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Forklift Operator Sacked For Using Mobile Phone Loses Unfair Dismissal

Forklift operator sacked for using mobile phone loses unfair dismissal

A forklift operator sacked for using his mobile phone on the job has lost his unfair dismissal claim.

The worker used his phone twice in two hours, in contravention of his company’s workplace safety policies.

The Fair Work Commission found the employer had a valid reason for dismissal.

It also found the dismissal had not been harsh because the man’s supervisors gave him a previous warning about phone use just two hours earlier.

The first incident

Jason Hansen worked for Pure Harvest for almost ten years, but after the two incidents on the night of the 25 October 2017, the company fired him.

In the first, Hansen stopped his forklift to talk to his supervisor, when his mobile phone dropped out of his pocket and onto the floor of the forklift.

Hansen assured the supervisor he had not been using the phone.

As a result, the supervisor gave him the benefit of the doubt, telling him, “Make sure in future you are not using the phone while on the forklift.”

Hansen replied, “yeah yeah, I know.”

A second supervisor who saw the incident added:

“I’m sorry guys, but mobile phones and forklifts cannot co-exist.  

“Everyone knows this and that Health and Safety takes priority.”

The second incident

Two hours later, when he felt his phone vibrate in his pocket, Hansen picked it up.

He had been expecting to hear from his wife as one of his children had serious medical issues.

The second supervisor told the Commission he saw Hansen “fiddling with, or otherwise texting, on his mobile phone whilst sitting on a running forklift.”

He immediately approached Hansen and said:

“Jason what are you doing?  On the phone again? 

“I can’t believe it was less than two hours ago you were told by [the other supervisor] that under no circumstances should anyone use their mobile phone on a forklift.”

Hansen replied, “the tines are lowered and the handbrake is on.  It’s safe.”

He then assured his supervisor, “I’m putting it away now dude.”

The company’s policy states:

“Use of mobile phones is prohibited whilst performing operational tasks… whether you are on a production line or using any form of machinery or equipment.”

Hansen had previously received a written warning about a separate incident.

Therefore, as a result of the mobile phone incidents, Pure Harvest sacked him with two weeks pay.

Dismissal valid

Hansen filed a claim for unfair dismissal, however, deputy president Anne Gooley found the company had a valid reason for the dismissal.

She also found Pure Harvest gave Hansen procedural fairness during the dismissal process.

“Had it not been for the warning a mere two hours before, I may have concluded that the dismissal was harsh.

“But Mr Hansen had choices when his phone vibrated. He could have ignored it. He could have got off the forklift and looked at his phone.  

“He made a choice to get his phone out knowing of the warning and knowing he was on a final warning.”

Safety comes first

Miles Heffernan, Director of Litigation at IR Claims, says the Commission’s decision is unsurprising.

“Most companies take their workplace safety responsibilities extremely seriously,” he said.

“And the use of mobile phones while operating machinery is a big no-no.

“In this case, to pull out your phone two hours after you have been warned, is a really silly mistake.

“And, unsurprisingly, the Commission found the company had the right to say ‘enough is enough’.”




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