s.394 - Unfair dismissal

Application for an unfair dismissal remedy - breach of forklift safety policies - whether harsh, unjust or unreasonable - application dismissed

• [1] On 2 October 2024, Mr Jaspal Singh applied to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] Mr Singh was employed by Goulburn Valley Health (Respondent/GV Health) in its supply department as an Advanced Storeperson. A part of Mr Singh's role involved operating forklifts. Forklifts were used in connection with a delivery loading zone, adjacent warehouse and other facilities. Following a WorkSafe inspection at the start of 2024, a number of improvements were implemented to improve safety within the supply delivery area. Since late April 2024, those improvements included a designated zone for pedestrians only, which also included delivery drivers to wait in while supplies were being unloaded. Floor markings were painted and bollards were erected to demarcate the different zones. As part of the safety improvements, staff were given instructions by email, with annotated floor plans, and through explanations at a toolbox meeting on 24 April 2024. Forklifts were not allowed in the marked pedestrian zone. On 17 July 2024, contrary to the safety policy prohibiting forklifts in the designated safety zone, Mr Singh entered the zone with a forklift to collect some empty pallets. During that brief entry, his forklift clipped a handheld trolley being used by another employee, who was in the zone on foot. The collision caused the trolley to impact the other employee's leg, causing some pain and bruising (but no serious injury). Following an investigation, Mr Singh was ultimately dismissed.

• [3] Mr Singh alleges he was unfairly dismissed by GV Health. The Respondent denies the dismissal is unfair.

• [4] Mr Singh filed a statement on behalf of himself, as well as a statement by Gillian Kennedy, Industrial Organiser for the Health Workers' Union (HWU). GV Health relied on statements by Madeleine McKinnon (Employee Relations Consultant), Justin James (Manager, Supply & Procurement within Corporate Support Services), and Warren Norton (Procurement Coordinator within Corporate Support Services), each from GV Health. Mr Singh was represented throughout the progress of the matter and the hearing by the HWU. GV Health was represented by Mr A. Denton of counsel, instructed by the Victorian Government Solicitor's Office.

• [5] GV Health is a public health service, providing a broad range of hospital, aged care and community-based health services throughout the Goulburn Valley in Victoria.

• [6] In about January 2022, Mr Singh successfully applied for the position of Advanced Storeperson with the Respondent. The position description stated that the Advanced Storeperson worked within the Supply Division. The role is located within the Supply Division of GV Health's operations at Graham St, Shepperton. Broadly speaking, the employees working within the Supply Division are generally responsible for procurement, picking, packing, scanning and replenishing the hospital wards at GV Health.

• [7] The position description stated that the Victorian Public Health Sector (Health and Allied Services, Managers & Administrative Workers) Single Interest Enterprise Agreement 2016 - 2020 and its successors applied, as did GV Health Policies and Procedures (and as varied from time to time). There was no general dispute about any particular aspects of these instruments, and it is unnecessary to describe them in any detail.

• [8] A valid forklift licence was stated to be a "desirable" criteria for appointment. Implicitly, a forklift licence was not essential but Mr Singh did possess such a licence and drew attention to it on his resume.

• [9] Mr Singh reported to the Warehouse Manager, who in turn reports to Justin James, Procurement Coordinator. Mr James had a forklift licence, although did not have a need to drive or operate a forklift on any regular basis.

• [10] No specific induction training is provided to staff upon commencement at GV Health in relation to driving a forklift for employees qualified to drive a forklift. For a number of employees in the Supply Division, including Mr Singh, driving a forklift is a part of work. On the material before me, Mr Singh operated a forklift as part of his work without incident from January 2022 until July 2024 (the latter date being the subject of these proceedings).

• [11] The area in which the Supply Division - and Mr Singh - works has a delivery area or supply zone area that is directly accessible from Graham Street. There is a warehouse directly adjoining the supply zone. At least by around late 2023 and early 2024, there were plans in place for redevelopments in the loading area. In January 2024, a WorkSafe Victoria inspection took place. As a result of that inspection, changes were required to improve safety for pedestrians in the supply zone.

