The applicant accepted he could have taken another route to do the job. However, this would have been longer and on unlevelled ground. Carrying liquid nitrogen required the shortest and safest path possible.

The applicant made it very clear to Mr Frost that when he saw the second sign and looked in his rear view mirror, he realised he was in an exclusion zone. It was not appropriate to reverse or stop the forklift and leave it unattended.

The applicant admitted that he had kicked the sign, but only after Mr Gourgaud had sworn at him.

He did not kick the sign towards the oven or towards any person. It was not kicked intentionally.

Mr Andrews had asked him 'what the fuck has happened', the applicant tried to explain, but Mr Andrews said 'I'm not going to argue with you'.

The applicant claimed signs were used in front of machines, not for erecting exclusion zones.

Mr Andrews had not contacted him to advise of the exclusion zone, which was the usual process.

The applicant disagreed that he had not apologised. He had responded to Mr Gourgaud by saying 'Sorry, I didn't see the sign.'

The applicant claimed that there was enough space to enter the exclusion zone without seeing or knocking over the first sign.

[22] The applicant said he was presently working as a casual and the work was very up and down. In the last week and a half he had only worked 3 days.

[23] In cross-examination, the applicant agreed that he was familiar with, and knew the meaning of the yellow 'Do Not Enter' signs. They are frequently used in the factory. He also agreed there were other paths he could have chosen, including one about 57 metres to the right of the path he actually travelled on. However, while it was accessible, it would have required him exiting the warehouse and travelling over uneven ground before re-entering the warehouse.

[24] The applicant insisted the path was obstructed by a truck. However, when he was asked why he did not mention the truck when confronted by Mr Gourgaud, he claimed he was not given an opportunity to explain. He also did not tell this to Mr Winterford and Mr Frost later that day when he was suspended. He claimed that he was just stood down and told an investigation was to be conducted. He believed it was futile to try and explain.

[25] The applicant deposed that the truck was about 2.5 metres wide and 1.7 metres high. He could not see the pathway beyond the truck. He believed the lid to the oven was on the ground. He had not seen any 'Do Not Enter' signs. It had taken between 23 to 27 minutes to collect 80 litres of liquid nitrogen. When he returned, the truck and trailer were there and he had no idea why they were. The applicant said he did not see the first sign, but when he looked in the rear view mirror, he saw a second sign behind him. In order to get around the truck, he veered round it at an angle. He necessarily had to go over the yellow lines. He said he could not do a wider turn because there was a cage and a pallet adjacent to the pathway. He maintained a directional path towards the bollard at the end of the oven. He believed he could manoeuvre himself quite clearly with adequate room past each side of the forklift.

[26] The applicant conceded he had obviously driven past the sign, but he had not seen it. He disagreed with Mr Gourgaud that given the tight squeeze with the obstruction, he would have had to have hit the sign or run over it. He claimed he was travelling very slowly and carefully, but disagreed that he could not have failed to see the sign. There was some disagreement about the height of the sign. The applicant believed it was 500 to 600 mm high, rather than a metre high.

[27] Once having seen the second sign the applicant noticed no crane or vehicle activity. He saw two persons in the oven and decided to proceed safely out of the area and continue forward. He had perceived no clear and present danger and believed it was safe to continue. Had the two people in the oven come out, they would have seen him coming. Nevertheless, he agreed that the two employees could have come out, at any time, and that there was a risk. The applicant maintained that had he seen the first sign, he would not have proceeded and would have sought an alternate route. He accepted that with the lid off the oven it was likely person/s were inside.

[28] The applicant denied he was angry when he kicked the sign. Rather, he was frustrated when he attempted to explain what happened and was verbally abused by Mr Gourgaud. The applicant denied the sign became airborne and travelled 10 metres towards the oven, nearly hitting Mr Schooth who was coming out of the oven. He believed the sign had flown 3 metres and landed next to the fence of the Zayer machine. He accepted that the sign was cracked in a number of places, but it was a 'flimsy' thing compared to a barricade or bollard. He regretted kicking the sign, but he had just been frustrated.

[29] The applicant accepted he had said 'Safety only suits Bradken when it suits Bradken'. He believed this was a reference to a number of things, not just the incident with the crane being unsafe, although he had taken it up with a number of people to no avail. He agreed he was not a health and safety representative. However, safety is every person's responsibility. The applicant had been told by both Mr Brand and Mr Gourgaud that the crane had been inspected by the manufacturer and declared safe. However, he did not believe they possessed the necessary mechanical or engineering skills to make that assessment.

[30] The applicant acknowledged that he had a disagreement with Mr Frost about 3 months earlier when he was found working in the paint shop, without being inducted and without authority. Even so, the applicant said Mr Frost was pleased with the outcome of the job and nothing further was said about the incident.

[31] The applicant rejected Mr Frost's view that he could not have failed to have seen the sign. He believed he had done the right thing and made the correct decision. He denied that he was still simmering from the incident the day before, and as an act of defiance, went through the exclusion zone and kicked the sign. He was focussed on the job at hand to safely get the liquid nitrogen back to the job.

[32] The applicant was asked about Mr Campbell's statement, his supervisor in the machine shop. The applicant agreed he had not been asked to operate an unsafe crane. He had told him, 'it doesn't matter who I speak to, no one listens.' He denied being irritated by the situation. He claimed he was an employee who went above and beyond what other workers do. When asked, he would work on weekends for 12 hours a day.

[33] In re-examination, the applicant claimed he had drawn a map for Mr Frost on 12 December 2012, on which he indicated the truck blocking the path. He believed he discussed the truck with Mr Frost at the time. The applicant insisted that it had been the usual practice to drive past the oven in a forklift.

[34] He also said that he had not been shown a crane repair certificate which Mr Frost said he had shown to Mr Franklin. As far as he was concerned, the crane safety issue was unresolved at the time of his dismissal.

[35] Mr Franklin is an organiser for the Australian Manufacturing Workers' Union (AMWU) for the site and has been responsible for his members there since 2008. The applicant was an AMWU delegate.

[36] Mr Franklin said he attended the site on 4 December 2012 to hold a meeting of AMWU members. The applicant raised with him a safety concern about a crane. Mr Franklin raised the matter with Human Resources Officer, Mr Winterford who told him all the relevant documentation was available and trial lifts had been conducted demonstrating the crane to be safe.

[37] On 12 December 2012, Mr Franklin attended a phone meeting with the applicant, AMWU delegate, Steve Jones and company representatives, Mr Gary Frost and Mr Winterford to discuss an incident on 6 December 2012. He recalled the following:

• the company representatives accusing the applicant of seeing the 'Do No Enter' sign and deliberately driving around it and entering the exclusion zone;

• the applicant denied the allegation, but admitted kicking the sign over;

• the applicant had said that this had been the first occasion an exclusion zone had been erected around the oven; and

• the Company representatives saying the signs were big enough to be seen.

[38] Mr Franklin recalled that he had said that the tank of liquid nitrogen may have obstructed the applicant's view and it was possible he did not see the signs, especially with a truck which was obstructing the path. At the conclusion of the meeting that the applicant was dismissed for a wilful breach of safety by entering the exclusion zone and that he had kicked the sign over.

[39] Mr Franklin has known the applicant for a number of years. He believed he took his job extremely seriously and often worked 7 days a week. He also knew him to be outspoken. He would not shy away from raising legitimate workplace concerns with management. The applicant told him he was extremely upset and disappointed by his dismissal because he had been a committed employee for a long time.

[40] In oral evidence Mr Franklin said he could not recall all of the matters Mr Frost said had been raised with the applicant during the meeting. Mr Franklin believed the truck had obscured the applicant's view of the first sign and a second sign was visible only when the applicant had entered the exclusion zone. At that point he stopped, assessed the situation and proceeded on with a tank of liquid nitrogen. Mr Franklin also deposed that the applicant had openly admitted kicking the sign over, but only after he was shouted at and abused by Mr Gourgaud.

[41] In cross-examination, Mr Franklin was asked to identify photographs of the area where the incident had occurred. Mr Franklin acknowledged that there were other options the applicant could have taken to carry the liquid nitrogen to the other end of the warehouse. He agreed the yellow line markings (gangways) were placed to ensure as far as possible pedestrians do not intersect with forklifts. Mr Franklin claimed he learnt of the obstructing truck when he spoke to the applicant before the 12 December 2013 meeting. He agreed he did not mention this in his statement.

[42] In re-examination, Mr Franklin said that pedestrians can and are required to walk outside the yellow line makings. They serve as a guide to ensure a clear thoroughfare. Nevertheless, he agreed that there would be some intersection between forklifts and pedestrians.

Three of the respondent's witnesses were not required for cross examination - Mr John Campbell, Mr Robert Brand and Mr David Taylor.

[43] Mr Campbell is the supervisor of the machine shop. He was advised of the incident on 6 December 2012 and escalated it to Mr Frost. When he, Mr Frost and Mr McLeish discussed the incident, Mr Frost suggested that the applicant be stood down, and an investigation be commenced. This would allow that the applicant to 'cool down' before providing the company with his side of the story.

[44] Mr Campbell took the applicant to Mr Winterford's office, who had said, 'I think you know why you are here.' At no time did the applicant request a support person. Not much was said in this meeting, although Mr Campbell denied saying to the applicant, 'I told you to keep your head down.' Rather, he had said that he needed to stop bringing unwanted attention to himself and he should think about things before he acts.

[45] Mr Campbell said he had a reasonable working relationship with the applicant. However, he believed he would bend the rules and do things his own way in order to get his point across. He would never acknowledge any wrongdoing, but had, on a few occasions, quoted the wrongdoings of others.

[46] Mr Campbell said that no one had ever requested the applicant operate an unsafe crane. This was a completely separate issue to his safety breach on 6 December 2012. A green form had been created because other employees felt unsafe working with the applicant. The Company was then obliged to investigate the matter and determine what action to take. Mr Campbell had nothing to do with the applicant's termination of employment.

[47] Mr Brand confirmed that the applicant had approached him around September 2012 about his concerns over the safety of one of Bradken's cranes - the cable from a decommissioned 50 tonne crane was swapped to a 35 tonne crane which was having issues with its cables. Kone inspected and approved the cable and it was fitted by another crane company, because Kone was unavailable.

