Employee loses unfair dismissal case after “tomfoolery” – hitting a forklift with a broom to scare a trainee

A CSR employee, who was dismissed after what he described as “tomfoolery” and “mucking around”, has failed in an unfair dismissal claim to the Fair Work Commission.

Derek Goldsmith was employed as a glass worker at CSR for more than 10 years and was using a broom at a loading bay where a junior employee was being trained in the operation of a forklift.

Goldsmith hit the forklift with the broom so that the forklift’s side window shattered.

The FWC was told there was “horseplay, safety breaches and damage to company property” but when Goldsmith was interviewed about the incident he did not seem to take the matter seriously. 

At a follow-up meeting later that month, Goldsmith was told to take time over the coming weekend and come up with reasons why his employment should not be terminated because of the seriousness of the incident.

Before attending that meeting Goldsmith consulted a union delegate, who recommended showing remorse; so at the meeting Goldsmith said he was remorseful, would never do such a thing again and offered to pay for the broken window.

He also modified his account of the incident and said he had attempted to sweep some dirt off the forklift, but the broom had hit something and jumped forwards, shattering the window.

Nevertheless, Goldsmith’s employment was terminated and he was given five weeks of pay in lieu of notice.

Goldsmith brought a claim of unfair dismissal to the FWC but the commission found because Goldsmith had changed his story it was clear his evidence was unreliable.

Goldsmith could not just have swept dirt off the forklift with the broom because it had taken a considerable amount of force to shatter the window, which had been made from toughened glass. The commission found Goldsmith’s act of hitting the forklift had been a deliberate attempt at scaring the young employee receiving training.

The FWC took into account Goldsmith’s experience and background in health and safety.

“The environment within which they work is inherently dangerous, involving, as it does, glass and large and heavy machinery in the form of the 16 tonne forklift,” the commission found.

The FWC was satisfied CSR had a valid reason for the dismissal and that Goldsmith had been given appropriate notice of the reason for his dismissal before the decision had been taken.

He had also been given adequate opportunity to explain his actions and put forward any mitigating circumstances.

Rachel Drew, partner at law firm TressCox, told SmartCompany the primary message for employers is that following a fair process in relation to decision-making after an incident of misconduct is just as important as the event itself.

“In this case the event was a foolish act by the employee, it wasn’t misconduct of a very serious nature,” she says.

“But when you look at the steps the employer took to respond to it, there were steps they took immediately to give the employee a chance to explain himself and they considered a range of disciplinary measures from a warning to dismissal and weighed those up.”

Drew says even when company rules have been broken, employers still have to follow the correct procedure. 

SmartCompany contacted CSR for comment but did not receive a response prior to publication. 

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