By Mike Toten Freelance Writer

The Fair Work Commission (FWC) has upheld the dismissal of an employee who regularly breached health and safety rules at the workplace and failed an alcohol test. This was despite evidence that other employees also breached WHS rules. The decision emphasises the point that an employee’s actual (mis)conduct carries greater weight than how other employees were treated in similar situations.

 

Facts of case

The employee was a garbage truck driver. The WHS breaches had occurred over a lengthy period, but the driver claimed that other employees regularly committed the same breaches, therefore he was dismissed unfairly.

The FWC found that the WHS policies and rules in question were justified and fair.

Dismissal followed the employee having two “at fault” accidents within three days that caused damage while driving. The employer attempted to give him a warning letter but he refused to accept it. The employer left it in his in-tray.

The employee’s clearly-stated policy was that drivers should only drive trucks on their operator/pick-up side when necessary (eg actually picking up bins) and for short distances only. However, many drivers found it easier and quicker to continue driving from that side. The employee claimed that it was unsafe to stop and swap sides when traffic was around. An employment policy also set speed limits for drivers, backed up by signs, which this driver exceeded.

A second warning alerted the employee to the possibility of dismissal if further breaches occurred. The employee was the on-site health and safety representative and convened a stop-work meeting of drivers. He had raised a list of workplace concerns, and management responded that they were not immediate health and safety risks, but would be dealt with in time. The employer then issued him with a stand-down letter. Although he was told that the contents were confidential, he insisted on telling other employees about it and refused a direction to leave the work site. The employer claimed that the driver had threatened the manager who issued the letter and the directive to leave.

Following that, the employer issued an “allegations letter” and invited the employee to respond to it. A final written warning followed after the employer found its allegations to be substantiated.

The next time he returned to work, the employer had organised drug and alcohol testing for employees and the driver returned a positive result for alcohol. He was not allowed to drive and later sent home, being stood down with pay. Another “show cause” letter, again citing possible dismissal, followed. Two weeks later, he was dismissed.

The employee had been issued with copies of the employer’s WHS policies, including its alcohol/drugs policy, workplace behaviour/misconduct policy and performance management/discipline policy. Driving trucks was covered in detail. The employee had been trained in how the policies operated, and as site WHS representative, he would have been aware of the importance of WHS.

The employee was also the on-site union representative, and claimed that this was a factor in the decision to dismiss him.

The FWC found that the policies were correctly applied and the alcohol/drug test was correctly conducted.

 

Decision

The WHS breaches, and the frequency of them, amounted to a valid reason for dismissal. The FWC found that the employee’s union and WHS representative roles were not factors in the employer’s decision. It also found insufficient evidence that the employee was singled out for breaches of WHS policies/rules when other employees also breached them without sanction.

While the employer had not been 100% consistent in the way it applied its policies, overall it had handled the dismissal in a procedurally fair manner, and the valid reason noted above outweighed any shortcomings in this respect.

 

What this means for employers

As important as it is to treat all employees consistently in relation to employment policies and rules, if an individual employee’s regular breaches of them are serious enough to warrant dismissal, this decision indicates that the FWC will find in favour of the employer. In this case, it outweighed the probability that other employees were committing similar breaches.

Policies and rules need to be justifiable in the first place, clearly communicated to employees (including training and reminder sessions, and employee sign-off) and then applied “by the book”. Applying them consistently to all employees is highly recommended.

 

Read the judgment

Mr Roland Barber v Veolia Recycling and Recovery Pty Ltd - [2025] FWC 403 | Fair Work Commission