It is not uncommon for employers to state that they have a “zero-tolerance” policy about breaches of certain workplace policies and procedures – particularly when it comes to compliance with work health and safety obligations.
However, a recent decision of the Fair Work Commission (FWC) has shown that an employer cannot always rely on its “zero-tolerance” policies when dismissing employees if there is evidence that the employer has in fact tolerated breaches in the past with no repercussions.
In the decision of Toor v Cleanaway Operations Pty Ltd [2022] FWC 1900, the FWC was required to consider the dismissal of a casual Driver – Rear Lift by Cleanaway Operations Pty Ltd (the Employer) for falsifying run sheets and breaching its fatigue management policy.
The circumstances of the employee’s dismissal began in June 2021, when he was advised of his right to elect to convert from casual employment to permanent part-time employment. The employee was advised that if he wished to convert to permanent employment, he needed to confirm by 22 July 2021.
The employee immediately took steps to confirm his desire to convert to permanent part-time employment. He made numerous requests for a new employment contract but did not receive anything in writing until 28 September 2021, which took the form of a letter confirming his right to convert. Upon returning the signed letter, he was advised by his supervisor that “every reaction has a consequence and you’ll have to bear it”.
A little more than a month later, the employee’s supervisor conducted an audit of the employee’s run sheets, allegedly as part of a “random” audit. The audit had identified discrepancies in the employee’s run sheet and its online records; in particular, that the employee was recording breaks on his run sheet when he had in fact not been taking those breaks (or not taking the full break).
The employer considered this to be a breach by the employee of fatigue management laws and company policy, which required the employee to record fatigue work and rest breaks and provide them to their supervisor at the end of each shift/day. It also considered that the employee’s conduct was in breach of the employer’s “Life Saving Rules” (for which it had a zero-tolerance policy).
During the disciplinary process, the employee explained that his supervisors were aware of the occasions that he was not able to take his breaks and had condoned them by instructing him to perform certain tasks before taking a break and also signing off on all of his run sheets. The employee also queried the status of his conversion to permanent part-time employment, but was advised by HR that he was no longer entitled to convert as he had not responded by the 22 July 2021 deadline.
Ultimately, the employer was of the view that the employee was not taking responsibility for his actions and dismissed him for serious misconduct.
The FWC was satisfied that the employee had falsified his run sheets, often recording that he took breaks longer than he actually did. However, the FWC accepted the employee’s evidence that this was to avoid getting himself and his supervisors in trouble for prioritising completion of work over driver safety.
The FWC considered that the supervisors on duty knew the employee took shorter breaks or did not take his breaks on time, as drivers were required to call supervisors when they were due for a break and they had also signed off on his run sheets which showed inadequate breaks being taken.
The FWC found that the obligations in relation to fatigue management were not met by anyone, including supervisors as they did not plan routes to incorporate breaks and they either encouraged or turned a blind eye to the employee’s non-compliance.
The FWC was also critical of the employer’s reliance on its “zero-tolerance” policy on its Life Saving Rules in circumstances where it was not clear that there was a “zero-tolerance” policy in place. According to the employer’s non-conformance register, only three breaches of the same kind were recorded between June 2020 and May 2021, despite a toolbox talk clearly indicating that there were a few drivers who did not take their breaks and deliberately falsified time sheets. The FWC commented that “the value of written safety procedures is quickly undermined if and when they are not applied in practice”.
Finally, the FWC was not convinced that the audit undertaken by the employer was “random”. It noted that there was no evidence that any other employee was audited at the same time, despite the employer’s evidence that random audits normally involved 5-15 drivers at a time. It also drew an adverse inference from the fact that the supervisor who conducted the audit of the employee did not give any evidence before the FWC.
The FWC considered that the timing of the audit was “too coincidental” and that the evidence of the origins of the audit was incomplete, commenting that the employer did not support the employee’s right to convert to permanent employment from the minute it notified him of his right to request casual conversion.
In light of these issues, the FWC was of the view that the employer singled out the employee for disciplinary action in the most severe form and this made the dismissal unfair. However, as the employer had a valid reason for dismissing the employee (falsification of timesheets), it opted not to order re-instatement, instead awarding the employee three months’ compensation.
When seeking to implement and enforce a “zero-tolerance” approach to workplace policies and procedures, particularly in relation to safety matters, employers must ensure that this is done consistently across all levels of the organisation.
This is critical, not only from a safety perspective to ensure compliance with work health and safety obligations and the safety of employees generally, but also to minimise any risk that disciplinary action arising from a breach of those policies is considered unfair.
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