By Michael Selinger
A recent decision of the Fair Work Commission (FWC) has highlighted that even where an employer validly dismisses an employee for a serious safety breach, the dismissal could still be found ‘harsh’ and therefore ‘unfair’.
Usually terminating employment for a serious safety breach will not see an employer end up in the FWC. However, in John Dunn v Bega Cheese Limited (2019) FWC 8392, the employee was successful in having his unfair dismissal claim upheld on the basis that, even though he had deliberately breached a safety rule, his lengthy period of service and lack of transferrable skills in the regional area of Bega meant the dismissal was harsh and unfair.
In this matter, a process worker who was working at a factory of Bega Cheese Limited (the Company) brought an unfair dismissal claim against the Company after being dismissed by reason of his breach of the Company safety protocols.
On the date of the incident, Mr Dunn was completing his normal tasks until the box-crushing machine was blocked which would lead to piling up and overflow of boxes onto the floor into the forklift path below.
The company safety procedure to access the box-crusher is to travel through a boom-gate door, down a foot path behind a handrail path to the box-crusher. The boom-gate and roller-door is interlocked and the boom-gate will only open if the roller-door, which grants access to the forklifts, is closed.
When Mr Dunn was on his way to the box-crusher, he realised that the roller-door was open and therefore was unable to travel through the boom-gate. Mr Dunn bypassed the boom-gate and walked on the outside of the guardrail of the pedestrian path, where forklifts operate.
When Mr Dunn was traveling along this route, a forklift drove into the area past Mr Dunn. The forklift driver filed an incident report and an investigation ensued. After having three meetings with Mr Dunn, the Company decided that it was satisfied Mr Dunn had engaged in serious misconduct and terminated his employment. Mr Dunn was dismissed with 5 weeks’ pay in lieu of notice.
The Commission found that Mr Dunn deliberately breached the Company safety protocol in that he bypassed a safety control and did not keep clear of a moving vehicle.
The Commission was also satisfied that Mr Dunn was notified of the reason for his dismissal and was given an opportunity to respond.
However, the Commission found that there were discernible and significant mitigating factors, including:
Mr Dunn had 17 years of completely unblemished employment with the Company;
- he was 63 years of age;
- he did not have a highly transferrable skill set; and
- the factory is located in Bega, being a small regional town, which would be difficult for Mr Dunn to find alternative employment.
Taking into account the mitigating factors, the Commission found that the dismissal of Mr Dunn was ‘harsh’ and accordingly ‘unfair’. The Commission made it clear that it was only the ‘other relevant matters’ that made Mr Dunn’s dismissal unfair.
The Commission initially awarded compensation of $56,520 but after deducting the 5 weeks’ pay Mr Dunn received at the time of his dismissal and $40,000 for Mr Dunn’s misconduct, the final compensation ordered was $11,100.
Lessons for employers
Although the Commission reduced the compensation by a significant amount considering the employee’s misconduct, this case is a warning that the Commission is ready to award judgments in favour of the employee even where they breach serious safety protocols.
While disciplinary action must certainly be taken for breaches of safety, consideration should be given as to whether dismissal is appropriate.