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; "I commenced duty at Silverwater Depot at about 4.30 pm on the 11th October 2001. My duties on this day as a Dock Hand included weighing and applying stickers to all Queensland freight. Later in my shift around 7.25pm I was setting up, re arranging for the remainder of my shift. It was around this time that I witnessed Ben wheeling a cage with a pallet jack in order to set up for the remainder of the night he was trying to go behind the forklift that Clarrie Parkinson was driving. Clarrie's said something to Ben which I am not sure of but prompted Ben to stop and allow Clarrie to do what he was doing. It was at this point that I noticed Clarrie reverse up, Ben stayed where he was. I had a great line of sight as to what was about to unfold. Clarrie then got a vicious look on his face steering the forklift to where Ben was standing, he jumped on the gas pedal and smashed what he had on the forklift into the cage that Ben had on the pallet jack. As a result of this impact it squashed Ben between both cages. It was very close to going to far. I believe one more push from Clarrie could have seen Ben with some real serious injuries. From what I witnessed I have no doubt my mind the Clarrie's actions were deliberate and no accident. I then yelled out "Hay" I went straight over to Clarrie and said, "What the fuck are you doing. Your supposed to be the Union Delegate." Clarrie replied, "Yeah sorry mate I just lost it, I just lost it." I then went back over to Ben and decided to go into the office and inform the Supervisor, Christin, as to what had just happened. I then had a conversation with Christin explaining the e3vents that I had just witnessed. Christin stated he would be out in a minute. I then went back outside and again tried to pressure Ben to come into the office and report what had happened. At that stage I noticed Clarrie was going into the office to speak with Christin. I pressured Ben for a lengthy period of time to report the matter, Ben just kept saying, "No I don't want to." Throughout this time trying convince Ben, I noticed he was crying and upset. Ben then went to the toilet and I again went back into Christin's office and said, "Mate he's fucked up he's balling his eyes out, he's just refusing to report it." I just wanted to push the issue a little further. Christin said "Where is he?" I said, "in the toilet." Christin then said, "I'll go and get him."" 9 Soon after Ben came back out, I noticed that Christin was attempting to wave Ben over. Again he kept refusing until finally I convinced him to go and speak with Christin, which he did. I then went about my normal work duties. 10 In Exhibit C, Mr Gimbert states, under questioning from Graeme Mayne the following, again this has not been objected to; "I commenced duty at Silverwater Depot at about 4.30pm on 10th October 2001. My duties on this day were as a Dock Hand putting freight onto the belt. Prior to our break I was at the other end of the depot stacking a pallet when Clarrie came up on the forklift and rammed into them to pick them up. As he did this he pushed the pallet into my ankle which hurt. Clarrie just smiled at me, he could also see me prior to ramming the pallet with the forklift. This was about 4.50pm. The second incident was at about 4.55pm. I was walking a trolley jack toward the Melbourne Truck, I saw Clarrie again on the forklift, he was driving toward me so I stopped. At the time Clarrie was looking forward. Clarrie then ran over the trolley jack that I was pushing which caused the jack lowering prong of the jack to jump up in the air and the handle moved sideways. It did not hit me as I jumped out of the way. If I didn't move away from the trolley jack at the time the handle would have hit me. After this I used the jack to move a freight cell over the other side of the belt in order to commence setting up. I performed these duties till about 7.00pm. We had a 20 minute break then at about 7.20pm we were setting up for locals this means placing freight cages or cells near the belt so that local freight can be sorted and placed into cells for later transport to the receiving location. At this time I was at the office end of the belt and nearer the stairs that go to the kitchen, closer to the belt than the wall. At this time Clarrie was on the forklift near the security cage next to the stairs. Clarrie was weighing a pallet with the scales attached to the forklift. Clarrie started to drive toward where I was standing with a pallet still on the forklift. I said, "watchout here comes Clarrie." I said this jokingly. Clarrie put the pallet down, he was swearing about