PR941742 PR941742 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment David Allan Winter and GrainCorp Operations Limited (U2003/3760) COMMISSIONER SIMMONDS MELBOURNE, 10 DECEMBER 2003 Termination of employment. DECISION [1] On 21 May 2003, Mr David Allan Winter (the applicant) lodged an application pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) in which he claimed that his dismissal from his employment as a team leader, grain handling, from GrainCorp Operations Limited (the company) was harsh, unjust or unreasonable. [2] There was a conciliation conference before Mr Boland at Swan Hill on 10 July 2003. A certificate in relation to the matter was issued by Senior Deputy President Williams on 21 July 2003. In the context of normal practice within the Commission, the contents of that certificate are not available to the Commission, as presently constituted. The applicant elected to proceed to arbitration on 21 July 2003. [3] There were hearings in this matter at Swan Hill on 23 and 24 September 2003 and at Melbourne on 17 November 2003. [4] The applicant was represented by Mr K Farouque, of counsel and the company was represented by Mr C Fisher, solicitor. [5] Mr Farouque called, as witnesses, the applicant; Mr G Merriman, an occupational health and safety officer for The Australian Workers' Union (the union) and Mr B Davis, an organiser for the union. [6] The applicant started work for the company in approximately November 1997 as a casual to run the silo at Qaumbatook during harvest periods and the outloading of product in between harvests. [7] Approximately two years ago, the applicant applied for, and was successful in obtaining, a permanent position as a grain handler with the company and six months later was successful in obtaining the position as team leader, grain handling, at the Quambatook site and elsewhere within the Charlton region. [8] The applicant's dismissal occurred after an accident on 5 May 2003 to Mr J Di Petta, a truck driver and contractor, who was at the Quambatook site to collect and transport grain from the site to an off-site location. [9] The applicant was in a team of four permanent employees and three casual employees working at the site on that day. The site is spread over two kilometres and there are several areas involved in the storage of grain at the site. [10] It is the applicant's evidence that the team was multi-skilled and each member could do the other tasks of the team. The number of employees on any day is organised by either Mr G Nicholson or Mr L Keane, who are members of the management team in the area. [11] The applicant and Mr R Gray, another permanent employee, arrived at work at the site at 7.00 a.m. on 5 May 2003. Mr Gray and the applicant pulled the tarpaulins off a grain bunker and started various machinery. Mr Gray then went and weighed two trucks that were waiting at the weighbridge, after which he went down to get the sub-terminal ready for internal receivals. He then returned to the weighbridge to weigh in Mr Di Petta's truck. In the meantime, the applicant had run out electricity leads for an auger and set up a ladder for the observation of loading of trucks. [12] The applicant was operating an eleven tonne front end loader in a bunker, moving grain up to an auger, so that the grain could be loaded on to trucks for delivery elsewhere on site and off site. The applicant says that this job requires a great deal of concentration as there are other people working in the bunker at the same time sweeping grain off the floor up to the grain face. [13] The applicant says that the person at the weighbridge was responsible for handing a document, regarding induction to the Quambatook site, to external contractors and it was assumed by the weighbridge operator that the external contractor drivers read the document whilst their trucks were being weighed. [14] The applicant admits that he received a safety bulletin dated 5 November 2002 1 by facsimile, on or about the same date, which outlined GrainCorp's volunteer labour policy. He says that he received no training in relation to the policy but admits that he signed a document saying that he had been instructed in, and understood, the document. The policy states that employees must not accept any voluntary offer of assistance to carry out operational activities. It further claims that "GrainCorp employees allowing visitors to assist in operational activities are in breach of the OHS Act". It specifically excludes from the policy those visitors "covered by contractual agreements with GrainCorp" . [15] It was generally conceded that the practical operation of the policy was such that, unless persons had been properly inducted into GrainCorp operations, they were regarded as covered by the policy. On the day in question, a number of local farmers were carting grain from the bunker to the silo. They were all inducted into the operations and were considered to be covered by the exemption contained in the policy. The policy in question was promulgated by the company on 5 November 2002. Its promulgation was undertaken as a consequence of an incident at Boree