A Full Bench of the Fair Work Commission (FWC) has quashed a decision ordering the reinstatement of a forklift driver who was dismissed over a breach of company safety procedures, writes AMMA senior workplace policy adviser Lisa Matthews.

Lisa Matthews

Lisa Matthews

IN overturning the decision, the Bench found the safety breach was a valid reason for dismissal and the original commissioner made an error of law in finding otherwise.

The 63-year-old forklift driver was dismissed by Parmalat Food Products Pty Ltd in March 2015 over an alleged breach of policy and trust arising from a safety incident.

A milk palette had collapsed due to not being properly secured, causing a milk spill in a trailer after which the leading hand entered the trailer and the applicant followed him. The trailer was not ‘locked down’ after the spill for clean-up as required by the company’s safety procedures.

The decision at first instance

In his original August 2015 decision, Deputy President Jeff Lawrence ordered the man be reinstated but not reimbursed for lost wages between his dismissal and the date of the decision, saying he should ‘suffer some penalty in lost wages because of the breach of policy’.

However, despite finding the man had breached the company’s safety policy and practices, DP Lawrence found there was not a valid reason for dismissal.

He also noted the leading hand, who should have been expected to accept greater responsibility for the incident, was not dismissed whereas the applicant was.

“I find therefore that although there was a breach of the respondent’s health and safety policies and practices, it did not represent a valid reason for dismissal. In all the circumstances, there were lesser punishments open to the respondent which would have been appropriate,” DP Lawrence said.

The appeal decision

In the appeal decision handed down on 29 March 2016, a Full Bench (VP Watson, DP Hamilton and Commissioner Johns) found the original decision ‘conflated’ two different concepts under s387 of the Fair Work Act in considering whether the dismissal was harsh.

“In this case the Commission found that the applicant breached its safety policy,” the Full Bench said.

“The Commission then found that this did not constitute a valid reason for dismissal for reasons including that the applicant had not received a written warning, there were rational reasons for breach of policy, the applicant was honest and contrite, the applicant’s good service, the need to avoid differential treatment of employees, and ‘there were lesser punishments open to the respondent which would have been appropriate’.”

In finding that way, DP Lawrence had ‘conflated’ the requirement to decide whether there was a valid reason for dismissal with making a finding as to whether the termination was harsh, unjust or unreasonable, the Bench said.

Due to the breach of safety policy, there was a valid reason for dismissal, and other extenuating factors do not come into play in relation to whether there was a valid reason, the Bench said.

It went on to say:

“In applying s387 of the Act the Commission must give consideration to the need to enforce safety standards to ensure safe work practices are applied generally at the workplace. This is both for the protection of employees and others, and to comply with legal obligations imposed on employers, which require them to take various actions, including establishing and enforcing safety policies.”

The Bench found the original decision was in error because the DP allowed ‘irrelevant considerations’ to influence his decision as to the existence of a valid reason for dismissal.

The Bench overturned the decision and remitted the unfair dismissal matter to another commissioner to decide.

Click here for the appeal decision.

Lesson for employers

Although the appeal was favourable for the employer, with the Commission recognising the need to enforce a no-tolerance approach to safety breaches, this situation serves as a lesson to employers to always follow a thorough and well-documented process for incident investigations and dismissals to reduce the risk of having to defend a costly unfair dismissal claim.

AMMA’s consultants can assist in drafting the right policy and procedures for your workplace, and support you in conducting workplace investigations, warnings and dismissals. To discuss your needs, contact your local AMMA office.