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When a forklift driver was sacked for using his mobile phone while at work, he decided to challenge his employer.

His legal case, led by Maurice Blackburn, highlighted that while someone might be technically in breach of the rules of employment, disciplinary action should be fair and proportionate.

What happened?

Maurice Blackburn successfully represented a forklift driver in his unfair dismissal case in the Fair Work Commission.

In the case of Michael Hudson v Metcash Trading Ltd the Fair Work Commission reinstated Mr Hudson after finding that his dismissal for a minor breach of a safety policy was harsh and unfair.

Mr Hudson had been employed for 23 years as a forklift driver and was dismissed for using his mobile phone in contravention of Metcash’s safety policy.

Metcash argued that its decision was justified because it was in line with their pursuit of cultural change in the overall improvement of workplace conditions and safety.

The company argued that it had a clear policy prohibiting mobile phone usage, as well as the fact that the employee was aware and had received related training. 

Fair Work Commission’s ruling

The Fair Work Commission held that a safety breach was a valid reason for dismissal, however, dismissal was disproportionate and therefore unfair.

The Commission considered the Mr Hudson’s 23 years of service, clean safety record and unblemished disciplinary record as well as his loyalty and dedication to the company.

The Commission also had regard to the employee’s honesty, remorse and reasons for the momentary lapse of judgement.

Metcash appealed the Commission’s decision on the grounds that the Commission had incorrectly applied the legal test mandated by the Fair Work Act.

The Full Bench of the Commission dismissed Metcash’s appeal and upheld the reinstatement decision.

Dismissals should be fair and proportionate

This case confirms that even where an employer has a valid reason for dismissing an employee a dismissal may still be unfair because dismissal is disproportionate to the misconduct or factors mean that dismissal is harsh in the circumstances.


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