Unfair dismissal despite string of safety errors

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Unfair dismissal despite string of safety errors

A former forklift driver has won his unfair dismissal case despite a string of safety breaches.

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A forklift driver has won his unfair dismissal case against his employer despite incidents of unsafe forklift manoeuvring and not wearing regulation safety glasses. 

Background 


Daniel Palmer (the Applicant) worked as a forklift driver for USG Boral Building Products (the Respondent) from 13 November 2013 at its Port Melbourne plant. USG Boral dismissed Palmer on 30 March 2016 following three safety-related incidents. 

In the first incident, on 3 December 2015, Palmer lifted a pallet of plasterboard over a parked semi-trailer and lifted a load over a stacker. Boral sent Palmer a letter to attend a meeting to discuss these unsafe actions.

The second incident  took place on 18 December 2015 when Palmer was loading two pallets of cornice onto a delivery truck. During the manoeuvre the load was dislodged and almost hit the jockey.  Meetings between the employer’s representatives and the Palmer took place on the 22nd and 23rd of December 2015. Boral issued a first and final warning to Palmer, emphasising that any further breaches could lead to a termination of employment.

The third incident took place in early 2016. Boral said that Palmer was observed on at least two occasions to not be wearing his safety glasses. On the 23 March 2016 a meeting occurred and the employee was stood down on full pay until investigations concluded. In a letter sent to Palmer, the employer gave the applicant an opportunity to provide any information as to why Boral should not terminate his employment; a written response was subsequently received. On 30 March 2016, Palmer’s employment was terminated. 

The law 


If a person is dismissed, and that dismissal is harsh, unjust or unreasonable, then it is unfair (s385 of the Fair Work Act). There are several criteria for setting out whether a dismissal is harsh, unjust or unreasonable and these include whether or not there was a valid reason, whether the person was notified of the reason and whether the person being fired was given an opportunity to respond.  

Arguments


Boral relied on these three incidents to demonstrate that Palmer was in a pattern of breaching safety requirements. It argued that, during the second incident, communications between Palmer, the jockey and another person involved in the incident, put Palmer on notice so as to prevent him loading the pallets of cornice. It was also argued that Palmer was aware immediately after the incident that the jockey was almost hit by the falling cornice and that he failed to report it.  

The company also claimed that the employee failed to wear regulation safety glasses. 

The employee argued that no communications were given to him about the jockey leaving the safe zone while loading the cornice pallets. He claims to have checked that both the other person and the jockey were in the safe zone before proceeding. Palmer further argued that, at no point after the incident, was he told about the jockey almost being hit, rather he found out the following Monday. He also argued that he reported the incident on a non-standard form and left it with the incident report. 

Legal questions  


The Fair Work Commission set out to determine whether the applicant was told about the jockey leaving the safe zone, whether he knew about it, and whether he failed to report it. Following that inquiry, the Commission answered the question as to whether there was a valid reason to dismiss Palmer under s385 of the Act. 

The decision 


Commissioner Cirkovic could not find that Palmer was aware that the jockey had left the safe zone, or that he knew about the near-miss. He further held that the Palmer had recorded the incident on a paper and left it with the incident report. The Commissioner also found that the other two incidents were not sufficient to constitute a valid reason for dismissal.

Following the first incident Palmer was counselled and responded positively, it was held, and that the third incident, although significant and in breach of policy, was itself insufficient to warrant termination.

Ultimately, it was held that Palmer was unfairly dismissed. 

Case reference


Daniel Palmer v USG Boral Building Products Pty Ltd
 
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