Creek, NSW, where a person providing voluntary assistance was seriously injured. [16] Mr Winter claimed in proceedings, and also in his discussions with the company, that he had seen external contractors operate the auger often and he also alleged in proceedings that he has seen Mr Nicholson encouraging external contractors to operate the auger. This is direct contradiction of the volunteer labour policy. [17] The applicant says that he saw Mr Di Petta on the ground and went to help him. Mr Di Petta told him that he fell from a step ladder on to the retaining wall around the bunker as he tried to turn off the auger, as his truck was nearly full. The applicant assisted Mr Di Petta and said that he would fill out an incident report because of Mr Di Petta's apparent injuries. That report was completed and delivered to the Charlton office of the company on the same day. [18] An investigation of the incident was authorised by the company and was undertaken by a company called Huxley Hill. A copy of the reports of interviews with the employees at Quambatook was tendered in evidence. 2 It would appear that no attempt was made to interview Mr Di Petta about the circumstances of the incident. [19] Shortly after the accident on 5 May 2003, the applicant and three other permanent employees were stood down on full pay whilst the investigation into the incident took place. Late in the day on 19 May 2003, the applicant was asked to attend a meeting on 20 May 2003, by Mr J Tansley, southern area division manager, for the company. [20] The applicant attended the meeting with his union representative. He had previously been advised that, as a result of the accident on 5 May 2003 and the alleged breach of company policy in relation to external contractors working on site, his actions may lead to his dismissal. There were a series of meetings and interviews on that day and, at the end of that process, the applicant was terminated. [21] The applicant alleges that the reason for his termination is because the company was looking for a redundancy in the region, although he has not disclosed this information before in any documentation or in his examination-in-chief and his belief is that the accident was a convenient excuse to dismiss him. This claim is denied by Mr Tansley. [22] The next witness called to support the applicant was Mr Merriman. He gave evidence about his experience on various sites in a range of occupational health and safety positions. He was critical of the GrainCorp volunteer labour induction policy because it did not specify what external contractors were allowed to do on site and it did not require a signature from the external contractor to the effect that they understood the policy. He was further critical of the policy because it was prepared without any input from the employees or their elected occupational health and safety representatives. His evidence was that it would be very difficult for the applicant to effectively manage safety on the site whilst he was driving the loader. [23] The final witness for the applicant was Mr Davis. He testified that the possibility of obtaining full-time employment in the Bendigo district, which included Quambatook, was very difficult. [24] The first witness called for the company was Mr J Tansley, manager, southern division, GrainCorp. Mr Tansley says that he was responsible for the applicant's dismissal, in conjunction with Mr K Lloyd, general manager, storage and handling, GrainCorp. [25] In cross-examination, Mr Tansley was asked about the responsibilities of the team leader on one of the company's sites. He stated: "The responsibilities are centred around coordinating the work requirements, coordinating staff and equipment and operating the site in a safe and efficient way. When you say operating the site in a safe and efficient way what do you mean by that?---Ensuring that all the operations are within our safety requirements and our safety policies are abided by. Is that the sum total of your understanding of the responsibilities of a team leader?---Yes, that generally covers it. Okay. And so you have nothing to add to that, do you?---No." 3 He later confirmed that the team leader also had to carry out the usual operational functions of other workers on site, such as loader operation, sweeping, cleaning up and possibly operating the weighbridge. [26] Mr Tansley was cross-examined about when and how the decision was taken to dismiss the applicant. He says that the dismissal was effected after discussion with Mr Lloyd. However, during the cross-examination, he said that he did not have any conversation with Mr Lloyd on 20 May 2003, the day the applicant was dismissed. He also admitted that the company had prepared the termination letter before the second meeting on 20 May 2003 and had it with him as the meeting started. It was then handed to the applicant at the conclusion of the meeting. [27] Mr Tansley insists that the applicant was dismissed because he was the team leader at the site when the accident happened and he should have prevented Mr Di Petta from operating any equipment at the site. When cross-examined