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Commendable, patient ways of approaching workplace misconduct


The Fair Work Commission’s (FWC’s) recent decision in Hafsteins v Correct Installs Pty Ltd [2020] FWC 2729 has showcased a “patient” employer’s handling of an employee’s numerous workplace health and safety breaches.  

The employee was employed at a racking and storage system installation business for two and a half years, initially as a labourer, then eventually as second in charge.

Work health and safety and conduct concerns were initially raised with the employee in June 2019 when the employer became aware he had committed several breaches, including:

• Causing damage to equipment and vehicles at the employer’s worksites.

• Failure to complete safety documentation, including a log book to record truck usage and a statement about safety protocols.

• Failure to conduct plant checks in accordance with the employer’s policy.

• Driving an electric scissor lift out of the warehouse while the cord was still plugged in, and then failing to notify anyone of the incident and leaving the damaged cord available for use.

• Failure to properly hitch a trailer to a vehicle while driving it on a public road.

The employee accepted these allegations and was given a warning. He was also reminded to listen to simple instructions such as doing a “walk around” a trailer before driving a vehicle towing it, and told to review the notes from that meeting every morning to think about improving his safety performance.

By the end of June 2019, the employer commenced another disciplinary process with the employee which resulted in another warning about various instances of misconduct. These included:

• Being absent without authorisation or notice to the employer.

• Attending work 30 minutes later than his rostered start time.

• Speaking negatively of his work colleagues to customers.

• Causing offence to a customer’s employee which resulted in the customer refusing to work with him.

The employee did not dispute these matters. In August 2019, the employer commenced another disciplinary process which resulted in a final warning being issued to the employee after more instances of misconduct and safety breaches, including:

• Not commencing work until an hour after his rostered start time.

• Failing to maintain proper communication with other employees while working in a scissor lift and failing to show due care and attention to company and client equipment by slamming things down.

• Acting disrespectfully towards the HR manager by hanging up on them before the discussion was concluded.

At this point, the employee was advised that further misconduct might result in the termination of his employment and that his performance would be reviewed again in September 2019.

The following month, the employer became aware that on a job in July 2019 the employee had allowed a power lead to be used across a high traffic forklift area which resulted in the customer having to block off the area.

When this matter was raised, the employee advised the employer the lead was rolled up. The employee later conceded this was not true and said he was “on the defensive” because the test and tag period for his tools had expired and his tools were out of date.

The employee was subsequently dismissed for this incident and the previous warnings.

In the unfair dismissal proceedings before the FWC, the employee argued there was no valid reason for his dismissal. He argued that he was dismissed because of the incident in July 2019 and that this was unfair because other workers also regularly had power leads running across walkways, workers had been notified of the work being completed in that area, and they had been advised to use an alternate doorway.

After considering the evidence, the FWC found the employer had a valid reason to dismiss the employee. It ruled the employer had appropriate WHS procedures in place and that the employee failed to follow them on numerous occasions, despite being repeatedly warned about his attitude towards workplace health and safety.

The FWC found that the employee was sufficiently trained in the procedures and, in any event, “some of [his] safety breaches were so fundamental he should not have required training to prevent them. The [employee’s] running a power cord across a doorway through which forklifts could travel, is a case in point”.

The FWC preferred the evidence of the employer and considered “the [employee] had a tendency to rationalise his behaviour by attempting to establish failures in the [employer]’s training or systems, when the [employee] was responsible for the many incidents about which he was warned”.

The FWC found the employer had good reason to dismiss the employee in June 2019, and it displayed great patience with the employee’s numerous and serious safety breaches and persisted with attempting to rectify his attitude. It went to great lengths to afford the employee procedural fairness by setting out the allegations about his conduct and giving him every opportunity to respond.

The FWC therefore dismissed the employee’s application.

This decision is a good example of how employers, particularly managers, should approach issues of workplace misconduct. Rather than act with haste to dismiss an employee when an issue arises, employers should, at least, provide an employee with an opportunity to respond to concerns about their conduct in the workplace before engaging in disciplinary action. In this matter, the employee received multiple opportunities and still failed to improve to the standard required.

Source: Workplace Law

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