Abraham Valencia v Metecno Pty Ltd [2020] FWC 5327

1 Fair Work Act 2009 s.394—Unfair dismissal Abraham Valencia v Metecno Pty Ltd (U2020/10143) DEPUTY PRESIDENT MASSON MELBOURNE, 12 OCTOBER 2020 Application for an unfair dismissal remedy – safety procedure breach- valid reason found – application dismissed. [1] On 26 July 2020, Mr. Valencia (Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Metecno Pty Ltd (the Respondent). The application indicated that the date that the Applicant’s dismissal took effect was 24 July 2020. [2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me. [3] The Applicant filed written submissions and a witness statement with the Fair Work Commission (the Commission) on 26 August 2020. The Respondent filed its written submissions and witness statements in reply on 11 September 2020. [4] At a Mention/Directions Hearing conducted on 21 August 2020 submissions were sought from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Considering the number of witnesses and the parties wishes it was decided to set the matter down for a Determinative Conference on 8 October 2020. [5] At the conference the Applicant was self-represented and gave evidence himself. The Respondent was represented by Ms B Chalmers who is the Industrial Officer of the Respondent. Three witnesses were called to give evidence for the Respondent;  Mr. Steve Molini – Operations Manager  Mr. Dwaine McLean – Production Supervisor  Mr. Amarchund Harichund Ramnath – Mechanical Fitter [2020] FWC 5327 DECISION -- 1 of 14 -- [2020] FWC 5327 2 Background and evidence [6] The Applicant commenced employment with the Respondent at its Campbellfield, Victoria site on 13 December 2017 and was covered in his employment by the Manufacturing and Associated Industries and Occupations Award 20201(the Award). At the time of his dismissal he was employed on a permanent full-time basis on an hourly rate of $22.05. [7] The Respondent manufactures and supplies insulated panels from its Campbellfield site. As part of its operations at the site it has warehouse operations which the Production Supervisor, Mr McLean manages. In doing so he reports to the site Operations Manager Mr Molini. There were at the time of the Applicant’s dismissal approximately 7 staff that worked in the warehouse on a typical dayshift including the Applicant, who held the position of “Packer” which required him to operate an automatic wrapping machine known as the “Stargate”.2 [8] The Stargate is a large automatic circular wrapping machine used for packaging the Respondent’s products. The Stargate is enclosed by a safety fence several feet high through which entry is via a safety interlocked gate, the opening of which shuts down the wrapping machine. A feature of the Stargate is a heated cutting wire that automatically cuts the plastic wrapping once the product has been wrapped. According to Mr Molini the role of Packer is responsible for operating the Stargate and performing other duties including maintaining the area around the Stargate, cleaning any build-up of mould around the machine and providing relief to other Stargate operators.3 Mr Molini further states that the Packer’s duties do not include repairing and maintaining electrical machinery or equipment, that being the responsibility of the Mechanical Fitter, Mr Ramnath who possesses a Restricted Electrical Workers License issued by EnergySafe Victoria, otherwise known as a D License.4 [9] In his evidence the Applicant states the role of Packer required him to ensure the Stargate area remained operational by replacing plastic rolls, performing minor fixes like replacing the broken tension spring and repairing the heated cutting wire. He says these duties were all performed by a previous operator, that he had repaired the cutting wire several times previously, the most recent time being two days before his dismissal.5 The Applicant gave evidence that operators had been given a roll of cutting wire and tools to enable repair of the cutting wire when it occasionally broke. Mr Molini agreed with the Applicant on this latter point and explained that replacement of the cutting wire could only occur if the machine was shut down, deenergised and tagged out and is distinguishable from undertaking repairs to the electrical wiring. [10] The Applicant does not hold a relevant license in Victoria to undertake electrical work. He states however that he is an “Australian recognised tradesman (Electrical) and trained and practices overseas as a military aircraft technician with the Philippines Airforce and US Army”.6 He produced two certificates evidencing his qualifications, the first being a certificate of completion of an Aircraft Electrician Course at the US Army Aviation Logistics 1 MA000010 2 Exhibit R1, Witness Statement of Mr Steve Molini, at para [5]-[7] 3 Ibid at para [8] 4 Ibid at para [10], Exhibit R8, Witness Statement of Mr Amarchund Harichund Ramnath, at para [3] 5 Exhibit A1, Witness Statemen of Mr Abraham Valencia, at para [1] 6 Ibid at para [5] -- 2 of 14 -- [2020] FWC 5327 3 School dated 2 March 1988.7 The second was an Australian Recognised Tradesman Certificate for the classification of Ground Engineer (Electrical) issued by the Commonwealth of Australia on 14 December 1990.8 The latter certificate relevantly stated as follows; “This certificate does not entitle the holder to be employed on