Mr A told them to stop what they were doing and come to his office. X argued that this was an unnecessary fuss and there was little, if any, danger involved in what had happened. He claimed that this was usual practice and they were merely securing unstable stock using the fork lift as there was no other available equipment.
After this initial discussion, both S and X were notified in writing that a formal disciplinary process would be commenced and they were required to attend meetings. S brought his union delegate as his support person to his meeting. At this meeting, it was decided that the incident was a safety issue which required further investigation. A second meeting with S was held.
Given that A was the main witness to the incident, the second meeting was handled by the Operations Manager (R) – in order to eliminate any appearance of bias (which was the right thing to do). At this meeting, it was decided that S had acted intentionally knowing the rules and risks involved. S’s support person highlighted S’s mitigating circumstances to be his:
- long and previously satisfactory service;
- personal circumstances in that he was supporting four children; and
- that he had moved the fork lift at the request of the other employee, who was more senior in terms of both experience and their shared Pacific culture – meaning that S felt obliged to follow his request.
Throughout the investigation, S was adamant that he did not move the forks or the truck when X was on the tines. However, R disagreed and concluded that the tines must have been moved with X on them, that the intention was to raise them further to assist the employee to shift boxes and that S was likely to re-offend. So S was dismissed.
S bought a personal grievance. The Authority thought that if the employer had given S an opportunity to comment on all the information he had taken into consideration when he chose to dismiss S and no new information came to light, than the employer would have been entitled to conclude that S had moved the tines, and that a reasonable employer would have dismissed S.
However, the Authority found that R had not acted as a fair and reasonable employer in the process it used. One of the fundamental rules in employment law is that if are accused of something you have to be given all the information that the employer is considering when making its decision – so you can comment or challenge that information. There is no point going to a meeting if you aren’t told everything that the employer is relying upon to make its decision.
Here S was not given a copy of a handwritten letter by X which stated that X (the author of the letter) stepped on the fork when it was flat on the ground and asked S to lift him to a particular height. So poor old S goes into a meeting saying that he didn’t lift X without knowing that X has told the boss he did.
S was not told that his employer had checked the dimensions of the area where the incident had occurred or what he had concluded about the height of the boxes at the time.
R did not tell S that he had also spoken to the other two witnesses who stated, contrary to X’s assertion, that what S and X had done was not usual practice.
R did not tell S why he considered that it was likely that S would re-offend.
The dismissal was shown to be unjustified (because of poor procedure) and S would have ordinarily been awarded $19,011.00 for lost earnings. However, because S contributed to the dismissal with his conduct, this amount was discounted by 40%. S was also awarded $7,200.00 for hurt and humiliation. Had the employee told S everything at that meeting, then the likelihood is that the employer would have saved itself $18607.00 plus lawyers fees.
