Forklift Operator Reinstated After Being Fired

Image courtesy of Martin Osen via Wikimedia Commons.

Editor’s Note: The following article contains strong language that may be offensive to some readers. Reader discretion is advised.

A forklift operator in Australia who was fired for telling his co-worker to “bugger off” has been ordered back to work by a labor appeals board.

Ian Holliday, a forklift driver at Coca-Cola Amatil’s facility in Sydney, was operating his vehicle in March of this year when he experienced a near collision with a co-worker.

Although there were different accounts about what was said, at the very least, Holliday told his co-worker to “bugger off and that what he had done was bloody stupid,” according to A. Gooley, deputy president of Australia’s Fair Work Commission.

“Inappropriate” and “Intimidating” Conduct?

Holliday was fired from his job on the grounds of unsatisfactory conduct. The company alleged that he engaged in inappropriate conduct by acting in an intimidating or threatening manner and used offensive language toward a co-worker, according to a report on the website Smart Company.

Holliday appealed his termination to the labor board, which determined that his firing was unfair and ordered Coca-Cola Amatil to give him his job back.

“The decision to terminate his employment was disproportionate to his conduct,” Gooley said. “I find that the termination of Mr. Holliday’s employment was harsh, unjust and unreasonable.”

Overreaction by His Supervisors

Elizabeth Aitken, a labor attorney who is familiar with Autralian workplace rules, said that although Holliday’s language was “inappropriate”, it was “not uncommon” for people to use such terms during high-stress situations, such as the near collision that could have resulted in serious injury to Holliday’s co-worker.

Rather than firing him, Coca-Cola Amatil should have given Holliday a written warning for his conduct during the incident and made him subject to a performance management plan. There had been no other complaints filed against him in connection with his conduct or performance, so his termination was too harsh a response by the company, she said.

“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,” Aitken said. “If the performance or conduct is unrelated, and is a single instance for which the employee has not been previously counselled, then it may be considered by the Commission to be insufficient to constitute a valid reason for the employee’s dismissal.”

Employers Bear Burden of Proof

Performance concerns can be “waived” if they are not followed up with training or ongoing review by the employee’s supervisors, according to Aitken.

“Employers should consequently schedule regular follow up meetings, and set clear targets for performance and/or conduct improvement,” she said. “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 potential mitigating factors like the stressful nature of the incident, and the usual culture and/or language of the workplace,” Aitken said.

Holliday’s job was reinstated,although his supervisors will need to determine the appropriate remedy — short of termination — for him in connection with the incident.

 

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