Worker Sacked by Chicken Company on “Trumped-Up Charges” Wins Job Back

The Fair Work Commission (FWC) has ordered the reinstatement of a worker sacked by a chicken meat business after finding the allegations against him were “largely exaggerated and artificially constructed”.

Background

The applicant in the matter had worked for the business for 25 years before his dismissal in February 2019. The business is a large one employing more than 570 people involved in the processing, preparation and distribution of chicken meat products.  The applicant had started his employment on production line work before being promoted to various roles.  He held the position of Assistant Production Manager, responsible for supervising some 20 to 30 employees, at the time of his dismissal.  The FWC heard the applicant had a “generally commendable” work history reflected in his being promoted through the business.  He’d received a warning over a production issue in 2012 and a first written warning in June 2018 due to a significant production breakdown.

The events leading to dismissal centered on a near miss safety incident on 17 January 2019.  The incident occurred when a large module fell whilst being unloaded by a forklift from the back of a truck. The applicant, who was at home when the incident occurred, was told that the safety incident had been reported and that an investigation had been commenced by senior managers.  The applicant spoke to the forklift driver and verbally warned him that his failure to operate safely was unacceptable and that he could lose his job if he did not check things more closely.  The applicant did not complete a report of the incident or conduct any further investigation into it. 

On 24 January 2019, the applicant sent an email to one of his colleagues which dealt with a failure to comply with a directive raised in a meeting two days earlier.  The applicant used what the FWC said could be described as an abrupt reproach when he stated in the email, “so get it right”.  The applicant was issued with a letter the following day suspending him from duty and setting out six allegations said to involve serious failures by him to discharge his responsibilities.  The FWC described the failure to report and investigate the 17 January safety incident and the content and tenor of the applicant’s email of 24 January as the most notable of the allegations.  Two meetings followed before the applicant was dismissed on 5 February 2019.

What the FWC found

Commissioner Cambridge of the FWC determined that the primary reason for the dismissal was the applicant’s failure to make any formal report or investigate the safety incident of 17 January.  The company also sought to rely on the applicant’s email of 24 January in support of the dismissal.

The Commissioner found that there was a “logical, plausible and reasonable explanation” for the applicant not completing a formal report or investigating the safety incident given the applicant was not a witness to the incident and had been informed that it had been reported and senior managers were conducting an investigation into it.  In terms of the allegations against the applicant more generally, the Commissioner found that the evidence demonstrated “an entirely inadequate foundation upon which to dismiss the applicant”.  The Commissioner said:

The totality of the evidence has resulted in an unfortunate presentation that reveals that the allegations made against the applicant were largely exaggerated and artificially constructed in a fashion such that they might be accurately described as “trumped-up charges”.

…..

Consequently, on even the most generous contemplation of the unsatisfactory performance purportedly established by the employer, dismissal would represent an entirely disproportionate consequence. Therefore, upon a hypothetical adoption of the employer’s reasons for dismissal they would not represent sound, well-founded and defensible reasons for dismissal.

After concluding that the applicant was unfairly dismissed, Commissioner Cambridge went on to say that a “significant injustice” would occur if the applicant was not provided with the remedy for unfair dismissal he was seeking, being reinstatement to his former position.  The Commissioner considered the applicant’s personal circumstances, his long service to the company, his age, and difficulties he has encountered in seeking other employment in determining the applicant should be reinstated. 

Prasad v Cordina Chicken Farms Pty Limited [2019] FWC 7075