A recent court case demonstrates Fair Work Australia’s (FWA) increasing commitment to the paramount importance of the duty of employers to keep their workers safe, according to law firm Holding Redlich.
However, the case also illustrates that dismissal will not always be an appropriate response for safety breaches, especially where there may be mitigating factors involved.
In the case of Chadwick v Woodside Energy Limited  FWA 2890, FWA upheld the employer’s position in insisting on strict adherence to ‘golden rules’ about safety in relation to an employee with 15 years’ service.
The Karratha Gas Plant site in WA utilised a system described as an Integrated Safe System of Work (ISSoW) to mitigate the safety risks involved in carrying out work at the plant.
The system managed hazards by requiring permits, underpinned by risk assessments, forming part of the company’s “golden rules” – a breach of which could result in termination.
An employee of 15 years, Chadwick, had been issued with a seven-day permit to perform work, and the permit contained an express condition requiring him to liaise with the control room panel operation before starting work on any day to ensure the work could be performed safely.
Three hours before the permit expired, Chadwick arrived onsite without the permit. He did not contact a higher level of management to ask for permission to start work and did not liaise with the panel operator as required by the permit.
Chadwick was aware the permit hut (where the necessary contact person worked) did not open for a further two hours and he started work, but later obtained a further permit after the permit hut opened.
Chadwick’s employment was terminated for breaching the golden rule, however, this was contested by Chadwick to FWA as being “harsh, unjust and unreasonable”, according to Holding Redlich.
Woodside’s vice president told FWA that the golden rules were derived from standards developed in the oil and gas industry after the 1988 Piper Alpha disaster in the North Sea that killed 165 people, and the disaster “involved an accumulation of management errors, including a failure of the ‘permit-to-work’ system that did not ensure proper communications”.
Woodside contended that the rule could not be compromised regardless of the consequences of efficiency and productivity.
However, FWA decided that the employee’s conduct was not a question of poor judgment in the starting and performance of work by the employee, but rather a breach of an obligation to not start work.
“It was further accepted that the nature of golden rules did not lend itself for the giving of warnings when breached,” said Holding Redlich in a legal update on the issue.
“It was clear that Chadwick knew of the procedures but had deliberately breached the rules and that Woodside had enforced the policy consistently on previous occasions and had no other reasons for the dismissal. In the circumstances, Chadwick’s dismissal was warranted.”