A process worker who was filmed doing a series of burnouts on a forklift has lost his unfair dismissal claim after the Fair Work Commission (FWC) found his misconduct was so extreme it did not warrant any further inquiry and no explanation or mitigation could avoid dismissal.
The employer’s business involved decorating and direct printing onto bottles and containers. On 18 October last year, the applicant in the matter and another employee realised they’d been left unsupervised at the employer’s Ingleburn site. The applicant decided to do burnouts on a forklift while his colleague filmed him on a mobile phone. The applicant poured thinner solution onto the concrete to act as an accelerant and lubricant to increase the burnout effect. He also smashed glass bottles during the burnouts.
The following day, the Manager noted the skid marks on the concrete. He was assisted by the applicant in cleaning up the mess caused by incident when the applicant told the Manager his colleague was responsible for the forklift burnout event. That story, however, came undone when the colleague sent the Manager the video he’d filmed of the applicant. The applicant was subsequently dismissed by the employer.
What the FWC found
The FWC found the video evidence of the applicant’s conduct represented a valid reason for his dismissal. The employer’s findings of serious misconduct were not contested by the applicant. He claimed his actions were not the only unsafe practice that occurred and focussed on what he saw as inconsistent treatment in the employer’s disciplinary processes.
Commissioner Cambridge of the FWC criticised the lack of procedure followed by the employer in effecting the dismissal but found the misconduct of the applicant was ‘extraordinary’ and could not be condoned by a finding of unfairness with respect to the employer’s procedural errors. Indeed, the Commissioner noted the applicant committed one of the most egregious acts of gross and wilful misconduct he had witnessed in more than two decades of arbitrating unfair dismissal claims.