• [12] On 28 February 2024, traffic management changes were announced via an 'All Staff' 'Health and Safety Alert' titled 'Traffic Management Changes - Graham Street'. The face of that document shows it was communicated by "All Staff Email, Monday Message, GV Health Intranet, Screen Savers, Staff Noticeboards, Staff Huddles/Meetings".

• [13] It is not necessary to explain all the changes, but they included:

• A new "Pedestrian Exclusion Zone". This zone, as the name suggests, was reserved for delivery trucks and services, and mobile plant.
• A path for Supply staff only to use for "manually pushed delivery trolleys" into the hospital back entrance.
• An area of limited access described as "Path of Safe Travel (Plant and Vehicle Exclusion Zone)". The accompanying description stated this area was "a plant and vehicle exclusion zone making it safe for staff that are required to be in this area to walk or push manual trolleys." This is the area where Mr Singh was driving a forklift in July 2024.
• Another area for Environment Staff.

• [14] Within the 'Plant and Vehicle Exclusion Zone', there remained a need for supplies to be moved. But where, for example, these supplies were on a pallet, they were required to be moved manually using pallet jacks supplied for that purpose.

• [15] Mr Singh cannot recall if he received this email. I am satisfied he did, although it appears he may not have looked at it carefully at the time. The new traffic management plan was printed out and displayed on notice boards in the warehouse and office. Further, the fact that the changes were made at the time makes it very probable that Mr Singh was aware of them and was aware from about March 2024.

• [16] By about 17 April 2024, line marking of the various zones under the plan had been completed. For the Plant and Vehicle Exclusion Zone, physical bollards had also been installed. The bollards were painted bright yellow. The bollards were joined together by a chain to further demarcate the pedestrian zone from the adjacent vehicle zone. The chains were capable of being removed. There were photographs of the bollards in evidence. Those photographs contained a small sign and warning that forklifts were not to proceed in the pedestrian zone behind the bollards. Those signs on the bollards were affixed after the incident involving Mr Singh. For avoidance of any doubt, references by me to signage or warnings about the exclusion zone below are not to that signage.

• [17] On about 24 April 2024, a finalised version of the traffic management plan described above was issued. It was materially identical to the earlier plan. On the morning of that day, Mr Warren Norton received an email from the Health, Safety and Wellbeing advisor titled "Traffic Management Plan - Staff Training & Consultation". That email directed Mr Norton (and others) to provide their staff with a copy of the training document either via email or in printed form. The email's author also recommended that the "training be delivered during toolbox/handover/huddles to enable quick delivery and compliance." The email required a record of the training be made.

• [18] At about 2pm on 24 April 2024 during a regular tea break, Mr Norton conducted a toolbox meeting at which Mr Singh attended.

• [19] Mr Norton states that he told staff that, as a result of a couple of close misses in the loading area in the past, a new map had been made which had "forklifts only" and "pedestrians only" designated zones. He says he showed staff a laminated A3 copy of the map to highlight the different exclusion areas marked on the map. He says he pointed to the different exclusion zones on the map and said to staff things like, "this is the area where the forklift is only allowed to be used" and "this is the area which the pedestrians are allowed to use".

• [20] Mr Norton says he also told staff at this meeting that they all needed to be aware of these areas and inform anyone they saw in those areas who were not abiding by the new rules of the new requirements, such as truck drivers who work for different delivery companies.

• [21] At the end of the meeting, Mr Norton says he asked something along the lines of, "right, does everyone understand? Are we all good? Do you have any questions?". Mr Norton said everyone was silent. The meeting was not a long meeting, perhaps about 5 - 6 minutes all up. It might have been less. Mr Norton was not surprised that there were no questions, because the explanation was given to a team of qualified forklift drivers.

