A forklift driver has won an unfair dismissal case against Coca-Cola Amatil (CCA) after he was given the sack earlier this year over an incident where he told another employee to “bugger off”.
Ian Holliday was driving a forklift when he was involved in a near-miss incident with another employee who had walked across the path of the moving vehicle.
While the Fair Work Commission heard differing accounts over what exactly was said to the other employee during the exchange, Deputy President Gooley found at minimum, Holliday had told his co-worker to “bugger off and that what he had done was bloody stupid”.
CCA terminated Holliday’s employment in March for unsatisfactory conduct, alleging he had engaged in inappropriate conduct by acting in an intimidatory and threatening manner, and using offensive language towards another employee.
Holliday was also alleged to have previously been absent from work without authority for one non-production day in February.
But Gooley found that apart from the incident with the forklift, there was no evidence Holliday had behaved inappropriately towards others during his employment.
Gooley also found that while Holliday should have advised CCA that he was not attending work, his absence in February was a one-off event.
“The decision to terminate his employment was disproportionate to his conduct. I find that the termination of Mr Holliday’s employment was harsh, unjust and unreasonable,” said Gooley.
The matter is to be relisted for hearing to determine the appropriate remedy for Holliday.
Employment, industrial relations and workplace safety solicitor at TressCox Lawyers, Elizabeth Aitken, told SmartCompany that because Holliday had no history of absenteeism, his absence from work on a scheduled non-production day was insufficient to warrant the termination of his employment.
Aitken says while Holliday had used language that was considered “inappropriate” towards a colleague, it was “not uncommon” for a person to do so in a high-stress situation, including one in which a co-worker has closely avoided potentially serious injury.
She says Coca Cola took the appropriate action when it gave Holliday a written warning regarding his conduct and made him subject to a performance management plan, but no further complaints had arisen with his conduct or performance and the company did not appear to have provided any further guidance or training.
“Employers who are seeking to dismiss an employee on the basis that they’ve received previous performance or conduct warnings should first consider whether they can demonstrate that there is a pattern of similar performance or conduct,” says Aitken.
“If the performance or conduct is unrelated, and is a single instance for which the employee has not previously been counselled, then it may be considered by the Commission to be insufficient to constitute a valid reason for the employee’s dismissal.”
She says performance concerns can be ‘waived’ if it is not followed up with by training or ongoing review.
“Employers should consequently schedule regular follow up meetings, and set clear targets for performance and/or conduct improvement.”
“The decision demonstrates that an employer must consider the specific circumstances around an employee’s poor conduct or performance in determining whether it can reasonably form the basis for disciplinary action.
“Close consideration should be given, in particular, to any potentially mitigating factors like the stressful nature of the incident, and the usual culture and/or language of the workplace.”
CCA declined to comment when contacted by SmartCompany as the case is still in progress.
Kirsten Robb is a former journalist at SmartCompany. Previously, she worked at News Corp as a property reporter for Leader Newspapers and the Herald Sun, and holds a Masters of Journalism at Melbourne University.
