FWC orders reinstatement of employee after ‘harsh' and 'unfair’ dismissal

14 October 2021

A long-standing employee who was dismissed after using a mobile phone while operating a forklift will be reinstated after the Fair Work Commission found his dismissal to be ‘harsh and therefore unfair.’


The facts

The staff member commenced employment on 11 March 1997. On 27 October 2020, the employee answered his mobile phone while operating a forklift in a warehouse aisle.

A fellow employee witnessed the phone call and reported the conduct to the warehouse manager. After reviewing the CCTV footage, the manager requested the employee report to the office.

The employee immediately acknowledged the incident describing it as a “brain fade” and “serious lack of judgement.” He was asked to make a written statement and was later suspended. 

On 5 November 2020, the employee attended a meeting at which a letter containing allegations of misconduct was read aloud. He was told he was required to respond to the allegations in writing and he did so the following day. In his response, the employee again acknowledged his conduct and explained he was waiting for a delivery of spare parts for his vehicle. He also outlined his personal circumstances and the difficulties he was having, noting the vehicle was the only means of transport for his family. The employee said he took the call as he could see it was from a distributor.

On 11 November 2020, another meeting took place. During this meeting a show cause letter was read, concluding the employee had engaged in the alleged conduct and advising the business was considering dismissal. The employee provided an apologetic response on 13 November 2020 reiterating the information he had previously provided and highlighting his 22 years of unblemished service.

The business considered this was a serious breach of its safety protocols and dismissed the employee.

The decision

When defending its decision, the business pointed to a policy it had implemented concerning the use of mobile phones. It had taken a strong stance drawing a ‘line in the sand’ when it came to safety in the workplace. The policy prohibited the use of mobile phones in 'high risk areas,' and the business had forewarned employees that a breach of this policy would result in disciplinary action.  

While the Commissioner commended the business for its fair and reasonable process, the Fair Work Commission was not satisfied that using a mobile phone amounted to a valid reason for dismissal. The business was ordered to reinstate the applicant within three weeks and also pay 21 weeks of ordinary pay less a 25 per cent deduction on account of the conduct.

Learnings for business

A business may need to take a hard line when addressing policy breaches, particularly those involving health and safety. However, it is important for businesses to consider all the circumstances before deciding on a disciplinary outcome. A staff member’s employment record, tenure, contrition, and potential ability to regain trust and confidence should be considered before a course of action is taken.

How we can help

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand how to manage complaint, disciplinary and termination processes. In addition, our Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to businesses considering disciplinary outcomes. 

Received an unfair dismissal claim?  Our Workplace Relations Consultants are on hand to help to explain the processes, draft responses and submissions, and represent you in the Fair Work Commission.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. 

[2021] FWC 2765

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