Organisations may find it interesting to know whether it is appropriate to treat their health and safety representatives (“HSRs”) as they would other employees in managing conduct and performance, often acting in caution to avoid a possible finding of discrimination under the health and safety laws. A recent Fair Work Commission (“FWC”) finding may offer employers some comfort that employees are not immune from being dismissed for misconduct simply because they are purporting to act as an elected HSR.

The case of Kaskol v TNT Australia Pty Limited [2015] FWC 705 highlights the importance of carefully managing the process to avoid unlawful discrimination in the decision to dismiss an employee.

What are the facts?

  • Mr Kaskol was employed by TNT Australia Pty Limited (“TNT”) as a casual dockhand at its Brisbane South Depot and was an elected Deputy HSR.
  • He raised various issues including questioning the validity of the constitution of TNT’s Safety Committee at Brisbane South and the company’s risk assessment tool.
  • The conduct of Mr Kaskol in raising the issues was aggressive and he was derogatory of various TNT managers.
  • He also alleged that he was subjected to bullying and harassment and racist comments by one of TNT’s manager and that there were “cover-ups” by management.
  • Mr Kaskol was dismissed on 14 October 2013 on the grounds of serious misconduct, after failing to respond to a letter from TNT requesting that he substantiate his allegations of bullying and corruption.

What supported the Commission’s finding?

The FWC found that Mr Kaskol’s allegations were unsubstantiated and misconceived and the dismissal was not unfair, because:

  • TNT made reasonable “attempts to address [Kaskol’s] concerns and explain why the allegations were misconceived, [his] conduct was vexatious to the extent it was inconsistent with the continuation of his employment;
  • Even if employees are acting in statutory roles they are not immune from complying with their obligations as employees, noting “no employer should be required to continue the employment of an employee who makes false, spurious and vexatious claims…regardless [if they are] acting in the capacity of a [HSR]”; and
  • The conduct of Mr Kaskol was repeated and continued even in the face of being given clear warnings that he may be dismissed if his behavior continued.

What this means for employers?

Kaskol is an important case, not only from an employment point of view but also for the operation of health and safety laws, in that it shows:

  • that health and safety laws make it unlawful for a person to engage in discriminatory conduct for ‘prohibited reasons’ including dismissing a person because they are performing functions as a HSR or raising health and safety issues that a dismissal will not amount to discriminatory conduct if the employer can prove that the ‘dominant’ reason for the dismissal was not that the employee was exercising functions of a HSR or raising a safety issue, but that the employee was dismissed for misconduct;
  • that even in the course of exercising their statutory roles, HSRs still have obligations to cooperate and follow lawful and reasonable directions from employers and are not immune from being disciplined just because they hold the position of a HSR; and
  • that disciplining and subsequently terminating an employee (including an HSR) should not amount to discriminatory conduct if the behavior of the employee could compromise health and safety.

Whilst the Kaskol case gives some comfort to employers that HSRs can be treated the same as any other employees in the context of managing conduct and performance, care should nonetheless be taken to avoid a possible finding of discrimination under the health and safety laws. As with every other dismissal situation, employers must ensure due process and be able to show that all reasonable steps were taken and properly documented as substantiating valid reasons for the dismissal.

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