A recent unfair dismissal application before the Fair Work
Commission (FWC) saw a standoff between an employer and a health
& safety representative (HSR) about workplace behaviour, hazard
reporting and risk identification procedures.
In Kaskol v TNT, the FWC was asked to determine whether
or not a terminated employee's actions constituted misconduct,
or whether he was acting in his statutory role as a HSR and was
therefore immune from complying with his employee obligations.
In a win for employers, the FWC held that employees acting in
statutory roles are not immune from compliance with their ordinary
employee obligations. It stated that employers should not be
required to maintain employment of those who continuously make
false and vexatious claims in the face of repeated warnings not to
The employer argued that the employee had been warned about
appropriate workplace behaviour and was issued with several
reasonable and lawful directions over a number of years. These
directions required the employee to report safety matters in
accordance with the company procedure and to complete hazard
reports for all safety allegations. He was also required to
sending emails and memoranda to managers that contained
offensive and derogatory comments about senior colleagues
making broad and lengthy safety breach allegations that were
not made in accordance with the established procedure
raising his voice and pointing his fingers at a manager and,
when requested to stop doing so, retaliating in an offensive
alleging that the company's WHS Committee's
Constitution was corrupt, and
making unfounded complaints and allegations.
The employee's arguments
The employee refused to comply with the directions, arguing that
his role as a HSR (as opposed to an ordinary worker) empowered him
to act as he did. He asserted that while appointed to this
statutory role he had immunity from disciplinary action and
The employee further alleged that the employer's dismissal
of his complaints were influenced by racism and company cover-ups
and that, despite his termination, he continued to hold the HSR
position until removed by court order or de-elected by his work
The FWC's decision
The FWC found that the employee made several serious and
unsubstantiated allegations against his colleagues. It held that
employees acting in statutory roles are not immune from compliance
with their ordinary employee obligations – and that in any
event, he was not acting as a HSR in the circumstances. Despite
reasonable attempts by his employer to address his concerns and to
instruct and train him on how to appropriately raise any genuine
issues, the employee continued to act in disregard of the
directions. The FWC found that this was "inconsistent with the
continuation of his employment and destructive of the necessary
relationship of trust and confidence between the employer and the
employee that is essential to the employment
In a win for employers, the Commissioner stated that they should
not be required to maintain employment of those who continuously
make false and vexatious claims in the face of repeated warnings
not to do so. Despite the significant affect the termination had on
the employee, the dismissal was found to be appropriate in the
We would like to acknowledge the contribution of Julie
Kneebone to this article.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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