Dang v PPG Industries Australia Pty Ltd [2016] FWC 1276 (8 March 2016) [2016] FWC 1276 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Muu Dang v PPG Industries Australia Pty Ltd t/a PPG Architectural Coatings (U2015/13889) VICE PRESIDENT HATCHER SYDNEY, 8 MARCH 2016 Application for relief from unfair dismissal. Introduction [1] Mr Muu Dang has applied for an unfair dismissal remedy under s.394(1) of the Fair Work Act 2009 (FW Act) in respect of the termination of his employment with PPG Industries Australia Pty Ltd (PPG). He was dismissed with immediate effect on 6 October 2015 because of a serious breach of safety procedures which occurred on 24 September 2015. The reason for the dismissal, as stated in PPG’s “ Notification of Dismissal ” letter dated 6 October 2015, was that Mr Dang had breached two of its “Life Critical Rules” in that he had failed to LOTO (lock out and tag out) a machine and bypassed a safety device. These breaches occurred on 24 September 2015 when Mr Dang climbed over the fence restricting access to a depalletiser machine and did not lock out and tag out before doing so. [2] Mr Dang’s application was initially listed for hearing on 1 February 2016. Mr Dang was represented by his union, United Voice. Mr Dang was called to give evidence, and he quickly gave me the impression that he had a degree of difficulty in understanding English. He also said he had difficulty in reading English, and that his first languages were Cantonese and Vietnamese. In those circumstances I directed that Mr Dang’s evidence not proceed until the services of a Cantonese interpreter were available, and that the statements of evidence (including Mr Dang’s own statements) be translated into Cantonese. After receiving the evidence of another witness, the hearing was adjourned at that point to allow these steps to be taken. [3] The hearing resumed on 19 February 2016. By that time, the statements had been translated into Cantonese as directed, and Mr Dang was able to give his evidence with the assistance of a Cantonese interpreter. The extent to which it was necessary for the interpreter to be utilised varied: in some cases both the question to Mr Dang and his answer were translated, in some cases only the question or the answer needed to be translated, and in other cases Mr Dang was able to understand the question and answer it in English. My general observation was that Mr Dang needed the services of the interpreter less as his evidence progressed. The extent of Mr Dang’s proficiency in English was one of the issues in the matter, and I will discuss it further later. Facts [4] PPG is a paint manufacturing business, and operates a manufacturing facility at Villawood in Sydney. In 2011 PPG promulgated a number of fundamental safety rules which are called “Life Critical Rules” because failure to follow them even once creates a high potential for catastrophic injury or death. They have been posted in the workplace and have been the subject of training sessions and briefings. The following parts of the Life Critical Rules are relevant to this matter: “While the principles of progressive discipline generally are applied in addressing less serious violations of facility safety rules and standard operating procedures, violation of the following Life Critical Procedures may lead to disciplinary action up to and including immediate employment termination: … Disabling a safety interlock, unless an approved by-pass procedure is in place. Working on equipment without placing it in a zero-energy state and applying a personal lock to the appropriate electrical disconnect or valve, unless an alternative EHS approved procedure is in place. … Accepting personal responsibility for the safety of ourselves, our co-workers and our neighbours is an essential part of our safety programs. Our company expects nothing less…” [5] The second of the Life Critical Rules set out above is concerned with locking out and tagging out machines and devices in order to ensure that all hazardous energy sources are neutralised and to prevent the accidental activation of any hazardous energy sources. PPG has conducted training sessions specifically concerned with LOTO procedures. [6] Mr Dang has been employed by PPG at its plant at Villawood since 9 December 1994. He performed various functions at the plant during the long period of his employment. He was employed in the paint-making section of the plant for 3 or 4 years in the 1990s, and later he became a forklift driver in the dispatch section of the plant. [7] PPG’s records show that Mr Dang attended a number of training sessions concerning the Life Critical Rules, including a face to face training session in June 2015 and an authorisation training and competency assessment concerning the LOTO procedures in March 2014. Mr Dang gave evidence that his lack of fluency in English made it difficult for him to understand the training sessions that he attended because they were always conducted in English and the written materials were always in English. PPG called evidence to the effect that Mr Dang had never raised any difficulty about not understanding the training sessions he had attended. Mr