Mr Kiir Aguer v Temples (WA) Pty Ltd T/A Temples WA [2022] FWC 2014 (29 July 2022)

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] Mr Kiir Aguer (the applicant) has filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The respondent is Temples (WA) Pty Ltd (the respondent or Temples).

• [2] The application was the subject of a staff conciliation conference on 13 December 2021 however the matter was not resolved and was referred for hearing and determination.

• [3] At the hearing of this matter Mr Aguer gave evidence. For the respondent, evidence was given by Ms Jacquie Rumble (the respondent's RQC Officer), Mr Russell Patchett (the Operations Manager), Mr Mark McMullan (a forklift operator) and Mr Scott Formston (an employee of Temples).

• [4] Both parties at the hearing were self-represented.

• [5] In his application the applicant says he most recently began working with the respondent on 26 March 2020 but had previously worked for them in 2009, 2010 and 2014.

• [6] Temples is involved in a variety of transport and logistic activities. One of their activities is livestock transport where they are involved in catching live poultry, putting them in purpose-built modules and then transporting these to processing plants for Inghams Enterprises, a major poultry producer.

• [7] The applicant explained in his application that he works on Ingham chicken farms in Gingin, Northam, Mogumber and Perth.

• [8] The respondent explains that it has a chicken catching division that the applicant worked in. This operation is involved in picking up live chickens from farms and loading them into modules for transport to a processing plant.

• [9] The respondent's submission provides detail about the working area relevant to the applicant's dismissal. In this area chickens in a shed are caught and placed into the modules and those modules are then loaded by forklift on to an adjacent truck and trailer.[1]

• [10] The respondent's diagram shows the work area is divided into different zones. One is the catching zone, another is the designated drive area and finally there is the loading and unloading exclusion zone (LUEZ).

• [11] The LUEZ, commonly referred to as the exclusion zone, is where people are not allowed to walk whilst the forklift is moving the modules in or out of the shed. The catching zone is the safe area that people can work in. The modules create a natural barrier between the forklift movements and the employees catching chickens.

• [12] I accept the applicant was inducted into the respondent's general policy and safety procedures. Separately, in March 2020 he, as a chicken catcher, was also specifically inducted into poultry farm processes concerning loading trucks at the farm. This included traffic management rules regarding forklift/pedestrian zones outside and inside the sheds. He was shown how to identify forklift/pedestrian zones outside and inside the sheds.[2]

• [13] The applicant also attended a toolbox meeting on 23 August 2021 at Mogumber Farm No. 3 which discussed a range of safety issues including an incident where a catcher in New South Wales was killed walking behind a forklift in the shed. Specifically, traffic management dock loading and unloading, and exclusion zones was discussed[3].

• [14] The respondent's incident report explains the incident that occurred on the morning of 17 September 2021. The applicant and other workers were inside a poultry shed. The supervisor Mr McMullen was operating a forklift and moving a full module to create a barrier where chickens were running through a gap into the exclusion area. The forklift driver's visibility was obscured and he was being directed by another employee. At this point the applicant entered the exclusion zone and had his back towards the approaching forklift. The forklift driver became aware of the applicant and applied the brakes which cause the module on the forklift to move forward. The module struck the applicant causing him to fall down.

• [15] The evidence of Mr McMullen consistent with the incident report is as follows. Mr McMullen was putting modules into the shed to block chickens from running out. The chicken catchers were standing next to a module talking as he brought in the next module. One of the employees was directing him where to put the empty module to block the chickens. As directed, he then went to pick up the full module and as he picked it up and was driving forward his view was consequently obstructed. He then noticed the applicant had walked into the exclusion zone and was in front of the module. He slammed on the brakes which made the module slide forward and it knocked the applicant over. He says he got out and the applicant got up and said he had twisted his ankle.

• [16] Mr Patchett's evidence was that this day he received a call from Mr McMullen that the applicant had been struck by a forklift. He instructed him to return the applicant to the Inghams Osborne Park yard with the next available truck. He then informed Ms Rumble of the incident and together they drove out to Osborne Park to meet the applicant upon his arrival.

