Parkinson & Mayne Nickless Express [2004] NSWIRComm 1105

Industrial Relations Commission of New South Wales

CITATION: Parkinson & Mayne Nickless Express [2004] NSWIRComm 1105 APPLICANT: PARTIES: Clarrie Parkinson RESPONDENT: Mayne Nickless Express FILE NUMBER: 7196 of 2001 CORAM: O'Neill C CATCHWORDS: Termination of Employment - unfair dismissal - grievous harm - alleged conspiracy LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983 HEARING DATES: 08/11/2003; 08/12/2003; 10/21/2003; 10/22/2003; 10/23/2003; 11/18/2003; 09/13/2004; 09/20/2004 DECISION DATE: 12/10/2004 Mr Clarrie Parkinson (unrepresented) Clayton Utz Lawyers (Mr M Byrnes) REPRESENTATIVES:

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: O'NEILL C

3 December 2004

Matter No IRC 7196 of 2001

Ramon Clarence Parkinson and Mayne Nickless Express

Application by Ramon Clarence Parkinson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2004] NSWIRComm 1105

1 This is an application by Raymond Clarence Parkinson, under Section 84 of the Industrial Relations Act 1996 against his termination of employment from Mayne Logistics Express. This matter was filed before the Registry on 5 November 2001 and since that time has been the subject of proceedings before an Appeal Bench of the Commission and reallocated for a hearing of the Commission as currently constituted. 2 Evidence and submissions in this case have been substantial and in the interests of the parties the Commission will this day publish its decision and provide the full reasons subsequently. 3 On the 22nd of October 2001, Mr Martin Johnson, the Employee Relations and Development Manager for Mayne (the Company) informed the Applicant that he was terminated. He used the following words; "The Company has investigated all the circumstances and spoken to all the witnesses. The Company does not believe your version of events and based on the evidence the Company is of the view that you operated your forklift in an unsafe manner which put at risk another employee. Consequently, we have decided to terminate your employment by giving you one week's notice in lieu." 4 I have considered the evidence in this case, which has been substantial. The basis of the decision rests upon the facts as to whether the Applicant did deliberately act as he stated, or was it not so, and whether also, was the Applicant treated with procedural fairness in the manner in which the investigation was conducted and the way in which the final decision to terminate his services was reached. 5 The Applicant in these proceedings, Mr Parkinson, states he was employed by the Respondent Company as a driver/dock had in the Silverwater Depot. The Applicant indicates that he was coopted as a delegate for the TWU (Transport Workers Union). 6 During the evening of October 11th an incident occurred at the distribution Centre which is explained by the Applicant as follows; "At around 7.00 - 7.30pm. on the 11th October 2001, which was the busiest periods of a nights work for the forklifts. The contributing factor being, airfreight and road freight timetables needed to be met at other depots, as Silverwater was classed as a Satellite Depot. I was operating a forklift when I clipped a freight cell with the tines of the forklift I was operating at the time. (Freight cell are approximately 6ft 6in hight by 3ft square with solid time or metal sides). The empty freight cell had been left on a pallet jack that had not been released, (lowering it to the ground do as to make the freight cell stable) instead the cell was unstable. The freight cell was also left in proximity of pallets and other freights cells that were loaded wi5th freight ready for transportation to other depots. I quickly discovered I had the forklift steering on the opposite lock to the direction I intended to travel. I quickly took my foot of the accelerator, which acted on a hydraulic breaking system. Meaning; that whilst driving in a straight forward or reverse direction, when releasing one's foot off the accelerator the forklift would break, coming to a halt within inches. Except when the steering was on full lock in either direction. The breaks of the forklift would take longer to stop the forklift. Twice to three time the distance to stop when either lock as of when travelling in a straight direction. Releasing that the forklift was heading in the opposite direction to what I had intended I released the accelerator, but the forklift did not brake immediately. The forklift travelled further than if stopping in a straight line. Enough to clip the freight cell which was on a unreleased pallet jack sending it rolling across the floor. As I looked at the freight cell move across the concrete floor, I noticed a worker, Benny Gimbert come from behind the rolling pallet jacked freight cell. Benny Gimbert stepped to one side of the moving cell and in doing so grabbed for the handle of the pallet jack. But as Benny Gimbert attempted to halt the movement of the freight cell he pulled the handle towards himself, thus steering the freight cell into himself , pinning himself against another freight cell that was only inches away. This is what I saw happen, the freight cell did not change direction on its own as I could not see anybody else in the immediate area. I immediately asked if he was ok as it was an accident. Benny indicated to me that he was all right. So I turned the forklift around and back into the direction I had intended to and picked up the pallet of freight, reversed no more than two yards to where I was weighing and placing that particular air freight for the Bankstown depot air charter. The procedure that particular week was to have another worker listen to me call the weight from the forklift scales, write the weights on a piece of paper and stick it to the pallet of freight. On placing the pallet on the ground I heard a voice ask, "hay Claz what was this one?" I looked over to the pallet of freight that was being pointed at. At the same time I heard a voice aggressively demand, "what the fuck do you think you're doing, you're supposed to be the senior Union delegate." I heard and recognised the voice of Warren Alpen. I dismissed his demands as I was concentrating on the job at hand and replied to the question of the pallet weight, "I can't remember, I lost it, I lost hi, hang on and I'll weigh it again." I proceeded to weigh the pallet, giving the correct weight then turned to Warren Alpen asking, "What?" Alpen replied, "hitting Benny." I answered, "shit man that was an accident." Later that evening my supervisor came over and asked what had taken place, I explained the above and that it was an accident. My supervisor told me to come into the office once I had loaded all the freight onto the trucks so as he could fill in an accident report. The supervisor could not find any accident report sheets as they had been locked away in the OHS officer's desk draw and he had the keys. I asked Benny Gimbert a number of times that night of his condition and if he was all right. Benny Gimbert had acknowledged it as an accident to me and confirmed that he would be all right. The next day I arrived at work as per usual and walked to the Bundy Clock, but could not find my time card. It was explained tome that I was on suspension with full pay and that I would be notified of my fate. Go home and wait for a phone call." 7 Other witnesses in the case have explained the incident in another form. In particular those witnesses are:- Warren Alpen and Graeme Mayne, with the attachment to his statement of Mr Alpen's evidence, which was not objected to, Mr Martin Johnson, the former Employee Relations and Development Manager at Mayne Nickless. 8 In Exhibit F, Warren Alpen states;