Dang gave evidence that employees such as himself were nervous about saying that they did not understand the training, and I accept that employees who have difficulty in understanding English might not readily volunteer that this is the case to their employer for fear of affecting their future employment prospects. [8] However PPG challenged the extent to which Mr Dang’s lack of fluency in English actually impeded his ability to comprehend its work and safety procedures, and pointed to the fact that he had over the course of his employment been required to use and understand documents in English in order to perform his job competently. I consider that the evidence demonstrates that Mr Dang did have a comprehension of basic functional workplace English. It is only necessary to identify one of a number of documents which demonstrates that this was the case. When Mr Dang undertook the LOTO training in March 2014, there was a competency assessment which involved a multiple-choice examination with six questions. On the face of the document Mr Dang selected the correct answer for five of them. One of the questions was “ The LOTO procedure is used to: ” to which Mr Dang correctly selected the answer “ Isolate & secure equipment from energy sources (unexpected release of energy) ”. Another question was “ An E-stop is: ” to which Mr Dang correctly selected “ Not an effective energy isolating device because it does not disconnect the machine from the energy source ”. It was not suggested that Mr Dang selected these answers by chance, so I presume that he was able to comprehend the questions and answers on the test document. [9] Although Mr Dang referred to the difficulties he encountered in training, it was not submitted on his behalf that he did not know what the Life Critical Rules or LOTO procedures were or did not understand them. I find that, notwithstanding his lack of fluency in English, Mr Dang was aware of and understood the Life Critical Rules and the LOTO procedures. [10] Mr Dang’s employment seems to have been uneventful until 3 December 2013, when he was issued with a “ Final Warning ” letter for a “ serious safety breach ”. The nature of the breach was described in the following terms in the letter: “…you were witnessed operating a forklift whilst having the truck driver standing on an empty pallet being raised up on the forklift to reach a pallet on the partially loaded truck.” [11] In his evidence before me Mr Dang denied that the pallet on his forklift was elevated when the truck driver stood on it. Apart from this denial, there was no direct evidence before me about this incident. I do not consider myself to be in a position to make any definitive conclusion about what occurred, except to say that I am not prepared to positively find that the incident did not occur as described in the final warning letter. It can at least be said that Mr Dang was on notice that PPG treated any detected safety breaches extremely seriously. [12] On 7 April 2015 Mr Dang received a “ First Written Warning ” letter for an incident which occurred on 12 March 2015. Its description as a first warning after the previous final warning is explained by the fact that under clause 14.5.3 of the applicable enterprise agreement, the PPG Architectural Coatings (Villawood) Operations 2013 Agreement (Agreement), final warnings “ expire ” within 12 months of the relevant incident if the employee does not receive a notice of termination in that period. The warning letter said that Mr Dang had damaged the Trade Filling Line whilst driving his forklift, and that “ [t]his driving error put yourself, your colleagues and equipment at risk ”. Mr Dang said in his evidence before me that the incident had occurred because he was driving a new type of forklift with an accelerator button different from what he had been used to, and that his inexperience with this caused him to accidentally accelerate too quickly and hit the guarding pole of the Trade Filling Line. However the warning letter noted that “ You did not raise any concerns or problems due to lack of training prior to using the new machines ”. Again, the evidence before me is insufficient to allow me to reach any final conclusion about this matter. [13] Under clause 14.3.2 of the Agreement, first warnings expire after six months “ [w]here there is no repetition of the problem, behaviour or performance ”. [14] Shortly after the 12 March 2015 incident, Mr Dang was transferred out of the dispatch area to the number 3 depalletiser and labelling machine line. This apparently occurred at Mr Dang’s request because he considered himself to be overworked in the dispatch area. Mr Dang had previously worked on the depalletiser line on an occasional basis on overtime shifts. He was not trained in the operation of the depalletiser line when he was transferred because it was assumed that he was competent in this regard from his previous performance of work there. It is not clear when, if ever, Mr Dang was formally trained in the operation of the depalletiser line. His evidence was to the effect that he was expected to pick it up from observation and interaction with other employees working in