any operation for the performance of which the holding of a license or certificate is required by or under the law of the Commonwealth or of a State or Territory of the Commonwealth unless he/she holds such a license or certificate.” [11] Mr Molini and Mr McLean both gave evidence that they were unaware that the Applicant had the above-referred formal qualifications and in any case, he was employed in a role in which he was neither required nor allowed to carry out electrical repairs. [12] On the morning of 23 July 2020, Mr Ramnath’s was alerted to an issue by another employee Mr Dylan Spark regarding the cutting wire on the Stargate machine which appeared to be faulty. Mr Ramnath went and inspected the Stargate and observed that the electrical wire that connected to the cutting wire was short circuiting, that it was completely disconnected, was earthing onto the machine frame and that sparks were coming out of the wire. He was shocked by what appeared to be an attempted repair and believed that it was extremely dangerous.9 Further, he states that when the Stargate machine was turned on it could have resulted in the frame of the machine being energised which could have led to the risk of electrocution of the Applicant or other employees.10 [13] The Applicant challenged Mr Ramnath’s evidence that he was actually able to see that the damaged electrical wire was disconnected and sparking. The applicant states that when he repaired the electrical wire the end of the cutting wire was wrapped around the end of the electrical wire. He claimed that the repair he carried out to the Stargate machine electrical wire was a simple repair, the wire was not live at the time of the repair and was only live when the machinery was in operation. Further, the Stargate machine is located behind a safety barrier with an electrical safety interlocked door which when opened deenergised the machine. [14] Mr Ramnath disagreed with the Applicant and said he was able to clearly see that the damaged electrical wire was disconnected from the cutting wire and was sparking. He states that he went around to the back side of the Stargate machine to better observe the cutting wire. Mr Ramnath gave evidence that the EnergySafe Victoria Website clearly states that a Restricted Electrical Workers License is required to work on a piece of equipment if the equipment is fixed in position, directly connected to mains supply and requires isolation and disconnection to be repaired, replaced or maintained on site. According to Mr Ramnath the Stargate machine meets all the above-referred criteria.11 [15] Following his observation of the damaged wire Mr Ramnath went and spoke with Mr Mclean who came and inspected the machine. While doing so he was approached by the Applicant who advised him that he had previously reported the state of the wire to a 7 Exhibit A6, Qualifications of Mr Abraham Valencia 8 Ibid 9 Exhibit R8 at para [5]-[6] 10 Ibid at para [10] 11 Ibid at para [11] -- 3 of 14 -- [2020] FWC 5327 4 colleague. The Applicant also confirmed to Mr McLean that he had repaired the wire and had done so previously on several occasions.12 Mr McLean took a photo of the damaged electrical wire.13 [16] Having reviewed the faulty wire and spoken briefly with the Applicant, Mr McLean went to alert Mr Molini who immediately came down to the Stargate. On arrival at the machine Mr Molini observed the poorly repaired electrical wire. The Stargate machine had been shut down and was repaired by Mr Ramnath on the afternoon of the 23 July 2020. A photo of the cutting wire and connecting electrical wiring following completion of the repair was taken by Mr Molini.14 [17] On the morning of 24 July 2020 Mr Molini reported the incident to the National Operations Manager and General Manager, both of whom are based in Brisbane, before proceeding with an investigation of the incident.15 The Applicant was then approached by Mr McLean in the warehouse to request that he attend a meeting with Mr Molini and Mr McLean. During the walk to the meeting, during which Mr McLean accompanied the Applicant, a support person was offered by Mr Mclean. The Applicant declined the offer and in doing so stated to Mr McLean that he did not wish to have a support person as he knew the Company wanted to sack him.16 The Applicant was then interviewed by Mr Molini in the presence of Mr McLean in relation to the incident. The Applicant again declined an offer of a support person made by Mr Molini at the start of the meeting. [18] During the meeting the Applicant was advised by Mr Molini that he was not authorised to carry out electrical repairs, which was spelt out in the on-line safety induction which the Applicant acknowledged in his evidence he had completed.17 It was also put to the Applicant by Mr Molini in the meeting that he had ignored the Company policy on isolation of equipment. Specifically, he had failed to tag the faulty equipment, which was also contrary to the Company policy in which the Applicant had been trained and acknowledged.18 The Applicant admitted during the meeting with Mr Molini and again in his evidence that he had carried out the repair, that he had done so on previous occasions and that it was an easy fix. He stated that he did not believe the wire was live and he had carried out the repair to avoid machine downtime for the betterment of the Company. [19] After