Safety is serious business, particularly in the manufacturing and services industry. The employment relationship, by its nature, entrusts employees with safety obligations, be it undertaking procedures ‘by the book’ adhering to strict policy or having the requisite skills and experience to undertake the task at hand. But what happens when an employee fails to undertake safe work practices? And what if that unsafe act causes injury or damage? Can you immediately terminate? The answer is dependent on a number of factors, all of which should be considered before writing up that termination letter.

Safety Policies and Training

The policies and training provided to your employee – if it can be shown the relevant act is directly contradictory to a safety policy and/ or the employee was provided adequate training on what ought to have occurred, it is more likely you will be able to terminate immediately. Make sure such policy or training is referenced in your termination letter.

Internal policy – particularly in larger organisations, it is likely you will have in place policy on safety and dismissal procedures; for example, you may contractually be obliged to provide a warning, or undertake an investigation in a prescribed manner before any termination occurs. You need to ensure your actions comply with your policy.

The severity of the breach – in immediately terminating, you are relying on regulation 1.07 of the Fair Work Regulations. This regulation provides serious misconduct can be constituted by an act if they caused a ‘serious and imminent risk to safety’; accordingly, a minor act which is unlikely to be deemed serious is unlikely to fall within the realm of this provision.

Additional Factors

The employee’s past conduct – if it can be demonstrated the employee was previously warned about safety issues and/ or provided further training, it is more likely a subsequent breach it’ll be considered grounds instant dismissal. In the recent case of Mr Mark Hanley vs. Stramit Corporation Pty Ltd [2016] FWC 1150, an employer’s summary dismissal of an employee’s employment was upheld. It was shown that the employee had:

  • previously been duly trained and tested in certain safety ‘Golden Rules’ of the employer, and
  • owing to a prior safety breach incident on which he was warned, ought to have had ‘a heightened awareness’ of the safety requirements.

Procedural fairness – even if the act itself is deemed a valid basis for dismissal, an employer can still be liable if it is found procedural fairness was not afforded in the dismissal process. Here, among other things, the relevant employee should be given the opportunity to respond to any allegations, proper investigation and validation of the incident should take place, and an offer of a support person should be made.

The extent to which the act was wilful or intentional – generally, an act which is taken on purpose, or involves a level of covering up or deception, will be viewed as a more serious error than a simple mistake. Remember when ‘planking’ was all the rage? Interestingly, such a craze prompted a number of summary dismissals, and subsequent applications for unfair dismissal, when employees breached safety regulations in a bid to get that all important picture of them planking somewhere unusual (think: on top of a meat grinder). In its consideration of such cases, the Fair Work Commission gave consideration to the fact such an act was both intentional and reckless.

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If you have any questions about safety breaches in the workplace, get in touch with our employment lawyers. Call us on 1300 544 755.

Emma Jervis

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