Fair Work Australia (FWA) recently upheld an employer’s decision to terminate an employee after the employer lost all trust and confidence that the employee would carry out his responsibilities as a team leader to implement a safety policy at a worksite.
The employee worked as a team leader at a locomotive workshop in Port Hedland. The team was responsible for servicing and repairing locomotives. Occasionally, servicing would involve an employee crossing a gap between locomotives. The safety policy required a temporary platform to be placed over the gap for this purpose.
However in March 2009, one of the team members for whom the employee was responsible, crossed the gap between locomotives without the use of the temporary platform.
During a subsequent investigation, the employee as team leader acknowledged that he was aware of the danger of crossing the gap and that he was aware of a prior incident where another employee suffered serious injuries when he fell through the gap. The employee admitted that he had become complacent and did not accept responsibility for implementing the safety policy for the safety of his team. The employer concluded that the employee as team leader, did not have an attitude and approach to safety that was acceptable and terminated the employment.
The employee alleged that failure to implement this particular safety protocol was a common practice amongst all staff and was not implemented by any other team leader at the worksite. The employee also complained that no other team leader was investigated or dismissed for similar conduct on their part. The employee alleged the termination was therefore unfair.
FWA found that whilst the practice to ignore the safety policy was likely to be common amongst staff at the worksite, it was the employee’s responsibility as team leader to implement the safety policy and correctly address the breaches by his team members. FWA found the employee condoned the breach by team members who reported to him, and refused to acknowledge his responsibilities. FWA also noted that whilst no other team leader had been investigated, it was unlikely they would have been treated any differently.
FWA concluded that it was reasonable for the employer to lose trust and confidence in the employee for failure to implement his responsibilities as team leader. FWA ultimately found that the employer had a valid reason for the termination which was not harsh, unjust or unreasonable.
This case demonstrates that an employer has a right to expect that an employee responsible for implementation of safety protocols will do so and that a loss of confidence in the employee to implement their responsibilities regarding safety can be a proper reason for dismissal.
Should employers have any queries regarding staff termination procedures and occupational safety and health issues, please contact Ian Curlewis Partner on (08) 9288 6756 or ian.curlewis@lavanlegal.com.au or Michael Jensen Senior Associate on (08) 9288 6944 or michael.jensen@lavanlegal.com.au.
