A young factory worker sacked for doing burnouts on a forklift has lost his unfair dismissal claim.
The Fair Work Commission ruled in favour of the employer, despite its failure to offer the worker procedural fairness.
For example, it failed to give him a chance to respond to the allegations against him.
The Commission said despite this, the dismissal was fair because the young man’s conduct was “so extreme that it does not warrant any further inquiry”.
The Commission found there was no explanation or mitigation that could have avoided the dismissal.
Forklift burnouts cost worker his job
20 year-old Jackson Macumber worked as a process worker for almost two years at Ace Bottle Printers in Sydney.
Left unsupervised on a Thursday afternoon in October last year, Macumber and a co-worker decided to do burnouts on a forklift.
To enhance the burnouts, Macumber smashed glass bottles and spread thinner on the factory floor as an accelerant and lubricant.
The co-worker filmed the stunt on his mobile phone.
Video footage led to immediate dismissal
The following day, the production manager noticed the skid marks, broken glass and dirt and cleaned it with the assistance of Macumber.
While cleaning the floor, Macumber blamed his co-worker for the mess and for doing the burnouts.
The co-worker subsequently showed the video footage to the production manager.
As a result, he immediately dismissed Macumber for serious misconduct.
Worker argued the dismissal was unfair
In the Fair Work Commission, Macumber argued his dismissal was unfair because:
- while his actions were dangerous, it was not the only unsafe practice on site; and
- management did not punish the co-worker who filmed the incident.
Commissioner Ian Cambridge didn’t buy the argument.
He found the video “unequivocally established” the employer’s findings of serious misconduct.
It therefore had a valid reason for dismissal.
Employee not given chance to respond
Industrial advocate Miles Heffernan from Dismissals ‘R’ Us says the Commission usually always considers whether the employee is given procedural fairness in a dismissal.
This includes an opportunity to respond to any allegations, in addition to having a support person with them during any disciplinary meetings.
“In this case, the Commission decided the worker’s conduct so serious, it outweighed all other considerations,” Mr Heffernan said.
‘One of the most egregious acts of gross and wilful misconduct that I have witnessed’
Commissioner Cambridge said in light of the “rather extreme circumstances” of the case…
“there would, in reality, be no basis upon which the applicant could provide any conceivable response that could in any way justify or mitigate the misconduct displayed in the video of the forklift burnout incident”.
Mr Cambridge also found the employer had “irrefutable evidence of gross and wilful misconduct of such a nature and magnitude that it almost compelled dismissal, without any need for further inquiry”.
Finally, Mr Cambridge said Macumber “committed one of the most egregious acts of gross and wilful misconduct that I have witnessed in more than two decades of arbitrating unfair dismissal claims”.
Warning for employers
Despite the extraordinary ruling, Mr Heffernan warned employers to always follow proper processes when dismissing an employee.
“That means conducting a proper investigation, giving the employee an opportunity to respond to any allegations, and offering them the choice of having a support person with them during any disciplinary meetings,” he said.
“Most employers come unstuck in the Fair Work Commission because they fail to follow proper processes, and fail to give employees procedural fairness.”
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