• [22] At the end of the meeting, Mr Norton asked attendees to sign an attendance sheet. The attendance sheet was in evidence. It was titled "Traffic Management Plan Training" and dated 24 April 2024. The sheet was signed by Mr Singh.

• [23] There is a dispute about what Mr Norton said at this meeting.

• [24] In Mr Singh's witness statement, he states "I refute the training document that showed that I attended a meeting in April of 2024, was about the kitchen stores area being a forklift exclusion zone. The meeting was about ensuring empty cardboard was put in the cardboard bin. Warren [Norton] the Stores Coordinator requested we all sign as attending."

• [25] I do not accept Mr Singh's evidence about the meeting. Firstly, it would appear improbable that Mr Singh has a specific recollection about the unremarkable topic of putting waste cardboard in a bin on that day. Second, the surrounding documentary evidence (described above and further below) clearly supports Mr Norton's evidence. Third, I considered Mr Norton to be a believable and credible witness, who made appropriate concessions. It is highly improbable that, having regard to the expectations on Mr Norton to speak about the traffic management and the subsequent emails and steps he took about that matter, that Mr Norton only spoke about cardboard boxes at the meeting.

• [26] In his oral evidence, Mr Singh then denied he was at the meeting.[1] Quite clearly, that evidence is not to be accepted at all. Mr Singh was at the meeting, as his own witness statement attests and the sign in sheet demonstrates.
• [27] This is a convenient point to address one issue in the proceeding, being Mr Singh's understanding of various documents and other communications. English is not Mr Singh's first language. Mr Singh's dealings with work colleagues at GV Health were in English. Mr Singh's two-up supervisor, Justin James, gave evidence he visited the warehouse regularly, as this was close to his office, and he would often interact with Mr Singh. All their conversations were in English. Mr James' evidence is he never had any issues communicating with Mr Singh and never had any concerns that Mr Singh did not understand what Mr James was saying to him. I accept that evidence.

• [28] Mr Singh's oral evidence to the Commission was a different matter. Mr Singh gave oral evidence without the benefit of an interpreter although it was quite clear that he had difficulty with various aspects of evidence. Given the wider evidence by witnesses that Mr Singh's communications at work were generally fine, as was his capacity to prepare written evidence, it appears that the stress of giving evidence in a court environment caused him some difficulty. I believe that was partly exacerbated by Mr Singh's propensity to provide (frequently self-serving) explanations, rather than answering the question asked.

• [29] With those observations, there were a number of aspects about Mr Singh's evidence that I found unsatisfactory, although I acknowledge that English is not his first language and, at least in the witness box, he had some difficulty expressing some matters. I have given Mr Singh some considerable latitude for many answers he gave orally that were simply not credible - the instance of him asserting he was not even at the toolbox meeting on 24 April 2024 is an example. Mr Singh's oral evidence did not improve his case.

• [30] Returning to the toolbox meeting of 24 April 2024, I am satisfied he did attend it and I am satisfied Mr Singh was aware of the updated safety plans at about that time.

• [31] In addition to the toolbox meeting, Mr Norton sent an email to the relevant employees about an hour and a half later titled "New Traffic Management Plan 24/4/2024". Mr Singh received this email. That email, which referred to the "Toolbox meeting today":

• Attached a copy of the A3 traffic management plan explained at the toolbox meeting shortly before.
• Asked everyone to familiarise themselves with the "designated zones".
• Also asked everyone to assist by showing "all drivers" if they are not aware or "you see them in the incorrect areas the map".
• Said that a copy of the new A3 map was now on the outside supply door (which joins to the new zones).
• Included a photograph embedded in the email with a picture of the new A3 plan stuck on the supply door.

• [32] The A3 traffic management plan clearly described the vehicle exclusion zone (now called the plant and truck exclusion zone) as a "Driver Waiting Zone". That is, it was a dedicated area where supply truck drivers could wait when their trucks were being unloaded and reloaded.

