The Fair Work Commission (FWC) has upheld an employer’s dismissal of an OHS advisor for “repeated” and “inexcusable” safety misconduct in failing to complete journey management plans.
Commissioner Bruce Williams rejected the unfair dismissal claim of the former Boart Longyear Australia Pty Ltd environmental, health, safety and training advisor who was described as unwilling to accept personal responsibility for his errors.
On the morning of 18 November 2018, the employee, who was qualified in undertaking risk assessments and monitoring compliance, wrote off a company vehicle worth approximately $55,000 as he went to inspect a number of remote sites.
One of the controls in place in order to mitigate the risks posed by driving is the requirement for employees to complete a Journey Management Plan (JMP).
The employee submitted a JMP for approval prior to the journey, but left before it was signed off. It was found the JMP was scored at a lower risk than it should have due to unsealed road and wet conditions.
An investigation was undertaken concluding the employee wasn’t driving to prevailing road conditions and was using a Bluetooth mobile device whilst travelling at speed of 70 to 80 km an hour, in four-wheel-drive, on a wet unsealed road 600 mm from the road shoulder.
The vehicle hit a bad patch of the road and veered to the left before rolling over once.
The employee admitted the road and weather conditions were not properly reflected in the unapproved JMP.
It was also determined the employee “fundamentally undermined” the self-assessment benefit of drivers completing JMPs for themselves, by subsequently admitting that he would often complete these for supervisors himself.
“By doing this he arguably increased the risk to these drivers, who then undertook a journey driving a light vehicle without having consciously considered and reflected on the hazards and risks involved in that particular journey themselves,” Commissioner Williams said.
“In the context where light vehicle incidents are responsible for a significant proportion of injuries and fatalities in the Respondent’s industry, the repeated failure to comply with the (employer’s) safety policies regarding light vehicle journeys was inexcusable for someone employed as an Environmental, Health, Safety and Training Adviser.”
While it was conceded JMP approval before a light vehicle journey had not been universally applied, the company said this policy had been much more rigorously applied in the period immediately prior to the employee’s rollover.
The employee attempted to rely on an earlier lax approach to JMPs to excuse the fact that he commenced his journey without having his JMP approved.
Commissioner Williams said the employee’s admission of his main duty to enforce at the worksite all the safety procedures of the (employer) and the client, and to ensure compliance with safety standards, outweighed any perceived laidback approach to JMPs.
The employer pointed to the evidence demonstrating the employee didn’t understand the basic principles of risk assessment involved in a JMP and “the information that came out of the investigation, from the employee himself, indicated he could not be trusted to make sound judgments”.
In addition, prior to the trip, the employee claimed he did not attend an online meeting where a directive was communicated to no longer deliver parts to one of the sites, but on the weight of evidence Commissioner Williams found he was actually in attendance.
The fact the employee advised the trip was to deliver parts to a site showed a failure to follow direction and an inability to pay sufficient attention.
However, Commissioner Williams determined this factor, and insufficient evidence to indicate he was driving too fast for conditions at the time of the roll-over, did provide a valid reason for dismissal.
“I do however accept that [the employee] commenced that journey on 10 November 2018 without properly assessing and controlling the risks as he was required to,” Commissioner Williams said.
“[The employee] in completing the journey management plan as he did, failed to note part of the journey was on an unpaved road, which he knew, and inappropriately classified the weather as fine when he knew it had been raining.
“The journey management plans are a self-explanatory document and there is no reason why [the employee], who is an experienced environmental, health, safety and training adviser, did not correctly complete the journey management plan given his knowledge of the road he was to drive on and his awareness of the weather conditions.”
“His failure to do so was a breach of [the employer’s] policy and was a valid reason for his dismissal.”
In rejecting the employee’s application, Commissioner Williams said none of the reasons for his dismissal were “capricious, fanciful, spiteful or prejudiced” and dismissal was “neither harsh, nor unjust nor unreasonable”.
Implications for employers
This case is an example of the increasing speculative claims made by employees seeking to challenge an employer’s decision to terminate the individual’s employment based on conduct that undermines the trust in the employment relationship. Businesses need to be able to take action to protect their employees, customers and the general public without the burden of dealing with unnecessary litigation as a result.
AMMA has continued advocating for employers to be supported in terminating employees found to have breached safety and/or community standards of conduct.
Restoring balance to unfair dismissal laws is one of seven priorities provided to Minister Porter on behalf of AMMA members within a detailed briefing letter.
Workforce Insights 2019
Challenges facing employers in relation to unfair dismissal laws will be a key feature at Workforce Insights 2019 – AMMA’s professional development opportunity with a difference held on Thursday in Melbourne.
Join resources and energy colleagues at Workforce Insights 2019 to hear from industry leaders on practical experiences and advice on key workplace challenges you can take back to your workplace.
Workforce Insights 2019 will comprise three panel discussions covering:
- Workforce and Workplace Relations such as innovative workplace relations strategies, risk mitigation, engagement and responding to legislative and policy changes.
- Workforce and Community including stakeholder and community engagement strategies, relationship management and brand reputation.
- Workforce and Workforce Transitions such as workforce planning, change management, skills development and new technologies
Held on the day of AMMA’s Gala Dinner (1 August) Workforce Insights 2019builds on last year’s successful inaugural event, and offers a genuine professional development experience for human resources and workplace relations professionals.
Price per ticket (ex GST)
Member – $179
Non Member – $249
Date: Thursday 1 August, 2019
Time: 9.00am – 3.00pm
Location: Pan Pacific Hotel, 2 Convention Centre Place, Melbourne
For all enquiries please contact our Events Manager Gail Gifford on [email protected] or phone 07 3210 0313.