In a recent decision the Fair Work Commission found that an electricity distributor fairly dismissed an experienced electrical worker who suffered a serious injury after failing to follow safety procedures.
The Facts
The employee was performing overtime work in his role of Operating Depot Supervisor, working on a fault in a substation, when he suffered serious burns from an arc flash, including to his face.
In breach of safety procedures he failed to wear a face shield, which he said was due to “human error”.
Before the employer notified its decision to terminate the employment, he was provided with an opportunity to respond to the reason for dismissal concerning his failure to wear a face shield.
He applied for unfair dismissal.
The Hearing
In the hearing the Commissioner also found that he breached safety procedures by not completing a risk assessment beforehand and, after the incident, falsely signing and dating an old risk assessment to appear as though it was properly completed.
The Decision
The Commissioner dismissed the employee’s application, finding that:
- The failure to wear a face shield, failure to complete a risk assessment beforehand, and providing false information on an old risk assessment form, were cumulatively a valid reason for dismissal.
- The falsifying of the risk assessment form was able to be taken into account as a reason for dismissal even though the employer had not identified that in its termination letter, because:
- failing to complete a HAC almost certainly contributed to the failure to wear the face shield, and
- the full extent of the employee’s conduct about the risk assessment form did not emerge until the hearing.
- Although the employee was not provided with an opportunity to respond to the reasons for termination about failing to complete a risk assessment form and including false information to an old form, they did not weigh against the employer because the full extent of the employee’s conduct did not emerge until the hearing.
Implications
Employees should be aware that withholding information from their employer, or falsifying information, can sometimes amount to a serious employment breach and make their situation worse.
The case also illustrates that employers can sometimes rely upon information about employee misconduct that is only acquired after the employment was terminated, as a valid reason for dismissal in an employment dispute.
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.