a short break of between 30-60 minutes to consider the Applicant’s responses, Mr Molini recalled the Applicant to the meeting in the early afternoon on 24 July 2020 and invited him to put forward any reasons why his employment should not be terminated. The Applicant replied by stating that he was a qualified aircraft technician, he only did what was expected of him and that he was being treated differently to other employees in circumstances of similar or more serious safety incidents and breaches. In reply Mr Molini advised the Applicant that; (i) he was not authorised to repair electrical equipment; 12 Exhibit R7, Witness Statement of Mr Dwaine McLean, at para [4]-[7] 13 Exhibit R2, Photo of attempted wire repair 14 Exhibit R5, Photo of repaired wire 15 Exhibit R1 at para [13]-[14] 16 Exhibit R1 at para [15] 17 Exhibit R4, On-line Safety Induction – Electrical Safety 18 Exhibit R3, Isolation, Tagging & Lockout Policy -- 4 of 14 -- [2020] FWC 5327 5 (ii) other incidents in the workplace were not related to and have no bearing on the current matter; and (iii) the performance of electrical work by other than qualified persons was contrary to Company policies. [20] Mr Molini then confirmed the Respondent’s decision to terminate the Applicant’s employment for serious misconduct and provided the Applicant with a letter dated 24 July 2020 confirming this. The letter relevantly stated as follows; “…… I refer to our meeting on 24.07.2020 which was attended by you, Steve Molini, Dwaine McLean. During the meeting we discussed your decision of your own accord to repair a damaged live electrical wire located at the “Stargate” packaging area. Without any authorization and or qualified electrical license. The Meeting was attended by you and Steve Molini, Dwaine McLean, and we spoke about the seriousness of your unsafe act or behaviour that could have placed yourself and others at risk of serious injury, also potentially damaging the machine. This has the potential to cause a serious and imminent risk to the health and safety to yourself and other employees. As discussed during the meeting, your conduct during that incident:  Was wilful or deliberate behaviour by you that is inconsistent with Metecno’s Safety Procedures, training, inductions and toolbox provided to you. Also potentially damaging the machine. We consider that your actions constitute serious misconduct warranting summary dismissal. ………….”19 [21] The Respondent having made the decision to summarily dismiss the Applicant for serious misconduct did not seek to rely on prior conduct of the Applicant which was referred to by the Applicant in his evidence. Specifically, the Applicant states that he had been subject to a previous formal warning dated 20 September 201820 and a final warning dated 5 December 201821 both of which warnings related to aggressive behaviour by the Applicant towards colleagues and which the Applicant claims were issued without proper investigation.22 The Applicant also gave evidence that he had been subject to bullying conduct in the workplace during 2018 and 2019 which he raised with HR.23 He says this conduct led him to seeking medical assistance from a psychologist in relation to mental health issues he suffered.24 19 Exhibit A2, Letter of termination dated 24 July 2020. 20 Exhibit A3, Warning records for the Applicant 21 Ibid 22 Exhibit A1 at para [2] 23 Ibid, Exhibit A4 Applicant response to warnings 24 Exhibit A1 at para [3], Exhibit A5, GP referral for mental health care plan -- 5 of 14 -- [2020] FWC 5327 6 [22] The Applicant in his evidence cited safety incidents involving other employees that did not result in dismissal which he says demonstrates that by his being dismissed he was treated unfavourably and harshly by comparison. He cited the following incidents; (i) Mr Mclean suffered an injury to a finger when it was partially severed when caught in an unguarded machine that was started by another employee. (ii) Employees were required to routinely stand on the conveyor to move panels that were stuck, such breach of policy being allegedly known to Mr Molini and Mr McLean. (iii) A safety door interlock mechanism for the saw room was bypassed which allowed entry without automatically shutting down the saw. [23] Mr McLean gave evidence on the incident that led to his finger injury. He states that the injury occurred during commissioning of a new piece of equipment in June 2018 during which minor adjustments were required to be made to rollers, which required stopping and starting of the machine. He further states that the commissioning process could not be undertaken unless the machine was on. It was during the process of making the required minor adjustments that his finger was caught and injured. Mr Mclean also gave evidence as to the investigation subsequently carried out by WorkSafe Victoria which resulted in guarding and other improvements which were carried out by the Respondent at a cost of approximately $200,000. According to Mr McLean, WorkSafe confirmed that the Respondent’s safety systems met the requisite standards and the investigation was resolved.25 [24] Mr Molini and Mr McLean both rejected the Applicant’s claim that the Respondent allowed employees to walk on conveyors. Mr Molini agreed that panels sometimes became stuck and that employees had been required to push the panels, but this was from beside