Employers should manage issues associated with breaches of
occupational / work health and safety in a timely and consistent
Dismissal/termination of an employee in circumstances of a
breach of health and safety requirements may not be considered
unfair dismissal provided the employer:
has current and appropriate health and safety policies /
procedures in place;
trains employees regularly in relation to such policies /
procedures, that is having a living and breathing system rather
than mere paper policies;
is consistent in its approach to dealing with breaches of
health and safety in the workplace;
emphasises to employees the importance of health and safety;
acts timely to address any breaches.
If employers have not done so, they should look at their
existing occupational / work health and safety policies and
procedures to see whether they need updating / legal review.
Once complete, or if they are up to date, employees should be
thoroughly trained in relation to such policies / procedures.
In August 2015 an employee of Stramit Corporation, Mr Mark
Hanley, was dismissed for serious misconduct as a result of his
breach of Stramit's work health and safety procedures.
Stramit had developed, and had trained its employees, in
relation to a document titled "Fletcher Building Golden
Rules" (Golden Rules). These Golden Rules in
part provided that, as a way to prevent serious injury or death to
persons, various exclusion zones while loading/unloading with
forklifts should be followed consistently.
One such practice involved that a forklift cannot enter an
exclusion zone where a pedestrian is located. Mr Hanley was alleged
to have breached that provision, notwithstanding having been
involved in a safety incident the year prior and therefore being
"acutely aware" of safety issues.
Mr Hanley was provided the opportunity to respond on two
separate occasions when he met with the employer and his support
person following the incident, with the decision of Stramit
ultimately being dismissal for serious misconduct.
Termination/Dismissal not harsh, unjust or unreasonable
In the Hanley Case, Senior Deputy President Richards held that
the dismissal was not unfair for the purpose of the Fair Work
Act 2009 (Cth) (FW Act).
Whilst the decision acknowledged that the employer had followed
the other requirements of the FW Act, such as providing a support
person and the ability for the employee to respond to the breach of
the Golden Rules, the importance of health and safety as a valid
reason for dismissal / termination was discussed in detail.
At its most basic level, SDP Richards held that "a safe
workplace requires an employer commitment to introduce and maintain
safety standards along with an employee's capability to
assimilate and express in routine actions appropriate safety
behaviours". As part of this, where an employee does not
follow his/her employer's training in health and safety and
reasonable safety expectations, thereby creating a risk to
themselves or others, they have acted in a way which results in the
loss of trust from their employer. It was this loss of trust and
confidence in the employment relationship which constituted a valid
reason for the dismissal / termination.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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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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