Friday, 22 November 2013 11:33am
An operations manager who was sacked when he returned to work after the Christmas shutdown period - for breaching safety rules more than two months before - has had his unfair dismissal claim upheld.
The Fair Work Commission found that while the employer, Metecno Pty Ltd (trading as Bondor), had a valid reason to dismiss the manager, the dismissal was harsh because it failed to take immediate action following the breaches.
In Canberra, the Commission heard that in November 2012, the manager directed Metecno's OHS officer and a worker to help two contractors dismantle a cold store in a vacated building, which was a time-critical job.
During the dismantling, a third contractor - who attended the premises by mistake, hadn't been inducted and was helping the four workers with the task - was injured when he fell from a ladder.
The employer received an investigation report on the incident before the Christmas shutdown in December 2012, and sacked the manager for serious misconduct after he returned from the break in February 2013.
The manager claimed unfair dismissal, arguing the events should be "considered in light of the pressure on [him] at the time to complete the job".
He also argued that it wasn't unreasonable for him to arrange for the OHS officer to perform the dismantling task, as the officer had been trained in health and safety.
The employer argued the manager knew the OHS officer had no skills in dismantling cold stores and had only completed three days of OHS and HSR training since joining Metecno.
It said the manager failed to complete "even the most basic safety checks before sending unqualified and inexperienced employees to complete a hazardous task".
Commissioner Barbara Deegan found that directing the OHS officer to supervise and dismantle the cold store was a valid reason for dismissal.
She found the manager knew the task was beyond the officer's qualifications and experience, and "was either aware that no job safety analysis had been completed for the pull-down job or was negligent in not ensuring that such an analysis had been prepared".
"I am satisfied that the [manager] was under pressure to complete the job at the time but I do not accept that as an excuse for the major safety breaches that occurred as a result," she said.
She found, however, that the dismissal was harsh.
"The dismissal was largely based on facts which were well known to the employer by mid-December 2012 yet the dismissal did not take effect until February 2013," she said.
"In my view, while the incident... was sufficient reason for the termination of the [manager's] employment, I do not consider that summary dismissal can be justified in circumstances where [he] was permitted to continue to work as normal for a further two months."
Commissioner Deegan allowed the manager's claim, and ordered he be paid five weeks' pay in compensation, in lieu of reinstatement.
Ian Cameron v Metecno Pty Ltd T/A Bondor [2013] FWC 8902 (13 November 2013)