The Full Bench of Fair Work Australia has overturned a decision of Commissioner Cargill in which she reinstated a worker who had breached safety procedures. The decision provides some certainty for employers in relation to those employees who flout safety rules.

Mr Wililo was employed by Parmalat Food Products as a forklift operator. During his employment with Parmalat, he had a poor record of following directives with regard to Occupational Health and Safety. During one particular night shift, he placed his arms and shoulders underneath an unsecured load in clear breach of safety policies.

After a full investigation into the incident, Parmalat dismissed Mr Wililo. He then lodged an unfair dismissal claim with Fair Work Australia.

 At first instance

At first instance, Commissioner Cargill reasoned that Mr Wililo's conduct was a valid reason for termination. She held that this amounted to serious misconduct, causing 'serious and imminent risk to his own health and safety if not to that of others'.

In considering the 'procedural fairness' issues contained in section 387 of the Fair Work Act 2009, Commissioner Cargill found that Mr Wililo was notified of the reasons for his dismissal and he was given an opportunity to respond. She noted that he responded both orally and in writing. He had a support person with him at each of the

interviews during the investigation process and was accompanied by two union organisers at the meeting when he was informed of his dismissal.

Despite this, the Commissioner held that the dismissal was harsh due to four factors being:

  • The length of Mr Wililo's service and his record as an employee
  • The fact that Mr Wililo had not been shown CCTV footage of the incident, which she found was an important part of the reason for his dismissal
  • Her finding that Mr Wililo's disobedience was not willful or negligent but were rather as a result of carelessness or a failure to appreciate the consequences of his actions
  • Her finding that the employer, while having a strong Occupational Health and Safety culture, did not have a zero tolerance policy.

These factors were, in Commissioner Cargill's view, enough to make the dismissal harsh, even though she had found that there was a valid reason for dismissal and the employee had been given an adequate opportunity to respond to the allegations against him.

On appeal

On appeal, Parmalat argued that 'when an employee is found to have been dismissed for a safety breach, this amounts to a valid reason for dismissal and indeed serious misconduct.' Parmalat submitted that if 'the employer applies appropriate measures to ensure procedural fairness, it is inconceivable that a conclusion should be reached that termination of employment is harsh.'

The Full Bench agreed, stating that the existence of a valid reason for dismissal is 'a very important consideration in establishing the fairness of a termination.' However, the Full bench also stated that compliance with procedural fairness requirements is of great importance, pointing out that where compliance is combined with a valid reason for dismissal, only significant mitigating factors would lead to a determination of harshness.

In applying this principle, the Full Bench held that such significant mitigating factors were not present in this case. The Full Bench stated:

'It is not for the Tribunal to place itself in the shoes of the employer and determine what it would have done in the circumstances. We must consider whether the employer's action in terminating Mr Wililo's employment was harsh, unjust or unreasonable in the circumstances. We find that it was not.'

The Full Bench also held that those factors relied upon by the Commissioner at first instance were unjustified for a number of reasons. They noted:

  • The service and disciplinary record of Mr Wililo was not a mitigating factor as his service was short and his disciplinary record was poor
  • The failure to show Mr Wililo the CCTV footage was not a matter of significance. It was largely inconclusive and could not have altered the conclusion that Mr Wililo had an adequate opportunity to respond to the allegations against him
  • Mr Wililo's conduct was found to be serious misconduct. It involved deliberate acts. Characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences
  • There was not sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.

The Full Bench continued that the decision at first instance failed to provide a 'clear line of reasoning', and they 'consider it somewhat anomalous that an employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in the absence of discernable and significant mitigating factors.'

This decision brings certainty to employers, that if there is a valid reason for dismissal and they satisfy the procedural fairness requirements, there will be little basis for an employee to succeed in an unfair dismissal claim.

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