• [33] There were clear notes, with colour-coded headings matching the colours used for the different zones on the supply zone map. For the plant and truck exclusion zone, those notes further reiterated that:

• Bollards and chains were installed to prevent restrict access into the Loading Zone.
• Deliveries were permitted within the Plant & Truck Exclusion zone however they "must be transported via non-mechanical means".
• For deliveries, there were sections of chain which can be unclipped to get stock through "but the chain MUST be reclipped in place immediately after going through. It is not to be left open."

• [34] The notes separately stated that "Delivery personal not participating in the movement of stock MUST move to the Driver Waiting Zone while the stock movement is in process".

• [35] In addition to the freshly painted zone markings and new bollards, there was also a sign affixed above the vehicle exclusion zone (now called the plant and truck exclusion zone). The sign was large - based on the photograph in evidence it was approximately the size of a large wheelie bin laid sideways - and readily distinguishable from the wall it was affixed to. It was prominently labelled "DRIVER SAFETY ZONE". The sign also stated, prominently, "DRIVER MUST REMAIN IN EXCLUSION ZONE WHILE VEHICLE IS LOADING/ UNLOADING".

• [36] There was a dispute about when this sign was affixed. Mr Norton cannot recall the date it was put up. He generally believes it was around the same time as the announcement of the traffic management plan but "definitely" by May 2024. Ms McKinnon's evidence is that the sign about the exclusion zone "had been in place for over two months prior to the incident [in July 2024]". Mr Singh says the sign about the awning was not put up until after 17 July 2024. On this contest, I prefer the evidence of the Respondent although ultimately it makes no difference to my assessment that Mr Singh was aware of the requirements for that zone prior to when that sign was affixed. This sign was clearly for the benefit of external drivers. Relevant GV Health staff had already been informed about the zone.

• [37] Following the roll out of the finalised traffic management plan, Mr Norton's evidence was that he has not observed anyone driving a forklift in the plant exclusion zone nor had he been told about it happening (other than Mr Singh in July 2024). I have no reason to doubt that evidence and I accept it. Mr James gives similar evidence, which I also accept.

• [38] Mr Singh's evidence was that, up until the time of his incident (on 17 July 2024), "all forklift drivers drove through the yellow bollards and into the forklift exclusion zone." Mr Singh gave no examples, nor of the alleged frequency, of such actions. While I am prepared to accept that there may well have been instances where a forklift driver - quite possibly Mr Singh himself - entered the exclusion zone with a forklift in breach of the safety policy, there is no suggestion that Mr Norton or Mr James were aware of those practices. Having regard to the evidence of Mr James and Mr Norton that they were unaware, directly or indirectly, the most that can be said is that such incidents were isolated. If they were known to management, it is quite likely they would have been acted upon. It is also implausible that, having gone to some significant effort to introduce the new traffic management plan, that GV Health would promptly take a blasé attitude by ignoring that policy. The notion that the policy would be ignored is even less credible, given that the changes were introduced under the auspices of an independent WorkSafe inspection.

• [39] On 17 July 2024, Mr Singh was at work. Another employee, Ms Lorraine Landy, was working in the vehicle exclusion zone. Initially she was moving some air mattresses and then some empty pallets. At some point, she was using a manual trolley to assist her. The exact details of what she was doing is not essential but there is no dispute she was in the area and with a trolley.

• [40] At this time, Mr Singh was outside of the exclusion zone. He says he had been tasked with removing some empty pallets that were within the exclusion zone. Mr Singh drove a forklift through the supply area and entered the plant and truck exclusion zone on the forklift. He did so for the purpose of using the forklift to move the empty pallets. Before he entered, he beeped the horn of the forklift.

• [41] There is some CCTV footage of the incident,[2] although the video did not illuminate much other than from a distance.

• [42] Mr Singh's written submissions contends that the CCTV footage shows:

"8. The Applicant upon accessing the restricted area as per the CCTV footage provided to the Applicant's representative appears to manoeuver with normal speed between a couple of bollards, immediately banking away from a wheelie bin which was stationed in that immediate space, and in so doing appears to swerve at right angles which resulted in what appears to be a collision between the forklift that the Applicant was operating and a stationary low rise hand operated trolley.