[48] The applicant raised his concerns with Mr Taylor and then Mr Brand. He had tried to explain that the 50 tonne cable was safe and more than suitable. He told him to let it go. Mr Brand thought the applicant would become obsessed and unhappy at not getting his own way. He tried to unsuccessfully reason with him. Mr Brand said that given Kone were the experts and the crane had been certified safe, he believed it to be so.

[49] Mr Brand also understood that since the applicant was promoted to Leading Hand, he tended to interfere in areas which were not in his control. For example, he would go to the fabrication site when his responsibilities were on the main site.

[50] Mr Brand said that exclusion zones on the site could include barricades, tape or the plastic 'Do Not Enter' signs. If these signs are not observed, individuals can be reprimanded.

[51] Mr Taylor's evidence was that he had seen exclusion zones around the ovens and it is common knowledge not to enter. He said that breaches of safety, depending on the seriousness, can result in instant dismissal.

[52] Mr Frost was advised by Mr Campbell on 6 December 2012, that a 'green form' had been filed against the applicant. It was decided to stand him down with pay in order for an investigation to be conducted. As the applicant was an AMWU delegate, Mr Frost wanted to ensure he was adequately supported through the process. He spoke to another Union delegate, Mr Jones, and the Union Organiser, Mr Franklin. Mr Frost arranged for a meeting involving Mr Franklin on 12 December at 1:00pm.

[53] After an investigation by Mr Winterford, Mr Frost reviewed statements from three persons and some photos. He understood that an exclusion zone had been set up around the oven area because the lid of the oven needed to be moved and two workers, Mr Chris Schooth and Mr Mark Fraser, were performing work inside. Mr Gourgard was outside the oven and saw the applicant on a forklift inside the exclusion zone. When Gourgard spoke abruptly to the applicant about him entering the exclusion zone, the applicant got off the forklift and kicked the 'Do Not Enter' sign.

[54] At the meeting on 12 December 2012, Mr Franklin attended by phone and Mr Jones was the applicant's support person. Mr Frost said he was confused when the applicant began by saying, 'I must do what I must do'. He did not appear to show any remorse or any concern for the seriousness of the situation.

[55] Mr Frost said the applicant explained he was transporting the liquid nitrogen by the quickest, clearest path. He said a truck was parked at the beginning of the pathway and there was a pallet next to the fence. He manouvered the forklift between the truck and the pallet and explained this through a drawing he had made. He had not seen the 'Do Not Enter' sign. He explained that when he saw the second sign, he stopped and Mr Gougard approached and swore at him: 'Didn't you see the fucking sign?' When he kicked the sign, he had said 'Bradken is only concerned about safety when it suits Bradken'. The applicant described the sign as 30cm high with 'Do Not Enter' on both sides. He admitted that there was another route, but it was not the quickest. Mr Frost believed the route he took was not the clearest.

[56] Mr Frost said he was concerned about the applicant's responses, in that not only had he entered the exclusion zone, he also:

had driven behind a truck without knowing if it had a driver or if it was likely to reverse;

crossed safety lines in order to get around the truck;

knew that there was another way to get to where he needed to go, but chose an obstructed path;

had seen the second 'Do Not Enter' sign and driven past it and only then stopped, when he should have stopped immediately; and

had kicked the 'Do Not Enter' sign when he had been reproached about his conduct.

[57] Mr Frost believed the applicant's actions were very serious, given the vicinity of the oven. The respondent's protocol requires no traffic is permitted near an open oven as the lid can move if it is bumped and the door of the oven poses a 'blind spot' for the workers inside. They can step outside the oven and not be seen by any passing traffic.

[58] Mr Frost noted that the applicant was a Leading Hand and had been employed since 2004 and was well aware of the safety procedures surrounding the oven. This was not the first time an exclusion zone had been set up around the oven. Mr Schooth and Mr Fraser were lucky that they had not been hit by the forklift or the sign when it was kicked.

[59] Mr Frost said that he had not made any decision about the applicant's future until he heard his explanation. Had there been conflicting statements, the witnesses would have to be re-interviewed. But what the applicant had explained was consistent with the statements of Messrs Schooth, Fraser and Gourgard. However, the applicant's version of events gave him more reasons to be concerned.

[60] Mr Frost chose to dismiss the applicant summarily for his wilful breaches of the safety procedure. He was saddened by the decision because the applicant was a longstanding employee. The applicant then told him he failed to take his medication that day. Mr Frost was unaware that he was taking medication and he later learned he had not told his supervisor, which was itself a breach of the respondent's workplace health and safety policy.

[61] Mr Frost referred to an incident about three months earlier in which the applicant had been performing work in the paint shed unqualified. When Mr Frost queried him, he admitted he had known he was unqualified, but just wanted to get the work out. Mr Frost gave him a verbal warning and told him he understood what he was trying to do, but it was inappropriate and unsafe. Mr Frost acknowledged he did not escalate the matter as he thought the applicant accepted his criticism and was unlikely to do it again.

[62] Mr Frost was aware of the applicant's complaints about the safety of the crane. Mr Franklin was shown the crane's repair certification and explained the cable was safe. Mr Frost said that at no time was the applicant ever asked to work on an unsafe crane.

[63] In cross examination, Mr Frost said he believed that the respondent conducted a thorough investigation before he had made the decision to dismiss the applicant. Mr Winterford had conducted the investigation and Mr Fraser had reviewed all the evidence with reference to the respondent's various safety policies and processes. Mr Frost denied that the process around the oven and its lid, was a new process that was being reassessed. He believed the existing Job Safety Analysis (JSA) had been in place for quite a while. He was not aware Mr Schooth had been directed to reassess the process. Mr Frost accepted that it was possible that the previous process permitted forklifts to drive past the oven even, while employees were working in the oven. However, this was not the policy at the relevant time, following a review of the JSA, which identified a risk.

[64] Mr Frost conceded again that, prior to this change, the applicant could have driven past the oven with employees working in it. Mr Frost believed the change in policy would have been communicated to employees through toolbox meetings. Mr Frost agreed it was possible the applicant might not have been aware of the change in the JSA.

[65] Mr Frost deposed that no other witness referred to a truck blocking the pathway and because the camera footage only lasted for seven days, there was no CCTV footage to confirm the applicant's claim about the truck. Mr Frost conceded that he had only asked other witnesses about the truck after the applicant was dismissed. Nevertheless, Mr Frost could not accept the applicant had not seen the first 'Do Not Enter' sign. He had said he had stopped after seeing the second sign. However, he would have had to go round the sign or over it. It was impossible not to have seen it. As a result, two guys could have been seriously hurt. Mr Frost also speculated that the applicant may have actually moved the first sign. He added that he could have navigated around the sign without any truck being there.

[66] Mr Frost explained the JSA process. It involves establishing any risks and talking to employees associated with the job. This is reviewed by the Safety Committee and eventually signed off by Mr Frost. The JSA is not reviewed every day, but only if the process is changed. Mr Frost identified Item 7 of the relevant JSA as follows:

Risk control measures and systems that must be implemented to eliminate or reduce the risk of injury

Establish an exclusion zone for placing the oven lid on the floor if not enough room leave it suspended safely

Operators must ensure that all personnel not involved with lifting the oven lid are kept out of the exclusion zone.

Operators are to erect barricades or tape area off to prevent personnel entering the exclusion zone needed to lift and place the oven lid.

Exclusion area where oven lid placed must be clear of obstacles and obstructions (e.g. Cables, leads, machinery, etc)

[67] Mr Frost did not believe it was necessary for a supervisor to advise of any exclusion zone, as it would be self evident from the barriers and the signs. A sign was sufficient in this instance. He regarded a sign as a barricade. Mr Frost agreed that in transporting liquid nitrogen, the forklift driver should avoid leaving the building and take the shortest and safest route.

[68] Mr Frost said that the issue of the truck only came into play in the meeting of 12 December. No one else had mentioned it. It was just another dimension to the risk. He said that the presence of a truck also created a risk, because it could have moved if the brakes failed. But the key issue for Mr Frost was that he believed the applicant had seen the first sign and decided to pass it.

[69] Mr Frost referred to the yellow walkway markings and said that generally forklift drivers do not cross the lines unless delivering or collecting from a work station. People and forklifts can be in the same zone but people have priority. Mr Frost had put to the applicant that he would have had to cross the lines and there was no way he could do so without knowing the sign was there.

[70] In respect to the paint shed incident, Mr Frost said the applicant was actually congratulating himself for wanting to get the work out. Mr Frost also asked Mr Campbell to have a chat with the applicant. Mr Campbell had reported back that the applicant was not talking to anyone. However, he agreed that no disciplinary action was pursued.

[71] Mr Frost was asked about the reference to summary dismissal and disciplinary action in the employee handbook. Each case is looked at on its own merits. Mr Frost believed that the paint shed incident involved conduct which gave rise to disciplinary action under the policy. He agreed that the wilfulness of the conduct is important in determining serious misconduct.

[72] In re-examination, Mr Frost said he believed the JSA had changed at least a couple of weeks ago. Since that time, the new process had been followed. Mr Frost said the critical issue for him was that it was not possible for the applicant not to have seen the sign, even if a truck was there. In answer to a question from me, Mr Frost said that certain other safety processes would have been necessary if a truck had entered the warehouse and been close to the oven.

[73] Mr Andrews was in his office on the day of the incident. He was unaware if there was a truck parked at the beginning of the walkway and could not see the area from his office. It was not his duty to inform the applicant of any trucks in his work area and he was not required to notify every employee where an exclusion zone is set up as the safety warnings speak for themselves.

[74] On that, Mr Mark Fraser came into his office and said: 'Who the fuck does Travis think he is? He went into a no go zone with a forklift and when Gourgard had a go at him, he got off the forklift and kicked the sign.' Mr Andrews said that Mr Fraser did not need his permission to complete a green form. Mr Andrews went to the applicant and told him what Mr Fraser had said and whether it was correct and he replied, 'Yeah.' When he asked why, the applicant replied: 'Who are they to talk about safety?' Mr Andrews said this was irrelevant and his actions showed a complete disrespect for safety. He explained a green form was being prepared and he needed to speak to Mr Frost. The applicant replied, 'I will deal with it when it comes.'

[75] Mr Andrews deposed that it is common to have exclusion zones around ovens using tape, signs or barriers. The applicant was familiar with this process and this was not the first time such exclusion signs had been set up around the area.

