Employment & Safety – Tips and Trends: Edition 12


  • Rocky road for premature employers – The FWC has highlighted the importance of giving underperforming employees adequate warning before deciding to terminate. In Purcell v Rock N Road Bitumen Pty Ltd [2017] FWC 486, a company dismissed its HR officer after a history of poor performance and an incident where the business manager was forced to spend 80 hours correcting her work. The Commission accepted that the HR officer was not suitable for the role and that a failure to improve would have provided a valid reason for termination. However, in finding the dismissal was unfair, the Commission commented that the decision to dismiss the employee was premature because the employer neglected to give the employee warning and she was not made aware that she would face dismissal if her performance did not improve.
  • Redeployment obligations: Musical Jobs – In Skinner v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574, the FWC Full Bench has determined an employer breached its redeployment obligations in failing to consider ‘job swaps’ with other employees who may have willingly accepted a redundancy. The Commission emphasised that while there is no general obligation for an employer to implement or facilitate such an exchange, an employer must consider whether it is a reasonable option. The employer in this case was a large business, had many employees performing similar roles to those made redundant and had previously allowed swaps in like circumstances. Employers should ensure they are completely across their redeployment obligations before proceeding with any redundancy process.
  • Dismissing duds on buds – A recent case has demonstrated that the seriousness of a worker’s misconduct can overcome a lack of procedural fairness in limited circumstances. In Albert v Alice Springs Town Council [2017] FWC 73, an employee argued he was denied procedural fairness when his employer failed to give him an opportunity to respond to drug test results after he returned a positive test for cannabis following a car accident. Despite significant defects in the disciplinary process, it was found that dismissal was not unfair because greater procedural fairness would not have changed the outcome. Although the requirements of procedural fairness may be relaxed in clear cases of serious misconduct, employers should consistently implement fair processes to prevent the argument of such matters before the Commission.


  • Close call: When the boss rang Zang – In Andreas Zang v Toll Transport Pty Ltd [2016] FWC 7952, the FWC made some thought provoking observations about the safe use of mobile phones. A worker was dismissed for answering a 10 second phone call from his supervisor while he was driving which was a breach of Toll’s policy that required drivers to park and completely turn off their phones before taking or making any type of phone call. The Commission found that the breach of policy was a valid reason for dismissal, but it was still unfair because the worker’s conduct was a reflex response to what he thought was an emergency call. If you have a policy which prohibits on-road use of mobile phones, it is prudent to explicitly state that the policy applies even where a call is between a co-worker or supervisor.
  • Snoozer sacked – In the recent case of Parish v Mt Arthur Coal Pty Ltd [2016] FWC 6427, the FWC drew attention to the issue of worker fatigue. The employer in this case had policies that required self-monitoring and reporting of fatigue levels. The employee made a comment to his manager at the beginning of his shift to the effect that he had not slept much since the end of his previous shift. However, he did not report the full extent of his fatigue as it became apparent. The Commission found that this was a serious safety breach and a valid reason for dismissal. This case highlights that fatigue is a serious safety issue and that employer’s operating in high risk environments should always have a fatigue management procedure and policy, both as a preventative measure and to ensure that appropriate disciplinary action can be taken.

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Published: 2 February 2017

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