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In what circumstances will an employer be lawfully entitled to terminate an employee’s employment for breaches of the businesses' safety policies?

An employer has an obligation to ensure the workplace health and safety of its workers by preventing or minimizing exposure to risks. Employers who breach this obligation may incur heavy penalties. In order to discharge this obligation, many employers implement comprehensive workplace health and safety policies which aim to eliminate or control risks by thorough procedures and practices which must be adhered to by workers.

Such policies often prescribe disciplinary action which may be taken against a worker for breaching the policy, for example dismissal. However, employers must also ensure that termination of employment for breach of such policies is not “harsh, unjust or unreasonable” in order to prevent a successful unfair dismissal claim.

Recent case law has provided judicial opinion as to what is regarded as appropriate disciplinary action in circumstances where a worker fails to comply with workplace health and safety policies, such as requirements to wear personal protective equipment (PPE) and submit to drug and alcohol testing.

Safety practices and procedures

In order to minimize risks in the workplace, many employers provide employees, contractors and visitors with PPE such as hard hats, high-visibility clothing, safety glasses, ear muffs, gloves, etc.

It is not uncommon for employees to fail to comply with workplace health and safety policies which dictate when PPE must be worn for reasons such as discomfort, inconvenience or general disregard for the policies.

It is clear that an employee who fails to wear to PPE as required is jeopardizing his/her safety and exposing his/her employer to liability for breach of its workplace health and safety obligations. An employer is entitled to dismiss an employee without notice or warning if the employer believes on reasonable grounds that the employee has engaged in “serious misconduct”. Serious misconduct includes wilful or deliberate behaviour by an employee which causes a “serious and imminent risk to the health and safety of a person”.

A recent decision of Fair Work Australia has indicated that an employer does not have an absolute right to dismiss an employee for failing to comply with workplace health and safety policies and should consider a myriad of factors when determining whether dismissal is warranted in the circumstances.

Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883

This case concerned an employee who worked at an industrial plant. When the plant was shut down for maintenance, signage was placed at the entrances to the plant reminding employees that safety glasses must be worn at all times.

The employee failed to wear his safety glasses despite being repeatedly asked by supervising staff to do so. The employee was dismissed because of his repeated breaches of safety policies in failing to wear the safety glasses despite prominent signage and multiple instructions to do so. The employee brought an unfair dismissal claim against his employer.

The Tribunal observed that despite the fact that the employee’s repeated failure to wear safety glasses amounted to serious misconduct, termination of his employment would have a disastrous impact on the his personal and economic situation. Therefore, the termination was held to be “harsh” in the circumstances.

The Tribunal stated:

“realistically, the applicant faces the prospect of long-term unemployment or underemployment. His family faces severe financial hardship. There is a real risk that he will lose his house. His marriage will suffer increased stresses. His wife’s depression could well be exacerbated. All these circumstances are likely to impact adversely on his young daughters.”

The Tribunal ordered that the employee be reinstated but sanctioned the employee by refusing him his lost wages from the date of dismissal to reinstatement.

Practical implications

Employers must ensure that dismissal is warranted in the circumstances given the nature of the breach and all of the relevant circumstances (e.g. the employee’s term of service, prospects of obtaining alternative employment, education and qualifications, age, dependents, etc).

Drug and alcohol testing

An employee who is under the influence of drugs and/or alcohol in the workplace presents a substantial and demonstratable risk to the health and safety of themselves, other employees and customers or clients.

In order to minimize the risks in the workplace resulting from employees impaired by drugs and alcohol, many employers have introduced workplace policies providing for alcohol and drug testing. Such policies are especially prevalent in industries such as manufacturing, transport, construction and mining.

Recent decisions of Fair Work Australia have confirmed that an employer has a legitimate right to minimize risks by implementing and enforcing strict drug and alcohol policies in the workplace.

Doug Smith v BHP Billiton Pty Ltd [2010] FWA 3349

This case concerned an employee who was dismissed for failing an alcohol breath test, 3 days before he was due to receive a substantial redundancy payment. A consequence of this termination was that the employee was not entitled to the redundancy payment. The employee brought an unfair dismissal claim against his employer.

The employee asserted that termination of his employment in circumstances where he became disentitled to an expectant redundancy payout was “harsh, unjust or unreasonable”.

The employer asserted that the employee was in breach of its Drug and Alcohol Policy which clearly stated that a positive drug or alcohol test may result in termination of employment. The employer also argued that the employee was “generally aware” of this policy.

The Tribunal stated:

“the Respondent appears to have decided it was not prepared to compromise their safety policies because of the personal consequences of the Applicant. I do not consider the Respondent’s approach in that regard is outside the band of reasonableness or harshness that a reasonable employer would have taken.”

The employee’s application was dismissed.

Practical implications

Employers who do not have a drug and alcohol policy in place should give genuine consideration as to whether they are complying with their workplace health and safety obligations. Advantages of such a policy allow immediate action to protect safety while increasing the prospects of the company resulting in an unfair dismissal claim.

Conclusion

Recent case law indicates that in some circumstances, dismissing an employee for breaching a workplace health and safety policy may be “harsh, unjust or unreasonable” and thereby amount to unfair dismissal.

To ensure employers are not subject to unfair dismissal claims, employers should consider the following questions in relation to their workplace health and safety policies:

1. Does the policy contain a clear statement of the behavior that is expected of the workers?
2. Does the policy contain a clear statement of the disciplinary action which may be taken for breach of the policy?
3. Does the policy contain a clear procedure to be followed in relation to disciplinary action?
4. Is the policy known, understood and accepted by all workers?
5. Is the policy constantly evaluated and amended?

Disclaimer
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