Under work health and safety laws across Australia, employers have an obligation to provide employees and others (including the public) with a safe workplace. At the same time, employers are also required to treat their employees fairly, particularly when terminating their employment.
Fulfilling both obligations simultaneously often creates a difficult task for employers, especially in circumstances where an employee’s employment has been terminated as a result of a breach of an employer’s health and safety policy.
The Full Bench of the Fair Work Commission (Commission) in Harbour City Ferries Pty Ltd v Toms FWCB 6249 confirmed that an employee’s breach of such a policy does give an employer grounds to terminate their employment for serious misconduct.
Harbour City Ferries Pty Ltd v Toms FWCB 6249
The employee in this case was a ferry master for Harbour City Ferries Pty Ltd (Harbour City Ferries). On 25 July 2013, he crashed a ferry with passengers on board into a wharf. Shortly after the accident, he was required to take a drug test which proved positive for marijuana.
Harbour City Ferries had a “Code of Conduct” policy (Policy) in place which provided a “zero tolerance” level for drugs and alcohol. After conducting an investigation, Harbour City Ferries terminated the employee for serious misconduct as a result of his breach of the Policy. The employee filed an unfair dismissal claim in response.
First instance decision
At first instance, the Commission found the dismissal was unfair on the basis that Harbour City Ferries did not take the following mitigating factors into account (among other factors):
- the employee had over 17 years’ satisfactory experience with Harbour City (and its predecessor);
- the employee’s use of marijuana was for sedation purposes following a shoulder injury;
- there was no link between the drug usage and the accident; and
- the accident caused little damage.
Harbour City Ferries was ordered by the Commission to reinstate the employee.
On appeal, the Full Bench of the Commission found that the dismissal was fair and that the decision at first instance should be quashed. The Full Bench agreed that as an employer with significant safety obligations to the public, Harbour City Ferries had every right to expect compliance with the Policy:
“as an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor…What it wants its obedience to the policy.”
In relation to the mitigating factors identified at first instance, The Full Bench commented that “the lack of any impairment arising from drug use, the absence of a link between use and the accident and the absence of substantial damage…are not factors relevant to the ground of misconduct identified as non-compliance with the Policy”.
What does this mean for employers?
This decision confirms that employers have a right to expect strict compliance with health and safety policies in place at their organisations, particularly in circumstances where a breach of such a policy could result in a serious safety incident occurring (such as a fatality).
The decision reinforces the fact that employers should not be expected to compromise on safety to avoid being seen to be ‘unfair’ to employees. The following steps will assist employers in achieving the right balance between these two competing obligations:
- ensure that all safety policies and procedures are clear, comprehensive and consistent, and that they are readily understood by employees (and contractors);
- set clear consequences for a breach of safety policies and procedures;
- update safety policies and procedures when required (for example, if a new hazard has been identified relevant to the organisation) and circulate them to all employees (and contractors);
- conduct regular safety training relevant to the workplace; and
- adopt a fair and reasonable process when dealing with a suspected breach of safety policies and procedures by taking into account the significance of the breach, the outcome of the breach, the employee’s employment history (including any prior breaches of safety policies) and other potential disciplinary options available.
 This protection arises under the Fair Work Act 2009 (Cth) and it only applies to certain employees (ie. it excludes casuals and employees who have been employed for less than 6 or 12 months, depending on the size of their employer’s business).