Safety violation justified dismissal: FWC
The Fair Work Commission has upheld the dismissal of a machine operator who removed a safety guard, failed to report its removal to the appropriate supervisor and gave a misleading explanation during the employer’s investigation.
What happened?
The applicant operated an axle-press machine for the employer. The machine had recently been recommissioned after upgrades that included the installation of a bright yellow safety guard.
During an afternoon shift, the guard was removed from the machine. The employer did not learn of the problem until an employee on the following morning shift reported that the guard was missing.
When questioned, the applicant initially said that the guard had fallen off. Before the Commission, however, he accepted that he had removed it after it had partly detached. He claimed that another operator, whom he believed was his team leader, had instructed him to remove it to prevent damage to the machine.
The Commission preferred evidence from the employer’s maintenance manager that the guard could not have fallen completely from the machine without human intervention. It also rejected the suggestion that removing the guard was necessary to prevent damage.
Although the applicant said he reported the matter to the other operator, that employee was not a supervisor and did not pass the information on to management.
The Commission found that the applicant removed the guard and subsequently misled the employer about what had occurred. Together, these matters provided a valid reason for dismissal.
Procedural fairness and language difficulties
The applicant also argued that he was denied procedural fairness because the employer did not provide an accredited Tamil interpreter at the disciplinary meeting.
The employer had attempted to obtain an accredited interpreter but was unsuccessful, so it arranged for a Tamil-speaking colleague to assist. The Commission observed that there were interpretation difficulties and said postponing the meeting would have been preferable.
Nevertheless, the allegations had been provided in writing several days beforehand, the applicant understood the substance of the concerns, and he could have supplied a further written response after the meeting. The absence of an accredited interpreter therefore did not deprive him of a fair opportunity to respond.
Commissioner Rogers of the FWC found that the employee’s conduct provided a valid reason for dismissal and that termination was proportionate to the seriousness of the incident.
Lessons for employers
The decision confirms that deliberately interfering with machine guarding can justify dismissal, particularly where the employee fails to report the incident and is less than honest during the investigation.
However, the employer’s limited communication about the newly installed guard was a potential weakness. Employers introducing new safety controls should explain their purpose, provide (documented) training, and confirm the required reporting procedure if equipment becomes damaged or displaced.
Employers should also take reasonable steps to address language barriers during disciplinary processes. Where an accredited interpreter cannot be obtained, postponing the meeting—or providing both written allegations and an opportunity for a written response—may reduce procedural risk.