The Fair Work Commission has shown that it is taking a tough stand on safety, with three recent decisions finding that safety breaches by employees were enough to justify dismissal.
In Plunkett v Thiess Pty Ltd1, Commissioner Stanton found that Thiess was justified in terminating the employment of an experienced mining truck driver after she ignored a category 3 warning alarm which required her to immediately shut down her mining haul truck.
The driver had been employed by Theiss at the Mt Owen Mine since 2011, and was operating a CAT793F haul truck down a sloping ramp when the category 3 warning alarm was activated due to an oil leak. The category 3 warning alarm, which is activated where there is potential for severe injury or death to occur, requires that the driver immediately shut down the engine.
When the alarm sounded, rather than immediately shut down her truck, the driver continued to travel for 1 minute and 36 seconds before stopping. Theiss dismissed the driver for a serious breach of its safety procedures. It argued that she was fully aware of the procedures but chose to disregard the warning alarm, despite the potential for severe injury or death, and damage to the truck.
The driver contended that she had acted consistent with what she understood to be the safe operating procedures in existence at the time of the incident, as she believed that an immediate shutdown warning meant that she needed to stop the vehicle at the nearest safe location. The driver stated that she had made the decision to stop the truck and shut it down at the bottom of the ramp as she thought it would create a greater risk if she stopped the vehicle on an incline.
Commissioner Stanton found that despite the vigorous defence mounted by the CFMEU on behalf of the driver, there was a valid reason for her dismissal and she had been afforded a “fair go all round”. In coming to this conclusion, the Commissioner placed particular emphasis on the premise that Theiss was entitled to expect compliance with its express safety polices and transport rules, and that the driver had a “wilful disregard” for safety instructions.
In Conlon v Asciano Services Pty Ltd T/A Pacific National Pty Ltd2, Pacific National was successful in defending its dismissal of a 63 year-old train driver, who had over 30 years’ driving experience, after he failed to see and respond to two signals and was 120 seconds away from colliding with another train.
The train driver was driving a freight train with a co-driver between Junee and Sydney, a route with which he was very familiar, when he first failed to see a cautionary signal and then was slow to respond to a red signal. Once the train driver had noticed the red signal, he applied the emergency breaks and the train eventually stopped more than 80 metres past the signal. The train driver was dismissed after an investigation found that his conduct posed an imminent risk to the health and safety of himself, his co-driver and others. It also found that he had seriously breached Pacific National’s policy, safety procedures and his own obligations as a Rail Safety Worker under the Rail Safety National Law (NSW).
Senior Deputy President Hamberger found that the dismissal was not unfair, despite taking into account the train driver’s age, experience and the significant consequences the dismissal would have on his personal circumstances. Further, his Honour said that looking out for the signals and acting in accordance with the signals, is one of the one of the most fundamental aspects of a train driver’s duties and, in this case, the train driver failed to follow the signals for no good reason. His actions therefore created a significant risk of a serious accident with the potential to cause death, and also raised doubt as to whether he could be relied upon to drive safely into the future.
Similarly, in Pereira v Toll Energy Logistics Pty Limited3, Commissioner Williams upheld the dismissal of a Grogon fuel officer who falsified a safety document, despite the fact that he was instructed to do so by the company’s occupational health and safety (OHS) officer. The Commissioner held that the worker’s falsification was not spur of the moment. Although he took into account the company’s failure to consider the OHS officer’s involvement, the Commissioner concluded that the company had made the right decision because, in the context of safety, it is the employer who bears the heavy statutory burden to which others, including the Commission, are not subjected.
Bottom line for Employers
If the fundamental duties of an employee relate to safety and the employee has breached these duties or engages in conduct that puts themselves or others at serious risk of injury or death, the Commission is likely to place a greater emphasis on there being a valid reason for dismissal. While other factors, such as the employee’s length of service, age or personal circumstances are certainly relevant, these may carry less weight in such circumstances.
The Commission will always consider each case according to its own facts and circumstances, however employers should make sure they have detailed and up to date polices on safety, and that all their employees are aware of these polices and have been adequately trained.