by Mr Farouque, he could offer no reason for the differential treatment of the applicant by comparison to the other three permanent employees working at the site on that day, who received a warning that had a limited duration. [28] Mr Tansley agreed that the first point of contact between outside persons and workers at the Quambatook site was at the weighbridge and that the weighbridge operator was the person who usually gave those persons the induction papers. He also agreed that it was reasonable for the other workers on site to assume that the weighbridge operator had completed the induction process. [29] Mr Tansley said that he was advised of the incident on 5 May 2003 by Mr S Faber, the company's occupational health and safety representative, on 8 May 2003. His evidence is that: "The main concern was that there was an injury and the second concern was that it seemed that there had been a breach of our volunteer labour policy." 4 [30] Mr Farouque asked Mr Tansley if he was aware if Mr Di Petta had been inducted onto the site on 5 May 2003. His response was that he had not checked that fact with Mr Di Petta. He was also asked whether he had inquired of Mr Di Petta how the accident had happened and his response was that he had not approached Mr Di Petta. When shown the induction form, 5 he agreed that the form did not specify what external contractors were permitted or not permitted to do. He also says that he did not approach Mr Di Petta to ask him what he understood that he was allowed to do on site. [31] Mr Tansley confirmed that Mr Di Petta was involved in a contractual arrangement with another division of the company. [32] The next witness called for the company was Mr P Minogue, the deputy division manager, southern division. Mr Minogue was acting division head whilst Mr Tansley was on leave. [33] Mr Minogue says that he was advised of the accident to Mr Di Petta on 7 May 2003 by both Mr Faber and Mr Nicholson. He was aware that Mr Di Petta had driven himself from the site and, therefore, assumed that Mr Di Petta was alright. He did not report the incident to Mr Tansley as he did not think that it was important at that stage as there did not appear to be any serious injury. [34] Mr Minogue says that he agreed with Mr Nicholson's proposition that the ladder be removed from the site and that mirrors be installed near the bunker so that people could see when a truck was full. He believed that this would help eliminate such accidents as had happened to Mr Di Petta. At that stage he did not think that any further action was merited. However, that situation changed when he discovered that Mr Di Petta was hospitalised and that the company may be exposed to prosecution by WorkCover. [35] Mr Faroque proposed that part of the reason for the disciplinary action against the applicant and the other permanent employees was to mitigate the company's exposure to future litigation and Mr Minogue said that this may have been a minor consideration. Mr Minogue was also asked if the hiring of external investigators was because there had been an injury of site and his response was that it was a factor. [36] In response to questioning from the Commission, Mr Minogue confirmed that there was a contractual relationship between Mr Di Petta and the company. [37] The final witness called by the company was Mr Faber. In his witness statement 6 he described the arrangements for occupational health and safety training for contractors: "In general, grain transport activities at sites throughout the Charlton region are divided into three categories. The first are truck driver/contractors who perform regular GrainCorp work, primarily the transfer of grain from bunker to silo. The second category are external or independent contractors who collect grain from the bunker sites and then transfer them to other destinations. The third category are drivers who occasionally visit GrainCorp sites and do not have any specific training in the OH&S policies. The first category, the GrainCorp contractors are inducted into GrainCorp policies, the second category are to be checked for whether or not they had received induction and the third should always be checked as a matter of course." 7 [38] He agreed that the only document handed to external contractors was a green form. 8 When it was pointed out to him by Mr Faroque that the green form did not include any reference to volunteer labour, his response was that the company had just had 15,000 of the forms printed in September 2002. He said that the company expected its employees to explain the safety policy to external contractors. He confirmed that the green form was the tool the company provided to its employees to inform external contractors about their obligations while on site, and conceded that it was not up to date. [39] He also said that, at the time the incident report was received by the company on 6 or 7 May 2003, he did not think that any further action was warranted as Mr Di Petta did not appear to have suffered a serious injury. It was only after it was reported that Mr Di Petta had been hospitalised that he referred the matter