Reinstatement ordered for worker who said “you’re dead motherf**cker”
Reinstatement is considered by the Fair Work Commission as the “primary” remedy for a worker deemed unfairly dismissed. However, such a remedy is only considered appropriate if the employment relationship has not been irreparably damaged, making reinstatement an impractical prospect.
While many employees may want to seek financial compensation for their unfair dismissal, reinstatement is often the best outcome. It means your employment and career continues unabated, thereby avoiding any loss of income. It also means you can avoid the prospect of spending weeks or months finding a new job.
In this article, we look at two recent Fair Work Commission unfair dismissal cases where workers won reinstatement. In both cases, the workers were subjected to unfair allegations and workplace investigations. Some employers will cut corners when it comes to investigations. That is why you must know your rights when you are subject to an investigation and remain vigilant to any violations by your employer.
Fair Work orders reinstatement of forklift driver blamed for accident
The unfair dismissal case Mr Pece Calovski v Opal Packaging Australia Pty Ltd [2024] shows how employers can often get workplace investigations wrong. The case involved Pece Calovski, who began working for Opal Packaging in December 2020. At the time of his sacking, he was employed as a corrugator floater and was often tasked with using a forklift and a cardboard stacker.
Mr Calovski’s time at the company took a turn for the worse on 27 June 2023. This was the day he was involved in a forklift accident. He had been operating the forklift when it crashed into a cylindrical drum, causing it to bend around a bollard and detach it from the ground.
The forklift then crashed into several items of equipment and severed a gas line, causing gas to be released. It finally came to a stop after crashing into a roller door and fire safety door, causing the latter to fly off its hinges. Following the incident Mr Calovski was suspended from forklift duties. However, he continued to work on the cardboard stacker.
Employer “confirms” there was no fault with brakes
Crucial to his eventual reinstatement was Mr Calovski’s claim that he had applied the brake during the incident, but it felt soft and did not stop the forklift.
However, Opal Packaging claimed that the accident was caused by Mr Calovski’s failure to operate the forklift safely. In October 2023, the company shared with him reports from Adapt-A-Lift, the forklift lessor, and SafeWork NSW. Opal said these reports “confirm that there was not fault in the braking system on the grab forklift.”
Opal also outlined several allegations against Mr Calovski in a letter. The company claimed he did not accept responsibility despite evidence that the forklift’s braking system was functioning correctly. Mr Calovski responded to the allegations by reiterating that he had “applied the brake.” He claimed that “his foot pushed it to the floor, it was soft and provided no resistance and the grab forklift kept moving.”
“Could have resulted in loss of life”: Worker gets dismissed
Later in October 2023, Opal told Mr Calovski that their workplace investigation concluded the incident was due to his unsafe operation of the forklift. It said that this had led “a serious accident that could have resulted in loss of life.” The company said it did not accept his explanation and intended to terminate him for misconduct. Mr Calovski was immediately suspended from all his duties.
He responded to this letter by arguing that the person who led the investigation was not impartial. He also raised concerns about the forklift’s service history. Mr Calovski claimed part of the Adapt-A-Lift report was contradicted by the service manual. Also, that Opal had breached its enterprise agreement during the investigation.
He also highlighted several facts that helped him ultimately win reinstatement. Namely, that he had been using forklifts for over 30 years without incident. He maintained that he had been truthful during the investigation and that he enjoyed working for Opal. However, his steadfast denial of responsibility ultimately led to his dismissal on 19 October 2023.
Fair Work finds fault with investigation process
At Mr Calovski’s unfair dismissal hearing, the Fair Work Commission found a series of flaws with Opal’s investigation. It acknowledged that it was a significant accident. However, the commission deemed the investigation failed to eliminate Mr Calovski’s “soft pedal” explanation.
The Fair Work Commission noted the “unreasonable delay” in Opal providing the forklift’s service history to a union representative. This was provided just eight days before Mr Calovski’s sacking. The commission said the service history was “of importance in understanding whether the [forklift driver’s] account of what had occurred was a plausible explanation.”
Had Mr Calovski been provided this information, the Fair Work Commission felt it could have helped him make a case for not being fired. It was also found that Opal did not look into concerns raised by Mr Calovski concerning the service history. After his sacking, the company had found anomalies in the service history, the commission noted.
Employer “lost opportunity” to uncover reason for accident
The Fair Work Commission noted that the company that services Opal’s forklifts had assessed that they were not faulty. However, it did not assess if the “soft pedal” was the reason for the accident.
Also highlighted was the fact that Opal had cleared the accident site and returned the forklift to service that night. This meant that Opal “lost the opportunity to know the probable cause of the incident,” the Fair Work Commission said.
Given these deficiencies in the investigation, it was ruled that Mr Calovski’s dismissal was harsh and unreasonable. Considering his experience as a forklift driver and lack of performance and safety issues, the Fair Work Commission ordered his reinstatement.
Worker fired for allegedly telling colleague “you’re dead motherf**ker” reinstated
Another recent unfair dismissal case where reinstatement was ordered is Zoran Mojanovski v BlueScope Steel Limited [2024]. Mr Mojanovski had been employed by BlueScope since 1991. He was employed as an electrician under the title “Instrumentation Tradesperson.” Over more than three decades at the company, Mr Mojanovski had a spotless disciplinary record.
