Worker claims conduct mischaracterised, while employer cites serious misconduct
The Fair Work Commission (FWC) heard an unfair dismissal application from a freight handler who was summarily terminated following allegations of throwing freight, operating machinery unsafely, and recording colleagues without authorisation during a December 2024 shift.
The worker contested the dismissal, arguing he was targeted due to his union delegate role and activities, while also claiming differential treatment compared to other employees.
The employer investigated three incidents that occurred on 10 December 2024, including allegations that the worker threw freight after being told to stop, drove an electric pallet jack carrying 1.2 tonnes recklessly near colleagues, and took unauthorised video recordings of workers at a secure facility.
The worker maintained his conduct was either mischaracterised, occurred due to workplace conditions, or was justified for safety documentation purposes.
Freight handling incident and supervisor directions
The Commission heard evidence regarding an incident where the worker's supervisor redirected a colleague to resume assigned blue cage work rather than assist the worker with loading freight into a storage container not scheduled for dispatch until the following day.
It found the supervisor heard a loud banging noise, turned around and observed the worker throwing freight boxes into the container in an underarm style, causing items to slam against aluminum surfaces.
The Commission accepted witness evidence that the supervisor approached the worker and asked him to stop throwing freight using words to the effect of "take it easy, don't throw the freight in the container."
The FWC found that despite being asked to stop, the worker continued throwing freight and did not look at the supervisor in response, with the supervisor repeating the request one or two more times before the worker stopped.
The Commission determined the worker consistently denied throwing freight during the investigation meeting, show cause response, witness statements, and hearing testimony, maintaining this denial even after being shown video footage.
It found clear and irrefutable differences in the video footage between the worker throwing freight into the container versus placing freight, rejecting the worker's denials as based upon misrepresentation of facts, including undisputable video evidence.
Employer’s safety requirements and protocols
The Commission heard evidence regarding requirements for operating electric pallet jacks transporting loaded containers weighing up to 1.5 tonnes in the logistics facility.
The FWC found that the worker, as a certified load shifting equipment driver, was required to comply with safety instructions requiring operation in a responsible, safe and professional manner, including arranging a spotter to guide the pallet jack through the workplace.
The Commission accepted witness evidence that the worker drove a pallet jack with a 1.2 tonne container attached directly into a silver cage trolley containing freight, paused briefly for no more than three seconds, then continued driving and pushing forward while employees scrambled to move trolleys out of the way.
The FWC found the video footage showed employees and trolleys all around the moving pallet jack while the worker continued to drive forward with three other employees grabbing and moving trolleys from the pallet jack's path.
It rejected the worker's explanations, characterising his actions as an accident, mistake or skills error partly caused by other employees working too close and trolleys being stored improperly.
It accepted witness evidence that the supervisor told the worker his actions were unsafe and could cause damage, while the worker responded with words to the effect of "what wheels, what will get damaged" in an aggressive tone before continuing to drive forward.
Unauthorised recording allegations at accredited secure facility
The Commission heard evidence that the logistics facility was an accredited premium site where no photographs were permitted, with signage to that effect at entry points.
It accepted witness testimony that the worker approached colleagues sorting remaining afternoon freight near the end of the shift, asked what they were doing, laughed and said words to the effect that there was no need to do the work as it could be done by another shift.
The FWC found witness evidence showed the worker subsequently took out his personal mobile phone, pointed it at colleagues who were working and sorting freight, and began video recording or photographing them while they worked without their permission or authorisation.
The Commission accepted a witness who testified he did not feel comfortable being videoed without consent.
It rejected the worker's contention that he was recording employees for safety reasons to report concerns to management or raise at consultative meetings.
The Commission found the worker made no report to management about any alleged safety incident on 10 December 2024 and had not previously shown videos or photographs of safety issues to management, determining the worker's actions constituted a clear and blatant breach of workplace policies and procedures.
FWC addresses contentions regarding union activities and differential treatment
The Commission heard the worker's contentions that allegations and findings were made against him because of his union membership, role as union delegate, participation in enterprise bargaining negotiations, raising safety issues, being targeted by his supervisor, and differential treatment compared to other employees.
The FWC noted these contentions were positive assertions requiring the worker to prove them on the balance of probabilities.
The Commission found no evidential foundation to support the worker's contentions regarding union-related targeting or differential treatment.
It noted the ultimate decision-maker who determined to dismiss the worker was not questioned during cross-examination about whether the worker's union status or activities impacted the dismissal decision, and found no evidence suggesting the decision-making process was influenced by the worker's contentions.
The FWC found the employer considered the veracity of the worker's contentions about his treatment prior to dismissing him and found them baseless.
It agreed with the employer's conclusions, determining that the worker's contentions did not engage with the facts of the incidents and that none of these contentions explained why the worker engaged in the conduct on 10 December 2024.
FWC determines validity of dismissal reasons
The Commission found each of the three allegations separately constituted valid reasons for dismissal, and combined, also represented valid reasons for termination.
The FWC determined the first and third allegations regarding freight throwing and unauthorised recording were valid reasons for dismissal, more because of the worker's responses to his conduct rather than the conduct itself, while the pallet jack operation allegation was valid both for the conduct itself and the worker's responses.
The Commission found the worker was notified of the reasons for dismissal and given an opportunity to respond before the termination decision was made.
The FWC determined the employer followed a procedurally fair show cause process and did not make a definite decision to dismiss prior to obtaining and considering the worker's responses, finding the worker was represented by his union throughout the dismissal process.
It considered factors such as the worker's age, 12-year length of service, clean employment record, and the financial and psychological impacts, but found that these matters did not weigh against finding the dismissal harsh, unjust, or unreasonable in the circumstances.
The FWC determined the dismissal was not disproportionate to the gravity of the worker's conduct and dismissed the unfair dismissal application.