to Mr Tansley. [40] He conceded that the company had only relied on administrative controls in dealing with the occupational health and safety issues related to volunteers operating equipment. He conceded that there were more appropriate measures, such as engineering solutions, elimination and substitution. He specifically agreed that it was incumbent on the company, in circumstances such as those applying at Quambatook, to have in place occupational health and safety measures which do not simply rely on the team leader raising matters with other people. [41] He also conceded that it was possible that Mr Winter had not had the benefit of an information session in respect of the volunteer safety policy bulletin, whereas it was possible that other employees in other divisions would have had that opportunity. Submissions for the applicant [42] The following is a summary of the submissions of Mr Farouque, on behalf of Mr Winter. He claimed there were a number of significant matters: That Mr Winter was a relatively long serving employee of the company who had never received a warning, formal or informal, in the course of his employment. His employment record was unblemished. He had been promoted during the course of his employment. When the company introduced the volunteer labour policy, it was done without consultation with its Victorian employees, and Mr Winter simply signed a document stating he had received and understood it. He did not have the benefit of any information session. That Mr Winter was not in breach of the terms of the policy, as Mr Di Petta fell within the exemption contained within it, namely, he was in a contractual arrangement with the company. He was, thus, not guilty of the misconduct alleged against him. The organisation of work at Quambatook on the day in question involved the applicant in operating a loader. Another employee was at the weighbridge with the responsibility of inducting contractors on to the site. Mr Tansley conceded that, in conducting the investigation, he made no enquiries about whether Mr Di Petta had been inducted. Moreover, the evidence available to Mr Tansley, namely the report of the investigators, does not indicate whether or not an induction was carried out. The sole method for induction of visitors, the provision of the green form, fails to include clear instructions to external contractors that they should not perform any operational tasks. It was effectively admitted by Mr Faber that this was a critical omission. The respondent had failed to address in a timely fashion the need to provide clear instructions to external contractors. At the time of deciding to terminate Mr Winter's employment, Mr Tansley lacked proper knowledge of the nature of the Mr Winter's job or role as a team leader, and, in particular, his obligation to perform actual tasks as an integral member of the crew. On the day Mr Winter was operating an eleven tonne loader, two other employees were working on the ground in close proximity. He saw a truck come under the auger, but could not say whether he realised it was Mr Di Petta's truck or not. Other trucks, operated by farmers who were internal contractors, had been queuing up to load at the auger during the morning, and Mr Winter's function was to ensure that sufficient grain was up against the auger so that it could continue functioning. That circumstance was critical for two reasons: Mr Winter was not just supervising operations, but performing an operational task in circumstances where authorised drivers had been operating the auger. The failure to detect that Mr Di Petta proposed to operate the auger cannot be held against him. Mr Di Petta suffered an injury because of his own reckless act, which cannot be held against Mr Winter. The breach of policy was not the operative reason for the termination, but rather it was the fact that an injury was suffered. Until it was reported that Mr Di Petta was hospitalised, there was no consideration of investigation or disciplinary action. In fact, the injury was not as serious as the company initially believed. No investigation was carried out by the company in respect of Mr Winter's allegation that the volunteer policy had been breached by other employees on other sites and other occasions. The mere fact that someone suffered an injury cannot constitute a valid reason for termination. In the first days after the accident, senior officers - Mr Nicholson and Mr Minoque, were happy to let the matter run. Mr Nicholson, in the incident report, said not further investigation was required, and that is a good contemporaneous measure of the seriousness of Mr Winter's actions. The failure of the company to adopt forms of controls, other than its defective administrative controls, to implement its volunteer labour policy is a factor that goes to the harshness of the termination. There were two significant deficiencies in the procedures adopted by the company: No-one from the company spoke to Mr Di Petta or anyone else to establish whether or not he had been inducted - to establish what he could or could not do. The decision to terminate was made by Mr