26 August 2020
The Full Bench of the Fair Work Commission has upheld the dismissal of an employee with 30 years’ service and a satisfactory safety record after the employee breached a key safety protocol in which he had received adequate training.
The Full Bench’s recent decision highlights key considerations that employers must turn their minds to before terminating an employee’s employment for breaching safety protocols. A failure to take account of these considerations will expose the employer to a risk that the dismissal will be found to be harsh, unjust or unreasonable and result in an order of compensation for the employee or reinstatement.
Mr Trevor Knowles (Employee) was a long-standing worker of the employer (BlueScope) with around 30 years’ experience. In his role, the Employee was required to drive overhead cranes to move steel coils within a warehouse in the Illawarra region. On 5 September 2019, the Employee operated a crane in a manner inconsistent with his training and documented safety procedure policies of BlueScope which caused a steel coil to be damaged and a risk that the steel coil could be tipped. Although no-one was in the vicinity of the steel coil, BlueScope terminated the employment of the Employee on 1 October 2019 for breaching the process for moving the coils set out in a safety procedure policy.
At first instance, the Employee was successful in his application to be reinstated to his position. In overturning the original decision of the Commission, the Full Bench examined the following key issues.
Key consideration 1: Is a ‘technical’ safety breach a valid reason to dismiss?
To meet the threshold question of whether there is a valid reason to dismiss an employee for a safety breach, the Full Bench confirmed that an employer must show that the employee has breached their safety obligations.
In this case, BlueScope relied upon the safety procedure policy which set out the correct manner to handle steel coils and the fact that the Employee performed his task inconsistently with this policy.
At first instance, the Fair Work Commission found that the mere fact that the Employee performed the task inconsistently with the safety procedure policy did not constitute a safety breach. The primary reason that the Fair Work Commission relied upon in this finding was that the Employee did not cause a safety risk or incident as there was no one in the vicinity of the steel coil who could have been injured as a result of the Employee not following the safety procedure policy correctly.
On appeal, the Full Bench rejected this reasoning. The Full Bench found that the safety policy procedure prescribed that the correct method was to be performed irrespective of whether there was anyone in the vicinity of the steel coils. In doing so, the Full Bench endorsed a wider interpretation of what constitutes a safety breach, finding that an actual risk of injury to a person is not required for conduct to be classified as a safety breach. In this case, the Full Bench effectively supported the employer’s rights to have a zero-tolerance approach to safety breaches. This is because the Full Bench determined that a failure to perform a task in accordance with a safety procedure policy, in a manner which could have led to an injury in other circumstances, was a safety breach.
As such, the Full Bench found that the Employee had committed a safety breach and there was a valid reason to dismiss.
Key consideration 2: Is the dismissal consistent with the safety culture of your business?
The Full Bench reiterated that an employer, if it wishes to rely on a safety breach to terminate an employee, must:
In this case, BlueScope relied upon the safety procedure policy, contemporaneous accreditation training (both written and practical) on the particular safety procedure policy and also previous disciplinary action taken against the Employee. The accreditation training was conducted two and a half months prior to the safety breach and this proximity led the Full Bench to find that the Employee’s conduct demonstrated a “disregard” for the safety policy. Further, the Full Bench found that BlueScope had not condoned the Employee’s practice of handling steel coils in a manner inconsistent with the safety procedure policy even though there was evidence of prior conduct in that regard.
Key consideration 3: Can an employer rely on a year-old final warning for a safety breach on an unrelated task?
The Full Bench also examined whether reliance could be placed on an employer’s final warning issued 12 months previously, in relation to an unrelated safety breach.
In this case, BlueScope issued the worker a final warning in September 2018 for failing to comply with a different safety procedure policy. At first instance, the Fair Work Commission found that the final warning issued to the Employee was in relation to conduct that was “totally different” to the safety breach central to the unfair dismissal claim. As such, the Commission did not factor this earlier safety breach, or the final warning itself, into the assessment of overall harshness of the dismissal.
On appeal, the Full Bench found that the final warning was based on a failure to follow a safety procedure policy and the written final warning mandated that the Employee followed and adhered to all safety procedure policies going forward. The Full Bench found that by failing to have regard to the earlier safety breach or the issuing of a final warning, the earlier decision did not take into account a material consideration.
While the above were key considerations in the case at hand, in an unfair dismissal claim the Fair Work Commission must also take into account each item in the criteria set out in section 387 of the Fair Work Act 2009 (Cth). This criteria is wide-ranging and provides that the Fair Work Commission can take into account any matters that it considers relevant. This will often include the age of the employee, their length of service and future employment prospects.
In this case, the Full Bench found that even though the employee was 64 years old, had 30 years of service with BlueScope and a good employment record, these factors did not weigh so heavily as to render the dismissal of the Employee harsh, unjust or unreasonable.
Lessons for employers
To ensure the termination of an employee for a safety breach is lawful, you should, as an employer, always keep in mind the key considerations addressed above, including:
It is important to note that each unfair dismissal case will have its unique considerations. As an employer, you must evaluate these considerations when determining if the dismissal may be found harsh, unjust or unreasonable.
Authors: Michael Selinger & Michael Hope
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.