[76] Mr Andrews had also been involved with the applicant's issue with the crane, but he had assured him the crane was safe and certified. The applicant did not think this was enough or agree with it.

[77] Mr Andrews agreed the applicant told him the applicant was on medication around 8 November 2012. This was an off the record conversation and the applicant did not disclose and nor did he ask because did not want to pry, what medication he was on. At no time did the applicant tell him what medication had been prescribed or what the side effects were. Had he done so, Mr Andrew would have referred him to Mr Winterford of the workplace health and safety representative to discuss the matter and the applicant would have been required to fill out a Medical Declaration Form. Supervisors are then advised of any arising restrictions.

[78] In oral evidence, Mr Andrews said he was the applicant's supervisor that day and he had instructed the applicant to collect the liquid nitrogen. He did not need to tell him what to do as he was experienced at doing it. Mr Andrews did not go and inspect the scene of the incident.

[79] In cross examination, Mr Andrews agreed that a new JSA had been recently developed for the ovens, but was not aware Mr Schooth had developed it while on light duties.

[80] Mr Andrews agreed that on some occasions, he would be advised of exclusion zones, but always. He would not inform the applicant in any event as the signs speak for themselves. He disagreed with the applicant that he would be advised of any exclusion zones.

[81] As to the conversation with the applicant immediately after the incident, the applicant had not said he had not seen the sign. Mr Andrews agreed the applicant may not have been told about the change in policy, but it had been applied previously and, in any event, you cannot miss seeing the signs or understanding what they mean.

[82] Mr Andrews could not recall seeing any medical certificate from the applicant in November 2012. Had he done so, it would have been sent over to the main administration and an application for leave would have been processed. It was not possible that he had missed seeing the certificate.

[83] In re-examination, Mr Andrews reiterated the policy changed about a month or two earlier, but had been put in place three or four times prior to 6 December 2012 as the oven is frequently entered by employees.

[84] Mr Gourgaud was working in the ovens with Mr Schooth and Mr Fraser on the day of the incident. He had set up an exclusion zone around the oven because they were working in it and the lid was off. This was to prevent injury if the employees stepped outside the oven in the path of a forklift and to prevent others being injured if parts of the oven fell on them. 'Do Not Enter' signs were placed on the pathway round the oven. This was not the first time an exclusion zone had been set up round the oven, in line with workplace health and safety requirements.

[85] Mr Gourgaud said when exclusion zones are set up, department supervisors or leading hands working in the area are notified. Tape and barricades are also used, but mean the same thing as the signs.

[86] Mr Gourgaud could not recall a truck parked near the entry of the path. However, he was '99% sure' that in order to get past the first sign, you would need to move it or run over it. Mr Gourgaud said he heard a forklift coming, approached the applicant and said: 'Didn't you see the fucking sign? We shouldn't have bothered putting them up.' Mr Gourgaud said he was angry because two guys were in the oven and if they had exited, they could not see any approaching forklift and could be hit.

[87] Mr Gourgaud claimed the applicant started swearing and yelling about safety. He got off the forklift and kicked the sign towards the open door of the oven, nearly hitting Mr Schooth, who had come out because of the yelling. Mr Gourgaud said he was shocked by the applicant's reaction. Normally, in such circumstances, the employee would move away and apologise. The applicant's reaction was unacceptable as was his kicking of the sign.

[88] Mr Gourgaud could not understand how the applicant could have not seen the signs. There was not enough space to get around the signs without moving them or knocking them over. They were still in place when Mr Gourgaud came over. No individual should move a safety sign in any event. Mr Gourgaud believed that the signs would still be visible from the forklift. Given the serious breach of safety, Mr Fraser and Mr Gourgaud decided to put in a 'green form'. He would not have done so if it was not serious.

[89] In oral evidence, Mr Gourgaud clarified that it was one of his team who contacted Mr Andrews about the exclusion zone. Mr Gourgaud was not the applicant's supervisor. He agreed the JSA for the ovens had changed about a month earlier. He also agreed that previously, forklift drivers could drive past the oven when other employees were inside.

[90] Mr Gourgaud confirmed that his responsibilities extended to informing the supervisor that an exclusion zone was in place. Mr Gourgaud agreed that the JSA required barricades or tape to prevent personnel entering the exclusion zone. However, the 'Do Not Enter' signs had the same effect, although they do not physically prevent anyone from entering the site.

[91] Mr Gougaud believed that there was not enough room to maneuver the forklift around the signs without seeing them. He first observed the applicant near the second sign. He did not think he was on a forklift at the time, but was bringing items to get ready to load in the oven. He was on the other side of the yellow line markers and the applicant was moving when he first saw him. Mr Gourgaud agreed that the applicant did not 'line up' Mr Schooth and Mr Fraser when he kicked the sign. They had seen the sign go past the doorway to the oven.

[92] Mr Fraser was working with Mr Schooth and Mr Gourgaud in the oven on the day of the incident. He recalled helping put out the 'Do Not Enter' signs to create an exclusion zone. The exclusion sign was to ensure no one entered the area in order to protect the people working inside the oven. Mr Fraser said that this was not the first time an exclusion zone was set up around the ovens in the last two or three months. While they could have used tape or barriers, the 'Do Not Enter' signs mean the same thing and speak for themselves. Supervisors were also notified.

[93] Mr Fraser deposed that while he and Mr Schooth were working in the oven, they heard a forklift go past and heard Mr Gourgard yelling. Just as they were about to walk outside to investigate, a yellow safety sign flew past the door and almost hit Mr Schooth.

[94] Mr Fraser said that when they came out they saw and heard the applicant carrying on and yelling at Mr Gourgard. He had said words to the effect of 'You do things the wrong way every day,' and 'Bradken is only interested in safety when it decides to.' Although employees swear at each other all the time, Mr Fraser believed the applicant had overreacted while Mr Gourgaud let him continue the rant. Mr Fraser said he and Mr Gourgaud were pretty angry about what had occurred and decided to fill out a green form.

[95] Mr Fraser described the applicant as an 'OK bloke.' He was only difficult if he wanted to do things his particular way. Mr Fraser believed he was upset from the day before, because he spoke to him about the allegedly unsafe crane.

[96] In cross examination, Mr Fraser agreed that the JSA establishing the practice of erecting exclusion zones around the ovens was developed about one month earlier. Previously, forklifts could drive past the ovens when the lid was off. As they had removed the lid that day, they were required to observe the JSA and establish an exclusion zone. Mr Fraser was unsure who had told Mr Andrews of the exclusion zone.

[97] Mr Fraser conceded that the applicant had not tried to kick the sign towards them and he may not have even known anyone was in the oven. Mr Fraser could not recall seeing any truck blocking the pathway. He agreed that a truck could have parked there while he and Mr Schooth were in the oven.

[98] Mr Winterford was contacted by Mr Frost on the day of the incident about a safety breach involving the applicant. He then phoned Mr Campbell and asked him to bring the applicant to his office. At no time did he request a support person.

[99] Mr Winterford said that while he had told the applicant he was to be stood down, he had very little information at that point. Mr Campbell told the applicant, 'Things have been building up. I've told you that you should be concentrating on doing your job and getting on with the work you need to do.' The applicant left the site.

[100] Mr Winterford arranged a meeting with the other Union delegate and Mr Franklin as he wanted to give the applicant a chance to have Mr Franklin assist him. Mr Winterford was also aware that the applicant was having some issues outside of work and he was concerned for the wellbeing of all involved. At this meeting, Mr Frost explained what had happened that day and that the Company was conducting an investigation and would be obtaining statements. The Company wanted to organise a time to hear the applicant's side of the story. Arrangements were made for the 12 December meeting. Statements were obtained from Mr Fraser, Mr Schooth and Mr Gourgard. Photos were taken of the area.

[101] Mr Winterford determined that an exclusion zone had been set up around the oven while two employees were working in the oven. Statements from the witnesses indicated that the applicant entered the exclusion zone and stopped when approached by Mr Gourgard, got off the forklift and kicked the 'Do Not Enter' sign back towards the employees who were in the oven. Mr Winterford took this matter very serious as a threat to workplace health and safety. He was also concerned at the applicant's volatile behaviour.

[102] Mr Winterford deposed that he was called by Mr Franklin at approximately 12:50pm on 12 December to ask if the meeting could be postponed. The position of Bradken was to decline this request as the meeting had already been organised with Mr Franklin's schedule in mind and the Company wanted to speak to the applicant as soon as possible. Mr Winterford asked the applicant if he would consent to proceed with the meeting with the Union delegate there in person and Mr Franklin participating by telephone. The applicant briefly discussed this privately with Mr Jones and Mr Franklin (who was on the phone) and then indicated that he would like to proceed as proposed.

[103] Mr Winterford said that Mr Frost told the applicant at the start of the meeting that the intention was to gather the facts and to allow him to give his own account. He denied that he or Mr Frost accused the applicant of driving into the exclusion zone during the meeting. The applicant had told them that he was driving a forklift carrying liquid nitrogen. He had not seen the first sign, but had seen the second. Mr Gourgaud had then come out and abused him. He was unhappy with this and got off the forklift and kicked the 'Do Not Enter' sign. The applicant was told by Mr Frost that the erection of an exclusion zone was standard procedure when taking the lid off the oven using lifting equipment. The applicant responded by indicating that he understood this process.

[104] Mr Winterford deposed that Mr Frost told the applicant that he had committed a serious safety breach in entering the exclusion zone set up for the work in that area. The applicant responded by saying that he was a competent operator and that he had a good safety record. He had used this path because it was the most direct. He had not seen the first 'Do Not Enter' sign. Mr Frost had responded that the applicant could have used other paths, but the applicant said that while he understood that there were alternatives, this was the most direct and he had not seen the sign. The applicant agreed that he had seen the second sign.

[105] Mr Winterford stated that Mr Frost then asked the applicant to explain what had happened by drawing a diagram. The applicant set out that there had been a truck parked across the path. He had crossed yellow lines to get around it and had therefore not seen the sign. He then said that he saw the second sign, went past it, stopped and was then abused by Mr Gourgaud. He admitted he had responded by getting off the forklift and kicking the sign towards the people in the oven.