the conveyor. He also states that modifications have been made to the conveyor to reduce the incidence of jamming and thereby limit the requirement to manually push panels. [25] With respect to the alleged saw room safety door interlock bypass, Mr Molini denied any knowledge of a deliberate bypass of the interlock mechanism. He did however acknowledge that at one point the interlock mechanism on the saw room door was not working properly and it had been necessary to repair it. During the period of the repair it was possible to enter the saw room without the saw shutting down. The consequent safety risk was however managed by the use of the “captive key” for the saw which was turned off if access to the saw room was required. This had the effect of deenergising the saw. Initial matters [26] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. In relation to the elements within s.396 of the Act, it was not contested, and I find as follows. Firstly, the application was lodged with the Commission within the 21-day period for making such applications (s. 394). Secondly, the Applicant was a person protected from unfair dismissal as he was covered by a modern award (s. 382). Thirdly, the dismissal was not case of genuine redundancy (s. 389) and finally, as the 25 Exhibit R7 at para [20]-[23] -- 6 of 14 -- [2020] FWC 5327 7 Respondent was not a small business as defined, the Small Business Fair Dismissal Code does not apply (s. 388). [27] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application. Was the dismissal harsh, unjust or unreasonable? [28] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [29] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.26 I set out my consideration of each below. Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? [30] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”27 and should not be “capricious, fanciful, spiteful or prejudiced.”28 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.29 26 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 28 Ibid. 29 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. -- 7 of 14 -- [2020] FWC 5327 8 [31] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.30 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”31 [32] I turn firstly to the alleged conduct of the Applicant. It is not contested by the Applicant that he attempted to repair the electrical wire that connected to the heated cutting wire on the Stargate machine. He also acknowledged that he done so previously on several occasions. He says he did this to avoid having to shut down the machine and, in the belief, that it was okay to do it because a previous operator had done so. Further, he did not believe the repair was dangerous and referred to his electrical experience and qualifications obtained during his time in the military. [33] The nature of the repair carried out by the Applicant was that he wrapped the loose end of the heated cutting wire around the exposed electrical wire that was not properly fastened to the relevant termination point. He argued that when he had repaired the red electrical wire it was not disconnected as shown in the photo taken by Mr McLean. In my view nothing turns on the fact that the red electrical wire in the photo was not connected to the cutting wire. That is because even if it were connected as the Applicant claims, it does not detract from the Applicant’s conduct in tampering with a live electrical wire in carrying out the repair. Furthermore, if it were attached at some point as the Applicant claims, it was plainly not attached properly if it was able to come loose subsequently. [34] The Applicant acknowledged that he was not licensed to perform electrical work. He also agreed that he was aware of the Respondent’s policy in relation to the tagging and reporting of faulty equipment and also that only licensed electricians (or apprentices under supervision) could service/repair electrical equipment. [35] As to the Applicant’s belief that his “quick fix” of the electrical wire was not unsafe, that view was strongly contradicted by Mr Ramnath who believed the repair to be very dangerous. Part of the Applicant’s belief as to the lack of danger lay in his view that the interlocked safety gate on the Stargate machine would operate to shut the machine down if anyone entered through the gate. On the basis of Mr Ramnath’s evidence which I accept, the Applicant’s view as to the lack of danger appears to miss the point that the live wire was sparking on the frame of the Stargate machine when it was in operation creating potential for the frame of the machine to have become energised, creating a risk of electrocution of anyone coming into contact with it or alternatively causing damage to the machine. [36] The fact that the Applicant may have had electrical experience and qualifications neither justifies nor excuses his conduct. Moreover, the fact that he held such qualifications renders the conduct all the more serious in my view as he ought to have known better than to tamper with electrical wiring when he was neither licensed, required or allowed by the Respondent to perform such work. I accept that Mr Molini and Mr McLean were unaware of the Applicant’s qualifications but even if they had been aware, the Applicant was still not 30 Edwards v Justice Giudice [1999] FCA 1836, [7]. 