the area. [15] The depalletiser line has a conveyor belt at a height of about three metres on which are carried paint tins which are to be labelled. Underneath this and just above floor level is another conveyor belt approximately ten metres in length. In the photos placed in evidence, this lower conveyor belt appears to be a line of rollers, so I will refer to it for clarity as the “lower roller line”. Mr Dang’s evidence was that the lower roller line only runs when pallets are placed on it and are picked up by a sensor. The depalletiser line is guarded around its perimeter by an iron fence which is approximately 1.5 metres high. There is a gate through which the area inside the fence may be accessed. As at 24 September 2015 this gate could only be unlocked by PPG’s fitters for the purpose of performing repairs and maintenance on the machines. The fence has signs on it at various points identifying the procedure to lock out and tag out the machines inside so that they are isolated from their power source. [16] In his evidence Mr Dang said that, until about a month or two before his dismissal there was a “ manual panel ” which allowed employees to open “ the door ” and access the area inside the fence. He said this changed when PPG installed “ a steel frame ” to prevent access at this point. PPG denied that employees had ever been allowed access in this way. Mr Dang’s evidence in this respect was a little hard to understand. Mr Steven Blake, PPG’s Operations Manager, gave evidence that in about July 2015 PPG had detected that some unknown person(s) had interfered with the safety interlock on the access gate at the number 3 depalletiser line for the purpose of accessing the restricted area inside the fence. This caused PPG to upgrade the safety interlock to prevent this happening. It is possible that Mr Dang and Mr Blake were talking about the same thing, but this is unclear. [17] PPG conducted an Operations Health and Safety Update session for employees on 6 August 2015 which was specifically concerned with what had occurred in relation to the safety interlock on the number 3 depalletiser line. The session consisted of an oral presentation aided by a slideshow to advise employees of the upgrade and remind them about the restrictions on access to the gated area. Mr Dang attended this session. The slides contained a reminder of the Life Critical Rule concerning disabling safety interlocks, and also included the following points: “ Safety interlocks (and sensors) are not to be overridden ”. “ When entering into guarded/caged areas for non-routine activities (i.e. cleaning and maintenance), equipment isolation (LOTO) should be applied ”. Specifically in relation to access to the depalletiser area: “ NOTE: gate remains locked and only accessible by maintenance personnel ”. [18] Mr Dang’s evidence, which I accept, was that there were frequent problems in the operation of the top depalletiser conveyor, in that broken pallets and malfunctions in the conveyor belts often caused paint tins to fall off or pallets to become jammed. A practice had developed, which pre-dated Mr Dang’s transfer to the depalletiser, whereby employees would place a small step ladder against the fence around the depalletiser line, climb it, and use a pole which was about 1.5 metres long with a hook attached to attempt to pick up any paint tins which had fallen from the overhead conveyor. The pole and hook were also sometimes used to straighten out pallets which became stuck in the machinery. Mr Dang was amongst those who utilised this practice. It does not appear to ever have been authorised by management, and ceased after Mr Dang’s dismissal. [19] Mr Dang also gave evidence that some employees including himself from time to time accessed the restricted area inside the fence to pick up cans which had fallen from the top conveyor and to straighten out broken pallets. His evidence about how this was done was, however, contradictory. In his first statement of evidence, he said: “It was not uncommon for myself and colleagues working on line 3 to climb over the fence to fix the broken pallets so the machine would run again, or to climb over the fence to pick up fallen tins.” 1 [20] In his statement of evidence in reply, Mr Dang said: “In relation to my statement filed on 21 December 2015, I make the following clarification to my comment at paragraph [34] under the subheading Breach of Life Critical Rules: Bypassing a safety device by climbing over it . I had previously accessed the fenced area through the back to straighten out broken pallets. This was a common practice until the Respondent implemented a steel frame there approximately one to two months prior to my termination. I note that I only climbed over the fence to access this area on one occasion - that being the incident that led to my termination.” 