Serious Safety Breaches – Upholding Dismissals
Published on July 7, 2011
As a result of the overhauled Unfair Dismissal regime in the Fair Work Act 2009, dismissed employees now have a greater capacity to dispute the ‘fairness’ of their dismissals. Fair Work Australia (FWA) is required to assess the fairness of a dismissal by reference to whether the dismissal was ‘harsh, unjust or unreasonable’, a test which examines the employer’s assessment of whether an employee’s conduct justifies dismissal. The tension inherent in this test is particularly apparent where an employer has obligations arising under relevant health and safety laws (such as the upcoming harmonised Workplace Health and Safety Act, which imposes a specific statutory duty on every employee to comply with the employer’s safety instructions) and an employee’s conduct results in a risk to workplace safety. In order to ensure that a dismissal is an appropriate response to such conduct, the employer must give due consideration to the seriousness and circumstances of the conduct and be aware of the factors that may lead to findings of unfairness.
A number of recent FWA decisions have upheld dismissals in a range of different circumstances. These include circumstances where a gas plant worker attended to duties without possessing a work permit for a particular day (Chadwick v Woodside Energy Limited [2011]); where a fuel tank driver was caught operating a mobile phone whilst driving his tanker (Starkey v Cootes Transport Group Pty Limited [2011]); and where a barge engineer breached a zero-tolerance alcohol policy following an official work function (Dowling v Atwood Oceanics Pacific Limited [2011]). In each case the employers had instituted policies regarding the conduct breached, communicated the occupational health and safety rationale for the policy, enforced the policy consistently, and afforded the employee appropriate procedural fairness before dismissal.
However, the recent case of Lawrence v Coal & Allied Mining Services Pty Ltd [2010] illustrates the ongoing tension between the need for safety compliance and the principles of procedural fairness. In this instance, a senior production engineer had, without authorisation, removed a number of isolation locks from a pipeline that had been left engaged by repair workers. The employee was aware of the employer’s safety policy which required isolation locks be applied before any repair work could be undertaken along the pipeline. The employer considered this removal a serious breach of its safety policy and dismissed the employee notwithstanding the employee’s unblemished employment record of 28 years.
Although the dismissal was found to be fair by FWA at first instance, this was overturned on appeal by a majority of the Full Bench of FWA. The Full Bench cited the fact that the employee had driven alongside the length of the pipe immediately prior to the locks’ removal, and had assessed that there were no workers operating on the pipe who would be liable to injury by their removal. The Full Bench held that although the policy breach constituted a valid reason for dismissal, the dismissal was unjust since the employee had assessed that the risk of injury to workers was virtually non-existent. The Full Bench also considered that the employee’s age and length of service rendered the dismissal harsh in the circumstances.
This decision illustrates that a dismissal for a serious safety breach may still be unfair notwithstanding the existence of a clear and legitimate safety policy, particularly if the employee turns their mind to the circumstances relevant to the safety policy prior to committing the conduct that constitutes the breach. Furthermore, the decision illustrates that the age or experience of the dismissed employee is relevant to the question of fairness. Therefore, to ensure compliance with relevant Unfair Dismissal laws, an employer should ensure that an appropriate safety policy is in place and clearly understood by its employees. The employer should also:
- objectively assess the seriousness of the conduct and circumstances;
- afford the employee an appropriate level of procedural fairness through an appropriate investigative process; and
- consider the particular characteristics of the employee concerned.
By complying with these obligations, an employer can bolster its protection against unfair dismissal proceedings whilst preserving its freedom to deal with serious workplace safety concerns. However, professional legal advice should always be sought if an employer remains unsure of the appropriateness of disciplinary action.