Where does the Fair Work Commission ‘sit’ on safety terminations?

One Minute Summary

A 61-year-old store manager is summarily dismissed for driving a forklift without the appropriate training and license.
The employer had previously turned a blind eye to this practice but with the employment of a new GM, has implemented a new safety culture.
The new GM draws a zero-tolerance line in the safety sand and states employees would be terminated if they continue this practice. The store manager is subsequently terminated.
The Fair Work Commission dismisses his unfair dismissal application given he breached a ‘safety critical rule’. This is despite procedural concerns about the termination process.
But what about safety incidents which are not a safety critical rule. How should employers respond to them. Its not quite as clear. We closely examine the Deputy President’s decision and consider scenarios which are not quite as clean cut.

Mr Fabiano, 61, worked for Elsum Engineering in Melbourne for 5 years as a store manager. He was summarily dismissed for repeatedly driving a forklift without a licence after being instructed not to do so. He accepted he did the wrong thing but did not accept responsibility for his actions arguing his conduct resulted from to poor judgement rather than defiance, and that the termination was disproportionate to the misconduct.

The background to this decision:

Prior to the employment of a new General Manager in April 2024 Elsum turned a blind eye to unlicensed employees driving forklifts.
The new GM started to address the safety culture and began instructing employees they should not be driving forklifts without a licence. At first there were no harsh repercussions. Most unlicensed staff stopped driving forklifts or obtained their licence. Mr Fabiano received an email from the GM reminding him of this requirement and instructing him to get his forklift licence which the company would pay for.
On 28 January 2026, the GM witnessed Mr Fabiano driving a forklift. In response he sent an email to all staff reminding them that unlicensed employees should not drive a forklift. He also stated the company would now have a zero-tolerance approach to driving without a license. Failure to comply would result in a written warning or instant dismissal. Mr Fabiano responded to the GM’s email with ‘Noted’.
In the following week Mr Fabiano on three occasions drove a forklift – some of which were captured on CCTV.
Mr Fabiano was called to a meeting and asked to bring a support person which he declined. At the meeting in response to being told he had driven the forklift three times, following the instruction not to, Mr Fabiano did not acknowledge that he had done anything wrong and showed no remorse. The GM decided that his behaviour was deliberate, that it posed a serious safety risk, and that Mr Fabiano had refused to follow a lawful reasonable direction and as a result he would be summarily dismissed.
Mr Fabiano filed an unfair dismissal case and was represented by legal counsel at the hearing.

Fair Work Decision & Commentary

Deputy President Coleman analysed the evidence before him and provided the following consideration and decision. It’s important to understand it was the combination of factors that resulted in the Commission’s decision. If we replaced the unlicensed driving of a forklift (described by the DP as a ‘safety critical rule’) with a lessor safety breach it is unlikely the same outcome would have occurred.

Before 2024 the company did not consistently enforce the rule that only licensed employees could drive forklifts. ‘Breach of the rule was tolerated’. When the new GM took over, he took decisive action to enforce the forklift rule.
It was clear that from 28 January 2026, all employees were put on notice – unlicensed driving would result in disciplinary action which could include summary dismissal. Mr Fabiano responded acknowledging this email notice.

These cases become very difficult to defend when the behaviour that led to the termination was tolerated as ‘normal’ at that workplace. There needs to be a line in the sand that clearly rejects the prior conduct and sets the new standard. Any new standard must be clearly communicated. Where a new standard has been set the employer must be able to show the employee in question was made aware of the standard. In this case Mr Fabiano conveniently responded showing he had received the standard.

The DP rejected Mr Fabiano’s assertion that he had not been specifically and individually warned about the driving the forklift. There had been prior correspondence to him and the email on 28 January to all employees had been explicit in imposing a zero-tolerance rule for unlicensed driving – as well as the consequences.

The message was explicitly clear as to the new standard and non-compliance outcomes. If the message had been vague (especially in relation to what occurs after non-compliance by simply stating ‘disciplinary action’) it would have been necessary to have a specific message to the offending employee.