Tansley, in conjunction with Mr Lloyd. However, that discussion occurred before the meeting on 20 May 2003, at which time Mr Winter was asked to respond. Three other employees considered by the company to be in breach of the same policy received a warning, that was, subsequently, reduced to a three-month duration. Mr Winter is summarily dismissed. Such a result is harsh and unfair because it is disproportionate. It is clear from the evidence that no consideration was given to any other form of penalty, such as demotion. This amounts to a serious omission for the applicant is 47 years old and the evidence is that it will be difficult to obtain other full-time employment, a matter that also was not taken into account in deciding to terminate him. Neither Mr Lloyd, the joint decision maker, and Mr Nicholson, who Mr Winter alleged he had seen engage in the conduct for which he had been penalised, had been called by the respondent, even though they had filed witness statements for them. No explanation has been offered for the failure to call them and, in that circumstance, a Jones v Dunkel inference can be drawn. Reinstatement in all of the circumstances is an appropriate remedy The applicant has an otherwise unblemished record of service. There is no suggestion that the viability of the company's business would be adversely affected. Mr Winter has received no remuneration up to the time of the hearing and he has made appropriate efforts to obtain alternate employment. Submissions for the respondent [43] The following is a summary of the submissions made by Mr Fisher, on behalf of the respondent: The statutory regime established by the Occupational Health and Safety Act 1985 (Vic) establishes the context for the Commission to consider that the termination of Mr Winter for a breach of the volunteer labour policy amounted to a valid reason associated with his conduct. The statutory regime provides a strict liability on the company to ensure the health and safety of its employees and other persons attending its sites. It also places obligations on employees to co-operate and take reasonable care to ensure the employer is in a position to meet those obligations. The volunteer labour policy needs to be considered in a practical way because of its practical purpose to ensure that people do not get injured. Mr Winter, at the time the matter was investigated by Huxley Hill, and later, during the interview with Mr Tansley, conceded that Mr Di Petta's operation of the auger was a breach of the volunteer policy. The relevant distinction on site was that of internal and external contractors, the former having been inducted into the site safety procedures, and the latter, who had not, and, as a consequence, had to be directed in the performance of activities on site. In cross-examination, Mr Winter conceded that, on the day in question, it was easy for him to establish the difference between internal and external contractors, but notwithstanding, he failed to check on Mr Di Petta. Mr Winter was aware of the ramifications of a breach of the company's safety policies, and, in particular, that a breach could lead to termination. Although operating a front end loader at the time of the incident, it was likely that he would have been able to see Mr Di Petta's truck and he could have easily taken a break from operating it to ensure that an external contractor should not have engaged in operational activities. As the team leader on the day, he was the most senior person on site. The evidence of Mr Tansley, taken as a whole, does not support the proposition that he was unaware that a team leader was, in addition to his supervisory responsibilities, also undertaking operational tasks. The failure of Mr Winter to advise management that other employees engaged in an activity that breached the volunteer policy was a failure to comply with his obligations as a supervisor and his obligations under the occupational health and safety legislation. This latter point was conceded by Mr Merriman in cross-examination. The fact that someone is injured as a direct consequence of a breach of safety policy is a matter relevant to the gravity of the offence. However, the injury itself did not constitute a reason for dismissal. There was no unfairness in the procedure adopted by the company. Mr Winter was stood down on full pay for approximately fifteen days while an investigation was carried out. He took advice from his union during that time. The company then adopted what was, in effect, a show cause process, where he was given an opportunity to respond. The discussion between Mr Lloyd and Mr Tansley took place in that context, namely, that if the response was not satisfactory, termination was one of the options. Submissions in reply for the applicant [44] In reply, Mr Farouque made the following submissions: That Mr Di Petta was never spoken to in the course of the investigation to establish the extent to which he had been inducted into site safety procedures. The distinction in respect of internal and external contractors and the extent of induction is not a simple dichotomy, as the evidence of Mr