Ensuring termination for safety breaches are valid

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Introduction

The Full Bench of Fair Work Australia recently confirmed that an employee’s termination will not be harsh if it was because of a significant breach of safety rules in the workplace. The decision also serves as a timely reminder of the importance of employers:

• putting effective safety policies and procedures in place; and
• ensuring that in all cases where the decision is made to dismiss an employee, the dismissal complies with the procedural fairness requirements contained in the Fair Work Act 2009 (Cth) (FW Act).

Facts

Mr Wililo was a licensed forklift operator who worked night shifts at Parmalat’s manufacturing and distribution centre. Prior to commencing with Parmalat, Mr Wililo signed an acknowledgement that adhering to Parmalat’s safety policies was a condition of his employment.

On 8 May 2010, Mr Wililo was reported to have engaged in an unsafe act by placing his arms, head and shoulders underneath an unstable and elevated load. Parmalat investigated the matter and at a final meeting, Parmalat issued Mr Wililo with a letter advising him that:

• as a result of the formal investigation, his behaviour was found to be grossly negligent and dangerous;
• his responses during the investigation were contradictory to evidence given by persons who had witnessed the incident; and
• Parmalat’s trust in him had been eroded as a result of the above, and his employment was therefore being terminated immediately.

Mr Wililo subsequently lodged an unfair dismissal claim with Fair Work Australia (FWA).

Decision

At first instance, in applying the criteria contained in section 387 of the FW Act (Unfair Dismissal Criteria), Commissioner Cargill accepted that Mr Wililo was dismissed for a valid reason, and that Parmalat had complied with the ‘procedural fairness’ subsections of the Unfair Dismissal Criteria throughout the investigation.

However, the Commissioner also took into account a number of other circumstances that she identified as relevant, in particular:

•  Parmalat did not show Mr Wililo the CCTV footage of the incident;
•  while Mr Wililo’s actions constituted serious misconduct, they were not wilful or negligent but rather ‘…the result of carelessness and a failure to properly appreciate the consequences’;
•  Parmalat did not have a ‘zero tolerance policy’ with respect to breaches of its safety rules; and
•  the conclusion that Mr Wililo was lying, which the Commissioner did not accept, ‘clouded’ Parmalat’s judgement in relation to his dismissal. 

On the basis of the Unfair Dismissal Criteria and ‘all of the circumstances’, the Commissioner found that the dismissal was harsh and ordered for Mr Wililo to be reinstated.

On appeal, the Full Bench reassessed the matters that the Commissioner had identified as relevant. In their view, the Commissioner erred in her finding that the failure to show Mr Wililo the CCTV footage was significant, as it was largely inconclusive and did not alter the fact that Mr Wililo was given an adequate opportunity to respond to the allegations put to him. Further, the Full Bench rejected the implication that the characterisation of ‘deliberate acts’ as ‘careless’ could result in their being treated any less seriously.

Ultimately, the Full Bench found it ‘anomalous’ that the dismissal of an employee for serious misconduct, where the dismissal followed ‘due process’, could be found to be harsh in the absence of clearly identifiable and ‘significant mitigating factors’. As they could identify no such mitigating factors in this case, the Full Bench allowed the appeal and the order reinstating Mr Wililo was overturned. 

Conclusion

The decision demonstrates that so long as employers can establish:

• they have clear safety rules and policies in place which their employees agree to be bound by; and
•  that any safety breaches are properly investigated, and employees are provided with an adequate opportunity to respond to any allegations;  

then FWA is likely to uphold the employer’s decision and not consider that the dismissal was harsh. A clearly stated and enforced ‘zero tolerance’ policy for safety breaches also will assist an employer.

Contact details

Melbourne
Charles Power, Partner
T: +61 (0)3 9321 9942
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Sydney
Stephen Trew, Partner
T: +61 (0)2 8083 0439
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Michael Selinger, Partner
T: +61 (0)2 8083 0430
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Brisbane
Paul Hardman, Partner
T: +61 (0)7 3135 0675
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