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Safety rep sacked for treating incident as 'non-event'

FWC has upheld the dismissal of an OHS rep who ignored safety procedures.
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Safety rep sacked for treating incident as

Safety rep sacked for treating incident as 'non-event'

10 July 2020

By Mike Toten

The Fair Work Commission has upheld the dismissal of an occupational health and safety representative who ignored safety procedures.

This was despite the fact that nothing happened as a result of his failure, his 13-year unblemished employment record and his claim that the breach was a “non-event”, too trivial to justify dismissal.


Facts of case

The employee was an auto electrician working at a mine, and was the on-site union delegate. Safety procedures required him to isolate a grader before driving his vehicle into an exclusion zone (prescribed as 30 metres away from the grader) to inspect the grader for a mechanical fault. He was required to radio into the zone and also to call out before entering it, to warn anyone working within the zone. Work on the grader required placing a “danger” tag on it, isolating it to ensure it could not start or move, and completing a second job safety analysis for any work not covered by the first one.

The employee claimed that he had made a visual check of the zone from outside it, and asked his supervisor whether anyone was working in it. He had also noticed that the grader was in a shut down position.

An investigation of the incident concluded that the safety breach was a minor one, and the employee claimed his supervisor had also said that the breach was a “low-risk” one. However, the HR team regarded the breach as “very serious” and the general manager agreed with that. The employee claimed that his dismissal was too harsh and lesser disciplinary action should have applied.

The general manager claimed that there was a distinction between rating the degree of risk from incidents and rating the gravity of breaches. The employee had shrugged off the incident and failed to understand its gravity, and given his role of OHS representative he had also set a bad example for other employees.

The employee had received extensive training in OHS procedures, plus extra training when he became OHS representative.

The employer had updated its safety procedures after a fatal accident the previous year.


Decision

The FWC found the dismissal to be justified. His misconduct was not simply a single administrative or procedural breach – he had wilfully ignored two separate procedures (for access to equipment and isolation of it) that he was required to comply with. The procedures aimed to eliminate human error as much as possible, and compliance was compulsory even if subjectively they looked to be unnecessary.

Also, it was evident that the employee would not or could not accept that he had done anything seriously wrong.

The bottom line: Risk assessment and assessment of an employee’s breach of safety procedures require different judgments to be made. Even if no-one is injured or there is not even a near-miss, a breach that could have the potential for serious consequences can be a serious breach of the employee’s obligations that justifies strong disciplinary action – in this case, dismissal.

If there are specific steps set out in a safety procedure, they must be followed, even if a subjective or visual assessment suggests that they may be unnecessary.


Read the judgment

Scoffern v The Griffin Coal Mining Company Pty Ltd, [2020] FWC 3201, 23 June 2020

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