AREEA principal employee relations consultant Bill FitzGerald this week reviews a recent full bench decision involving a resource industry employer which gives insight into how workplace tribunals determine safety matters.

IN BHP Coal Pty Ltd v Schmidt [2016] FWCFB 1540 23 March 2016, a Fair Work Commission full bench comprising Vice President Graeme Watson, Deputy President Reg Hamilton and Commissioner Leigh Johns overturned an earlier decision awarding almost $43,000 in compensation to a BHP Coal employee whose dismissal was found to be harsh and unjust.

The case centred on the employee failing to follow BHP Coal’s reporting policies and procedures after he reversed a bulldozer causing significant damage to a fuel tank.

The employee’s failure to report the incident to his supervisor and preserve the accident scene meant that the incident could not be properly investigated and he could not be subject to ‘for cause’ drug and alcohol testing.

The bench considered how s387 of the Fair Work Act – as the criteria for considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable – should be interpreted. It ultimately took a balanced approach by determining that factors impacting on the employer should also be included in the assessment.

The bench said: “the notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace”.

The bench accepted that the subsequent conduct of the employee by failing to report and manage the situation in accordance with policies and procedures, which he was well aware of, was just as important as the incident itself.

Further the bench found that: “the employee showed a pattern of behaviour inconsistent with his obligation to exercise care and diligence in a high-risk workplace”.

The bench found that there was a valid reason for dismissal and rescinded the earlier compensation order.

Implications for employers

It is pleasing to note recent decisions from the Fair Work Commission which uphold the paramountcy of safety in dismissal matters, however the process of dismissal still requires a careful approach.

This includes:

• Proof that employees are aware of their safety obligations (through induction and other training);
• A proper investigation of incidents;
• A proper process of putting forth allegations of breaches or carelessness/neglect;
• Providing employees an opportunity to respond to allegations; and
• Proper consideration of those responses before appropriate disciplinary action is taken.

If you require any assistance with counselling, discipline or a termination of employment, defending your action in the Fair Work Commission or any other workplace matters, contact AREEA on 1800 627 771 to talk to one of our employee relations specialists.