Is it unfair dismissal of an employee if their employment is terminated because they refuse to do certain work because of poor health and safety standards by the employer?
Can an employee be sacked because they refuse to work in dangerous conditions?
If an employee is forced to resign because of bad health and safety conditions, can this be a constructive unfair dismissal?
This article will try to answer those questions, and the law around unfair dismissal and unsafe work conditions.
What is Unfair Dismissal?
Unfair dismissal means that an employee was dismissed from their job, and that the dismissal was unfair within the meaning of the Fair Work Act.
For a dismissal to be unfair, it needs to be determined that the dismissal was unjust, harsh, and/or unreasonable.
There is a lot of case law on what these things have meant in different circumstances.
But did you know that an employee can also claim unfair dismissal if they resign? This is called constructive dismissal.
Constructive dismissal (also known as forced resignation) is when an employee is essentially forced to quit or has no option but to resign from the employment.
This usually includes conduct such as:
- Bullying in the workplace;
- If an employee is dismissed after notifying the employer an intention to resign in the future; and
- The employer has continually failed to pay wages to the employee.
The Fair Work Commission will also look at other factors.
What Factors will the Fair Work Commission Look at?
The Fair Work Commission will look at (amongst other things):
- If there is a valid reason that the employee was dismissed;
- The employee’s conduct prior to the dismissal;
- If the employee was given notice, and reasons, and given an opportunity to respond;
- The size of the business, and the salary of the employee;
- Any other reasons that the Fair Work Commission think are important.
But what about if the employer attempts to force the employee to work in unsafe conditions?
Employer Provides Unsafe Working Conditions
Well, initially bullying will likely have an impact on the employee’s health and safety, so in this case, providing an environment which is unsafe to a person’s mental health will likely be arguable in a constructive dismissal case.
An employer has a positive duty in both in legislation and the common law to provide a safe workplace.
If the employer refuses to provide a safe workplace then this is also one of the occasions that an employee can say caused them to resign from their employment.
If the employee can prove that they made the employer aware of the unsafe working conditions, provided proper notice, and the employer still did nothing to rectify the problem, then this may be constructive unfair dismissal.
In Thiess Pty Limited v Industrial Court of New South Wales  NSWCA 252 the Court identified what risk means. The Court said:
In my opinion, the word “risks” in s 8(2) also refers to the possibility of danger. The word “exposed” refers to a person who is sufficiently proximate to the source of the risk at the relevant time or times for that risk to possibly impinge upon his or her health or safety.
So, if the employee is exposed to the possibility of risk upon his or her health or safety, then this may be enough. If the employee refuses to work because of risk, they cannot be terminated fairly.
But What about Employee Breaches?
Employee Breaches Health & Safety Rules
It is pretty well understood that if an employee repeatedly breaches health and safety rules that their employment can be terminated.
The employer must bring the alleged breach to the employee’s attention and provide training (if required) and instruction on what to do and not do.
Repeated breaches will not be unfair dismissal in most cases.
In James Felton v BHP Billiton Pty Ltd  FWC 1838 the Plaintiff was employed 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 refused.
His employment was terminated. He sued for unfair dismissal.
The Fair Work Commission said:
On balance, and having weighed each of the considerations in s.387 of the FW Act, I consider that Mr Felton’s dismissal was not harsh, unjust or unreasonable. As such, it was not unfair within the meaning of the FW Act.
What Happens If Unfair Dismissal is Found?
There are three (3) potential outcomes if a finding of unfair dismissal or constructive unfair dismissal is made. These are:
- An order that the employee is reinstated to their job;
- An order that the employee gets compensation; or
- A decision to make no order.
If an employee is reinstated, then they get their job back.
If an order for compensation is made, then an employee will be paid up to 26 weeks pay from the employer.
As you can see, failure to provide a safe working environment for employees may result in them receiving compensation for constructive unfair dismissal. The constructive dismissal must have been unjust, harsh, and/or unreasonable in the circumstances.
Also, if an employee breaches health and safety requirements repeatedly, and does not change their behaviour, then they may not have any recourse to unfair dismissal laws.
Article Contributed by Wayne Davis from Stonegate Legal. Wayne is the principal lawyer and legal practice director of the firm and has an LLB, and GDLP and is admitted to the Supreme Court of Queensland and the High Court of Australia. Wayne is currently completing an LLM (Applied Law) majoring in Commercial Litigation and dispute resolution at the College of Law.