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Sacked: labourer insists he was a safe worker

A casual skilled labourer claimed he was unfairly dismissed.
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Sacked: labourer insists he was a safe worker

Sacked: labourer insists he was a safe worker

24 July 2020

By Siobhann Provost

A casual skilled labourer working for a racking and storage system company, Correct Install Pty Ltd in Queensland, claimed he was unfairly dismissed for three reasons. One, to avoid being paid a redundancy due to a downturn in business, secondly, that he was not entirely responsible for a safety incident that terminated his employment and thirdly that he was a safe worker and not involved in any company breaches after his last warning on 25 July 2019.

The casual employee commenced on 6 March 2017 and was a second in charge from 1 March 2018 through to his dismissal on 5 September 2019. The company dismissed him due to repeated misconduct, breaches of its workplace health and safety procedures and his contract of employment. The employee “was warned on multiple occasions, both verbally and in writing, about previous safety incidents and conduct issues.”

The employer regularly conducted toolbox meetings every three months to cover off any work or safety-related issues and possible improvement by employees. If a serious incident occurred, a toolbox meeting was held immediately after with employees. In addition, leading hands had to complete a pro forma site safety audit for every project.

The Judge conducted the hearing due to disputed issues of facts and to assess whether the casual employee was unfairly dismissed.


Evidence

In early June 2019, the employer became aware of allegations about the casual employee’s conduct and workplace health and safety breaches and held a meeting on 6 June 2019.  Various allegations were discussed with some including the casual employee damaging property and a car, failing to follow company policy and safety protocols as well as driving an electric scissor lift with the cord still plugged in.

The employer said the casual employee had “more issues than any other staff combined x 5” and issued a verbal warning as the employee admitted to the allegations.

A second disciplinary meeting with the casual employee occurred on 25 June 2019 to discuss six further allegations in relation to safe work practices, customer appropriate behaviour and unauthorised absences. On 12 July 2019, four of the six allegations were substantiated, two withdrawn and a formal written warning was issued.

On 7 August 2019, another four allegations were put to the employee in writing relating to not performing duties as part of his role, attending work on time, conducting duties in a safe manner, behaving disrespectfully to the human resources manager as well as the company.

The disciplinary meeting was held on 9 August 2019, the findings substantiated three allegations and a final written warning issued with a review of the casual employees’ performance to be conducted in September 2019.

In response to the final warning, the casual employee maintained that his “on the job performance did not decline and that he was not involved in any safety incidents as he had been consciously making improvements in all aspects of his role.”

On 4 September 2019, the casual employee was issued a third letter, inviting him to attend a meeting on 5 September 2019, with a support person, to respond to the allegation that on 9 July 2019 he failed to uphold his work health and safety obligations” specifically, allowing “the lead for hand tools to run across the ground in a high forklift traffic area.”

On 5 September 2019, the casual employee’s employment was terminated by telephone.

The casual employee submitted that he was dismissed for misconduct over one workplace safety issue regarding a power lead on 9 July 2019 and “he did not believe the power lead was a hazard as all workers in the area had been notified of the work being completed and that workers would be using an alternate doorway to bring goods in and out of the warehouse.”

The Judge said the conduct of the casual employee “in running a power cord across a doorway through which forklifts could travel, is a case in point. If the Applicant needed training in order for him to understand that he should not drive a scissor lift out of a workshop while it was still plugged into a power source, then he received such training when he was shown how to walk around a truck and trailer before driving it, to ensure that it was safe to operate.”

In addition, the casual employee took issue with the gap between the alleged misconduct on the 9 July 2019 and the client lodging the complaint on 22 August 2019, approximately 44 days later. However, the incident only came to light when the company asked the customer to complete a service survey at a later stage.

The company concluded that the casual employee had not been truthful about the customer incident and dismissed the employee based on the 9 July incident and earlier warnings as well as repeated failures to improve his conduct and work performance.

The casual employee claimed the company used the 9 July incident to avoid paying him redundancy payments and “only paid him for the stand down period to cover deliberate deceit and exploitation on the basis that lack of work is not a valid reason to stand down full time staff.”

The Judge found no issue with the delay between the incident on 9 July 2019 and the employee’s dismissal; it had “no impact on the validity of the reason for dismissal” and that there was no ulterior motive for the dismissal such as avoiding redundancy.
 

Procedural fairness

The Judge said, the casual employee had been “repeatedly warned – both verbally and in writing – about his attitude to workplace health and safety.” The company had appropriate workplace health and safety procedures which were articulated in the workplace which the employee failed to follow on “numerous occasions.”

The Judge found the casual employee was not a “credible witness,” rationalised his behaviour by picking holes in the company’s training, when “he was responsible for the many incidents about which he was warned.”

The company “displayed great patience,” were “scrupulously fair” in the treatment of the employee including warning him about his unsatisfactory performance before the dismissal, found the Judge.


The outcome

The company paid the casual employee two weeks wages on termination of his employment due to standing down the employee when business had slowed. The Judge said, “even if there was any procedural unfairness (and in my view the procedure was [2020] FWC 2729 15 fair) given that there was also a valid reason for dismissal, the two-week period covered by the payment would have provided a more than sufficient opportunity to rectify any such issue.”

The Judge found the casual employee was not unfairly dismissed, that his dismissal was neither harsh, unjust nor unreasonable and dismissed his application for an unfair dismissal remedy.


The judgment

Hafsteins v Correct Installs Pty Ltd [2020] FWC 2729 (25 May 2020, published 7 July 2020)

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