[106] Mr Winterford said that Mr Frost had made the following comments. The Company had systems in place. The applicant had been aware of these and had breached safety procedures when he saw a safety sign and drove past it. As a result of this, the applicant was to be terminated. The applicant asserted that Mr Winterford and Mr Frost had had preconceived ideas prior to the meeting. This was denied by Mr Frost, who emphasised that the facts had not been contradicted by the applicant. He added that he was 'saddened' by the outcome as the applicant had been a great employee.

[107] Mr Winterford deposed that the applicant then told them that he was on new medication. Mr Winterford had not been aware of this prior to the meeting. This was contrary to the respondent's policy that the taking of medication must be disclosed in case there was a chance that it could affect an employee's ability to do their job. Mr Winterfod said he could not recall the applicant telling him that he had accessed the Employee Assistance Program or that he had been prescribed anti-anxiety medication. There was nothing in the respondent's system indicating that these matters had been disclosed by him.

[108] Mr Winterford explained that he had had a number of merit certificates for employees who had been nominated for them. He had given the applicant's framed certificate to him when he collected his belongings on 12 December 2012. He noted that the applicant had a clean employment record, but recalled that he, Mr Frost and Mr Danny Waddell had been emailed a complaint by Mr Darren Jones that the applicant had been working in the spray booth, without appropriate training. The applicant was spoken to by Mr Frost and warned not to do it again.

[109] In cross examination, Mr Winterford said that he had sat next to Mr Frost during the meetings and taken notes. He had not investigated the area immediately after the incident, but had photos taken about 48 hours later. He recalled the applicant drawing the map showing where the truck had been, but had not conducted an investigation to determine whether or not this was true.

[110] Mr Winterford deposed that he was not familiar with the JSA in its entirety. He was not aware that the JSA had been changed a month prior to the incident and had not investigated whether the applicant had been aware of this change. He agreed it was possible that he was not aware of the change.

[111] Mr Winterford was shown the minutes of the meeting he had taken on 12 December. He agreed that it set out 'GF explained that Travis ignored safety procedures and the act was wilful'. He denied that this was an accusation as it was said at the end of the meeting. Mr Frost had formed the view that the conduct was wilful, after hearing all the evidence. The view was that the applicant had driven through the barricades and 'he knew what was going on'.

[112] Mr Winterford agreed that they had been told about the presence of the truck by the applicant when he drew the map, but he had not investigated this. He agreed it could be a reasonable explanation for not seeing the sign. He was shown the sign that was tendered into evidence. He agreed that it was not a barricade and said it was just a safety sign.

[113] Mr Winterford said his understanding of the applicant's account was that he had seen the second sign, thinking it was the first sign and moved past it. This would have put him into the new exclusion zone after that sign. He agreed that if the applicant had seen a sign ahead, then looked into the rear-view mirror and seen the sign behind, it would have been reasonable for him to come to the conclusion that he was already in an exclusion zone. He could not recall the issue of safety lines being discussed at the meeting on 12 December. Nor were there concerns as to the applicant driving behind an unattended truck. Mr Winterford admitted that the applicant had disputed the facts as put by Mr Frost. He had not agreed that he had seen the first sign.

[114] Mr Winterford agreed that as HR Coordinator, he was expected to be familiar with Bradken's policies, particularly the Employee Handbook. He agreed that the Employee Handbook was used in relation to determining the appropriate disciplinary measures for employees. He would have referred to the Employee Handbook as a guideline. The sections headed 'Disciplinary Action' and 'Summary Dismissal' would have been important in determining whether conduct engaged in by an employee should be met with disciplinary action or summary dismissal. He agreed with the proposition that, at Bradken, the key difference between occupational health and safety breaches attracting ordinary disciplinary procedures and those attracting summary dismissal, was a wilful component.

[115] In response to a question from me, Mr Winterford said that the applicant was paid his normal entitlements, but no pay in lieu of notice.

[116] In written submissions, Ms Butler said that there was no valid reason for the applicant's dismissal. The applicant denied deliberately entering the exclusion zone, although headmitted swearing and kicking the sign. The admitted conduct did not constitute a valid reason for dismissal and the dismissal of the applicant was harsh and disproportionate.

[117] Ms Butler noted that the termination letter did not fully set out the reasons for the applicant's dismissal, although the respondent had referred to the serious misconduct of the applicant in its Form F3 Response in deliberately entering the exclusion zone, then losing his temper when this was pointed out to him. The Form F3 also drew attention to the applicant's failure to notify his employer that he was taking prescription medication. In relation to this second allegation, Ms Butler submitted that the applicant had informed the respondent of this on or around 8 November 2012 and 12 December 2012. Accordingly, this reason cannot be substantiated and cannot be a valid reason for dismissal. The applicant had not engaged in misconduct. Alternatively, Ms Butler submitted that if the Commission found that the applicant had engaged in misconduct, the respondent had failed to follow its own Disciplinary Policy.

[118] Ms Butler said that the evidence of the applicant set out that he had been directed to drive a forklift west down the path in the shed. He drove unobstructed in that direction. He loaded the liquid nitrogen and drove back along the same path at walking speed, but the path was now partially obstructed by a truck. He navigated around the truck and had inadvertently entered the exclusion zone, which he did not realise until he saw a sign sized about 30cm x 60cm in front of him. He then noticed that he could not see a further sign behind it and, upon looking in his rear view mirror, realised that the first sign had been obscured by the truck. It was at this point he realised he was in an exclusion zone and exited. The applicant was then approached by Mr Gougard on his own forklift, who was swearing at the applicant. The applicant responded in words to the effect of "Well fuck it, safety only suits Bradken when it suits Bradken' and kicked one of the signs over.

[119] Ms Butler noted that there had been no toolbox meeting held earlier that morning and it would have been usual practice to advise of changes, like the implementation of an exclusion zone, at such a meeting or, alternatively, being told on his phone. Accordingly, the applicant was not aware of the exclusion zone. The applicant attended a meeting at which two representatives of the respondent had accused him of intentionally driving into the exclusion zone. He denied this allegation. He was stood down with pay until attending another meeting on 12 December 2012, at which he was dismissed.

[120] Ms Butler said that the termination letter drew attention to cl 4.5.3 of the Agreement, which is as follows:

The Employer has the right to dismiss any employee without notice for serious misconduct and in such cases any entitlements are to be paid up to the time of the dismissal only.'

Ms Butler drew attention to the definition of serious misconduct in r 1.07 of the Fair Work Regulations 2009 (the 'Regulations'). She noted that the separation certificate provided by the respondent had checked 'Other' rather than 'Misconduct' as the reason for the separation. The applicant was not paid notice. Ms Butler noted that an employee who is dismissed for serious misconduct would not be entitled to notice in lieu, pursuant to s 123(1)(b) of the Act. Ms Butler referred to the standards of proof necessary for an employer to invoke summary dismissal on the basis of misconduct; See: Somveer Narwal v Aldi Foods Pty Ltd [2012] FWA 2056 and JKC v BlueScope Steel Limited [2008] AIRC 354. Here, the respondent had relied on its own assertion that the applicant's conduct in entering the exclusion zone had been wilful, but there was insufficient evidence to show that this was the case.

[121] Ms Butler drew attention to the criteria that the Commission must take into account when considering whether a dismissal has been 'harsh, unjust or unreasonable' pursuant to s 387 of the Act. She submitted that there was no valid reason for the dismissal (s 387(a)). She referred to the respondent's Employee Handbook and submitted that the policy as to discipline set out conduct which could give rise to disciplinary action, including, counselling and the issuing of written warning letters prior to termination, where there was:

' Failure to obey Occupation Health & Safety requirements in any way, which places yourself or other workers at risk of injury or illness.

• Use of abusive language to other persons on site.

• Wilful misuse of tools, equipment or the defacing of company property.'

[122] By contrast, summary dismissal could occur if certain other conduct was engaged in, including:

' Wilfully violating safety, environmental or general company policy or procedures.'

[123] Ms Butler noted that the respondent relied on this aspect in justifying its summary dismissal of the applicant. However, the evidence did not demonstrate that the applicant had behaved wilfully in driving into the exclusion zone. Ms Butler noted that the respondent had not used an exclusion zone to cordon off the oven. The practice in the past had been for forklifts to continue to drive past the oven while employees worked in it. It was reasonable for the applicant to expect that the respondent would communicate the existence of the exclusion zone to him in his capacity as Leading Hand. This was not done. The usual practice in relation to an exclusion zone is to put up caution tape, signs and tags. The exclusion zone in this instance was marked only by two small signs. In these circumstances, it was not plausible to maintain that the applicant had intentionally driven into the exclusion zone.

[124] Ms Butler submitted that the applicant had not failed to provide notification to the respondent in relation to the use of prescription medication.

[125] Ms Butler argued that the conduct in which the applicant had admittedly engaged did not constitute a valid reason or reasons for termination with notice. He did not admit engaging in misconduct, but admitted that he had kicked over the sign. To classify this as a 'wilful destruction of property' was excessive and disproportionate and this sign was still in use. If his conduct could be characterised as a 'wilful misuse of tools, equipment or the defacing of company property', then the applicant could have been expected to have been counselled or warned prior to his dismissal. This was also true of his admitted swearing.

[126] In relation to the applicant being notified of the reason for his dismissal (s 387(b)), Ms Butler noted that the termination letter did not set out the reason for dismissal and the separation certificate did not indicate the applicant was terminated for reasons of misconduct. The first time that the applicant was notified of the reason for his dismissal was when the respondent filed its Form F3 Employer's Response.

[127] Ms Butler conceded that the applicant had been made 'broadly aware' of the allegations against him over the course of two meetings, but noted that these had not been reduced to writing. In light of the size of the respondent and its HR capacity, this should have occurred. The allegation of failure to notify as to his taking of prescription medication was never put to him and he was unable to respond to it (s 387(c)).

[128] Ms Butler drew attention to the fact that the applicant had not been offered a support person at the meeting at which he was stood down, but the Union Delegate and a Union Organiser attended his final meeting.

[129] Ms Butler said that the respondent would likely claim that the applicant's previous disciplinary history was irrelevant as he was dismissed for serious misconduct. However, in light of the applicant's submissions that the applicant's actions had not been wilful, this history was relevant. Besides being informally 'spoken to' about three months prior to the incident, there was no prior conduct which could have led the respondent to believe that the applicant had breached its policies and procedures. Ms Butler noted that the applicant had been given a certificate for his 'Continuous Improvement'. It could be said that the applicant had been acknowledged for his commitment to the respondent and its procedures.

