Mushroom picker for 15 years
A mushroom picker had been employed on a full-time basis for 15 years. She received $19.49 per hour which was less than what she should have received under the Horticulture Award that entitled her to an hourly pay rate of $19.84.
Not a small business employer
The employer owned and operated a mushroom farm. They supplied mushrooms to groceries and supermarkets. The business had about 200 employees in total but only 40 employees at the farm itself.
Unblemished work record for 14 years
The mushroom picker had worked until February 2020 without any complaints or issues about her performance or conduct. But after February 2020, she began receiving verbal warnings about not following work policies, rules and procedures.
She received a warning on 9 May 2020 for failing to put mushrooms in the pre-pack and putting them into boxes instead. On 29 May, she received a warning for arguing with her supervisor. And on 19 June 2020 she received yet another warning for advising her supervisor that she would be absent only at 7:30 am instead of advising her supervisor at 6:30 am.
Safety procedure for knives and blades
The mushroom picker was allocated numbered hand tools (a harvesting knife, a blade, and a ring) at the beginning of every shift. At the end of her shift, the mushroom picker had the duty to wash the knife she had been given and return the knife to a hook on a wall hanger. There was a hook for every knife and the mushroom picker was to hang the knife on the designated hook for her knife. At the end of the shift, the senior supervisor on duty conducts an inventory to check and record that all knives and blades are accounted for, washed clean, and returned to their proper places.
On 16 August 2020, after the mushroom picker’s shift ended at 6:30 pm and after the mushroom picker had already gone home, the shift supervisor conducted an inventory check and found that the mushroom picker’s knife (knife #4) was not returned to its proper hook. The supervisor called the mushroom picker and the she said that she may have left her knife in the black tub where she had washed her knife, but the supervisor could not locate the mushroom picker’s knife.
Mushroom picker did not respond to messages
The mushroom picker was not rostered for work the following day, 17 August 2020 but the Harvesting Manager called her and left a message to contact the Manager. The missing knife was a potential contamination risk and the management would have to check all the product that the mushroom picker had handled and processed to find the knife.
Safety management protocol to avoid contamination of products
The employer spent 2-3 hours going through all the product harvested by the mushroom picker but still the knife had not been found. The mushrooms processed by the mushroom picker was eventually released for delivery after a delay.
Mushroom picker found missing knife
On 18 August 2020, the mushroom picker reported for work. She found her missing knife hanging on the hooks designated for the blades. She then informed the Harvesting Manager that she had found her knife and she proceeded to work.
Investigation into the misplaced knife incident
At around 3:00 pm on that same day, the mushroom picker was called to a meeting with the Harvesting Manager and the HR Manager. The HR Manager asked the mushroom picker questions and took down her statement. At the end of the meeting, the mushroom picker was stood down. In a letter, the mushroom picker was directed to appear at a meeting scheduled at 9 am on 20 August 2020.
Dismissed for serious misconduct the next day
At the meeting on 20 August 2020, the mushroom picker was handed a pre-prepared letter of dismissal. The letter said that the conduct of the mushroom picker in misplacing her knife caused serious and imminent risk to the reputation, viability, and profitability of the business which was considered by the company as a serious misconduct. The company also mentioned that misplacing the knife showed the mushroom picker’s inability to carry out a lawful and reasonable instruction from her superiors. The union organizer who stood as the mushroom picker’s support person pleaded with the HR Manager to reconsider their termination of the mushroom picker. Despite the dismissal being summary, the mushroom picker was still paid her entitlements and 5 weeks in lieu of notice.
Application for unjust dismissal
The mushroom picker then filed an application for unjust dismissal alleging that misplacing her knife did not constitute serious misconduct and it was not a valid reason to dismiss her. She also argued that dismissal was a disproportionate response to a small mistake, a trivial misdemeanour. There was no risk to the business because there was a rigorous procedure in place to check the product to ensure that there was no knife in the product that might contaminate the product.
The mushroom picker also questioned the disciplinary process as she was not provided with an opportunity to respond to the allegations made against her or to present reasons why she should not be dismissed.
Misplaced knife was not serious misconduct
The Fair Work Commission (FWC) found that misplacing the knife was not a wilful or deliberate behaviour that was inconsistent with the continuation of her contract of employment. It was, rather, an unintentional, negligent action. It is rare that an unintentional or negligent act can constitute serious misconduct. It will usually involve gross negligence that will result in significant harm to a person or to the employer’s business.
Misplaced knife was simple negligence
There was evidence that the missing knife was a negligent but unintentional act when the mushroom picker failed to return her knife on the wall hanger. However, there was no evidence that her failure to put the knife in the wall hanger caused serious and imminent risk of harm to anyone or to the profitability of the employer’s business. It did cause the employer inconvenience and additional cost to inspect the products to ensure that the knife was not there. The employer’s protocol in cases where a knife went missing ensured that no risk of harm would come to any person or to the employer’s business operation. The mushroom farm’s safety management system worked as intended.
No discipline for other employees who had misplaced knives
There was evidence that misplaced knives had occurred in the past but there was no evidence that the employees who had misplaced knives in the past had been terminated. There is also evidence that the supervisor who was assigned to check the knives did not do it right after the mushroom picker’s shift ended such that the mushroom picker was able to leave the farm before the misplaced knife was reported. There was no showing that the supervisor was disciplined for his or her failure to inventory the knives promptly.
Failure to respond to calls on day-off not misconduct
The only other ground relied upon by the employer was the failure of the mushroom picker to respond to messages and phone calls from her supervisor and manager on her day off. This, they interpreted as a lack of commitment to food safety. While this type of behaviour may not be desirable, it cannot be considered gross negligence that would constitute serious misconduct. It is not realistic for an employer to expect an employee to advance the interests of the employer on her day off.
Mushroom picker has had a work-related injury
The mushroom picker herself found the misplaced knife—it had not gone missing; it was simply hanging in the place where it ought not to be hanging—among with the blades. The mushroom picker has had an unblemished work record for 14 years and then, suddenly, receive 4 disciplinary warnings in less than six months. There was evidence from the Harvesting Manager herself that the mushroom picker has had injury to her back and because of which, the mushroom picker has had limited duty. The mushroom picker was not expected to meet the performance target measured in the number of kilos of mushrooms picked per hour.
No opportunity to respond to allegations
The mushroom picker was also deprived of the opportunity to respond to the allegations against her prior to the employer deciding to dismiss her. In fact, when the mushroom picker arrived for the meeting with the HR Manager, she was already handed a pre-prepared letter of termination. Even if the mushroom picker and her union representative pleaded for a chance to provide reasons not to terminate the mushroom picker, the employer had already made up its mind to terminate her employment.
No valid reason for termination
All these circumstances show that there was no valid reason for her termination and the procedure for dismissing her was flawed. The mushroom picker had not asked for reinstatement and it was just as well as the relationship appeared strained. The mushroom picker had worked for 15 years and her last pay was $740.00 per week. Had she not been terminated she would have continued to work for about 5 more years. She was awarded compensation amounting to $19, 240.00.
Helen Robertson v Imperial Mushrooms Pty Ltd  FWC 1332 (19 March 2021)
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations