News 15 August 2019

Dismissed Safety Advisor "inexcusably" breached Safety Policy in vehicle write-off

The Fair Work Commission (the “Commission”) has rejected an unfair dismissal claim from a drilling company’s Environmental, Health, Safety and Training Adviser who breached multiple safety policies. The employee of four years, who had not previously been warned about unsatisfactory performance, was terminated with payment in lieu of notice following a vehicle roll over incident.

Background

The employee was driving a light vehicle to deliver parts to a mine site on 10 November 2018, when they lost control, entered an uncontrolled spin and rolled on a wet, unsealed road. The vehicle was valued at $55,000 and was no longer road worthy after the incident.

Investigation found the employee breached safety policy (“Rules of the Road”) by incorrectly completing a Journey Management Plan (JMP), failing to gain approval for a high risk journey, and disobeyed a lawful instruction not to perform deliveries. 

JMPs are a compulsory risk assessment form, introduced to reduce light vehicle injuries and fatalities. The employee incorrectly assessed the road as ‘paved’ and weather as ‘normal’, when conditions were ‘unpaved’ and ‘raining’.

Investigation further uncovered the employee breached Safety policy on other occasions, by completing JMPs for other employees because he thought it would “help them”. A condition of the policy is that drivers complete JMPs themselves.

The employee was given an opportunity to respond to the misconduct and possible dismissal at a show cause meeting held on 23 November. Having considered all the information including the employee’s responses, employment was terminated via a meeting on 7 December.

The Decision

The employee argued the policy relating to JPM’s had not been universally applied. Specifically an employee in 2015 was involved in a light vehicle incident and was not disciplined. They further argued the company had a culture of JMPs not been responded to when approval was required prior to journey.

The employer argued, although the 10 November incident in isolation may not have led to termination; the policy breaches uncovered during investigation indicated the employee “could not be trusted to make sound judgements.” The company’s approach to managing light vehicle risks had changed since 2015, and the company had been working to apply JMP approval policy more rigorously prior to the November incident.

The commission found the breach of policy a valid reason for dismissal, considering:

“The repeated failure to comply with the Respondent’s safety policies regarding light vehicle journeys was inexcusable for someone employed as an Environmental, Health, Safety, and Training Adviser.”

Lessons for employers

The expectation of employees in context of their role requirements can influence whether an employee’s dismissal was harsh, unjust, or unreasonable. In this case, the Commission took into account the employers length of employment, role requirements, and the employers reasonable expectation of an employee in a Safety Advisor role.

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Jessica Kelly, Graduate Workplace Relations Advice Line Advisor

Ritchie Wilson v Boart Longyear Australia Pty Ltd T/A Boart Longyear (U2018/13349)

 

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