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Is it unfair dismissal of a staff member if their work is terminated because they refuse to do specific work because of bad health and wellness requirements by the employer?

Can a staff member be sacked since they refuse to work in dangerous conditions?

If an employee is forced to resign because of bad health and wellness conditions, can this be an useful unfair dismissal?

This post will attempt to address those concerns, and the law around unfair dismissal and hazardous work conditions.

What is Unfair Dismissal?

Unfair dismissal indicates that a worker was dismissed from their task, which the termination was unfair within the meaning of the Fair Work Act.

For a termination to be unreasonable, it requires to be identified that the dismissal was unjustified, extreme, and/or unreasonable.

There is a great deal of case law on what these things have actually meant in different scenarios.

Did you know that an employee can also claim unfair dismissal if they resign? This is called constructive dismissal.

CONSTRUCTIVE DISMISSAL
Constructive dismissal (also called forced resignation) is when a staff member is essentially required to quit or has no option but to resign from the work.

This generally consists of conduct such as:

Bullying in the office;
If an employee is dismissed after alerting the company an objective to resign in the future; and
The company has constantly failed to pay incomes to the employee.
The Fair Work Commission will also assess other elements.

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

If there is a valid factor that the worker was terminated;.
The worker's conduct prior to the dismissal;.
If the employee was given notice, and factors, and provided a chance to react;.
The size of business, and the salary of the employee;.
Any other factors that the Fair Work Commission think are very important.
However what about if the employer tries to force the staff member to work in hazardous conditions?

EMPLOYER PROVIDES UNSAFE WORKING CONDITIONS.
Well, initially bullying will likely have an impact on the staff member's health and safety, so in this case, offering an environment which is risky to a person's psychological health will likely be arguable in a constructive dismissal case.

A company has a positive duty in both in legislation and the common law to supply a safe office.

If the company declines to supply a safe work environment then this is also among the events that a staff member can say caused them to resign from their employment.

If the staff member can prove that they made the employer familiar with the unsafe working conditions, supplied appropriate notice, and the employer still not did anything to rectify the problem, then this might be constructive unfair dismissal.

In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court recognized what risk suggests. The Court said:.

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

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

However What about Employee Breaches?

STAFF MEMBER BREACHES HEALTH & SAFETY RULES.
It is quite well comprehended that if a staff member consistently breaches health and wellness guidelines that their work can be terminated.

The employer should bring the alleged breach to the staff member's attention and provide training (if needed) and direction on what to do and not do.

Repetitive breaches will not be unfair dismissal for the most part.

In James Felton v BHP Billiton Pty Ltd [2015] 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 filtering policy for working in underground mines. James Felton declined.

His employment was ended. He sued for unfair dismissal.

The Fair Work Commission said:.

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 termination was not harsh, unjustified 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) possible results if a finding of unfair dismissal or useful unfair dismissal is made. These are:.

An order that the staff member is reinstated to their job;.
An order that the staff member gets payment; or.
A decision to make no order.
If a worker is renewed, then they get their job back.

If an order for settlement is made, then a staff member will be paid up to 26 weeks pay from the employer.

CONCLUSION.
As you can see, failure to provide a safe working environment for employees might result in them getting compensation for useful unfair dismissal. The constructive dismissal must have been unjust, severe, and/or unreasonable in the situations.

If a worker breaches health and safety requirements repeatedly, and does not change their behaviour, then they may not have any recourse to unfair dismissal laws.
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