By Michael Selinger

What do you do when you are faced with an employee who has breached your safety rules? Are you able to dismiss them or do you need to go through a process of weighing up the impact the dismissal will have on the employee?

When one of your workers breaches your safety rules, you as an employer are faced with two duties that, at times, are at odds with each other.

On one hand, you must comply with your health and safety statutory obligations to keep your workplaces safe. On the other, if you are considering dismissing the worker on safety grounds, you must take great care that the dismissal is fair. This will involve:

• presenting a compelling and valid reason for the dismissal;
• following a fair procedure; and
• taking into account the degree of risk and likely consequences caused by the worker’s contravention of safety rules.

How would you respond to the following scenario?

A worker who was a licensed forklift driver had been caught a couple of times by management for speeding in the warehouse. He was given a verbal and written warning and then put through refresher training again on the safe use of a forklift. Part of that training involved clear instruction not to speed. The worker was allowed back on the forklift and observed performing in accordance with the rules.

A short time later, when the forklift driver was speeding again he struck and very seriously injured a pedestrian worker. The business was prosecuted by the health and safety regulator for failing to have in place a safe system of keeping forklifts separate from pedestrians.

The question is though, should the business have sacked the forklift driver for breaching the warehouse speed-limit, or was the process the business followed reasonably? Rather than facing an unfair dismissal claim though, the business now faces a health and safety prosecution.

While the trend of unfair dismissal cases in the Fair Work Commission (FWC) emphasises the importance of the duty of the employer to keep workers safe, dismissal will not always be an appropriate response. In some cases, even though there has been a clear safety breach, the FWC has reinstated the worker or ordered the employer to pay compensation.

So, how will you determine the appropriate course of action if a worker breaches your safety rules? And, is it worth the risk of a health and safety prosecution with significant fines and reputational issues, or are you better off dismissing the worker who has breached the safety rules?

How to determine the right course of action when a worker breaches your safety rules

So what are some of the key matters to take into account when looking to terminate the employment of a worker for a safety breach?

Listed below are some factors the FWC has taken into account:

• The significance of the breach, and the real risk of significant and immediate harm that it created. In some cases, where businesses have had ‘golden’ safety rules that were created in order to avoid potential fatalities or serious injury, any breach will justify the termination of employment.
• For other less critical safety rules, as long as there was consistent and universal enforcement of the rule, and that workers were aware that their employment would be terminated for a breach, then the FWC was more likely to uphold the decision to terminate employment.
• If the business did not take care to ensure that particular systems in place for safety were made clear, taught to employees and understood by all, then there is a reluctance to uphold a termination of employment. For example, if it is unclear whose role it is to respond to particular safety alerts or alarms in the organisation.

• The FWC will look carefully at the personal impact of dismissal on the employee in question such that it must be proportionate to their length of service and record of employment. An employee who has only been with a company for just a year will be treated differently to a worker with more than 15 years of service and an exemplary disciplinary record.
• In all cases, the employer must adopt a fair process when investigating the alleged breach and also to take into account any mitigating factors (e.g. age of employee, length of service, explanation for the breach, disciplinary record) before terminating the workers employment.