Say it, don’t spray it: Paint gun operator summarily dismissed for serious misconduct

The Fair Work Regulations 2009 provide a non-exhaustive list of instances that might constitute “serious misconduct” warranting summary dismissal. We have previously discussed these Regulations and what might or might not constitute serious misconduct in our blog, “If I can be serious for a moment – getting serious about serious mi...”.

Whilst the Regulations are non-exhaustive and much consideration should be given to each particular circumstance as it arises, there can be little doubt about the seriousness of an employee’s actions where the health and safety of the employee or another is at risk – especially when an employee is given responsibility over hazardous equipment and chemicals.

It’s true that many safety breaches in the workplace are the result of momentary lapses in judgement, however employees who are recklessly indifferent to their health and safety obligations will not always be saved by arguing this point.

In Graham v Walker Australia Pty Ltd t/a Tenneco [2017] FWC 5136, an employee was summarily dismissed by his employer for serious and wilful misconduct following a workplace incident on 11 May 2017. He claimed that he was unfairly dismissed on the basis that the incident was an accident and that, as an employee of over 18 years, the dismissal was particularly harsh, unjust and unreasonable.

As a Paintline Operator, the employee was given the responsibility of operating a paint gun to paint over vehicle exhaust systems in a specially designed spray paint booth. The evidence before the Fair Work Commission (FWC) was that, on the day of the incident, the employee had entered the spray paint booth and adjusted the paint gun to his desired setting. He then tested the paint gun by spraying it into the open air of the factory. By doing this, he struck a co-worker on the neck and back with paint.

After the co-worker made a complaint about the incident, the employer conducted an investigation which resulted in a finding that the employee had engaged in ‘horse-play’ by intentionally striking his co-worker with paint from the paint gun. The employee was summarily dismissed.

The FWC agreed that the employee’s conduct constituted serious and wilful misconduct and warranted summary dismissal. They rejected the employee’s argument that it was an accident or an error in the equipment, and pointed to a number of key factors in support of that judgment:

  • Immediately after the co-worker was struck, the employee was seen to be furiously re-adjusting the settings on the paint gun, which is not what a reasonable person would have done following an error;

  • The employee had a number of other safe options for testing the paint gun, such as spraying in another direction, but chose not to use them; and

  • The employee had been employed for 18 years and had been performing this role for eight years – he simply should have known better.

However, the FWC noted that it was unnecessary to determine if the employee acted with intent – given the hazardous nature of paint striking a person and the associated risks to the safety of the workplace, it was sufficient that he was “reckless and indifferent to the safety and well-being of employees around him, whether or not it was horse-play”.

If I can be serious for a moment...

Employers have very clear obligations to ensure a safe and healthy work environment for all employees, particularly in workplaces that use hazardous equipment and chemicals. This obligation extends to employees to ensure that they do not act in a manner that puts the health and safety of their co-workers at risk.

The FWC has shown that where an employee acts with reckless indifference to these obligations, it could be sufficient to establish serious misconduct, regardless of whether the employee intended to commit serious misconduct or not. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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