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Dismissal justified for failing to report safety incident

A commission has found his dismissal was not unfair.
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Dismissal justified for failing to report safety incident

Dismissal justified for failing to report safety incident

4 March 2021

By Gaby Grammeno

After a worker was sacked for failing to report a workplace incident in which he received a blow to the head, a commission has found his dismissal was not unfair, because compliance with incident reporting policies is vital for maintaining work health and safety.

The incident

The worker was employed as an intermediate scaffolder with a company that performed scaffolding services at seven BHP Billiton sites in Western Australia.

The company engages a labour pool of several hundred employees who are needed by the mining giant casually on an ‘as and when required’ basis, as the nature of the work at the iron ore sites often requires an influx of workers on short-term engagements.

The worker began working on a casual basis for the scaffolding company in March 2019. When he signed the employment contract, he also signed an acknowledgement that he had read, understood and agreed to be bound by BHP’s Site Rules applying to the mine site where he was working.

At the end of every shift, workers were expected to attend a debriefing where the task list was reviewed and any incidents or injuries were to be reported.

On 21 March 2020, he hit his head on a scaffold. He was wearing a hard hat at the time and said he did not feel any pain or discomfort, nor did he feel concussed. He did not report the incident at the time.

On returning to the camp, he felt some stiffness in his neck, and the next morning he noticed some tingling in his hands, but gave no further thought to it.

The day after that, he felt a soreness in his hands and knuckles. That evening when the day shift crew was assembled and the BHP supervisor asked whether everyone was feeling OK, the worker mentioned that he had sore hands but was not sure what it was.

The issue did not come to BHP’s notice, however, until some days later.

From 24 March onwards, the worker was using aspirin to manage the pain, and noticed cramping in his knees, so he visited the site medical officer. She asked him whether he had hit any part of his body that could have caused these symptoms, and he replied that he had not. The medic advised that the symptoms were non-work-related and that the worker’s condition should be monitored.

As his symptoms worsened, he consulted a physiotherapist who thought he’d suffered a serious neck injury and advised that he should go to hospital, where he was seen by a doctor who diagnosed ‘neck hyperextension’ and prescribed rest. Identifying his condition was complicated by some non-work-related issues that emerged, including arthritis and hepatitis.

By mid-April he was certified fully fit for work, but his employer expressed concern that the incident had not been reported when it should have been, so the worker was informed that a ‘disciplinary meeting’ would be held in the form of a ‘show cause’ letter.

At the end of April his employment was terminated because he’d broken the rules about reporting incidents.

The worker believed his dismissal had been unfair, and applied to the Fair Work Commission seeking compensation for his termination.

In the commission

The commission considered whether his dismissal was harsh, unjust or unreasonable.

The worker contended that banging his head was not a reportable incident, but his employer disagreed, arguing that it must have been forceful enough to cause an injury (the ‘neck hyperextension’) and that the worker had acknowledged in correspondence that he suffered a ‘suspected work-related neck injury’.

Despite conflicting evidence about when the bang to the head was reported, the commission concluded that it had not been reported in a timely manner, and that this was a serious breach of the employer’s safety rules.

The deputy president noted that the worker’s employer had no guarantee of retaining the BHP work from one purchase order to the next, so the employer was under considerable pressure to ensure it continued to meet the highest possible standards of health and safety, ‘and this can only occur if reporting injuries and incidents is proactively enforced, if necessary by the imposition of disciplinary action,’ he said.

The deputy president found that the worker’s dismissal was not harsh, unjust or unreasonable, and dismissed his application.

The bottom line: To maintain the highest possible standards of health and safety, proactive enforcement of incident reporting systems is essential.

Read the judgment

Robert Linton v Altrad Services Pty Ltd [2021] FWC 794 (15 February 2021)

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