2 [21] In his oral evidence, Mr Dang said that other employees had jumped over the fence to adjust pallets, and he was not the only one who had done this. [22] Having regard to the evidence of Mr Blake to which I have previously referred, it is reasonably apparent that employees had found a way to bypass the safety interlock on the gate to the fenced area, and had accessed the area in this way from time to time to pick up fallen paint tins and adjust pallets. I infer that this ceased at some time before 6 August 2015 when PPG management discovered this and upgraded the safety interlock. Whether employees then began simply to climb over the fence and, if so, whether Mr Dang participated in this practice prior to 24 September 2015, is difficult to determine on the basis of the contradictory evidence which he gave. However I note that the record of Mr Dang’s disciplinary interview on 30 September 2015 in relation to the 24 September 2015 incident which led to his dismissal discloses that Mr Blake asked him “ Have you jumped that fence before? ’ to which Mr Dang replied “ Sometimes you have to straighten it out, a lot of broken pallets ”. I would take that to be an affirmative answer. I consider that it is more likely than not that Mr Dang had, before 24 September 2015, climbed over the fence around the number 3 depalletiser line to access the restricted area within, and that his “clarification” of this issue in his statement of evidence in reply was a disingenuous attempt to conceal his admissions in that respect. [23] The incident on 24 September 2015 occurred at about 4.00pm that day when Mr Dang was working the afternoon shift on the number 3 depalletiser line. One of the top conveyor belts broke, and as a result about 30 one-litre tins of paint fell off. They landed in the vicinity of the roller line below. Mr Dang became concerned that the tins might get stuck in the roller line and jam it. He then pressed the “ e-stop ” buttons which turned off the depalletiser (including the top conveyor belt) and the labelling machine. I would take it that once the top conveyor belt came to a complete stop, that brought to an end the risk of further paint tins falling off. [24] It is not clear from the evidence whether the e-stop buttons turned off the lower roller line. Mr Dang intimated in his oral evidence that he was not sure whether this was the case, although in his first statement of evidence he said “ I did not know and do not think it’s possible to e-stop the whole depalletiser at once ”. He insisted it did not matter because, without any further pallets being dropped onto the lower roller line (because the depalletiser and labeller had been turned off), the sensors which detected pallets moving through and turned on the roller line would not be activated. I would infer from Mr Dang’s evidence that he simply did not know whether the lower roller line had actually been turned off when he pressed the e-stop buttons. [25] Mr Dang told his team leader, Mr Damien Fawcett, what had happened, and was told to ring the fitters in the maintenance section to obtain their assistance. Mr Dang did so, and he was told that they would come as soon as they could but that this might take 20 minutes to an hour and he should wait. Rather than doing this, he obtained the step ladder and the pole with the hook, and attempted to lean over the iron fence and use the hook to pick up the cans, but the tins proved to be too small and were not connecting to the hook. He then picked up a cardboard box that was lying nearby, climbed over the fence into the restricted area, and began picking up the fallen tins and putting them into the box. He did not lock out and tag out the machinery in the area before he did so. [26] During his subsequent disciplinary interview and at the hearing before me, Mr Dang advanced two reasons for entering the restricted area. The first was that he was concerned that the falling tins might have jammed the lower roller line and damaged the machine which operated it. However while Mr Dang undoubtedly held that concern immediately after the top conveyor belt malfunctioned and paint tins began falling off it, it cannot be accepted that he still held it at the point when he climbed over the fence. He had turned off the top conveyor belt, so no more paint tins could have been falling. The lower roller line was not operating because no more pallets were coming through. The situation was stable and could have awaited the arrival of the fitters. [27] The second reason was that Mr Dang was concerned that he might receive a warning letter about what had occurred, and he wanted to rectify the situation as far as he could to allow production to resume as soon as possible. It is difficult to identify any rational basis for this concern, since there was no basis to conclude that he was in any way at fault for what had occurred. However I accept that he did actually hold this belief, and I consider that this was his motivation for what he did. [28] Mr Dang described himself as standing on the “ step ” on the side of the roller line when he was inside the fenced area picking up the paint tins. However after Mr Dang pointed out the location of where he was standing in a photo of the area, it became apparent that it could not accurately be described as a “ step ”. He was in fact standing on the narrow metal beam which framed the edge of the lower roller line. Not only had the roller line not been locked out and tagged out, the machine which operated it