Full Bench reinforces the seriousness of safety breaches
March 14, 2011
Livingstones recently defended an application for unfair dismissal made against one of its long-standing clients. Alex Aspromourgos guided management through a process of dismissing an employee who committed a serious breach of safety. Fair Work Australia initially ordered that the employee be reinstated. However, on appeal the Full Bench of Fair Work Australia reversed the decision.
This decision has important ramifications for employers who seek to enforce their safety policies and procedures.
Parmalat Food Products Pty Ltd v Wililo [2011] FWA FB 1166
The employee’s employment was terminated after an investigation found the employee had committed a serious breach of safety when he placed his head, torso and arms under the raised load of his forklift. Throughout the investigation process the employee was given a number of opportunities to respond to the allegations.
The employee brought an application for unfair dismissal to Fair Work Australia. The Commissioner found that the employer had a valid reason to terminate the employee’s employment as the employee’s actions amounted to serious misconduct in that he had caused serious and imminent risk to his own health and safety. The Commissioner also found that the employee had been afforded procedural fairness. Despite these findings the Commissioner went on to hold that the employee’s dismissal was harsh. This decision was based on a number of mitigating factors which included the employer not showing the employee CCTV footage, the length of the Applicant’s employment and disciplinary history, the employer’s lack of a zero-tolerance safety policy and that the employee’s actions were careless rather than willful or negligent. The Commissioner ordered that the employee be reinstated.
The employer was granted permission to appeal to a Full Bench of Fair Work Australia. The Full Bench found that the case “raised important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace”. In considering the decision of the Commissioner at first instance the Full Bench was unable to identify a clear line of reasoning leading to the Decision reached. The Full Bench was of the view that “the Commissioner having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that the conclusion of harshness is open.” The Full Bench found none of the circumstances involved in this particular matter amounted to such factors.
The service and disciplinary record of the employee was not a mitigating factor as his service was short and his disciplinary record was poor.
The failure to show the employee the CCTV footage was not significant. The footage was largely inconclusive and could not have altered the conclusion that the employee had an adequate opportunity to respond to the allegations. The Full Bench also found that the CCTV footage did not establish the findings of fact made by the Commissioner at first instance.
The Full Bench rejected the characterisation of the employee’s conduct as careless. The employee’s conduct amounted to serious misconduct. It involved deliberate acts and had potentially serious consequences.
The Full Bench overturned the Commissioner’s decision and quashed the orders for reinstatement.
This decision vindicated the actions of the employer in seeking to promulgate and enforce safety policies and procedures. It is a precedent which could be relied on by employers considering disciplinary action where an employee has committed a serious safety breach.
For more information regarding this case please contact Alex Aspromourgos.
