In a timely reminder that good policies and a valid reason for termination do not automatically make a dismissal fair.  In fact a good policy and a valid reason for dismissal that is not paired with a valid process will result in an unfair dismissal.

This case has highlighted the important of consultation prior to implementation of a policy and enforcement that reflects the breach itself in the wider context of the employees behaviour.

In this case a distribution centre worker was dismissed after he was seen talking on his mobile phone while operating a forklift.  This was in breach of a newly updated business policy preventing mobile phone use while operating forklifts in high traffic areas.

The worker stated he simply forgot and that regretted his actions and lack of judgement, and was sorry for potentially endangering himself and others.  His employer however took a zero tolerance approach and terminated his employment.

The worker claimed unfair dismissal.  He sought reinstatement on the basis of the argument that termination was disproportionate to his 22 year service with no safety breaches and the policies newness and lack of detailed consultation on the zero tolerance (termination) approach to breaches.

The Commissioner noted that the zero tolerance, instant termination approach was not what was communicated and that the policy stated that breaches  “may result in disciplinary action, up to and including termination of employment”.

“[The worker] simply did not expect he would be dismissed for a first incident, especially one that did not cause an accident or injury, and especially during a period where the country was being affected by the COVID-19 pandemic,” she said.

She found the decision makers incorrectly applied a zero-tolerance approach when considering whether to terminate the worker’s employment. They failed to give appropriate weight to his “impeccable safety record”, length of service and the conditions the incident occurred under.

A business policy is a valuable tool in business, but they must be implemented as part of a consultative process, and breaches managed in the context of the employees service and record.

Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Training