may not have been turned off. If so, it was only the fact that the sensors had not been activated by any further pallets coming through that was preventing the roller line from coming into operation. The safety risk to which Mr Dang had exposed himself in doing what he did was serious and should have been obvious. [29] Mr Dang’s evidence was that he did not know when he climbed the fence that he was entering a restricted area because there were no restricted entry signs on the fence. That cannot be accepted as a serious proposition. When moving heavy machinery is surrounded by a 1.5 metre high iron fence with a locked gate, it should be obvious that access inside the fence is restricted. Further, Mr Dang knew that the security interlock had been upgraded to prevent unauthorised access at the gate, and that it had been emphasised at the Occupational Health and Safety update session on 6 August 2015 that the area was only to be accessed by maintenance personnel. I find that when Mr Dang climbed the fence he was fully aware that what he was doing was prohibited, and that his concern about receiving a further warning overrode this. [30] Mr Dang also gave evidence that he did not even consider locking out and tagging out the machine because he did not recall seeing employees on the line ever do this, and he had not done it before. I accept that it did not cross Mr Dang’s mind to lock out and tag out before he entered the restricted area, notwithstanding the Occupational Health and Safety update session on 6 August 2015, because he knew he was not meant to be in there in the first place. [31] While Mr Dang was still in the restricted area picking up paint tins, the maintenance fitters arrived and found him there. They told him to leave the area and opened the gate for him to do so. His team leader, Mr Damien Fawcett, then led him away and asked him why he had done what he did. Mr Dang told him that he was worried “ the machine would break ” and that he would get a warning for this. He was then stood down by a manager. On 28 September 2015 he was sent a letter formally notifying him that he was stood down on full pay pending an investigation of “ the alleged breach of PPGs Life Critical Rules on September 24 2015 ”. The letter attached an incident report which it described as “ Operator inside a fenced area, which was still running (lock out tag out area) ”. [32] PPG conducted its investigation into the incident and interviewed a number of persons. On 30 September 2015 Mr Dang was required to attend a disciplinary interview. He was supported at this meeting by an organiser from his union, United Voice, and the union’s workplace delegate. At this meeting he was informed by the managers present (which included Mr Blake) that he was alleged to have breached the Life Critical Rules, that the breach was considered to be serious misconduct, and that it might result in dismissal. The particular Life Critical Rules alleged to have been breached were not specifically identified at the outset, but the issues of locking out and tagging out and not interfering with the safety gate at the number 3 depalletiser line were specifically raised during the interview. Mr Dang was given an opportunity to explain what happened, and was asked a number of questions which he answered. His union representative was permitted to make representations on his behalf. At the end of the meeting, Mr Dang was stood down to await the outcome of the process. [33] On 6 October 2015 Mr Dang was informed that he was dismissed with immediate effect. The dismissal letter issued to him that day stated, in effect, that he had been found to have breached two Life Critical Rules in that he had bypassed a safety interlock by climbing the fence around the depalletiser and he had failed to lock out and tag out before doing so. The letter stated: “ In making this decision we have also taken into account the seriousness of the misconduct, previous warnings, your attendance of [sic] relevant training, and we also take into account your honesty in explaining what occurred ”. In addition to his accrued leave entitlements, Mr Dang was paid five weeks’ pay in lieu of notice as “ a concession for his 21 years’ service ” and the 17.5% loading of his accrued annual leave entitlements. [34] Mr Dang’s dismissal has had significant financial and personal consequences for him. As at the date of the hearing, he had not succeeded in obtaining any permanent or regular work, and had only obtained some casual work driving a forklift through a labour hire agency since January 2016. His assessment, which I consider to be a reasonable one, was that his lack of fluency in English and diversity in employment after 21 years with PPG would make it difficult for him to obtain another job. He has spent $2000 for a training course for the operation of a mobile crane. His evidence, which I accept, was that “ My dismissal has also had a destructive effect on my self-esteem and confidence ... and ... left me distressed, anxious and with a low sense of self-worth ”. He also said that the dismissal had had a negative impact on his family, which distressed him. Consideration Preliminary