losing concentration and forgetting the weight of the pallet. Clarrie then swung the forks of the forklift toward the cage I was standing near. This cage hit me on the right shoulder which in turn forced me back onto another cage where I hit my right back of my shoulder. This caused me great pain and I started crying. I was trapped between the two cages. Clarrie was looking at me when he first drove the fork into the cage as described above in paragraph 16. After this Clarrie went back and started to weigh the pallet again. I pushed the cage away from myself and went into the toilet. As I went to the toilet Warren reported to the matter to Christin the P.M. Supervisor. Christin called me over into the office and asked if I whished to report the matter. It told him no I was scared of losing my job. I sat in the office until the shift was finished then went home and told my Dad what had happened. I looked at my shoulder which was swollen and had red marks over the area I have described. Dad gave me advice to report the matter to the Union Delegate Barry Faucet. The next morning I approached Barry and told him what happened. He called the Supervisor over Peter Geneve and I filled out the accident book and went home. After going home my mother took me to the local Doctor. The Doctor sent me for x-rays, after which he told me that there was nothing broken and told me to attend physiotherapy. I have to see him again on Friday. At the time of these incidents I was shaken and upset. At no time did I provoke Clarrie or cause him in any manner to feel bad toward me. At not time did I give Clarrie permission to do the things he did to me. Prior to commencing at Mayne I do not recall ever meeting Clarrie. I cannot think of any reason why Clarrie would want to scare or injure me. I am not aware of any issues between Clarrie and my father which my have caused these problems. My father and Clarrie have known each other for some time as my father also works for Mayne at the Bankstown Depot. I did not suffer from any injuries prior to starting work on the above date and time. I wish to say that I am angry at Clarrie and do not like him as a result of this incident." 11 Mr Federici states in Exhibit c the following; "I commenced duty at Silverwater Depot at about 4.30pm on 11th October 2001. My duties on this day as a Dock Hand include weighing, sorting and stacking cages. At around 7.15pm to 7.20p I was setting up for the local run. Clarrie and the other forklift drivers were picking up pallets for the interstate. I remember putting down a cage. I heard Clarrie swearing about something I wasn't anywhere near him so I didn't pay any attention. I heard a bang of a forklift hitting a cage. I looked over and saw Ben squashed between two cages. It would have hurt. I didn't see exactly where Clarrie was because he was somewhere behind the cages. I do know the only other forklift was being used right up the other end of the depot. As he was doing the other loading. I saw Warren go over to Ben and I think it was him who pushed the cage out, helping Ben. I could have been a lot worse than what it was. Ben disappeared to the toilet for a while, he came back and it took a bit of convincing to report the incident. But he finally did. I then went about my normal duties." 12 Mr Martin Johnson from the Company conducted the investigation into the incident. He states that he informed the Union of the incident and the investigation took place on 19th October. His version of the inquiry is in the following form; "To the best of my knowledge I believe that the full investigation into the matter commenced on or about 16 October 2001. this investigation was conducted by Mr Graeme Mayne and Mr Greg Simmons who were both working for Mayne Security. On or about 18 October I telephoned Mr Warwick Irvine who was an official with the Transport Workers Union of Australia, New South Wales Branch ("TWU") for the purposes of organising a meeting with Mr Parkinson regarding the incident. I was made aware by Mr Graeme Mayne that all employees who were present on the shift at the Silverwater Depot had been interviewed, and Statements taken from those who had witnessed the incident. During the conversation with Mr Warwick I recall I said to him words to the following effect; " Warwick, there's an allegation that Clarrie has deliberately hit another employee with a forklift. Obviously this is a serious issue and an investigation has been taking place. " On 19 October 2001, a meeting was organised so that the allegations could be put to the Applicant. I was not in a position to attend that meeting on that day as I had other commitments and consequently