In a continuation of the long-running saga of the unfair dismissal claim brought by Mr Knowles against BlueScope Steel Pty Ltd (Trevor Knowles v BlueScope Steel Limited [2020] FWC 1015), Mr Knowles had appealed the decision of the Full Bench alleging, amongst other things, that the Full Bench had erred in rejecting Commissioner Riordan’s decision at first instance that Mr Knowles’ breach of a critical safety procedure (CSP) was of a “minor magnitude” as no one was hurt.

Read a more detailed summary of the Full Bench decision here.

Justices Flick and Logan dismissed the appeal, finding that there was no error in the decision making of the Full Bench. Relevantly, the Court concluded that it was not up to them to decide whether Commissioner Riordan or the Full Bench’s finding was preferable to the other. They could only decide whether the Full Bench had made a decision that involved a significant error of fact, which, in this case, it had not.

The decision by Justices Flick and Logan means that the decision of the Full Bench remains good law and a decision of significant precedential value for Commissioners in the FWC on unfair dismissal matters involving serious safety breaches. The FBFWC, the Court of Appeal aligns appropriately with safety law where an employee breach of primary duty arises when they fail to exercise reasonable care to prevent injury to themselves or others. The issue is the risk of injury under safety legislation not the actuality of injury.

Lessons for employers

• High-risk activities should have mandatory compliance obligations in the policy.
• To prevent being caught in a similar situation, make sure all employees are trained in all CSPs and any mistakes are enforced – this will prevent suggestions of condonation.
• Regularly review CSPs to ensure that they are properly accounting for the risks and working effectively.
• Engage in refresher training on all CSPs to ensure employees are aware of their obligations.

Written by Mathew Reiman