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Procedural Fairness is Paramount! Fair Work Commission Commends Employer’s Handling of Unsafe Employee

In a recent unfair dismissal application the Fair Work Commission has commended the employer for its “scrupulously fair” treatment of a labourer who repeatedly failed to follow the most basic safety precautions and procedures. The case demonstrates the importance of maintaining procedural fairness in any investigation, performance improvement, record keeping and termination process to ensure that termination of employment outcomes stick. Whilst mistakes are often made, many termination of employment mishaps can be avoided with a little planning and knowledge.

The Company made the decision to dismiss the employee (who had been previous promoted to second in charge of the business only 18 months prior) after he received a number of warnings about his conduct and breaches of the Company’s Work Health and Safety (WHS) procedures.

The WHS Issues

The Company initially met to discuss potential WHS breaches (the Meeting) with the employee including:

  • damaged beams at a worksite;
  • damaged a car while driving a ute out of the Company’s warehouse;
  • damaged a shed while driving a ute;
  • failed to fill out the log book to record usage of the Company truck;
  • failed to conduct plant checks in accordance with Company policy;
  • failed to sign a workplace statement acknowledging safety protocols at the workplace;
  • drove an electric scissor lift out of the warehouse whilst the electricity cable was still plugged in, posing a serious WHS risk to other staff, where the employee failed to notify anyone of this incident and left the damaged electrical cable where another employee could use it; and
  • failed to properly hitch a trailer while driving a vehicle on a public road, posing a serious risk to the public.

At the Meeting, the employee was issued a verbal warning that he had “more issues [than] any other staff combined x 5” and was not listening to or reading safety instructions.” To assist with improving the employee’s safety performance the Company provided the worker with a series of notes about the WHS issues (prepared by the warehouse manager and safety advisor) telling the employee to review  them each morning before starting work.

Unfortunately, following a further final written warning, about the employees’ conduct, a customer alerted the Company to an earlier incident in which the employee allowed a power lead, used for hand tools, to run across the ground and a doorway in a high-traffic area for forklifts.

The employee was subsequently terminated from his employment.

The FWC decision

Deputy President Ingrid Asbury of the Fair Work Commission held that the employee’s numerous failures to follow WHS procedures, despite repeated warnings, constituted a valid reason for dismissal.

The Deputy President also accepted that the Company had adequately trained the employee and had appropriate WHS procedures articulated in the workplace.

However, the Deputy President noted that some of the Worker’s safety breaches were “so fundamental that he should not have required training to prevent them“.

Managers “displayed great patience”

The Deputy President recognised that the Company’s managers “displayed great patience with the [employee’s] numerous and serious safety breaches and persisted with attempting to rectify his attitude, before deciding to dismiss him“.

The Deputy President indicated that the employee was given sufficient opportunity to respond to the reasons for his dismissal based on his conduct and demonstrates the importance of keeping written records of meetings as an employer.

Despite being a relatively small company, the Deputy President said it dealt with him in a “scrupulously fair” manner and went to “great lengths” to do so.

Please do not hesitate to contact us if you would like to discuss how the team at Stevens & Associates Lawyers can assist with how to ensure procedural fairness is maintained in the termination process. If you have any questions please do not hesitate to contact Nick Stevens, Jane Murray or Bernard Cheng.

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