had asked Mr Baroni, a solicitor from Clayton Utz to be present at the meeting. However, Mr Shane O'Brien, an official of the TWU insisted that I be in attendance at the meeting. I also recall that there was an objection to Mr Baroni being present at the meeting and consequently he was excluded. Present at that meeting were Mr Graeme Mayne, myself, Mr Greg Simmons, Mr Shane O'Brien (TWU ), Mr Parkinson and two other Union Delegates. The interview was conducted by Mr Graeme Mayne. However, I kept contemporaneous notes of the interview. I recall that Mr Mayne put the allegations to the Applicant one by one. I recall there were 3 incidents which occurred on that same shift, including the major incident. As I recall during the course of the interview, the Applicant denied two of the incidents referred to in my notes and claimed that the major incident involving the forklift was nothing more then an accident. Given that the Applicant had denied the two earlier incidents and suggested that the major incident was nothing more than an accident, the interview was ultimately suspended. It was decided that a further investigation would occur and the witnesses who had given the Statements would be reinterviewed for the purposes of clarifying the issues raised by the Applicant. I recall that the meeting commenced at approximately 10.00am but I am not sure as to when it concluded. However the meeting went for longer than 2 ½ hours. After Mr Mayne had conducted a further investigation as agreed, a further meeting was organised for 22 October 2001. this meeting took place at approximately 2.30pm. Once again, the interview was conducted by Mr Mayne however I took contemporaneous notes of the interview. I recall that Mr Mayne advised the Applicant about the outcome of the further investigations. I recall that Mr Mayne said to the Applicant words to the following effect; "We've reinterviewed Gimbert and Alpen. I put to them the issues you raised but both deny your version of events and maintain that what they have said in their Statements is correct. Nothing new has come out of this re-investigation as a result of the issues you raised on the last occasion." The Applicant once again denied the allegations and suggested that it was all a fabrication by management. Shortly thereafter the meeting was adjourned so that a discussion could take place with respect to what action should be taken if any, in relation to the Applicant. I subsequently had a discussion with Mr Laurie D'Apice, Mr Steven Bailey and a telephone hook up with Mr Dan McPherson who was the General Manager - Personnel, located in Melbourne. During the course of the meeting the Statements which had been obtained though the course of the investigation were once again discussed in conjunction with the responses given by the Applicant. as far as we were concerned, the explanation given by the Applicant was not plausible and consequently a decision was taken to terminate the Applicant. The meeting adjourned for approximately one hour. Upon the recommencement of the meeting I recall that I informed the Applicant using words to the following effect' "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 weeks notice in lieu." 13 Throughout these proceedings the Applicant has made allegations about the Union corruption and interference in his role as a Union Delegate. Ha has attempted to allege that a conspiracy has occurred between the Company and the Union. I can say that there is not one shred of evidence that demonstrates anything more than the fact that the Union and in particular Mr Irvine acted to help the Applicant in every way possible. The Applicant failed for his own reasons to reciprocate. Extract taken from Transcript of proceedings 23 October 2003, in particular interview of witness Mr Irvine. APPLICANT: Q. Do you remember that meeting was called out the back of Erskineville in September 2001? A. I don't recall any particular meeting exactly. There was a number of meetings that were called, I don't know exactly which meeting you are referring to. Q. it was a meeting, Mr Irvine, about 9.5s and casual ratios and I was actually on suspension for the tape recording incident. Can you remember that? BYRNES: Remember what, Commissioner? The meeting or the suspension? APPLICANT: Q. Can you remember the meeting through those? A. To the best of my recollection, having heard what Mr Parkinson said, I do recall vaguely a meeting where we didn't hold the meeting at Erskineville work site because of the fact that Mr Parkinson was on suspension. To the best of my recollection that's all I could recall. Q. Thank you, Mr Irvine, that's - you do remember that