Employment Law News October 2011

When is the dismissal of an employee for breach of OH&S standards or safety policies considered “harsh, unjust or unreasonable”?

In the case of Wililo v Parmalat Food Products Pty Ltd [2010] a forklift driver was dismissed for a number of breaches of applicable safety regulations. Among other things, the driver was found to have placed himself under a forklift load that was not secured.

Commissioner Cargill of Fair Work Australia (FWA) initially found that: 

1. The driver’s actions constituted “serious misconduct” (pursuant to Regulation 1.07 of the Fair Work Regulations 2009) sufficient to justify the termination of his employment; and
2. The dismissal was “procedurally fair” in that the driver was clearly informed of the reasons for his dismissal, was given an opportunity to respond, and was allowed a support person present at all relevant meetings.  

However, Commissioner Cargill ultimately concluded that the dismissal had been harsh and therefore unjustified on the basis that:

1. The driver had not been shown nor given an opportunity to comment on CCTV footage of the relevant incidents; and
2. The driver had merely been “careless” and had not deliberately engaged in dangerous practices.

On appeal to the full bench of FWA, however, Commissioner Cargill’s initial findings were overturned. The full bench found that the dismissal had been justified given that the misconduct complained of by the employer was sufficiently serious to justify termination, and the driver had been dealt with fairly throughout the dismissal procedure. The full bench held that the employer’s failure to show the driver CCTV footage of the incidents in question was not unfair in the circumstances. Further, given the seriousness of the driver’s misconduct, the full bench found that it was irrelevant that the misconduct was not deliberate or wilful.

In Lawrence v Coal & Allied Mining Services Pty Ltd [2010] Commissioner Macdonald of FWA found at first instance that the dismissal of a mining employee for serious breaches of safety policy, consisting of deliberate breaching of isolation procedures concerning a water pump, was harsh and unjust.  

The employee in question had 28 years’ worth of service with the employer.

The employee had made a thorough check of the pump system in question before breaching the isolation policy, and had satisfied himself that there was no risk of injury to other employees or contractors. The employer contended that it was irrelevant that risk of harm was negligible, since the employee had deliberately breached a safety procedure which carried the risk of possible injury. Given the risks associated with the industry and the potential seriousness of the misconduct, Commissioner Macdonald found the employee’s dismissal to have been valid and fair. However, on appeal, a full bench of FWA resolved by a 2-1 majority that the dismissal had been harsh and unjust, given the 28 years of service of the employee and his previously flawless record of safety and service. Further, the dismissal was said to be harsh and unjust given the employee’s age (55 years), the unlikelihood of his finding similar work with a new employer, and the fact that he was the sole breadwinner for his family. The employee was reinstated upon an order from FWA.