After terminating a long-standing employee, Launceston City Council now faces allegations they did so to avoid a redundancy payout. HC asks an employment law specialist for guidance on how to minimise the risk of similar claims.
David Flynn, rural roads coordinator, was first suspended and then sacked because of an alleged safety breach. After asking a fellow employee to uproot a small tree with an excavator, the individual refused and reported Flynn to the Council.
Kath Ryman of the Australian Services Union claims that a recent review may have recommended making Flynn’s position redundant and that the safety breach may have been an excuse to sack him to avoid paying redundancy.
"We had a real concern that council had already seen those recommendations and had already, in one way or another, made a decision that Dave's position wasn't going to be there," Ryman said. "[and] that this process has been in a way to avoid paying out Dave a full redundancy."
General manager of Launceston City Council, Robert Dobrzynski, said that Flynn was regrettably sacked following a history of safety breaches.
"I think it's really rich for the union, who has a mantra of workplace safety as extremely important, as a priority, to be saying that because this person has been working for the council for 62 [years] that somehow different rules apply," he said.
After reiterating that the Council took workplace safety very seriously, Dobrzynski explained that Flynn repeatedly breached workplace safety standards with “a high risk of a potential fatality” in at least two cases. With support and training already provided, dismissal was a “last resort,” he said.
Michael Michalandos, partner at Baker & McKenzie and employment law specialist said that in cases involving long-serving employees there was always greater pressure on the employer to justify the termination.
“Under the unfair dismissal jurisdiction, one factor that the court will look at is the length of time that the employee has worked with the organisation and whether over that time they’ve had a good record,” he explained. “It’s a factor which weighs heavily in favour of the employee.”
It is also important that the employer conduct an investigation of the employee in the case of a safety breach, particularly if they are a long-standing one, Michalandos said.
Additionally, if the employer has conducted themselves in the proper manner with regards to their occupational health and safety policies, there can be stronger grounds for termination regardless of how long the employee has been with the company, he stated.
“The employer has to make it clear in their policies that certain types of safety breaches won’t be tolerated and that termination may occur. They should also act consistently in enforcing those policies and provide employees with the proper education and training. If after this, an employee still does something which puts others at risk, there might be sufficient grounds to terminate immediately.”
Unfair dismissal for employee who refused abortion
Union sacks two whistleblowers, faces unfair dismissal fight
What can employers learn from Todd Carney’s unfair dismissal?