https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5408.htm

As indicated in the headline, this the nightmare that faces employers who have been accused of unfair dismissals: reinstatement. The decision is also worrying in that Commissioner Spencer took a very strict procedural approach and favoured the applicant’s evidence over that of the respondent. That is, in the Commissioner’s view, the respondent did not prove its case.

Also relating to the chronic lateness (albeit in some cases only minutes), noting that the applicant was working on a production line, where everybody needs to be in place at the allotted time, the Commissioner seemed to put more weight to the applicant’s personal circumstances than that needs of the respondent.

Two comments from my past come to mind:

  1. If you are not ten minutes early, you are late; and
  2. “You need to get your toenails cut…because they are obviously catching on your bedsheets and preventing you from getting out of bed”.

The Commissioner seemed to also mete out his own view of “punishment”. Whilst ordering reinstatement, the reinstatement was to be delayed by 14 days and there be no compensation for wages lost due to the dismissal. Or was this to compensate the respondent for the two weeks’ notice it had paid in lieu?

Background

The Applicant was employed as a process worker at the Respondent’s processing plant from 25 August 2017 until the termination of his employment on 18 January 2019. Throughout his employment, the Applicant was engaged as a casual employee – on a “regular and systematic” basis.

The Respondent submitted that the Applicant was counselled and disciplined throughout his employment for frequent lateness to commence work and for incorrectly packing poultry of a particular size into cartons labelled with a different size.

The Applicant was first spoken to about his late arrival for work on 29 November 2017, following three instances of lateness. He was issued a Written Warning for non-compliance with packing standards on 21 February 2018; and received a Final Written Warning on 7 November 2018 for non-compliance with packing standards, late arrivals and late returns to his workstation from meal or rest breaks.

The Respondent met with the Applicant on 22 November 2018 to discuss the Final Written Warning. The Respondent raised three issues with the Applicant: late arrivals, incorrect packing of product, and behaviour issues. The record of this discussion stated: “if this type of behaviour continues, the company will take disciplinary action and could lead to termination.”

The Respondent submitted that the Applicant subsequently arrived late to his workstation on 3, 4 and 15 January 2019 and left his workstation without permission from a team leader or supervisor on 4 and 17 January 2019.

On 18 January 2019, the Respondent invited the Applicant to show cause as to why his employment should not be terminated.

The Applicant submitted that he was one minute late on 3 January 2019 and that he had in fact, not been late to his workstation on 4 and 15 January 2019 as alleged by the Respondent. Further, he submitted that it was common practice for process workers to leave their workstations without informing a team leader, and he had acted in accordance with this practice on 4 and 17 January 2019 because he had needed to attend the toilet and was unable to find a supervisor.

The Applicant stated that it was common practice for his co-workers not to notify a supervisor or team leader when leaving their workstations. In his witness statement he submitted that:

everybody leaves their workstation on numerous occasions without telling their team leader;” and “Every day, someone would come up to me and say, “I’m going to the toilet” without telling their team leader.”

It was submitted that the evidence did not justify the warnings and that he had been treated differently to other employees, on the handling of these matters.

The Respondent submitted that it considered the Applicant’s responses at the meeting, but ultimately decided to terminate his employment on 18 January 2019. The Applicant received two weeks wages in lieu of notice.

Written warning

Notwithstanding the Applicant’s denial of the allegation that he had incorrectly packed a box on 6 February 2018, the Respondent issued the Applicant a Written Warning on 21 February 2018. The content of the warning was as follows:

“This is a WRITTEN WARNING for non-compliance to packing standards causing an error in orders which could have led to a serious customer complaint on the 6/2/18.

It is important all employees focus on the task at hand, if you are not sure of what is required Team Leaders are to assist. You have been trained in…Packing…requirements.

FUTURE BREACHES COULD RESULT IN FURTHER WARNINGS/OR TERMINATION.”

A handwritten note was added: “*PACKING INCORRECTLY N/O 11s INTO N/O 17 labelled cartons”

The Applicant wrote in the ‘Employee’s Response’ section:

I believe I didn’t do it. I don’t understand why I am getting a written warning when no one has gotten a warning for this befor.” (errors in original).

The Applicant submitted that on 6 November 2018 he was packing birds into a box labelled “14” when he approached by a team leader, who informed him that the birds he was packing were not the right size for a box labelled size 14. The Applicant pointed to the chute from which he was packing which was labelled “14”. He explained that he had asked and was told that all three chutes were for size 14 birds. The team leader informed the Applicant that this was incorrect.

At the meeting on 7 November 2018, the Applicant was told that he was receiving a Final Warning. The warning stated:

This is a FINAL WRITTEN WARNING for misconduct in non-compliance to packing standards and for late arrivals at the start of shift & returning from any meal or rest breaks.

You were observed packing two crates labelled Low Scold 14 with Neck out 10 birds, tying liner & pushing crates onto the GEMS belt.

This is an ongoing issue in the Whole bird packing area where people are not reading the labels & packing the wrong sized birds into the cartons or crates, resulting in customer complaints. You have been trained & signed off as competent on WB 009 Packing Whole Birds & Toolbox talks in regards to packing correctly & reading labels to ensure the product is packed to customer specifications.

You have also been cautioned on numerous occasions for late arrivals at the start of your shift & returning from break to your work area by the WB Supervisor & Team Leaders.

In accordance with the EBA signed & agreed on;

Clause 5.1.1(a) The following arrangements shall apply to the taking of breaks and rest periods.

