In brief 3 min read
The Full Bench of the Fair Work Commission (FWCFB) has confirmed that a breach of a critical safety procedure can be grounds for dismissal, even where there is no actual risk of injury to any person as a result of the breach. In reaching this conclusion, the FWCFB rejected Commissioner Riordan's reasoning that the capacity for someone to get injured was a prerequisite to establishing a safety incident.
In certain circumstances an employee's breach of a critical safety policy or procedure can, in and of itself, be grounds for dismissal.
However, even where there has been a clear breach of a critical safety procedure, the following factors will also be relevant to successfully defending any subsequent unfair dismissal claim:
- whether the employee has received prior warnings for similar breaches;
- the employee's awareness that his employment may be terminated for breaches of critical safety procedures;
- whether the employee has received training in respect of the relevant critical safety procedure and, if applicable, when that training occurred; and
- the employee's age, length of service, disciplinary record and employment prospects.
Trevor Knowles had been employed by BlueScope Steel Limited (BlueScope) since 1988, most recently as a despatch operator. The role of despatch operator required Mr Knowles to move coils within a warehouse using a crane. On 1 October 2019, BlueScope terminated Mr Knowles' employment for contravening a critical safety procedure by inappropriately using a crane to clear a coil.
Following his termination, Mr Knowles lodged an unfair dismissal application with the Fair Work Commission. Commissioner Riordan determined that:
- as there was no person 'in the line of fire' at the time of the incident, Mr Knowles had not breached the safety procedure; and
- there is no safety risk or incident unless there is capacity for someone to get injured.
Commissioner Riordan held that the dismissal was unfair and ordered BlueScope to reinstate Mr Knowles to his former position with continuity of employment and backpay.
BlueScope subsequently appealed Commissioner Riordan's decision on various grounds, including that he erred in finding there was not a valid reason for Mr Knowles' dismissal, and that if there was a valid reason for his dismissal it was harsh and unreasonable.
The FWCFB upheld BlueScope's appeal, finding that:
- Mr Knowles' inappropriate use of a crane to clear a coil was a breach of a critical safety procedure and a valid reason for his dismissal; and
- the absence of the capacity for real or actual damage to human life did not prevent Mr Knowles' breach of a critical safety procedure from being a significant safety incident.
Importantly, the FWCFB reinforced the purpose of critical safety procedures, which operate on a preventative basis to minimise or eliminate potential risks in the workplace. Commissioner Riordan's assessment that there needs to be an actual risk (ie a person 'in the line of fire') misunderstood employers' safety obligations.
Mr Knowles' age, length of service and employment prospects were considered by the FWCFB in the course of their decision. None of these factors weighed heavily enough for the FWCFB to conclude, however, that Mr Knowles' dismissal was unfair. Instead, the fact that Mr Knowles had been given a prior warning for a breach of a critical safety procedure, was aware his employment may be terminated for breaches of a critical safety procedure and had recently received refresher training in respect of the critical safety procedure that ultimately lead to his dismissal, caused the FWCFB to conclude that Mr Knowles' dismissal was justified.