TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – applicant alleged his dismissal was unfair – dismissal reasons in respondent’s letter, in addition to the safety incident resulting in an injury as result of failure to follow procedure, included pre-existing written warning for failure to report safety breach, failing to provide satisfactory responses to serious issues and to show the required level of accountability – applicant said he had a record of regularly reporting potential health and safety risks – issue of prior warning – applicant believed he followed procedure for reporting a breach – reported incident in database entry rather than direct to a supervisor which led to the first and final warning – appeared from evidence was not made explicit to employees safety entries in the database not regarded as reporting an incident – Commission concluded warning did not warrant it’s significant weight in respondent’s later decision to dismiss the applicant – final safety incident resulted in injury whilst loading a truck – applicant followed respondent’s Loading and Unloading Standard Work Instructions (SWI) – applicant used forklift to load empty cage onto the truck – driver should not have been on truck giving guidance – respondent investigated the incident but applicant was not interviewed – at meeting applicant given show cause letter and advised he had breached the SWI, Code of Conduct and Our Charter Values – stood down – applicant’s support person requested but not provided with information relied upon to determine the allegations proven – not told how he was alleged to have breached the Code of Conduct or Charter Values – dismissed at meeting with respondent week later – applicant not given opportunity to respond to findings or allegations – applicant said his actions were a ‘momentary lapse of judgement’ – applicant’s evidence common practice prior to August 2016 for drivers to assist as ‘spotter’ with loading/unloading – driver assistance not a breach of previous procedure – not sure this clearly communicated to employees – SWI did not expressly say loading must cease when a driver is on the truck deck – Commission satisfied this created a degree of ambiguity about how the forklift operator and truck driver undertake loading – incomplete hazard form not entirely explained – investigation report found deficiency in SWI – SWI later amended – Commission found the safety incident a valid reason for dismissal but issues with the respondent’s processes tell in favour of a finding of unfair – Commission satisfied dismissal was harsh as inadequate account taken of applicant’s safety record – unjust due to improper characterisation of true circumstances of the incident and procedural ambiguities – unreasonable in concluding applicant acted deliberately – Commission ordered applicant reinstated by 29 May 2017 and payment of $10,578.60 for lost remuneration, taking into account earnings since dismissal and deduction of two months’ salary for lapse of judgement. Tomlinson v BHP Coal P/L t/a BHP Billiton
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