Employed for 24 years
A store supervisor began working as a store person for a warehouse company in March 1997. As a store person, it was his duty to use a forklift to take stock from the receiving area to the storage area. He also operated the forklift to replenish stock. He used an electric pallet jack to pick up and assemble stocks to fill orders. He was promoted to store supervisor in 2012.
Used his mobile phone in a high-risk area
On 27 October 2020, after he had taken a smoke break, he drove his forklift out of the battery room to an aisle. As he was going down the aisle, his mobile phone rang. He answered his phone, held it to his ear while still operating the forklift, but told the caller to wait. He drove his forklift a short distance to make sure he was well out of the way. After the call, he turned around to see the warehouse assistant manager walking around the parked forklift toward him.
Warehouse supervisor explained and apologised
When questioned by the assistant manager, the store supervisor said that although it was not an emergency call, the call was from the car parts distributor whose call he had been waiting for. He had only one car that he and his family used and he needed parts to repair his car and the lockdown had made it difficult to source the parts he needed. He apologised for his conduct because he realised that he had done something stupid: by using his mobile phone while operating his forklift in a high-risk area, he had potentially endangered his own and others’ safety.
Called to a meeting with the warehouse manager
The warehouse assistant manager spoke with the warehouse manager and they reviewed the CCTV footage where they saw what the store supervisor had done. The store supervisor was paged and called to a meeting with the warehouse manager. They showed the store supervisor the CCTV footage and asked the supervisor to prepare a statement of what had happened. They offered him the opportunity to have a support person.
Asked to prepare a statement and stood down
The store supervisor asked a work colleague to be his support person. He then prepared a handwritten statement where he provided details of the incident. He did not deny what he had done. He took responsibility for his actions and expressed remorse for breaking the rules and compromising the safety in the warehouse. He was stood down, given a copy of his suspension letter, and escorted back to the warehouse where he parked the forklift, clocked off, and left the premises.
Allegations letter and response
A week later, the warehouse manager called the store supervisor to a meeting with his support person and an allegations letter was read out to him. The day after the meeting, the store supervisor handed in his response to the allegations. He again acknowledged using his mobile phone whilst operating his forklift and apologised and expressed regret for his mistake.
Show cause letter and response
Two weeks after the meeting, the store supervisor was again called to a meeting. This time, a show cause letter was read out to him, informing him that the company had investigated the allegations made against him, found them to have been substantiated, and was considering terminating the store supervisor.
In his response to the show cause letter, he explained why he had used his mobile phone. He also mentioned that although he had read the safety policy at work, the same was never explained to him. He stated that he now realiSed that he was not to use his mobile phone in the warehouse. He again apologised but stated that this was an isolated occurrence. He asked the warehouse company to consider that he had an unblemished work reputation and 22 years of loyal service. He expressed willingness to accept a warning for his conduct.
Dismissed
He was called to yet another meeting a few days later when a termination letter was read out to him. The company informed him that after consideration, his behaviour was found to amount to a serious safety incident that breached company policy and was thus, an act of serious misconduct. The company terminated his employment effective that very day.
Application for unjust dismissal
In his application, the store supervisor said that while he knew that the company had a policy against using mobile phones whilst inside the warehouse. What he did not know was that even a first breach of the policy would result in his dismissal.
The applicant felt that his dismissal from employment was a disproportionate response considering he readily acknowledged his mistake, explained his reasons for using his mobile phone, and apologised repeatedly. The dismissal was also harsh considering his age, his unblemished past work record, and his long service to the company. He asked for reinstatement.
Company’s strict safety policy
The company had a strict safety policy and it had explained the policy to the employees and trained them in observing the policy. The work premises had designated high-risk areas where both machine operators as well as other employees who are not operating machinery or vehicles are forbidden to use mobile phones. Employees may only use their mobile phones in Designated Safe Areas including the canteen, offices, lunchrooms and designated walkways.
Toolbox talks and training on the safety policy
The company even implemented toolbox talks with employees, not only to educate them on the policy but also to warn them of the consequences of breach. The company had made it clear to the employees that they will be disciplined for breaches of the safety policy and the disciplinary action may lead up to and include termination.
The store supervisor had attended most of the monthly toolbox talks and the training. The company also posted the policy on noticeboards around the work premises. With the pandemic, the Warehouse Supervisor called up employees individually, including the store supervisor, and they were given a 15-minute session to read the toolbox talk from a document.
Company Code of Conduct applied to all employees
The safety policy applied to all persons in the work premises including all employees, officers, contractors and even visitors. All employees, including the store supervisor, were trained in the Code of Conduct where they learned that they are expected to behave in a way that ensures the safety, health, and wellbeing of others. The Code of Conduct also states that any breach of the Code will result in disciplinary action up to and including termination.
Valid reason for dismissal
The reasons for the store supervisor’s dismissal were that he had breached the company’s use of mobile phone policy in a location that had been designated as high risk and that his conduct fell short of the standard reasonably expected of all employees. This was a valid reason for dismissal.
Dismissal overly disproportionate and harsh
While the store supervisor had repeatedly been informed that any breach of the safety policy MAY result in disciplinary action that included termination, he was never informed that the company had a zero-tolerance policy for safety breaches, or that even on the occasion of a first breach, he will be immediately dismissed for it.
The store supervisor understood that the company will not ignore any safety breaches and that all safety incidents will go through a disciplinary process.
However, the store supervisor assumed that because the company and its policies use the terms “any breach of the policy will result in disciplinary action UP TO and INCLUDING termination” it meant that a first breach may not be met with immediate termination. The store supervisor had assumed that considering his length of unblemished service and his expression of contrition, he would not be dismissed.
The Fair Work Commission found that the store supervisor was dismissed for a valid reason but it also found that in immediately terminating the store supervisor, the dismissal was disproportionate and overly harsh.
Reinstatement
The FWC did not think that returning the store supervisor to his employment would present a safety risk to the warehouse company nor would it undermine its safety policies. There is no evidence to suggest that there has a been a loss of trust and confidence between the parties or that the employment relationship has so far deteriorated.
The FWC ordered the store supervisor reinstated to his former position with continuity of service. The store supervisor should be compensated for his lost income in the amount of $9, 336.00. The FWC also ordered that 25% of the compensation amount be deducted for his breach of the safety policy of the company.
Source:
Michael Hudson v Metcash Trading Limited [2021] FWC 22765 (6 August 2021)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2021/2765.html
Metcash Trading Limited T/A Metcash Trading v Michael Hudson [2022] FWCFB 2
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB//2022/2.html
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