SIA Victorian Safety Conference 2017

1. Risky business: strategies for
managing the unsatisfactory safety
performance of your employees
29 August 2017
Brendan Charles, Partner
Sam Jackson, Senior Associate
Sparke Helmore Lawyers

2. 2
Safety breaches and
disciplinary action
• Employer’s duty under the Occupational Health
and Safety Act 2004
• Will include taking reasonably practicable steps to
appropriately deal with employee conduct issues, including
breaches of safety policies
• Fair Work Commission consequences when
not handled appropriately
• Safety risk v unfair dismissal risk
• Balancing exercise
• Should safety always be the number 1 priority?

3. 3
What can you do?
Improve
prospects of
decisions being
upheld
Safety practices
and procedures
Investigation
Understand
FWC’s decision
making process
Take appropriate
action
Final decision
Control the
controllables

4. 4
Why have safety rules?
• Training
• Instruction
• Information
• Supervision
• Risk
Management
• Consultation
• Cooperation
• Monitor
• Audit
• Review
Systems
PeoplePlant SAFE
© Sparke Helmore 2016

5. 5
Good
practice
Are the rules
appropriate?
Are workers
aware of
consequences of
breach?
What is
actually
happening on
ground?
Are your
supervisors
well trained in
the rules?
Thorough and
consistent
investigation prior to
action taken
Regular and
consistent
enforcement of
rules
Are the
rules
clear?
Are the rules
easily
applied/
followed?
Clarity and
consistency
on cardinal /
golden rules
Act consistently in
implementation and
enforcement of
rules
Documentation
Remind
workers of the
rules;
importance and
safety risks of
not following
What are the
safety rules?
© Sparke Helmore 2016

6. 6
FWC’s decision making process
Valid reason – sound, defensible or well
founded, not capricious, fanciful, spiteful or
prejudiced
Harsh – consequences for the personal and
economic situation of the employee or
because dismissal is disproportionate
Unjust – employee not guilty of the
misconduct
Unreasonable – because decisions made
on inferences that cannot be reasonably
drawn from what is known

7. 7
Harsh, unjust or unreasonable
• The age of the employee
• Financial consequences of
dismissal for the employee
• Prospects of finding
alternative employment
• Length of service
• Performance and conduct
record
• Implementing safety practices
and procedures
• Consistently addressing
performance and conduct
issues
• Proportionate response to the
incident
• Investigation process
• Disciplinary process
Cannot control Can control

8. 8
Case example 1 – unintentional
breach
Gill v Jetstar Airways Pty Ltd [2016] FWC 1472
• Aviation engineer dismissed for driving an unregistered tow tug on
a public road – breached a Cardinal Rule
• Was driving to get lunch at a nearby service station
• Valid reason for dismissal, but mitigating factors resulted in
dismissal being unfair
“On the one hand, there was a valid reason for Mr Gill’s dismissal. This was
that Mr Gill drove an unregistered vehicle on a public road and that the vehicle
he drove was not fit for purpose. On the other hand, Mr Gill’s decision to drive
the tow tug outside of the airport, was not deliberate or intentional or a
conscious disregard of the safety rules in that Mr Gill was not consciously
aware of the ramifications of his decision.”

9. 9
Case example 1 (cont)
Gill v Jetstar Airways Pty Ltd (cont)
• Mr Gill was over 60 years old
• Had worked for over 30 years in the aircraft maintenance industry
• Over 4.5 years of unblemished service
• Unlikely Mr Gill, who was the sole breadwinner, would find a
comparable job
• Serious financial consequences
• Mr Gill’s skills were not easily transferable
• He was contrite and immediately acknowledged fault
• Other employees who had breached safety protocols had not been
dismissed

10. 10
Case example 2 – failure to
report safety incident
BHP Coal Pty Ltd v Schmidt [2016] FWCFB 1540
• Dismissed due to failure to properly notify a safety incident
• He damaged a skid-mounted fuel tank while moving it with a dozer
• Prior to the incident, the employee was on a final warning – told that
dismissal may result from any further act of misconduct
“The criteria for assessing fairness, although not exhaustive, are clearly intended by the
legislature to guide the decision as to the overall finding of fairness of the dismissal and
are essential to the notion of ensuring that there is a ‘fair go all round’. This is
particularly important in relation to safety issues because the employer has obligations
to ensure the safety of its employees, and commitment and adherence to safety
standards is an essential obligation of employees – especially in inherently dangerous
workplaces. The notion of a fair go all round 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 at the workplace.”

