20 April, 2013
Legal News & Analysis – Asia Pacific – Australia – Labour & Employment
The Fair Work Commission (
Facts
Mr Wardle was a locomotive driver working in a rail yard near Karratha,
Western Australia. He was operating a “triple” (ie, three locomotives joined
together) and was about to “propel” (ie, push, rather than pull) around 40 rail cars along a section of track.
Hamersley’s Railway Operating Rules required, in such circumstances,
Mr Wardle to be instructed by a “shunter”. The shunter effectively acted as the driver’s eyes and ears given the driver was not able to see in front of the train. Propelling movements were not allowed to commence until the shunter had authorised the driver to do so.
Hamersley argued that, in breach of the Rules, Mr Wardle propelled his train a distance of appropriately 200 metres without authority from the relevant shunter. Following an investigation and an opportunity for him to ‘show cause’, Hamersley terminated Mr Wardle’s employment. He was paid
5 weeks’ in lieu of notice.
Decision
Instead,
safety within the workplace and in order to comply with those, and no doubt also for good business reasons, imposes obligations upon its employees to follow prescribed procedures in its rail operations”.
Discussion
The decision demonstrates that, given the right evidence,
breaches of well-established safety policies (in which employees have been trained) as valid reasons for dismissal. In doing so,
The importance of consistent disciplinary treatment was also highlighted.
On the facts, Hamersley had responded to similar safety breaches by other employees in a similar way in the past. Inconsistent treatment may well have resulted in a different outcome.
Similar decisions
The Hamersley decision echoes comments in other cases where the
importance of safety has been upheld in dismissing unfair dismissal
applications.
Indeed, less than a week after the Hamersley decision,
The applicant in Best Bar was dismissed after, without authorisation, he
removed a safety switch from a machine. He then failed to inform his
coworker and supervisor that it had been removed, and did not ‘tag’ the
machine as required by Best Bar’s safety policy.
In dismissing the applicant’s unfair dismissal claim,
Conclusion
While not ‘silver bullets’, these decisions are certainly reassuring to
employers faced with seemingly competing employment and safety
obligations.
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