When one time is one time too many: Serious safety breaches lead to fair dismissals

Author: Holding Redlich lawyer Ashleigh Mills
Publication: SmartCompany
Publication date:  30/05/18
Publisher:  Private Media

For the third time this year, the Fair Work Commission has upheld an employer’s decision to dismiss an employee who was found to have breached a cardinal safety rule in the workplace.

In each case, the breach of the relevant safety rule did not result in either incident or injury.

Taken together, these cases indicate the primacy with which employers are treating safety compliance, particularly in safety critical industries, and the willingness of tribunals to recognise non-compliance as a valid reason for dismissal.

The meat processing case

This case involved the conduct of a meat processor, trainer and assessor at JBS Australia’s Brooklyn meat processing site.

On June 27, 2017, the site’s foreperson observed the worker acting in non-compliance with one of JBS’ ‘corporate cardinal safety rules’, in that he had cut a piece of meat without first attaching his safety lanyard to the blade saw. On the employer’s case, attaching the safety lanyard before making any such cut was critical, as any unexpected detachment of the lanyard will automatically stop the blade saw’s blade and could therefore prevent serious injury. The worker was summarily dismissed as a result of his conduct on July 17, 2017.

The electrical industry case

This case involved three separate applications that were heard concurrently before the Fair Work Commission and which concerned employees engaged in the electrical power industry in New South Wales.

Each employee was summarily dismissed for their having breached a number of the employer’s central ‘Electrical Safety Rules’, together with other associated policies and procedures including the employer’s Code of Conduct.

The breaches involved failing to install control measures required when operating on or near high voltage power lines, and also the failure to record those control measures in mandatory risk assessment paperwork. Installing the relevant control measures, which in this case included ‘working earths’, was – on the employer’s case – critical to prevent or minimise the risk of one or more of the workers being electrocuted.

The three workers were terminated summarily as a result of their conduct on August 15, 2017.

The tram case

This was a case that involved a Melbourne tram driver who had been photographed using her mobile phone while operating a tram (albeit while the tram was stopped at a tram stop). The driver’s conduct was prohibited by her former employer’s ‘cardinal rules’ on the basis that using any handheld device, including a mobile phone, at any time while operating a tram was distracting and would increase the likelihood of being involved in a collision. The driver was terminated with notice as a result of her conduct on October 27, 2017.

In each of the meat processing, electrical industry and tram cases, no incident or injury resulted from the employee’s safety breach or breaches. In addition, all five dismissed employees had been employed for between six and 36 years at the time of their dismissal, and all bar one had virtually unblemished formal disciplinary records.

The Commission, however, found that in each instance the employer had a valid reason to dismiss the respective applicants, and that their dismissals were not in all the circumstances harsh, unjust or unreasonable.

In coming to that conclusion, the respective Commissioners took into consideration a number of factors including that:

• ‘safety’ and ‘safety compliance’ were expressed to be of critical importance in company policies or other communications that were distributed to all employees;
• the employees all worked in industries which involved an inherent risk of harm if safety policies and procedures were not followed;
• the employees had all been trained in the safety policies and procedures that they subsequently breached, and were aware of their obligations under those policies and procedures;
• in at least the electrical industry and tram cases, the employees argued that despite having admitted to acting in breach of the relevant safety rule, they were still ‘acting safely’.

In each case the Commission did take into account the respective employee’s length of service and work records, as well as the significant impact that their dismissals would have on the employees personally. While the respective Commissioners did express considerable sympathy for the employees in relation to those matters, ultimately, these factors were not enough to render the dismissals unfair.

Lessons for employers

However, and that all being said, employers must remember that the ability to dismiss an employee for a safety related breach will always depend on the circumstances of the individual case and is not – and should never be treated as – an unfettered right.

As the above-mentioned cases illustrate, employers must always ensure that:

• procedural fairness is afforded to employees, including that employees are given an opportunity to squarely respond to any allegation that they have breached a safety policy or procedure;
• similar situations, and similar breaches of safety policies and procedures, are treated consistently across the organisation and that the reasons for making (or not making) disciplinary decisions in each case are clearly recorded;
• employees are made aware of the primacy of complying with safety related policies and procedures and that, if they breach those policies and procedures, they may face consequences up to and including termination of their employment;
• in the case of ‘cardinal’ or ‘fundamental’ safety rules, employees are trained and/or assessed on their content on a regular and ongoing basis (i.e. not only at their initial induction).

The Commission’s decisions in each of the meat processing, electrical industry and trams cases are significant, as they demonstrate the seriousness with which both employers, and tribunals, are treating safety in the workplace in recent years and specifically in 2018.

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