An employer's right to terminate a worker's employment
for breaches of safety procedures is likely to come under the
spotlight in the wake of a mining company's decision to dismiss
up to 15 workers for performing the "Harlem Shake" dance
craze while at work on site.
During a shift break in an underground pit at the Agnew gold
mine in WA, a group of workers filmed themselves performing the
latest dance craze, the Harlem Shake. According to one of the
workers involved, the stunt was performed as a "bit of
fun" and to "get us going again" in the early hours
of the morning of a long shift.
The 30 second clip of the dancing workers was uploaded to
YouTube and quickly went viral. When the workers' employer,
Barminco, became aware of the video, the response was less
positive. Within a week, up to 15 of the workers involved in the
stunt were informed that their employment had been terminated,
including employees who had just been watching the performance. The
workers were also informed that they has been banned for life from
working at any of Barminco's projects.
According to the termination letters sent to the employees,
Barminco considered the stunt to be a serious breach of the
company's safety procedures and its "core values of
safety, integrity and excellence".
However, some of the dismissed employees have subsequently
disputed the company's reasons for its decision, claiming that
the workers involved had discussed safety prior to performing the
dance. According to one of the workers, the safety-conscious
performers wore protective equipment including rescue devices
containing portable oxygen during the stunt to ensure they obliged
with workplace safety regulations. Although some of the dancers
admitted to breaching procedures by removing their long-sleeved
shirts, this was claimed to have been done to avoid Barminco being
identified in the accompanying video.
Some of the dismissed workers have since confirmed that they are
seeking legal advice regarding the termination of their
It is well established that a breach of safety procedures can be
a valid reason for dismissing an employee, and can even constitute
serious misconduct in some cases. Additionally, employers are
required under workplace health and safety legislation to respond
appropriately to all incidents where safety requirements are
breached, in order to meet their obligation to maintain a safe
However, just how serious a safety breach has to be to warrant
the summary dismissal and blacklisting of several workers is likely
to become the central issue in any claim made by any of the
dismissed employees against their employer. If Barminco is faced
with one or more unfair dismissal cases as a result of its decision
to terminate the workers' employment, which is extremely likely
to be the case, the company will need to be able to show that the
workers' actions placed their own safety and the safety of
other workers at serious risk, leaving the company little choice
but to terminate their employment.
Although the impromptu performance may have been in breach of
the company's safety procedures, the dismissal of the employees
could still be found to be unjust, harsh or unreasonable if the
Fair Work Commission considers that the company's response was
disproportionate to the seriousness of the alleged misconduct. (ie.
would a written warning have sufficed?) In defending such a claim,
the company may be required to produce evidence that the
workers' actions could have resulted in serious safety
consequences, such as a serious injury or fatality, despite the
workers' claims that safety requirements were for the most part
observed. If this can't be established, the company could
potentially be ordered to reinstate some of the employees or pay
them compensation. At the same time, the company may be able to
argue that its actions were warranted by and consistent with its
safety policies and its statutory obligations under workplace
health and safety legislation.
This case clearly underlines the balancing act that employers
are required to maintain between their duty under workplace health
and safety legislation to maintain a safe workplace where workers
are not exposed to hazards, and their obligations under the Fair
Work Act to not unfairly dismiss an employee. The incident is also
another clear warning to employees with respect to the use of
social media involving the workplace. As demonstrated in this case,
employees need to be aware that employers do pay attention to what
is published on social media and will take action if they don't
like what they see!
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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