Safety policies can be a tricky balance for employers. Work, health and safety legislation requires all employers to implement adequate policies as a reasonably practicable way to mitigate risks and hazards.
Remember for a policy to be valid:
- Clearly outline the inappropriate conduct;
- Outline the potential consequences of a breach of the policy; and
- Must have the force of law – what is the legal foundation underpinning this policy?
Only valid policies are enforceable, otherwise you cannot discipline an employee who is in breach. Just as important as having a valid policy, is making sure that it is applied correctly and uniformly. Employers seen condoning misconduct will be caught out under both employment and safety laws.
This was what was considered in Knowles v BlueScope Steel Limited, and as we predicted would happen, Commissioner Riordan’s decision has been overturned by the Full Bench of the Fair Work Commission (see our article on the previous case).
In this case, a longstanding employee had been dismissed by BlueScope Steel Limited for breaching a critical safety procedure (CSP) for loading coils on to a saddle, a coil had lifted as it was not safely secured. Commissioner Riordan had ordered that the worker be re-instated with backpay and continuity of employment. He made the findings on the following basis:
- He disagreed that the coil had lifted or moved at all;
- His interpretation of the CSP was that a tipping coil is only a safety issue if it is possible for a “fatality from toppled or tipped coil”;
- There was no risk that anyone was in the line of fire, so no chance of a fatality;
- The worker acted safely within their interpretation of the CSP;
- BlueScope had condoned the worker’s previous incorrect practices by failing to correct his annual re-accreditation responses;
- BlueScope was exaggerating the safety breach and therefore there is no valid reason; and
- The dismissal was harsh and unfair.
Deputy President Millhouse, Deputy President Young and Commissioner Cirkovic overwhelmingly rejected the previous decisions noting:
- It was an incorrect interpretation of the CSP, the risk of a safety incident existed whether someone was in the line of fire or not;
- Commissioner Riordan misunderstood the purpose behind CSP which was to force workers to safety assess and manage risks;
- There was no evidence of condonation available;
- Commissioner Riordan failed to take into account evidence of the practical component of the reaccreditation assessment where the worker had performed the safety measures correctly demonstrating he was aware of the correct safety procedures;
- Commissioner Riordan focussed on the outcome of the misconduct rather than considering the reasons behind the CSP, which was to prevent a topple risk which was a major safety risk;
- Distinguishing this conduct from his earlier misconduct which resulted in a final warning was wrong;
- Suggestions by Commissioner Riordan that BlueScope discriminated against the worker as he was a Union delegate are inappropriate as there was no evidence that this had occurred and it was nonetheless irrelevant.
The employee was found to have been fairly dismissed. This case clearly demonstrates that employers doing the right thing will be supported by the law. BlueScope provided detailed CSPs and annual refresher trainer to reinforce workers’ safety obligations, breaches were quickly identified and acted on in line with their policies. Employers can rest assured that if you implement the right tools, any unfair dismissal claim will be defensible.
- Make sure your policies are clear and detailed, outlining all the protocols and what risks they are averting.
- Employees should be trained in the application of policies and they should have refresher training to ensure that complacency does not set in.
- Supervisors must always scrutinise workers and pull up anyone who is not complying immediately, remember condonation means you cannot discipline them!
- Any disciplinary action should still be taken with procedural fairness principles in mind, otherwise it can still be unfair even with a valid reason.
Written by Nina Hoang
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