Safety is a serious issue, particularly in the manufacturing and services industry. The employment relationship, by its nature, entrusts employees with safety obligations. This includes undertaking procedures ‘by the book,’ adhering to strict policy or having the requisite skills and experience to undertake the task at hand. However, issues may arise when employees fail to undertake safe work practices. Additionally, this may be compounded if the unsafe acts cause injury or damage. In such instances, you may have grounds to terminate an employee who does not comply with safety requirements in your workplace. However, you should consider the following before terminating an employee.
Three Considerations Before You Terminate Employment
Termination should be your last resort when it comes to resolving an issue in the workplace. However, serious breaches of workplace safety policies can warrant termination. In any event, a 2020 case decided by the Fair Work Commission highlights three considerations you should take into account before firing an employee for breaching safety protocols
1. Did a Breach Arise?
It goes without saying that you must prove that your employee actually breached a safety obligation. Safety procedures often prescribe the correct method for your employees to conduct their work. Failure to perform a task following a safety procedure policy can lead to an injury. Therefore, this failure to comply with safety requirements can result in a safety breach.
2. Is the Dismissal Consistent With Your Business’ Safety Culture?
If you want to rely on a safety breach to terminate employment, there are a few steps you should take to ensure the dismissal is consistent with your business’ safety culture.
This last point relates to tolerance. Suppose a previous safety breach of similar seriousness did not lead to dismissal. Accordingly, a dismissal in this instance could be considered harsh, unjust or unreasonable.
3. Did You Provide a Warning?
If you dismiss an employee for breaching a safety requirement, you must ensure the dismissal is fair. If you dismiss an employee in a harsh, unjust or unreasonable manner, you could face a claim for unfair dismissal.
While there is no foolproof method for dismissing an employee fairly, providing warnings of your employee’s breach can be a good step. Warnings place employees on notice that their conduct or continued conduct can lead to disciplinary action. If you provide a warning relating to your employee’s breach of a safety requirement, you should ensure the warning is within the scope of the conduct that led to the eventual termination. For example, you can not rely on a previous warning to fairly dismiss an employee if you issued the warning for an unrelated safety breach.
Additional Considerations
There are some further considerations you should make before you decide to terminate your employee’s employment.
Training
If it can be shown that your employee’s conduct directly contradicts a safety policy and the employee was provided adequate training on what ought to have occurred, it is more likely you will be able to terminate immediately. You should ensure that you reference this policy and training in your termination letter.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Serious Misconduct
Where the breach of a safety requirement amounts to ‘serious misconduct,’ this can provide grounds for immediate dismissal. Serious misconduct is any:
- wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
- causes a serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of your business.
Accordingly, a minor breach that is not serious misconduct is unlikely to warrant on-the-spot dismissal.
Procedural Fairness
Other ways you can ensure the dismissal procedure is fair is by:
- allowing the relevant employee to respond to any allegations;
- conducting a proper investigation into the matter; and
- offering a support person to the employee involved in disciplinary action.
Key Takeaways
If an employee does not comply with safety requirements in your workplace, you may have grounds to terminate their employment. However, before dismissing the employee, consider whether:
- a breach actually arose and its severity;
- the dismissal would be consistent with your previous enforcement of safety procedures; and
- you provided a warning, training and overall procedural fairness.
If you have an employee who breached a safety requirement but you are unsure what steps to take, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
If you dismiss an employee in a harsh, unjust or unreasonable way, they could bring an unfair dismissal claim against your business. For example, dismissing an employee without warning because you personally do not like them can be considered unfair.
Serious misconduct includes any wilful or deliberate behaviour by an employee that causes a serious and imminent risk to the health or safety of another person or your business’ reputation. Serious misconduct can give you grounds to dismiss an employee on the spot and without warning.
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