• [17] Mr Patchett's evidence was that when they spoke to the applicant and asked him what happened he told them that at the time he was struck by the forklift he had been in the exclusion zone. He said that the chickens had been escaping into the exclusion area and he had been attempting to herd them back. The applicant was asked if he felt able to drive home or if he would like them to drive him or get a taxi for him. He assured them he was able to drive.

• [18] Ms Rumble's evidence was that on 17 September 2020 she and Mr Patchett met the applicant when he arrived at Inghams yard at Osborne Park. Her evidence was similar to Mr Patchett's as to the discussion they had with the applicant.

• [19] She says later that day she spoke with Mr McMullen on the phone. He told her he had been moving modules inside the shed. He had his eye on the employee who was directing him where to put the module. His visibility in front was obscured by the module. When he noticed the applicant in the exclusion area in the path of the forklift he slammed on the brakes and the module slid forward on the tines and this is what connected with the applicant in the back causing him to fall down. He said other catchers had told him that they saw the applicant was in danger and were yelling at him to get out of the way.

• [20] Mr Formstom's evidence was that on 30 October 2021 he held a toolbox meeting with the majority of the catching team. There were approximately 12 catchers present including the employee who had been directing Mr McMullen on 17 September 2020. This employee asked how the applicant was progressing with his recovery. Mr Formstom says the employee made it clear that he had witnessed the applicant on 17 September 2020 in the exclusion zone and he had repeatedly yelled out to him to get out of the way because the forklift was behind him. He had said that the applicant didn't hear him. He saw the forklift driver hit the brakes once he was aware of what was happening and saw the applicant get hit by the module.

• [21] The applicant's evidence was that Mr McMullen, the supervisor and forklift driver did not hit or strike him in the exclusion zone as was claimed. His evidence next is that "for instance, when he hit me with the fork, he himself told me that he is wrong and sorry at the same time, and it was not because I was about fight him but his judgement."[4]

• [22] The applicant says he has not been served with any warnings verbal or written.

• [23] He says his side of the story was not taken into consideration by Temples.

• [24] He says he is not new to the company rules and safety having worked for the company in 2009, 2010, 2014 and recently from March 2020 to 17 September 2021, the date of the incident. Working for all these years around forklifts day and night was huge experience.

• [25] The applicant says he knew many people involved in work accidents who still work for the company if the accident was not serious, irrespective of whether it was their fault or not.

• [26] He says Mr McMullen, the supervisor and forklift driver, was known to be a reckless driver who would speed in the shed day or night. He says months before Mr McMullen hit him with the forklift, he quarrelled with another employee due to Mr McMullen speeding in the shed.

• [27] The applicant says the main reasons the respondent sacked him is that because of his injury they fear compensation will have to be paid in case his injury gets worse in the future.

• [28] Importantly, the applicant denies he was in the exclusion zone when he was struck by the module sliding off the forklift tines.

• [29] Contrary to this the evidence of Mr McMullen, was that at the time the applicant was struck he was in the exclusion zone.[5]

• [30] Mr McMullen's evidence at hearing is consistent with the Temples Incident Report[6] which he completed on the day of the incident. This report also includes a witness statement from Mr Matthew Basu, which says the applicant was walking in the exclusion zone.

• [31] In addition, both Mr Patchett's and Ms Rumble's evidence is that when they spoke to the applicant on the afternoon the incident occurred, he told them that he had entered the exclusion zone to herd the chickens out and it was at this point that he was struck by the nodule on the forklift.[7]

• [32] My conclusion, considering all the evidence, is that at the time the applicant was struck by the module sliding off the forklift he was in the exclusion zone.

• [33] Following the investigation into the incident Temples received an email from Inghams Enterprise's head of safety which relevantly states as follows,

"Just confirming Inghams's stance with Mr Aguer .... not to return to work, for Inghams, at any site pls, hardline but neither Inghams or Temples should have to tolerate a total disregard of Safety Rules/Traffic Management controls."