That was until July 2023, when an anonymous complaint was made about Mr Mojanovski’s behavior. The complainant alleged that Mr Mojanovski had repeatedly insulted them with phrases like “F**k you [Name]. I hate you” and “Shut up [Name] you d**khead.” It was also alleged he had yelled and swore at other employees.
In addition, Mr Mojanovski was accused of acting threateningly during a morning meeting. The complainant alleged he leaned in and pointed his finger while saying: “Oh yeah, you want to be a f**king man in front of everyone? Let’s see what kind of man you are outside the gates.”
Investigation and disciplinary action follow
BlueScope soon launched an investigation into the allegations. Mr Mojanovski was stood down and provided with the allegations as well as a first and final warning. He was told his behavior was a serious breach of company policies.
The allegations were later substantiated by the company. As a disciplinary action, Mr Mojanovski was transferred to another department and ordered to attend training on BlueScope’s bullying and harassment policies.
Worker allegedly yells “you’re a dead motherf**ker” from car window
On 16 January 2024, the complainant reported an incident to his supervisor describing an unpleasant encounter with Mr Mojanovski while driving home. According to the complainant, Mr Mojanovski had driven past on a public road and yelled out his window “you’re a dead motherf**ker, I’m gonna get you.”
The complainant felt that this incident was a form of retaliation for his perceived involvement in the previous complaints against Mr Mojanovski. The supervisor noted to the Fair Work Commission that the complainant was visibly distressed and shaken by the incident.
Investigation and dismissal
BlueScope conducted a brief investigation into the incident. Mr Mojanovski denied shouting at the complainant from his car. He claimed that he did not have his window down as it was a hot day and had his air conditioning on. The complainant was interviewed on the day of the incident. However, after Mr Mojanovski denied the allegations, the complainant was not interviewed again.
When questioned by the Fair Work Commission as to why the complainant was not interviewed during the investigation, the company said: “I felt we had all of the information we needed.” Despite his plea of innocence, in February 2024 Mr Mojanovski was dismissed for serious misconduct and breaching company policies.
Worker makes argument to Fair Work Commission
In his bid to win reinstatement, Mr Mojanovski argued to the Fair Work Commission that there was not a valid reason for his sacking. This is because he did not threaten the complainant. He pointed out the improbability of the accusation given the circumstances. Mr Mojanovski argued both vehicles would have needed their windows down. He found it inexplicable that he would suddenly decide to scream threats at the complainant, a person he had not spoken to since June 2023.
Mr Mojanovski said that he had been consistent in his account of the incident. He insisted that the Fair Work Commission would need to find he had lied under oath to justify the dismissal. He noted that the complainant did not provide testimony to the commission. And that there was no evidence of the complainant’s medical unfitness to justify not attending the hearing.
Mr Mojanovski emphasised the seriousness of the allegations and the lack of substantial evidence supporting them. He sought reinstatement and compensation for lost income.
Employer mounts shaky defense
BlueScope Steel’s case hinged on the establishment of a valid reason for dismissal. The company acknowledged the absence of the complainant’s testimony, noting it did not call him as a witness over concerns for his well-being.
BlueScope argued that circumstantial evidence supported the claim that the threat occurred. This included the proximity of the vehicles at the intersection and documentation detailing the complainant’s distress. The company also noted Mr Mojanovski’s potential motive due to previous allegations involving the complainant.
Fair Work Commission rules on unfair dismissal case
At the unfair dismissal hearing, the Fair Work Commission found there was a lack of evidence substantiating the allegations against Mr Mojanovski. He, on the other hand, was found to be “consistent, considered and compelling” in his denial of involvement.
It was deemed that Mr Mojanovski’s window was likely up due to him having just ended a phone call and the hot weather. Contrary to BlueScope’s argument, the complaint did not serve as proof of the incident but merely indicated that a complaint was made.
Procedural fairness deficiencies found
The Fair Work Commission determined that BlueScope had failed to convey Mr Mojanovski’s denials to the complainant. It also deemed that the company had not investigated the incident sufficiently, noting the short time frame in which it was conducted.
The commission noted that the complaint against Mr Mojanovski had been made on 16 January 2024. The next morning at 7:25am, the complainant detailed the complaint in an email. At 8:00am, Mr Mojanovski was told to attend a meeting regarding the incident, leaving little time for the matter to be properly investigated.
Dismissal ruled unfair
The Fair Work Commission ordered BlueScope to reinstate Mr Mojanovski after finding his sacking had been harsh, unjust and unreasonable. This remedy was considered appropriate as the commission had deemed that he had not actually committed the alleged misconduct. The order would see Mr Mojanovski reinstated within 21 days and receive backpay.
Unfair investigations get workers reinstated. We can help you win reinstatement
If you believe you were unfairly dismissed, our team of highly experienced workplace mediators can help. We at A Whole New Approach have been assisting Australian workers seek reinstatement for over two decades. AWNA are not lawyers, but the nations leading representatives and commentators.
With a free and confidential consultation, our team can assess your eligibility for an unfair dismissal claim, or harrassment issues. And we can guide you through the process of lodging your claim with the Fair Work Commission.
Get the help you need today and benefit from our no win, no fee service by calling us on 1800 333 666.
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