[130] Ms Butler submitted that the respondent was a very large entity, employing 270 employees (s 387(f)). In light of this, the process of dismissal was deficient.

[131] Ms Butler put that another matter which was relevant (s 387(g)) was that the applicant had made safety complaints and the respondent was unhappy that he was doing so. The applicant had raised a complaint in relation to a crane and had been told by Mr Campbell that he should 'keep his head down'. This phrase was repeated at the first disciplinary meeting. It was open to the Commission to draw a connection between the two incidents.

[132] Overall, Ms Butler said that the dismissal was, harsh, unjust and unfair in light of the absence of proof that the applicant had deliberately entered the exclusion zone and that he had failed to notify the respondent of his taking prescription medication. The respondent's failure to properly erect the exclusion zone and communicate its existence to the applicant, as well as the applicant's length of service and work history, were also relevant in determining this case.

[133] Ms Butler said that the applicant felt that the relationship of trust and confidence between him and his former employer had irrevocably damaged. He found a new job in March 2013. Accordingly, reinstatement was not appropriate and he sought 12 weeks' wages as compensation.

[134] In further written submissions, Ms Butler said that the respondent did not admit that he understood the Company's procedures in relation to the JSA for work in the oven. This had been changed approximately four weeks prior to his dismissal, with the new requirement that an exclusion zone be erected outside of the oven while employees worked within it. Mr Frost had given evidence that it was possible the applicant was not aware of this.

[135] Ms Butler pointed out that the JSA required barricades or tape in erecting an exclusion zone. A small sign did not meet this requirement. There was no reasons why the words 'barricade' and 'tape' should not be read in light of their ordinary meaning. The sign was self-explanatory and the applicant would not have entered the exclusion zone if he had seen it, but the zone was not appropriately constructed in accordance with the JSA. At the time, the applicant was carrying a hazardous substance which needed to be delivered quickly and safely. He used the same route which he had always used for this task and unintentionally entered the exclusion zone.

[136] Ms Butler said that the allegation that the applicant had driven behind a truck without knowing if it had a driver or was likely to reverse had not been put to the applicant at the time of his dismissal. If this had been put to him, he would have responded that he knew the truck was stationary as the driver was unloading it. The reverse beepers of the truck were not sounding.

[137] Ms Butler put that the allegation that the applicant had crossed safety lines to get around the truck was not put to the applicant at the time of his dismissal. It was common for forklifts to cross the walkway guidelines and this was never enforced by the respondent. The use of an alternative route would have meant a longer trip on unlevelled ground. In view of the fact that the liquid nitrogen becomes unusable quickly, the route he had taken was the quickest and safest route, notwithstanding the existence of the exclusion zone.

[138] Ms Butler submitted that as neither Mr Fraser or Mr Gourgaud witnessed the applicant enter the exclusion zone, the evidence of the applicant that he stopped on first seeing the warning sign was not contradicted and should be accepted. Upon stopping, the applicant had three options, being to proceed forward to leave the exclusion zone, reverse out of the exclusion or to stop the forklift and leave it. The applicant took the view that it was inappropriate to reverse or to leave the liquid nitrogen unattended. He took the reasonable decision to exit the exclusion zone.

[139] Ms Butler said that the conduct of the applicant in kicking the safety sign was admitted, regretted and uncharacteristic. It was a response to being sworn at by Mr Gourgaud.

[140] Ms Butler emphasised that the respondent had failed to follow its own JSA in failing to erect a barricade or tape. Mr Andrews said that he had not been contacted in relation to the erection of the exclusion zone in question, although this conflicted with the evidence of Mr Fraser and Mr Gourgaud. Mr Gourgaud said that he was expected to contact someone like a supervisor. Ms Butler submitted that this was a requirement of the JSA so that the supervisor could notify relevant employees to expect an exclusion zone. The applicant had a work phone for just such a purpose.

[141] Ms Butler submitted that any assumption by the respondent that the applicant had deliberately ignored safety procedures was unfounded and there was no evidence to support such a claim. The process was new and the respondent had not complied with its own procedures. In this case, the respondent had been so preoccupied by the idea that the applicant had wilfully and deliberately entered the exclusion zone, that it failed to entertain other explanations. It had failed to put to him its ancillary concerns in relation to the yellow safety markings. Ms Butler distinguished this case from Porter v Eltin Underground Operations Pty Ltd, Eltin Limited [2000] WAIRComm 224 ('Porter v Eltin') in that the applicant here had not been aware of the safety procedure in relation to work in the oven. While the respondent had relied on Nicholls v Woolworths Limited [2011] FWA 4827 ('Nicholls v Woolworths'), that case involved an applicant who had been previously warned in relation to an identical safety breach. While the applicant had been verbally warned in relation to induction in the paint shed, this had not been seen as sufficiently serious to warrant formal action.

[142] Alternatively, Ms Butler said that if the Commission did find that the applicant had engaged in misconduct, it was not sufficient to warrant dismissal. She referred to Bilson v Mission Australia [2010] FWA 6297 in relation to the definition of 'serious misconduct'. If it was found that the entering of the exclusion zone amounted to misconduct, his lack of awareness of procedures and the lack of appropriate signage constituted significant mitigating factors. The kicking of the sign was an uncharacteristic act that had resulted in minimal damage. Ms Butler again referred to the disciplinary procedures set out in the Employee Handbook. The conduct in which he had engaged should have been met with counselling and possible warning letters.

[143] Ms Butler submitted that it was appropriate to award compensation. The applicant had commenced new work on 5 March 2013, having been out of work for approximately 12 weeks. Additionally, his current employment was 'erratic' and not permanent. At the time of the hearing he had not worked for two weeks. The Commission should have regard to this when considering any orders of compensation.

[144] Mr Miller of the Australian Industry Group submitted on behalf of the respondent that the applicant had summarily dismissed the applicant for serious misconduct, being the deliberate and wilful breach of a safety requirement and then damaging the respondent's property in a fit of temper when it was brought to his attention. The incident had come to the respondent's attention when a 'green form' incident report was completed by his co-workers. The respondent had held a meeting with the applicant on 12 December 2012 to allow him to provide a response. After receiving that response, the applicant was dismissed. The applicant had been given a valid reason for his dismissal during the course of the meeting.

[145] Mr Miller put that the applicant was experienced and was well aware of the policy in relation to exclusion zones and the transport of liquid nitrogen. In full knowledge of these policies, the applicant had wilfully entered the exclusion zone and then sworn and kicked a safety sign when he was spoken to. This constituted a valid reason for dismissal. The termination of employment was not harsh or disproportionate.

[146] Mr Miller said that the respondent had begun its investigation on 6 December 2012 when it received the 'green form'. The applicant was stood down on pay and an investigation was conducted. There were three statements made and photos taken of the exclusion zone. A meeting was held on 12 December 2012 to allow the applicant to respond to the allegations. In the course of this meeting, the applicant was provided with a valid reason for his dismissal, being that he had wilfully ignored safety procedure. He had the opportunity to respond to the allegations set out in the 'green form' and the AMWU delegate and organiser were present at the meeting.

[147] Mr Miller noted that the applicant had not admitted wilfully breaching safety procedure, but he had said that he understood the respondent's procedures. He also admitted having crossed safety lines and having driven behind a truck with no knowledge of whether it had a driver or was likely to reverse. He had been aware of a different route he could have taken, but chose to use the obstructed route. He had seen the second 'Do Not Enter' sign, but continued to drive when he should have stopped. Finally, he had kicked the sign when someone had discussed his conduct with him.

[148] The nature of this response meant that the respondent decided to summarily dismiss the applicant. Mr Miller admitted that the particulars of the applicant's misconduct were not set out in the termination letter, although it did set out that he was being dismissed in accordance with cl 4.5.3 of the Agreement, setting out the right of the employer to summarily dismiss employees for serious misconduct.

[149] Mr Miller referred to the definition of misconduct set out in the Regulations and submitted that the applicant's conduct had caused serious and imminent risk to the health and safety of two employees who were working in the oven at the time. One of the employees was almost hit by the sign kicked by the applicant. He referred to Porter v Eltin as authority for the proposition that summary dismissal was justified in light of serious safety requirements and the number of those requirements not complied with. He also cited Nicholls v Woolworths as authority for the proposition that an applicant's age and work history do not prevent a finding that an employee's dismissal for a serious safety breach was fair. He failed to comply with the respondent's safety procedures and therefore disregarded the essential conditions of his contract of service, meaning that summary dismissal was justifiable; See: Rankin v Marine Power International Pty Ltd [2001] VSC 150 and Laws v London Chronicle Ltd (1959) 1 WLR 698.

[150] Mr Miller discussed the criteria that the Commission must take into account when considering whether a dismissal has been 'harsh, unjust or unreasonable' pursuant to s 387 of the Act. He submitted that the applicant was a longstanding and experienced member of staff who was aware of, and understood the respondent's safety policy. He had chosen to ignore these procedures. This was a valid reason for his dismissal (s 387(a)).

[151] Mr Miller said that at the meeting held on 12 December 2012, the applicant had admitted to understanding the respondent's procedures, having driven behind a truck without knowing if it had a driver or was likely to reverse, crossing safety lines in order to get around the truck, failing to use an alternative path, having failed to stop immediately when seeing the 'Do Not Enter' sign and kicking the 'Do Not Enter' sign when reproached as to his conduct.

[152] Mr Miller referred to the policy of the respondent, which set out that employees could be dismissed instantly if the engaged in:

' ...wilfully violating safety, environmental or general company policy and procedures.'

This was the basis on which the applicant was dismissed. He agreed that the policy recognised a divide between being 'possible reasons for disciplinary action' and giving rise to grounds for summary dismissal. He acknowledged that the policy set out that:

'Failure to obey Occupational Health & Safety requirements in any way which places yourself or other workers at risk of injury or illness ... may result in disciplinary action.'

However, after the meeting on 12 December 2012, the respondent had formed the view that the actions of the applicant had been serious enough to warrant summary dismissal. The evidence of Mr Frost and Mr Winterford was that the conduct of the applicant was wilful in that he was aware of the requirements of the policy and chose to ignore it.

