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Reinstatement overturned: safety breach justified dismissal

An employer has successfully appealed against the FWC's decision.
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Reinstatement overturned: safety breach justified dismissal

Reinstatement overturned: safety breach justified dismissal

26 August 2020

By Mike Toten

An employer forced to reinstate an employee it had dismissed for breaching a safety procedure has successfully appealed against that decision.

The appeal decision took into account the factors that the breached procedure was a critical one, that the risk the breach created mattered more than the fact that no-one was affected because no-one was nearby at the time, that the employee had previously received a warning for another safety breach, and that the original decision wrongly categorised the incident as either not an incident at all, or as a minor one.


Facts of case

The employee was a crane operator who had damaged and almost tipped over a 13-tonne steel coil. He had hoisted the tongs of his crane without first moving it sideways away from the coil. No-one was injured but the incident occurred because he had not followed a “critical safety procedure” (CSP) set by the employer.

The employee was dismissed for breaching the CSP, but the Fair Work Commission found that he had been unfairly dismissed and ordered his reinstatement.

The employer, BlueScope Steel Limited, appealed against the decision to a full bench of the FWC.

The full bench found the following errors in the original FWC decision:
  • It used the wrong principle to determine the gravity of the incident.
  • It wrongly concluded that the employee had not breached the CSP. It also erred in finding that a safety incident did not occur because there was no-one else nearby when it occurred. It had concluded that there was only an “incident” if there was the capacity for someone to be injured, and in this case the coil had not actually tipped over. However, the CSP required the employee to ensure that the crane hook was clear of any coils before attempting to lift them, regardless of whether any other people were nearby. The FWC had required there to be an actual risk, but the CSP existed to prevent a potential risk.
  • It erred in finding that BlueScope had condoned the employee’s conduct, because its annual reaccreditation of him in relation to the CSP had not been corrected.
  • It erred in finding that a previous warning given to the employee for a safety breach was not relevant because it was for a different type of breach. It was still related to a (different) CSP.
  • The employee’s role as a union delegate in other matters was irrelevant to the decision to dismiss him, but the FWC wrongly inferred that the employer’s decision had taken it into account.

Therefore, the employee had breached the CSP and that provided a valid reason to dismiss him.

The FWC had said that even if the employee had breached the CSP, the breach was only a minor one and his dismissal was too harsh in the circumstances. However, the full bench also found error in that conclusion. The CSP existed because having a heavy coil topple over had the potential to cause serious damage and/or injury, so a breach of it was not a “minor” incident. The CSP existed to avoid the risk in the first place. The FWC also placed insufficient importance on the employee having received a previous final warning.


Decision

The full bench upheld the appeal and quashed the reinstatement decision. It then redetermined the matter and rejected the employee’s claim of unfair dismissal. It found that the employer had a valid reason for dismissal, and taking the employee’s personal circumstances into account (including age and more than 30 years’ service) did not make dismissal harsh in the circumstances.

This is the second time that a full bench has reversed a FWC decision that a BlueScope employee was unfairly dismissed. In the previous case, an employee had actually tipped over a coil.

The bottom line: Breach of a workplace safety procedure or policy can provide a valid reason for dismissal. In this case, the employee was aware of the procedure and chose to bypass it, and had also been previously warned for breaching another safety procedure.

Note that it is the breach itself that is the critical factor, not the extent of any consequences such as injury to others or damage to property. In this case, no-one was injured but dismissal was still justified in all the circumstances.

Therefore, breach of such a safety procedure amounted to a valid reason for dismissal.


Read the judgment

BlueScope Steel Limited v Knowles [2020] FWCFB 3439, 19 August 2020

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