Sacking a worker over a safety near miss upheld

In a recent decision of the Fair Work Commission, the Commission upheld the summary dismissal of a worker who had placed his hand close to the rotating drum of a machine in direct contravention of the employer’s safety protocols.  This action was reported as a “near miss” to the employer by two other workers which led to an investigation following which the worker involved was summarily dismissed.  He had sustained workplace injury previously and was well aware of the dangers.  The Commission stated:

[73] The obligation to provide and maintain a safe and healthy workplace must be the paramount consideration in any workplace. It is also self-evident that the requisite safety protocols and requirements are made known and understood by employees from the outset through appropriate guidance, training, instruction and other mechanisms. It is also acknowledged that the appropriate response to some safety breaches can involve counselling, retraining, or the provision of a warning.

[74] However, it is also clear that simply providing a warning and, in effect, a second chance, cannot be the appropriate response in every case involving a safety breach, particularly if the importance of establishing and maintaining a safe and healthy workplace is to be emphasised and supported. In some cases the nature of the breach will warrant summary dismissal. I am satisfied that this is the case in the present matter, given the nature of the safety breach involved, and its potential consequences. I am also satisfied it has led to a situation in which Fenner Dunlop can no longer have confidence Mr Singh will act, at all times, in accordance with its safety requirements and protocols.

See the decision for further detail:

Accessing Pornography

A sobering decision for employers wishing to summarily terminate employees for accessing pornography on work phones and computers etc – failing to properly implement and consistently apply a policy and failing to conduct a termination process with procedural fairness might result in a successful unfair dismissal claim by a misbehaving employee …

Manager Sacked for Being Intoxicated

A manager sacked for being intoxicated at work has won nearly $300k in damages from his employer for breach of contract. The court took into account that the employer routinely paid for alcohol for staff. The court also took into account that the manager’s contract read with the company policies did not allow for a summary dismissal for intoxication at work per se but required something more – some aggravating factor.

Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638 (8 December 2014)

OHS Fines Imposed

In recent OHS prosecutions in Victoria the following fines have been imposed by Magistrates:
– fine of $340,000 after an employee of an excavation company was killed when a trench collapsed
– fine of $80,000 after an employee was injured using an angle grinder
– fine of $40,000 plus costs of $8000 against an employer which allowed a risk to exist on a construction site – although no worker was injured
– fine of $2000 against an individual for failing to allow a WorkSafe inspector to carry out a workplace inspection….

Increase in Minimum Wage

Time to gear up for changes occurring from 1 July 2014. Following the annual wage review decision from the Fair Work Commission there will be an increase in minimum wage rates so any employer paying pursuant to an award should ensure they are paying the correct rate after 1 July. The high income threshold goes up to $133,000 from 1 July. Superannuation increases to 9.5% for the 2014/15 year. Transitional provisions phasing in modern awards from 1 July 2010 should be complete as at 1 July 2014 (apart from a few minor matters) and thereafter modern awards will govern wages, loadings and penalties.

New Bullying Jurisdiction

In a decision under the new Bullying jurisdiction, the Fair Work Commission found that an employee had not been bullied by their manager – the main argument being whether or not the managers actions had been reasonable management action carried out in a reasonable manner.

It contains an interesting discussion of what is or is not reasonable behaviour – allowing that some expression of anger is not unreasonable in certain circumstances … and that one instance of unreasonable behaviour does not comprise “bullying” behaviour:

“[65] However, when considered in the context of the whole meeting and the overall situation I am not satisfied that the way in which the General Manager opened the meeting on 30 October was unreasonable behaviour. This part of the meeting on the Applicant’s own evidence lasted only a matter of seconds. It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. It was reasonable management action in all of the circumstances for the General Manager to forcefully communicate in both words and body language that the way in which the Applicant was interacting with him was unacceptable and that it could not continue. I accept that if this behaviour was then reinforced by repeated similar behaviour then the behaviour at the October 30 meeting should be considered in a different light and contribute to a finding of unreasonable or bullying behaviour.

[66] I agree with the Respondent that determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances. However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable. The General Manager had no reason on 30 October to believe that the Applicant was suffering from any illness or was particularly vulnerable.”

“[100] I have found it difficult to reach a conclusion in this matter. However, the only instance of unreasonable behaviour which I have found was the behaviour of the General Manager at the meeting of 28 November 2013 in failing to properly respond to the request for a support person at future meetings. I considered that the actions on 27 November 2013 in sending the Applicant home may have been unreasonable behaviour but on fine balance concluded that it was not. I have earlier found that the angry and aggressive tone utilised by the General Manager on 30 October 2013 should be considered in the context of subsequent actions. Considering all of the matters I am not satisfied that there were repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.”

Employer Tries to Avoid Paid Entitlements

A large fine, $313,500 has just been handed down by the Federal Circuit Court against an employer who engaged staff as independent contractors rather than employees in order to avoid making payments to them that they would have been entitled to as employees such as various allowances, leave and superannuation. The court was highly critical of the company and its “sham contracting” arrangements – a warning note for all employers to ensure any arms length contracting arrangements are not employment contracts by another name.

Complaints About Employment

In talking about what sort of complaints about employment might be covered by the adverse action provisions in the Fair Work Act, a recent judgement by Justice Mordy Bromberg of the Federal Court found that the nexus would likely be satisfied “where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”. This means that relevant complaints might cover a wide range of employment issues but they still must be an operative reason why the adverse action was taken