When breaking health and safety rules is a breach too far

By Jeff Salton on August 17th, 2017
  1. Employee health & wellbeing
  2. Drugs and Alcohol Policy

Increasingly, employers are faced with the dilemma of having to take disciplinary action against workers who breach their safety duties, but risk an unfair dismissal claim.

What should you do if an employee has breached your safety rules? Can you simply sack them on the grounds that you had a zero-tolerance policy? What else do you need to consider?

Given the growth of zero-tolerance drug and alcohol policies in the workplace, particularly those organisations with high-risk operations, the Fair Work Commission (FWC) has had to examine many of these types of claims.

The FWC has had to balance the employer’s WHS statutory obligations to keep the workplace safe with their other obligations to follow a fair procedure and to not act harshly, such as considering other disciplinary alternatives to termination of employment.

Although there have been some exceptions for employees with lengthy and unblemished work histories, the trend of unfair dismissal cases in the FWC has been to uphold the importance of the duty of the employer to keep workers safe by finding the termination to be valid and reasonable. This is because at first blush any breach of a safety requirement is potentially misconduct and therefore presents as a valid reason for termination of employment.

But you do need to be careful. Dismissal may not always be appropriate. Recently, a decision was handed down where the employee’s termination was found to be harsh, despite a clear breach of an important zero-tolerance policy, because the employee had almost 20 years’ service and an otherwise unblemished career.

Considered an appropriate response

So, the challenge is knowing when it is appropriate to dismiss an employee. To help you decide, the cases in the FWC give you a clearer idea of when it will consider it appropriate (or not) to terminate the employment of a worker for a safety breach:

  • The most fundamental point that the FWC will consider is the significance of the breach. The greater the real risk of substantial and imminent harm, then any breach will justify the termination of employment.
  • If, on the other hand, the safety rule that was breached could not be characterised as critical then there is a risk that termination will not be appropriate. This is difficult conceptually as most people would say all safety rules are critical. In any case, to best ensure that the decision to terminate is upheld if it is challenged, it is important to firstly demonstrate that the safety rule was consistent and universally enforced and, secondly that workers were aware that termination of employment for a breach was an expected outcome. For some organisations, they fall down on the policy not being universally applied, which then makes it difficult to support the termination of employment.
  • The FWC is slower to uphold a termination where the business did not implement safe systems of work and ensure that employees understood those systems. For example, there have been cases where an employee does not respond to a safety alarm during their meal break in circumstances where there is no evidence that all staff were made aware that they had to respond no matter when the alarm was activated.
  • The personal impact of termination will always be a factor that the FWC considers. The longer the period of service, the greater obligation on the company to consider whether alternatives to termination are available.

These points offer helpful guidance to employers who are in the vexed position of determining what step to take next. But remember, safety first is critical and so if you are in a situation where lives may be at risk, then you should act to protect those lives.

My colleague at Holding Redlich, Charles Power (also the Editor-in-Chief of the Employment Law Practical Handbook) has written a comprehensive eBook Managing Lawful Dismissal.

This 53-page eBook guides you through what you must consider before dismissing an employee and how you can protect yourself from legal risk. It explains:

  • what makes dismissal unlawful;
  • when and how you can lawfully dismiss an employee;
  • how your policies and procedures can help you to manage dismissal in your workplace;
  • the alternatives to dismissal; and
  • your notice and termination pay requirements.

Before you decide to dismiss an employee, it’s critical you understand the rules. Managing Lawful Dismissal will make sure you avoid any legal risk and that your dismissal process is lawful and fair.

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