Written warning becomes dismissal after employee's investigation emails

Case highlights importance of conduct during workplace safety probes

Written warning becomes dismissal after employee's investigation emails

The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where a worker argued he was wrongfully terminated after a workplace vehicle collision. The worker maintained he wasn't at fault for the accident and that the employer's investigation process was flawed.

The worker argued that his four-week unpaid suspension during the investigation was excessive for what he considered a straightforward incident. He also claimed the investigation was improperly reopened after being closed, with the intent of terminating his employment.

The case examined whether post-incident conduct could justify termination, even when the initial incident alone might have warranted only a warning.

Workplace safety incident sparks investigation

On 14 April 2024, the worker, a casual stevedore at the Port of Brisbane, received a phone call to cover a driving shift for an employee who had called in sick.

Due to the late notice and traffic, he arrived approximately 45 minutes after the shift started, missing the toolbox meeting.

While unloading vehicles from a Pure Car Carrier vessel, he drove into the wrong lane designated for Mazdas instead of Hondas. Upon attempting to exit the lane, his vehicle collided with a company taxi.

Instead of remaining at the scene, he drove to the clerk's facility, later explaining he believed the vehicle's location posed a safety risk.

Both drivers underwent mandatory drug and alcohol testing, which they passed. The worker was then stood down pending investigation. The next day, he received a show cause letter stating his conduct constituted "misconduct inconsistent with our values of integrity, reliability, inclusion and zero harm."

Professional conduct during investigation

On 9 May 2024, after being off work for nearly a month, the worker was informed he could return to the roster. However, before any disciplinary decision was made, he sent multiple emails to company employees that became a central focus of the case.

The FWC reviewed these communications, noting: "Taking all of the circumstances into account, I find that it was reasonable for [the employer] to conclude that they had lost confidence in [the worker's] ability to perform his duties in a safe manner."

The Commission found the worker's emails "demonstrated a lack of respect for [the employer's] management, was discourteous, was disingenuous, and was inconsistent with his obligations under the Handbook, and the Code."

Investigation leads to dismissal decision

The FWC determined that while the initial collision warranted investigation, it was the worker's subsequent conduct that justified dismissal.

The decision stated: "[The worker's] involvement in the collision was a valid reason for investigation and consideration of disciplinary action, which would likely have been a written warning."

The Commission explained that the worker's persistent refusal to accept any responsibility played a crucial role in the outcome.

The decision noted: "[The worker's] conduct following his return to active roster was a valid reason for his dismissal. Consequently, [the employer's] decision to dismiss [the worker] was sound, defensible and well founded."

After reviewing all evidence, the Commission concluded: "Having considered each of the matters specified in s.387 of the Act, I am not satisfied that [the worker's] dismissal was harsh, unjust or unreasonable. Accordingly, I find that his dismissal was not unfair."