11. 11
Case example 2 (cont)
BHP Coal Pty Ltd v Schmidt (cont)
“In our view, there is no doubt that there was a valid reason for termination relating to Mr
Schmidt’s conduct – including its effect on the safety and welfare of employees. This is
not merely a situation of an insignificant accident. In our view, the management of the
situation and communication of the incident are at least as important as the accident
itself. In combination, Mr Schmidt’s conduct was entirely inappropriate. The evidence
before the Commission establishes that the conduct was a sound, defensible and well-
founded reason for the dismissal.”
“In all of the circumstances we are not of the view that the termination of Mr Schmidt’s
employment was harsh, unjust or unreasonable. He was dismissed for a valid reason
after a process that gave him an opportunity to respond to the allegations regarding his
conduct. Dismissal was not disproportionate to the conduct that occurred in the light of
the paramount issue of safety and his employment history.”

12. 12
Case example 3 - a manifest
injustice
Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54
▪ Employee breached safety “golden rule” by removing isolation
locks
▪ Upheld earlier appeal that dismissal was “a manifest injustice …”
▪ Disciplinary action other than dismissal was appropriate
“We regard the unqualified dismissal of an exemplary employee with
28 years of service, an impeccable disciplinary record and an
otherwise impeccable safety record for a policy breach of the sort that
occurred in this case – particularly when the policy itself contemplates
that breaches will not necessarily lead to disciplinary action let alone
dismissal and having regard to the personal consequences for the
employee and his family – as manifestly harsh. ”

13. 13
Case example 3 (cont)
Coal & Allied Mining Services Pty Ltd v Lawler (cont)
• Employee was an exemplary employee with an exemplary work
ethic
• In 28 years was not the subject of any disciplinary action
• In 28 years was not guilty of any safety breach
• The conduct that led to the dismissal was entirely out of character
• The breach was admitted as soon as the matter was investigated
• Remorse was shown
• Prospects of reoffending “vanishingly small”
• Also, safety risk from the employee’s actions found, for all practical
purposes, to be non-existent

14. 14
Case example 4 – fork lift
exclusion zones
Mark Hanley v Stramit Corporation Pty Ltd [2016] FWC 1150
• Employee breached Exclusion Zone Procedure
• Did not take sufficient steps to ensure that the customer was
outside the exclusion zone
• No mitigating factors
“A failure by an employee to give effect to safety training … invokes …
a valid reason … An employee who after reasonable training does not
adopt the behavioural cues necessary to achieve an employer’s
reasonable safety expectations in a dangerous workplace, is a risk to
him or herself, to others and has acted to cause a loss of trust in the
employment relationship.”

15. 15
Case example 5 – failure to take
immediate action
Auberson v Clough Downer Joint Venture Construction Pty Ltd [2015] FWC
1179
• A Golden Rule – never work at height without fall protection – was
breached
• Unsafe work was allowed to continue until the task was finished
• Other employees involved in the unsafe work were not dismissed
“The conduct of [the managers] left much to be desired, and is at odds
with the seriousness of a breach of a Golden Rule. Golden Rules deal
with life-saving matters. It is surprising that [the managers] did not
react to an apparently life threatening situation of riggers working at
height without fall protection, by immediately stopping the job … This
is not conduct that would be expected from a supervisor and it
undoubtedly contributed to the scenario that unfolded.”

16. 16
Case example 6 – safety
obligations mitigate
deficiencies
Hafer v Ensign Australia Pty Ltd [2016] FWC 990
• The dismissal of a derrickhand who returned a positive drug result
was procedurally flawed
• The serious nature of the conduct overcame any procedural
deficiencies
• There was no formal meeting during which the allegations and
possible disciplinary action were put to Mr Hafer
“The evidence before me is that risks to safety in the drilling industry are high,
a lapse in judgement can result in serious injury or death. The zero tolerance
drug and alcohol policy and the likely consequences of a breach was well
known to Mr Hafer. In my view, the prejudice resulting from the procedural
deficiencies is outweighed by the need to ensure a safe workplace.”

17. 17
Our Vic team – senior members
Safety
Penny Stevens
Partner
T: 9291 2315
M: 0427 236 946
E: penny.stevens@sparke.com.au
Employment
Brendan Charles
Partner
T: 9291 2352
M: 0408 021 744
E: brendan.charles@sparke.com.au
Safety
Gina Carosi
Senior Associate
T: 9291 2385
M: 0416 548 767
E: gina.carosi@sparke.com.au
Safety and employment
Sam Jackson
Senior Associate
T: 9291 2339
M: 0407 809 240
E: sam.jackson@sparke.com.au
Sparke Helmore has experienced safety and
employment lawyers in all Australian jurisdictions
(excl. Tas/NT), with 9 dedicated partners and 13
senior associates/special counsel across 7 offices