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Breach of cardinal safety rule justifies dismissal

In a recent case before the Fair Work Commission, it was confirmed that breaching a ‘cardinal’ safety rule was a valid reason for dismissing an employee.

Interestingly, the employer did not actually rely on the employee’s breach of its safety rules as the reason for his dismissal. Instead it relied on the employee’s repeated dishonest behaviour in backdating safety documents that he was required to complete before undertaking particular tasks.

The employee injured his thumb whilst opening a fuel storage tank that was mounted within a sea container. The employee was required to complete a Job Hazard Analysis (‘JHA’) form before completing this task and failed to do so.  In the Fair Work Commission’s view, failing to complete the JHA, on its own merits, would have constituted a valid reason for dismissal.

However, the employer focussed upon the subsequent discovery that the employee had dishonestly backdated JHA’s on three separate occasions in the previous two days, including the JHA for the task from which the injury was sustained. The employee argued that he had been directed to backdate the relevant JHA’s by a safety adviser who was also employed by the employer.

During the hearing, the employee claimed that the fact that he had been directed to backdate the documents by his safety adviser should have been a mitigating factor in the decision to terminate him. The Fair Work Commission held that it was the repeated nature of the behaviour over a period of 2 days that demonstrated the ‘intentional dishonesty’ of the employee.  This, coupled with the fact that the employee conceded that he was not forced to backdate the JHA’s and that he admitted knowing that his actions were ‘wrong and dishonest’,  was sufficient to outweigh any mitigating effects of the safety adviser’s direction.

The Fair Work Commission therefore held that the dismissal was not unfair. The case demonstrates the importance placed on compliance with work health and safety requirements but it is recommended that advice be taken before terminating an employee for a safety breach.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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