News 6 January 2017

Casual forklift driver awarded $11,149 in compensation for his unfair dismissal

A casual forklift driver has been awarded $11,149 in compensation for unfair dismissal after he was told to ‘get out the gate’ following an argument with his supervisor in August last year.

The Fair Work Commission heard between May and August 2016 there was an increase in safety issues at the workplace from bales not being stacked correctly. The employee admitted he was asked twice in this period about bales falling, but stated he had stacked the same way since the start of his employment in 2011. In August, the employee had a meeting with his Supervisor which resulted in argument between the pair. The employer and employee disagreed on the events that occurred during the course of this meeting when appearing before the Commission.

The employee claimed he put his keys on the desk and advised the Supervisor he no longer wanted to unload bales, however would continue driving the forklift and heister. As a result, he claimed the Supervisor became loud, told him he was sick of his whinging and to “get out of the gate” multiple times.

The employer’s version of events was that the employee came to work, threw his key on the desk and told the Supervisor he would only do front-end loader work in future. The Supervisor told the employee he wanted him to work as a loader and was concerned about staff safety with the bale stacking issues. The employer claimed the employee shouted that the stacks were safe and subsequently stormed out of the workplace. The Supervisor argued he wouldn’t have told the employee to “get out the gate” but would have most likely said “if you don’t like it, there is the gate” however added he didn’t remember what exactly he said to the employee.

As there were no other witnesses to this conversation, the FWC was required to make a decision as to which respective version of the conversation was likely to be more accurate. In making this assessment, Commissioner Simpson considered the consistency of verbal and written evidence submitted to the FWC. Ultimately, the Commissioner agreed the Supervisor had told the employee to “get out of the gate” multiple times, and this would have been understood as a termination of employment.

The Fair Work Commission ordered the compensation following the employee’s dismissal on 11 August 2016, finding that  there was no valid reason for dismissal, the employee was not notified of the reason and not given an opportunity to respond.

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Unfair Dismissals and Redundancy on 31 January 2017 to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

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