Faber makes clear. There are, in fact, three categories; truck drivers regularly contracted to the company, primarily transferring grain from bunker to silo, who are inducted into the safety procedures; external contractors collecting grain from Graincorp sites and transferring it to other destinations, who should be checked as to whether or not they had received induction; and the third group, occasional visitors, should be checked as a matter of course. It was practical for the company to explain its policies to its employees. It did not explain the volunteer policy to Mr Winter or others in the Charlton region. The conclusion that the alleged breach of policy directly caused the accident is not borne out. It is not clear if an induction was carried out. It is clear that the induction documentation was deficient in failing to inform contractors that they should not perform operational tasks. Was there a valid reason for termination? - Section 170CG(3)(a) [45] There is some doubt in my mind that Mr Winter actually breached the company's safety policy on the day in question, if that safety policy was to the effect that so-called `external contractors' should not carry out operational tasks. That, of course, is not the company's policy as written down and conveyed to its employees, for the written version of the policy clearly exempts persons in a contractual agreement with GrainCorp. However, and the matter is not without difficulty, I am satisfied that Mr Winter understood that persons who had not had a full safety induction were not to operate equipment. This is because this is the effective distinction between `internal' and `external' contractors. Where the doubt to which I have referred arises, is around the question as to whether Mr Di Petta had or had not undertaken the full safety induction, for, if he had, he was permitted to operate the auger in question, and, if he had not, he was not. [46] If Mr Di Petta had not undertaken the full safety induction, then Mr Winter was in breach of the policy. However, I do not consider that, in the circumstances, that breach amounted to a valid reason for termination, much less summary termination for misconduct. My reasons for this conclusion are: Although the responsible team leader on site, he was obliged to carry out significant operational tasks requiring close attention to the job in hand, particularly because of the presence of other employees on the ground near the relatively large machine he was operating. His actions were not the sole cause of the accident. The company failed, in its handout to contractors, to advise them that they were not permitted to undertake operational tasks. Mr Di Petta failed to take sufficient care. The company relied solely on administrative controls to implement its policy, an arrangement its own officer considered to be insufficient. Mr Winter testified to having observed other employees, including at least one senior to him, having turned a blind eye to the volunteer policy. This evidence was not challenged. I infer from this that the policy in respect of volunteers was not strictly enforced in the Charlton region. Moreover, the company originally proposed to call Mr Nicholson, the named senior officer, but he was not called. I am more confident in drawing the inference that the policy was not strictly enforced because the respondent did not call him, and gave no explanation for that decision. 9 It may be that this non-enforcement was a function of the failure of the company to provide the expected instruction in the contents of the safety bulletin that promulgated the volunteer labour policy. [47] Of course, if I am wrong in my conclusion that it is the practical effect of the policy that is relevant, and the company's written policy is what Mr Winter is alleged to have breached, then, he is not guilty of the allegation, as Mr Di Petta was in a contractual agreement with the company. [48] Equally, if Mr Di Petta had undertaken the full safety induction, then the allegation that Mr Winter breached the "practical policy" is also unfounded. There is no evidence one way or the other about this matter. Was he notified of the reason? - Section 170CG(3)(b) [49] Yes. Was he given an opportunity to respond? - Section 170CG(3)(c) [50] I am satisfied that Mr Winter was given an opportunity to respond. However, I am not satisfied that he was given an opportunity to respond prior to the decision to terminate being taken. Mr Tansley was explicit on this point when referring to the involvement of Mr Lloyd in the decision: "So you both decided to terminate the applicant's employment essentially, is that right?---That is right." 