Reinstated: safety incident didn't warrant dismissal

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Reinstated: safety incident didn't warrant dismissal

A factory worker has been reinstated after the Fair Work Commission ruled he was unfairly dismissed over a safety incident.

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A factory worker has been reinstated after the Fair Work Commission ruled he was unfairly dismissed over a safety incident.

Background


Allan West was a leading hand at a cement and products factory in Tamworth, NSW.

On November 16, 2016, a casual labour hire employee, who had been on site for 16 months, was using an overhead crane to lift a rack of steel.

Mr West said the steel fell from the rack to the ground, however he did not witness the actual incident. He told the casual employee to file a safety report which he did some 49 minutes later.

Mr West received a 'show cause' letter on November 22 which required a written response by November 24, and also scheduled a meeting for that day.

The letter alleged Mr West allowed another employee to perform a task which was unsafe, did not provide adequate supervision and did not properly report the incident.

Mr West contacted the Australian Workers Union which attempted to reschedule the meeting or to allow Mr West to respond verbally – both of which were rejected. 

Mr West then received a termination letter dated 24 November stating that, due to his lack of response, his employer would "act on the show cause notice".

Arguments


Mr West argued there was no valid reason for the dismissal, the process was unfair, and he was not given any opportunity to respond to the allegations.

Deputy President Lawrence agreed, finding the dismissal was harsh, unjust and unreasonable.

He found:

  • CCT footage supported Mr West's evidence that he did not directly see the incident.
  • the casual employee had performed the task many times and several managers had seen him do so
  • the employer's witnesses had embellished the possible danger of the incident
  • the employer had not carried out an appropriate investigation process which gave Mr West and the AWU a fair opportunity to be heard.
The employer also sought to rely on a previous warning given to Mr West in 2015, when he became frustrated by a malfunctioning piece of machinery and damaged it.

However DP Lawrence described this as a "spur of the moment reaction which was different to the 16 November incident".

He ordered Mr West be reinstated to his former position, and be paid lost wages less any monies earned since dismissal or recieved in lieu of notice.

[2017] FWC 2346 Allan West v Holcim (Australia) Pty Ltd (U2016/14182)
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