9. The CCTV footage shows that at that very moment the collision occurs a female employee who was standing immediately behind the trolley appears to jut forward with her arms raised as she braces from the impact of the trolley to her legs.

10. We say appears because the vision is obscured on account of there being several wheelie bins which hinders the viewer from seeing the complete picture.

11. Following the collision with the trolley and the impact of this to the female employee the Applicant proceeds to retrieve an unload the Chep pallet which is obscured from view.

12. As the Applicant proceeds to reverse after securing the pallet the female employee appears to then move the trolley out of the way, there appears to be some brief interaction, but nothing to suggest a reaction of distress.

13. Moments later the Applicant is seen reversing from the supposed restricted area and then disappears. ..."

• [43] Broadly speaking, Mr Singh's written submission is a fair summary. In addition to those matters, I consider that the CCTV footage[3] shows:

• Ms Landy was not obscured or out of sight. She was standing upright and facing directly towards Mr Singh as he approached from outside of the exclusion zone in the forklift. She remained stationary as he approached and appeared to be keeping eye contact on the forklift or Mr Singh.
• Ms Landy was in a clear line of site for Mr Singh, as he approached from outside of the exclusion zone, as he initially entered through the gap in the bollards, and up until he had manoeuvred past her to collect the pallet he was after.
• Ms Landy continued to wait and watch while Mr Singh was manoeuvring. That is, she did not step in or move closer to the back of the forklift once it passed her.
• At the moment of collision, the rear of the forklift was fairly close to Ms Landy but not close enough to reach out and touch. Mr Singh's back was to Ms Landy (and the rear of the forklift was closest to her at that point.)
• It is unclear whether Mr Singh was aware his forklift had hit the trolley being used by Ms Landy but the better view is that he was not aware.

• [44] After the collision, Ms Landy made a complaint and completed an incident statement. Ms Landy was not called to give evidence and, for that reason, I do not consider it necessary to set it out. It is uncontroversial, however, that the forklift controlled by Mr Singh collided with Ms Landy's trolley, which in turn hit her shin. The injury caused was minor, namely some bruising.

• [45] On 18 July 2024, Mr James was notified of the incident. He spoke with Mr Singh about it that day. During that meeting, Mr Singh acknowledged that he entered the forklift exclusion zone but said he did not know this was a forklift exclusion zone. Mr Singh also said there was no incident or near miss.

• [46] After that meeting, Mr James completed a Forklift Incident Report Form, based on what they spoke about, which he provided on the same day to Mr Singh for him to review and sign. Mr Singh returned the Forklift Incident Report Form the following day, which he had now signed.

• [47] A few days later (the exact date is not clear), Mr Singh was told by email that he was not permitted to drive forklifts until further notice. The email also informed Mr Singh (as was the case) that WorkSafe had been notified and would be attending the site.

• [48] GV Health proceeded to investigate the collision as a disciplinary matter. It is not necessary to set out all aspects of that investigation process but Mr Singh was eventually represented by the HWU as part of that process. One matter of note from that process is a meeting held on 23 August 2024. At that meeting, Mr Singh repeated his statement that he was unaware that forklifts were not allowed into the exclusion zone where Ms Landy was.

• [49] Dealing with some uncontroversial matters, Mr Singh was an employee protected from unfair dismissal: s 382. He had completed the minimum employment period of employment and was covered by an enterprise agreement and, in any case, his salary was below the high income threshold.

• [50] For the purposes of s 385, Mr Singh was "dismissed", with the dismissal being at the initiative of the employer. The Small Business Fair Dismissal Code was not applicable and there was no claim the dismissal was due to redundancy.

• [51] The primary issue for determination was whether the dismissal was harsh, unjust and unreasonable and, if so, what if any remedy ought to be ordered.

