AMMA Head of East Coast Workplace Relations Leyla Sandeman (pictured) analyses why a recent Fair Work Commission (FWC) decision rejecting an unfair dismissal claim provides a timely reminder for employers to have clear, well-established workplace policies.

In a single member decision this month, it was found the dismissal of an employee who stood on top of a 1.6 metre-tall Eimco load, haul, dump (LHD) machine and posed for a photograph – which he later posted on Facebook because he thought “it’d look just as cool as hell” – was not harsh, unjust or unreasonable.

Background

The experienced underground coal mine employee was performing secondary support for Global Mining Services (GMS) at Whitehaven’s Narrabri mine in August last year when the incident occurred.

Prior to commencing employment with GMS, the employee had signed an employment contract and a health and safety declaration which required him to comply with GMS’ lawful and reasonable directions, any GMS health and safety policies or procedures, and any induction process and site specific health and safety policies or procedures which applied at sites at which he was required to work.

Prior to commencing work at the Whitehaven mine, he also participated in an induction at which GMS’ policies and procedures (including the Health Safety and Environment Policy) were addressed, and at which he completed training conducted by Whitehaven on its ‘Safehaven Rules’.

One of the Safehaven Rules related to the isolation of machinery and stated:

“Always confirm that equipment is correctly isolated and de-energised before commencing work… Isolated means disconnected from all possible sources of energy… De-energised means not connected to a source of energy or turned off and void of hazardous energies by way of disconnecting a power source, venting pressure, removing gravitational energies etc.”

In the weeks prior to the incident, GMS was advised by Whitehaven that there had been a number of recent injuries sustained by GMS’ employees at the mine.

GMS subsequently took preventative steps to reinforce the importance of following mine rules and reduce risk-taking behaviour, including the development of a safety action plan to reduce injuries.  That plan included the steps GMS would take to address its safety performance at the mine, one of which was organising training for GMS employees on risk assessment and hazard awareness.

The employee completed the training.  As part of the training, he undertook to always perform work in a safe manner, follow safety directions and apply his skills in a safe and proper manner at all times to the standard of his training.

At the time of the incident, the employee had been directed to spend his shift cleaning up the surface of the mine due to poor conditions underground.

Despite the recent safety drive by GMS, during this shift the employee climbed on top of a loader that had not been isolated and had its engine running, and posed for a photograph while holding a metal roof bolt in his right hand and raising his leg so that his foot was resting on the loader’s cab.

The employee argued his conduct was not unsafe because the loader was a stable platform.  He further contended that the Safehaven Rules did not apply because they stated “always confirm that equipment is correctly isolated and de-energised before commencing work”, and he maintained he was not “commencing work” when he posed for the photo.

Decision – “skylarking” no defence for safety risk

Fair Work Commission Deputy President Tony Saunders found this interpretation was “too narrow” and said a reasonable person would construe the expression “before commencing work” to mean before commencing any activity on or in close proximity to the equipment in question.

The employee’s argument that “skylarking at work is not ‘work'” would defeat the rules’ purpose, Deputy President Saunders said.

The employee also refused to accept that there was any risk that he could have fallen but admitted his conduct was “out of line”, despite not accepting he breached a policy or procedure.

Deputy President Saunders rejected the employee’s argument, saying he could have fallen from the loader due to failure to isolate the machinery, the unbalanced position in which he posed for the photo and his holding a roof bolt while posing for the photograph on top of the loader.

“…The mine is an inherently dangerous environment… If he had fallen from the loader, there was a real likelihood that he would have seriously injured himself,” Deputy President Saunders said.

Deputy President Saunders found that the employee breached his employment contract, the health and safety declaration, GMS’ Health Safety and Environment policy, Whitehaven’s Safehaven Rules and also the specific procedure for the loader, by failing to isolate it before climbing on top of it to pose for the photograph.

He also agreed with GMS’ concern that the employee’s conduct had the real likelihood of damaging its commercial relationship with Whitehaven and jeopardised its reputation, viability and profitability.

“I am also satisfied that GMS had a valid reason for dismissing (the employee) because he acted in a manner contrary to the direction given to him to clean up the surface of the Mine,” Deputy President Saunders said.

“I am further satisfied GMS had a valid reason for (his) dismissal because his conduct in posing for the photograph… put GMS’s reputation, viability and profitability at risk.”

GMS was made aware of the photograph two days after it was taken and subsequently invited the employee to show cause as to why his employment should continue.  In providing his show cause response, Deputy President Saunders accepted that the employee had displayed a “dismissive attitude” and “lack of genuine remorse” while refusing to accept his conduct amounted to a breach of policy or procedure demonstrated a lack of insight.

Implications for employers

This decision highlights an employer can be justified in dismissing an employee for misconduct relating to policy breaches when robust policies are in place and adequate training has been undertaken.

It also serves as a reminder of the importance for employers to ensure all policies and procedures are followed and enforced if they seek to rely on them to defend an unfair dismissal application.

Essential prerequisites include conducting pre-employment and refresher training to ensure all employees are aware of policies in place, the expectations of employees under those policies and the consequences of breaching those policies.

This area has become increasingly complex for employers with the additional advent of the general protections (adverse action) provisions in the Fair Work Act. For further advice about themes covered in this case summary, contact your local AMMA office.