By Clayton Payne, Special Counsel
Can a worker’s employment be terminated for a breach of safety policies?
Are workers entitled to have a support person of their choice present at discussions related to their dismissal?
The Fair Work Commission (the Commission) recently considered these matters in Hanley.
The employer employed the worker as a forklift driver for approximately five years.
The employer had comprehensive safety rules in place, which included exclusion zone procedures for pedestrians and forklift drivers, referred to as the “Golden Rules” (the Rules). The employer provided regular training to employees, including the worker, to ensure compliance with the Rules.
The worker went about his duties largely without controversy, save for a safety incident which occurred a year prior to the workers dismissal (the prior incident). As a result of the prior incident, the employer had warned the worker about safe work practices. The worker claimed that this warning led him to be, ‘…more vigilant in his attitude towards workplace safety thereafter.’
Ultimately, the worker was dismissed after he entered and proceeded to operate a loaded forklift in a safety exclusion zone in which a pedestrian was also present. This was in breach of the Rules.
After the worker failed to provide the employer with a satisfactory explanation for his conduct, the employer terminated the worker’s employment, citing a breach of company policy, and in particular, his failure to adhere to the Rules. The employer claimed that the worker’s breach amounted to serious misconduct which placed another individual at risk of injury.
The worker brought an ‘Application for unfair dismissal remedy’ under s 394 of the Fair Work Act 2009 (the Act), also claiming to have been refused the right to have his choice of support person present during the discussion at which the termination of his employment took place.
Senior Deputy President Richards of the Commission dismissed the worker’s application, finding that the dismissal was not harsh, unjust or unreasonable. In particular, it was found that:
‘By failing to give effect to his safety-related training, (the Worker) created a safety risk (to customers and fellow workers) that was fatal to the trust and confidence inherent to the employment relationship.’
When handing down its decision, the Commission also made reference to the fact that the worker was trained and familiar with the Rules, and must have been sensitive to the employer’s safety expectations, given the prior incident.
In relation to the worker’s contentions relating to the presence of a support person, the Commission found that while an employer cannot unreasonably refuse a request for a worker to have a support person present at any discussion relating to dismissal, the Act is silent on whether a worker is entitled to have a support person of their choice present. On this basis, the Commission did not support the contention that the denial of a choice for the support person amounted to unfairness for the purposes of the Act.
This case demonstrates that a breach of safety policies may be grounds for dismissal, particularly where a worker has been made aware of, and has had sufficient training in these policies. Clearly the level of misconduct in these circumstances is heightened where the worker’s failure to adhere to such policies has the potential to expose the employer to liability for a breach of its statutory obligations, and also where such a breach might endanger the safety of others at the workplace. In these cases, a decision leading to a termination of employment may be more clear cut.
Before a decision which could lead to a termination of employment is made, employers should think carefully about obtaining appropriate advice to limit the potential of being subjected to a successful claim relating to that termination.
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