• [34] The respondent arranged a meeting with the applicant and the respondent advised him he was able to bring a witness if he wished.

• [35] At this meeting on 15 November 2021 the allegation was put to the applicant that he was clearly in breach of the rules around exclusion zones which is why he was injured. It was also explained to the applicant that the client (Inghams) had banned him from working on their sites.

• [36] The applicant responded that he was not in the exclusion zones and that the witnesses were making this story up and were not credible.

• [37] The applicant was asked if he had any other skills that the respondent could possibly use in other areas of its business.

• [38] The applicant responded that he had no other relevant skills that could be used elsewhere in the business.

• [39] Accordingly, the respondent decided to dismiss the applicant from his employment. A letter of termination was issued to the applicant on 15 November 2021 detailing the respondent's reasons for dismissing him.[8]

Section 387 of the Act, set out below, prescribes the matters the Commission must have regard for when determining whether an employee's dismissal was harsh, unjust or unreasonable.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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."

• [40] I will now consider the matters in section 387 and the circumstances of this case.

• [41] The evidence is that on 17 September 2021 the applicant, contrary to the safety rules he understood and had been trained in, entered an exclusion zone and was unfortunately injured.

• [42] There was no acceptable reason for the applicant to have ignored the safety rules.

• [43] The applicant's failure to follow the safety rules was a valid reason for his dismissal related to his conduct.

• [44] In the case of DA v Baptist Care SA[9] a Full Bench of the Commission explained that the concept of capacity in section 387 (a) of the Act, as a basis for a valid reason for dismissal, goes beyond the physical or skill capacity of an employee and also encompasses situations where employees do not have a necessary licence, certification, qualification or approval to lawfully perform the inherent requirements of their job.

• [45] The Full Bench then considered the responsibilities of an employer in circumstances where the capacity of the employee to perform their job is affected by the actions of a third party and in short held that the employer still has an obligation to treat the employee fairly. Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee's capacity is not affected by the third party's conduct.

• [46] In this case the respondent's client, Inghams Enterprises, has advised that in light of the incident on 17 September 2021 the applicant will not be allowed to work at any of their sites. There is no evidence that the respondent has any power to alter or modify or challenge Inghams's decision.

• [47] As to the capacity of the respondent to redeploy the applicant in light of Inghams refusing to allow him to work on their sites, the evidence is the respondent asked the applicant whether he has any skills that would allow the respondent to redeploy him elsewhere within his businesses, but he did not. Redeployment was considered but was not possible.

• [48] Consequently, my decision is that the applicant is no longer able to lawfully work on Inghams sites, which is separately a valid reason for his dismissal to do with his capacity.

• [49] I am satisfied on the evidence that the applicant was notified at the meeting on 15 November 2021 of the reason the respondent was considering dismissing him from his employment.

• [50] The applicant did have the opportunity to respond to the reason the respondent was considering dismissing him from his employment and did so at the meeting on 15 November 2021.

• [51] There was no refusal by the respondent to allow the applicant to have a support person present during discussions relating to his dismissal.

• [52] The applicant was not dismissed because of performance deficiencies so this criteria is not relevant.

Size of the enterprise and absence of human resource management specialists

• [53] The respondent has approximately 53 employees and so is a medium-sized business. It is not apparent the respondent has human resource management specialists in house.

• [54] In this case there were no deficiencies in terms of the procedures followed in affecting the dismissal.

• [55] Whilst the applicant had worked for the respondent on a number of prior occasions the employment relevant to this application began in March 2020 and continued through to 15 November 2021.

• [56] Considering all of the circumstances in this case there is no basis for the Commission to conclude that the applicant's dismissal was either harsh, unjust or unreasonable.

• [57] The applicant was not unfairly dismissed.

• [58] Consequently, this application will be dismissed and an order to that effect will now be issued.

[3] Attachment 3 to Exhibit 5, attendee 14

[8] Attachment A to F3 employer response form

[9] 2020 FWCFB 6046 at [69].

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