Employees who commit “wilful, negligent or reckless safety breaches can reasonably be held to have committed misconduct”, Fair Work Aust Senior Deputy Pres Jonathan Hamberger has held. “Indeed, the definition of serious misconduct in reg 1.07 of the Fair Work Act 2009 expressly includes conduct that causes serious and imminent risk to the health and safety [H&S] of a person,” he said.
But not all H&S procedure breaches automatically entitled an employer to dismiss an employee. “The severity of the breach needs to be considered,” SDP Hamberger said. “Moreover, an employee’s previous record may well be a relevant consideration. In this case, the respondent in deciding to terminate the applicant’s employment, had regard to a number of prior warnings concerning breaches of [H&S] procedures.”
SDP Hamberger was dealing with another case about a standard operating procedure (SOP) breach (OHN 870), and held it was clear operator Hunter Douglas committed the breach even though his employer, The Aust Reinforcing Company, trained him about the SOP. The company sacked Douglas on Sept 22, 2009, the day after he manually handled product on an off-coil machine while standing on a conveyor. The conveyor was installed in early 2008 so employees could operate the machine hands-free. It was upgraded after an employee lost part of his finger operating the machine in 2007.
SDP Hamberger said The Aust Reinforcing Company took into account four previous incidents involving Douglas’s attitude to safety. They included two ‘first and final’ warnings issued in 2004 and 2005, a written warning in 2006 and verbal counselling in Aug 2009. “His breach of the respondent’s safety procedures on Sept 21, 2009 was both serious and reckless, and put his own safety at risk,” SDP Hamberger said. “Moreover, this was far from an isolated incident. He had been warned and counselled on a number of previous occasions about safety breaches and had generally displayed a poor attitude to safety.” He held the dismissal was not harsh, unjust or unreasonable. (FWA, Douglas v SSX Services Pty Ltd, t/as The Aus Reinforcing Company, 14/4/2010)