The Commission found that the language of the work order was very clear and unambiguous and that the Applicant’s long service and work history put him in a position where he should have known better and been aware that his employer’s “…safety policies are paramount”. The Applicant claimed that he was not made aware of a Maintenance Alert issued 6 months before the incident requiring the tension of wheel nuts be checked irrespective of whether or not retaining clips were fitted.
While the work order clearly required that the wheel nut tension be checked, the mechanic claimed that he was not required to check the tension of the wheel nuts where the wheels were fitted with retaining clips. In a recent NSW decision from March 2016, a qualified mechanic (who had been employed for 9 years) was summarily dismissed for failing to carry out a vehicle service in accordance with the work order. While the nature of the safety breach will be a compelling factor in determining whether termination of employment is an appropriate disciplinary outcome arising from a safety breach, a dismissal may still be unfair if the dismissal process is flawed or the employee’s conduct was not the only cause of the safety breach. This is a position that has also been echoed in numerous cases from the FWC in recent times. The NSW Industrial Relations Commission in a recent case has also acknowledged that “…there are statutory and common law duties to prevent accidents in the workplace and in terms of accident prevention, … must have an ability to remove from the workplace someone who has seriously breached or undermined policies designed to ensure a safe system of work…”. The FWC confirmed that safety breaches do not have to be deliberate to attract disciplinary action, saying that “ onduct that results from carelessness, inattentiveness, deficient concentration in balancing both immediate operational responsibilities and wider situational safety environments, or lack of application of learned rules, are not excuses for non-compliance, but the cause of non-compliance (which in turn give rise to safety risks)”. The FWC noted that the company “ set about to create a heightened awareness of safety” and that “ a safe workplace requires an employer commitment to introduce and maintain safety standards along with an employee’s capability to assimilate and express in routine actions appropriate safety behaviours”. By comparison, the employee did not provide a compelling account of how the safety incident occurred. At the FWC hearing, the company was able to provide corroborated accounts both of the safety incident itself and the investigation. The employee had received training and knew about the importance the company placed on safety in the workplace. The forklift driver was dismissed for breaching one of the company’s “Golden Rules” when he continued operating his forklift whilst a person was present in the ‘safety exclusion zone’. The Qantas case mirrors another recent FWC case where the dismissal of a forklift operator was not found to be harsh, unjust or unreasonable. Qantas dismissed the employee only after it had properly investigated the incident and considered all the evidence including the CCTV footage. The employee was not able to provide a plausible explanation for his conduct and the FWC found that his dismissal was justified in circumstances where he had previously been warned about his safety practices and was afforded procedural fairness during the conduct of the investigation into the collision. Despite this awareness, the employee was found to have deliberately caused a collision between his vehicle and a tug operated by another driver.
The FWC found that the employee had received adequate safety training and was aware of the correct safety procedures. In a recent case concerning the dismissal of a Qantas airline services operator, the FWC found that Qantas validly dismissed the employee following a spate of safety breaches. Importantly, the cases also show that a safety breach doesn’t necessarily have to be deliberate to justify dismissal, but the employee’s explanation will be a relevant factor to take into account when proceeding with any disciplinary action. Unfair dismissal cases provide guidance to employers when it comes to the factors to take into account when terminating employment as a result of health and safety breaches.Ĭases show that bodies like the Fair Work Commission ( FWC) place importance on the seriousness of the safety breach, whether the breach was wilful or careless and whether procedural fairness was afforded to the employee. By Nicki Milionis on ApPosted in Asia Pacific, AustraliaĮnsuring safety compliance in the workplace can sometimes result in disciplinary action against employees who fail to comply with safety requirements.
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