A recent case in the Fair Work Commission has found an employee was not unfairly dismissed as despite his conduct being in line with “local practice” it was still “extremely hazardous”.
In a recent case, Blyth v JBS Australia Pty Ltd, the Fair Work Commission found an employee of 13 years dismissed for not acting in compliance with training and company policies was not unfairly dismissed.
Mr Blyth was employed by JBS Australia Pty Ltd (JBS) as a bandsaw operator, trainer and assessor. Since 2015, he had been given several warnings including a written warning for breaching the Discrimination, Harassment, Bullying and Victimisation Policy, received written counselling for breaching the Food Safety and Quality Assurance Policy and had a note in the Foreman Activity Report for failing to wear safety glasses.
On 27 June 2017, several employees believed the speed of the room, relating to the number of carcasses processed, was too fast and felt uncomfortable. One of the employees, Mr Chuntai, called for help as he felt stressed and needed another person in the area.
Mr Blyth approached Mr Chuntai to provide assistance. He reportedly asked for Mr Chuntai to move to the side, so he could perform a cut on the bandsaw.
The bandsaw being used by Mr Chuntai had a built-in safety mechanism. A waist band strap was designed to sit on the operator’s waist, and a sensor was used to determine whether the operator’s skin had touched the machines blade. If it had, the blade would stop.
Mr Blyth did not take the waist band off Mr Chuntai and place it on himself. He proceeded to perform the cut without the safety mechanism. This was in breach of the company’s training and policies.
Mr Blyth claimed that transferring the waist band would have taken too long and he was trying to alleviate the stress off other workers. He also claimed it was common practice for trainers to not be attached to the machine when training others because there was only one strap. Therefore, the trainee remained attached while the trainer would provide an example of what to do. The trainee would then be asked to replicate it.
Following Mr Blyth performing the cut unattached to the machine, he was told words to the effect of “you shouldn’t have cut that – you’re not attached”, by the foreperson. Mr Blyth submitted that the reaction was appropriate as he had done the wrong thing.
Subsequently, an investigation was conducted by JBS due to the breach of Workplace Health and Safety Policy, Cardinal Rules Policy and Training Policy. JBS ultimately decided to terminate Mr Blyth’s employment summarily for misconduct.
Mr Blyth contended that the dismissal was unfair, as while he had acted contrary to company policy, he was acting pursuant to a “practical method of training” and it was a “split second lapse” in judgement.
The Fair Work Commission found the serious safety risks associated with not wearing the waist band and breaching the Workplace Health and Safety Policy, Cardinal Rules Policy and Training Policy were valid reasons for dismissal.
The Fair Work Commission found that although JBS did not disprove that the “practical method of training”, as described by Mr Blyth, did not occur in the workplace, it was not enough to make the dismissal harsh, unjust or unreasonable. The Fair Work Commission believed the “conduct [was] simply so counterintuitive to safe practice as well as the stated policies and task instructions of JBS Australia that ultimately the explanation [could not] be accepted as a mitigating factor”.
The fact that Mr Blyth had been working with the company for 13 years and 8 months and was, at the time of the incident, a trainer, meant he was aware of the policies. The Commission believed he should have led by example by attaching the waist band before he used the bandsaw.
As a result, the Fair Work Commission found the dismissal was not harsh, unjust or unreasonable and dismissed the application.
Key issues for employers
In this case, the Fair Work Commission found it was not a mitigating factor that the conduct of Mr Blythe was likely in line with “local practice”. This is an unusual result. The Fair Work Commission and the Courts have often found that it is harsh, unjust or unreasonable to dismiss an employee who has engaged in a practice common in the workplace, even if that common practice is against company policy. Employers should therefore ensure they clearly discourage any unacceptable practices and do not allow such practices to continue where possible.
In this case, the clear workplace policies understood by Mr Blythe aided in demonstrating his conduct warranted summary dismissal. Employer’s should ensure they create clear workplace policies and provide training and education to all employees regarding these policies. This may help in protecting the employer from any unfair dismissal case when they have dismissed an employee for breaching workplace policies.