By Marise Donnolley

A father who took his son to work and photographed him sitting on a company forklift was harshly dismissed, the Fair Work Commission has ruled.
 
Although there was a valid reason for dismissal, summary dismissal for serious misconduct was unfair.

Facts of case

The employee worked at Jamieson Sales and Service as a trade assistant from June 2013 until his dismissal in April 2020. The business was engaged in the sales, service and repair of heavy machinery and vehicles.
 
The commission heard the employee went to his workplace on a Sunday to conduct repairs on his personal vehicle. He took his 11-year-old son with him and, while there, photographed him sitting in a forklift.

When he returned home, he uploaded the photo to his private Facebook page with the caption: “Dad’s turn to home school. Today’s lesson learning to replace brake pads and driving forklift.”
 
The employee knew that some of his work colleagues were Facebook ‘friends’ and would have access to the post.
 
The events of the day came to the attention of his employer and, following an investigation, he was summarily dismissed for serious misconduct.

The termination letter stated, in part: “On Sunday, 5th April 2020 you were observed to attend the Jamieson premises, where you conducted work on your own vehicle using Jamieson plant and equipment. This activity was completed without prior verbal or written consent. You failed to notify your supervisor or any other member of management of your request to attend work outside of operational hours, and no consent was provided to you to utilise work plant, equipment and property for your own gain. In doing so, you put your own safety at risk.”

The letter pointed out that:

• the employee unlawfully brought his son onto work premises
• the son was “unsupervised at times” and had been photographed on a forklift
• the Facebook post could have impacted the company’s reputation in the wider community.

It concluded by saying “Jamieson considers your actions to be ill-considered, reckless and negligible and is tantamount to gross misconduct. Given these facts, we have no alternative but to terminate your employment effective immediately.”

In the weeks following his termination, the employee posted comments on the Jamieson Facebook page designed to damage Jamieson’s reputation among its customers and suppliers including that “trailers don’t last long from this place” and that its products were “overpriced Chinese crap”.
 
He also criticised the company on his personal Facebook page.

Decision

Deputy president Anderson said the employee’s decision to bring his son on work premises without permission, and place him in a forklift, was a serious error of judgment.
 
“It reflected an indifference to his employer’s safety policies and the risk and liability it carried should a safety incident with the child have occurred,” he said.

The DP also noted that it was “a sequence of interrelated decisions that reflected poor judgment, not a singular moment of a rush of blood to the head”.

However, while the breaches were cumulatively serious, he said they did not warrant summary dismissal.
 
“Whilst neglect of safety rules or a lack of safety awareness is serious in any workplace context, some conduct strikes more fundamentally at the employment relationship than others. It is only conduct that is serious misconduct that gives rise to summary dismissal,” he said.

"Considering the circumstances overall, the dismissal was not unfair but summary dismissal was."
 
The commission ruled the employee should have been dismissed on notice, which amounted to five weeks’ notice or payment in lieu.

Compensation was reduced to two weeks’ pay because of the employee’s 'deliberate and vengeful' post-dismissal conduct.

Read the judgment

Petz v Jamieson Sales and Service P/L U2020/6638 [2020] FWC 4451 26 August 2020