Workplace accidents impact on productivity and the bottom line.
If a workplace has ensured that they have met all their due diligence by providing the necessary training, instruction, equipment and environmental safety and a worker causes an accident because of serious misconduct it would seem reasonable to dismiss them.
Workplaces with high-risk activities are well aware or should be aware of the level of risk and the possible cost to their business in fines and penalties when an accident may have involved a forklift, which could include jail time.
The laws are clear on the consequences of workplaces accident in high-risk occupations and work activities.
Some example, of prosecutions following accident forklift incident and accident are:
- Hellmann Worldwide Logistics Pty Ltd was convicted and $100,000 after a worker was injured by a forklift.
- Covino Farms Pty Ltd. a Gippsland vegetable farm convicted and fined $80,000 after a contractor was struck by a forklift.
- Macleay River Protein fined after ‘preventable’ forklift death to the amount of $375,000 over the death of a worker in a forklift accident.
Whilst these examples show the fine which is one of the direct costs to the business, keep in mind that there are hidden cost or indirect cost which are often 4 to 10 times higher than the direct cost having a greater impact financially. Hence; workplaces are often mindful and diligent in ensuring safety compliance.
Is there a Valid Reason for Dismissal?
The term valid, means it must be sound and well founded, not fickle, fanciful or prejudiced. The PCBU must followed due process by notifying the worker of the reason for their dismissal and giving them an opportunity to respond to the reason, to validate dismissal. However, no case should be determined without considering all of the facts and circumstances relating to the matter. It’s important to seek advice from the experts.
A valid reason for dismissal may relate to a worker’s:
- Conduct or Misconduct.
- Statutory illegality or breach of a statutory restriction
- Some Other Substantial Reason (SOSR)
The conduct of a worker that is deemed misconduct, is behaviour of a worker that is not appropriate at the workplace or in breach of their contract of employment.
What may constitute misconduct
The following are a few examples of what may constitute misconduct:
- A breach of company policy;
- engaging in an activity that poses a serious risk to the health and safety of individuals or the reputation or feasibility of the business;
- being dishonest;
- having a poor attitude and engaging in poor behaviour towards your PCBU and/or other workers whilst at work;
- failure to follow a lawful and reasonable direction given by your PCBU;
- being intoxicated at work;
However, it’s important to understand that each individual circumstance is different and needs to be determined taking into account various factors. It depends on the nature of the conduct in the particular circumstances and the worker’s history as to whether the conduct in question is a valid reason to terminate the worker’s employment.
Just because a worker engaged in what may constitute misconduct, does not always mean that dismissal was the right answer or that the dismissal was valid.
Does unsafe behaviour warrant summary dismissal?
Whilst the Fair Work Commission may find it to be a valid reason for the dismissal, however they may deem it was harsh, unjust or unreasonable?
In the case of Nguyen v IGA Distribution (Vic) Pty Ltd  where a worker was terminated for causing a forklift to collide with another forklift, is a good example. Although the Fair Work Commission’s finding was that the seriousness of the conduct and the possible health and safety risks caused by the incident, was a valid reason for dismissal, they determined that the termination was harsh and unjust because the PCBU was wrong in accusing the worker of deliberately causing the accident.
What defines serious misconduct?
Serious misconduct is in extreme cases, where a worker was wilfully or grossly negligent and would therefore dismissal could be justified. Such conduct falls within the definition of “serious misconduct” in Reg 1.07 of the Fair Work Regulations 2009. In other instances, an PCBU should proceed through a series of warnings, culminating in dismissal if the unsafe acts continue.
Consideration of Safety Breaches
When the Fair Work Commission is determining whether there has been a breach of safety in cases of unfair dismissal matters, this is what they take into account:
- The seriousness of the breach or incident
- Workplace policies setting out safety procedures and consequences for breaches
- Relevant WHS training by the PCBU
- Whether the incident or breach was an isolated incident or recurring in nature, and
- Whether the worker concerned was a supervisor and was expected to set an example.
When a workplace takes all the necessary steps to implement safe work procedures, ensure workers are trained, supervised, invest in resources to prevent workplace accidents. It’s only makes sense that workplaces see non-compliance and unsafe acts as a valid reason to dismiss workers that chose to be in breach of the workplace policies and procedures by part-taking in serious misconduct.
An unsafe act by a worker may justify dismissal from employment, however, care should be taken by the PCBU before doing so.