Unfair dismissal update

Thumbs down to falsifying safety records

In Pereira v Toll Energy Logistics Pty Limited [2014] FWC 3398 (23 May 2014), the Fair Work Commission (FWC) found that Toll Energy Logistics was justified in dismissing a fuel terminal employee for falsifying a safety document, even though he was instructed to do so by the company’s safety adviser.

The employee injured his right thumb, tearing skin from both sides, while undertaking duties at work. When asked by the safety adviser if he had completed a Job Hazard Analysis (JHA), the employee admitted that he had not, alleging it was not necessary for the work he was performing.

A few days later the safety adviser asked the employee to complete and sign a JHA, backdating it to 7 August 2013, the day of the incident.

Subsequently, the safety adviser told the employee that everyone knew that they had backdated the JHA and instructed the employee to remove the signatures from the JHA.  Later that day, the safety adviser instructed the employee to re-sign the JHA with a falsified date.

On 14 August 2013, after an investigation and show cause meeting, the employee was summarily dismissed for dishonestly backdating a critical safety document, contrary to his contract of employment and the company’s workplace policies and values.

The FWC found that the employee was fully conversant with the safety procedures on site, including JHAs for the duties he was performing, and was well aware of the Company’s ‘Cardinal Rules’ which included that employees are not to commence duties until they have reviewed their JHA with their supervisor.

The FWC found that the employee’s failure to comply with the Cardinal Rules and safety procedures applicable to the site was a valid reason for the employee’s dismissal.

The FWC also found that the employee’s actions, in falsifying the JHA on three occasions over two days, amounted to dishonesty, and that the employee’s contract of employment entitled the company to dismiss him without notice for serious misconduct.

In regard to the instructions from the safety adviser, the FWC found that more weight would have be given to the influence of the safety adviser in mitigation for the employee if the falsification was a ‘one-off’. The FWC, however, found that the employee’s falsification of the JHA was not ‘an ill-considered spur of the moment once-off act’ but that it occurred on three occasions over a period of two days.

Fighting employee reinstated

In Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 (10 June 2014), the FWC ordered Coles to reinstate an employee who was sacked for fighting.

Tensions came to a head between the two employees following a long period of hostility when they were operating forklifts in adjacent aisles at a Coles distribution centre.

The FWC heard that after being yelled at, intimidated and approached in a confrontational manner by a co-worker, the employee pushed the co-worker in the chest. They then pushed and grabbed each other before the employee fell backwards and the co-worker punched him twice in the face.

The employee reported the incident immediately to a manager, and following an investigation was summarily dismissed for gross misconduct.

The FWC found that while there was a valid reason for the dismissal based on the fact that any act of ‘wilful’ physical violence (which included pushing someone) was a substantial breach of the Coles’ code of conduct, there were other matters that were relevant in determining whether the dismissal was harsh, unjust or unreasonable.

The relevant considerations included:

• the employee’s good 18-year employment record;
• that the incident was initiated by the harassing and taunting behaviour of the co-worker;
• that the employee did not punch back, despite being punched himself twice in the face;
• that the employee reported the incident, including both his and his co-worker’s conduct, to management; and
• that the employee’s behaviour was out of character and ‘one-off’ in nature.

The FWC ordered the employee’s reinstatement and continuity of employment, but rejected his claim for lost remuneration, stating any lost remuneration constituted a financial penalty for his involvement in the fight.

In ordering reinstatement, the FWC considered that because the co-worker had also been dismissed there was no possibility of conflict recurring between the two.