Key Points: It's unusual, but not impossible, for a fair and just termination for breaching safety rules to still be considered harsh.

The recent case of Paul L Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883 has highlighted Fair Work Australia's acceptance to reinstate employees validly terminated for breaches of workplace safety policies and practices if the termination was "harsh", or as was found in this instance, had a disastrous effect on the employee's life.

As we will see, however, this case turned on its own facts and employers and employees alike should be cautious about drawing conclusions as to whether a safety-based termination will be deemed "unfair" if challenged before Fair Work Australia.

The facts of the case

Mr Quinlivan was employed by the Norske Skog Paper Mill for approximately 20 years.

When the plant was shut down for maintenance, he began the task of cleaning a tank, which was a physically demanding job in a warm, dark and damp environment. As the plant was in shutdown, additional signage had been placed at the entrances to the plant reminding employees that safety glasses must be worn at all times.

Mr Quinlivan did not put on the safety glasses he was required to wear because, he said, there was not enough light and the glasses fogged up due to the warm, damp atmosphere and his perspiration.

Over several hours, he was repeatedly reminded by supervising staff to put his glasses on, as well as of the safety risks of not wearing glasses and the presence of the signs. His supervisors twice offered him safety glasses, to which he responded in a generally discourteous manner.

His employment was then terminated because of his repeated breach of safety policies and practices in failing to wear the safety glasses despite prominent signage and instructions to do so, and a separate matter concerning an alleged failure to follow a lawful direction given by his supervisor with respect to modification and use of a tool.

Mr Quinlivan applied to Fair Work Australia under section 394 of the Fair Work Act 2009, claiming that his termination was harsh, unjust or unreasonable.

Was his dismissal harsh, unjust or unreasonable?

In determining whether Mr Quinlivan's dismissal was harsh, unjust or unreasonable, Vice President Lawler turned to section 387 of the Fair Work Act. He considered Mr Quinlivan's disciplinary history (which consisted of minor incidents), as well as the employer's obligation to comply with "onerous" State OHS legislation.

Vice President Lawler held that Mr Quinlivan's failure to wear safety glasses (despite repeated instructions to do so in accordance with safety policies and practices) and his "disdainful and abusive responses" to his supervisors constituted "relatively serious misconduct" and a valid reason for dismissal. He did not, however, find that Mr Quinlivan engaged in misconduct in the form of a refusal to obey a lawful direction with respect to a tool.

Vice President Lawler pointed out that if a dismissal is not unjust or unreasonable, it could still be deemed harsh if it would have a disastrous impact on the employee's personal and economic situation.

Mr Quinlivan was 44 years old. He had been employed at the mill for 20 years, had limited education, no trade, no post-school educational qualifications, he had been unsuccessful in finding another full time job since his termination despite "serious efforts" to do so, and he had a mortgage and family to support:

"Realistically, the applicant faces the prospect of long-term unemployment or underemployment. His family faces severe financial hardship. There is a real risk that he will lose his house. His marriage will suffer increased stresses. His wife's depression could well be exacerbated. All these circumstances are likely to impact adversely on his young daughters."

In these circumstances, Vice President Lawler found that the termination was harsh and therefore Mr Quinlivan had been unfairly dismissed. He ordered that the applicant be reinstated but sanctioned Mr Quinlivan by refusing him his lost wages from the date of dismissal to reinstatement, approximately $18 000, because of the seriousness of his misconduct.

So how should employers handle a similar situation?

Although in this instance, a court found a termination for an OHS breach to be harsh, unjust or unreasonable, such findings are not common and this case is somewhat novel.

Employers should not interpret this decision to mean that employment should not be terminated where there is a serious breach of workplace safety policies and practices. This case turned on its particular facts, as Vice President Lawler noted:

"If the applicant had substantially lesser service, had not been a middle aged man with very poor employment prospects for whom the dismissal has such personal and economic consequences or if it had been brought home to him at any time on 2 September 2009 that a further breach would have serious consequences, I would not have concluded that the dismissal was harsh."

As with any termination, the key is to make sure that your organisation and your people understand their obligations under the Fair Work Act when terminating someone's employment, and that the dismissal is warranted given the nature of the breach and all the relevant circumstances.