Where there has been a serious breach of safety that could have endangered the lives of the employees involved, and possibly others as well, employers need to take several things into account if they are contemplating summary dismissal. 

For example, one business reported an incident on the night shift where a collision occurred between two forklifts. According to witnesses, both drivers were involved in a race around the workplace. Management viewed this to be a serious breach of their workplace health and safety policy and wanted to summarily dismiss the employees engaging in the dangerous behaviour.  

The first thing to consider is the definition of serious misconduct under the Fair Work Regulations 2009 (Reg 1.07). In this Regulation, serious misconduct includes conduct that causes serious and imminent risk to the health and safety of a person. A minor breach of safety rules may not be sufficiently serious to warrant dismissal. 

As a general rule, only in extreme cases where an employee was wilfully or grossly negligent would summary dismissal be justified. An unsafe act by an employee may justify dismissal from employment, although care should be taken by the employer before doing so. In many instances, an employer should proceed through a series of warnings culminating in dismissal if the unsafe acts continue. 

 

Fair Work Commission considerations 

In any subsequent unfair dismissal matter, the Fair Work Commission may take into account the following issues when determining whether there has been a breach of safety: 

  • the seriousness of the breach/incident 
  • company policies setting out safety procedures and consequences for breaches 
  • relevant WHS training by the employer 
  • whether the incident/breach was an isolated incident or recurring in nature, and 
  • whether the employee concerned was a supervisor and expected to set an example.

Any unsafe act which is to be the basis for disciplinary action should be investigated by the employer. In particular, the employer should be confident that the unsafe act occurred as a result of the employee’s negligence (or wilful act) and not because of any lack of safety in the system of work established by the employer. 

The employee should be informed of the allegation against them and given a chance to respond. If the worker is asked to attend a meeting with management to discuss the issue, the worker should be given the opportunity to bring a support person with them. 

 

What does case law say?

In a matter heard before the Fair Work Commission, fellow employees alleged that an employee had intentionally placed his hand close to the rotating drum of a machine operating at high speed.

The employer dismissed the employee on the basis of serious misconduct. The Commission found that the potential injury, entanglement in the rotating drum, and the substantial costs resulting from an entanglement were so significant that the dismissal, without previous warnings, was justified. See Singh v Fenner (Australia) Pty Ltd [2015] FWC 5583 (25 August 2015).

In another case, an employee’s employment was subject to a final formal warning, which mandated that he be dismissed for any further safety breaches. The employee was dismissed after being observed driving at a dangerous speed and in an unsafe manner on the employer’s site.

The Commission found the reason for dismissal was based on a minor breach of the policy, and dismissal was out of proportion to the conduct. The employee was reinstated. See Stephenson v Patties Foods Ltd [2015] FWC 5900 (30 September 2015).

An employer should seek legal advice before summarily dismissing an employee because of an unsafe act or unsafe behaviour in the workplace. 

 

The bottom line

A single one-off unsafe act by an employee in the workplace is not necessarily considered serious misconduct. Only where an employee was wilfully or grossly negligent would summary dismissal be justified.