If an employee engages in unsafe conduct, the employer’s first reaction might be to blame the worker, it is important that employers consider whether they have done everything reasonably practicable to ensure their employees can do their work safely.
It starts with the employer
Work health and safety laws around Australia are recognised by Australia's legal system as deserving the broadest possible interpretation to ensure a safe workplace for employees and to achieve maximum accountability for those who are best placed to control workplace risks.
Legal professionals confirm that safety-related offences are a strict liability and the duty to ensure a safe work environment is held by both employers and employees. However, it starts with you as an employer and unless you can demonstrate that you have done everything reasonmably practicable to ensure your workplace is safe, you are likely to fall foul of the regulator. Only once the work environment is safe does it then fall to employees to ensure that they take reasonable care of themselves and others.
The threshold question employers should be asking themselves when considering whether they are meeting their own obligations is 'can we do more?'. It is always worth thinking about how the regulator would see things.
Train employees, exercise caution
It is critical employees understand the hazards and safety systems at their employer's workplace. Providing (and documenting) regular training of employees on these matters is essential.
Employers should also ensure their employees know that a breach of safety rules will lead to disciplinary consequences. After all, breaking safety rules can have terrible consequences.
However, caution should be employed in simply dismissing employees for breaches of safety duties. Dismissing an employee for a relatively minor safety breach can actually damage an employer's safety culture, according to some commentators.
The employer needs to think about the workforce's perceptions when an employee is dismissed for a safety breach. Consultation and then discipline supported by further training for non-serious breaches is likely to send a better message to your workforce than instant dismissal.
Employers also need to be able to demonstrate that the punishment fits the crime. They should implement performance management for contraventions, where it is reasonable to do so, rather than instant dismissal. Unless you are doing that, you are not setting yourself up for success if the regulator becomes involved. Finally, consider risk management and the real cost of employee turnover.