incident. COMMISSIONER: Mr Parkinson, have you got a question to ask. Q. You can remember turning up to that meeting that wasn't held inside the depot? A. As I said I vaguely recall a meeting. All right, look, my recollection is very vague in respect to that. if you ask me a time of day or date, I wouldn't be able to give you a time of dare or date. COMMISSIONER: Q. Mr Irvine, Can I ask you this question A. Yes sir. Q. Do you know of any conspiracy by either the Union, yourself or Mayne Nickless or people on the site to get rid of Mr Parkinson from the workplace, and can you link that to the termination which took place in respect to him which related to an incident with a forklift truck? A. I am unaware of any conspiracy in respect to the point that you made, commissioner. Q. Thankyou. <WITNESS STOOD DOWN COMMISSIONER: Mr Parkinson, enough is enough. You stood up there and said you had one question, and one question only. You asked that question. And you said that several times. APPLICANT: Yes Commissioner. COMMISSIONER: To assist, I asked the same question of Mr Irvine as I've asked of every other witness and his answer was no. Now you can't keep changing your mind. APPLICANT: Can I - well, Commissioner, can I say this to you, that Mr Irvine came up to me outside and said, "Listen, I will help you with anything I --" COMMISSIONER: I am not prepared to hear anything like that. APPLICANT: Okay, my apologies. COMMISSIONER: This is what's in this courtroom here. APPLICANT: Okay, it is obvious that Mr Irvine will not cooperate and cannot remember. COMMISSIONER: That's not - that can be your submission. What are the questions you want to put to him? APPLICANT: That was the only question, Commissioner. Once again I'm up against a brick wall and I don't know how I can get through it. COMMISSIONER: I'm not running your case for you. APPLICANT: No of course you're not. COMMISSIONER: But I'm trying to make it easy, I'm trying to help you. But you can't keep changing your mind. APPLICANT: No. COMMISSIONER: We will get Mr Irvine back in. <Warwick Ian Irvine (12.56pm) EXAMINATION CONTINUED COMMISSIONER: Now, Mr Parkinson, what question do you want to ask Mr Irvine? APPLICANT: I want to ask Mr Irvine a question about Mr Neil Hargraves. BYRNES: I object, Commissioner. I just don't know what relevance it is. APPLICANT: The relevance is that Mr Irvine did not attempt, or even try to help Mr -- COMMISSIONER: No, nothing to do with it, Mr Parkinson. APPLICANT: Well, there you go. BYRNES: It's irrelevant. APPLICANT: There you go. Okay, I have no further questions. 14 There is no doubt in my mind that there was no conspiracy to get Mr Parkinson and that the series of events which lead to the dismissal of Mr Parkinson were purely of his own making, despite the length of this case and the serious costs involved were not that complicated. Mr Clarence Parkinson was the victim unfortunately of his own making. 15 Whatever differences of opinion that Mr Parkinson may or may not have had with Mr Gimbert, Mr Parkinson had no right to take the actions against Mr Gimbert that he did and he did do so. The evidence over a long period of time has stood up and this is the real issue. It is not only the evidence of Mr Gimbert, who failed to appear, that is consistent. We have evidence of Mr Alpen, a first hand witness who saw everything, and Mr Shane Federici who saw Ben squashed between the cages and Clarrie's forklift was the only one around. 16 In addition to this we have the full statements of Mr Johnson and Mr Mayne who conducted the inquiry and the evidence they obtained was clear. Mr Parkinson drove his forklift at Mr Gimbert in a dangerous and malicious way in an attempt to cause grievous harm to Mr Gimbert. Can I suggest that this may well be a criminal act as well as a breech of workplace safety standards and the employment contract. 17 It is my conclusion that the moment Mr Parkinson conducted that act he severed his relationship with the company. His actions were so grievously serious that by their very nature they ensured that Mr Parkinson could not remain an employee of the Company. 18 The Occupational Health & Safety Act places a responsibility upon the employer to provide a safe and healthy workplace and upon employees to act in a proper and safe manner towards other workers. Mr Parkinson breeched that trust and the company can not afford to keep him on. 19 I have therefore concluded that the termination of Mr Clarence Parkinson was not harsh, unjust or unreasonable. 20 This application is dismissed and the case is concluded subject to arguments on costs. B. W. O'Neill Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.