In June 2019, a driver/glass worker with thirty years of service Ashley Williams made an application under section 394 of the Fair Work Act 2009 (Cth) for alleged unfair dismissal from his employment with Viridian Glass Limited. Williams was terminated for continued breaches of company occupational safety and health policies and procedures.
In the application, the Fair Work Commission reviewed the prior occupational safety and health performance of the worker and his involvement in previous incidents. In particular, the Commission reviewed the following incidents:
1997 – Issued final warning for failing to properly secure a load of glass on the truck he was driving.
2012 – Issued final warning for applying a non-standard procedure to disposing 160kg glass sheets.
2013 – Issued a ‘final final (sic) warning’ for wrapping safety tape around the wheels of a motorcycle of another employee that he considered a hazard.
2014 – Involved in an incident where a wingnut was removed that secured glass sheets on the truck resulting in a finger injury.
2016 –Issued a formal warning when ignoring company policy in walking a loaded a-frame trolley in a backwards direction and not forwards. As a result, he pinned his left wrist between the trolley and a column of the building that resulted in a compound fracture of his wrist.
2017 – Involved in an incident where he tripped over a strap laying on the ground whilst unloading glass sheets.
2018 – Involved in an incident where he reversed the company vehicle into a parked vehicle of his residential driveway.
2018 – Involved in an incident where he clipped and damaged the side mirror of another parked vehicle in the company vehicle.
2018 – Issued a confirmation of written warning when after when attempting to remove a 15kg glass clamp, allowed it to hit a member of the public on the back of the head.
2019 – Issued an allegation of misconduct letter and an invite to a disciplinary meeting after reversing over a 1.2m moveable sign and dragging the signage 2m whilst in operation of a vehicle.
The final incident, post-investigation, revealed that vehicle safety procedures were not adhered to. A walk-around of the truck was not performed, a spotter engaged or the Viridian OHS process of performing a ‘Take 2’ followed. Following several performance management meetings, Williams was advised that his employment was being terminated due to:
- Several previous written warnings for breaches of occupational health and safety duties;
- Several breaches of company OHS policies and procedures;
- Creating unacceptable safety risks for himself and others; and
- Refusing to accept accountability for actions and learn from his mistakes.
Fair Work reviewed the evidence as to whether Williams’ dismissal was harsh, unjust or unreasonable. They also reviewed whether there was a valid reason to terminate Williams and whether the termination was in explicit, plain and clear terms.
Fair Work were not convinced that there were any breaches from the employer in terminating Williams sighting that it was ‘Particularly relevant in this case is the criticality of safety in a high-risk work environment and the Applicant’s pattern of safety related misconduct over an extended period of time.’ The case was dismissed.
Case note: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2020/250.html?context=1;query=williams%20v%20viridian%20glass;mask_path=