Applicant was not a native English speaker
A weigher/labeller for a fresh goods company was hired in April 2013 and became a permanent full-time employee in November 2013. The weigher/labeller was born in Ethiopia and English was his second language. He worked 38 hours per week and his gross pay was $935.
Responsibility for checking labels
In the Weight and Label Room, the weigher/labeller worked together with two other weigher/labellers and a leading hand. Each weigher/labeller was responsible for checking and signing the Label Verification Sheet to ensure there are no errors. This was a standard work procedure for which the weigher/labeller had been trained in February 2020. He had demonstrated his competency through a practical demonstration during an assessment.
High-pressure and rush conditions in the Weight and Labelling Room
There was immense pressure for workers inside the weigh and label room since they had to weigh and label about 1800 boxes every day. The weigher/labellers were always told by the leading hands to hurry and if they did not move fast, the boxes on the conveyor belt fell to the floor.
Wrong labels cause low profits
Sometimes when the weigher/labellers made mistakes and the products are labelled incorrectly, the company sold them to the staff at discounted prices and so the company gained less profit. If the label is incorrectly done, the products may reach the market and then the company would lose more profit when products were recalled. On average, 50-60 cartons of products per day are rejected for labelling mistakes or for failing to meet the specifications of the customers. These were all sold to the staff.
Leading Hand directed weigher/labeller to sign the Verification Sheet
One day, the leading hand told the applicant weigher/labeller to just sign the Label Verification Sheet because the other weigher/labellers had already checked the products anyway. The weigher/labeller followed the direction of the leading hand and signed the Verification Sheet. He checked the product description, the date, and the price but he did not check the weight. The other weigher/labeller on the team had encircled the weight and so, the applicant thought that it indicated that that another member of the team had already checked the weight of the box.
Toolbox meeting usually discussed the mistake
Later, the supervisor caught the incorrect labelling and so around 16 boxes of turkey thigh roast had to be sold to the staff at discounted prices. When mistakes were made, there was usually a discussion during the toolbox meeting so that the mistake will not be repeated.
Weigher/Labeller called to a meeting to explain his mistake
A week later, the weigher/labeller was called to a meeting. At that meeting, the weigher/labeller was not provided with a support person who can speak Ethiopian. The weigher/labeller tried to explain as best he could but the meeting was soon over and no one told the weigher/labeller was at risk of losing his employment.
Weigher/Labeller dismissed
A week after the brief meeting, the weigher/labeller was called to another meeting without prior notice. At this second meeting, he was not given a support person who spoke Ethiopian. He was simply told that he had been dismissed.
The weigher/labeller was not given the opportunity to explain why he should not be dismissed. The weigher/labeller had three other such incorrect labelling incidents in the past. One month later, the weigher/labeller received $11,273.91.
Weigher/Labeller knew the importance of the label verification procedures
Despite knowing the importance of the label verification processes, the weigher/labeller still disregarded the processes and signed the labels without having checked the labels. During the two meetings when the incident was investigated, the weigher/labeller did not tell his superiors that the leading hand had directed him to just sign the label because other weigher/labellers had checked the label.
Important evidence not provided during investigation
The weigher/labeller had not mentioned that the leading hand had instructed him to simply sign the label verification until the second witness statement that the weigher/labeller had filed before the Fair Work Commission.
It might be that the weigher/labeller was afraid of making trouble for the leading hand. It might also have been because the weigher/labeller did not speak English so well and the investigation was conducted without him receiving support from a person who spoke Ethiopian and English.
The direction of the leading hand was a piece of evidence that existed at the time of the dismissal but it did not come to light until after the weigher/labeller had already been terminated.
Company investigation was deficient
While the company followed all the procedures for effecting the dismissal, it was possible that the weigher/labeller did not fully understand nor was he able to fully explain the reason why he failed to properly check the labels on the boxes before signing them.
However, at the time that the employer conducted the investigation, it did not investigate the two other weigher/labellers or the leading hand who were working with the applicant. The entire team (three weigher/labellers and the leading hand) were collectively responsible to ensure that the label was verified before signing it. Thus, if there was a mistake in the labelling, the company should have investigated the entire team and not just the applicant.
Weigher/Labeller was found to have been unfairly dismissed
These deficiencies in the employer’s procedures explained why the employer had been unable to discover that the weigher/labeller had been told by his leading hand to take a shortcut. Because of this, the FWC decided that the weigher/labeller had been unfairly dismissed. The employer was ordered to pay the applicant $5,610.
Source:
Misgina Gebremedhin v Inghams Enterprises Pty Ltd [2021] FWC 3988 (19 July 2021)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2021/3988.html
