When will a breach of an employer’s safety policies be grounds for dismissal?
“In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart  PR958003, Ross VP, Kaufman SDP and Foggo C at para ; Fearnley v Tenix Defence Systems Pty Ltd  Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at ); Atfield v Jupiters Ltd(2003) 124 IR 217 (Jupiters) at -.”
It is clear that a dismissal may be found to be harsh, notwithstanding a breach of an important safety procedure, having regard to, amongst other things, the risks, if any, to which the breach of safety procedure gave rise, the length and quality of an employee’s service and the consequences for the employee of dismissal. The decision of the majority of the Full Bench in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth 44 is an example of such a case. In that case, the majority (Lawler VP and Roberts C) said in relation to the facts of that case:
“ 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 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. We accept that the misconduct reasonably called for a disciplinary sanction and that a period – even an extended period – of suspension without pay may still have been within the acceptable range. But in all the circumstances, unqualified dismissal was, in our view, manifestly harsh. On the rehearing we find that Mr Lawrence was unfairly dismissed within the meaning of s.385.”
See Garland v Wambo Open Cut Pty Ltd (2016) FWC 2848 delivered 6 May 2016 per Saunders C