Employer says worker stated he made an assessment and deemed circumstances safe enough for him
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was employed as a scaffolder. On 27 March 2025, the worker filed an application seeking a remedy for an alleged unfair dismissal.
The termination was on the grounds of serious misconduct involving a breach of safety. The employer initially raised a jurisdictional objection but later withdrew it.
The worker was a 47-year-old scaffolder who commenced employment as a site supervisor on a full-time permanent basis. At the worker's own election due to his caring responsibilities, he converted to casual employment in late 2021 and started working as a casual leading hand.
Safety breach and dismissal process
On 3 March 2025, the employer observed the worker working in an unsafe manner on the project.
Meetings were conducted between a branch manager, a construction supervisor, and the worker on 4 and 6 March 2025 in relation to the worker's alleged safety breach.
The worker was dismissed with immediate effect at the conclusion of the 6 March meeting on the grounds of serious misconduct.
The employer's safety requirements mandated that a scaffolder must have a full platform of decking with no missing boards, not more than 1 metre below the height at which they were working.
The purpose was to ensure that a scaffolder did not work at heights without a full platform below them to provide fall protection.
On 21 February 2025, a toolbox meeting occurred at the project during which the employer emphasized the need for employees to comply with safety requirements "without exception".
The employer submitted that the worker was in attendance at the toolbox meeting. At this meeting, the employer issued a safe work method statement that referred to the 1 metre catch deck rule.
The worker signed the statement, confirming his agreement to comply with it. The worker acknowledged that on 3 March 2025, he was involved in a safety breach by failing to construct a catch deck at 0.5 metres from the ground while working at a height of 2.5 metres.
The worker submitted that the collective agreement dealt with counselling and disciplinary procedures.
The worker submitted that the agreement dealt with "general misconduct" and mandated a counselling procedure with a series of graduated disciplinary steps.
Those steps commenced with a verbal warning and counselling, escalating to a written warning, followed by a final warning.
The worker submitted that an employee could only be dismissed where the employee repeated the same misconduct within 3 months.
The worker acknowledged that the procedure did not apply in the case of "serious and wilful misconduct".
The worker submitted that the employer could only lawfully terminate his employment if it could prove that he engaged in "serious and wilful misconduct".
Recent workplace incidents and employer's position
The employer submitted that there had been three fatalities on the project. The first two fatalities occurred as a consequence of two workers each dying of a heart attack on the site.
The third fatality occurred in July 2023, when a 20-year-old plumber died as a consequence of a formwork cage falling on him.
The employer submitted that on 20 November 2024, one of the employer's scaffolders was seriously injured on another project.
On this occasion, the worker fell off a scaffold from a height of about 4 metres due to a void created by missing boards on the platform.
The worker fell to the ground as a consequence of failing to have a catch deck in place. The worker had not returned to work since the incident.
The employer submitted that on 20 February 2025, a scaffolder was working on a scaffold at a height of about 2.5 metres on the project, when a representative from the client witnessed the scaffolder working without edge protection.
The employer submitted this put the scaffolder at risk of a fall between the internal edge of the scaffold and the building.
The employer submitted that on 3 March 2025, the branch manager was driving an injured worker to the hospital and observed the worker working from a height of about 2.5m on a scaffold "in an unsafe manner and contrary to the employer's safety processes".
The employer submitted that the branch manager observed the worker balancing on the scaffold, standing with one foot on a transom and his other foot on a ledger, with one arm wrapped around the standard and working on the external side of the scaffold.
The employer submitted that the worker was working at a height of about 2.5m with no catch deck in place, which was a breach of the 1 metre catch deck rule.
This put the worker at a serious and imminent risk of injury or death if he were to fall.
The employer submitted that, in light of his 7.5 years working for the employer, and his positions as supervisor and leading hand, the worker was aware of the need to have a catch deck in place.
The worker had been reminded of this requirement at the 21 February 2025 toolbox meeting.
Valid reason found but procedural fairness lacking
The FWC examined whether there was a valid reason for dismissal.
The Commissioner stated: "I am satisfied and find that the [worker] engaged in serious misconduct by deliberately ignoring the SWMS. This created a dangerous situation for himself where he could have been seriously injured.”
“Such actions are easily defined as being unacceptable or improper behaviour. As a former supervisor, a current leading hand and a very experienced scaffolder, I cannot accept or condone that the [worker] would be ignorant of the 1M Safety Deck Rule. For the reasons stated above, I am satisfied and find that the [employer] had a valid reason to terminate the [worker]," it added.
The FWC examined whether the worker was given an opportunity to respond. The Commissioner stated:
"The [worker] was entitled to be given the accusations of his safety breach in writing. The [worker] should then have been given an opportunity to respond to those allegations in writing prior to any disciplinary meeting. It is not in dispute that the [worker] was not provided with these essential procedural processes. I have taken this into account."
The FWC examined other matters. The Commissioner stated: "It is not in dispute that the [worker] is the carer for his disabled partner, and I am satisfied that the [worker's] partner had been rushed to hospital on the day of the safety incident.”
“Further, the [worker] had spent an excessive amount of time at the hospital between the two meetings that were convened by the [employer]. I am satisfied and find that the [worker] would have been suffering from sleep deprivation during the disciplinary process conducted by the [employer]," the decision added.
The Commissioner stated he did not accept the description of the incident as described by the branch manager for a number of reasons.
The Commissioner stated: "If the [worker] had been working as inherently unsafely as described by [the branch manager], i.e., holding on to the scaffold with one hand whilst having both feet outside the structure of the scaffold, at a height of 2.7 metres, then [the branch manager] should have stopped his car and given instructions to cease this life-threatening work practice immediately."
The Commissioner stated: "I have taken into account the emotional response by [the branch manager] at the meeting on 6 March 2025. Slamming his hands on the table and raising his voice at the [worker] is not appropriate behaviour during a disciplinary meeting for a manager – despite the level of frustration."
Unfair dismissal and compensation ordered
The Commissioner found the worker failed to follow safety procedures despite recent retraining, stating: "I am satisfied and find that the [worker] did not follow the SWMS in this incident despite having been retrained on them in the previous fortnight."
However, the dismissal was ruled unfair due to lack of procedural fairness: "However, every employee is entitled to 'a fair go', which includes an opportunity to respond to a set of written allegations. This did not occur in this circumstance."
While acknowledging valid grounds for termination, the Commissioner denied reinstatement due to lost trust and confidence: "The [worker] was in a position of authority and leadership as the leading hand for the [employer] on this site... His blatant disregard of these safety requirements and his arrogant and dismissive approach to his actions, has resulted in a justifiable and understandable loss of trust and confidence."
The Commissioner ordered compensation for the procedural failure only: "As a result, the only compensation to which the [worker] is entitled, is the period of time that the [employer] should have taken in undertaking the appropriate process."
The employer was ordered to pay 2 weeks' pay plus superannuation.
