A recent unfair dismissal application before the Fair Work Commission (FWC) saw a standoff between an employer and a health & safety representative (HSR) about workplace behaviour, hazard reporting and risk identification procedures.

In Kaskol v TNT, the FWC was asked to determine whether or not a terminated employee's actions constituted misconduct, or whether he was acting in his statutory role as a HSR and was therefore immune from complying with his employee obligations.

In a win for employers, the FWC held that employees acting in statutory roles are not immune from compliance with their ordinary employee obligations. It stated that employers should not be required to maintain employment of those who continuously make false and vexatious claims in the face of repeated warnings not to do so.

Background

The employer argued that the employee had been warned about appropriate workplace behaviour and was issued with several reasonable and lawful directions over a number of years. These directions required the employee to report safety matters in accordance with the company procedure and to complete hazard reports for all safety allegations. He was also required to stop:

  • sending emails and memoranda to managers that contained offensive and derogatory comments about senior colleagues
  • making broad and lengthy safety breach allegations that were not made in accordance with the established procedure
  • raising his voice and pointing his fingers at a manager and, when requested to stop doing so, retaliating in an offensive way
  • alleging that the company's WHS Committee's Constitution was corrupt, and
  • making unfounded complaints and allegations.

The employee's arguments

The employee refused to comply with the directions, arguing that his role as a HSR (as opposed to an ordinary worker) empowered him to act as he did. He asserted that while appointed to this statutory role he had immunity from disciplinary action and termination.

The employee further alleged that the employer's dismissal of his complaints were influenced by racism and company cover-ups and that, despite his termination, he continued to hold the HSR position until removed by court order or de-elected by his work group.

The FWC's decision

The FWC found that the employee made several serious and unsubstantiated allegations against his colleagues. It held that employees acting in statutory roles are not immune from compliance with their ordinary employee obligations – and that in any event, he was not acting as a HSR in the circumstances. Despite reasonable attempts by his employer to address his concerns and to instruct and train him on how to appropriately raise any genuine issues, the employee continued to act in disregard of the directions. The FWC found that this was "inconsistent with the continuation of his employment and destructive of the necessary relationship of trust and confidence between the employer and the employee that is essential to the employment relationship".

In a win for employers, the Commissioner stated that they should not be required to maintain employment of those who continuously make false and vexatious claims in the face of repeated warnings not to do so. Despite the significant affect the termination had on the employee, the dismissal was found to be appropriate in the circumstances.

We would like to acknowledge the contribution of Julie Kneebone to this article.

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