The Australian Industrial Relations Commission found that an employer, who dismissed an employer for failing to operate his crane in a safe manner had failed to provide adequate assistance or an adequate safe system of work for the employee to perform the job and had, therefore, acted in a harsh and unfair manner.
The employee was a maintenance technician working at a Meekatharra and was dismissed because during a shut-down of the processing plant at the mine when he was seen, on four separate occasions, to leave the cabin of a crane while a load was suspended on the crane, walk away from the crane and work under that suspended load.
The employer gave evidence that:
- The employee had been specifically instructed as to what was expected of him in terms of safe crane operation;
- The actions of the employee constituted a serious breach of safety; and
- The employee on four separate occasions was observed operating in the crane in an unsafe manner.
The employer argued that in light of these facts the termination of the employee’s employment was the appropriate penalty.
The employee, on the other hand, argued that from the commencement of the allocation of work and throughout the period of the shutdown he had continually raised the issue of the inadequacy of the manpower allocated for the task.
He also argued that the excessive level of noise in the crane cabin made communication with his offsider impossible.
Further, line of sight communication was not possible due to the position of his offsider and the fact that offsider could not use his hands to signal while he was performing his tasks.
The employee argued that despite raising these issues with the employer on a regular basis throughout the shutdown he was not provided with adequate assistance to carry out his job in a safe manner.
The AIRC found the employee was not justified in leaving the crane cabin in order to communicate with his offsider while a load was suspended.
In the circumstances there was a valid reason for the termination of the employee’s employment.
However, in light of the employer’s expectation that the employee should continue with the job despite inadequate assistance and ongoing problems, the employee could not be solely blamed for the manner in which he had carried out his duties.
The commission noted that it was important that if employers expected their employees to abide by safety requirements then it was essential that the workplace had adequate safe systems of work in place.
The employer in this instance did not provide adequate means for the employee to communicate safely and effectively with his offsider and it had failed to ensure there was a safe system of work in place for the work to be performed.
The commission considered the employee’s termination was disproportionate to his conduct and accordingly determined, in the totality of the circumstances, that the termination was harsh and unfair.
Carla Paratore, solicitor 9288 6940
Michael Jensen, associate 9288 6944