Unsafe worker gets his job back

The front page story in the The Australian newspaper has generated many emails and phone calls to SafetyAtWorkBlog from irate safety professionals.

The nub of the story is that Fair Work Australia has reinstated a worker who was sacked because of consistently unsafe work practices.

It is important to remember that the decision by Fair Work Australia is undertaken under the Fair Work Act 2009 and not occupational health and safety regulations.  In the case of Norske Skog Paper Mills (Australia) Ltd the relevant OHS legislation would have been New South Wales.

The story revolves around the dismissal of an employee not the unsafe actions of that worker.

What lessons we can take from the Fair Work Australia decision is that companies need to have a documented disciplinary and issues resolutions policy backed up by adequate and fully understandable procedures.

The safety management lessons are not new.  The provision of safety equipment for workers to use is one action but more important is the constant need to ensure that the equipment is used properly, or worn properly in this case.   Management frustration with an employee for any OHS reason is not sufficient for dismissal without first going through the appropriate disciplinary procedures.  This is one of the reasons that the Victorian dispute resolution procedures became regulations under OHS law and eventually integrated in the Act itself.

The Vice President of the Fair Work Australia tribunal,  states in the decision that the period of unemployment of  Paul Quinlivan, the worker, is likely to have changed his approach to personal safety equipment.

“The applicant’s dismissal, the hardship he has suffered on account of being unemployed for almost all of the period since his dismissal and course of these proceedings will undoubtedly have had a salutary effect on the applicant. While I will be surprised if the applicant does other than carefully observe safety policies upon his reinstatement, it seems to me that the respondent’s concern to ensure that there is appropriate supervision of the applicant is eminently reasonable…”

WorkCover New South Wales told SafetyAtWorkBlog that since 2002 it had received only three complaints related to Norske Skog Paper Mills (Australia) Ltd and that none of them concerned Paul Quinlivan.

It is highly unlikely that an OHS regulator would become involved in a workplace issue related to an employee not complying with the company policies over the wearing of PPE.  Should an incident have occurred an investigation would be started and  the provision and wearing of PPE would be a standard question.

There is the point, however, that employees have the legislative obligation of not putting themselves at risk.  Whether this point was made to Quinlivan is not revealed in the information available.

Some have described dismissing an employee as the ultimate sanction available to employers and it is the end of the argument in many circumstances.  In the case discussed above, it may have been possible to contact the OHS regulator for assistance in educating the worker on the personal, financial and familial risks being taken through his own actions.

As an afterthought. in the new OHS legislation being introduced in Australia, people other than OHS inspectors will have the power to instigate prosecutions over OHS issues.  Could an employer begin legal action against their own employee for persistently placing themselves at risk of harm?

Kevin Jones

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