[153] Mr Miller stressed that the respondent had never allowed forklifts to move past the oven when the lid was off. There had never been a procedure for telephoning employees to tell them that an exclusion zone had been erected.

[154] Mr Miller conceded that the respondent had not particularised the reason for the applicant's dismissal in its termination letter, but the applicant had been informed verbally for the reasons for his termination (s 387(b)). The certificate of separation indicated that the reasons for the separation was 'other' rather than 'misconduct'. This was due to an administrative error in processing it at head office. The applicant was told that he was summarily dismissed and was not paid in lieu of notice. Mr Miller added that the applicant was made fully aware of the allegations against him, initially by Mr Andrews on 6 December 2012 and then by Mr Frost and Mr Winterford on 12 December 2012 (s 387(c).

[155] Mr Miller submitted that the applicant had never requested a support person to attend the meeting on 6 December 2012. However, the respondent had gone to 'great lengths' to ensure that the AMWU organiser could be present at the meeting of 12 December 2012 (s 387(d)).

[156] Mr Miller said that the respondent relied on the applicant's serious misconduct as grounds for dismissal. Accordingly, the dismissal was not related to unsatisfactory performance (s 387(e)). He also said that while the respondent is a large company, the only HR person on site was Mr Winterford, who liaised with head office in relation to policy and separation certificates. Head office would not assist Mr Winterford with employee relations matters, like terminations of employment (s 387(f)).

[157] Mr Miller denied that the respondent had dismissed the applicant for the 'real reason' of his safety complaints. The applicant's complaints had related to the use of a cable from a decommissioned 50 tonne crane on a 35 tonne crane. It had been explained to the applicant that Kone had certified the crane as safe, although the applicant did not agree. Mr Frost had provided Mr Franklin of the Union with a copy of the documentation setting out that the crane was safe and the matter was resolved on this basis.

[158] Mr Miller addressed the presentation of a merit certificate to the applicant. This was given to him for an idea that he had come up with in relation to a procedure. It was not for exemplary conduct. He called for the application to be dismissed.

[159] In further written submissions, Mr Miller emphasised that the fundamental issue between the parties is whether the failure of the applicant to observe the 'Do Not Enter' sign was deliberate or unintentional. It was not disputed between the parties that the act, whether intentional or otherwise, potentially endangered the health and safety of other employees working in the oven. The applicant had then lost his temper when confronted by Mr Gourgaud and blamed his lapse on an explanation that the respondent was selective in its enforcement of safety. Mr Miller said that the respondent did not rely on the applicant's taking medication without advising his supervisor when it made the decision to dismiss him.

[160] Mr Miller pointed out that the presence of the truck was not raised by the applicant until the meeting on 12 December 2012. It had been put to the applicant that this truck was a later invention. In the event that a truck was not present, the sign should have been plainly visible to the applicant on the route that it was agreed he had taken. Even on the applicant's evidence, there is no suggestion that the sign was not in place and there was an admission that he had driven past the sign. The applicant's evidence in relation to seeing the second sign also illustrates that he understood the meaning of the sign.

[161] Mr Miller drew attention to four specific issues:

b) If there was, did that excuse the applicant's conduct?

d) In what spirit did the applicant kick the 'Do Not Enter' sign?

[162] Mr Miller said that submissions by the applicant that there was a new system in place, or that a barricade should have been used, obscured the true issue. Having seen the sign, the applicant would have understood that he was being directed not to proceed. Mr Miller accepted that if it were shown that the applicant had genuinely not seen the sign, then he should have been dealt with for having made a mistake, albeit a serious one. However, he submitted that the evidence supported the respondent's case was that the applicant, in full knowledge of the respondent's safety procedures, drove past the 'Do Not Enter' sign. His conduct was therefore wilful.

[163] Mr Miller said the only positive evidence that the truck was there comes from the applicant, but he had not said anything about this until the meeting of 12 December. The diagram that was drawn at that meeting was essentially hearsay evidence conveyed to Mr Frost. It was also odd that the applicant did not raise the presence of the truck with Mr Gourgaud during their confrontation. He had been made aware that Mr Gourgaud intended to complete a 'green form'. Mr Fraser had been certain that there had been no truck when he had entered the oven, but both he and Mr Gourgard had said that they could not recall whether there was a truck or not. One would think that they would remember the presence of a large truck. Their lack of recollection suggests that there was no truck there. The primary position of the respondent was that there had not been a truck on the pathway.

[164] In the alternative, Mr Miller submitted that if the Commission accepted that a truck had been present, then the applicant must have seen the 'Do Not Enter' sign and passed it regardless. Mr Frost had made an assessment of what the applicant might have done, had the truck been there. It was said that the truck was substantially across the intersection and beyond the yellow line. Both the applicant and Mr Gourgaud gave evidence that there was material lying between the cage and the yellow line. This cut down the width of the passage available to the applicant. The applicant says he had driven straight up, having turned to the right of the truck. Mr Miller submitted that this was impossible due to the location of the cage and the adjacent material. The applicant's evidence in this regard was carefully crafted so as to avoid a conclusion that he must have driven in the direction of the 'Do Not Enter' sign. Mr Miller said that if the applicant had gained access to the passageway, he would have turned on a relatively tight angle away from the passage to get around the relevant obstacles. The applicant must have seen the 'Do Not Enter' sign in this circumstance. Mr Miller conceded that nothing was put to the applicant as to whether there was a driver close to the truck at the meeting of 12 December.

[165] Mr Miller submitted that there was some dispute as to the intensity of the confrontation between the applicant and Mr Gourgaud and the force with which the applicant kicked the sign. He referred to the evidence of Mr Gourgaud that he had not seen the applicant until he was near the second sign. Mr Gourgaud had been annoyed that the applicant had ignored the safety sign and driven past an open oven door, creating a significant danger. He engaged directly with the applicant due to his concerns.

[166] The evidence of the applicant was that he had kicked the sign, but only hard enough to send it a few feet across the floor. Mr Gourgard's evidence was that the kick was sufficient to send the sign 'sailing' past the oven door. Mr Miller submitted that the evidence of Mr Gourgaud and Mr Fraser was to be preferred. They had made no attempt to 'gild the lily' in relation to the presence of the truck and were frank in admitting that they could not recall its presence. He also said that the applicant was probably angry at this point about the respondent's response in relation to his safety complaints about the crane. His continued anger could also provide an explanation why the applicant had deliberately ignored the 'Do Not Enter' sign.

[167] Mr Miller said that there was conflict between the evidence of the applicant and that of those whom he was said to have spoken to in relation to the safety issues with the crane. The respondent did not deny that the applicant had a right to raise safety issues, but a number of Bradken employees had assured the applicant that the matter had been dealt with and there was no safety problem. On the evidence of Mr Brand and Mr Campbell, there was no suggestion that the respondent was embarrassed or irritated due to the applicant raising the supposed safety issues. The failure of the applicant to call Mr Brand and Mr Campbell means the Commission must prefer their evidence on this matter to that of the applicant.

[168] Mr Miller disputed the evidence of the applicant that the signs were 'small' or 'very small'. Rather, it was of a substantial size, is brightly coloured and its instructions were clear. Mr Miller noted that the applicant had made extensive submissions as to the safety processes of the respondent and the difference between tape, barricade and sign. However, this was not relevant to the primary question before the Commission, which was whether the applicant went past the 'No entry' sign wilfully. On the applicant's own evidence, on seeing the sign, he stopped immediately. This illustrates that he understood its meaning.

[169] Finally, Mr Miller submitted that the Commission could be satisfied that the applicant had not been truthful. His conduct in driving past the sign was deliberate and wilful. The application should be dismissed.

Statutory considerations and relevant authorities

[170] While the letter terminating the applicant's employment makes no reference to the specific reasons for his dismissal, the letter expressly identifies clause 4.5.3 of the Bradken Ipswich Engineering Operations Enterprise Agreement 2010 as the basis for the decision.

The Employer has the right to dismiss any employee without notice for serious misconduct and in such cases any entitlements are to be paid up to the time of dismissal only.'

[172] Presumably, reliance was also had to the Company policy which relevantly states:

• Wilfully violating safety policies and procedures'

[173] The respondent further submitted that the incident on 6 December 2012 was captured by the definition of serious misconduct in the Fair Work Regulations 2009, specifically Regulation 1.07 which provides as follows:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.

[174] It was said that the applicant's decision to ignore the 'Do Not Enter' signs establishing an exclusion zone around the oven created a serious and imminent risk to the safety of the two employees working in the oven at the time. In addition, one of these employees was nearly hit by the 'Do Not Enter' sign after it was kicked by the applicant, became airborne and landed many metres away.

[175] Of course, the first task of the Commission is to establish whether there was a 'valid' reasons for the applicant's dismissal. The meeting of 'valid' reason in this context and one which is invariably cited in decisions related to dismissal for cause, is found in the words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as follows:

'Subsection 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is "2 Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."

In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when considering the construction and application of section 170DC.

The requirements of subsection 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee. Nevertheless, in cases similar to the one before the Court, the application of s170DE(1) should always be considered and decided before consideration is given to the additional limitations on the right of an employer to terminate the employment of an employee imposed by section 170DE(2) and subsection 170DC. The purpose of these two provisions is to confer a greater protection on employees from termination of employment. In this regard the provisions are not very different from the consequences flowing from an award provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA 888; (1995) 120 ALR 274 and discussed in Johns. There procedural fairness was held to have been imported by implication as well as the substantive protection conferred by the award. The statutory provisions now apply, by reason of the Act, with minor exceptions, to all employees.

The construction and application of section 170DC and subsection 170DE(2) were considered by Wilcox CJ in Gibson. His Honour discussed section 170DC under the heading "Procedural fairness". With respect, I agree with his opinion on this matter. I expressed similar views in Johns. But with respect, for reasons already expressed, the question of procedural fairness arises only after a finding has been made that the employer has established a valid reason or reasons under subsection 170DE(1).

His Honour the Chief Justice discussed subsection 170DE(2) under the heading "Substantive fairness". With respect, for reasons already expressed, the question of substantive fairness arises only after a finding has been made that the employee has established a valid reason or reasons under subsection 170DE(1). Under this heading, his Honour discussed the question of the construction and application of subsection 170DE(2) and in that discussion expressed the opinion:

"In this situation, it seems to me that Mr Ehsman, and anyone else who was involved in the decision to terminate Mr Gibson's employment, was entitled to reason that, if Mr Gibson was not prepared to explain any difficulty he had in working on a Saturday, in the circumstances it was better to dispense with his services. That decision was based on a valid reason based on the operational requirements of the respondent's business. The limitation imposed by subs(1) of s170DE was satisfied. And, having regard to the size and nature of the respondent's business, it seems to me the decision was not harsh, unjust or unreasonable."

