Employee reinstated due to inconsistent treatment of safety breaches

In a recent decision of the Fair Work Commission,1 an employer was ordered to reinstate an employee who had been dismissed for safety breaches. In making the order, the Commission gave weight to the employer’s past treatment of other employees who had committed safety breaches.

The employee was summarily dismissed from his position as a licensed aircraft mechanical engineer at Avalon airport for driving an airport “tow-tug” on a public road to buy his lunch from a nearby service station.

Following an investigation into the incident, the employer concluded that the employee had breached the company’s health and safety policy and standards of conduct policy.

The Commission accepted that because the employee had driven the unregistered vehicle, which was not fit for the purpose, on a public road, the employer had a valid reason for the dismissal.

However, the Commission found that the employee’s dismissal was harsh, and therefore unfair. In reaching this finding, the Commission gave consideration to:

  • evidence which suggested that the employee’s actions “were not consciously or knowingly or deliberately taken so as to contravene the company’s safety and other policies”;
  • the financial consequences of the employee’s dismissal given that he was the sole breadwinner of his family;
  • the fact that the employee was 60 years of age and had poor prospects of finding suitable alternative employment; and
  • the employee’s otherwise unblemished record during his four years and nine months of employment with the employer.

In addition, the Commission heard evidence of serious safety breaches by other employees across the employer’s operations (including an incident where an engineer failed to secure a plane’s engine oil cap) who had not been dismissed. The Commission found that the different treatment of the employee in a situation “where the potential consequences of the other engineers’ actions were far more serious” was a relevant factor to be taken into account.

Despite the employer opposing reinstatement, the Commission ordered that the employee be reinstated, but to a larger airport to allow for closer supervision.

In addition to ensuring that policies and procedures are readily accessible to employees, the decision highlights the importance of employers ensuring that they deal with employee misconduct (including safety breaches) consistently. This may require particular vigilance where the employer operates at a number of locations.

1Gill v Jetstar Airways Pty Ltd [2016] FWC 1472.


Karl Rozenbergs

Karl Rozenbergs

Partner & Co-Lead, Health & Community

Employment lawyer Karl Rozenbergs advises clients in adverse action claims, on negotiating enterprise agreements and much more.

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