FCW Lawyers

A win for employers doing the right thing


A win for employers doing the right thing

15 July 2020 by Nina Hoang

An employee’s unfair dismissal application against Correct Installs Pty Ltd has been completely dismissed by the Fair Work Commission, with Deputy President Asbury noting that the dismissal was “scrupulously fair.”

The business specialised in installing racking and storage systems and the employee was employed as a casual skilled labourer before being promoted to Second in Charge. He was terminated for repeated misconduct and breaches of safety procedures.

For three months between June 2019 and September 2019, the employee was alleged to have engaged in 20 instances of misconduct. This was five times more issues of misconduct than the entire staff combined.  Allegations included:

  • Damaging beams at a worksite;
  • Damaging a car while pulling a ute out;
  • Damaging a shed while driving a ute;
  • Failing to complete log book when using company vehicle;
  • Failing to complete plant checks in accordance with policy;
  • Failing to sign workplace statement acknowledging safety protocols;
  • Using an electric scissor lift while the cord was still plugged in, failing to notify the Employer of the incident and not removing the damaged cord;
  • Did not properly hitch trailer while driving a vehicle on public road;
  • Lack of communication with other staff;
  • Aggressive and disrespectful manner towards colleagues;
  • Tardiness;
  • Failure to complete safety checklists before commencing work;
  • Using of out of date tools;
  • Operating forklift without valid licence;
  • Unauthorised absences from work;
  • Excessive phone use;
  • Improper behaviour including making complaints about colleagues to a customer; and
  • Inappropriate and rude behaviour towards customers.

The employer undertook a very thorough performance management process with the employee, which included issuing multiple warnings and taking the time to step the employee through the correct safety measures. As part of these measures, he was directed to review the safety notes prepared by his Manager each morning before commencing work.

Despite the many chances, the employee failed to comply with the employer’s directions. The final straw occurred when they were alerted to the fact that the employee had left a power lead for hand tools running across the ground and blocking a doorway where forklifts regularly drove through. When he was confronted with this information, the employee deliberately chose to lie about the events. The employer subsequently terminated his employment.

Deputy President Asbury found that the employee had been afforded procedural fairness and the employer had been extremely patient in managing the employee. She determined there was a valid reason for dismissal as:

  • The employee had sufficient training;
  • Repeated warnings;
  • The employer had safety policies and procedures in place;
  • The safety breaches were so fundamental that training was not required to stop the employee from carrying out such obviously unsafe actions;
  • The employer had been more than patient; and
  • The employee was dishonest when interviewed about the final allegation.

Accordingly the unfair dismissal application was dismissed. This is a great win for employers and it demonstrates that when you do the right thing, this will be seen by the Fair Work Commission. Good employers are often seen as too generous with their employees, but they can be confident that if they have done everything right then there is nothing to fear.

Key takeaways

  • Make sure you have safety procedures and policies in place – this goes towards reasonable practicability!
  • If any employee does something wrong, do not let it go unnoticed, make sure you discipline them
  • Employees in a supervisory role need to be held to a higher standard than other employees as they are role models for others
  • Even if an employee has done something wrong, make sure any disciplinary action is carried out in a procedurally fair way

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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