Autumn Bulletin

occupational health & safety
Dangerous dismissals termination of employment for breach of OH&S policies continued...
by other employees, other incidents
in the warehouse and the absence of
additional training by the employer.
Serious misconduct, including conduct
which could cause imminent risk to the
health and safety of others, or wilful
neglect of duty has been held to be
a valid and proportionate reason for
dismissal. In Lindsay Douglas Lawrence v
Coal & Allied Mining Services Pty Ltd 3 the
dismissal of an employee for a serious
breach of safety isolation procedure
was upheld as being for a valid reason,
despite the employee’s unblemished
28 year period of employment, financial
and personal circumstances, age
(55 years) and remorse.
Any other matters that may
render the dismissal “harsh,
unjust or unreasonable”
generally, where FWA decides that
there is a valid reason for the dismissal
it is likely to find that the termination of
employment was not unfair.
This was recently confirmed by a Full
Bench of FWA which held that where
there is a valid reason for the dismissal
and where procedural fairness has
been provided, a dismissal will only be
considered harsh if there are “significant
mitigating factors”. 4
What constitutes “significant mitigating
factors” will depend on the facts of each
case. In recent cases, FWA has held
that such factors may include:
• whether the dismissal would have a
disastrous impact on the employee’s
personal situation; and
Page 10 l Workplace Relations & Safety l Autumn 2011
• the employee’s previous disciplinary
record, length of service and
subsequent attitude.
For example, in Paul Quinlivan v Norske
Skog Paper Mills, 5 Vice President Lawler
reinstated an employee who had been
dismissed for repeated and flagrant
failure to wear safety goggles. In doing
so, weight was given to the significant
personal and financial implications
of the dismissal for the employee,
which included the prospect of long
term unemployment; losing the family
home and the adverse impact upon his
two young children and his wife who
suffered depression.
practical Steps for
employers
There are a number of steps employers
can take to prevent unnecessary
exposure to unfair dismissal claims
when dismissing employees for safety
breaches. These include:
• ensuring that OHS policies and
procedures are clearly drafted, and
contain a clear statement of the
behaviour expected of employees
and the disciplinary action which may
be taken for breach of the policy;
• making sure employees understand
the terms of any OHS policies or
procedure;
• applying OHS policies uniformly
across the workforce;
• investigating safety breaches (where
necessary) and documenting the
investigation; and
• adopting a proportionate approach in
weighing the nature of the employee’s
breach against any mitigating
circumstances.
Bottom line for employers
The range of different outcomes
in OHS-related dismissal cases
highlights the need for employers to
exercise caution and ensure proper
compliance with unfair dismissal
laws when taking steps to dismiss
an employee for safety breaches.
For a dismissal not to be considered
“harsh, unjust or unreasonable”,
employers must ensure that there
is a valid reason for the employee’s
dismissal. employers should also
consider all of the surrounding
circumstances, such as the
employee’s personal situation and
the impact the dismissal will have
on them.
1 Doug Smith v BHP Billiton Petroleum Pty Ltd
[2010] FWA 3349.
2 Colin Makin v GlaxoSmithKline Australia Pty Ltd
[2010] FWA 2211, [126].
3 Lindsay Douglas Lawrence v Coal & Allied Mining
Services Pty Ltd T/A Mt Thorley Operations/
Warkworth [2010] FWA 6750; Lindsay Douglas
Lawrence v Coal & Allied Mining Services Pty Ltd
T/A Mt Thorley Operations/Warkworth [2010]
FWAFB 10089.
4 Parmalat Food Products Pty Ltd v Wililo [2011]
FWA AFB 1166 (2 March 2011).
5 Paul L Quinlivan v Norske Skog Paper Mills
(Australia) Ltd [2010] FWA 883.