Two bacon operators worked on a production line. Operator #1 was hired on 15 October 2009 and had been working at that same factory for 11 years while Operator #2 had been working for 5 years.
Their duty was to take piles of bacon from a conveyor belt, transfer them to their table, weigh them into one-kilogram lots and then move them to another conveyor belt.
Conditions at work
Both Operator #1 and Operator #2 had scales on their work table that were powered by rechargeable batteries. When the batteries ran out, there were replacement batteries or replacement scales in a cupboard a few metres away.
On 9 July 2020, the batteries on the weighing scale on Operator #2’s work table ran out. Operator #2 left her work station and walked over to the cupboard where there were supposed to be replacement batteries or replacement scales. On that day, there were no replacement batteries or scales available.
At her work table, Operator #1 had to unload all the bacon coming on the conveyor belt until she ran out of space to put the bacon. Usually, they were given plastic tubs to put the bacon in when their table was full. There were no plastic tubs available to them on that day. Her table overflowed with bacon, and without anywhere to put the bacon that kept coming through the conveyor belt, Operator #1 could not pick up all the bacon. When the bacon on the conveyor belt passed Operator #1’s station and she failed to pick up the bacon, the bacon fell to the floor.
Altercation at work
Operator #2 took more time getting replacement batteries and scales. Operator #1 had to do her job as well as the job of Operator #2 while Operator #2 plugged in her scale. When Operator #2 came back and found bacon on the floor, she yelled at Operator #1 to pick up the bacon. This irked Operator #1 and she told Operator #2 that she had no right to scream or yell at her. Operator #2 kept yelling at Operator #1 to pick up the bacon from off the floor.
Operator #1 then complained to the Leading Hand on the line and asked him to tell Operator #2 to stop yelling at her. The Leading Hand left and called the supervisor. The Leading Hand and the supervisor spoke with Operator #2. When Operator #1 approached them as they spoke, the supervisor told Operator #1 to go back to her workstation.
After the two supervisors had finished speaking with Operator #1, they both spoke with Operator #1 who was frustrated and told her supervisors that she “felt like knocking her [Operator #2] off her perch.” During her break, Operator #1 asked to be placed at a different station, but her request was denied. After she came back from her break, a different operator had been assigned to Operator #2’s station.
Investigation of the incident
Operator #1 was called to the production office to write a statement. A staff member from the Human Resources department typed out Operator #1’s statement in the presence of Operator #1’s union delegate. Operator #1 was informed that she was suspended for one week. She was also ordered to respond to an allegation letter.
On 15 July 2020, Operator #1 was terminated for behaviour of a threatening nature or threatening a co-worker with violence, an act of serious misconduct.
Application for unfair dismissal
Operator #1 filed an application for unfair dismissal, questioning the factual basis of her dismissal. For her part, Operator #1 could not understand why her supervisors all thought that she had threatened Operator #2 when it was Operator #1 who had complained of Operator #2 yelling at her. She was angry that the Leading Hand and the supervisor spoke with Operator #2 first when she had made the complaint. So that, by the time that her two supervisors had come around to speaking to her, she was angry and frustrated and said that she “felt like knocking her [Operator #2] off her perch.” She only expressed what she felt but did not make a threat.
Operator #1 felt that a dismissal was disproportionate to the incident given that she had been working for 10 years for the food company. Also, in the company’s submissions, the Human Resources staff member that interview Operator #1 during the investigation mentioned that the decision to terminate the employment of Operator #1 was also based on the fact that Operator #1 had received a safety-related warning letter 12 months before for pulling away a piece of plastic wrapping caught on a chain on their equipment.
The Employer’s response
At trial, Operator #2 denied that she had screamed or yelled at Operator #1. All three witnesses for the employer: Operator #2, the Leading Hand and the Supervisor all averred that Operator #1 threatened Operator #2, saying she was going to hit Operator #2 if Operator #2 did not stop yelling at her.
The food company also submitted that reinstating Operator #1 would not be appropriate since they had lost all trust and confidence in Operator #1 and she had shown a lack of remorse for the threats she had made and the prior safety incident. As a Level 6 employee, Operator #1 was expected by the company to mode good behaviour at work.
Applicant’s version of the events more credible
The Fair Work Commission found that the wording of the witness statements of Operator #2, of the Leading Hand, and of the Supervisor to be identical, thus, casting doubt on the truthfulness of their allegations or that the statements were from the personal knowledge of the three witnesses.
Employer’s burden and responsibility
The FWC found that it was proved by evidence that the factory floor was noisy and that the situation induced stress in both Operator #1 and Operator #2. The scales batteries had run out and there were no replacement batteries or scales available. The bacon kept piling up and there were no plastic tubs to put them in. The intemperate words exchanged by both Operator #1 and Operator #2 were due to the stress of the situation which could have been avoided by the employer if the employer had provided to the workers the equipment they needed to do their jobs.
No threat made, Employer over-reacted
More importantly, the phrase “to knock someone off their perch” is an idiomatic expression that means to cause someone to lose a sense of superiority or authority over others. It does not refer to hitting or threatening to hit someone. Thus, the FWC accepted the Operator #1’s utterance came from anger and frustration but it was not a threat of violence. It was an inappropriate and intemperate remark but it was a threat. The FWC also found that if the supervisor and the Leading Hand truly felt that Operator #2 was at risk, then they would not have told both operators to go back to their places and resume work.
The FWC also noted that the dismissal was also unreasonable because the food company relied on a previous safety-related incident when it decided to dismiss Operator #1. The food company did not include the safety-related incident in the allegation letter as only the altercation was the subject of the allegation letter that Operator #1 had responded to.
Dismissal unfair, order for reinstatement
The FWC found that the dismissal had no valid reason and the dismissal was done with procedural and substantive unfairness. The FWC found that while reinstatement may be difficult or even embarrassing for the food company, the remedy of reinstatement was not inappropriate. As for remuneration for lost wages, the FWC found that the food company paid Operator #1 five weeks’ pay in lieu of notice prior to terminating her.
Carol Whitfield v Primo Foods Pty. Ltd (U2020/10426)
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations