Casual Sales Assistant – Unfair Dismissal for safety breach overturned on appeal

Casual Sales Assistant Unfair dismissal for safety breach overturned on appeal.png

Casual Sales Assistant – Unfair Dismissal for safety breach overturned on appeal

A Full Bench of the FWC has upheld an appeal by BlueScope Steel (Bluescope) to quash a successful unfair dismissal application by a long term employee. The employee, who had a previous final warning for a safety breach, had been dismissed for a further safety breach involving a separate procedure.

The case involved an employee engaged by Bluescope as a dispatch operator, a role he had performed for approximately 30 years. The role predominantly involved driving an overhead crane to move steel coils within a warehouse.

On 5 September 2019, he hoisted the tongs without first `long travelling’ (that is, travelling sideways away from the coil), in doing so he caused coil damage. The company found that his failure to long travel was a breach of a Bluescope Critical Safety Procedure (CSP), as well as created a significant safety incident as it increased the likelihood of the coil tipping over.

In the initial decision, Commissioner Riordan took a relatively narrow view of this argument suggesting that as no-one was in the vicinity of the coil, “the tipping of a coil is not a safety risk or incident – unless there is a capacity for someone to get injured.”

It was also noted that the same employee had breached a separate CSP some 50 weeks prior to the coil incident and consequently, was issued with a final warning. The earlier incident involved the employee climbing into a coil trailer while working on the ground. In Commissioner Riordan’s view, the two safety breaches were “totally different”, and he determined that the second incident warranted a second final warning, rather than a dismissal.

On appeal, both aspects of Riordan’s decision were rejected by the Full Bench. They commented, “while (his ) conduct did not cause injury to any person it amounted to a significant safety incident. Importantly, the conduct increased the possibility of a coil tipping and by consequence an increased risk to a person becoming injured”. Further, “The Commissioner’s finding that (his) conduct is’ totally different’ is at odds with the evidence. On both occasions, (his) conduct breached critical safety procedures in respect of which he had received annual refresher training”.

Importantly, they determined that the employee should have been under no illusion from the first incident as to the likely consequences of any subsequent breach. As they stated in their decision “(he) was issued with a final warning for breach of CSP027, which had currency at the time of the dismissal and was relevant to Bluescope’s assessment of (his) conduct. (He) was on notice that his employment may be terminated for subsequent breaches of this kind.”

The original decision was quashed, and the Full Bench upheld the employee’s dismissal as fair and reasonable in the circumstances.

One aspect of this case also worth highlighting is that under their registered industrial arrangements, warnings only remain current and valid for a period of twelve months. These types of clauses are becoming increasingly common in heavily unionised industries, but it is recommended that employers do not agree to such demands. In this particular case, it is likely that without the previous final warning being able to be considered, there may have well been a different outcome for the employer.

BlueScope Steel Limited [2020] FWC 3439  (19 August 2020)

For queries about safety breaches, investigations or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au.

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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