Courts and industrial tribunals have long held that serious breaches of safety rules are grounds for dismissal. A recent NSW case found that a dismissal for breaching a "cardinal rule" twice within three weeks was unfair, providing a reminder of the need to consider all the circumstances prior to terminating employment.
Leonard’s Case  NSWIRComm 1023
Leonard had been an employee of a manufacturing company.
The company has a set of safety rules, known as "Cardinal Rules" that were displayed on notice boards. They required employees to ensure their actions would not cause injury to others, by following isolation procedures and not doing anything unsafe. There was a warning that breach of these rules would result in disciplinary action. There was no clear indication about the penalty.
The company had identified forklift safety as a high priority due to the level of injuries and fatalities suffered and particularly the risk to pedestrians in areas where forklifts were in operation. An exclusion zone was created: when a forklift was operating, no pedestrian was permitted to enter and when a pedestrian was in the zone, no forklift could enter.
On 25 January 2007 Leonard entered an exclusion zone while a forklift was operating. Both Leonard and the forklift operator knew where each other was and there was no real risk of injury. He was suspended for the remainder of his shift.
On 8 February the matter was discussed at an occupational safety committee meeting and the following day chains were placed on a walkway to prevent pedestrians from entering if the exclusion zone was in force.
On 9 February Leonard walked through the exclusion zone because he urgently needed to go to the toilet. The forklift was technically not operating at the time, but the area was chained off. He was suspended and subsequently dismissed.
In considering the unfair dismissal application, the Commissioner noted that he was reluctant to intervene when it was clear that safety was taken very seriously by the company. However, the Commissioner did not regard Leonard’s actions as serious enough to warrant dismissal and ordered reinstatement.
The Commissioner found that Leonard was never in any real danger and was not technically in breach of the Cardinal Rules at all, because the forklift was not operating at the time. Although he entered the exclusion zone the machine was not "in operation".
In considering the appropriate discipline, the employer should have taken into account:
the seriousness of the breach
the circumstances in which the breach occurred (in this case Leonard's obvious discomfort from suffering diarrhoea and his need to urgently use a toilet - the most accessible of which was cordoned off by the exclusion zone); and
Leonard’s record of satisfactory service.
Serious breaches of safety rules can result in a fair dismissal. When a breach of a safety rule occurs it is necessary to consider the nature of the breach, its seriousness, any mitigating factors and what the appropriate consequence are for the employee.
Employers seeking to provide safe systems of work will be required to impose some sanctions for breaching safety rules. Careful consideration should be given to the options available to employers and employers should make sure that the penalty fits the crime.
Thanks to Rob Greig for his help in writing this article.
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