The Victorian Chamber’s Health, Safety and Wellbeing (HSW) consultants can help employers draft company policies that adhere to applicable legal requirements. However, the relevant policies need to be applied consistently within your company to maintain compliance.

The consequences of non-compliance were highlighted in the recent case of a casual truck driver dismissed in November 2021.

The driver was dismissed for serious misconduct for not adhering to the company fatigue management policy by falsifying run sheets, and failure to take fatigue breaks as per the company fatigue management policy and heavy vehicle fatigue management laws.

The company argued that the dismissal was valid and fair as the employee breached the company’s ‘lifesaving rules’ to which zero-tolerance applied.

The casual employee had requested to take up a permanent position with the company in November 2021. It was after this request that the employee’s hours were cut from an average of 38.9 hours per week to 13.83. The employee was warned by a supervisor that due to his request, the employee would have to ‘bear’ the consequences.

At the same time, the employee was subjected to random ‘safe truck safe driver’ audits of the employee’s runsheets that highlighted multiple fatigue breaches.

Upon further review, the Fair Work Commission (FWC) found the employee’s supervisors encouraged these actions and non-compliance with company policy and relevant laws in favour of productivity.

Additionally, the employee’s truck had a gross vehicle mass of less than 12 tonnes and as such was not a fatigue-regulated heavy vehicle, meaning the relevant fatigue laws did not apply to him.

While the company’s fatigue management policy did apply to the employee, his supervisors also failed to comply with it by failing to ensure the employee planned routes that could accommodate fatigue breaks.

The policy had also set out that the branch manager was required to undertake audits that did not occur. Fifteen other drivers at the company had similarly falsified run sheets without any consequences.

Implications for business

The above case highlights the need for businesses to treat all employees equally. One of the obligations of proposed psychological health regulations is the identification and control of psychosocial hazards (negative psychological responses that create a risk to a worker’s health and safety), which includes poor organisational justice.

The psychological health regulations aim to assist employers with the identification and control of psychosocial hazards.

Not only can unmanaged psychosocial hazards potentially lead to unfair dismissal cases, which can be very time-consuming and incur high costs for your business, they may also lead to Workcover cases for a psychological injury. These typically also lead to significant cost and time impact, both for employees and their employers.

There are also hidden costs such as staff morale, productivity, absenteeism, high staff turnover and reputational damage.

The draft regulations also require employers to have prevention plans for certain psychosocial hazards. One of the included areas is high job demands.

The scenario detailed above, including where the supervisor’s actions supported falsifying documents and non-adherence to company policy and national laws, may indicate that there are unreasonably high job demands within the company.

The Health, Safety and Wellbeing Consultants at the Victorian Chamber can assist with meeting your obligations under the OHS Act 2004 and OHS Regulations 2017. Members may also contact our Workplace Relations Advice Line on 03 8662 5222, and access specialist Workplace Relations Consulting, for more detailed strategic advice.