31 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. -- 8 of 14 -- [2020] FWC 5327 9 licensed to perform such electrical work. Nor does the Applicant’s claim that a previous operator performed the very same repair take his case any further. No evidence was adduced to support that claim and Mr Molini and Mr McLean both denied they were aware that the Applicant or any other operator carried out repairs to the electrical wiring on the Stargate machine. [37] It follows from the above that I am satisfied that the Applicant’s conduct of attempting to repair the electrical cable attached to the cutting wire on the Stargate machine was a deliberate and not inadvertent action, it was contrary to Company policy, was illegal as he was not licensed to undertake such work and critically it was likely to create a serious and imminent risk to the health and safety of the Applicant and other staff that might have come into contact with the Stargate machine. I am consequently satisfied that the conduct falls into the category of “serious misconduct” as defined at regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) in that the conduct caused serious and imminent risk to the health or safety of persons employed by the Respondent including the Applicant. [38] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct. This weighs in favour of a finding that the dismissal was not unfair. Was the Applicant notified of the valid reason? [39] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,32 and in explicit33 and plain and clear terms.34 [40] I am satisfied on the evidence that Mr Molini outlined to the Applicant during the meeting on 24 July 2020 the nature of his misconduct, that being he had carried out electrical repair work without an appropriate license and contrary to Company policy. [41] I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit, plain and clear terms. This weighs in favour of a finding that the dismissal was not unfair. Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? [42] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.35 32 Crozier v Palazzo Corporation Pty Ltd t/a Noble Storage and Transport (2000) 98 IR 137, 151. 33 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 34 Ibid. 35 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]. -- 9 of 14 -- [2020] FWC 5327 10 [43] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.36 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.37 [44] The Applicant agreed that he was called into a meeting on 24 July 2020 to discuss the Stargate wiring issue and that he was afforded an opportunity to respond and explain what had occurred. The evidence reveals that the Applicant agreed that he was not a qualified and licensed electrician but justified his conduct based on his other qualifications and that he had previously repaired the wire. He was also provided with an opportunity to give reasons why his employment should not be terminated. [45] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made. This weighs in favour of a finding that the dismissal was not unfair. Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? [46] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. [47] There is no positive obligation on an employer to offer an employee the opportunity to have a support person: “This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”38 [48] The Applicant states that he did not request a support person as he was unaware that the Respondent was considering the termination of his employment. That submission is at odds however with the Applicant’s reported comments to Mr. McLean as they were walking from the warehouse to the meeting with Mr. Molini when the Applicant said to Mr. McLean that he knew the Respondent was intending to dismiss him. The Applicant in his evidence did not deny making these comments. I accept Mr. McLean’s evidence on this exchange and on that basis the prospect of serious disciplinary action was clearly on the mind of the Applicant when he was offered a support person. I do not accept that the Applicant was unaware of the seriousness of the matter. He was offered a support person on at least two occasions and declined those offers. 36 RMIT v Asher (2010) 194 IR 1, 14-15. 37 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 38 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542]. -- 10 of 14 -- [2020] FWC 5327 11 [49] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to his dismissal. This weighs in favour of a finding that the Applicant was not unfairly dismissed. Was the Applicant warned about unsatisfactory performance before the dismissal? [50] The dismissal did not relate to unsatisfactory performance and while the Applicant had been subject to previous formal and final warnings, those warnings were not relied on or relevant to the Applicant’s dismissal. This factor is therefore neutral in the circumstances. To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [51] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This factor is therefore neutral in the circumstances. To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [52] The Respondent submits that despite the absence of a separate human resources department or specialist the Respondent followed appropriate dismissal procedures and did not contend that there was any impact on the process they followed. Having regard to the foregoing, I find that the absence of