A recent case sheds light on the process for terminating the employment of employees in instances where there is an alleged safety breach. Although termination for the breach may constitute a valid reason under the Fair Work Act 2009 (Cth), it may still be considered harsh due to the process engaged in by the employer. A holistic approach to termination on these grounds must be adopted with employers considering the totality of the employee’s employment.

Implications for employers

Employers should continue to discipline an employee for safety breaches however, employers should have regard to all of the circumstances including mitigating factors when penalising an employee. While a safety breach may, on its face, amount to serious misconduct, employers should consider a range of issues including treatment of other similar breaches, employment history, financial and personal consequences on the employee and general mitigating factors before making the decision to terminate the employment of the employee.

Background

This decision examines the events surrounding the dismissals of two employees - Mr Schofield and Mr Winterton - from a coal mine run by BHP Billiton-Mitsubishi Alliance (BMA). Due to the factual similarities of the dismissals, the Fair Work Commission (FWC) heard both applications for reinstatement together.

Mr Schofield and Mr Winterton were dismissed from their employment after they were both found to have breached one of BMA’s “Life Saving Rules” which were alleged to have formed part of the mine’s safety and health management system, a system which is required to be developed, implemented, maintained and complied with under the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act).

The relevant rule required all personnel, including contractors, at the mine to protect themselves from a fall and falling objects if they are working above 1.8 metres. This obligation is more onerous than the obligation contained in the CMSH Act which requires safety measures to be implemented if individuals are working above 2.4 metres.

Mr Schofield and Mr Winterton breached this working at heights rule when they performed a task using a 1.95 metre high platform attached to a transportation device, known as a driftrunner. Mr Schofield and Mr Winterton were told by a senior employee, holding a statutory position under the CMSH Act, to use the driftrunner to carry out the task. Additionally, neither identified working at heights as a risk when completing the required BMA safe checklist. In response, the employer sought about terminating the employment of both Mr Schofield and Mr Winterton.

The termination process included a show cause process in which Mr Schofield and Mr Winterton were advised of the alleged breaches and they were both given an opportunity to provide written responses. Both responses included character references from former colleagues and supervisors. The employer considered the position in light of the responses received. Part of that consideration involved looking at the employment histories of both employees which demonstrated that neither had been involved in any safety incident prior to this one.

After considering the responses, the employment of both Mr Schofield and Mr Winterton was terminated. Specifically, the employer’s evidence was such that they were left with “no alternative” but to terminate the employment of both persons because of the failure to identify the height of the platform and the working at heights risk and breach of the rule.

Decision

Vice President Hatcher found that Mr Winterton’s dismissal was for a valid reason but was harsh. This decision was because of a number of mitigating circumstances relating to the event leading to dismissal. These broadly included:

  • the use of the driftrunner as a platform was impliedly condoned by other mine workers, including senior personnel, and the person directing Mr Schofield and Mr Winterton to use the platform was a senior mineworker holding a statutory position; and
  • the platform was only 15 cm above the 1.8metre limit, meaning it was not immediately obvious that they were working at heights. This was also below the legislative standard which requires working at heights measures to be implemented if persons are working at a height of 2.4metres or greater.

It was also considered that there were other alternatives rather than termination of employment in disciplining a breach of this kind. Specifically, the employer’s HR guideline suggested warnings, probation and/or suspension may be appropriate alternatives to dismissal. Essentially, the contention that the employer was left with “no alternative” but to terminate Mr Winterton’s employment was found to be incorrect.

The FWC also considered that differential treatment had been applied to other persons engaging in similar misconduct. Additionally, Mr Winterton’s employment history was unblemished and the termination of Mr Winterton’s employment had severe financial and personal consequences.

In considering Mr Schofield’s application, similar issues to those outlined above were considered by the FWC. Again, it was found that Mr Schofield’s dismissal was harsh notwithstanding the valid reason for the dismissal.

Both Mr Schofield and Mr Winterton were reinstated to their roles. However, neither party received an order for lost remuneration as the FWC’s view was both employees had breached a fundamental safety rule.

Harley Schofield v Broadmeadow Mine Services Pty Ltd; Mark Winterton v Broadmeadow Mine Services Pty Ltd [2014] FWC 9309 (24 December 2014)