Joss v Boral Bricks Pty Ltd  FWA 8203
In a win highlighting the importance of workplace safety, FCB recently acted on behalf of Boral Bricks Pty Ltd and successfully defended an unfair dismissal proceeding arbitrated by FWA.
The important lesson all employers can take away from this decision is how critical it is to have sound workplace health and safety policies and protocols in place and to ensure all employees and other persons comply with these requirements. The case also highlights the importance of conducting proper and thorough risk assessments and continually providing appropriately delivered safety training that contains the right content and message.
The case was in relation to the dismissal of an employee who worked on a machine that unloaded, broke down and packaged bricks. The employee has received at least 4 separate training sessions on the use of Boral’s lock out and tagging procedure. A risk assessment conducted on the machine identified that a failure to enter the machine without “isolating” it had the potential to fatally injure an employee. Despite this training and at least one written warning, the employee failed to follow the safety procedure when using the machine. In an interview with the employee prior to his dismissal, he admitted entering the machine to take out bricks without locking and tagging it as many as 5 times a shift, albeit he denied this in the proceedings before FWA.
In reaching a decision as to whether the dismissal was unfair, FWA considered the seriousness of the breaches including the risk assessment identifying that conduct such as that of the employee concerned could be fatal. FWA was satisfied that despite the training and the written warning, the employee had repeatedly and deliberately breached Boral’s safety procedures. FWA found that this conduct was a valid reason for his dismissal and while the employee may have engaged in the conduct with the intention of getting his job done this was an insufficient defence when balanced against the critical importance of workplace health and safety.
Reproduced and written by FCB Workplace Law