In our Spring 2012 Bulletin, we covered two decisions of the Fair Work Commission (Commission) in which employees dismissed for breaching safety policies alleged their dismissal was unfair. Both decisions demonstrated that serious safety breaches can be a valid reason for termination of employment, whilst also highlighting the importance of having in place comprehensive Work Health & Safety (WHS) policies and proper investigative processes to ensure that any resulting dismissals are undertaken fairly and will withstand tribunal or judicial scrutiny.

A number of recent unfair dismissal cases have covered this important and ongoing issue. In all of the decisions covered in this article, the Commission found that the dismissed employee’s particular breach of WHS policies provided a valid reason for their employer to dismiss them.

In two of the decisions, however, the Commission ultimately held that the dismissals were unfair due to deficiencies in the investigative process or the employer’s enforcement of its policies. This provides some salient lessons for employers in how to manage safety-related terminations.

The reasons for dismissal must be specific

Todd Smythe v Hansen Yuncken Pty Ltd1

This decision focused on the dismissal of two employees who failed to identify serious damage to the cable of a crane in their pre-start safety checks.

Senior Deputy President O’Callaghan found that damage to the cable should have been apparent to the employees at the time of completing their pre-start safety check and their failure to identify and report it could have had “catastrophic safety implications”. This meant their failure to identify the risk was misconduct and a valid reason for dismissing the employees.

However, Senior Deputy President O’Callaghan also found that the employer, Hansen Yuncken Pty Ltd, had not been sufficiently specific about what damage it was relying on in dismissing the employees. In order for the employees to properly respond to the allegations put to them, Hansen Yuncken should have explained this to them. Ultimately, Hansen Yuncken’s failure to do so rendered the employees’ dismissal unjust.

WHS policies must be enforced consistently

Harley Schofield v Broadmeadow Mine Services Pty Ltd2

This decision is particularly noteworthy as, despite finding that  the employer had a valid reason for dismissing two mine workers, the Commission ordered the employees be reinstated to their previous positions.

After conducting an investigation into the incident, Broadmeadow Mine Services Pty Ltd (BMS) sacked the employees for using a “driftrunner” (an underground personnel carrier) as an elevating work platform, in breach of the mine’s safety requirements.

Vice President Hatcher considered that the employees’ breach of the mine’s “Life Saving Rules” (Rules) was a valid reason for dismissing the employees, but held that their dismissals were unfair because:

  • the two employees had observed other workers using driftrunners as elevating work platforms under the direction of senior personnel;
  • the dismissed employees themselves were directed to use the driftrunner as an elevating work platform by their supervisor;
  • the employees had followed safety procedures by completing safety checks (albeit incorrectly) prior to commencing the work, meaning their breach of safety rules was negligent rather than wilful;
  • previous contraventions of the Rules had not resulted in dismissal; and
  • both employees had unblemished safety records.

The employee must be given a fair chance to respond

Brenda Plunkett v Thiess Pty Ltd 3

In this decision, the Commission found that Thiess Pty Ltd was justified in dismissing an experienced truck driver who ignored  an alarm on her vehicle which required immediate shutdown, and drove a further kilometre, causing significant damage to the truck. This amounted to a breach of the safe operating procedures of the truck that were well known to the employee.

Commissioner Stanton rejected the employee’s argument that she was justified in keeping the truck moving despite the alarm because she believed she could not stop safely until she found a safe place to stop. He went on to find that the employee’s failure to stop was a contravention of Thiess’s policies and amounted to serious misconduct.

Commissioner Stanton also examined the procedure Thiess followed in dismissing the employee, finding that it was clear that she was informed of the reason Thiess proposed to dismiss her and that she had been given “ample opportunity during the investigation to put forward her explanation for her conduct”.

Misconduct after a safety breach may provide valid grounds to terminate

Allan Pereira v Toll Energy Logistics Pty Limited4

This case concerned an employee dismissed for backdating a Job Hazard Analysis (JHA) which he initially failed to complete.

The employee tore the skin from  both sides of his thumb when he was performing maintenance on a fuel storage tank. After reporting the incident, the employee was asked whether he had completed a JHA. The employee admitted that he had not.

At the direction of a safety advisor, the employee subsequently completed  a false JHA and backdated it to the date of the incident. The employee altered the JHA on two further occasions, again at the suggestion of the safety adviser.

Toll found that the employee was dishonest in falsely completing a JHA and dismissed him accordingly.

Despite the fact that he falsely completed a JHA at the suggestion of his supervisor, Commissioner Williams upheld the dismissal. He found that failing to complete a JHA in the first instance and subsequently backdating one dishonestly were misconduct and valid reasons to dismiss the employee.

In dealing with the involvement of the safety supervisor, the Commission found that the dismissed employee’s decision to follow his suggestions to backdate the JHA was not an “ill-considered spur of the moment once-off act”. Rather, the employee was happy to modify the JHAs on two further occasions. In these circumstances, the Commission found that the safety advisor’s involvement did not excuse the employee’s own actions.

Accordingly, Commissioner Williams upheld the dismissal.

Giving due consideration to the employee’s response is critical

Henry Chai v Chubb Fire & Security Pty Ltd 5

In this case, the Commission rejected an electrical worker’s claims that he had been inadequately trained in safety procedures, upholding his dismissal for repeated safety breaches.

In July 2014, the employee received a written warning from Chubb Fire & Security Pty Ltd (Chubb) for failing:

  • to complete the appropriate risk assessment before commencing a task;
  • to comply with Chubb’s EH&S ladder procedure; and
  • to appropriately apply Chubb’s “lock-out tag-out” procedure.

​The employee was directed to undergo further safety training and also told he would be subject to random safety audits within the next six months.

One such safety audit occurred three months later, which identified further safety breaches.

Chubb accordingly advised the employee of these safety breaches in writing and told the employee he would need to respond  to the matters at a meeting scheduled the following day. While accepting the employee’s explanation of his behaviour in relation to two of the breaches, Chubb subsequently dismissed the employee for failing to complete risk assessments and incorrectly wearing protective clothing.

Commissioner Bull upheld the dismissal, noting that Chubb had:

  • formally warned the employee in relation to his initial safety breaches;
  • notified him of the reasons for dismissal;
  • provided the employee with an opportunity to respond to those reasons; and
  • considered his explanations (evidenced by it dropping two of the four allegations).

Bottom line for employers

These cases demonstrate that breaches of an employer’s safety policies can provide lawful grounds to dismiss an employee.

However, even when such a breach is established, employers are still required to afford procedural fairness to their employees before making any decision to terminate employment on the basis of a safety breach.

This requires putting any alleged safety breaches squarely to an employee, and inviting and considering any response from them.

Employers must also ensure that their safety policies are enforced consistently and fairly, as failing to discipline one employee for a safety breach may render it unfair to dismiss another employee for a similar breach at a later date