Can a worker who has engaged in misconduct, leading to a safety breach, be summarily dismissed, without adverse consequences for the employer?
Is the appropriate response from the employer a matter of proportion?
These matters were recently considered by the Fair Work Commission in Singh v Fenner (Australia) P/L.
The worker was a mill operator. It was alleged that in February 2015, he intentionally placed his hand close to the rotating drum of a machine that was operating at high speed.
As a result, the employer terminated the worker’s employment on the basis of serious misconduct.
The worker had been engaged with the employer since August 2013.
An unfair dismissal application was subsequently lodged by the worker, who sought reinstatement.
The worker claimed that it was inherently unlikely that he intentionally placed himself in danger as alleged by employer and accordingly, his dismissal was unfair.
In response, the employer claimed that the worker’s action constituted serious and wilful misconduct.
The dismissal followed an investigation into the incident which had been conducted by a manager. According to the manager, he spoke to two Machine Operators who had witnessed what had occurred. Both of those Machine Operators provided the manager with a similar version of events and were, in his words, “horrified at what took place”, in that the worker had, “intentionally placed his hand within close proximity of the rotating drum”.
One of the Machine Operators claimed that when he saw the worker engage in this activity, he instinctively yelled at him to stop and asked the worker why he had done it. According to the Machine Operator, the worker did not reply and walked away. The Machine Operator later reported the incident as a “near miss”.
Evidence was given that the worker had been trained in the safe use of the machine in question.
Commissioner Gregory considered that the evidence given by the two Machine Operators was to be preferred to that of the worker.
The Commissioner went on to find:
“Having come to the conclusions that I have about what occurred in the Weaving Department on 4 February, and the processes of investigation and review that followed, I am satisfied (the worker’s) summary dismissal was not an inappropriate response. The potential implications of his actions have already been described, both in terms of serious injury, if not worse, and significant cost resulting from disruption to the production process”.
Accordingly, the Commissioner found that the worker’s dismissal was not “harsh, unjust, or unreasonable” in all the circumstances.
Work health and safety is of great importance in workplaces. Person’s conducting businesses or undertakings, such as employers, can face significant liabilities if they do not meet their legislative obligations.
As the Commissioner also found in this case, “The obligation to provide and maintain a safe and healthy workplace must be the paramount consideration in any workplace”.
The employer sensibly conducted a proper investigation into what had occurred and seemingly afforded the worker procedural fairness.
While in this case, it was found that the summary dismissal of the worker was not a disproportionate response to the conduct in which he engaged, this may not always be the case.
Employers should consider obtaining relevant advice if a safety breach arises as a result of misconduct in particular. Does the proposed “punishment fit the crime”? Should a summary dismissal be effected, or should the errant employee be merely disciplined?
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