Wednesday, 04 June 2014 3:36pm
A health and safety rep was fairly sacked for backdating a job hazard analysis after his safety manager told him to, the Fair Work Commission has ruled.
The FWC found that while the safety manager's instructions were "inexcusable", the HSR happily complied with them.
In August 2013, the Toll Energy Logistics Pty Ltd HSR was working on a fuel storage tank - known as T65 - within a sea container at the Gorgon LNG Project on Barrow Island, Western Australia when he injured his right thumb.
His safety manager found he hadn't filled out a job hazard analysis (JHA) for the work he was conducting at the time of his injury, and asked him to complete a JHA and backdate it to the day of the incident.
The HSR also completed and backdated a "step back 5 by 5" form on the safety manager's request, as the one he completed on the day he was injured couldn't be found.
The following day, the safety manager realised the HSR hadn't backdated the JHA correctly and directed him to re-do it.
Toll Energy discovered in a subsequent meeting about the HSR's injury that he had signed the JHA retrospectively, and dismissed him for serious misconduct and breaching its safety procedures.
He claimed unfair dismissal, arguing he had acted on the safety manager's directions, and that this should have been a mitigating factor in Toll Energy's decision on whether to sack him.
Toll Energy argued that if the HSR had concerns about the safety manager's request to backdate the JHA then "it was within his power and ability to seek further counsel on the matter prior to undertaking a deliberate, intentional and dishonest act".
It said its decision to dismiss the worker was valid because of his "intentional dishonesty".
Commissioner Bruce Williams found Toll Energy probably would have placed more weight on the safety manager's influence on the HSR if the HSR had, for example, only signed one document retrospectively after it was "put in front of him" by the safety manager.
"However the [HSR's] falsification of the T65 JHA was not an ill-considered spur of the moment once-off act," he said.
"After first altering [it]... the [HSR] also had an opportunity to reflect overnight on what he had done.
"However apparently he did not do so and was not concerned about what he had done because on his own evidence the next day, without any reluctance or expression of concern, he again twice falsely altered the T65 JHA.
"Whilst [the manager's] involvement was inexcusable this does not in the circumstances excuse the [HSR's] own actions."
Commissioner Williams found it was reasonable for Toll Energy to find it couldn't trust the HSR to comply with safety policies or procedures, and dismiss him.
Allan Pereira v Toll Energy Logistics Pty Limited [2014] FWC 3398 (23 May 2014)