matters [35] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Dang’s application may be considered. There was no contest between the parties about any of those matters. I find that: (a) Mr Dang’s application was made within the period required by s.394(2); (b) Mr Dang was a person protected from unfair dismissal; (c) PPG was not a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and (d) the dismissal was not a case of genuine redundancy. Was Mr Dang’s dismissal unfair? [36] Section 387 of the FW Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in relation to Mr Dang’s application in turn below. Paragraph 387(a) [37] I find that there was a valid reason for Mr Dang’s dismissal relating to his conduct. He deliberately entered a restricted area containing heavy moving machinery, and stood on the side of the lower roller line without the machine which operated it having been locked out and tagged out (with it further being unclear whether it was even turned off). There was a significant risk that any unforeseen event could have exposed Mr Dang to a hazardous energy source or set the roller line into operation, and that Mr Dang could have suffered significant injury or death as a result. Mr Dang knew that it was a restricted area, that only maintenance personnel were authorised to access it, and that there was a requirement to lock out and tag out before entering the restricted area and working on the machinery. A training session approximately seven weeks before the incident specifically confirmed these requirements in relation to the depalletiser. Mr Dang’s conduct involved, in substance, a contravention of two Life Critical Rules, in that he bypassed the safety interlock on the gate to the restricted area by climbing the fence, and he failed to lock out and tag out before entering the area. These matters provided a sound, defensible and well founded reason for Mr Dang’s dismissal. [38] It was contended on Mr Dang’s behalf that there was no valid reason for his dismissal, and various mitigating factors were raised in this regard, including that Mr Dang entered the restricted area because of his concern that the machinery might be damaged and he was worried that he might receive a warning letter, that he e-stopped the conveyor belt before entering the area and had called maintenance, and that PPG had taken erroneous considerations into account in deciding to dismiss him including the warning letters. However, I adopt the view taken by the Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post 3 that the issue of whether a valid reason for the dismissal exists for the purpose of s.387(a) is to be determined from the employer’s perspective, and that issues of substantive fairness from the employee’s perspective are to be considered separately. Accordingly I will deal with the mitigating circumstances as other relevant matters under s.387(h). In any event, I do not consider that these matters either individually or together diminish the validity of the reason for Mr Dang’s dismissal. Paragraphs 387(b), (c) and (d) [39] Mr Dang was notified of the reason for his dismissal in the suspension letter of 28 September 2015 and at the disciplinary meeting held on 30 September 2015. While he was not notified of the precise Life Critical Rules he was alleged to have breached, I am satisfied that the substance of the breaches were communicated to him. He was given an opportunity to respond to that reason at the same meeting. There was no refusal by PPG to allow Mr Dang to have a support person to assist him at that meeting, since PPG allowed him to be supported and represented by his union organiser and delegate at the meeting. Paragraph 387(e) [40] Mr Dang was not dismissed for unsatisfactory performance, so the issue of whether he had any prior warnings for unsatisfactory performance does not arise. Paragraphs 387(f) and (g) [41] PPG is a large enterprise with dedicated human resource management specialists and expertise, and the procedures it followed in effecting Mr Dang’s dismissal reflected that fact. Paragraph (h) [42] It was submitted on Mr Dang’s behalf that there were a number of matters which mitigated the seriousness of Mr Dang’s conduct, and that this when taken together with the significant financial and personal consequences of the dismissal rendered the dismissal harsh. It is necessary therefore for each of the matters raised to be considered. [43] The first was that Mr Dang had been honest about what had occurred, and was remorseful for his conduct. I cannot wholly accept that this was the case. At his disciplinary interview, Mr Dang gave a reasonably frank account of how he had come to be in the restricted area, and that was taken into account in his favour by PPG management. However the relevance and weight to be given to this is somewhat diminished because Mr Dang was in no real position to deny what had occurred: he was found picking up paint tins in the restricted area, without having had any authorised means to gain access and without having locked out and tagged out the machinery. Further, I do not consider that Mr Dang was entirely honest in his evidence before me. As earlier stated, I