You would be hard-pressed to find a workplace that didn’t hold safety as one of its top priorities or core values these days. But when workers directly employed by a person conducting a business or undertaking (PCBU) fail to adhere to these safety values, it presents a difficult, although common, problem.
Unsafe conduct can provide a valid basis to terminate employment. However, laying blame solely on employees and workers can expose employers/PCBUs to legal risk, so it’s important to keep the following in mind when deciding to terminate:
- Employees have an obligation to follow a reasonable direction/instruction;
- It is imperative that PCBUs ensure instructions provided to workers are properly conveyed — eg, instructions should be communicated verbally and in writing; and
- PCBUs are expected to take responsibility for cultivating a workplace culture that values health and safety.
This article will consider the obligations of PCBUs and workers under the model Work Health and Safety Act 2011 (WHS Act) and explore when unsafe conduct will justify dismissal.
WHS Act requirements of PCBUs
PCBUs must, so far as is reasonable practicable, ensure the safety of workers. This duty comprises a number of elements, some of which are specifically directed towards ensuring safe work practices and behaviours, such as providing:
- safe systems of work; and
- information, instruction, training and supervision necessary to protect workers from health and safety risks.
Of course, it is not possible to insulate workers from all work health and safety risks — in fact, human behaviour is one of the most variable factors impacting safety at work. Fortunately, the WHS Act does not require a PCBU to ensure safe outcomes all the time. The duty is qualified by what is reasonably practicable.
‘Reasonable practicability’ involves weighing up the relevant factors:
- The likelihood of the hazard or risk concerned occurring;
- The degree of harm that might result from the hazard or risk;
- What the person concerned knows or reasonably ought to know about: (1) the hazard or risk, and (2) ways of eliminating or minimising the risk;
- The availability and suitability of ways to eliminate or minimise the risk; and
- After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with those activities, including whether the cost is grossly disproportionate to the risk.
If it is not reasonably practicable for a PCBU to minimise or eliminate a risk, review the hierarchy of control measures outlined in the model Work Health and Safety Regulations to reduce safety risks to the lowest level practicable — eg, isolating the hazard or reducing risks through engineered controls.
If it is not reasonably practicable to eliminate or minimise the risk through higher order controls, PCBUs should reduce exposure to risk by using administrative controls and personal protective equipment.
Requirements of workers
The obligation to identify and manage risks in the workplace is not wholly delegated to PCBUs — workers also have an obligation under WHS legislation to take reasonable care for their own health and safety, and to ensure their actions don’t affect another person’s health or safety.
Workers cannot reduce or qualify their obligation by stating their risk-taking only affects themselves. Actions and omissions, such as failing to comply with safe work methods, can give rise to risks to individual workers and others.
Workers provided with reasonable instructions, such as wearing personal protective equipment and clothing and complying with safe work methods, have also obligations to comply.
Serious misconduct by employees
Not all workers are directly employed by a PCBU. The following information pertains to workers employed by a PCBU, rather than contractors or subcontractors. As such, the term ‘employee’ has been used.
An employee can be summarily dismissed if their actions or omissions amount to ‘serious misconduct’ as defined by the Fair Work Regulations 2009 (Cth). This includes a worker engaging in wilful or deliberate behaviour that is inconsistent with the continuation of their employment relationship, such as deliberately not adhering to a safety policy after being provided with a reasonable direction to do so. Behaviour that causes a serious and imminent risk to health or safety can amount to serious misconduct.
For an employer to have a valid basis for dismissal, an employee’s breach of a safety policy or procedure doesn’t need to amount to serious misconduct or result in an incident or serious safety risk. In circumstances when an employee (despite training and instruction) fails to comply with basic safety rules, the only way to ensure the safety of workers might be to remove an unsafe employee or worker from the workforce.
Recent case law
Recent Fair Work Commission (FWC) decisions have indicated safety breaches do not need to result in an incident to justify termination. Rather, PCBUs should look at the risk created by a worker’s breach of safety policy and procedure, and the extent of training, instruction and supervision provided to employees.
In Robert Drysdale v John L Pierce Pty Ltd  FWC 1251, a fuel delivery driver was validly dismissed for failing to comply with exclusion zone requirements to delineate a work area at a petrol station and adhere to a requirement not to use a mobile phone while discharging fuel from a truck. The requirements were documented in work procedures that the driver had been trained in. Although the mobile phone breach was described by the driver as a “30-second error of judgement”, if a leakage or a spillage occurred at the connection point, (the point where the tanker’s fuel hose connected to the service station’s underground storage tank) the distracted employee would be less likely to be able to activate the emergency stop device.
In Sarah Engel v Central Queensland Services Pty Ltd  FWC 87, an operator/trainer/assessor (worker) was dismissed for failing to escalate and disclose material information about a breached exclusion zone (which was set around a misfire zone) at a mine site. During the previous shift, a colleague had mistakenly dug through the exclusion zone. During the next shift, the worker inadvertently traversed the exclusion zone (as the markers had been disturbed). Instead of reporting the issue directly to her supervisors, the worker alerted her colleague (who was responsible for the initial breach). Neither reported it to the supervisor. The worker also failed to provide material information during the incident investigation. Having already received previous safety-related warnings (one relating to positive communication of safety issues), the worker was validly dismissed from her employment.
These cases illustrate that, despite the consequences of an employee or worker’s safety breach or omission not eventuating, employers may have a valid reason to dismiss an employee based on the risk associated with the employee’s conduct or omission.
Tips for employers
While unsafe conduct may justify termination of employment, a dismissal may not be valid if the employer/PCBU does not have robust WHS systems to support safety expectations for employees and workers. Before implementing disciplinary measures in response to unsafe conduct, employers should:
- properly investigate the incident and understand the causal factors to determine if there is sufficient evidence to establish a breach;
- be able to prove that employees/workers are aware of the safety requirements and that the requirements are regularly reinforced;
- understand the risk(s) arising from the breach and if the proposed disciplinary action is appropriate — punishment should be proportionate to the breach and may warrant more serious sanctions;
- determine whether the conduct is ‘serious misconduct’; and
- consider all circumstances when determining proportionality, such as the worker’s employment history and service record.
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