Monday, 16 September 2013 2:06pm
A worker accused of serious safety breaches was unfairly dismissed, the Fair Work Commission has ruled, because he was not "solely responsible" for an incident that left a colleague injured.
The Commission found that while the worker's employer, QUBE Pty Ltd (trading as QUBE Ports), had a valid reason to terminate his employment, it was unfair of it not to consider that other safety measures in place had failed.
In November 2012, when the worker was using a 32-tonne forklift to lift a bundle of steel H-beams from the Port of Brisbane wharf, part of the load fell and landed on a stagehand's ankle, causing serious injury.
QUBE sacked the worker, for failing to maintain visual contact with the stagehand while operating the forklift, which was a serious breach of its "moving cargo on the wharf" safe work method statement.
The worker claimed unfair dismissal, arguing there was no basis for QUBE to find he was operating the forklift when the beam fell, and that other factors contributed to the incident.
The Commission heard that an investigation found the stagehand and a colleague didn't check the stability of the cargo before removing the pre-slung wires around the beams, and no clear communication method was established between the stagehands and the worker, for example.
These were "failed defences", according to the investigation report.
QUBE argued that the incident could only have occurred if the worker continued moving the forklift and lost sight of the stagehand, but Deputy President Ingrid Asbury said she wasn't satisfied the forklift was moving when the load fell, and it was equally probable that the forklift was stationary at that time.
QUBE had a valid reason to sack the worker for breaching the SWMS, she said, but the dismissal was unfair, due to "significant mitigating factors that were not given sufficient weight in the decision to dismiss", including:
"When [the incident investigation report] is considered, the inference that [the worker] was solely responsible for the incident could not reasonably have been drawn from the material before the employer," Deputy President Asbury said.
She said she accepted the worker's contribution to the incident was significant and "warranted a strong disciplinary response", but no evidence showed that QUBE considered any option other than his dismissal.
Anthony Mora v QUBE Pty Ltd T/A QUBE Ports (U2012/16511) (13 September 2013)