Deliberate misconduct justified dismissal

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Deliberate misconduct justified dismissal

The Fair Work Commission has upheld an employer’s decision to sack a worker for serious misconduct, including failure to comply with the employer’s safety protocols.

The Fair Work Commission has upheld an employer’s decision to sack a worker for serious misconduct, including failure to comply with the employer’s safety protocols.
The worker was employed for about 20 years by a company that manufactures moulded paper products, primarily egg cartons. He usually worked on the printer line, most often as the operator of a particular machine.

Reasons for the dismissal

The employer alleged that his misconduct involved the wilful and deliberate failure to observe and follow safety requirements concerning pedestrian walkways on four separate occasions, despite forklift and other traffic in the relevant area. When this disregard of the rules regarding walkways was observed, he had already received a first and final warning issued six months earlier for wilful damage to the employer’s property.
The property damage occurred when he lost his temper and hit one of the nozzles of a portable air conditioning unit. He claimed that the nozzles had impeded his movement in the workspace around his machine, and he ‘just saw red’ and hit it, causing minor damage. 
He did not report the incident, but someone else did. He afterwards failed to attend a disciplinary meeting to deal with the issue of the damaged air conditioner, on the grounds that it ‘felt like overkill’ and the meetings made him anxious.
The air conditioner was not the first item of the employer’s property he had damaged. An earlier incident involved his using excessive force with the sliding gate to his machine, yanking at it repeatedly and breaking it. This incident had prompted management to suggest he should maintain his employment by agreeing to undertake an anger management program and counselling. He agreed to attend a meeting about the broken gate, but then failed to do so.
He also failed to comply with explicit directions to use the hearing protection provided and behaved aggressively when asked again. He approached a manager very closely, ‘shoving his face’ into the manager’s face. 
This was on top of his failure the previous year to comply with his employment agreement regarding absences from work. He had been absent from work without a medical certificate for four full days, plus one occasion of seven hours and another occasion of four hours. 
Though these absences were not specifically cited as reasons for terminating his employment, the matter was included in the agenda for the investigation meeting regarding the worker’s failure to use the designated pedestrian walkway appropriately.
The month after he was observed flouting the pedestrian walkways requirement, he received a letter documenting his failures to follow safety instructions. He was subsequently given an opportunity to respond, and his explanation was that he felt he was not the only employee to fail to use the walkway appropriately. 
His employer did not find this explanation satisfactory. It considered his actions to be deliberate and wilful. Several weeks later, he was given a letter of termination stating that his employer had lost the necessary trust and confidence to make his ongoing employment viable.
The worker believed he had been unfairly dismissed and sought reinstatement without loss of pay and continuity of service. 

In the commission

Under the Fair Work Act, a person has been unfairly dismissed if the Fair Work Commission is satisfied the dismissal was harsh, unjust or unreasonable, and not a case of genuine redundancy. 
Commissioner Lee considered the evidence from the dismissed worker and two union delegates supporting him, from management representatives of the employer and from the worker’s treating psychologist. He considered whether the dismissal had a disproportionately detrimental effect on the worker, if there was a valid reason for the dismissal, and other relevant aspects of the case, including alleged bullying by management and the procedural fairness of the employer’s disciplinary process

The commissioner concluded that the worker was guilty of serious misconduct, that he had a history of engaging in misconduct, and that his actions were wilful and deliberate. His general demeanour had been one of denial and dismissiveness.

There was a valid reason for his dismissal and it was procedurally fair. He was also satisfied that the termination was not disproportionate to the circumstances.
The application for an unfair dismissal remedy was dismissed.
The bottom line: If there is a valid reason for terminating someone’s employment and the company’s disciplinary process does not feature any lack of procedural fairness, a sacked worker’s claim of unfair dismissal may fail.

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