Implicit in this discussion is the view that the adjective "valid" when used in subsection 170DE(1) is to be given a meaning similar to the meaning I would give to it as set out earlier in these reasons. In coming to his conclusion on this aspect, his Honour had regard to the nature of the employer's business and the need for the employer to provide services to its customers. A refusal by the employee to work the overtime directed, without saying why, was relevant both to the issue of a valid reason and to substantive fairness under both the subsections of section 170DE. I do not necessarily disagree with this approach but normally the issue of whether a reason for termination is valid or not should be considered primarily from the employer's perspective while the substantive fairness issue should be considered primarily from the employee's perspective even though the perspective of the employer may be of importance also. The differing onus of proof provisions support this approach.'

[176] It is trite to observe that this is not a case where the Commission must decide whether the misconduct actually occurred. Here the applicant does not deny that he had entered an exclusion zone and had kicked the 'Do Not Enter' sign. Plainly, the applicant contends that his actions did not constitute misconduct, let alone serious misconduct and the evidentiary conflict in this case largely centres on the applicant's reasons for his actions mitigated by explanations that he had not seen the 'Do Not Enter' signs and he was frustrated when he kicked the sign. Necessarily, I will have to make findings on these matters later.

[177] However, at this point, it needs to be emphasised that conduct which can cause a serious and imminent risk to the health and safety of a person may not be wilful, malicious, intentional or deliberate to constitute a valid reason for dismissal. Carelessness , skylarking or taking short cuts, readily spring to mind as examples of circumstances where the safety of others might be imperilled and such conduct would still constitute serious misconduct. Nevertheless, each case must be decided on its own specific set of facts and circumstances within the rubric of the legislative provisions and relevant authority. It is to these authorities to which I now turn.

[178] Two Full Bench appeal decisions of Fair Work Australia (as it then was) are relevant_. IGA Distribution (Vic) Pty Ltd v Nguyen_ [2011] FWAFB 4070 concerned the dismissal of a forklift driver following a collision involving another forklift. The Full Bench considered the distinction between conduct which was reckless and careless and conduct which was wilful and deliberate. At paragraphs 13 and 14, the Bench said:

'[13] Although the focus on the deliberateness of the conduct was understandable given the evidence as to the reasons for the dismissal, it is clear that the Commissioner considered a range of other factors. These quite properly included consideration of matters that the Commissioner found frustrated the Applicant, the assertion that there was oil on the warehouse floor, the disputed blood alcohol test and the health and safety issues. The Commissioner's findings with respect to these matters were open to her on the evidence. However, we think that the Commissioner fell into error in that her conclusion that there was no valid reason to terminate the Applicant's employment was fundamentally inconsistent with her acknowledgement of the recognised dangers associated with forklifts and this incident in particular. The recognition of those dangers, together with the finding that the collision was caused by the recklessness and carelessness of the Applicant, necessitated a finding that there was a valid reason for dismissal. The issue of whether the Applicant was improperly accused of deliberately colliding with the other forklift is a matter to be considered in the context whether the termination of his employment was fair. In this respect we think the Commissioner confused her assessment of whether there was a valid reason with the overall assessment as to fairness.

[14] The characterisation of the Applicant's conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable.'

[179] I note that the applicant's 23 years of unblemished work history was a significant factor the Full Bench took into account in determining whether the dismissal was unfair (which it did).

[180] In Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, another Full Bench upheld an appeal of a finding at first instance which had ordered the reinstatement of an employee who had engaged in an unsafe act, namely placing his arms, head and shoulder under an unstable and elevated load in a warehouse. The employee had 2 years' service and a poor disciplinary record.

[181] On the question of permission to appeal, the Full Bench said at paragraphs 18 and 19:

'[18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.'

[182] The Full Bench then dealt with the Commission's exercise of discretion. At paragraph 24:

'[24] ... Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.'

'[26] Mr Wililo's conduct was found to be serious misconduct. It involved deliberate acts. We consider that characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences. Further we do not believe that there was a sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.'

'[29] Added to this difficulty in discerning the true reasons for her ultimate finding we consider it somewhat anomalous that an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in the absence of discernable and significant mitigating factors. These concerns involve matters of principle and the overall reasonableness of the decision.

[34] In our view there are no mitigating factors that should have led to a lesser penalty than dismissal being adopted. Mr Wililo was employed only for a short time and has since found other employment. It is not for the Tribunal to place itself in the shoes of the employer and determine what it would have done in the circumstances. We must consider whether the employer's action in terminating Mr Wililo's employment was harsh, unjust or unreasonable in the circumstances. We find that it was not.'

[183] To this learned authority, I would add that Richards SDP in Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969 considered the dismissal of an employee who was involved in a shunting incident. His Honour said at paragraphs 94 to 103:

'[94] While this is the conduct that I have found the Applicant to have manifested, does it also warrant the termination of his employment?

[95] The Applicant's conduct was not wilful. He did not set out to recklessly endanger the lives of others, and he did not come to work on 3 August 2007 intentionally to cause injury to others. That much is clear.

[96] The Applicant's career with the company does not demonstrate any propensity in that regard. But his conduct was wilful in another sense; he intentionally refused to exercise his authority as shunt pilot over his work mate for fear of peer rejection. To avoid the personal censure of his co-worker, the Applicant ceded his control over the shunt as the shunt pilot and put the safety and lives of other employees at risk, not in a hypothetical manner, but in a very real and tangible way.

[97] Further, the Applicant has given evidence of an absence of reasonable judgment in situations in which safety procedures must be interlaced with practical circumstances. This was so in respect of his lack of appreciation that an unsecured and unattended rail car linked to an unattended shunt tractor is an inoperative vehicle for stabilisation purposes.

[98] Putting aside mitigating factors, which are considered below in the requisite statutory context of (s.652(3)(e) of the Act), it cannot be expected that the necessary relationship of trust and confidence between the employer and employee can survive such a dramatic incident caused by such a significant departure from the relevant work and safety procedures for the reasons as given, and where there is a continuing misapprehension of the circumstances in which safety procedures apply.

[99] In addition, the Applicant, in the last few weeks prior to the incident discussed above, had been involved in, and was the cause of, two unsafe crane operation incidents, which he does not deny. Both these incidents occurred on 17 July 2007 and caused the Company to stand him down from operating a crane, for which he held a ticket.

[100] If nothing else, these incidents ought to have sensitised him to the need to observe all protocols when working with heavy and potentially dangerous machinery. But those incidents did not have that effect and the Applicant went on only to give partial regard to the Company's safety procedures when shunting.

[101] Further, the Respondent had taken considerable and recent efforts to train and increase the awareness of employees as to safety requirements, and particularly so in relation to shunting procedures. The Applicant had been ticketed twice since 2004, on his own evidence.

[102] Section 652(3)(a) of the Act requires the Commission to have regard to "whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees)". It appears to me that the kind of conduct exhibited by the Applicant is the kind of conduct that is intended to be captured by the Act. That is, the kind of conduct that is relevant need not only be wilful, malicious or intentional conduct, but conduct that can imperil or put other employees in the workplace in jeopardy. Apart from its other characteristics, the Applicant's conduct in this matter was conduct of this kind.

[103] It is for these reasons, taken together, that I have concluded that the Respondent had a valid reason for the termination of the Applicant's employment.'

[184] His Honour weighed up the following factors and determined that the applicant's dismissal, although finely balanced, was 'harsh, unjust and unreasonable':

' The Applicant had been a long serving employee of 22 years experience in the company and without any formal disciplinary or performance issues before July 2007 and he did not, in this matter, act wilfully;

• He is 59 years old (60 years in May 2008) and will find transitioning to new employment difficult for reason of his age and period of continuous service with one employer in Maryborough in a non-trades position;

• The Applicant was unaware he was within a disciplinary process and did not have the reason for his termination put to him with any useful clarity; and

• Consequently, the Applicant did not have an opportunity, in a meaningful sense, to respond to the reasons for his termination and to endeavour to persuade his employer to adopt a different course.'

[185] It will be evident from these three cases that a serious breach of safety policies or procedures, whether deliberate or careless, will invariably result in a finding that a valid reason exists for the employee's dismissal. Obviously, that is not the end of the matter. So much so is patently clear from the recent Full Bench appeal decision in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 where the majority (Lawler VP and Cribb C) said at paragraph 41:

'[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal": Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".'

[186] I shall shortly come back to whether the dismissal of the applicant was 'harsh, unreasonable or unjust'.

Was there a valid reason for the applicant's dismissal?

[187] The applicant's case rests on his claim that his view of the signs was obstructed and he did not see them before entering the exclusion zone. He further claims that these signs were not the usual way or the way he would erect an exclusion zones. I do not accept that this later explanation supports the applicant's case in any convincing way. Had he seen the signs (which he says he did not till later) he would have immediately understood that he was not to enter upon that pathway. At the very least, the adoption of some cautionary judgement would have been obvious, even if the use of such signs was unusual in these circumstances. It follows then that his only defence can be that he did not see the signs until it was too late. For my own part, I consider this proposition to be highly unlikely. I am satisfied that the applicant had to deliberately manoeuvre around the alleged obstructing truck and in doing so, it seems most improbable that one or both the signs, or even the back of them, were not visible either, wholly or partly.

[188] Considerable emphasis was placed by Ms Butler on the fact that the JSA for the oven was only a month old. It was said the applicant was unaware of the change in procedure. This evidence conflicts with other evidence with other evidence that the procedure requiring exclusion zones around the oven had been used on a few occasions in that time. Moreover, the claim the applicant was unaware of the change sits rather uncomfortably with his self-preoccupation with safety issues and his claim of being proud of his safety records.

[189] In any event, even if the applicant was unaware of the changed procedure (which I do not accept), that is not the point. The facts were that the signs were in place. I consider he must have seen one or both of them. It follows that by ignoring the signs, he deliberately set out to breach the well known and long held understanding that the signs mean what they say - do not enter as there is a potential danger. Whether the process was a month old or a day old or whether the applicant was aware of the changed process is ultimately irrelevant to what he chose to do in ignoring the signs.

