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An unsuccessful unfair dismissal claim decision will be appealed

Submitted on Friday, 28th April 2017

The Full Bench of the Fair Work Commission has granted permission for a dismissed employee to appeal their previously unsuccessful unfair dismissal claim.

In January 2017 Commissioner Cirkovic found there was a valid reason for the Applicant’s termination in March 2016 due to a number of conduct and safety breaches.

The employer had a number of issues with the Applicant and their disregard for safety. On 3 December 2015 the applicant undertook a number of unsafe forklift practices that were addressed in a counselling session later that month. He was then involved in an incident on the 18 December 2015 which resulted in product damage and a near miss where a jockey had moved out of the safety zone. The Commissioner found this near miss could have resulted in “serious injury if not fatality” and the Applicant “failed in his duty to take a proactive and rigorous approach in reporting this serious incident fully to his superiors immediately after it occurred”. This serious incident resulted in the Applicant receiving a first and final warning.

The Applicant’s employment was eventually terminated on 30 March 2016 after he was found wearing safety glasses on his head after being advised to wear them correctly on multiple occasions. Following his termination the Applicant lodged an unsuccessful unfair dismissal claim.  The Commissioner found the Employer had a valid reason for termination as the Applicant had ‘consistently demonstrated that he could not or would not comply with reasonable and fundamental site rules’.

The Applicant’s appealed this decision on a number of grounds, with a focus being that the “Commissioner took into account extraneous matters when deciding if there was a valid reason for the dismissal”. The applicant argued that the Commissioner focused on the employee’s failed ownership and reporting of the incident rather than if the applicant had breached the employer’s safety policy.

The Full Bench was content an appeal would be in the public’s interest and that “circumstances where a critical finding has not been made in relation to the 18 December 2015 incident which would of itself have found a valid reason, then the failure to make such a critical finding would, in our view, enliven the public interest”. The Full Bench agreed the “Commissioner failed to determine whether Mr Palmer had in fact engaged in a wilful and reckless breach of USG’s safety policy”. This failure therefore limited the Commissioner’s ability to make conclusions about the Applicant’s lack of accountability.

The Full Bench ruled the Commissioner had erred in her conclusion and ordered her to re-hear the matter and provide an updated determination.

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals  to increase your knowledge of counselling and discipline processes, and how to best manage unfair dismissal claims. 

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