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."
written by DwC, February 19, 2010
Then consider also that he had, as stated above, very poor employment prospects and long tenure- these facts didn't sneak up on his employer- they had been that way for a long time. The judgement simply makes it clear that employers have a duty to their employees and this must take into account their situation. When they gave Quinlivan employment, they knew all this. He could be disciplined in many other ways, particularly by an entity the size of Norsk Skog (Norwegian Forest for those who don't know- one of the largest timber and timber products companies in the world)- they aren't constrained by the resource limitations of an SME. Sacking really is a rather drastic course of action in this instance. That said, it should certainly be an option for employers- but this decision doesn't exclude sacking, it simply makes it clear that there must be very good reason for it. That's positive for all of us.
written by dejay, February 19, 2010
written by jmcc, February 23, 2010
written by Trelawny, February 23, 2010
The report also suggests that there were other issues between the worker and the supervisor. Employers must have a disciplinary process for violation of health and safety rules, however the process must be progressive, documented and consistently applied with a modicum of common sense.
The fact is if you make special consideration of one employee to another, doesnt this constitute discrimination, where as a 20 year old male who is fit living at home with no dependants would not have had the same ruling.
Why should anyone care about work place OHS policy, if the same employee continued with the same actions, I am sure this story would have read that the employer failed in a duty of care. Where is the same duty of care for the employers from the system here?
If employers must consider personal circumstances when moving towards a termination, then does this mean that employers need to consider the potential employees circumstances when selecting a new employee?