With more than 200 calls a week from NECA members nationally to our Workplace Relations telephone advice service, our expert advisors cover the full range of day-to-day employment issues.
These questions were recently asked of our Workplace Relations phone advice team
- Written by James Greuter (NECA workplace relations adviser)
Q Are we allowed to summarily dismiss one of our employee’s for a safety breach?
A Whilst conduct which causes serious and imminent risk to the health and safety of a person may be grounds for summary dismissal, each OHS breach must still be viewed on a case-by-case basis. As only in situations where an employee has been willfully or grossly negligent will summary dismissal, ordinarily be valid.
In any case involving the dismissal of an employee for safety violations, the Fair Work Commission will take the following circumstances into account when determining if the dismissal was harsh, unjust or unreasonable:
- The seriousness of the breach/incident;
- Company policies outlining relevant safety procedures and the consequences for breaches;
- Relevant training/induction into Company OHS policy;
- Whether the incident/breach was an isolated incident or recurring in nature; and
- Whether the employee concerned had managerial responsibilities and was expected to set an example.
This criteria was used in a case before the Fair Work Commission in 2016, in which an employee of Stramit Corporation was dismissed for breaching Stramits’ work health and safety procedures. As a part of their policies Stramit had developed a process in which a forklift could not enter an exclusion zone where a pedestrian was located. The employee was alleged to have breached this policy, notwithstanding having already been involved in a safety incident the year prior and therefore, being ‘acutely aware’ of the safety issues.
In deciding that the dismissal was not unfair for the purposes of the Fair Work Act Senior Deputy President Richards held that “a failure by an employee to give effect to safety training instances invokes….a valid reason under s.387 of the Act for dismissal. An employee who after reasonable training does not adopt the behavioural cues necessary to achieve an employers’ reasonable safety expectations in a dangerous workplace, is a risk to him or herself, to others, and has acted to cause a loss of trust in the employment relationship.”
Therefore, a safety breach may be considered a valid reason for dismissal, but only in situations in which the above criteria has been satisfied.
It is advised you contact NECA for advice before proceeding with any dismissal regarding an alleged safety breach.
Hanley v Stramit Corporation Pty Ltd t/as Stramit Building Products  FWC 1150
Q We have made one of our employees redundant and have asked him to work out his notice period. Whilst serving out his notice period he advised us that he is entitled to one days paid time off to search for a new job. Are we required to comply with his request?
A Clause 15.5 of the Electrical, Electronic & Communications Contracting Award 2010 provides that an “employee given notice of termination in circumstances of redundancy will be allowed up to one days’ time off without loss of pay during each week of notice for the purposes of seeking other employment.” Therefore, in line with this clause you would be required to provide him with one paid day off per week of notice, for the purposes of seeking alternative employment.
As a matter of note the clause also provides that, If an employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee will, at the request of the employer, be required to produce proof of attendance at an interview or they will not receive payment for the time absent. For this purpose a statutory declaration would be sufficient.
Q One of our employees needs to take a day off to attend the funeral of a family member, does this fall under personal leave?
A The above scenario would fall under compassionate leave. Whilst this form of leave is dealt with under the personal/carer’s leave provisions of the National Employment Standards, it is an entitlement which is separate to paid personal/carer’s leave.
Under the National Employment Standards a permanent employee is entitled to two paid days of leave when a member of the employees’ household or immediate family dies or suffers a life threatening injury or illness. With immediate family being defined in the Fair Work Act as “a spouse, de facto partner, parent, child, sibling, grandparent or grandchild of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.”
Unlike personal leave, there is no cap or accrual rate for compassionate leave, in that employees have an entitlement to 2 days compassionate leave on each permissible occasion, that the above criteria is satisfied.
The explanatory memorandum of the Fair Work Act provides the following example: “An employee is advised her grandmother has been diagnosed as terminally ill, with the treating doctor advising the grandmother needs strong family support. The employee visits the grandmother on two separate occasions before the grandmother dies.” Because the grandmother developed a terminal illness before passing away, there are two permissible occasions for taking compassionate leave, when the grandmother developed the terminal, illness, and also when she passed away.
Therefore, in the original example the employee would be entitled to compassionate leave (rather than personal leave) to attend the funeral, so long as the relative was immediate family or a member of the employees’ household.
Q One of our employees who is on annual leave has emailed us a medical certificate, advising that he is unfit for work for 2 days during his annual leave. As he is sick does this extend his period of leave or do we just ignore the medical certificates as he is already off work?
A The period of annual leave is not extended by such absence, however, you can’t simply ignore the medical certificate. Instead the employee would be entitled to a reaccrediting of his annual leave for each day he was certified unfit due to his injury or illness. The National Employment Standards (s89) states “ If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this part….the employee is taken not to be on paid annual leave for the period of that other leave or absence.”
Therefore, in this case you would be required to reaccredit his annual leave the two days.
If you have any IR issues affecting your business, then please contact our expert Workplace Relations team on 1300 NECA IR
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