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 duties.

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 belt.

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 requirements'.

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 unfair.

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.

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