29 January 2020
A recent decision of the Fair Work Commission (Commission) has highlighted that a valid reason for dismissal arising from the employee’s serious misconduct could still be found ‘harsh’ and therefore ‘unfair’ if the employee did not have transferrable skills.
In most circumstances, a finding of a valid reason for dismissal based on a serious misconduct will lead to a conclusion that the dismissal was not unfair. However, in John Dunn v Bega Cheese Limited  FWC 8392 the dismissal was found unfair despite the finding of a valid reason based on a serious misconduct involving a safety breach because there were discernible and significant mitigating factors, including a consideration as to whether the employee had a highly transferable skill set or not.
In this case, a process worker who was working at a factory of Bega Cheese Limited (Bega Cheese) brought an unfair dismissal claim against Bega Cheese after being dismissed by reason of his breach of the company safety protocols.
On the date of the incident, Mr Dunn was completing his normal tasks until the box crushing machine was blocked, which would lead to piling up and overflow of boxes onto the floor into the forklift path below.
The company safety procedure to access the box crusher is to travel through a boom gate door, down a foot path behind a handrail path to the box crusher. The boom gate and roller door is interlocked and the boom gate will only open if the roller door, which grants access to the forklifts, is closed. When Mr Dunn was on his way to the box crusher, he realised that the roller door was open and therefore was unable to travel through the boom gate. Mr Dunn bypassed the boom gate and walked on the outside of the guardrail of the pedestrian path, where forklifts operate.
When Mr Dunn was traveling along this route, a forklift drove into the area past Mr Dunn. The forklift driver filed an incident report and an investigation ensued. After having three meetings with Mr Dunn, Bega Cheese decided that Mr Dunn had engaged in serious misconduct and terminated his employment. Mr Dunn was dismissed with five weeks’ pay in lieu of notice.
The Commission found that Mr Dunn deliberately breached the company safety protocol in that he bypassed a safety control and did not keep clear of a moving vehicle.
The Commission was also satisfied that Mr Dunn was notified of the reason for his dismissal and was given an opportunity to respond.
However, the Commission found that there are discernible and significant mitigating factors, including:
Taking into account the mitigating factors, the Commission found that the dismissal of Mr Dunn was ‘harsh’ and accordingly ‘unfair’. The Commission made it clear that it is only the ‘other relevant matters’ that made Mr Dunn’s dismissal unfair.
The Commission initially awarded a compensation of $56,520 but after deducting the five weeks’ pay Mr Dunn received at the time of his dismissal and $40,000 for Mr Dunn’s misconduct, the final compensation ordered was $11,100.
Lessons for employers
Although the Commission reduced the compensation by a significant amount considering the employee’s misconduct, this case confirms that the Commission is ready to award judgments in favour of the employee even if there is a valid reason for the dismissal, should there be substantial mitigating factors.
This case highlights the importance for employers to consider whether an employee’s skill set is transferable, along with age, work record and period of employment, as part of the factors to take into account for determining disciplinary action.
Authors: Michael Selinger & Jamie Kim
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