Mr Fabiano drove the forklift several times after the above email direction by the GM – contrary to the direction of 28 January 2026.

The company was able to produce witnesses and CCTV to show this as fact.

In conclusion the DP stated ‘Mr Fabiano’s repeated unlicenced driving of a forklift was a valid reason for dismissal wilful and deliberate conduct that was in direct contravention of a lawful and reasonable direction of the employer. The requirement that a person hold a licence in order to drive a forklift is a critical safety rule. I reject the suggestion of Mr Fabiano that the operational context and the pressures of work mitigate the seriousness of his conduct.’

The Commission classified the employer rule about not driving a forklift unless licensed as a ‘safety critical rule’. With safety misconduct that is other than ‘safety critical’ I suspect there would likely be a greater expectation on the employer to issue warnings prior to termination. In other cases the Commission has also been quite focussed on inadequate training.

The DP rejected Mr Fabiano’s argument that he drove the forklift due to operational pressures placed on him. There was no evidence that operational matters had priority over safety.

Employers need to be conscious of sending out mixed messages. If safety is the priority, then undue pressure on output can cause employees to cut corners and simply forget safety rules.

Mr Fabiano was terminated after three breaches of the GM’s direction. The breaches were not a mere error of judgement.

If there had been a ‘one of’ use of the forklift it might have been claimed and accepted as a ‘error of judgement’. Old practices (previously allowed by the employer) can take some time to change. With one incident the Commission could have decided a first and final warning was more appropriate.

The company had lost all confidence in Mr Fabiano that he would follow the safety rules.

This position can be claimed after repeated breaches – especially following a direction. It probably would not have carried much weight with a ‘one-off’ occurrence.

Mr Fabiano’s argument that no accident had occurred as a result of his conduct was rejected by the DP.

It is possible this argument may have been rejected because of the potential seriousness consequences of any accident.

Given the seriousness of the breach the DP stated the termination was justified even though Mr Fabiano had not been give a list of allegations or the absence of a ‘show cause’ process. Mr Fabaino had been provided with an adequate opportunity to respond to the allegations in the meeting. In this case procedural shortcomings were heavily outweighed by the seriousness of Mr Fabiano’s conduct.

With a less serious safety charge (and especially with non-safety issues) I suspect the procedural shortcomings may have resulted in ‘the reason for the dismissal was justified but unfair because of the employer’s procedural errors’.

The DP rejected Mr Fabiano’s argument that he should have been given a warning and not terminated, stating ‘after 3 contraventions of a critical safety rule in one week, I consider that the company had little choice’.

I suspect if the company had acted after just one incident the Commission may well have determined a final warning was more appropriate.

The DP rejected Mr Fabiano’s argument that because the company had his termination letter ready to give to him during the meeting that it had already made up its mind to terminate him before the meeting, stating ‘there is nothing inherently wrong with a prepared dismissal letter particularly when the key facts are not in dispute’

Employers need to be aware in this case a prepared letter was appropriate. In other situations, it can be a sign that the employer had made up its mind and therefore ignored the employee’s account of the incident at the meeting. It is recommended to finalise the letter and issue it to the employee after the discussion.

In summary – this decision rests on the fact of a breach of a safety critical rule. Termination in relation to other less serious safety breaches (and misconduct in general) require the proper following of procedural rules including the examination of the potential impact of the termination on the employee – Mr Fabiano was 61.

This case highlights that terminated employees are quite willing to take hopeless matters to the Commission. It also shows that solicitors, who are representing employees, are willing to encourage such cases - despite the facts. I wonder who benefits from this?

Employers are encouraged to obtain professional advice in the lead up to potential terminations.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

Guiding senior managers through complex employee relations issues

Sign up here to receive Hunter Employee Relations Update directly to your email inbox

Want to know more about our client services?

Want to know more about Hunter Employee Relations?