Take It Back: Employer ordered to withdraw unreasonable safety warning

A recent decision of the Fair Work Commission (FWC) has reminded employers of the importance of taking a measured and consistent approach to enforcing workplace policies and procedures – particularly those relating to work health and safety.

In Cordowiner v Ashton Coal Operations Pty Ltd [2019] FWC 2525, the FWC ordered an employer to withdraw a formal warning that it had issued to an employee following a safety breach, because its supervisors had condoned the conduct to the point that it was “normal practice”.

The application to the FWC was made by a mechanical technician/fitter at the Ashton Coal underground mine in accordance with the dispute settlement procedure in the relevant enterprise agreement. The dispute settlement procedure required the FWC to determine whether the warning was unjust or unreasonable in the circumstances.

The employee had been issued the warning for failing to isolate a man transport vehicle from energy sources prior to lifting the chassis. In determining that the employee had engaged in serious misconduct, the employer relied on its Energy Isolation Procedure, which required employees to isolate any plant and equipment powered by energy prior to “commenc[ing] work”.

The FWC heard opposing views about what the phrase “commenc[ing] work” meant in this context. The FWC was ultimately satisfied that the employer intended it to include preparatory work such as lifting a chassis given the associated safety risks, and the employee had therefore committed a safety breach which warranted the issuing of a warning.

Despite this finding, the FWC held that it was unreasonable for the employer to issue the warning given the particular circumstances of the case. In this regard, the FWC accepted evidence that it was common practice at the mine to lift plant and equipment prior to isolation and that supervisors knew of this practice and had not previously taken any steps to stop or alter the practice.

According to the FWC, the employer’s decision to discipline the employee when no other employees were similarly disciplined amounted to differential treatment.

In addition to the above circumstances, the FWC acknowledged that the wording of the Energy Isolation Procedure was ambiguous and the actual breach created only a low risk of injury.

The FWC therefore ordered the employer to withdraw the warning.

Lessons for employers

The health and safety of people in the workplace ought to be of paramount concern for businesses, and employers are entitled to discipline workers who place the health and safety of themselves and others at risk.

However, in circumstances where an employer discovers widespread non-compliance with safety procedures, it should take steps to ensure that those policies and procedures are implemented and followed by everybody (including management) before seeking to discipline individual employees.

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.

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