FAIR WORK COMMISSION FULL BENCH SUPPORTS EMPLOYER TO MAKE CHANGES TO SAFETY CULTURE
Date: March 14, 2016
The decision of a Full Bench of the Fair Work Commission (FWC) in Metro Quarry Group Pty Ltd v Ingham [2016] FWCFB 47 (MQ case) illustrates the difficulties an employer may face in improving its safety culture but emphasises the level of support an employer is likely to receive from the FWC for making such a change. Whilst the decision relates to the safety culture in a quarrying operation, the principles are equally relevant to all Australian businesses.
ISSUE
Metro Quarry (MQ) operates a sand mining operation in the South Gippsland region of Victoria and a sand distribution business on the south eastern outskirts of Melbourne. MQ acquired the operations from a previous owner in 2013. In doing so, MQ also acquired a “lackadaisical” safety culture with numerous compliance issues (as asserted by the MQ owner, referred to [at para 6]). The culture and historical issues inherited by MQ were evidently of significant concern to MQ. Indeed, in 2010 an employee was killed while operating an excavator.
After the acquisition of the business in 2013, MQ took steps to change the culture, putting in place a new management team and creating a new safety manager role to embed best safety practices in the business. Relevantly to the issues in the case, in doing so MQ established new safety polices including policies relating to personal protective equipment (PPE) and zero tolerance for drugs and alcohol and hardened its position towards continued breaches of safety policy or expected safe behaviours.
The relevant employee in the MQ case was employed as a maintenance worker and had been working in the business for over ten years.
MQ formed the view that the employee was not prepared to adjust to the new safety culture and terminated his employment summarily and without notice. The employee brought an unfair dismissal claim in the FWC challenging MQ’s decision.
MQ relied on five key incidents to support the termination of the employee’s employment [at para 6]:
- An incident in relation to a “bagging machine” in July 2014 (where the employee allegedly re-wired the machine without detaching the main power supply).
- Not wearing a safety harness whilst working at heights.
- Failing to wear safety glasses (PPE).
- “Impertinently” wiggling his fingers and stating to MQ’s safety officers that because he still had all his fingers, he knew how to be safe and knew all about safety.
- Presenting for work impaired by alcohol.
At first instance, the Commissioner upheld the employee’s claim and found the dismissal to have been unfair. One of the key reasons for the Commissioner finding the dismissal to have been unfair related to MQ’s reliance on the bagging incident which took place some time ago, in 2014. MQ then lodged an appeal of the decision which was heard by a Full Bench of the FWC.
OUTCOME
The Full Bench upheld MQ’s appeal, quashed the Commissioner’s decision at first instance and found that the dismissal was not unfair. Importantly, and helpfully for employers looking to make improvements to its safety culture, the Full Bench said that “the notion of a fair go all around [when considering an employee’s unfair dismissal claim] in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally in the workplace” [para 24].
The Full Bench seemed baffled as to why the Commissioner had found the employee to have engaged in “unacceptable safety conduct combined with an element of defiance of the company’s tougher stance” yet these findings had been overridden by a perceived defect in relation to the warning over the bagging incident in 2014.
Ultimately, the Full Bench found that MQ had terminated the employee’s employment after a series of safety breaches culminating in him attending for work in breach of the zero-tolerance alcohol policy. The Full Bench considered that there was a valid reason for the termination and MQ had adopted an acceptable procedure in allowing the employee an opportunity to respond to its concerns.
IMPACT
The decision emphasises that the unfair dismissal laws contained in the Fair Work Act 2009 (Cth) are not so skewed so as to prevent employers making changes to safety culture by dismissing recalcitrant employees in the event of blatant non-compliance with modernised safety requirements.
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