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Safety breach excused, workers reinstated: FWC

THE Fair Work Commission has ordered the reinstatement of two mine employees, despite finding their dismissal to be valid after they were found to have contravened the company’s workplace health and safety policies.

The two maintenance workers, employed by Broadmeadow Mine Services (BMS) in Queensland, were dismissed for breaching safety rules after an internal investigation found they had used the roof of a vehicle as a platform for performing work on a water pressure valve.

The mine enforced BHP Billiton-Mitsubishi Alliance’s “Life Saving Rules” to protect workers from high-risk behaviours and activities, which included requirements for employees working at heights.

In particular, the rules stipulated that working at heights required training, a permit authorising the work and control measures to eliminate or mitigate the risk of falls, such as harnesses and stable working platforms.

Individuals working more than 1.8m from the ground were considered to be working at heights and the vehicle used by the maintenance workers as a platform was 1.95m high, however the employees found to have ‘failed to identify the roof was above 1.8m’.

On considering the matter, Vice President Hatcher found the violation produced a valid reason for dismissal.

“The Life Saving Rules comprised a workplace safety policy compliance with which was considered fundamental at the mine and was required by s.39 of the CMSH Act. [The employee] was fully familiar with the Life Saving Rules. He was required by BMS to be vigilant to ensure that he did not place himself in any situation where the Life Saving Rules were contravened,” he said.

“While I do not consider that he intentionally breached the Life Saving Rules by working above the specified height limit, I consider that he was negligent in not realising at least the possibility that using the driftrunner as a work platform might contravene the rules.”

However, VP Hatcher went on to consider mitigating circumstances that made the dismissal harsh, including circumstances that saw both employees influenced by their superiors in using the vehicle as a platform, and difficulty recognising the real height of the vehicle.

“BMS effectively treated dismissal as a necessary consequence of [the] breach of the Life Saving Rules, in circumstances where that breach was at the lower end of the range of seriousness, the Guideline did not on any view require dismissal, and other breaches of the Life Saving Rules at the Mine and another BMA mine had not resulted in dismissal,” VP Hatcher noted.

The Fair Work Commission ruled in favour of the employees, ordering their reinstatement but refusing requests for back-paid remuneration.

To read the decision in full, click here.

Implications for Employers

Safety is a top priority for resource employers and violations of safety policies must be taken seriously.

However, this case highlights the importance of conducting adequate case-by-case assessment when considering whether dismissal is a suitable remedy for a safety contravention.

Of particular interest is the Fair Work Commission’s focus on prior incidents of safety violations and their subsequent disciplinary strategies, many of which did not involve dismissal.

Implementing and communicating policies that clearly define acceptable conduct in the workplace, as well as the disciplinary measures taken if those policies are breached, will aid resource employers to limit claims of unfair dismissal made against them.

AREEA members are encouraged to contact their local AREEA office for advice, information and guidance on how to approach company safety policies to ensure both the employee and the employer are protected.

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