Unfair Dismissal and Unsafe Workplaces

Is it unfair dismissal of a worker if their work is ended because they refuse to do certain work because of poor health and safety standards by the company?

Can a worker be sacked due to the fact that they refuse to work in unsafe conditions?

If a worker is forced to resign because of bad health and safety conditions, can this be a constructive unfair dismissal?

This article will attempt to respond to those concerns, and the law around unfair dismissal and unsafe work conditions.

What is Unfair Dismissal?

Unfair dismissal implies that a worker was dismissed from their task, which the dismissal was unfair within the meaning of the Fair Work Act.

For a termination to be unreasonable, it requires to be determined that the termination was unjust, harsh, and/or unreasonable.

There is a lot of case law on what these things have suggested in different circumstances.

However did you understand that a worker can likewise claim unfair dismissal if they resign? This is called constructive dismissal.

CONSTRUCTIVE DISMISSAL
Constructive dismissal (also called forced resignation) is when a staff member is basically forced to quit or has no option but to resign from the employment.

This generally consists of conduct such as:

Bullying in the workplace;
If a worker is fired after alerting the company an objective to resign in the future; and
The employer has actually continuously failed to pay earnings to the worker.
The Fair Work Commission will also look at other elements.

WHAT FACTORS WILL THE FAIR WORK COMMISSION ASSESS?
The Fair Work Commission will look at (among other things):.

If there is a legitimate reason that the employee was sacked;.
The worker's behavior prior to the termination;.
If the employee was given notice, and reasons, and offered an opportunity to respond;.
The size of the business, and the wage of the staff member;.
Any other reasons that the Fair Work Commission think are necessary.
What about if the company tries to force the staff member to work in hazardous conditions?

EMPLOYER PROVIDES UNSAFE WORKING CONDITIONS.
Well, at first bullying will likely have an effect on the employee's health and wellness, so in this case, supplying an environment which is unsafe to a person's psychological health will likely be feasible in a constructive dismissal case.

An employer has a favorable task in both in legislation and the common law to supply a safe work environment.

If the company refuses to provide a safe office then this is also among the occasions that a worker can say caused them to resign from their work.

If the worker can show that they made the employer aware of the risky working conditions, offered proper notification, and the company still not did anything to remedy the problem, then this may be useful unfair dismissal.

In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court recognized what threat means. The Court stated:.

In my opinion, the word "risks" in s 8( 2) also refers to the possibility of danger. The word "exposed" describes a person who is sufficiently proximate to the source of the danger at the pertinent time or times for that threat to perhaps impinge upon his or her health or security.

If the employee is exposed to the possibility of threat upon his or her health or safety, then this might be enough. If the worker refuses to work because of risk, they can not be terminated fairly.

What about Employee Breaches?

EMPLOYEE BREACHES HEALTH & SAFETY RULES.
It is quite well understood that if a staff member consistently breaches health and wellness guidelines that their employment can be ended.

The company needs to bring the supposed breach to the staff member's attention and supply training (if required) and instruction on what to do and not do.

Repeated breaches will not be unfair dismissal.

In James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 the Plaintiff was used by BHP as a truck driver. BHP directed him a variety of times to shave his beard as it was against their air purification policy for working in underground mines. James Felton refused.

His employment was ended. He sued for unfair dismissal.

The Fair Work Commission said:.

On balance, and having actually weighed each of the factors to consider in s. 387 of the FW Act, I think about that Mr Felton's dismissal was not severe, unjustified or unreasonable. As such, it was not unreasonable within the significance of the FW Act.

WHAT HAPPENS IF UNFAIR DISMISSAL IS FOUND?
There are 3 (3) possible results if a finding of unfair dismissal or positive unfair dismissal is made. These are:.

An order that the staff member is renewed to their job;.
An order that the employee gets payment; or.
A choice to make no order.
If an employee is renewed, then they get their job back.

If an order for payment is made, then a staff member will be paid up to 26 weeks pay from the employer.

CONCLUSION.
As you can see, failure to provide a safe workplace for staff members may result in them receiving compensation for constructive unfair dismissal. The constructive dismissal needs to have been unfair, severe, and/or unreasonable in the scenarios.

Likewise, if a staff member breaches health and wellness requirements consistently, and does not alter their behaviour, then they may not have any recourse to unfair dismissal laws.
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