20 April, 2013

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

The Fair Work Commission (FWC) (Fair Work Australia changed its named to the Fair Work Commission on 1 January 2013) has dismissed a rail worker’s unfair dismissal application following the worker’s termination for breaching a key safety procedure: Wardle v Hamersley Iron Pty Ltd [2013] FWC 1812. In doing so, FWC recognised the employer’s statutory workplace safety obligations which required it to impose specific safety requirements on its operations and staff.

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

FWC was satisfied that Mr Wardle’s conduct was a risk to safety and breached the Rules. Accordingly, there was a valid reason for dismissal. Due process had also been followed. The dismissal was not found to be harsh, unjust or unreasonable. 

Instead, FWC stated that, “[Hamersley] has statutory obligations regarding 
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, FWC will regard 
breaches of well-established safety policies (in which employees have been trained) as valid reasons for dismissal. In doing so, FWC is cognisant of employer’s work health and safety obligations. 

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, FWC handed down  its decision in Craven v Best Bar Pty Ltd [2013] FWC 2062.

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, FWC held that removing the switch (and, in particular, not telling anyone about it) posed a safety risk. This was held to be a valid reason for dismissal, and due process was otherwise afforded. In FWC’s words, “the applicant’s conduct was… no doubt sufficiently serious to justify the termination”.

Conclusion

While not ‘silver bullets’, these decisions are certainly reassuring to 
employers faced with seemingly competing employment and safety 
obligations.