Fair Work Australia reinstates sacked worker despite safety breaches, cites employees poor job prospects

Employer groups are furious with Fair Work Australia’s decision to order the reinstatement of a worker who was sacked because of “serious misconduct” relating to a health and safety breach, because of his family circumstances, length of service and poor job prospects.

The case involves Paul Quinlivan, an employee at Norske Skog Paper Mills in Albury, who was dismissed in September last year after repeatedly removing his safety glasses while cleaning a piece of machinery during a plant shutdown.

While FWA vice president Michael Lawler found “the applicant’s dismissal was neither unjust nor unreasonable” he did find it was harsh, citing the fact that Quinlivan is married with two daughters aged 9 and 11, was poorly educated and has a $70,000 mortgage and had low chances of finding other work.

“If the applicant had substantially lesser service, had not been a middle aged man with very poor employment prospects for whom the dismissal has such serious personal and economic consequences or if it had been brought home to him at any time on September 2, 2009 that a further breach would have serious consequences, I would not have concluded that the dismissal was harsh.”

Lawler ordered the worker be reinstated and the worker be compensated for lost pay, although he did reduce the amount of back pay the employee could receive as a sort of sanction against him. He also told the employee that he is on his final warning.

But the decision has outraged the Australian Chamber of Commerce and Industry, who are concerned that FWA has sent the wrong message to companies who take their health and safety obligations seriously.

“The principal concern so far is here is a company that is quite clearly aware of its health and safety obligation and has taken actions in accordance with those obligations. But its decisions taken in the health and safety area are being second-guessed by the industrial trial,” ACCI’s workplace policy director David Gregory told SmartCompany this morning.

But he is also concerned of a precedent that would require employers to look deeply into the personal circumstances of an employee before they are justifiably and reasonably terminated.

“What is the employer supposed to do? Is this decision suggesting that prior to terminating an employee it is required to take into account the personal circumstances of an employee, their family situation and their job prospects?

“It’s imposing an obligation on employers that we don’t want to see. Is that really what employers want and what unions want?”

Workplace lawyer Peter Vitale of CCI Lawyers says while Lawler’s decision to put the employees personal circumstances in front of the safety breach is unusual but not unheard of.

“It’s always been the understanding that harshness to some extent revolves around the personal circumstances of the individual. It’s only in what the Commission views as pretty extreme circumstances will they override a termination.”

Andrew Douglas of Douglas Workplace and Litigation says the case should serve as a reminder to employees that they must consider personal circumstances when moving towards a termination.

“Too many employers say ‘I’ve got to set a precedent here’ and they forget to apply the personal circumstances.”

He says the main personal circumstances include the employees’ employment history (specifically previous warnings or breaches of company policy), their length of services (the longer the employee has been with the company, the less likely they are to be able to walk into another job) and their future job prospects (with particular attention to their age).

“You need to examine their personal circumstance as they pertain to work. However, I would not be taking this as a signal that employers need to look into an employees’ life outside of work if it does not relate to their job.”

But does this mean that employers are stuck with underperforming workers, just because they are long-serving or have poor future job prospects?

Douglas says no, but says employers must be able to show that the dismissal is the result of careful performance management, including documented plans to attempt to help a worker improve.

Vitale also says the case underlines the need for employers to warn workers that they can face dismissal for safety breaches.

“Employers should have policies that have the most serious consequences in place for a breach. Yes, an employer should and is in within their rights to tell employees that if they are continuing to breach they are putting their employment at risk.”