Demo worker fairly dismissed for causing own near-death experience

A truck driver for a demolition company has failed to convince the Fair Work Commission that the seriousness of a safety breach which could have seen him run over by an excavator had been overstated, with termination being endorsed as an option which was “reasonably open” to the employer. In upholding the truck driver’s summary dismissal, Commissioner Allison also rejected the employee’s claim that a bullying complaint he had raised the day after the incident played any part in the decision to dismiss.

The truck driver – a construction industry veteran with decades of experience – was almost skittled by the excavator on the one-year anniversary of his employment with the small business employer based in Victoria.

On 28 June 2023, the truck driver was sitting with his back to the reversing excavator which only stopped before running over him because the ‘spotter’ assisting the excavator driver had recognised the risk and intervened. Video footage of the incident identified an employee in a high-vis vest taking a seat on partly-demolished concrete steps then becoming distracted by something – likely to be a mobile phone – before the excavator started reversing “quickly” towards the man. The footage indicated the excavator stopped only “a short distance” from the worker, who, upon being alerted to the near miss, got up and moved to sit under nearby trees. Despite the video footage being admitted as evidence, the truck driver contested how quickly the excavator had been moving and how close it had stopped to him, and even attempted to debate whether he was the worker in the high-vis vest, only conceding under cross-examination; “I assume it’s me”. The truck driver allegedly compounded his indifference towards the incident by telling his boss later that day that the ‘spotter’ was “exaggerating” the risk when he had made a comment inferring the truck driver could have been seriously injured, though the truck driver claimed not to remember such a discussion taking place.

The next day, the truck driver raised a bullying complaint regarding an “altercation” he had with a co-worker that morning (unrelated to the excavator incident), before ceasing work to commence a period of absence due to injury. Within a week, the employer commissioned an external firm to investigate both the incident with the excavator and the truck driver’s bullying complaint, though the truck driver’s participation in the investigation was limited due to the course of medication he was taking. Notwithstanding the limited involvement of the truck driver in the process, the investigator concluded that his bullying complaint was not able to be substantiated. Separately, the allegation that he had engaged in unsafe conduct “by failing to take reasonable care for his own health and safety and failing to take reasonable care of the health and safety of persons who may be affected by the employee’s acts or omissions at the workplace” was substantiated.

The investigator’s findings in relation to the safety breach prompted the employer to issue the truck driver with a notice to show cause, before his employment was terminated for serious misconduct on 9 October 2023. In a December 2023 decision [2023] FWC 340, the Commission accepted the truck driver’s evidence that the emails attaching the notice to show cause and the termination letter were redirected to his ‘junk mail’ folder, and he was not aware of his employer’s position in relation to his employment until 19 October 2023; the date his dismissal was determined to have taken effect. 

Commissioner Allison was sympathetic to the fact that the truck driver had endured a very difficult period since he last worked on 29 June 2023, during which time he “struggled with personal health issues in addition to the termination of his employment”, but ultimately determined the truck driver had engaged in “misconduct” including:

• Failing to take reasonable care of his own health and safety, by placing himself at risk of being driven over by a reversing excavator;

• Failing to take reasonable care of the health and safety of the other employees, namely the excavator operator and the ‘spotter’;

• Conduct following the excavator incident that has led to a breach of trust and confidence.

In coming to the view that the misconduct was sufficiently serious to warrant summary dismissal, Commissioner Allison had regard for the video footage of the incident, which she described as “alarming”, as well as the unchallenged evidence of an expert WH&S investigator, who commented the truck driver “would have almost certainly been killed or been seriously injured” if he had been hit by the excavator. In addition, the WH&S expert suggested that “a reasonable employee, even one not as experienced as the [truck driver], would have no doubt foreseen the risk of being struck by the machine while sitting within the operating area of the machine”.

In rejecting the truck driver’s various arguments that he was not sitting in the excavator’s field of operation; that the excavator was not travelling quickly; and/or that he was sitting in the excavator’s tracks and therefore would have been unharmed if he had been reversed over, Commissioner Allison identified, “the Excavator Incident was a serious OHS matter that both had potentially devastating outcomes for [the truck driver] and his co-workers, and potentially exposed [the employer] to significant fines and criminal charges”. The conduct “cannot be considered a ‘trivial misdemeanour’”, she added.

Having found the safety breach constituted a valid reason for dismissal Commissioner Allison was not required to consider the truck driver’s claim that his bullying complaint had contributed to his termination. Despite this, she noted that there was no evidence to support the truck driver’s claim in this respect, instead commenting that the employer had taken “reasonable steps” to investigate the bullying complaint.

Overlooking the procedural deficiencies which led up to the truck driver’s termination – including that he was never on notice the employer was considering dismissal for the excavator incident and he did not have opportunity to respond to his employer’s concerns (because the show cause notice was directed to his junk mail) – Commissioner Allison determined the truck driver’s dismissal was not harsh, unjust or unreasonable.

Michalitsis v Dig Dig Demolition Pty Ltd [2024] FWC 1034 (29 April 2024)