‘Employees are to be at their workstation ready for work at the time nominated by the Company for commencing work. This includes at the commencement of work for the day and at the end of any meal or rest break.’

The ‘Employee’s Response’ section of the warning reads “DECLINED TO COMMENT.

The Record of Employee Discussion Form from the meeting on 22 November 2018 stated as follows:

“Due to a Final Warning being issued by your Manager/Supervisor, further discussion with you was required by the Production Manager to ensure you understand the severity of a Final warning. Any further breaches of non-performance compliances may result in termination of your employment with[the respondent].

Areas of discussion included;

  1. Late arrivals

This is your responsibility to ensure you are at your workstation ready for work at the time nominated by the Company for commencing work.

  1. Incorrect packing of product

Making sure you pack to Customer Specifications i.e. attention to detail, reading labels, packing correct amount of product, packing the correct sized birds.

  1. Work Performance in regards to behavior issues

In the past two months, you have had four formal complaints from different people in regards to your behavior. On two of these occasions there have been witnesses who have confirmed the complainants version of events.

Just this week you have had two new incidences, formal complaints in regards to your behavior. Once involved a WB team member & the second was the Canteen staff. This is the second complaint to come from the Canteen staff.

The Production Manager has made it clear to you that your Work performance & behavior towards others, being rude, abrupt & condescending will need to improve. If this type of behaviour continues, the company will take disciplinary action and could lead to termination.

Make sure you treat others in the way you would like to be treated & to walk away from confrontational matters.”

(errors in original)

The ‘Employee’s Response’ section of the warning was blank.

Show cause meeting

The Applicant submitted that he was told by his supervisor towards the end of his shift on 18 January 2019 to come with her to the management room as there was a meeting involving him. The Respondent’s Production Manager and the Production Supervisor attended the meeting; along with the Applicant and a union representative as his support person.

The Applicant was asked to explain why he had been late three times since his last warning. The Applicant submitted that he tried to explain that he had been having difficulties with the people he shared accommodation with, but he found it difficult to put into words how this had caused him to be late. The Applicant submitted that one of the people he lived with was “very difficult and unstable, and altercations of a morning would delay me leaving for work.”

The Applicant stated he told his Supervisor and Production Manager in the meeting that his accommodation situation was going to change and improve. He also stated that he tried to explain to [the supervisor] that on several occasions he had only been a few moments late and only metres from his workstation when he was due to start his shift, however, his [supervisor] “did not seem to be interested.”

Employee attendance measured by assigning a swipe card to each employee and requiring them to clock on and off at the start and end of their shifts by touching the swipe card against a card reader.

The Respondent submitted that it counselled the Applicant on numerous occasions in relation to his late attendance and made adjustments to his start time to assist him to attend work on time. However, the Applicant continued to be late.

The Respondent submitted that it had an internal absenteeism procedure which required employees to telephone an “Absence Hotline” before the start of their shift if they were going to be absent or late.

In summary, the respondent stated that it had difficulty with the Applicant’s time keeping but that the dismissal was based on the aggregate of the issues.

Importantly, the Production Manager for the Respondent gave evidence that that it would be rare for an employee to lose their job on the basis of a lack of punctuality, even though this was a significant issue when managing a workforce of some 1000 employees and the consequence of lateness meant increased pressure for others working on the chain of transitioning product, stating:

 “I don’t believe you should be allowed to sack someone or terminate someone’s employment for being late. That by itself, it’s not enough and should never be enough to do it”.

based on an analystic (sic) review of his performance as it is relevant to the disciplinary process at that time. So his final written warning absolutely plays part in that. The warnings before that also plays part in it, and the discussions that’s been had with him during that time which includes the coaching and/or the discussions that I’ve had with him subsequent to that.

The Respondent witnesses provided evidence that the consequences of incorrectly packaging heavier weight birds for customers, was that they had their cooking equipment was often programmed to cook birds of a particular weight. Accordingly, wrong packaging would result in the birds undercooked which may result in health concerns with chicken products. This could also lead to incorrectly recorded allergens, as well as from a business perspective, customer complaints for these errors or loss of business.

Commissioner Spencer finding:

The evidence of the Production Manager however, conceded that further reasons would normally be required to result in the termination of an employee. In the current matter the further reasons for the dismissal, the packaging issues and complaints of interactions were not firmly based on evidence. Therefore, as argued by the Applicant’s representative there is an unfairness with regard to the decision to terminate. It is agreed that the allegations supporting the termination have not been substantiated”.

The Commissioner also finding that:

“There was a lack of communication as to what specific incidents were relied on which undermined the Applicant’s opportunity to respond”. And

“The Written Warning dated 21 February 2018 was issued only for non-compliance to packing standards. It did not refer to lateness as a reason for the warning”.

The Commissioner’s findings are hopefully not a reflection that unfair dismissal applications are to be examined for every crossed t and dotted I, in that the term “procedural fairness” is to be doggedly followed:

“… I am satisfied that there was no valid reason and there were some associated procedural fairness issues in how the performance management was conducted and the dismissal implemented. The Applicant’s dismissal was harsh, unjust or unreasonable for the matters as set out, in relation to the reasons underpinning the dismissal”.

And every employer’s nightmare the applicant was reinstated to his former position – but with a sting:

  • The reinstatement would not occur until 14 days following this decision; and
  • There would be no compensation awarded for the lost time in between.