Resources: Blog

Mining employee validly dismissed for incident management breaches

Blog
|

A diamond (miner) in the rough

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.

The significance of such policies and procedures was recently confirmed by a decision of the Fair Work Commission (FWC) in which an employee’s breaches of an incident management procedure provided a valid reason for the termination of his employment (Edgar v SMS Operations Pty Ltd T/A Swick Mining Services [2017] FWC 3826).

The employee was a diamond miner and was driving a light vehicle underground when the vehicle drifted to one side, got caught in a drain and collided with a wall. The employee backed the vehicle out of the drain and drove it to a safe place underground where he changed a damaged wheel before driving the vehicle above ground to a workshop area. It wasn’t until after the vehicle was in the workshop that the employee informed his superiors of the accident.

The employer had incident management procedures in place which stated that the scene of any accident should be preserved. In the circumstances, the employee should have left the vehicle underground where it was, informed a superior immediately and barricaded the area to isolate the accident site. The employee’s failures in this regard formed the foundation of the employer’s reasons for dismissing him.

The employee brought an unfair dismissal claim against his employer, arguing that at the time of the accident and his subsequent failure to follow proper procedure, he was recovering from the flu and was fatigued from the shift he worked the previous day.

In considering whether the employee’s dismissal was unfair, the FWC examined whether there was a valid reason for the dismissal. The employee conceded that he was trained in the proper incident management procedure and failed to follow it on the occasion of the accident. The FWC found that the employee’s failure to preserve the scene of the accident for investigation, or report the accident immediately provided the employer with a valid reason for dismissal.

In addressing the employee’s argument that his work-related fatigue was a contributing factor to his action on the day of the accident, the FWC noted that the employee did not raise his alleged fatigue at the time of accident or during a subsequent investigation. The issue of fatigue was not raised until the hearing of the matter and so the FWC did not find it a credible argument.

Ultimately, the FWC found that the employee had been fairly dismissed and that his employer had a valid reason for doing so.

This case provides reassurance to employers that the FWC will treat breaches of safety policies and incident management procedures seriously, especially in safety critical industries.

No matter what their industry, employers should always treat safety incidents seriously and require that employees act in accordance with established policies and procedures.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

FWC decision emphasises the importance of updating contact details

Ignorance is not bliss

Today, HR administration systems make it easier than ever for employees to update their personal contact details. However, when there is formal communication to be sent to employees, employers should also ensure that they have the most up to date details for their employees to avoid any dispute about when information was sent or communicated.

Read more...

Commission finds employee’s out-of-hours conduct at social gathering to be a valid reason for dismissal

Nothing good comes after Sundowner

The physical return-to-work happening at many workplaces will also see the return of work-related events in an effort to reacquaint employees after a string of lockdowns and stay at home orders.

Read more...

State public health mandates sink aged care employees’ unfair dismissal claims

Move in my direction

Two decisions of the Fair Work Commission (FWC) have reinforced that a failure to comply with public health orders or directions which mandate vaccinations will be a valid reason for dismissal.

Read more...

Commission applies test confirmed by High Court in distinguishing between employee and contractor

Sham slam

In a recent decision, the Fair Work Commission has applied the test recently confirmed by the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, in distinguishing between employees and contractors.

Read more...

Full Bench looks at meaning of dismissed for the purposes of the unfair dismissal jurisdiction

Down but not out

The question of whether a demotion will constitute a dismissal under the Fair Work Act 2009 (Cth) was considered by the Full Bench of the Fair Work Commission NSW Trains v James [2022] FWCFB 55.

Read more...

Employer fails to disprove adverse action claim

Step back

A recent decision of the Federal Circuit and Family Court of Australia has reaffirmed the standard of proof that is required to disprove allegations of unlawful adverse action under the Fair Work Act 2009 (Cth).

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.