The Facts and Issues
On 28 June 2024, the Fair Work Commission in Pece Calovski v Opal Packaging Australia Pty Ltd [2024] FWC 1717 ordered the employer to reinstate the employment of Mr Calovski, an employee whose employment it had terminated, to the position in which he was employed immediately before the dismissal, with back pay and continuity of service from the date of termination of his employment to the date of his reinstatement.
Mr Calovski was an employee at Opal when he became involved in a forklift accident on 27 June 2023, which he said occurred as a result of brake failure due to “brakes being a soft-pedal”. Opal conducted a workplace investigation and found instead that Mr Calovski had hit the accelerator causing the accident, and that he had lied about the brake failure. The employer did not accept Mr Calovski’s explanation and terminated his employment on 19 October 2023.
Mr Calovski applied to the Fair Work Commission (FWC) alleging his dismissal was unfair for reasons that included an absence of a valid reason for dismissal. The key issues in the proceedings were whether the brakes on the forklift malfunctioned and whether Mr Calovski was driving in an unsafe manner. There were also issues raised about the independence of the safety report commissioned by Opal.
The FWC proceeded with a hearing allowing legal representation having decided this was the most appropriate avenue provided the nuanced and complex facts of the scenario.
Opal conceded when giving evidence that if Mr Calovski had not lied about the cause of accident it might have decided not to terminate Mr Calovski’s employment. Opal claimed that technicians found no fault with the breaks, and another independent investigator Mr Sporl reported
“It was more likely than not that the brakes had not failed and that the accelerator may have been used by the Applicant in lieu of the brake, resulting in the incident”.
Key Findings
Despite the uncertainty regarding the brake failure Commissioner Matherson found that Mr Calovski was unfairly dismissed as under the Fair Work Act’s meaning of an unfair dismissal (s.385 of the Fair Work Act). Matherson considered that Mr Calovski’s accidental acceleration could not automatically amount to ‘gross negligence’ constituting grounds for dismissal.
Commissioner Matherson gave special regard to the quality and nature of evidence where serious misconduct is considered. Matherson referenced principles established in Briginshaw v Briginshaw where the balance of probabilities remains as the standard of proof but the quality of the evidence considered must reach a degree of reasonable satisfaction. This reasonable satisfaction should not be obtained from inexact proofs like the evidence used regarding the brake failure.
Commissioner Matherson ordered the reinstatement of Mr Calovski with Opal having to repay the difference in the weekly wage earned by Mr Calovski’s between the lapse in his employment and reinstatement less the notice period.
Takeaways
The case importantly highlights that procedural fairness plays a crucial role in the employment sphere. Employers should be aware of all evidential burdens, giving due consideration to policies, procedures and responses to workplace incidents.
Please reach out to our employment lawyers for specific advice. Call us today on 1300 862 529, or email your enquiry via the Contact us link, to arrange an initial consultation. We look forward to meeting with you.
This article was written by William Johnson, Law Clerk, and Fran Keyes, Practice leader (Employment & Discrimination Law)
