Australia: Breaches of safety procedures: serious, but not serious misconduct?

Key Points:

Employers may think that a serious breach of safety procedures is automatically serious misconduct and provide strong grounds for the employee's immediate dismissal, but this isn't necessarily so.

Where an employee fails to comply with an employer's safety procedures, the employer may feel justified in dismissing the employee on the basis of serious misconduct, given that the employee's actions have placed themselves and others at risk. However, as reflected in a recent decision of the Fair Work Commission (Harrington v Coates Hire Operations Pty Limited [2015] FWC 2598), unless the employee's breach of safety procedures was "wilful or deliberate", it may fall short of being considered serious misconduct, in which case the dismissal may be deemed to be unfair.

What happened in Harrington?

Mr Harrington was employed as a driver by Coates, which was involved in construction of the Gold Coast Light Rail line in 2014. Part of his duties involved delivering and picking up portable toilets on the site. Previously, parts of the Rail line that had "gone live" were designated as "hazard zones", with special safety requirements applying to any work carried out in those zones. In the course of his duties, Mr Harrington stopped his truck next to part of the tracks to collect a damaged disposable toilet, near some overhead wires, believing this part of the site was not live. Unbeknownst to him, the entire Rail line had recently gone live.

While no-one was injured as a result of Mr Harrington's actions, Coates considered his presence in that part of the site to be a serious hazard and a breach of its safety requirements. After meeting with Mr Harrington and getting his response, Coates labelled his conduct a "serious safety breach that constitutes serious misconduct", and dismissed him.

After fairly protracted proceedings (Mr Harrington's case was originally upheld, overturned by the Full Bench on appeal, and ordered to rehearing), Commissioner Booth found in Mr Harrington's favour and ordered his reinstatement, finding not only was there not a valid reason for Mr Harrington's dismissal, but that the dismissal was harsh, unjust and unreasonable in the circumstances.

Mr Harrington's mistaken views about safety were not serious misconduct

In reaching her decision, Commissioner Booth strongly disagreed that Mr Harrington's actions equated to serious misconduct, stating:

The Commissioner also noted that:

• Mr Harrington had not been advised when making inquiries about the job that it would be inside a hazard zone;
• there were no visible hazard zone signs, tape, bunting or any other indication that the area Mr Harrington in was live, as was normally the case;
• by Coates' own admission, Mr Harrington's branch had never been told in "toolbox" meetings that the entire site had gone live;
• the work order issued to Mr Harrington did not include a safety warning, but was amended shortly after the incident to include a safety warning;
• Mr Harrington's conduct in carrying out the task (based on video footage) reflected that he took care and performed his work in a safe manner; and
• prior to this safety incident, Mr Harrington's record (in almost 12 years of service) was unblemished.

On the basis of the above factors, Commissioner Booth determined that Mr Harrington's actions, while technically a breach of safety requirements and potentially dangerous, were "neither wilful nor negligent", but rather reflected that Mr Harrington was "uninformed of relevant risk factors". On that basis, his dismissal was unfair.

Trust and confidence: Just saying it's gone won't prevent reinstatement

In Harrington, Coates argued that reinstating Mr Harrington was inappropriate in the circumstances, as it had "lost trust and confidence" in him as a result of his breach of safety procedures. However, Commissioner Booth rejected this argument, stating that she found Mr Harrington to be "an honest and very willing worker", and that if he was reinstated, there was no reason to suspect that he would not continue to perform his duties in a satisfactory manner and in the best interests of Coates.

In ordering Mr Harrington's reinstatement, the Commissioner acknowledged that the parties would have to "display some magnanimity towards each other at the recommencement of their working relationship", but felt that there was nothing in the evidence to suggest that the parties were incapable of doing so.

It is also worth noting that Commissioner Booth commented on the various changes to procedures implemented by Coates after the incident as demonstrating the seriousness with which it regarded the incident. However, she also observed that the changes reinforced the submissions made by Mr Harrington that Coates' previous procedures were "insufficient in the circumstances".

Employers in a stronger position where safety breach is "wilful or deliberate"

There is no argument that employees involved in serious safety incidents may be subject to disciplinary action, particularly if they have failed to follow established safety procedures. However, in the context of what level of disciplinary action may be appropriate, there may be a significant difference between an employee who has had an inadvertent lapse of concentration that results in a safety breach, and an employee who deliberately and knowingly disregards a safety requirement. On that point, it should be noted that the Fair Work Regulations defines "serious misconduct" to mean conduct that includes both of the following:

1. "wilful and deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment" [emphasis added]; and
2. "conduct that causes serious and imminent risk to:
3. 1. the health or safety of a person; or
   2. the reputation, viability or profitability of the employer's business."

Given that definition, while an employer may assume that an employee whose conduct causes a serious and imminent risk to health and safety is guilty of serious misconduct, unless there is a "wilful and deliberate" element to that conduct, the Fair Work Commission may not share that view in an unfair dismissal context.

In dealing with an employee involved in a safety incident, employers should therefore carefully consider the nature of the breach, in terms of whether the employee's actions were inadvertent, reckless, or wilful or deliberate (which in the latter case would qualify as serious misconduct ), before reaching a final decision on what action should be taken against the employee. Other relevant factors, such as the employee's length of service and previous disciplinary record should also be taken into account, as they certainly will be if the employer ends up in the Fair Work Commission.

As always, if employers are unsure, they should seek legal advice.

You might also be interested in...

• Ain't misbehavin': Are "negligence", "gross negligence" and "serious misconduct" the same thing?

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.