In the recent case of Doug Drowley v RTL Mining and Earthworks Pty Ltd [2021] FWC 1911 (21 April 2021), RTL’s inconsistent treatment of employees found to be equally culpable for a serious safety incident cruelled its attempt to defend an unfair dismissal claim.

RTL terminated the employment of Mr Drowley after finding him responsible for a potentially serious safety incident where a truck he was responsible for slid down a hill and collided with another truck.

While no one was hurt and no significant damage occurred, the risk, had it manifested, could have been catastrophic.

After investigating the incident, RTL determined another employee, Mr Kilpin, had:

• failed for five months to properly perform a pre-start inspection on the truck involved in the incident, and
• knew the handbrake was not working, and had not for a significant time.

The Commissioner held these were equally serious contributions to the incident.

RTL issued Mr Kilpin with a final written warning and terminated the employment of Mr Drowley.

This difference in treatment was the “most pressing issue” for Commissioner Bisset in finding the dismissal of Mr Drowley to be unreasonable, noting there was no reasonable justification for Mr Drowley to have been treated differently than Mr Kilpin.

Commissioner Bisset refused to order reinstatement for Mr Drowley, finding the evidence of loss of trust and confidence from Mr Drowley’s direct manager to be sufficient in the context of the seriousness of the safety incident and two past incidents.

Key lessons for employers

• Serious safety incidents will continue to be treated with due significance by FWC when assessing valid reasons for dismissal.
• Consistency is key: employers must ensure all employees involved in serious safety incidents are treated consistently when it comes to disciplinary outcomes (subject to personal circumstances of individual employees) and the treatment is consistent across different incidents.
• The safety lesson, not really understood and dealt with by the FWC, is that Mr Kilpin in safety law, committed much more significant breaches by failing in his supervision and being indifferent to the risk caused by his oversight and failure to fix the handbrake.

Written by Mathew Reiman

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