Overview of the Facts

The factory, located in a rural town with a reasonably high unemployment rate, employed the worker for over 17 years. Importantly, the factory held safety in high regard given the frequency of forklifts travelling in the area. The factory therefore implemented a strict safety regime which included six “golden safety rules”. On the 8^th of April, the worker noticed a blockage in a machine that removes and filters cardboard from packages arriving on site. They took action to unblock the machine by travelling around the pedestrian designated area and into the area where forklifts operate. When he was within this zone a forklift entered alarming the driver and putting the worker’s personal safety at risk. This breached the factory’s safety procedure which mandated that employees should “never bypass a safety control” and should “keep clear of moving vehicles”.

Following the incident, the forklift driver filed an incident report form, claiming the workers presence in the zone constituted a near miss. The factory requested an explanation from the worker for his actions. During the meetings the worker could not offer a satisfactory answer according and the factory decided “his explanation demonstrated a cavalier attitude to safety”. Ultimately the business concluded the worker had engaged in serious and wilful misconduct by breaching multiple golden safety rules and terminated his employment, paying notice.

The worker lodged an unfair dismissal claim. He argued his actions prevented the overflow of cardboard into the forklift pathway and that if he did not take this action the resulting clean-up would have necessitated higher risk in the area. His application also highlighted other mitigating factors for the Commission to consider including his length of service and employment record.

The Decision

The Commission was satisfied there was a valid reason for the dismissal, rejecting the worker’s argument that the overflow of cardboard would have resulted in a safety risk. Here relevant safety procedures were in place to handle such an incident. The Commission also upheld the steps the business took to look into the incident including the presence of a support person.

However, the Commission also used their discretion to take into consideration the applicant’s 17 years of unblemished service, his age, his lack of transferable skills and his location in a regional town. In doing so they found the dismissal was harsh and awarded compensation of $11,100.

Lessons for Businesses

In reaching their decision, the Commission stated “in most circumstances, a finding of a valid reason for a dismissal based on a serious safety breach will lead to a conclusion that the dismissal was not unfair”. However, mitigating factors make “no two cases the same” and should not be overlooked when assessing appropriate disciplinary outcomes. It is important to acknowledge the Commissions power under the Fair Work Act (2009) to consider any other factors considered relevant to the case.

How we can assist

If you would like to gain a better understanding of the wide and ever increasing range of laws relating to equal opportunity, industrial relations, worker’s compensation and occupational health and safety attend our Employment Law: A Practical Perspective course. This program will provide practical strategies and advice to help ensure your business meets its workplace responsibilities.

Written by Amina Abdulle, Graduate Workplace Relations Advice Line Advisor.

[2019] FWC 8392