consider that Mr Dang disingenuously attempted to change his evidence about the circumstances of his earlier access to the restricted area, and I do not accept his evidence that he did not know that he was entering a restricted area. [44] I am sure that Mr Dang is remorseful for his conduct in the sense that he is sorry that he did something which caused his dismissal. However, I do not accept that beyond this superficial level of remorse he has properly acknowledged and accepted responsibility for his conduct. For example, in his first statement of evidence he said he did not know that he was entering a restricted area because there was no restricted entry sign on the fence, that he had thought that entering the restricted area was “ not particularly unsafe ” because others had done it, that he did not know that being in the area was a breach of the Life Critical Rules, that “ the production at all costs culture of the Respondent overrides its safety obligations sometimes ”, and that because he had rarely or never seen the machinery locked out and tagged out “ I do not think that my actions in not locking out the machine could be considered a serious safety breach ”. I cannot accept the validity of any of these propositions, and they indicate that Mr Dang was in fact intent on evading responsibility for his conduct or at least diminishing its obvious seriousness. [45] Second, it was submitted on Mr Dang’s behalf that PPG, in deciding to dismiss him, took four erroneous considerations into account: the earlier warnings which, under the enterprise agreement, had expired; that Mr Dang had been directed by Mr Fawcett on 24 September 2015 not to enter the fenced area and that Mr Dang had directly disobeyed him; that the machinery was still running when Mr Dang entered the area; and that Mr Dang had been dishonest in explaining what had occurred. [46] I consider this submission to be misconceived. It is apparent from the dismissal letter that only the first of these four considerations - the earlier warnings - was taken into account in the decision to dismiss Mr Dang. The other three considerations were not mentioned in that letter, and that they were taken into account appears to have been inferred by Mr Dang from the incident report and certain things Mr Blake said in his evidence. I do not think there was a proper basis for such an inference to be drawn. In relation to the suggestion that Mr Dang was erroneously considered to have been dishonest, the dismissal letter demonstrates the opposite, namely that it was taken into account that he had been honest about the 24 September 2015 incident. [47] From an objective perspective, my conclusions about the relevance and significance of the four considerations identified by Mr Dang to the assessment of whether the dismissal was harsh are as follows: I consider that the earlier warnings about safety issues given to Mr Dang are relevant, notwithstanding the provisions of the enterprise agreement, and tend towards the conclusion that his dismissal was not harsh. Having received two warnings for breaches of safety procedures, one of which was serious in nature, it should have been apparent to Mr Dang that strict compliance with PPG’s fundamental safety procedures was essential and that PPG considered any breach of those procedures to potentially be a ground for dismissal. There was no evidence of any direction from Mr Fawcett to Mr Dang before me at the hearing, and I have not taken it into account. As I have earlier found, the lower roller line was not locked out and tagged out when Mr Dang entered the fenced area, and it is not clear whether it was even turned off. I consider it fair to say therefore that the machinery was still operative. That Mr Dang e-stopped the top conveyor belt and the labelling machine before entering the restricted area only diminishes the seriousness of his failure to comply with two Life Critical Rules to a minor degree. Mr Dang’s honesty at the disciplinary interview was not, for the reasons already stated, a matter of significant weight in his favour, and I do not consider he was entirely honest about the circumstances of the incident in his evidence before me. [48] Third, it was submitted that Mr Dang had relied upon “custom and practice” in entering the restricted area, in that he had seen other employees entering the area before without encountering difficulty and inferred that he was entitled to do the same. It was also submitted in this connection that Mr Dang was significantly dependent on the observation of others to guide his work practices because of his lack of fluency in the English language. [49] I would have been inclined to give weight to this submission if the incident which caused Mr Dang’s dismissal had occurred before August 2015. However, as earlier stated, PPG had become aware that unauthorised access to the restricted area had occurred through the bypassing of the safety interlock on the gate, and had upgraded it to prevent this occurring again. Mr Dang was aware that changes had been made to prevent access through the gate by employees other than maintenance personnel, and it should have been obvious at that