• [52] I am satisfied that there was a valid reason for dismissal. GV Health's traffic policy was plainly appropriate and proportionate. Little more needs to be said about a policy aimed at improving pedestrian safety in a loading or delivery area where forklifts are operating.

• [53] Mr Singh was in breach of the policy, when he took the forklift he was controlling on 17 July 2024 into the plant and truck exclusion zone. As a result of his breach on that day, the forklift he was controlling hit a handheld trolley used by another employee, Ms Landy, in that exclusion zone. That collision caused the trolley to hit the shins of Ms Landy. Fortunately, she was not seriously injured although the capacity for greater injury was plainly present and there is a degree of luck involved that it was not more serious.

• [54] I repeat my conclusion, above, that Mr Singh was aware that there was a forklift exclusion zone. It is simply implausible that Mr Singh was unaware of the exclusion zone before 17 July 2024. I am fortified in this conclusion by a number of factors, beginning with the initial changes in February 2024, the new bollards and line markings in April 2024, the toolbox meeting on 24 April 2024 and the new plan emailed and explained to staff on that day. The plan was also affixed to the supply room door (which is a door Mr Singh used routinely). In addition, the area was also prominently signed. I am referring here to the signs about the exclusion zone That sign was also for the benefit of drivers, the identity of whom might change routinely. In short, the forklift exclusion zone was clearly marked and it was readily identifiable for people who did not work at GV Health. Mr Singh's knowledge of the exclusion zone was effectively acknowledged at the conclusion of the hearing.[4]

• [55] Mr Singh's contention that there was either no forklift training or clear instruction for the exclusion zone (there was for both) or that the instructions were inadequately given for Mr Singh, because English was not his first languages, were unpersuasive. On the latter issue, I am readily satisfied that Mr Singh could - and did - understand the instructions at the 24 April 2024 toolbox meeting and the related emails and posters about that issue. Those matters simply continued changes implement a few weeks earlier, albeit now with a greater degree of formality and finality.

• [56] I do not accept Mr Singh's explanation that he needed to enter the area because he was under time pressure or stress. I am not persuaded by Mr Singh's explanation. While I accept that would result in some timesaving, that time would be marginal and, more importantly, entirely at odds with the purpose of the exclusion zone. I also note that Mr Singh's explanation regarding time pressure is at odds with Mr Singh's statements that he was unaware of the policy. There would be no need to justify entry into the exclusion zone with a forklift due to time pressure if there was no exclusion zone - it would simply be the norm. As I have already concluded, above, the policy was expected to be complied with and it was certainly not the case that GV Health did not take compliance seriously. The best evidence, despite Mr Singh's vague assertions to the contrary, was that it was complied with.

• [57] I consider that the breach of the policy by Mr Singh was a serious breach of a policy. The policy was directed at safety (for GV Health employees and visitors alike), Mr Singh knew about the policy and unilaterally entered the exclusion zone regardless. In a statement signed by Mr Singh on 13 August 2024, he states that he did not see Ms Landy. I do not find this statement persuasive or credible, and it is possibly for that reason that Mr Singh's formal statement to the Commission did not include that explanation.

• [58] I consider the better view was that Mr Singh saw Ms Landy. While I acknowledge that an awareness of Ms Landy possibly made Mr Singh act more carefully, that is not borne out by the CCTV footage, but in any case knowingly entering into the exclusion zone while a pedestrian was present was all the worse. If it was the case that he was genuinely unaware of Ms Landy's presence, it demonstrates a particular lack of care in operating a forklift generally and, again, a lack of care made all the worse because it occurred in an area forbidden to forklifts.

• [59] The incident was a 'near miss' only in the sense that Ms Landy was fortunate to only receive minor injuries. It should not be overlooked, however, that another employee was injured and the potential for more serious injury was real.

• [60] In short, there is a sound, defensible and well-founded reason for Mr Singh's dismissal.

