By

Gaby Grammeno

Contributor

The job of the Port Kembla stevedore involved ensuring the proper loading, stowage, and unloading of ships. In the three years she’d been in the job, she was engaged in various roles including bus driver, guide, parking, bobcat driver, breakout team member, and car team. She had an unblemished employment record.

In March 2023 she was in a team unloading a vessel tightly packed with vehicles and cargo. While moving a Mercedes she hit a stanchion (a support column), causing significant damage to the front corner of the vehicle. Her employer, Qube Ports Pty Ltd investigated the matter over the next two months.

Her explanation of how and why the accident happened was that the stanchion was in her blind spot. Until a moment before the collision, her line of sight had to be facing left, opposite to the stanchion, to watch the hand signals of the ‘breakout guide’ (the person directing her moves).

She trusted that the breakout guide had deemed it safe for her to proceed, and as she turned her head to the right, her view of the stanchion was obstructed by the vehicle’s A pillar (the upright supporting the windscreen on the driver’s side) and the barcode identification labels on the top right corner of the driver’s side window.

The employer was not satisfied with her explanation, however, and decided to terminate her employment, accusing her of having tried to ‘shift blame away from her own careless conduct’.

The stevedore applied to the Fair Work Commission, alleging she’d been unfairly dismissed and seeking reinstatement and compensation.

In the Commission

The two central matters considered by the employer when it dismissed the stevedore were the incident itself, and the degree to which she accepted responsibility for it.

The Fair Work Commission heard that the incident had caused extensive damage to the vehicle, and would cost the employer $70,000 for repairs. This would be factored into the KPIs in the contract with the customer, potentially putting Qube at a commercial disadvantage when seeking to renegotiate that customer’s contract when it expired. The operations manager believed the incident would cause the company significant reputational damage.

The stevedore’s case was that the operation that day was behind schedule, the extra breakout guide wasn’t there, they’d had a change of destination and were rushed. In relation to the stanchion’s visibility and her line of sight, she noted that the stanchion, walls, floor, and ceiling were all painted white, and the stanchion had non-reflective tiger tape only at bonnet height. She noted that she is ‘only 5 foot tall, and the vehicle was a large Mercedes SUV’. She believed tape and cones would have helped in identifying the hazard.

However, she accepted that she was the operator of the vehicle, had not been paying enough attention, and took full responsibility for the damage caused. She said it was not intentional and there were other factors she believed could be considered. She understood Qube’s concerns and the reputational damage, for which she was very sorry. She noted that in the years she had worked for the company she had moved hundreds of cars on vessels without incident.

Deputy president Easton did not accept Qube’s submission that the stevedore’s explanations and responses throughout the disciplinary procedure had been ‘evasive’ or that ‘from the moment that the incident occurred, [the stevedore] immediately attempted to shift blame away from her own careless conduct’.

He said the worker’s referring to the A-pillar of the vehicle partially blocking her line of sight to the stanchion was an explanation for her mistake, not an excuse or any kind of blame-shifting, nor was her mention of safety precautions that may have changed the outcome.

The deputy president accepted that causing damage to a vehicle inside the vessel was a valid reason for dismissal. However, he was not satisfied that her alleged failure to accept responsibility for her conduct was a valid reason for dismissal because he did not accept this allegation had been made out.

Moreover, though this alleged failure to take responsibility for the incident was one of the two reasons for her dismissal, she had not been notified of this allegation or given an opportunity to respond to it. She had not been skylarking or wilfully reckless, had cooperated in Qube’s investigation, and showed genuine and appropriate remorse.

Further, there was evidence of other vehicles suffering damage and those responsible for the damage remaining in employment.

While there was a valid reason for the dismissal, the Commission ruled it was disproportionate, harsh, unreasonable and unfair.

He rejected the proposition that her actions had broken the mutual trust and confidence between her and Qube. He ordered that she be reinstated with continuity of employment, but that her compensation for lost pay be reduced by 15% in recognition of her mistake.

What it means for employers

Blaming a worker’s carelessness for an accident can result in other contributing factors being overlooked. Investigations should consider all relevant factors and disciplinary actions should be proportionate.

Read the decision

Taylor Collier v Qube Ports Pty Ltd [2023] FWC 3040 (20 November 2023)