Reinstated: managers exaggerated safety incident

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Reinstated: managers exaggerated safety incident

The Fair Work Commission has ordered two workers be reinstated after it found managers had got some facts wrong and exaggerated the seriousness of a safety incident.

The Fair Work Commission has ordered two workers be reinstated after it found managers had got some facts wrong and exaggerated the seriousness of a safety incident.

[Full text of this case: P and B v Toll Holdings Ltd, t/a Toll Priority [2016] FWC 7095 (7 October 2016)]

Worker raised with forklift


The two employees worked for an international transportation and logistics company and were loading a truck in 18 April 2016. Because some of the curtain roller wheels had been dislodged from their rail, the forklift driver asked the truck driver to lift him up to a height where he could relocate the dislodged wheels. The forklift driver picked up a cage, the truck driver climbed in, and the forklift raised him so he could attend to the wheels.

An operations managers saw what was happening and told the workers to stop the lifting operation. He admonished them for engaging in an unsafe act against the rules and reported the incident.

The workers were suspended with pay while the employer investigated the incident. The relevant managers recommended that their employment be terminated, and the recommendation was endorsed by the general manager of operations and the national safety manager.

In May 2016, the workers were called to a meeting where they were told their employment was terminated because they had intentionally engaged in an unsafe act which involved raising a worker to a height of about 3m in an unsecured cage without appropriate harness or fall restraint. They were given five weeks’ pay in lieu of notice.

The workers applied to the Fair Work Commission for unfair dismissal remedies according to s394 of the Fair Work Act 2009.

They claimed it had been common practice to use a forklift to raise a worker to relocate dislodged curtain rolled wheels. The cage had been fenced on three sides. The forklift had only raised it to about 1.25m – not 3m – so there had not been a serious enough risk of injury to warrant dismissal.

The workers also submitted that their long unblemished employment records – 16 years for the truck driver and 20 years for the forklift driver – had not been taken into account in the decision to dismiss them.

Height did not pose a serious risk


Commissioner Cambridge found the workers’ letters of dismissal had contained a fundamental factual error. If the cage had been raised 3m, that would have been far too high for a worker to attend to the roller wheels. This error had been part of the general tendency of the managers to artificially inflate the seriousness of the incident. They had also advanced the proposition that a fall from a height of 2m was highly likely to result in death or serious injury.

Senior managers unaware of common practice


Commissioner Cambridge also accepted that it had been common practice to lift people with forklifts to relocate curtain roller wheels that had become dislodged. Another worker gave evidence that, about a year earlier, a supervisor had directed the truck driver to raise him while he stood on the tines of a forklift so he could relocate dislodged roller wheels. The forklift driver was also able to provide similar evidence. 

If the employer had decided that the cages normally used for holding delivery satchels should not be used for lifting workers, it would have been easy to attach signs saying, for example, 'Not to be used for lifting persons’. But there had been no prohibition in place.

The employer’s claim that the workers' actions had been wilful and in breach of safety policy had also been weak. There was evidence that one of the workers had received training in the employer’s recently introduced ‘Rules to live by’ safety instructions, but the other one had not.

It was clear the decision makers had not investigated the incident thoroughly. The evidence completely invalidated the reason for the dismissals. The dismissals were harsh, unjust and unreasonable.

Reinstatement of workers


Commissioner Cambridge decided that reinstatement of the workers was appropriate and made orders for maintenance of continuity of employment. Separate proceedings regarding orders for lost pay was to be arranged.

P and B v Toll Holdings Ltd, t/a Toll Priority [2016] FWC 7095 (7 October 2016)
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