| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicants dismissed as result of incident in which alleged breached respondent’s health and safety policies - Applicants’ instructed to locate, excavate and repair broken water main - Excavation for pipe reached depth where some form of reinforcement required – Third applicant returned to depot for materials and respondent’s supervisor suggested battering trench – Council representative inspected site and found battering incorrect and trench unsafe for second applicant - Work halted until excavation made safe – Following disciplinary proceedings applicants dismissed - Third applicant dismissed for failing to observe safety procedures, working in unsafe manner, failing to make proper use of installed or supplied safety equipment and refusal to carry out proper and lawful instruction - Applicant previously received warning for failing to follow health and safety protocols - Found prior warning ineffective in circumstances where not made clear what was required in future – Found third applicant ignorant of correct specifications to batter trench safely and failed to realise mistake – Found second applicant put at risk as consequence - Respondent claimed information about battering available on intranet – Authority did not accept intranet appropriate medium to get information to field staff who rarely accessed computer during working day – Found considering applicant’s training, instructions about how to recognise unsafe trench, and level of support and supervision received day of incident reasonable employer would not have decided to dismiss - Dismissal unjustified - Second applicant dismissed for failing to observe safety procedures and working in unsafe manner - Found allegations not properly put to second applicant - Found did not have benefit of full individual interview – Found respondent relied on information elicited at joint meeting with first applicant – Found as applicants’ answers confused and inconsistent further inquiry needed before final conclusions reached - Found respondent failed to show reasonable basis for concluding second applicant equipped with knowledge to recognise unsafe trench and to know third applicant’s instructions unsafe – Found as second applicant unable to identify potential hazard respondent had not established second applicant’s conduct amounted to serious misconduct - Dismissal unjustified – First applicant dismissed for failing to observe safety procedures, working in unsafe manner, and allowing second applicant to work in unsafe manner - Found substance to respondent’s concerns about first applicant’s judgment - However, found respondent failed to demonstrate conducted full and fair inquiry, with opportunity for representation, all allegations properly put to first applicant, and all factual matters thoroughly canvassed - Dismissal unjustified - REMEDIES – No contributory conduct by second and third applicants – Found first applicant person in best position to know trench unsafe and work could not have proceeded without first applicant being prepared to carry it out - Found 25 percent contributory conduct - All applicants sought reinstatement – Respondent claimed applicants’ positions filled by employees who would otherwise have been made redundant when respondent’s construction division closed – Authority found given closure of construction division reinstatement not practicable - Reimbursement of lost wages for period from date of dismissal to Authority investigation meeting awarded to second and third applicants - Reimbursement of lost wages for period from date of dismissal to Authority investigation meeting reduced for contributory conduct awarded to first applicant - Quantum to be determined by parties – Found all three applicants relatively young men with families to support – Found all applicants struggled to survive on unemployment benefit – Applicants provided evidence of hardship, distress and relationship problems they and their families suffered as result of dismissal - $15,000 compensation each awarded to second and third applicants - $15,000 compensation reduced to $11,250 for contributory conduct awarded to first applicant - Digger operator/Crew Leader |