Does forklift racing merit summary dismissal?

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Does forklift racing merit summary dismissal?

Is forklift racing a serious enough WHS offence to merit summary dismissal?

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Two of our employees breached our WHS policy by racing forklifts around the plant, resulting in a collision. Is that serious enough for us to summarily dismiss them?
 
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Q We had an incident on the weekend where a collision occurred between two forklifts. According to witnesses, both drivers were involved in a race around the workplace. Management has considered this to be a serious breach of our workplace health and safety policy and are contemplating summary dismissal.
 
Can the company summarily dismiss an employee where there has been a serious breach of safety which could have endangered the lives of the employees involved in the incident and the lives of other employees?
 
A As a general rule, only in extreme cases where an employee was wilfully or grossly negligent would summary dismissal be justified. An unsafe act by an employee may justify dismissal from employment, although care should be taken by the employer before doing so.
 
Such conduct falls within the definition of “serious misconduct” in Reg 1.07 of the Fair Work Regulations 2009. In other instances an employer should proceed through a series of warnings culminating in dismissal if the unsafe acts continue.
 
FWC considerations - breach of safety
 
In any subsequent unfair dismissal matter, the FWC may take into account the following issues when determining whether there has been a breach of safety:
    • The seriousness of the breach/incident;
    • Company policies setting out safety procedures and consequences for breaches;
    • Relevant OHS training by the employer;
    • Whether the incident/breach was an isolated incident or recurring in nature; and
    • Whether the employee concerned was a supervisor and expected to set an example.
Any unsafe act which is to be the basis for disciplinary action should be investigated by the employer. In particular, the employer should be confident the unsafe act occurred as a result of the employee’s negligence (or wilful act) and not because of any lack of safety in the system or work established by the employer.
 
Case law
 
In a matter before a full bench of Fair Work Australia, an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could not be considered to be harshly terminated in the absence of discernable and significant mitigating factors. See Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166.
 
An employer should seek legal advice before summarily dismissing an employee because of an unsafe act or unsafe behaviour in the workplace.


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