The Full Bench of Fair Work Australia has upheld an
employer's right to dismiss an employee for safety breaches of
significance in the recent decision handed down on 2 March 2011
(Parmalat Food Products Pty Ltd v. Mr Kasian
The employee had been engaged as a licensed forklift operator by
Parmalat for two years. Following an investigation, the employee
was found to have engaged in an unsafe act by raising the tines of
his forklift whilst they were not properly engaged with a load and
then placing his hand and part of his arm under the elevated
Prior to the commencement of his employment, the applicant had
signed an acknowledgment in the Safety Booklet supplied to him that
working in a safe manner and adhering to safety policies and
practices was a condition of his employment.
Parmalat decided that this behaviour was grossly negligent and
dangerous, as the employee could have been severely injured or
killed. The employee's responses to questioning about what had
happened were also inconsistent with evidence presented by
witnesses. He was dismissed summarily for serious misconduct.
Initial FWA decision
Commissioner Cargill found that the employee's actions
amounted to serious misconduct and that the statutory requirements
for procedural fairness had been complied with. Despite this, the
Commissioner determined that, on balance, dismissal was harsh and
The reasons for this finding included:
the employee's length of service and disciplinary
the company's failure to show CCTV footage of the incident
to the employee during the investigation process;
although the employee's actions amounted to serious
misconduct, they were not wilful or negligent but rather the result
of carelessness; and
the company does not have anything akin to a zero tolerance
health and safety policy.
The Full Bench of Fair Work Australia overturned Commissioner
It found that the employee's conduct did involve deliberate
acts and that the characterising of his actions as carelessness
does not derogate from the seriousness of his actions or the
The Full Bench commented,
"The finding of a valid reason is a very important
consideration in establishing the fairness of a termination. Having
found a valid reason for termination amounting to serious
misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating
factors are present that a conclusion of harshness is
It found that there were no significant mitigating factors in
Lessons for employers
The decision recognises the rights of employers to dismiss for
safety breaches. These rights were considered by FWA in the context
of the important statutory obligations on employers to maintain a
safe place of work. Given these obligations, employers can take a
hard line on deliberate and serious safety breaches.
The decision also reinforces the importance of employers having
appropriate health and safety policies and procedures in place and
evidence that the employee is aware of them, ideally via an
appropriate signed acknowledgment at the commencement of
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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