By Gaby Grammeno Contributor

The worker was employed as a forklift operator in the warehouse of a producer of fresh convenience foods. 

In December 2023, the warehouse manager warned him about unsafe forklift operation after complaints from other employees when he turned quickly in a small space, almost hitting furniture and people. The following month, he was spoken to about several other performance issues.

On 8 February 2024, the worker was using a forklift to remove pallets of vegetables from racking shelves and place them on the floor nearby. During this task, another employee approached. The worker reversed five or so metres to talk to him for a few seconds. The forklift had a full load of pallets at the time.

He then drove the forklift forwards, colliding with the pallets he’d just put on the floor.

An incident report was duly filled out, and when asked, the worker admitted he’d smoked marijuana the night before. The site operations manager told him there was no need for a drug test because ‘[it] was going to come back positive’. The worker was suspended and sent home.

At a meeting four days later, the worker confirmed he’d been smoking marijuana for 35 years, that he used it to self-medicate for chronic pain, but that he never used it before coming to work.

The following day, at a meeting for which the worker had declined to bring a support person, he was told the employer had decided to terminate his employment immediately for serious misconduct.

The worker applied to the Fair Work Commission for an unfair dismissal remedy.

IN THE COMMISSION

CCTV footage of the incident on 8 February showed that the forklift load had obscured the worker’s line of sight so he could not see the pallets, though they were stacked to a height of at least 1.5 metres. He submitted that when his co-worker spoke with him, it distracted him, and he forgot where he’d put the pallets.

The warehouse manager’s evidence was that the worker should have turned his forklift around and reversed it back to the shelves, as that way he could have had a clear line of sight, with the rear of the forklift unobstructed by pallets. Guidance from WHS authorities recommends that ‘when operating a forklift, a person should keep a clear view of the way ahead and either use a spotter or drive in reverse if your vision is blocked’.

The employer did not comply with its drugs and alcohol policy, which stipulates that drug and alcohol testing is mandatory after a forklift incident. The worker had never received or seen the policy.

The worker argued that he’d smoked marijuana in his own time, and as he had not taken a drug test after the incident, the employer could not prove he was under the influence or impaired on that occasion, therefore his dismissal was unfair.

Commissioner Pearl Lim noted that there are different views on drug and alcohol impairment in the workplace and different approaches to managing it.

‘The reality is that there is no widely accessible, on-the-spot method to accurately test for drug and alcohol impairment in the workplace’, she said.

However, Commissioner Lim formed the view that the employer was entitled to conclude that the worker was under the influence or impaired on that occasion, considering that he was open about his recent and regular marijuana use, he agreed there was no need to undergo a drug test as it would return a positive result, and his concentration and memory were clearly affected, given that he’d forgotten where he’d put a pallet half a minute earlier.

Even without the issue of the worker’s contested impairment, Commissioner Lim said she would have found that there was a valid reason for dismissal, because it was the worker’s second instance of unsafe forklift operation, and it was serious. The worker was willing to drive around the warehouse with his vision obscured.

‘Failure to comply with safe standards when operating machinery like a forklift is how avoidable workplace injuries and fatalities occur’, she said.

The seriousness of the incident on 8 February 2024, combined with the worker’s prior warning for driving a forklift too fast and his unfortunate submission that it is nearly impossible to injure someone when driving a forklift at 8km/h demonstrated the worker’s unsatisfactory understanding of workplace safety.

Commissioner Lim found the worker’s behaviour constituted serious misconduct and there was a valid reason for his dismissal, which was not harsh, unjust or unreasonable.

The employer’ management practices also had their shortcomings. They should have properly notified the worker of their reasons and given him an opportunity to respond, before deciding to sack him.

However, the employer’s procedural deficiencies were outweighed by the reason for dismissal. The Commission therefore dismissed the worker’s application.

WHAT IT MEANS FOR EMPLOYERS

The frequency of serious accidents involving forklifts means that safe practices – such as not driving when the load may block the driver’s view of obstacles and people, or when the operator’s concentration is likely to be impaired (for whatever reason) – are essential for maintaining a safe working environment.

READ THE DECISION

Bunce v Pmfresh Pty Ltd Pty Ltd [2024] FWC 1577 (17 June 2024)