Background

Parmalat Food Products Pty Limited (Parmalat) dismissed Mr Wililo, a licensed forklift operator, over serious safety concerns.  Despite his training, Mr Wililo: 

• raised the tines of his forklift and the unsecured load sitting on them at the time; and

• without engaging the tines properly, placed his hand and part of his arm under the raised and unsecured load.

Parmalat investigated what it later described as “grossly negligent, dangerous” conduct with the potential to have “severely injured or killed” and relied on Mr Wililo’s serious safety breach to terminate his employment.  The letter of termination expressed Parmalat’s disappointment with the answers he gave in the course of its investigation, which were “inconsistent [with] what was presented [by other] witnesses” and undermined the relationship of trust and confidence necessary to maintain his employment.

Mr Wililo asked Fair Work Australia (FWA) to find that his dismissal was unfair.  His claims were accepted by Commissioner Cargill, and Parmalat appealed.

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In Lawrence v Coal & Allied Mining Services t/s Mt Thorley Operations / Warkworth (Mt Thorley) a Full Bench of FWA overturned McDonald C’s decision at first instance.  McDonald C found no unfairness in the dismissal of Mr Lawrence, a long-standing employee, for deliberate breach of Coal & Allied’s safety procedures.  The Full Bench of FWA disagreed.

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In the very recent decision in Chadwick v Woodside Energy Limited (Woodside), McCarthy DP (not a Full Bench) considered a dismissal for breach of Woodside’s golden safety rules.

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While they also have far wider significance for employers, these decisions are critically important in the safety context.  They reinforce the need to balance two often competing considerations.

• On the one hand, an employer must meet its duty to keep people safe.

• On the other, an employer must also have a valid reason, follow a fair procedure and consider what risk a breach of safety processes is likely to present in the particular circumstances, and how serious and how real is the risk of significant harm.

While the serious misconduct at the heart of each decision was a safety breach, serious misconduct can take many forms, including:

• fighting at work;

• bullying or harassment;

• theft;

• profiting from undisclosed outside interests;

• claiming payment for hours not worked; and

• fundamental breach of cash handling procedures such as failing to record transactions.