A Cautionary Tale for Employers – Case Study of Pece Calovski v Opal Packaging Australia Pty Ltd [2024] FWC 1717  

Take away for Employers  

• A thorough and properly conducted workplace investigation is essential to support sound and defensible decision making.  

• An assessment of procedural fairness concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.  For that reason, the scope and conduct of a workplace investigation will be relevant to procedural fairness.  

• Employer must prove that a decision to terminate for misconduct was not predetermined, but was a decision made objectively based on careful consideration of factual findings and any explanation given by an employee.  

• The Commission can and will order reinstatement of an employee if appropriate. In that regard, deficient investigations may completely undermine a dismissal decision. 

Twice in one year, Opal, one of Australasia’s leading packaging companies and a member of the Nippon Paper Group has come under the Fair Work Commission’s spotlight for similar reasons.  

Both instances involve unfair dismissal for alleged serious misconduct following an investigation by the Employer.  

Yet, the Fair Work Commission ordered the packaging conglomerate to reinstate the fired employees with back pay and continuity of service in both these instances.  

This article examines the reasons for this decision of the Fair Work Commission in its recent judgement in Pece Calovski v Opal Packaging Australia Pty Ltd [2024] FWC 1717 (28 June 2024). 

Brief background of the case 

The Applicant, Mr. Calovski, an employee at Opal, the Respondent, was involved in a forklift incident on June 27, 2023. Mr. Calovski said that the incident was caused due to a failure of the breaks, which was described as “brakes being a soft-pedal”.  

After a workplace investigation, Opal determined that it was not the case and found that Mr. Calovski had hit the accelerator causing the incident. Additionally, Opal found that Mr Calovski had lied about the cause of the incident when relied on ‘soft pedal’ as the cause.  However Opal’s workplace investigation didn’t actually explore whether soft pedal was a cause or contributing factor. 

In deciding to dismiss Mr Calovski, Opal said it would have perhaps decided on an alternate to dismissal if Mr Calovski had not lied about the cause of the accident. 

Relevant Findings of the Commission  

• It was within the Opal’s means and control to undertake an investigation into what was accepted by both parties to be a very serious safety incident and rule out the known causes of soft pedal.  

• However, Opal’s investigation was deficient because although the forklift  entity that provides and services Opal’s forklifts was called out, it assessed its own forklift (that was involved in the incident) that it had serviced as being free from faults and it did not test for a cause of soft pedal. The accident site was cleared, and the forklift was returned to service that night.  

• Opal’s approach in response to the incident means that it has lost the opportunity to know the probable cause of the incident and has meant that the Mr. Calovski’s account was not fully explored before being dismissed as a lie. 

• The above factors weigh in favor of dismissal being harsh.  

• Additionally, it was found that there was unreasonable delay in providing the forklift’s service history despite requests from the Employee representative, and that Opal did not follow the investigation guiding principles in its enterprise agreement which require five business days to respond. 

• Reinstatement with back pay and continuity of service, were considered appropriate remedies in this case based on its factual matrix.  

Where did the Employer go wrong in this case? 

Commissioner Matheson held that there was another explanation (soft pedal) provided by the Employee that was no less plausible than the Employer’s belief that the incident was the Employee’s fault, and that by failing to properly investigate that explanation, Opal denied the employee procedural fairness.