Took a phone call on a forklift after 23 years, and got his job back

What happened

Michael Hudson started at Metcash's Laverton North Distribution Centre in Victoria on 11 March 1997. Over the years he worked as a warehouse supervisor and delivered toolbox talks to his team. By 2020 he was a storeperson in the dry grocery warehouse, using a forklift to put away and replenish stock.

On 27 October 2020, after his morning smoko, he drove his forklift into an aisle and his phone rang. It was the parts distributor he had been waiting to hear from about repairs to his car, the only transport his family owned, and COVID-19 lockdowns were making parts hard to find. He answered, told the caller to wait, drove a short distance with the phone to his ear, then got off the forklift and stepped into a pick slot to finish the call. When he turned round, the inventory manager was walking towards him.

He admitted straight away that the call was not an emergency, and later described it as a "brain fade". He never denied what he had done.

The rule and the process

Metcash had a protocol on personal electronic devices. In a "High Risk Area", anywhere forklifts and other mobile plant operate, nobody in control of a vehicle could use a personal phone. In late 2019 Metcash said it had drawn "a line in the sand" on phones in these areas, and Mr Hudson attended a toolbox talk explaining the change. The materials said a breach "may result in disciplinary action, up to and including termination of employment".

The process that followed was textbook. Mr Hudson was shown the CCTV footage, offered a support person and stood down on full pay. He received an allegations letter, answered it, and then received a show cause letter, a letter saying the allegations were substantiated and asking why he should not be dismissed. In reply he apologised, pointed to his unblemished safety record and his 22 years of service, and said he would accept a warning. On 23 November 2020 Metcash dismissed him for serious misconduct, with pay in lieu of notice.

The legal test

Mr Hudson applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) and asked to be reinstated. A dismissal is unfair if it is harsh, unjust or unreasonable, and s 387 lists the matters the Commission must weigh, including whether there was a valid reason related to the employee's capacity or conduct (including its effect on the safety of other employees), whether the employee was told of it and allowed to respond, whether a support person was unreasonably refused, the size of the employer, and any other matter the Commission considers relevant.

The High Court has explained that a dismissal can be harsh even where the misconduct happened, because of its consequences for the employee or because it is "disproportionate to the gravity of the misconduct".

What the Commission decided

Commissioner Harper-Greenwell found Metcash had trained Mr Hudson properly on the protocol, that he knew he was breaching it, and that this was a valid reason for dismissal. She found no fault in the process either: Metcash was a large employer that "conducted a fair and reasonable investigation process".

But the dismissal was harsh. Metcash's own evidence was that it did not have a zero-tolerance approach and that dismissal was not automatic for a breach in a High Risk Area. The Commissioner found that Mr Hudson, despite a clean record, "was used as an example" of the line in the sand. He had 23 years of service, no disciplinary history, was honest and genuinely remorseful, and the breach caused no injury. A first and final warning would have been proportionate, and dismissal "was clearly disproportionate and overly harsh".

On remedy, Metcash's managers said they no longer trusted him to follow safety rules. The Commissioner did not accept that this loss of trust was soundly based, given one breach in 23 years and his honesty about it. She ordered reinstatement to his old job with continuity of service, and lost pay of $9,336 gross: 21 weeks' pay, less what he had earned in casual work and less a 25% deduction for the breach.

The appeal

Metcash appealed. On 20 January 2022 a Full Bench granted permission to appeal because the case raised general questions about how s 387 is applied, but dismissed the appeal. It accepted that the Commissioner's reasons were set out in an "unorthodox" order, but held that what matters is that every s 387 factor is weighed, not the sequence. It also held that a different view from the employer's, reached after weighing everything, is not the Commission "standing in the shoes" of the employer.

What this means for you

If you have broken a workplace rule and admitted it, dismissal is not automatically fair. Your length of service, your record, your honesty during the investigation and whether anyone was hurt all count when the Commission decides whether dismissal was out of proportion. Employers with "may result in" wording in their policies still have to weigh each case on its merits.

This is not a licence to ignore safety rules: Mr Hudson still lost a quarter of his back pay, and the Commission said he could still be disciplined. If you have been dismissed, consider getting advice quickly. An unfair dismissal application must be lodged within 21 days of the dismissal taking effect.