Bill-Fitzgerald

Bill Fitzgerald

THE majority of cases involving a safety breach which leads to dismissal usually involve a flagrant breach of policy or protocol. However, AMMA principal employee relations consultant Bill FitzGerald examines a recent case where an employee’s omission to maintain basic safety also justified dismissal.

AN AUTO-electrician filed an unfair dismissal claim against the Pilbara Mining Alliance after failing to inspect an isolator and provide a safety clearance before other employees commenced maintenance work on a dump truck, leading to his termination.

On the day of the incident, at a pre-work meeting, the worker was directed by his supervisor to inspect and, if necessary, replace the vehicle isolator before further work was completed on the truck.

However, the worker did not carry out the direction and later experienced an electrical ‘flash’ when the truck was undergoing further maintenance, despite it not receiving a safety clearance.

The worker’s failure to promptly follow the direction of his supervisor regarding the isolator was considered a significant inaction by the Fair Work Commission.

“In this application, I am satisfied that [the employee’s] conduct in not inspecting the isolator diligently was in the first instance careless, if not wilful,” Commissioner Danny Cloghan commented.

“However, having become aware that other employees were now working on DTO96 without [the employee] having inspected the isolator, and not ceasing all activity until he sanctioned its safe operation, I consider this inaction serious, reckless and improvident.

When considering whether or not the employer’s decision to terminate the employment contract was capricious, unsound, indefensible, or not well-founded, Cmn Cloghan found the dismissal to be fair and proportionate to the incident.

“The applicant had been an automotive electrician for 23 years with six years’ experience in the mining sector,” Cmn Cloghan remarked.

“It was not as if [he] did not know what his role was and was uncertain about what he had to do. Further, [he] was aware of the consequences of not carrying out this task diligently. By his own evidence, [the applicant] knew there was a need to assess the state of the isolator as it posed a risk to himself and others.

“Put simply, [he] knew that there was a potential that others and himself could suffer harm unless the isolator was inspected and replaced, if necessary.”

The Commissioner ordered the unfair dismissal claim to be dismissed.

To read the decision in full, click here.

Implications for Employers

While this particular claim was rejected, the Commission noted that generally, on dismissal matters, employers should set out the key documents which have been breached by an employee and not adopt a ‘scattergun’ approach to evidence in unfair dismissal claims. To tackle this issue, employers are encouraged to provide to employees clear and concise reasons for dismissal, including which company policies have been breached, in order to reduce the risk of unfair dismissal claims being made against the organisation.

The investigation/interview stage of the termination process is a prudent time to seek advice from AMMA’s workplace relations consultants as ‘good insurance’ in such delicate matters.

Most tribunals will consider that any safety issue is of paramount importance and will prevail over other issues such as procedure, however at the same time, there are some fundamentals which need to be adhered to in order to defend an unfair dismissal action.

These include:

  • Demonstrated proof of knowledge of job requirements through induction, ongoing training and informal session such as tool box meetings;
  • Clear warnings provided after proper investigations in the event of breaches or omissions;
  • In the event of termination the employee must be given the opportunity to respond to allegations relating to specific breaches of job requirements or policies; and
  • The employer must take time out to consider the responses including the period of service, the nature or gravity of the breach and any other mitigating factors.

Except in cases of serious and wilful misconduct, which justifies summary dismissal (or dismissal without notice), the Fair Work Act 2009 (Cth) require proof of at least one warning made to the employee. AMMA’s workplace relations experts can provide guidance on other provisions of the Fair Work Act 2009 in regards to dismissal procedures.

Contact your local AMMA office for more information.