The Full Bench of the Fair Work Commission (Commission) has issued a timely reminder that a lengthy period of service is not a “get out of jail free card” for an employee when challenging the fairness of their dismissal in BlueScope Steel Ltd v Habak [2019] FWCFB 5702.

Facts

Zaki Habak was employed by BlueScope for 39 years. His duties included operating overhead cranes to unload steel coils from trucks and moving the coils around the BlueScope warehouse. During a shift on 8 December 2018, Mr Habak lost control of a coil while unloading, dropping it onto a walkway below. The falling coil did not cause any damage or injury to person or property.

Mr Habak’s employment was terminated for breaching a Critical Safety Policy. BlueScope had recorded two breaches of the same policy in the preceding twelve months by Mr Habak.

Mr Habak subsequently filed an unfair dismissal application with the Commission arguing that termination of his employment was disproportionate to the safety breach.

Outcome

At first instance, the Commission determined that Mr Habak had been unfairly dismissed. Commissioner Riordan concluded that Mr Habak’s dismissal was harsh, regardless of BlueScope having a valid reason for termination and otherwise complying with its statutory obligations. Commissioner Riordan ordered that Mr Habak be reinstated to his former position with BlueScope.

BlueScope appealed the decision to the Full Bench of the Commission. The Full Bench considered Mr Habak’s length of service and the personal impact of his dismissal as factors weighing in his favour. However, such considerations must be balanced against an expectation that an employee with 39 years’ service would comply with workplace policies and procedures.

The Full Bench concluded that Mr Habak’s dismissal was not harsh, unjust or unreasonable and was proportionate to the gravity of the breach.

This decision demonstrates the ability of an employer to dismiss an employee following a single serious incident. However, it is important to balance mitigating factors against the gravity of an incident when contemplating disciplinary action.

This decision also provides a timely reminder for employers to ensure workplace policies are up-to-date and to ensure that all employees have received appropriate training on these policies.

Jordan Nichols
Lawyer
T +61 3 9611 0130
E: jnichols@sladen.com.au

Jasmine O'Brien
Principal
T +61 3 9611 0149  l M +61 401 926 108
E: jobrien@sladen.com.au