[190] Even allowing the applicant the benefit of the doubt, there remains the issue of his loss of temper, his lashing out and kicking the 'Do Not Enter' sign. The applicant conceded that he was frustrated over the incident the day before and Mr Gourgaud had abused him which caused him to lash out. However, from reading the applicant's statement, one is left with the distinct impression that he had merely kicked the sign over. Nowhere does he acknowledge that the force of his kick was such as to smash the sign, render it airborne and landing it indiscriminately many metres away. I find this conduct to be inexcusable and unacceptable. It could have resulted in injury to other employees or damage to machinery. The fact, on the applicant's own evidence, that it was a knee jerk reaction reinforces the possibility the sign could have flown in any direction. He even accepted it had flown 3.6 metres and had been cracked in a number of places.

[191] It was put to the applicant that his reactions were a result of him simmering from the day before and as an act of defiance he had deliberately ignored the 'Do Not Enter' signs and when criticised had reacted angrily by kicking the sign with considerable force. He maintained that he did not see the sign and when he realised his mistake, he reassessed the situation and proceeded forwarded. The kicking of the sign was just frustration and a response to Mr Gourgaud's abuse. I would say, at this point, that Mr Gourgaud's acknowledged abusive comment was also unacceptable. However, it was not so provocative as to justify the subsequent response of the applicant, in which he replied in kind and violently kicked the 'Do Not Enter' sign.

[192] On one view, it is very difficult to speculate on the applicant's mood at the time. While it might not be the case that his actions were a deliberate act of defiance, it is clear that his acknowledged comment 'Safety only suits Bradken when it suits Bradken' reaffirms and reinforces the connection to the incident the day before. On his own admission, he was frustrated that no one in management would accept his concerns over the crane safety as legitimate. In my view, on the balance of probabilities, the applicant had intended to ignore the signs, simply because he believed that the company would only take safety seriously if it suited the company. Given the close proximity of the two incidents it is reasonable to assume that they were very much connected in the applicant's behaviour.

[193] Accordingly, I am satisfied that there was a valid reason for the applicant's dismissal in that firstly, at the very least he ignored the 'Do Not Enter' signs creating a risk to the employees in the oven and secondly, that he deliberately kicked one of the signs with such force that it became uncontrollably airborne and risked injuring other employees.

[194] The Commission is then required to consider whether the applicant's dismissal was 'harsh, unreasonable or unjust' having regard for the matters in s 387 of the Act which are as follows:

'(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.'

[195] Subsection (a) as to 'valid reason' is dealt with above. In considering subsection (b), I do not understand there to be any real complaint from the applicant or the Union that he was notified of the reason for his dismissal when he was called to a meeting with Mr Campbell and Mr Winterford around 8:00am on the same day. The applicant agreed he gave his version of events, but as no investigation could possibly have occurred in the hour or so since the incident, he was stood down on pay, pending the Company's further investigation. To suggest the applicant did not know what he was accused of misunderstands the evidence. Ms Butler criticised the fact that the specifics of the allegations were not expressed in writing until the F3 Employer's Response. Nothing turns on this fact, as I am positively satisfied that, at all relevant times, the applicant perfectly understood what he was accused of doing on 6 December 2012.

[196] There appeared to be some implied criticism that not much was said in this first meeting and the applicant was not offered a support person. In my view, neither of these criticisms are valid. Firstly, as just mentioned, the time since the incident had only been an hour. The Company was hardly in any position to have considered the circumstances or taken evidence from any witnesses. Its purpose was to advise the applicant that prima facie the incident was serious and, that being so, it was appropriate he be stood down.

[197] Secondly, this was not a meeting which warranted a support person present. On one view, it was not even a disciplinary meeting at this early stage. In any event, the statutory requirements of s 387(d) as to whether there was an unreasonable refusal to allow a support person to be present is not the same as the employee not requesting a support person. No adverse finding can arise if the employee does not make the request - as was the case here.

[198] There was ample opportunity between 6-12 December 2012 for the applicant to prepare his defence and respond to the allegations (s 387(c)) and seek the advice and support of his Union, which he did. The Union Organiser participated by phone in the disciplinary meeting of 12 December 2012 (s 387(d)). There was no suggestion that the applicant was not appropriately and competently represented by his Union and the Union Organiser.

[199] During the cross examination of Mr Frost, there was criticism of him for making further inquiries of the witnesses after the applicant's dismissal as to the presence of the truck on the pathway. I do not share these criticisms. In my view, it was entirely appropriate for Mr Frost to speak to the witnesses again, as:

None of them had mentioned a truck in their statements to him during the investigation.

The first time the issue of a truck was raised by the applicant, was in the disciplinary meeting on 12 December.

[200] It is curious that the applicant had not mention the presence of the truck as obstructing his view of the 'Do Not Enter' sign in his exchange with Mr Gourgard or later in the standdown meeting with Mr Frost and Mr Winterford. Given the applicant's history of raising complaints and then escalating them if he was dissatisfied, I do not accept that he felt it was futile to raise the issue of the truck.

[201] Like the respondent, I have some doubts as to whether a truck was there at all during the relevant times. Was it a convenient way of reinforcing the explanation for the applicant not seeing the signs? I make no specific findings in this regard. In any event, Mr Frost's follow up inquiries do not reveal any new or different information. None of the witnesses could recall a truck being present.

[202] In my opinion, for a procedural defect to be of such significance as to be of itself a sufficient basis for a finding of unfairness, the defect must be one which could have altered the outcome of the respondent's decision making or it resulted in a miscarriage of justice such as to have impacted on the respondent's decision to dismiss the applicant. This was certainly not the case in this instance.

[203] In my assessment, the respondent's investigation was fair and thorough. The decision to dismiss was reasonably open to it on the basis of what it had established by interviewing key witnesses (serious safety breaches) and considering the implausibility of the applicant's explanations.

[204] Subsection (e) as to warnings related to unsatisfactory performance is not relevant to summary dismissal for serious misconduct. To the extent that a failure to observe Company safety policies and imperilling the safety of other employees, is a performance issue, there can be little doubt that the Company's safety policies and procedures were well known and understood by its employees. Employees are trained and continually reminded of their obligations in this regard. In any event, the applicant's own evidence, particularly concerning the safety of the crane, leaves no reason to doubt that he was an employee very much 'alive' to safety issues and was no 'shrinking violet' when it came to raising such issues.

[205] This case was not prosecuted by the Union or defended by the employer on the basis that the applicant's performance was unsatisfactory (s 387(e)). It is a case of summary dismissal for serious misconduct. While subsection (e) of s 387 is not applicable to these circumstances, it seems unarguable that the applicant's performance was never an issue for the respondent. Indeed, it was rather incredible that, before leaving the premises after being dismissed, the applicant collected a Company congratulatory certificate for innovation and continuous improvement. In addition, there was no contrary evidence as to the applicant's claims that he was a loyal and committed employee who often worked seven days a week. I am satisfied the respondent took these matters into account when making the decision to dismiss him.

[206] Subsections (f) and (g) of s 387 are neutral factors in this case. The respondent is a medium sized enterprise and the procedures it followed in effecting the applicant's dismissal were appropriate, given its size and access to dedicated human resources management specialists and the relationship it has with the Union.

[207] I consider five other matters are relevant to my determination of whether the applicant's dismissal was 'harsh, unreasonable or unjust.'

There was an earlier safety incident involving the applicant working in the paint shop without the appropriate induction or authority. While the applicant sought to 'brush off' the incident as insignificant as no disciplinary action followed, there is no doubt the respondent took a dim view of his conduct at the time. I do not accept the applicant's evidence that Mr Frost had said he was pleased with the outcome of his work. Rather, this was a gloss on Mr Frost's evidence that while he had understood what the applicant was trying to do, he had given him a verbal warning that it was inappropriate and unsafe to work in the paint sheds without being properly trained.

The applicant's service was in the mid range (eight years).

The applicant has been able to secure alternative employment. While I accept it may not be comparable employment, there was no submission put that the applicant's age or any other factors have impeded him in securing alternative employment.

As a leading hand, the applicant had a duty and an obligation to set an example to his fellow workers. His conduct on 6 December 2012 was not only a poor reflection on his personal judgment, but was exactly the opposite of the type of conduct that is expected of a leading hand.

At no time has the applicant apologised for his conduct, even for kicking the sign. His lack of contrition is not a factor in his favour.

[208] I would comment on four other matters raised in the proceeding. Firstly, I reject any suggestion, implied or otherwise, that the applicant's Union activity or complaint about the alleged unsafe crane were factors in the decision to dismiss him. There was simply no evidence to support either of these propositions. Moreover, the impression I garnered during the case was that the respondent and the Union have a good relationship.

[209] Secondly, while the respondent raised the issue of the applicant taking impairing medication without informing management, it did not rely on this matter in its decision to dismiss him. I accept this concession. I note the applicant claimed he told Mr Andrews that he was taking the medication and Mr Andrews acknowledged he had mentioned it to him. In any event, I do not consider this to be a matter which tips the decision of the Commission either way.

[210] Thirdly, I do not accept there was a dichotomy or conflict between the sections in the Employee Handbook or the Handbook and the Agreement in respect to discipline, serious misconduct and summary dismissal. The authorities I have earlier referred to make clear what approach should be adopted by the Commission in cases involving summary dismissal for breaches of safety policies.

[211] Fourthly, reliance on the JSA to discredit the use of yellow warning signs, rather than tape or barricades is a 'difference without a distinction'. I agree with the evidence that the 'Do Not Enter' signs mean the same as tape or barricades. Indeed, the fact the applicant said he stopped and reassessed the situation when he saw the second sign, corroborates this view and confirms that he knew what the signs meant. It makes no difference that tape or barricades were not put in place.

[212] For all the aforementioned reasons, I am unable to be satisfied that the applicant's dismissal on 12 January 2013 was 'harsh, unreasonable or unjust' within the meaning of s 387 of the Act. The application for a remedy from alleged unfair dismissal must be dismissed. An order to that effect will be published contemporaneously with this decision.

Ms L Butler of the Australian Manufacturing Workers' Union, for the applicant

Mr D Miller of the Australian Industry Group, for the respondent

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