A Full Bench of the Fair Work Commission has recently confirmed it is necessary for the Commission to consider the totality of an employee’s conduct and attitude towards workplace safety when determining whether a dismissal was harsh, unjust and unreasonable.
Implications for employers
This important decision clarifies how previous warnings, including final warnings, are required to be considered by the Commission in determining an unfair dismissal application. In particular, the Commission must have regard to the employee’s conduct in totality when determining whether their dismissal was harsh, unjust or unreasonable.
Metro Quarry Group Pty Ltd (Metro Quarry) operates a sand mining business in Victoria. When it acquired the business in 2013, Metro Quarry identified that the business had a “lackadaisical” safety culture. To address this, Metro Quarry implemented an array of new safety management systems, including creating an in-house safety management officer, new policies in respect of personal protective equipment, a zero tolerance drug and alcohol policy, and retraining all employees on key safety competencies.
Mr Ingham was employed as a maintenance worker. He was dismissed on the basis that he had demonstrated an unwillingness to adjust to the new safety culture. In particular, Mr Ingham:
- received a first and final warning for attempting to repair a power supply unit without the requisite skills and in breach of company policy;
- failed to wear appropriate personal protective equipment, including when directed;
- “impertinently wiggled” his fingers in the direction of Metro Quarry’s officers – indicating to Metro Quarry that he had not lost any fingers and did not need to comply with Metro Quarry’s safety standard; and
- attended work impaired by alcohol and twice failing a blood alcohol content test in breach of Metro Quarry’s zero tolerance alcohol and drug policy.
Decision at first instance
At first instance, Commissioner Bissett found Mr Ingham’s dismissal was unfair because:
- it was harsh and unreasonable for Metro Quarry to rely on the first and final warning as there was an inconsistency between the safety report created in respect of the incident and Mr Ingham’s disciplinary report; and
- although Mr Ingham contravened the zero tolerance drug and alcohol policy, the policy did not specify that termination may result from a breach. In any case, the Commissioner determined that breaching the drug and alcohol policy did not warrant termination.
Decision on appeal
The Full Bench overturned Commissioner Bissett’s decision and found that the dismissal was not unfair. In reaching its decision, the Full Bench held Commissioner Bissett:
- failed to correctly apply the “harsh, unjust or unreasonable” test by placing too much weight on the warning and failing to consider Mr Ingham’s conduct as a whole. The test should have been applied having regard to Mr Ingham’s conduct in totality; and
- was not able to conclude that because the alcohol and drug policy did not explicitly say that termination may result from a breach, that Mr Ingham’s dismissal was harsh, unjust and unreasonable. The alcohol and drug policy specified that a breach of the policy would be judged on a case by case basis and employees would be subject to the Metro Quarry disciplinary procedure.
The Full Bench found Mr Ingham’s breach of the alcohol and drug policy was the “final” straw in a long line of work health and safety breaches and represented a consistent pattern of non-compliance with the safety culture required by Metro Quarry. As a consequence, the Full Bench dismissed Mr Ingham’s application.
Metro Quarry Group Pty Ltd v John Ingham  FWCFB 47