Unfair Dismissal and Unsafe Workplaces
Is it unfair dismissal of a staff member if their employment is ended because they decline to do particular work due to bad health and safety standards by the employer?
Can a staff member be sacked due to the fact that they refuse to work in dangerous conditions?
If a worker is forced to resign because of bad health and safety conditions, can this be a constructive unfair dismissal?
This post will attempt to address those questions, and the law around unfair dismissal and risky work conditions.
What is Unfair Dismissal?
Unfair dismissal suggests that an employee was dismissed from their task, and that the termination was unfair within the significance of the Fair Work Act.
For a termination to be unreasonable, it requires to be identified that the termination was unjust, severe, and/or unreasonable.
There is a great deal of case law on what these things have actually suggested in various circumstances.
Did you understand that a staff member can likewise declare unfair dismissal if they resign? This is called constructive dismissal.
CONSTRUCTIVE DISMISSAL
Constructive dismissal (likewise called forced resignation) is when an employee is essentially required to stop or has no alternative but to resign from the employment.
This normally includes conduct such as:
Bullying in the work environment;
If a staff member is fired after alerting the employer an objective to resign in the future; and
The employer has continually stopped working to pay wages to the employee.
The Fair Work Commission will likewise assess other elements.
WHAT FACTORS WILL THE FAIR WORK COMMISSION Take A Look At?
The Fair Work Commission will examine (among other things):.
If there is a valid factor that the worker was terminated;.
The staff member's conduct prior to the termination;.
If the staff member was given notice, and factors, and offered a chance to react;.
The size of business, and the wage of the staff member;.
Any other reasons that the Fair Work Commission believe are necessary.
But what about if the employer attempts to force the employee to operate in unsafe conditions?
EMPLOYER PROVIDES UNSAFE WORKING CONDITIONS.
Well, initially bullying will likely have an influence on the staff member's health and wellness, so in this case, supplying an environment which is risky to an individual's mental health will likely be feasible in a constructive dismissal case.
An employer has a favorable responsibility in both in legislation and the common law to offer a safe work environment.
If the employer declines to supply a safe work environment then this is also among the celebrations that a worker can state triggered them to resign from their employment.
If the staff member can prove that they made the company knowledgeable about the hazardous working conditions, offered correct notification, and the company still not did anything to correct the issue, then this might be positive unfair dismissal.
In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court identified what danger means. The Court said:.
In my opinion, the word "risks" in s 8( 2) also refers to the possibility of danger. The word "exposed" describes a person who is adequately proximate to the source of the threat at the relevant time or times for that danger to potentially impinge upon his/her health or security.
So, if the worker is exposed to the possibility of risk upon his/her health or security, then this might be enough. If the worker refuses to work because of danger, they can not be terminated relatively.
But What about Employee Breaches?
EMPLOYEE BREACHES HEALTH & SAFETY RULES.
It is pretty well comprehended that if a worker repeatedly breaches health and wellness rules that their employment can be ended.
The employer should bring the alleged breach to the worker's attention and offer training (if needed) and guideline on what to do and refrain from doing.
Repeated breaches will not be unfair dismissal.
In James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 the Plaintiff was employed by BHP as a truck driver. BHP directed him a variety of times to shave his beard as it was against their air filtering policy for working in underground mines. James Felton refused.
His employment was terminated. He demanded unfair dismissal.
The Fair Work Commission said:.
On balance, and having actually weighed each of the factors to consider in s. 387 of the FW Act, I think about that Mr Felton's termination was not severe, unjustified or unreasonable. As such, it was not unreasonable within the meaning of the FW Act.
WHAT HAPPENS IF UNFAIR DISMISSAL IS FOUND?
There are three (3) prospective results if a finding of unfair dismissal or positive unfair dismissal is made. These are:.
An order that the worker is reinstated to their job;.
An order that the staff member gets settlement; or.
A choice to make no order.
If an employee is restored, then they get their job back.
If an order for payment is made, then a worker will be paid up to 26 weeks pay from the company.
CONCLUSION.
As you can see, failure to supply a safe working environment for workers might result in them getting compensation for positive unfair dismissal. The constructive dismissal should have been unjust, harsh, and/or unreasonable in the circumstances.
Likewise, if a worker breaches health and wellness requirements consistently, and does not alter their behaviour, then they may not have any option to unfair dismissal laws.
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