The Fair Work Commission (FWC) has upheld the dismissal of an employee who repeatedly failed to use designated walkways, despite finding his employer had at times applied its safety policy in an inconsistent manner.
Packaging manufacturer Huhtamaki Australia Pty Ltd dismissed the worker in May 2019 after he was caught leaving the designated pedestrian walkway in a vehicle area and it was later confirmed on CCTV footage that he frequently did so.
The employer had only recently begun more rigorous enforcement of its safety policy, while the employee had already been provided a “final warning” for wilfully damaging company property and other inappropriate workplace behaviour.
During the unfair dismissal proceedings, the employee argued before the FWC that following the designated walkway did not improve safety and placed an unnecessary requirement on workers to walk around the car park.
In seeking reinstatement, he told the FWC he had always cut across the walkway during his employment and other workers did the same daily.
Huhtamaki argued that it was a mandated work health and safety requirement for employees to follow the designated pedestrian walkways in high traffic areas. Following a near miss incident two months before the worker’s breaches, it had specifically reminded all staff of the safety policy and consequences for failing to comply.
Huhtamaki submitted it was irrelevant to the employee’s claim that it had not strictly enforced the safety requirement in the past.
Commissioner Lee disagreed with the employer regarding its previous approach to enforcing the safety protocol.
“While I accept it is the right of Huhtamaki to change that approach and become more rigorous in enforcing the requirement, the inconsistent approach taken previously is a factor that weighs in favour of a finding that the termination is unfair,” he said.
However after weighing up all the factors, including the employee’s history of misconduct including damage to the employer’s property due to “anger and frustration”, Commissioner Lee ultimately found the dismissal was not harsh, unjust or unreasonable.
He found the dismissal was procedurally fair, with the employee being given an opportunity to respond and not being refused a support person.
Regarding the safety incident itself, he found the worker wilfully and deliberately failed to observe the pedestrian walkway and abide by the lawful and reasonable direction to do so.
The worker was therefore guilty of serious misconduct in respect of the failure to follow the protocol and this warranted dismissal.
“I agree with the Respondent’s submission that a lack of previous enforcement does not prevent the reinstatement of stricter rules and obligations on employees, especially where their safety is concerned. I am satisfied that this is what has occurred here,” Commissioner Lee said.
“It is not up to the worker to determine which instructions he will follow and which he will not.
“The valid reason for the Applicant’s dismissal and the lack of any procedural unfairness in effecting the dismissal are matters that weigh strongly against a finding that the dismissal was unfair.”
Implications for employers
While employers have the discretion to vary policies and procedures from time to time, it is important to consider how such policies have been enforced and applied in the past when making decisions in relation to appropriate disciplinary penalties for breaches of policies and procedures.
Employers should clearly communicate to employees how policies are applied and enforced in the workplace and highlight the consequences for failure to comply. This is especially important when seeking to change the safety culture in a workplace and ensure more rigorous observance of safety policies.
Where an employer chooses to take a stricter approach to enforcing its policies, employees should be repeatedly reminded of their responsibilities and obligations in relation to the policies in order to avoid disputes.
In the event of serious misconduct which may lead to termination, employers must be able to demonstrate due diligence and proper process, including a fair investigation, to avoid the risk of the FWC finding that a dismissal was harsh, unjust and/or unreasonable.
For further advice and guidance in tackling dismissal and disciplinary action, AMMA members are encouraged to contact your local AMMA office to speak to a specialist workplace relations consultant.
Policy Spotlight: Restoring balance to unfair dismissal laws
AMMA has long advocated for reforms to the Fair Work Act’s unfair dismissal provisions particularly regarding cases where employees have been found to have committed a serious breach of safety policies.
The broad criteria for determining what is ‘unfair’ has become highly challenging for employers as it provides members of the FWC with unprecedented discretion to award remedies for unfair dismissal based on their own interpretation of what is ‘harsh’, even after finding a valid reason for termination exists.
That the tribunal can overturn an employer’s decision to dismiss an employee found to have engaged in serious misconduct significantly undermines the authority of employers when it comes to their duty to ensure a safe working environment.
AMMA welcomes that in this case, Plesiotis v Huhtamaki Australia, the FWC ultimately supported the employer’s decision to dismiss an employee for a serious breach of safety policies.
However it is noted that such a decision came after consideration of a number of factors which AMMA believes should be irrelevant in unfair dismissal cases related to safety breaches – namely the length of the employee’s tenure, his past workplace history (notwithstanding it assisted the employer in this case) and the impact termination would have on his personal circumstances.
Too often, under the Fair Work Act, employees have been reinstated to their positions based on circumstances such as their likelihood of securing new employment, family responsibilities and prior work history, even where they’d been found to have seriously breached workplace safety policies and put themselves and/or their colleagues at risk.
Restoring balance to the unfair dismissal laws is one of AMMA’s key reform priorities for the 46th Parliament as highlighted in its Pathway to Productivity campaign.
Specifically, AMMA believes the Fair Work Act’s unfair dismissal provisions should be amended to:
- Exempt terminations for serious offences and misconduct from contesting dismissal.
- Provide that where a valid reason for termination exists, the termination should stand.
- Ensure each unfair dismissal application is determined on its merits only, not influenced by employee circumstances (such as age, length of service, personal circumstances etc.).
- Preclude workers earning above a high income threshold from unfair dismissal claims.
- Increase application and hearing fees.
For more information about AMMA’s campaign to amend Australia’s workplace laws, contact AMMA’s policy team via [email protected].