• [61] Mr Singh was notified of the reason for his dismissal and given an opportunity to respond. There was no unreasonable refusal to allow Mr Singh to have a support person - he was ultimately represented in discussions by his union. The dismissal did not concern unsatisfactory performance (as distinct from conduct). I do not consider that the size of the employer or lack of human resources specialised impacted the procedures followed in effecting the dismissal.

• [62] The union, on behalf of Mr Singh, made a short but fairly powerful submission to the effect that the conduct in question does not justify the "ultimate sanction" of dismissal. It was suggested that a more proportionate disciplinary result might be a final written warning, as permitted by the enterprise agreement that applied to Mr Singh's employment.

• [63] Partly in aid of that submission, Mr Singh refers to a Full Bench decision in IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 (IGA Distribution). That matter concerned a collision between forklifts, one of which was being driven by Mr Nguyen. In that case, Mr Nguyen was dismissed because the employer alleged he deliberately drove his forklift into another forklift. Initially, that is how the assessment of valid reason was primarily considered. At first instance, it was found that Mr Nguyen had not acted deliberately and the member at first instance concluded there was no valid reason for dismissal. That finding was made notwithstanding a separate conclusion that Mr Nguyen had driven the forklift recklessly and carelessly. On appeal, the Full Bench held that that the finding of Mr Nguyen's reckless and careless driving necessitated a conclusion that there was a valid reason for dismissal. The finding that Mr Nguyen did not act deliberately was undisturbed. On rehearing by the Full Bench there were, however, a number of factors that warranted upholding the finding that the dismissal was harsh, unjust or unreasonable overall. Specifically, the Full Bench considered the dismissal was harsh in that inadequate account was taken of the duration and history of Mr Nguyen's employment (being 23 years of unblemished work history), unjust in that the circumstances of the incident were improperly characterised by the employer in making the decision to dismiss Mr Nguyen and it was unreasonable in that the employer's conclusion about the deliberate nature of the incident was founded on flawed inferences.

• [64] While there is some superficial resemblance between Mr Singh's case and IGA Distribution - they both involved forklift safety breaches - there are a number of important differences. Factors in Mr Singh's favour are his economic circumstances. In particular, Mr Singh works in a regional location and English is his second language. It will be challenging to find employment comparable with the conditions he enjoyed at GV Health.

• [65] Against that is the nature of the valid reason. In IGA Distribution, Mr Nguyen was driving in an area where forklifts were clearly permitted, albeit recklessly and carelessly. By contrast, Mr Singh was driving in an area he should never have been in at all, which was specifically reserved for pedestrian safety. Also, in contrast to Mr Nguyen's 23 year period of employment, Mr Singh's period was much more modest - not a very short period of employment but not an especially lengthy period.

• [66] Finally, there is the question of Mr Singh's candour. On various levels, Mr Singh responses shifted and deflected responsibility for his own actions. Those deflections firstly included his claims he was unaware of the forklift exclusion zone (which I do not accept), then to generalised assertions of inadequate training or explanation (which I do not accept) and also to unspecified assertions that others often engaged in similar practices (which I do not accept). Perhaps the circumstances may have been different if Mr Singh was candid from the beginning but that is not a matter I need decide. This is also not a case where Mr Singh's initial responses lacked candour but he ultimately acknowledged wrongdoing. I consider that GV Health is justified with its submission that it lacks the necessary trust and confidence for the employment relationship to have continued.[5]

• [67] In all the circumstances, having regard to all the factors in s 387 of the Act, the termination of Mr Singh's employment by GV Health was not harsh, unjust or unreasonable.

• [68] It follows that Mr Singh's application must be dismissed. An order to that effect will be separately issued.[6]

A. Denton of Counsel, instructed by VGSO, for the Respondent.

[5] Streeter v Telstra Corporation Ltd (2008) 170 IR 1; [2008] AIRCFB 15 at [20].

[6] PR783404.

Printed by authority of the Commonwealth Government Printer