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Is it unfair dismissal of a staff member if their employment is ended due to the fact that they refuse to do specific work because of poor health and wellness standards by the company?

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

If a worker 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 risky work conditions.

What is Unfair Dismissal?

Unfair dismissal means that an employee was dismissed from their job, which the termination was unfair within the meaning of the Fair Work Act.

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

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

But did you know that a staff member can also declare unfair dismissal if they resign? This is called constructive dismissal.

CONSTRUCTIVE DISMISSAL
Constructive dismissal (likewise known as forced resignation) is when a worker is basically forced to give up or has no alternative but to resign from the employment.

This normally includes conduct such as:

Bullying in the office;
If a worker is dismissed after alerting the employer an intent to resign in the future; and
The company has continuously failed to pay earnings to the worker.
The Fair Work Commission will also review other factors.

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

If there is a legitimate reason that the staff member was given the ax;.
The staff member's conduct prior to the termination;.
If the worker was given notice, and factors, and provided an opportunity to respond;.
The size of business, and the wage of the staff member;.
Any other factors that the Fair Work Commission think are essential.
What about if the company tries to require the employee to work in unsafe conditions?

COMPANY PROVIDES UNSAFE WORKING CONDITIONS.
Well, initially bullying will likely have an effect on the worker's health and safety, so in this case, providing an environment which is hazardous to a person's psychological health will likely be arguable in a constructive dismissal case.

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

If the company declines to supply a safe workplace then this is likewise among the celebrations that a staff member can say triggered them to resign from their employment.

If the worker can prove that they made the company aware of the hazardous working conditions, offered proper notification, and the company still did nothing to rectify the problem, then this might be useful unfair dismissal.

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

In my opinion, the word "risks" in s 8( 2) also describes the possibility of threat. The word "exposed" describes a person who is sufficiently proximate to the source of the threat at the relevant time or times for that threat to potentially impinge upon his/her health or safety.

So, if the employee is exposed to the possibility of danger upon his or her health or security, then this might be enough. If the staff member refuses to work because of risk, they can not be ended relatively.

However What about Employee Breaches?

WORKER BREACHES HEALTH & SAFETY RULES.
It is pretty well understood that if a worker consistently breaches health and wellness rules that their employment can be terminated.

The employer should bring the alleged breach to the staff member's attention and offer training (if required) and instruction on what to do and refrain from doing.

Repetitive breaches will not be unfair dismissal.

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 variety of times to shave his beard as it protested their air filtering policy for working in underground mines. James Felton refused.

His work was ended. He demanded unfair dismissal.

The Fair Work Commission stated:.

On balance, and having actually weighed each of the considerations in s. 387 of the FW Act, I consider that Mr Felton's termination was not extreme, unjust or unreasonable. It was not unfair within the meaning of the FW Act.

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

An order that the staff member is reinstated to their task;.
An order that the staff member gets payment; or.
A decision to make no order.
If a staff member is renewed, then they get their task 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 supply a safe workplace for staff members may result in them getting payment for constructive unfair dismissal. The constructive dismissal should have been unjust, severe, and/or unreasonable in the situations.

Also, if an employee breaches health and safety requirements repeatedly, and does not change their behaviour, then they may not have any option to unfair dismissal laws.
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