Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...We all have different hobbies, activities or interests we want to share with our friends and colleagues. However, not all interests are appropriate for the workplace.
In Rodger v ACT Government – Transport Canberra and City Services T/A ACTION [2018] FWC 6970, the Fair Work Commission (FWC) held that an employee’s conduct in bringing ornamental duelling pistols and inert booster charges in to work to show his colleagues created a risk to safety and constituted misconduct.
In June 2017, the employee’s employment was terminated after an investigation by his employer found that in January 2017 he brought two explosive booster charges to work and on a previous occasion, had brought two duelling pistols to work.
The employee lodged an unfair dismissal application submitting that his dismissal was unfair given his unblemished 17-year work record, and that his misconduct did not warrant dismissal.
The employer argued that there was a valid reason for dismissal as the employee’s conduct in bringing the items to work created a health and safety risk to employees and others in the workplace. The employer submitted that the employee’s behaviour constituted misconduct under the applicable enterprise agreement and had the potential to bring the employer into disrepute.
While the employee agreed that he brought the items into work to show his colleagues, he argued that the items were not active and as such were not a genuine risk to health and safety. The employee said that he explained to his colleagues that the items were not active and at no time did his colleagues raise any concern about a risk to their health and safety. The employee also submitted that he brought the booster charges into work to make an effort to talk to his colleagues.
Although it was in dispute whether the items were operational or not, the FWC was satisfied that by bringing the booster charges and duelling pistols in to work the employee nevertheless created a risk to health and safety. The Deputy President commented that:
While it is clear from their statements that none of the employees who saw the charges/guns felt intimidated or concerned about them being in the workplace, this is in my view due to good fortune rather than the absence of any risk to safety. Other employees may have reacted very differently in the circumstances and may have legitimately been fearful for their safety.
The FWC also found that the employee’s conduct in bringing the items into work, had the potential to bring the employer into disrepute. For the FWC, it was irrelevant whether the items were operational or not, as the employee had no legitimate reason to bring them in to work.
Accordingly, it was held that the employee’s conduct was misconduct which was a valid reason for the termination of his employment.
The FWC dismissed the employee’s submissions that the dismissal was unfair given his unblemished record, noting that his misconducted outweighed this consideration.
The FWC found that the dismissal was not harsh, unjust or unreasonable and dismissed the unfair dismissal application.
Lessons for employers
Employers have obligations to ensure the health and safety of all employees. This obligation requires employers to minimise or eliminate both physical and psychological risks to health and safety. This duty was recognised by the FWC in this matter where it was agreed that the employee created a risk to health and safety by bringing the items into work.
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