point that access was not permitted, whatever employees had done in the past. Further, PPG had conducted its Occupational Health and Safety Update session on 6 August 2015 which had specifically been concerned with reinforcing the position that entry into the restricted depalletiser area could only occur through the gate by authorised maintenance personnel, that machines had to be locked out and tagged out before any entry occurred, and the safety interlock on the gate was not permitted to be disabled. There was no suggestion in the evidence that Mr Dang did not understand what was conveyed at the Update session because of his lack of fluency in English. I do not consider that there was any basis for Mr Dang to believe after that point that climbing over the fence to access the restricted depalletiser area was permissible. [50] Fourth, reliance was placed on Mr Dang’s evidence that his lack of fluency in English made it difficult for him to understand the training sessions that he attended because they were always conducted in English and the written materials were always in English. I have dealt with this issue earlier. Whilst I accept that PPG’s training of Mr Dang may not have been as effective as it could have been because of Mr Dang’s lack of fluency in English, and that Mr Dang may have been reluctant to volunteer that he did not fully comprehend the information conveyed at the training sessions, nonetheless I am satisfied that Mr Dang was aware as at 24 September 2015 of the Lock Out Tag Out requirement and was also aware that access to the restricted depalletiser area was not permitted except by authorised personnel via the security interlock on the gate. Therefore I do not regard Mr Dang’s English language limitations as a significant mitigating factor. [51] Fifth, it was submitted that the reasons which Mr Dang gave for entering the fenced area mitigated his conduct. I do not accept this. There was no operational need for Mr Dang to access the area, since he had e-stopped the top conveyor belt and thereby stopped any further paint tins from falling. The maintenance fitters had been notified, and there was no expectation that he need do anything before their arrival. Mr Dang’s concern that he might receive a warning had no rational basis, and in any event in allowing this concern to override compliance with the Life Critical Rules, Mr Dang placed his own perceived self-interest ahead of the need for safety. [52] Finally, it was submitted that Mr Dang’s 21 years of service, and the personal and financial consequences of dismissal, supported the conclusion that his dismissal was harsh. These are clearly relevant and significant matters in the consideration of whether the dismissal was harsh. If the reason for Mr Dang’s dismissal had been a single inadvertent safety breach, I would have been inclined to the view that his dismissal was harsh. However, as earlier found, his conduct had the following fundamental characteristics: it followed two earlier warnings for safety breaches, one of which was a final warning; it occurred only seven weeks after a training session which was specifically concerned with reinforcing the rules and procedures which Mr Dang breached; Mr Dang’s conduct was of a most serious nature, in that it breached two Life Critical Rules and exposed him to the risk of serious injury or death; the conduct was deliberate, in that Mr Dang knew he was not permitted to enter the fenced depalletiser area when he did it; and Mr Dang had no reasonable explanation for doing what he did. [53] In those circumstances I consider, notwithstanding Mr Dang’s length of service and the consequences of his dismissal, that PPG was entitled to conclude that there was no basis for confidence that Mr Dang would comply with PPG’s fundamental safety requirements in future if his employment continued. For that reason Mr Dang’s dismissal cannot fairly be characterised as a disproportionate response to his conduct, and the detrimental consequences which have resulted from the dismissal must be considered to be the inevitable result of the fact that Mr Dang’s conduct rendered the continuation of his employment untenable. Conclusion [54] Having regard to all the above matters, my conclusion is, regrettably, that Mr Dang’s dismissal was not harsh, unjust or unreasonable. There was a valid reason for his dismissal, he was accorded procedural fairness, and I do not consider that there were any mitigating factors of sufficient weight to justify the conclusion that dismissal was a disproportionate response to his conduct on 24 September 2015. Order [55] Mr Dang’s unfair dismissal remedy application is dismissed. VICE PRESIDENT Appearances : H. Pararajasingham and T . Craven of United Voice for Muu Dang. N. Sagar and E. McNeill for PPG Industries Australia Pty Ltd t/a PPG Architectural Coatings. Hearing details: 2016. Sydney: 1 and 19 February. 1 Exhibit 2, Statement of Muu Dang dated 17 December 2015, paragraph 27. 2 Exhibit 4, Reply Statement of Muu Dang dated 29 January 2016, paragraph 2. 3 [2013] FWCFB 6191 at [35] and [42]-[46] Printed by authority of the Commonwealth Government Printer <Price code C, PR577477>