Make no mistake (lest you are sacked): FWC rules on safety incident dismissal

In brief 2 min read

The Full Bench of the Fair Work Commission decided that a crane operator's sacking for a 'significant' safety incident was a fair and proportionate response, despite a working relationship of almost four decades.¹

Key takeaways

• Single incidents can be grounds for dismissal if they are serious enough, but employers need to balance the gravity of the incident with other mitigating factors.
• It is important for employers to have appropriate policies in place, especially when it comes to safety. Employees should be made familiar with relevant policies and receive adequate and up-to-date training.

Background

Zaki Habak worked for BlueScope for 39 years, 28 of which were spent as a crane operator. His role involved operating overhead cranes to unload large steel coils from trucks, to move them around a warehouse. During a nightshift on 8 December 2018, Mr Habak hoisted a 12-tonne coil into position, but the steel coil tipped and fell into a walkway.

No one was hurt and there was no damage. However, Mr Habak was dismissed for breaching a critical safety policy – which he had breached several times before. In the initial decision, the FWC decided BlueScope had a valid reason to dismiss Mr Habak, but the dismissal was harsh and unreasonable. This was because he had a satisfactory employment record, limited future employment prospects and no one was actually hurt. BlueScope had also not dismissed others in similar circumstances. As a result, the dismissal was unfair and Mr Habak was reinstated.

The appeal decision

Unlike the FWC's initial decision, the Full Bench decided the tipping of the coil was a significant safety incident, despite the lack of injury or damage to property. Mr Habak understood and had been trained in safe procedure. Ultimately, the Full Bench decided the gravity of what happened – in particular, the substantial and wilful breach of policy – and the procedural fairness afforded to Mr Habak outweighed any other facts. Dismissal was appropriate and reasonable in the circumstances.

This echoes earlier decisions, such as BHP Coal Pty Ltd v Schmidt² , where the Full Bench overturned a decision that it was unfair to dismiss an employee after he reversed a bulldozer into a fuel tank. In that case, the significant or consequential event weighed heavily in favour of a decision that dismissal was a fair response in the circumstances.