Employers have a responsibility to do all that is reasonably practicable to ensure the safety of their workers, but often the real problem is convincing the workers to look after themselves. Motivating workers to develop a safe work culture is no easy task. It involves a combination of instruction, incentive, reward, supervision and discipline. If an employer is not effective in this process, they may be criminally prosecuted. While motivation may be the primary goal, employers must keep in mind that they may have to discipline a recalcitrant employee.
From a work health and safety (WHS) perspective, if a worker is injured, the test will be whether the employer has ensured, so far as is reasonably practicable, the safety of that worker. The very first incident can form the basis of a prosecution, so it is important that the fundamentals are covered. The test will be whether the employer has:
- created a safe working environment;
- given clear instruction to employees;
- monitored the level of compliance by its employees;
- supervised the employees.
Examples of prosecutions of employers for employees disregarding instructions are abundant. In New South Wales a company was convicted and fined $240,000 when a 15 year old work experience student suffered permanent loss of vision in both eyes when he was welding on the first day of a work without eye protection in place. In Western Australia a roof carpenter was convicted and fined $27,500 after a worker lost sight in one eye as a result of a ricocheting nail from a nail gun. In Victoria a hotel was convicted and fined $60,000 after a kitchen hand suffered serious burns to her eye from waste liquid produced after cleaning a cooking grill.
From a disciplinary perspective, it is sometimes difficult to dismiss an employee for a safety breach. The Fair Work Commission has made it clear that it will have regard to evidence that the employee:
- knew what was required of them;
- knew that a breach of the safety requirement could result in dismissal;
- had been warned that non-compliance could result in dismissal;
- there was a pattern of non-compliance without improvement;
- was given a fair opportunity to respond to the allegation; and
- failed to give an adequate response to the allegation.
Dismissal following an initial breach may be harsh, unjust or unreasonable, but the breach should be used an opportunity to better ensure the safety of workers and to set up a basis that will allow strong action in the future.
At the point at which the employer wants to dismiss, then the employer should take the following steps.
- Give the employee details of the alleged safety breach.
- Allow the employee to have with them a support person.
- Give the employee a fair opportunity to respond.
- Ensure that the decision to dismiss is fair, just and reasonable.
- Take into account other mitigating factors such as the age of the employee, length of service, explanation for breach and a good disciplinary record.
If on balance a decision is made not to dismiss, then it is important that the employee is left with no doubt that a further safety breach may lead to dismissal. Clear documentation to this effect is advisable.
Safety breaches have the potential to result in serious injury or death for the worker involved and those around them. In many cases a program of coaching and positive reinforcement will be adopted to develop a stronger safety culture. However, unambiguous warnings should follow to protect the employer’s ability to manage what can be a difficult process of disciplining the employee. Escalation and documentation is often the best approach and not only will that support the employer, the process will also act as evidence that the employer is doing what is required under WHS laws.