Before disciplining an employee for breaches of workplace safety, it is important that employers consider whether they have done everything reasonably practicable to ensure that their employees can do their work safely. This was the message from Lander & Rogers Work Health & Safety partner Leveasque Peterson at a briefing for safety professionals and employers this week.
Peterson said that work health and safety laws around Australia are recognised by Australia's legal system as deserving the broadest possible interpretation to ensure a safe workplace for employees and to achieve maximum accountability for those who are best placed to control workplace risks.
"Safety-related offences are strict liability and the duty to ensure a safe work environment is held by both employers and employees. However, it starts with you as an employer and unless you can demonstrate that you have done everything practicable to ensure your workplace is safe, you are likely to fall foul of the regulator. Only once the work environment is safe does it then fall to employees to ensure that they take reasonable care for themselves and others." she said.
Co-presenter, Lawyer, Dr Dru Marsh, agreed commenting that the threshold question employers should be asking themselves when considering whether they are meeting their own obligations is can we do more? "You need to think about how the regulator would see things," he said.
It is critical that employees understand the hazards and the safety systems at their employer's workplace. Providing (and documenting) regular training of employees on these matters is essential. Employers should also ensure that their employees know that a breach of safety rules will lead to disciplinary consequences. After all, breaking safety rules can have terrible consequences.
However, Peterson and Marsh advised that caution should be employed in simply dismissing employees for breaches of safety duties. "Dismissing an employee for a relatively minor safety breach can actually damage an employer's safety culture," Marsh said. "You have to think about your workforce's perception when you dismiss an employee for a safety breach. Consultation and then discipline supported by further training for non-serious breaches is likely to send a better message to your workforce than instant dismissal."
Employers also need to be able to demonstrate that the punishment fits the crime," Peterson added. "They should implement performance management for contraventions, where it is reasonable to do so, rather than instant dismissal. Unless you are doing that, you are not setting yourself up for success if the regulator becomes involved."