Unfair dismissal; reinstatement despite safety breach

Here is a summary of an unfair dismissal issued by the Fair Work Commission where  an employee won reinstatement having been dismissed for a safety breach.


The applicant who lodged this application for unfair dismissal commenced employment with the respondent in 1997 and was working as storeperson at the time of their dismissal. The applicant answered his mobile phone while driving a forklift. He then dismounted the forklift to continue his conversation. The phone call related to the maintenance of the vehicle the applicant relied on to attend work.

The applicant acknowledged his error of judgment and apologised for his conduct. The applicant had an otherwise unblemished safety record over the course of his employment. The applicant was dismissed for a breach of the respondent’s safety policies. The policy stated that a breach ‘may’ lead to disciplinary action ‘up to and including’ termination of employment. There was no suggestion that the respondent had a zero-tolerance policy.


The Commission found that the breach of the safety policy was a valid reason for dismissal. However, the Commission found that the dismissal of a longstanding and remorseful employee, with no prior safety or disciplinary issues for an isolated incident that did not cause injury or harm, to be disproportionate and therefore harsh.

The applicant sought reinstatement. The respondent submitted that its trust and confidence in the applicant’s regard for safety was damaged to the point that an employment relationship was not viable. The Commission was satisfied that in the context of the applicant’s prior safety record, and from the applicant’s conduct during the proceedings, that no conduct existed to support a finding of a breakdown in the employment relationship. The Commission ordered reinstatement with continuity of service and lost pay, less 25% for the breach of the safety policy.”

Hudson v Metcash Trading Ltd  [2021] FWC 2765.