Patience, you must have: FWC upholds safety-related dismissal of employee given multiple chances 6 December

The Fair Work Commission’s (FWC’s) recent decision in Hafsteins v Correct Installs Pty Ltd [2020] FWC 2729 has showcased a “patient” employer’s handling of an employee’s numerous workplace health and safety breaches.

The employee was employed at a racking and storage system installation business for two and a half years, initially as a labourer before being promoted to the position of Second in Charge.

Work health and safety and conduct concerns were initially raised with the employee in early June 2019 when the employer became aware of a number of breaches, including that the employee had:

  • caused damage to various equipment and vehicles at the employer’s warehouse and on worksites;
  • failed to complete safety documentation including a log book to record truck usage and a statement acknowledging workplace safety protocols;
  • failed to conduct plant checks in accordance with the employer’s policy;
  • driven an electric scissor lift out of the warehouse while the cord was still plugged in, and then failed to notify anyone of the incident and left the damaged cord available for use; and
  • failed to properly hitch a trailer to a vehicle while driving it on a public road.

The employee accepted these allegations and was given a warning. He was also reminded to listen to simple instructions such as doing a “walk around” a trailer before driving a vehicle towing it, and told to review the notes from that meeting every morning to think about how he could improve his safety performance.

By the end of June 2019, the employer commenced another disciplinary process with the employee which resulted in another warning being issued in relation to various instances of misconduct. These included:

  • being absent without authorisation or notice to the employer;
  • attending for work thirty minutes later than his rostered start time;
  • speaking negatively of his work colleagues to customers; and
  • causing offence to a customer’s employee which resulted in the customer refusing to work with him.

The employee did not dispute these matters.

In early August 2019, the employer commenced another disciplinary process which resulted in a final warning being issued to the employee in relation to further instances of misconduct and work health and safety breaches. This time, the incidents included:

  • attending for work late and not commencing work until an hour after his rostered start time;
  • failing to maintain proper communication with other employees whilst working in a scissor lift and failing to show due care and attention to company and client equipment by slamming things down; and
  • acting disrespectfully towards the HR Manager by hanging up on them before the discussion was concluded.

At this point, the employee was advised that further misconduct might result in the termination of his employment and that his performance would be reviewed again in September 2019.

In September 2019, the employer became aware that, on a job in July 2019, the employee had allowed a power lead to be used across a high traffic forklift area which resulted in the customer having to block off the area.

When this matter was raised with the employee, he advised the employer that the lead was rolled up. The employee later conceded that this was not the case and said that he was “on the defensive” because the test and tag period for his tools had expired and his tools were out of date.

The employee was subsequently dismissed as a result of this incident and the previous warnings he had received in relation to following reasonable management instructions, lateness, inappropriate behaviour and breaching safety procedures.

In the unfair dismissal proceedings before the FWC, the employee argued that there was no valid reason for his dismissal. He argued that he was dismissed because of the incident in July 2019 and that this was unfair because other workers also regularly had power leads running across walkways, workers had been notified of the work being completed in that area, and they had been advised to use an alternate doorway.

After considering the evidence, the FWC found that the employer had a valid reason to dismiss the employee. It found that the employer had appropriate workplace health and safety procedures in place and that the employee failed to follow them on numerous occasions, despite being repeatedly warned about his attitude towards workplace health and safety.

The FWC found that the employee was sufficiently trained in the procedures and, in any event, “some of the [employee]’s safety breaches were so fundamental that he should not have required training to prevent them. The conduct of the [employee] in running a power cord across a doorway through which forklifts could travel, is a case in point” [at 52].

The FWC preferred the evidence of the employer and considered that “the [employee] had a tendency to rationalise his behaviour by attempting to establish failures in the [employer]’s training or systems, when the [employee] was responsible for the many incidents about which he was warned” [at 54].

The FWC found that the employer had every reason to dismiss the employee in June 2019, and it displayed great patience with the employee’s numerous and serious safety breaches and persisted with attempting to rectify his attitude. It went to great lengths to afford the employee procedural fairness by setting out the allegations about his conduct and giving him every opportunity to respond.

The FWC therefore dismissed the employee’s application.

Lessons for employers

This decision is a good example of how employers, particularly managers, should approach issues of misconduct in the workplace. Rather than acting with haste to dismiss an employee when an issue arises, employers should, at least, provide an employee with an opportunity to respond to concerns about their conduct in the workplace prior to engaging in disciplinary action. In this matter, the employee was provided with multiple opportunities and still failed to improve to the standard required.

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