First WHS conviction for failing to consult

The South Australian Industrial Relations Court has recorded the first conviction against a company for failing to comply with the duty to consult, cooperate and coordinate activities with other duty holders in relation to work health and safety matters.

A trainee and apprentice placement organisation, Trainee and Apprentice Placement Services Inc. (TAPS), was fined $12,000, a fraction of the potential maximum penalty of $100,000, for breach of consultation obligations (for a corporation) under the Model Work Health and Safety (WHS) Act.

TAPS had placed an apprentice in a position with a roofing company.  In January 2014, while working for the roofing company at a construction site, the apprentice suffered “horrific injuries” when a section of guttering he was handling came into contact with power lines.

Obligation to consult

TAPS was prosecuted under section 46 of the Work Health and Safety Act 2012 (SA), a provision which is replicated in all other Australian States and Territories that have adopted the model WHS legislation (i.e. all States and Territories other than Victoria and Western Australia). That provision states:

“If more than one person has a duty in respect of the same matter under this act, each person with a duty must, so far as is reasonably practicable, consult, cooperate, and coordinate activities with all other persons who have a duty in relation to the same matter.” (Emphasis added.)

Interestingly, while other entities were charged with safety breaches after the incident, TAPS was the only entity to be prosecuted for breach of the consultation duty where the construction company in charge of the site had gone into liquidation.

The Industrial Magistrate found that TAPS had an awareness of WHS issues and undertook certain measures to comply with its WHS duties (for example, visiting each of its host employers every 8 weeks). However, the Court also found that TAPS had not engaged in a consultation process with the roofing company about its WHS policies and procedures and admitted that an audit it had conducted on the roofing company’s operations prior to the incident was inadequate. The Court accepted evidence there were no safety measures in place at the site, despite it being a high risk environment.

Penalty

The Industrial Magistrate applied a significant reduction to the penalty imposed on TAPS for breach of section 46 because it had entered an early guilty plea, acted swiftly to comply with improvement notices, spent around $70,000 improving its safety systems to ensure that it complied with its consultation obligation in the future and had provided substantial ongoing support to the injured apprentice after the incident.

Turning attention to consultation

The Court’s decision should serve as a reminder that the consultation obligations in WHS legislation must not be overlooked. This decision is of particular importance to organisations responsible for placing workers with host employers or on client sites to perform their primary work. Consultation with other duty holders should form a standard compliance measure in any engagement, placement or audit process. Failing to comply with consultation duties can lead to significant penalties and safety convictions recorded against the company.

Aside from statutory compliance, failing to consult with other parties may prevent an employer from obtaining all of the information required to make a proper assessment about safety. Consultation with concurrent duty holders is essential to an employer being able to discharge its primary WHS obligations, where these duties can never be entirely delegated to a third party.

Boland v Trainee and Apprentice Placement Service Inc. [2016] SAIRC 14 (27 May 2016)

Summary dismissal for breach of employer drug policy not unfair

The promotion of workplace safety was key to a recent decision of the Fair Work Commission (FWC) regarding summary dismissal of an employee for offending her employer’s drug and alcohol policy. This decision follows a recent trend in the FWC of upholding employers’ zero tolerance safety rules.

A dump truck operator on a mine site was dismissed for serious misconduct after she breached a ‘cardinal rule’ of her employer’s drug and alcohol protocols that no employee attend the workplace under the influence of a non-approved drug. The employee had tested positive to the presence of methylamphetamine 4 times over the reporting cut-off level in a random drug and alcohol test.

The employee lodged an unfair dismissal application, arguing that her dismissal was harsh, unjust or unreasonable for reasons including that:

  • the employee felt “perfectly well” upon commencing her shift and “did not feel” under the influence of any drug on the day of testing;
  • the employer was required to prove that the employee was under some sort of influence of the drug and had not done so; 
  • the employee had been the victim of a drink spiking incident the previous weekend, (being her explanation for the positive test result); and
  • the employee was a competent operator with no previous performance issues.

The employer urged for dismissal of the application, arguing that any decision in the employee’s favour would diminish the safety of its mineworkers. The employer stressed the importance it placed upon the safety of its workforce, including by enforcement of cardinal rules relating to drugs and alcohol. The employer relied upon expert medical evidence to discount the employee’s version of events “designed to disguise her own recreational use of methylamphetamine”. The employer further submitted that its expert medical evidence was not intended to assess the employee’s level of impairment, but to unequivocally establish that the employee must have been under the influence of methylamphetamine when she attended for work.

Despite the employee’s plea for reinstatement and promise to undergo ongoing drug testing if reinstated, the FWC dismissed her application stating that “the nature and severity of [the employee’s] misconduct has provided justifiable, valid reason for summary dismissal”. The FWC accepted the employer’s expert medical opinion as “strong evidentiary support” for summarily dismissing the employee, saying there was “little, if any evidence” to support the employee’s version of events.

This case follows a line of recent cases where the FWC has reinforced the requirement for employees to comply with employer drug and alcohol policies, validating employer action in dismissing employees for drug use.

In September last year, the Full Bench of the FWC upheld an employer’s zero tolerance approach to drug use by overturning the reinstatement of a ferry master who claimed he was unfairly dismissed for testing positive to marijuana after a crash (Harbour City Ferries Pty Ltd v Christopher Toms [2014] FWCFB 6249).  In that case, the Full Bench found it irrelevant that the employee did not suffer impairment from his drug use, or that the drug use did not cause the accident.  Accepting that the employer required compliance with its drug-free policy without discussion or variation, the Full Bench found the real misconduct to have occurred when the employee agreed to take a shift after smoking marijuana, viewing this as “deliberate disobedience, [by] a senior employee of a significant policy”. As the Full Bench put it, ” an employer charged with public safety … does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor … What it wants is obedience to the policy.” 

Similarly, in October last year, the FWC upheld the dismissal of a maintenance employee who tested positive for drug use whilst working on “safety sensitive aviation activities” at Qantas’ baggage carousels, finding the breach constituted serious misconduct – partly due to the reputational risk to the employer  (see Sharp v BCS Infrastructure Support Pty Limited [2014] FWC 7310).

For employers, addressing drug and alcohol use in the workplace is about managing risk – particularly in light of Australia’s strict work, health and safety laws. These decisions will no doubt reassure those employers wishing to advocate for a “zero tolerance ” policy approach.

Tara Leah Cunningham v Downer EDI Mining Pty Limited [2015] FWC 318 (14 January 2015)