10 It is then apparent that there was no discussion with Mr Lloyd after the final meeting between Mr Tansley and Mr Winter (and others, but not Mr Lloyd) on 20 May 2003. While this is explained as a `contingent decision' , that explanation smacks of reconstruction. Either Mr Tansley made the decision to terminate, a matter Mr Tansley denies, or he and Mr Lloyd decided to terminate Mr Winter unless he provided some new information. I accept Mr Tansley's denial, so, it follows, that the decision to terminate was taken by Mr Lloyd and Mr Tansley prior to the meeting on 20 May 2003. Mr Winter's opportunity to respond was severely compromised, for whatever he may have said, the joint decision-maker was not to be privy to it. The ability to respond is pointless if there is no capacity for the response to be taken into account by the decision makers. Was there a prior warning? - Section 170CG(3)(d) [51] Mr Winter had not received any previous warnings. His employment with the company appears to have been unblemished. However, as the termination was connected with his conduct rather than performance, this matter is of little relevance. The size of the company and availability of dedicated human resource specialists. - Section 170CG(3)(da) and (db) [52] No evidence or submissions are before the Commission on these matters. Other relevant matters. - Section 170CG(3)(e) [53] I consider the failure of the company to interview Mr Di Petta and obtain his version of events was a significant failure of procedure. As I have pointed out, if Mr Di Petta had been inducted into the safety procedures of the company, then there was no breach of the policy. This was never established by the company in the course of its investigation, and even now is not resolved. Conclusion [54] Having regard to the above matters, I consider that the termination of Mr Winter was harsh, in that it was disproportionate to the nature of the misconduct, taking account of the circumstances in which it was committed, and because of the consequences for Mr Winter's economic situation. 11 It was also possibly unjust, because Mr Winter may not have been guilty of the breach of policy. 12 In reaching this conclusion, I do not want to be seen as concluding that a person in a supervisory position does not have a responsibility to enforce a company's reasonable safety procedures, for clearly they do. However, the circumstances in this present case do not allow the responsibility for the accident to Mr Di Petta to be sheeted home to Mr Winter in the way it was. [55] Additionally, the deficiencies in the process of investigation - the failure to provide a real opportunity to respond and the failure to interview Mr Di Petta - mean that Mr Winter was not given `a fair go all round' . I am satisfied that Mr Winter's termination by the company was harsh. Remedy [56] There is no evidence that any remedy would have an effect on the viability of the company. Mr Winter was employed by the company for a period of two years in a permanent capacity, during which time he was promoted to a team leader. He had an unblemished record. Had he not been terminated he would have continued to have received payment at the rate of $803.00 per week for ordinary hours. Mr Winter has undertaken reasonable efforts to mitigate the loss suffered by him as a result of the termination. Other matters that I consider relevant to the issue of remedy include the general circumstances of the case, the fact that the other employees at Quambatook on the day in question received a warning, and that Mr Winter was not blameless (assuming Mr Di Petta had not been inducted into the company's safety procedures). [57] Taking all of those matters into account I consider that the company should: 1. Reinstate Mr Winter by reappointing him to the position he held immediately before the termination, within fourteen days. 2. Maintain Mr Winter's continuity of employment with the company. 3. Pay to Mr Winter the amount of remuneration he would otherwise have been paid during the period between his termination and his reinstatement. From this the company should subtract an amount equivalent to 2.7 weeks ordinary pay. All amounts are subject to the deduction of the necessary taxation. Such payments should be made within 28 days. Pay to Mr Winter the amount of remuneration he would otherwise have been paid during the period between his termination and his reinstatement. From this the company should subtract an amount equivalent to 2.7 weeks ordinary pay. All amounts are subject to the deduction of the necessary taxation. Such payments should be made within 28 days. I have adjusted the amount to be paid to Mr Winter by an amount equivalent to the difference between the team leader rate of pay and the rate of pay for a grain handler for thirteen weeks (on the basis of a 38 hour week), which is approximately equivalent to 2.7 weeks (again on the basis of a 38 hour week). This has the effect of demoting Mr Winter for a three month period, which I consider to be a reasonable response to his actions on the day, and is proportionate to the warnings issued to the other employees. [58] The order giving effect to this decision is published separately as print PR941743 . BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code E> 1 Exhibit KF3. 2 Exhibit CF1 Attachments JET5-JET8. 3 Transcript PN1412-1415. 4 Transcript PN1514. 5 Exhibit KF2. 6 Exhibit CF3. 7 Ibid, paragraph 11. 8 Exhibit KF3. 9 Jones v Dunkel (1959) 101 CLR 298, 312, Menzies J. 10 Transcript PN1418. 11 Australian Meat Holdings v McLauchlan (1998) 84 IR 1, 10. 12 Ibid.