In a recent decision of Hanley v Stramit Corporation Pty Ltd t/as Stramit Building Products [2016] FWC 1150 (Hanley Case) the FWC held that it was not unfair dismissal to end the employment of an employee who had breached his employer's health and safety requirements.
Lessons for employers - keep health and a safety a top priority
As a result of the Hanley Case:
- The importance of health and safety in the workplace should not be treated lightly. Often employers are reluctant to act for fear of claims by employees, however claims and criminal prosecutions (including fines up to $3,000,000 or even imprisonment) for breaches of health and safety laws should be an important consideration to weigh up (see our earlier article - WHS update – turning a blind eye to risks or being too blunt / "full on" can be costly in more ways than one)
- Employers should manage issues associated with breaches of occupational / work health and safety in a timely and consistent manner.
- Dismissal/termination of an employee in circumstances of a breach of health and safety requirements may not be considered unfair dismissal provided the employer:
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- 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; and
- 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.
Background
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.
