The applicant was an experienced forklift operator who had
experience at a supervisory level and acted as health and safety
representative in previous employment. He commenced with the
respondent in 2007, and was provided with ongoing training for his
On 25 May 2010 at 3.00am, the applicant was found by his team
leader to not be wearing the seatbelt on the forklift as he was
operating it. The controls would not work without the seatbelt
being engaged. However, this safety mechanism had been bypassed, by
looping the seatbelt around the back of the seat and fastening it.
Both the applicant and the previous operator of the forklift, who
had worked until midnight, denied looping and fastening the
The applicant's evidence was that he got on and off the
forklift approximately 20 times in the three hours since starting
his shift at midnight.
On 1 June 2010 the applicant attended a meeting with a support
person, as part of the respondent's investigation into the
incident. On 4 June 2010 the applicant and his support person
attended a further meeting where his employment was terminated for
reasons which 'include your serious breaches of Company
policies and procedures, including site safety
Investigations as to who had looped the belt were ultimately
inconclusive. As such, the respondent did not include in its
reasons for termination that the applicant had looped the seatbelt
around the back of the forklift seat and fastened it as a means of
bypassing the interlocked safety system.
The applicant alleged that the termination was a
disproportionate reaction to his failure to wear a seatbelt, and
inconsistent with previous action taken in that regard in cases of
a similar breach.
It was the applicant's contention that the termination of
his employment was harsh, unjust or unreasonable, and hence
The respondent argued that the applicant's failure to wear a
seatbelt over an extended period of time, in circumstances where he
was mounting and dismounting from the forklift on numerous
occasions and where he must have been aware that the forklift's
safety system had been bypassed by the improper looping and
fastening of the belt around the seat back, was a deliberate and
gross breach of safety with the potential for serious consequences
including a fatality.
Deputy President Ives found that there were real and significant
issues that impinged negatively upon the applicant's credit as
a witness. It was held that the applicant did deliberately bypass
the safety mechanism, by failing to unloop and wear the seatbelt.
The prior cases dealt with by the respondent were distinguishable
and unable to be used as a valid comparison. As such, the
termination was found not to have been harsh, unjust or
unreasonable, and was upheld.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).