In a recent case a labour hire employee was found to have been fairly dismissed after the host employer refused site access.
The circumstances were distinguished from a previous decision of the Fair Work Commission because of the seriousness of the worker’s actions and the employer’s attempts to negotiate a return to the job.
The Facts
The labour hire employee was placed at the Saraji coal mine in central Queensland as an emergency response supervisor. He drove 113km/hr in a 60km zone when responding to an emergency at the mine site. He continued to drive at 90km per hour after being advised that there was no threat to life and the fire was extinguished. He said he was concerned the fire might reignite.
He used a handheld radio while driving, with only one hand on the steering wheel. He kept driving while a paramedic got changed in the passenger seat, not checking if she was wearing a seatbelt.
He was stood down after BMA revoked his mine site access. He was advised of the allegations against him.
He was dismissed after declining an offer of a security guard role with a different client, and after his employer had unsuccessfully sought to negotiate with the mine site operator for his return to site.
He applied for unfair dismissal.
The Decision
The Deputy President found that:
- There was a valid reason for dismissal where he could not continue in his job after his site access was revoked, together with his serious misconduct.
- The emergency did not justify his misconduct. There was no site policy that permitted speeding in an emergency, and there had been a recent fatality on that site due to a vehicle driving over the site speed limit.
The Deputy President also found that the matter was distinguishable from a previous decision where a labour hire employer was found to have unfairly dismissed an employee whose site access had been refused, because the employer had made attempts to have the employee’s site access reinstated, and the conduct was serious misconduct that warranted dismissal in and of itself.
The application was dismissed.
Implications
The case is especially relevant to labour hire employers. Where an employee’s site access is refused, labour hire employers should consider trying to negotiate a return to site and offering any other available suitable positions.
For all employers the case is a reminder of the importance of the benefits of a careful process before dismissal.
For employees the case is a reminder of the high importance of safe working practices even in emergency situations.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.
Some more information is available here or you can book an initial no-obligation chat online to review an employment contract or contractor agreement.