WORKPLACE health and safety is paramount on Australian worksites and documentation is key in ensuring OHS protocols are met. A recent decision from the Fair Work Commission, reviewed by AMMA graduate employee relations consultant Callum Phillips, ruled that falsification of OHS documents comprised reasonable grounds for dismissal.
AN employee who worked at Toll Energy Logistics for two years filed a claim for unfair dismissal after having his employment terminated in August 2013 as the result of three occasions in which he filed false OHS documentation.
The applicant worked for the company as a Fuel Terminal Officer on the Gorgon LNG Project on Barrow Island and in March 2012 was elected by his colleagues as an employee health and safety representative.
The company’s health and safety policy requires strict adherence to safety procedures, including Work Method Statements (WMS), Step Back 5x5s and Job Hazard Analyses (JHA).
The cardinal rule on site is that employees are not to commence work until they have reviewed their JHA and WMS, and completed a Step Back 5×5 card.
On 7 August 2013, while carrying out a refuelling task, the applicant suffered a minor injury involving a tear of skin from his thumb. While en route to the medic, the employee informed the on-duty safety advisor that he had not filled out the necessary JHA, as required before work was to commence.
Two days later, the safety advisor approached the applicant and instructed him to retrospectively fill out the JHA and backdate it to 7 August. Being unsure of when the injury occurred, the applicant signed a JHA for both the 6th and 8th.
The following day, the safety adviser asked the applicant to remove the falsified signatures as their colleagues had learned of the falsified nature of the documents. Later that same day, the applicant again signed a false JHA, this time backdated to the 7th.
In total, there were three separate occasions where the documents were falsified by the applicant, under the guidance of the site’s safety adviser.
Upon learning of the safety breaches, the company held an investigation that led to the dismissal of both the applicant and the safety advisor.
The applicant submitted that dismissal was unfair due to his belief that the task in question did not require a JHA, his voluntary admission of not filling it out, and the fact that he was instructed to make false reports by the safety advisor.
Challenging the claim, the company submitted they had valid reason to dismiss the applicant due to the falsification resulting in a breach of contract, which included acts of dishonesty to be considered misconduct worthy of termination.
Further, the company maintained that the applicant had received safety training and was aware of the required safety procedures.
Additionally, the employer argued the misconduct, which was to deliberately and dishonestly alter the JHA, was carried out to avoid criticism and disciplinary measures for breaching the WMS.
Commissioner Williams rejected the proposal that the employee ought not to be blamed because he was instructed to falsify the documents.
“After first altering the JHA on 9 August 2013, the applicant had an opportunity to reflect overnight on what he had done,” he noted.
“However apparently he did not do so and was not concerned about what he had done because on his own evidence the next day, without any reluctance or expression of concern, he again twice falsely altered the T65 JHA.
“Whilst [the safety adviser’s] involvement was inexcusable this does not in the circumstances excuse the applicant’s own actions.”
Additionally, it was noted that the applicant should be responsible for his own actions and that “it was within his power and ability to seek further counsel on the matter prior to undertaking a deliberate, intentional and dishonest act”.
“In this sense, the respondent submits that the applicant is not absolved of his misconduct by relying on the advice [of the safety adviser] to backdate the T65 JHA record,” Cmn Williams said.
In light of the deliberate and dishonest nature of the act, which was conducted to avoid discipline, Commissioner Williams was not satisfied that the dismissal was harsh, unjust or unreasonable, and the application was dismissed.
To read the decision in full, click here.
Implications for employers
Resource employers are renowned for maintaining the highest expectations on workplace health and safety, and this case offers significant support from the Fair Work Commission in terms of ensuring such standards are consistently met and monitored.
The implication of this case for members is that when an employee engages in misconduct, they can still be held accountable for their actions regardless of potentially mitigating factors. This includes direction from a safety advisor to carry out duties in contravention of the company’s workplace health and safety policies.
Keeping your workforce up-to-date on workplace health and safety protocols is important, requiring frequent training and practice. AMMA Training and Development can provide assistance in this area, reducing the risk of disputation arising out of misinformation on safety procedures.
As always, employee dismissal can be a difficult path to navigate, but AMMA’s workplace relations experts can provide information and guidance to ensure your organisation complies with Fair Work expectations. For more information, speak with one of our IR consultants by contacting your local AMMA office.