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No need for procedures when misconduct is extreme: FWC

By Portner Press on April 15th, 2019
  1. Termination of Employment
  2. Dismissal

A 20-year-old man who was summarily dismissed for performing forklift burnouts at work has had his sacking upheld by the Fair Work Commission (FWC).

Commissioner Ian Cambridge described the employee’s actions as “one of the most egregious acts of gross and wilful misconduct that I have witnessed in more than two decades of arbitrating unfair dismissal claims”.

The employee at Ace Bottle Printers Pty Ltd had poured thinner solution onto the ground and smashed glass bottles to assist with the burnouts, while a co-worker filmed on his phone. The footage was later uploaded to YouTube.

The following day, the production manager, who wasn’t present at the time of the event, noticed skid marks, broken glass and dirt on the ground. As he began to clean it up, the employee who performed the burnouts came over and offered to help. He subsequently told the manager that his colleague was responsible for what had happened.

Two days later, on the weekend, the colleague sent the manager a text message with a video recording of what took place.

The manager summarily dismissed the employee when he returned to work on Monday morning.

Employee represented by his mother

The employee’s mother filed the unfair dismissal application on his behalf and represented him at the hearing.

Although she did not dispute the reason for the employee’s dismissal and conceded that he had acted in a dangerous manner, she submitted that it was unfair his colleague had not been reprimanded for his involvement in the incident.

She also mentioned that her son had mental health issues, which she said the employer had been very considerate of.

While she acknowledged that the manager saw the incident as “the straw that broke the camel’s back”, she said it was relevant that the two young employees were left unsupervised for a period of time in the factory.

The mother submitted that her son was seeking a “cash settlement” rather than reinstatement as “it would be too uncomfortable for him to return to the workplace”.

A history of bad behaviour

Prior to his dismissal, a number of verbal complaints had been made about the employee and he had received at least one written warning about his conduct.

“A number of very disturbing events including; physical altercations, safety breaches, drunkenness, and property damage, were included as unchallenged material contained in the employer’s written submissions,” Commissioner Cambridge noted.

In relation to the employee’s mental health, Commissioner Cambridge said that the employee may have been suffering from “some manifestation of post-traumatic stress” which he was apparently taking medication for.

“However, it would be troubling if serious mental health issues of some form or another may have contributed to [the employee’s] behaviour as exhibited in the forklift burnout incident,” he said.

“Assuming that such mental health problems were more than what might be described as the actions of ‘just an excitable boy’, then such issues might, sadly, impact on [the employee’s] capacity for employment in any situation that involved use or access to moving machinery.

“In any event, consideration of any potential mental health implications could not establish any unfairness with the dismissal of [the employee] in the circumstances as revealed in this case.”

Procedural shortcomings not relevant as the misconduct was ‘so extreme’

Commissioner Cambridge said that while the employer “clearly did not have any management specialists that may have assisted with procedures”, the nature of the misconduct and evidence “overshadowed any procedural errors”.

“In the rather extreme circumstances of this case, there would, in reality, be no basis upon which [the employee] could provide any conceivable response that could in any way justify or mitigate the misconduct displayed in the video of the forklift burnout incident.

“The nature of the misconduct … is so extreme that it does not warrant any further inquiry, and no explanation or mitigation could conceivably emerge so as to avoid the logical consequence of dismissal.”

He said it was unnecessary for the employee to have a support person at the dismissal meeting, as the “irrefutable evidence of gross and wilful misconduct” had “almost compelled dismissal, without any need for further inquiry”.

“The dismissal … was not harsh, nor was it unjust, or unreasonable.”

Most unfair dismissal claims aren’t this cut and dry

And an employer’s adherence to procedures will almost always matter.

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