Does unsafe behaviour warrant summary dismissal?

Does unsafe behaviour warrant summary dismissal?

By Paul Munro on 8 May 2018 Does a serious safety breach warrant summary dismissal?

This question was recently sent to our Ask an Expert service.

Q We had an incident on the weekend where a collision occurred between two forklifts. According to witnesses, both drivers were involved in a race around the workplace.

Management has considered this to be a serious breach of our workplace health and safety policy and is contemplating summary dismissal.
Can the company summarily dismiss an employee where there has been a serious breach of safety which could have endangered lives?
A It may be difficult to justify summary dismissal as the seriousness of any safety breach is subject ultimately to determination by the Fair Work Commission. The commission may find there was a valid reason for the dismissal but was still harsh, unjust or unreasonable.

This very circumstance was considered by a full bench of (then) Fair Work Australia some years ago. An employee was terminated for causing a forklift to collide with another forklift. It was found that, due to the seriousness of the conduct and the possible health and safety risks caused by the incident, there was a valid reason for dismissal.

However, it was found that notwithstanding the finding of a valid reason for dismissal, the termination was harsh and unjust because the employer was wrong in accusing the employee of deliberately causing the accident. See IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 (9 September 2011).

Generally, only in extreme cases where an employee was wilfully or grossly negligent would summary dismissal be justified. An unsafe act by an employee may justify dismissal from employment, although care should be taken by the employer before doing so. Such conduct falls within the definition of “serious misconduct” in Reg 1.07 of the Fair Work Regulations 2009. In other instances an employer should proceed through a series of warnings, culminating in dismissal if the unsafe acts continue.

FWC considerations – breach of safety

In any subsequent unfair dismissal matter, the Fair Work Commission may take into account the following issues when determining whether there has been a breach of safety:
  • the seriousness of the breach/incident
  • company policies setting out safety procedures and consequences for breaches
  • relevant OHS training by the employer
  • whether the incident/breach was an isolated incident or recurring in nature, and
  • Whether the employee concerned was a supervisor and was expected to set an example.

Other examples of unsafe behaviour

Proper investigation

Any unsafe act which is to be the basis of disciplinary action should be investigated by an employer. In particular, an employer should be confident the unsafe act occurred as a result of an employee’s negligence (or wilful act) and not because of any lack of safety in the system or work established by the employer.

An employee found guilty of serious misconduct for breaching safety rules, and hence dismissed for a valid reason, after due process, could not be considered to be harshly terminated in the absence of significant mitigating factors. See Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (2 March 2011).

Employee’s safety record

A miner who was dismissed for breaching his employer’s ‘golden rule’ of safety was reinstated by (then) Fair Work Australia, which cited the worker’s perfect safety record, the disastrous effect dismissal would have on his livelihood and the ‘non-existent’ nature of the alleged safety risk. See Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089 (24 December 2010).

Poor attitude and behaviour

An employer dismissed an employee for poor behaviour and having a poor attitude towards his team members, customers and supervisors. It was found there was a valid reason for dismissal because of the employee’s conduct. See Kolodka v Virgin Australia Airlines Pty Ltd trading as Virgin Australia [2012] FWA 7828 (12 September 2012).

Lateness, not wearing protective equipment

An employee had a long history of performance- and conduct-related issues, including unauthorised absences, non-compliance with OHS and other company policies, and late attendance. The employer gave multiple warnings and conducted several counselling sessions. It was found the employee’s misconduct was a valid reason for dismissal. See Aperio Group (Australia) Pty Ltd t/as Aperio Finewrap v Sulemanovski [2011] FWAFB 1436 (4 March 2011).

The bottom line: Only in extreme cases where an employee was wilfully or grossly negligent would summary dismissal be justified. An employer should seek legal advice before summarily dismissing an employee because of an unsafe act or unsafe behaviour in the workplace.

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