In workplaces where machinery is operated, it is important that the highest level of safety is adhered to. In Bunce v Pmfresh Pty Ltd [2024] FWC1577, the Fair Work Commission (FWC) has recently held that an employee’s admitted drug use and poor regard for forklift safety were valid reasons for dismissal.
The employee was employed as a forklift operator for Pmfresh Pty Ltd (the employer). On 13 February 2024, the employee was summarily dismissed from his employment following an incident with the forklift.
The employee was using a forklift to move pallets of vegetables from shelves to the floor. While the forklift was loaded with pallets, the employee reversed the forklift to briefly speak to a colleague. After ending the conversation, the employee drove the forklift forward into the pallets he had placed on the floor, his vision having been obscured by the full load on the forklift.
When questioned about the incident, the employee admitted to the employer that he had smoked marijuana the night before. The employee also agreed that if he was sent for a drug test, it would come back positive because of his drug use the night before.
After investigating, the employer terminated the employee’s employment on the basis of serious misconduct.
The employee lodged an unfair dismissal claim on the basis that there was no valid reason for dismissal. The employee submitted that there was no evidence that he was under the influence of marijuana or that he was impaired by drug use because he was not drug tested on the day of the incident. The employee also submitted that as a long-term marijuana user he had a higher tolerance it had not affected him previously.
The employer submitted that the employee engaged in serious misconduct as he breached its drug and alcohol policy.
The FWC found that while the employer did not drug test the employee as required by its own policy, the employer was entitled to be satisfied that the employee was impaired for the following reasons:
The FWC also found that the employee’s unsafe operation of the forklift was also a valid reason for dismissal. The FWC found that contrary to the employee’s submissions, the incident was serious and that the employee’s view on forklift operation and safety demonstrated an unsatisfactory understanding of workplace safety.
The FWC was critical of the employee’s actions in driving the forklift forward when his view had been obscured by the load of pallets and his submission that it was “almost impossible” to injure anyone at the permitted speed of the forklift. This was against a history of where the employee had previously been counselled in relation to driving a forklift in an unsafe manner.
Accordingly, the FWC was satisfied that the employee’s conduct amounted to serious misconduct and there a valid reason for dismissal.
The FWC also found the employee’s serious misconduct out weighed the procedural issue of the employer’s failure to notify the employee of the investigation findings before making the decision to terminate and dismissed the dismissal application.
The Fair Work Regulations 2009 (Cth) defines serious misconduct to include conduct that causes serious and imminent risk to the health and safety of a person and an employee being intoxicated at work.
For safety critical workplaces, employers should have clear policies and procedure in place which set out the consequences for breaches.
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