Employee terminated for safety breach secures reinstatement
The Fair Work Commission has ordered the reinstatement of an employee dismissed for failing to immediately report a safety incident that occurred whilst he was operating a forklift.
The employee, ‘SD’, had been employed by poultry giant Steggles Pty Ltd (“Steggles”) for over 23 years and was employed at Steggles’ poultry processing plant at Mareeba in North Queensland. He was employed on a full-time basis as a Supervisor, held a forklift licence, and operated forklifts as part of his usual work.
On Friday, 27 January 2023, he was operating a forklift to load pallets from a shed into a parked trailer. At approximately 12:30 pm, a board became loose from beneath a pallet. He did not see the board which fell in front of his machine.
Driving over the board raised the height of the forklift, causing the machine’s high mast to strike an angled roof beam, resulting in some relatively minor damage.
In evidence before Commissioner Paula Spencer, SD claimed that it was his understanding that the necessary process for minor incidents (which he considered this to be) was to report to Steggles’ management within 24 hours. SD also claimed that he was not under the influence of alcohol or drugs at the time of the incident.
He completed his tasks and, approximately 30 minutes later, went to report the incident to the Maintenance Manager, who was his direct supervisor. However, he could not locate him and concluded he must have left for the day.
SD then claimed he went to the Site Manager’s office, which was vacant, and the lights turned off. He then went to the Production Manager’s office next door, which was also vacant. He then walked past the Work Health and Safety Manager’s office but did not recall seeing anyone there.
As he was nearing the end of his shift, he decided to chase management up the following Monday, which he did by meeting with the Maintenance Manager.
A subsequent investigation occurred, during which SD explained the reasons he delayed reporting the incident, and he offered to take a drug and alcohol test. After forming the view that SD had failed in his obligation to immediately report the incident, he was terminated on Thursday, 2 March 2023.
SD had received three prior warnings during his employment. He received a verbal warning on 5 July 2021 for swearing at a co-worker, a written warning on 30 July 2021 for smoking outside a designated area, and a final written warning for not wearing a seatbelt while operating a forklift.
Somewhat surprisingly, Commissioner Spencer determined that there was no valid reason for termination. She accepted evidence that no managers were present on the site, nor was a phone list of managers available for SD to make contact.
As she noted,
“As there were no such arrangements, it is reasonably foreseeable that an employee may fail to report an incident immediately as the Applicant did”.
After viewing photographs of the beams, the Commissioner also noted,
“The implications of this are that the damage was not significant and there is also no evidence of its impact on the safety and welfare of other employees”.
In a sound lesson for all employers, she noted,
“There was no evidence that there was a notice on the front of the Incident Report Book or on the manager’s office doors stating, ‘Please contact this manager to report an incident’. Further, it is the Respondent’s responsibility to ensure there is reasonable implementation of the policies and Task Instruction”.
The Commissioner ordered his reinstatement.
For queries about dealing with allegations of misconduct, appropriate penalties, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.