Two decisions this year by the Full Bench of Fair Work Australia have considered the obligation of employees to comply with safety policies in the workplace.
In the first case a forklift operator used his arms, shoulders and head to balance an unstable load which he had raised on the forklift he was operating. Such action was in breach of the workplace safety policy of which the employee had full knowledge. The employee was dismissed for serious misconduct.
The Full Bench pointed out that obligations to comply with safety requirements in the workplace are of high importance and failure by an employee to comply must be dealt with appropriately otherwise it would send a message to the workforce that breaches could ‘occur with impunity’.
The Full Bench nevertheless emphasised the need for employers to still provide procedural fairness when dealing with discipline in relation to safety issues. The Full Bench then held that the employer had afforded that fairness, and therefore ‘it would only be if significant mitigating factors are present that a conclusion of harshness is open’.
Despite then taking into account as mitigating factors:
the Full Bench affirmed that the dismissal was not harsh, unjust or unreasonable.
The second case involved a shop steward who was terminated for using his mobile phone near highly flammable solvents in the workplace. Such use took place despite there being safety policies and signage prohibiting the use of mobile phones in the locality. The employee had 14 previous warnings for various breaches of the employer's policies in the previous four years, including his refusal on several occasions to wear safety equipment. The employer had dealt with each breach in accordance with its policies.
The Full Bench took into account the employee’s contention that the termination was a ‘conspiracy’ against him by management and that the termination would have a harsh impact on him because he had a young family.
The Full Bench found that despite the 14 previous breaches and warnings, the employee continued to show disregard for the employer’s policies. The Full Bench also acknowledged the significant adverse impact of the termination upon the employee. However, it considered that the employer had rightly lost trust and confidence in the employee’s preparedness to adhere to the policies in the future. The reason for termination was held to be valid and the dismissal process was found to be fair and just.
These decisions illustrate the importance of safety compliance in the workplace by employees but nevertheless stress that procedural fairness must still to be afforded in such instances even if there is a serious breach of safety.
Should you wish to know more about this topic please contact:
Ian Curlewis.........................................Michael Jensen
Partner...............................................Senior Associate
(08) 9288 6756.....................................(08) 9288 6944
ian.curlewis@lavanlegal.com.au..................michael.jensen@lavanlegal.com.au