dedicated human resource management specialists and expertise did not impact on the procedures followed. This factor is therefore neutral in the circumstances. What other matters are relevant? [53] Section 387(h) requires the Commission to consider any other matters that the Commission considers relevant. [54] The gravamen of the Applicant’s submission in respect of s 387(h) is that the tolerance of the Respondent for breaches of safety policy in respect of other employees is a factor that weighs in favour of a finding that his dismissal was unfair. The Applicant cited various examples where he says similar or more serious safety breaches to that of his, had not led to the dismissal of other staff. Those incidents included; Mr McLean sustaining a finger injury, the deliberate bypassing of the saw room door interlock mechanism and management overlooking that employees were required to stand on the conveyor while pushing jammed panels. Mr Molini and Mr McLean strongly resisted the Applicant’s allegations that management ignored or tolerated safety breaches. [55] Turning firstly to Mr McLean’s finger injury incident, the evidence of Mr Molini and Mr McLean was clear and consistent in respect of the incident occurring during commissioning of a new machine. I am unable to find that Mr McLean deliberately ignored safety rules in circumstances where it was necessary for him to carry out minor adjustments of the machine while it was in operating mode as part of the commissioning process. My view is fortified by the fact that WorkSafe investigated the incident, agreed with the Respondent on -- 11 of 14 -- [2020] FWC 5327 12 guarding improvements to be made to the new machine and found that the Respondent’s safety practices met the requisite standards. I am not persuaded that the Respondent overlooked a breach of safety policy as contended by the Applicant in relation to the incident in which Mr McLean sustained a finger injury. [56] Turning now to the conveyor allegation, Mr Molini agreed with the Applicant that it had been necessary to sometimes push panels that became jammed on the conveyor. He disagreed however that it was necessary to get up onto the conveyor to push the panels and described the means by which employees were able to push stuck panels from the side of the conveyor. Furthermore, he rejected that management encouraged or overlooked the practice of employees getting onto the conveyor. While I cannot dismiss the potential that some employees may have taken it upon themselves to get onto the conveyor at some stage, I am unable to find that management encouraged or acquiesced in such conduct. [57] As regards the saw room interlock bypass allegation, Mr Molini gave evidence of a circumstance when the saw room door interlock mechanism was being repaired due to it being faulty. He also explained the steps taken to manage that risk during its repair through the use of the “captive key” to shut down the saw if it was necessary to enter the saw room. The Applicant disagreed with Mr Molini that the circumstances involved a repair to the interlock device, rather it was a deliberate action taken to bypass the safety device. Absent more compelling evidence I am unable to conclude that there was a deliberate action to bypass the saw room door interlocking device and that management was complicit in that action. [58] I now turn to one final matter and that is the belief of the Applicant that formal warnings previously issued to him and challenges he had raised with management regarding those warnings and his treatment had led to a desire of the Respondent to pursue his dismissal. No evidence was led by the Applicant save for the existence of those warnings and a belief on his part that they had played a part in his dismissal. I do not accept that there was any connection between the prior warnings, the various complaints raised by the Applicant and his dismissal. The dismissal of the Applicant was unrelated to those previous warnings which dated to 2018, the Respondent did not rely on those warnings and did not raise them in the material filed. I am not persuaded on the evidence that the Applicant was targeted by the Respondent because of prior events. [59] It follows from the above that I am not satisfied that management has been tolerant of other similar or more serious breaches of safety policies as contended by the Applicant. Nor am I persuaded that the Applicant was targeted by the Respondent and treated more harshly than other staff. Consequently, there are no other factors that arise that are relevant to my assessment as to whether the dismissal of the Applicant was harsh unjust or unreasonable. Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable? -- 12 of 14 -- [2020] FWC 5327 13 [60] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.39 [61] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal, it was carried out in a procedurally fair manner and there are no other factors that are relevant in the circumstances. Conclusion [62] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed. DEPUTY PRESIDENT Appearances: A. Valencia on his own behalf B. Chalmers for the Respondent Hearing details: 2020 Thursday 8 October Printed by authority of the Commonwealth Government Printer <PR723330> 39 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7]. -- 13 of 14 -- [2020] FWC 5327 14 -- 14 of 14 --