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Is it unfair dismissal of an employee if their work is ended because they refuse to do certain work because of poor health and wellness standards by the company?

Can a staff member be sacked because they refuse to work in harmful conditions?

If a staff member is forced to resign because of bad health and wellness conditions, can this be a positive unfair dismissal?

This article will attempt to address those questions, and the law around unfair dismissal and risky work conditions.

What is Unfair Dismissal?

Unfair dismissal suggests that a worker was fired from their task, which the dismissal was unfair within the significance of the Fair Work Act.

For a dismissal to be unreasonable, it requires to be figured out that the dismissal was unjust, severe, and/or unreasonable.

There is a lot of case law on what these things have meant in different circumstances.

Did you understand that a worker can also declare unfair dismissal if they resign? This is called constructive dismissal.

CONSTRUCTIVE DISMISSAL
Constructive dismissal (also referred to as forced resignation) is when a staff member is basically forced to quit or has no choice but to resign from the work.

This generally consists of conduct such as:

Bullying in the workplace;
If a worker is dismissed after informing the company an intent to resign in the future; and
The employer has continuously failed to pay salaries to the employee.
The Fair Work Commission will also assess other factors.

WHAT FACTORS WILL THE FAIR WORK COMMISSION EXAMINE?
The Fair Work Commission will examine (amongst other things):.

If there is a legitimate reason that the staff member was discharged;.
The employee's conduct prior to the termination;.
If the worker was notified, and factors, and given a chance to react;.
The size of business, and the wage of the staff member;.
Any other reasons that the Fair Work Commission think are very important.
What about if the employer attempts to force the worker to work in risky conditions?

COMPANY PROVIDES UNSAFE WORKING CONDITIONS.
Well, initially bullying will likely have an impact on the worker's health and safety, so in this case, supplying an environment which is hazardous to an individual's mental health will likely be feasible in a constructive dismissal case.

An employer has a positive duty in both in legislation and the common law to supply a safe workplace.

If the company refuses to supply a safe office then this is likewise one of the celebrations that an employee can say caused them to resign from their employment.

If the employee can prove that they made the company familiar with the unsafe working conditions, supplied appropriate notice, and the employer still did nothing to rectify the issue, then this might be positive unfair dismissal.

In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court identified what danger means. The Court said:.

In my viewpoint, the word "risks" in s 8( 2) also refers to the possibility of danger. The word "exposed" describes a person who is adequately near to the source of the risk at the appropriate time or times for that risk to perhaps impinge upon his or her health or safety.

So, if the worker is exposed to the possibility of danger upon his or her health or security, then this might be enough. If the worker refuses to work because of risk, they can not be terminated fairly.

What about Employee Breaches?

EMPLOYEE BREACHES HEALTH & SAFETY RULES.
It is pretty well comprehended that if a worker repeatedly breaches health and wellness rules that their work can be terminated.

The employer needs to bring the alleged breach to the employee's attention and offer training (if required) and guideline on what to do and refrain from doing.

Repetitive breaches will not be unfair dismissal in most cases.

In James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 the Plaintiff was used by BHP as a truck driver. BHP directed him a number of times to shave his beard as it was against their air filtration policy for working in underground mines. James Felton declined.

His work was ended. He sued for unfair dismissal.

The Fair Work Commission stated:.

On balance, and having actually weighed each of the factors to consider in s. 387 of the FW Act, I consider that Mr Felton's dismissal was not extreme, unjust or unreasonable. It was not unreasonable within the significance of the FW Act.

WHAT HAPPENS IF UNFAIR DISMISSAL IS FOUND?
There are three (3) prospective outcomes if a finding of unfair dismissal or constructive unfair dismissal is made. These are:.

An order that the staff member is renewed to their task;.
An order that the employee gets payment; or.
A choice to make no order.
If a staff member is restored, then they get their job back.

If an order for payment is made, then an employee will be paid up to 26 weeks pay from the company.

FINAL THOUGHT.
As you can see, failure to offer a safe workplace for staff members might lead to them getting payment for positive unfair dismissal. The constructive dismissal should have been unjustified, severe, and/or unreasonable in the circumstances.

Also, if a staff member breaches health and safety requirements consistently, and does not alter their behaviour, then they might not have any recourse to unfair dismissal laws.
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