In a decision which will bring comfort to employers, Fair Work
Australia (FWA) has found that employees should
not have to be taught 'common sense' in finding that the
dismissal of an employee was not unfair.
The employee was a production worker at a carpet tile
manufacturing plant. The employee claimed that shortly after
starting work, a colleague told him that he could climb into a
compactor used to push down carpet off-cuts. The employee stated
that he had received no formal training on the use of the compactor
and it was common practice for employees to climb into the
compactor. Further, the compactor had no signage prohibiting
employees from climbing into the compactor.
In November 2010, the employee spoke to an OHS training group
who were observing operations at the plant. The employee asked the
trainer whether the group was doing an OHS course. When the trainer
replied that they were, the employee climbed into the compactor and
started to jump up and down. The employee told the group that he
was on the OHS Committee and laughed and giggled while waving his
arms about without hanging on to the edges of the compactor.
The trainer, who was an independent bystander, later reported
the incident. Following a meeting with the employee attended by his
union representative, the employee was summarily dismissed for,
amongst other matters, a breach of his safety obligations.
The employee subsequently applied to FWA for an unfair dismissal
remedy. While the employee did not dispute that he climbed into the
compactor, he disputed that he jumped up and down in it, engaged in
horseplay or deliberately disparaged his employer to a group of
visitors. The employee also claimed that climbing into the
compactor was not prohibited and that he was doing no more than he
had been shown to do and, like other employees, had done many times
What did FWA decide?
FWA found that the employee's evidence was contrary to that
of his manager, who had observed part of the incident, and the
independent OHS trainer. FWA was satisfied with the employer's
version of events and found that the employee's actions,
including climbing into the compactor, jumping up and down and
waving his arms around, were 'inherently unsafe'. FWA also
found that by his actions, the employee had placed himself at risk
of falling onto the concrete floor or hitting himself on the
compactor. As such, FWA found that the employee's conduct
presented a serious and imminent risk to his safety.
FWA's concerns were further compounded by the employee's
lack of concern about the possible risks and dangers associated
with his actions and his cavalier approach to the disciplinary
meeting and the FWA proceedings, particularly given that he was an
FWA accepted that the employee had climbed into the compactor on
previous occasions, as had other employees, and that the employer
had not directly told its employees to not climb into the
compactor. Despite this, FWA found that 'it is a matter of
common sense not to climb into machinery in such circumstances. In
my view, the applicant should not have required training on
this.' Accordingly, FWA dismissed the employee's
Key lessons for employers
While this decision will provide some level of comfort to
employers that common sense can prevail, it is important to keep in
mind that the outcome may have been different if the employer had
not provided induction training, had a safety policy which was
provided to the employee, twice assessed the employee's skills
and, in his capacity as an OHS representative, trained the employee
in risk assessment. As outlined in our previous update (click
here), the outcome may also have been different if there were
any significant mitigating factors, as these have the ability to
render harsh a dismissal that was otherwise procedurally fair and
for a valid reason. As such, employers should take into account
subjective, mitigating factors when deciding whether to terminate
an employee's employment.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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