Fair Work Commission – Background

A Fair Work Commission decision has been ordered a re-examination by a Full Bench of the FWC for the dismissal of an employee for his ‘nonchalance’ towards Work, Health & Safety obligations, lack of remorse after a workplace incident and failure to wear safety glasses.

As Commissioner Tanya Cirkovic did not make a finding in regard to the workplace incident, there was no valid reason to conclude the employee had been negligent in complying with safety requirements or failing to report the incident.

Fair Work Commission – Facts

In essence:

  • USG Boral Building Products Pty Ltd dismissed the employee for misconduct in March 2016 for repeatedly failing to wear safety glasses
  • the forklift operator had already received a first and final warning in December 2015 because he knocked a pallet of cornices off a truck and damaged approximately five tonnes of product and almost hitting a colleague
  • Commissioner Cirkovic concluded that the employee’s continual breaches of USG safety rules and directions to comply, warranted dismissal
  • the employee appealed and argued the Commissioner considered ‘extraneous matters’ including his failure to take responsibility in the December incident or report the incident to his manager
  • he furthermore argued that the Commissioner focused on the ‘wrong issue’ in requiring him to demonstrate ‘ownership’ of his involvement in the incident
  • he argued dismissal on the ground of not wearing safety glasses was unreasonable and pointed out the Commissioner’s failure to make a finding on whether the December incident warranted dismissal
  • he claimed the Commissioner ‘mistook the facts’ in concluding that he failed to take a ‘proactive’ and ‘rigorous’ approach to his reporting obligations
  • USG argued that the Commissioner was correct as the employee was a ‘serial offender’ and that the driver failed in his duty to report the December incident to his manager

Fair Work Commission – Decision

The Fair Work Commission:

  • concluded that Commissioner Cirkovic was required to make a determination on whether there was a valid reason for the dismissal and if the employee had engaged in a wilful and reckless breach of USG’s safety policy
  • held that Commissioner Cirkovic failed to make any findings in regard to the employee’s conduct in the December incident and erroneously found a valid reason

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • update employment law policies in response to this Fair Work Commission decision
  • prepare new employment law policies as required
  • draft new/changes to employment contracts with the assistance of an employment lawyer
  • draft new/changes to employment law policies with the assistance of an employment lawyer
  • train staff about obligations with respect to Work, Health & Safety
  • ensure compliance with employment contracts and employment law policies
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.