An employee, with designated first-aid duties, was dismissed by his employer after he had failed to respond to a first aid incident and was found sitting in the first-aid room with his feet on the desk, looking at Google on his mobile phone. The employee’s failure to be available to perform first-aid duties was the final straw for the employer, following the employee having previously been performance managed for a series of incidents in which he did not comply with the requirements of his role.
The employee’s primary duties involved the provision of first aid, and he predominately performed the role of ‘first-aider’ role for a Sydney based worksite of amajor marine cargo handling services operator. Following the emergence of COVID-19 the employee further took on some additional COVID-19 cleaning tasks.
During the course of his employment, the employee had been the subject of multiple disciplinary actions, and had been issued with a series of verbal and written warnings with respect to:
- failing to report for allocated shifts,
- poor timekeeping and unauthorised absences,
- reckless use of the employer’s vehicles resulting in a three-month suspension,
- excessive leave and
- mobile phone usage.
In addition, the employee had participated in multiple counselling meetings to discuss his failure to carry out his duties as required and had been issued written letters clarifying the expectations of his role.
On 28 June 2020, the employee failed to respond to a first aid request from a vessel. As a result, a security contractor contacted the employee’s shift manager to advise that they had been unable to contact the first aider.
The shift manager located the employee in the first aid office. He had his feet up on the desk and was leaning back in the chair looking at his mobile phone. It was identified that he had forgotten to turn his communications radio back on following his break and had therefore been out of contact.
The employee stated that he had been using his phone to research cancer treatments, as his father had recently been diagnosed with cancer. He was told to turn his radio back on and to respond to the first aid request.
The employee was subsequently found an hour later to again be on his mobile phone and having neglected a further first aid task and a COVID cleaning task. This occurred despite the company having a documented policy which prohibited the use of mobile phones in operational areas unless prior authorisation had been given by a senior manager.
The employee was dismissed on 1 July 2020 after having already been issued with three final written warnings. The employee believed that his dismissal was unfair and applied to the Fair Work Commission seeking reinstatement in his job, with continuity of employment and reimbursement for lost remuneration in the first instance.
After hearing the evidence, the Fair Work Commissioner concluded that he could not accept the worker’s characterisation of his failure to turn on the communications radio as ‘minor in the circumstances’, noting that as a first responder, this failure could have had serious safety consequences.
While the employee said that if he was reinstated, he would comply with the company policies in future. The commissioner did not accept that the employee’s assertion would give the company confidence, particularly in the light of the employee’s disciplinary history.
The Commissioner further held that although the worker’s personal circumstances, and his anxiety in relation to his father’s illness must be considered, these factors did not excuse his repeated failure to comply with his role requirements and non-compliance to workplace policies which could have had significant safety consequences.
The commissioner found that the worker’s dismissal was not harsh, unjust or unreasonable in the circumstances. This finding supports that the gravity of an employee’s misconduct, as well as their previous disciplinary history will be key factors considered by the Commission when determining whether a dismissal is fair and reasonable.
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