the London Chronicle Newspapers (supra) judgement, the action of Mr Deegan was wilful. He also referred to a decision of Watling C (as he then was) in AMIEU and Blue Ribbon Meat Products Pty Ltd.31. He said that the principle endorsed in this decision is that degree is not something to be considered in dismissible offences. [80] Mr Cameron referred to the history of warnings and counselling sessions, which had applied to Mr Deegan, and submitted that this amounted to a compelling reason not to consider reinstatement or re-employment, should the dismissal be found to be unfair. Findings [81] I acknowledge Mr Collinson's concession that, had Mr Traill's earlier version of events been accurate, this application would not, in all probability, have come before the Commission. Such an application would, in my view, be futile. I have, however, already made a finding that Mr Deegan's version of events is to be preferred. Not to take these significantly changed circumstances into account, notwithstanding that the employer may not have known them at the time, would in my view be grossly unfair. [82] The issue of procedural fairness does not arise in this case other than to observe that the investigation and subsequent interview process were exemplary. [83] The action of Mr Deegan was certainly inconsistent with commonsense OH&S procedures and can rightly be categorised as misconduct. The issue to be determined is whether the action constituted gross misconduct of such a nature as to justify summary dismissal. [See London Chronicle]. [84] I do not accept that the decision of Watling C in Blue Ribbon can be extended to mean that degree is not relevant when it comes to dismissible offences. Commissioner Watling was dealing with a case of dishonesty or theft from the employer, and such cases are invariably black and white. In the words of Mr Collinson, dishonesty " ... is an absolute concept. There's no degrees of dishonesty". [85] A breach of OH&S policy can never be condoned or overlooked. Notwithstanding, there are still degrees, ranging from, on the material before the Commission, presenting for work in sandshoes, to instances whereby there is a serious and immediate risk of injury. It is unrealistic to suggest that the response must in every instance be summary dismissal. [86] I do not accept that a workplace culture of hi jinks is a sound defence for a serious breach of OH&S procedures. I do however accept that, on the evidence before me, there exists in the DC a common practice of using forklifts to move BTs as a means of creating operational access. I also accept that, prior to Mr Deegan's termination, management had not raised this issue in the context of an unacceptable practice and likely to result in dismissal. [87] In Mr Deegan's statement it was said:32
[88] I am prepared to accept that Mr Deegan genuinely held these views, even if they were misguided. [89] Whilst the Commission is not in the position to make work place hazard assessments, on the evidence of Mr Hamilton and Mr Traill, the incident would appear to be at the lower end of the risk spectrum. [90] I acknowledge that Mr Stannard's evidence is that speed and distance is of no account. The only thing that is material is that sufficient force was used to propel the BT a distance. Yet Mr Stannard also said (quite rightly in my view) that he wanted to clear up differences between the two statements and to establish what sort of speed Mr Deegan was travelling at.33 It is a matter of regret that the real truth of the incident did not emerge until this hearing. [91] I accept that Mr Deegan was provoked by the manner in which Mr Traill refused to move out of the way. I also accept that Mr Deegan's only motivation was to be allowed to continue with his duties, and, short of taking a 200m plus detour, the action he took was the minimum necessary to achieve his objective. [92] Mr Deegan's employment record is far from blemish free. There is a history of warnings and counselling sessions that should not be disregarded. However, most of this occurred post the serious assault when Mr Deegan had been prescribed anti depressant medication and it is possible, perhaps even likely, that this was a contributing factor. I also note that, apart from one apparently minor incident more than three years previous, Mr Deegan had not been counselled in respect of unsatisfactory or unsafe use of vehicles. [93] I am of the view that the penalty of summary dismissal is quite disproportionate to the gravity of the incident. I therefore find that there was not a valid reason for the dismissal and it was therefore unfair. Remedy [94] Nothing was put which would bring me to conclude that reinstatement or re-employment is impractical. I propose to order re-employment from a prospective date. This imposes a substantial financial penalty (loss of approximately 14 weeks' wages) on Mr Deegan and sends a clear message to all concerned that such behaviour is unacceptable. I would also expect that Mr Deegan would recommence with the status of being on a genuine final warning, but that is a matter for the employer. Order Pursuant to s.31[1B] of the Act, I hereby order that Coles Myer Logistics Pty Ltd re-employ Mr Timothy Deegan in a position equivalent to that which he occupied immediately prior to 18 January 2002. Such re-employment is to take effect from the commencement of the normal shift on Monday 13 May 2002.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit R5 |