BREACHING A HEALTH AND SAFETY PROCEDURE


"...taking work health and safety obligations seriously does not mean that every single time an employee breaches a procedure related to workplace health and safety, it would always be fair to dismiss the employee in question. Nor does it mean that every appeal against a decision involving such a breach automatically attracts the public interest…."

Boral Cement Limited (Boral) v Steven Hawkins [2018] FWCFB 6484 (Sydney, 22 October 2018)

Employee’s conduct

Steven was a production operator advanced (Level 3). Before entering a confined space to carry out work, Steven was asked by a standby person (contract employee) to write his name and sign on a log sheet. To do so was part of the relevant SOP. Steven wrote his name on the sheet but declined to also sign the sheet. The standby person asked a more senior Boral employee what he should do about it. The yard team leader said “Let it go” and that he would discuss it with management later. Steven then performed his work. Later that day Steve re-entered that confined space after writing out (but not signing) his name on the log sheet.

Steven was dismissed by Boral on 28 November 2017 on the basis of serious misconduct, for not complying with part of a relevant SOP, as well as other related matters including his response to Boral during the investigation and show cause process. Steven filed an unfair dismissal claim at the FWC in Sydney. The Decision [2018] FWC 2746 of Commissioner McKenna found Steven’s dismissal by Boral to be harsh in all the circumstances, even though his conduct constituted a valid reason for his dismissal, and she ordered his reinstatement, but not full pay reimbursement because of his conduct.

Significant comments of the FWCFB

“[33] The Commission has already, on numerous occasions, indicated the seriousness with which it regards the obligations on both employers and employees relating to work health and safety….

 [34] However taking work health and safety obligations seriously does not mean that every single time an employee breaches a procedure related to workplace health and safety, it would always be fair to dismiss the employee in question. Nor does it mean that every appeal against a decision involving such a breach automatically attracts the public interest….

 [35] In unfair dismissal cases, where the Commission has found that an employee has breached a procedure related to workplace health and safety, it is still incumbent on the [FWC] Member at first instance to consider the seriousness of the breach and weigh that against other relevant factors in order to determine whether the dismissal was harsh, unjust or unreasonable.”

Outcome

The FWCFB refused Boral permission to appeal the FWC Decision [2018] FWC 2746 of Commissioner McKenna that found Steven’s dismissal by Boral to be harsh in all the circumstances because her Decision did not manifest an injustice nor did it attract the “public interest” (which requires meeting rare and stringent criteria).

Lessons

Proving a valid reason to dismiss someone does not, of itself, justify a dismissal. The outcome may have been different if the employer had warned the employee that: 

(1) his failure to sign the form as requested, was a failure to comply with a lawful and reasonable direction (backed up by company policy); and 

(2) to refuse to comply with a reasonable instruction would put his job in jeopardy. 

Not affixing a signature on a safety procedure does not establish an effect on the safety and welfare of the employee or others. Once a valid reason to dismiss is established by an employer, a final warning to the employee involved, or a dismissal with pay in lieu of notice, may be a more suitable alternative to dismissal for “serious misconduct”. Where warranted,  the alternative approach is more likely to defend the “harsh unjust and unreasonable” criteria set out in Fair Work legislation and combat "unfair dismissal" claims.

Re-written by Agnes McKay on 18 January 2018. 

First written and posted by Agnes McKay on LinkedIn on 23 October 2018.