Wrong management instructions? Conflicting safety guidance led to serious incident, says worker
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who was terminated after a serious safety incident occurred during her duties, creating significant risks for public safety.
The worker argued that her dismissal was unfair because she had not received adequate practical training for her role, despite attending theoretical training sessions.
She maintained that the instructions she received from management were unclear and contradictory, particularly regarding safety procedures.
The worker also pointed to what she saw as inconsistent treatment, noting that colleagues involved in similar incidents had not faced termination.
The employer, however, argued that the worker had received comprehensive training and clear safety instructions, which she failed to follow.
The worker started employment as a bin delivery driver in June 2023 with a waste management company. She held a Heavy Rigid licence required for operating the flat bed truck used to transport bins.
To obtain this licence, she needed to pass both knowledge and practical tests, including demonstrating proper load restraint techniques according to heavy vehicle laws.
During cross examination, the worker acknowledged that she "had a legal obligation as a heavy vehicle driver that 'loads must be secured to prevent any part of the load being dislodged or falling out of the vehicle'" and that "it is against the law to drive a vehicle where the load is not secured."
This acknowledgment showed she understood her basic legal responsibilities.
The employer provided comprehensive workplace induction training, including policies and procedures outlined in a driver manual.
This manual explicitly stated that "Bins are secured to the vehicle as per the National Load Restraint Guide." In December 2023, the worker attended external load restraint training conducted by a specialised consulting firm.
However, the effectiveness of this training became a point of dispute, with the worker arguing it was theoretical only and lacked practical guidance for securing bins.
On 15 May 2024, the worker raised concerns about the adequacy of the gates on her flat bed truck with her branch manager. This meeting proved crucial to the case.
The manager documented the discussion, noting that the worker "expressed concerns over the conditions of the gates on the flatbed truck she uses to deliver mobile garbage bins and that this may lead to an incident with a load."
Following an inspection, the manager recorded his response:
"We discussed that loads must be strapped which wasn't being done previously and hence the complete reliance for load restraint on the gates. We discussed this in relation to the Load Restraint Guide and that loads must be strapped over and at the back of the load to prevent movement forwards and backwards as well as up and down."
The worker disputed these instructions during the investigation, claiming the manager told her different methods applied to different loads. However, the manager strongly refuted this, stating during cross examination:
"There was no discussion in relation to pallets whatsoever. I absolutely refute that there was a discussion in relation to pallets, and it is not something that would even be relevant to the sort of work that [the worker] typically did." This disagreement highlighted the importance of clear, documented safety instructions.
On 16 July 2024, the worker was collecting bins from various locations in Sydney. Due to her shoulder injury, she was assisted by a colleague who helped load the bins onto her truck.
The bins were stacked two high, with the top layer sitting above the level of the truck's side gates, creating additional safety risks.
While travelling on a major motorway at 92 kilometres per hour, two bins became dislodged and flew into oncoming traffic.
When her supervisor asked whether the bins had been strapped down, the worker responded with words to the effect of "not over the top, no." This immediate admission suggested awareness that proper restraint procedures had not been followed.
However, the assisting colleague later testified that he "fastened three straps over the top of the bins and these were the only straps available in the truck at the time."
When pressed during cross examination, he acknowledged that "there were bins sitting on top of the layer of bins beneath them that were not held in by anything."
The worker admitted she "did not recall checking that the bins were strapped over the top" and that she "did not look for straps," highlighting gaps in her pre-departure safety checks.
The employer conducted a thorough investigation involving multiple interviews and detailed consideration of the worker's responses.
The investigation concluded that the worker had received adequate training and specific instructions but failed to follow them. The formal notice outlined that the worker "did not adequately check the load's restraint, allowing bins to be carried without proper strapping."
The worker provided a detailed written response, arguing inadequate practical training and highlighting what she saw as systemic safety issues.
She stated: "I am extremely apologetic and remorseful for what has occurred and would be willing to undergo any counselling and or training to ensure that there are no further incidents of what has occurred." Despite this expression of remorse, the employer proceeded with termination.
The FWC found there was a valid reason for the dismissal related to the worker's conduct. The Commission examined the serious nature of the incident, noting:
"It is a busy motorway with a 100 kilometre per hour speed limit. It is purely by chance that at the time the bins flew off they did not collide with a vehicle."
The Commission emphasised the worker's legal responsibilities as a licensed driver, noting she "acknowledged that as the driver of a truck, she was legally responsible for ensuring that the load was properly secured."
The Commission found the worker's conduct constituted a serious safety breach, concluding: "The incident is, in my view, of a very serious kind that could have resulted in serious injury or fatality."
Ultimately, the FWC dismissed the unfair dismissal application, finding the dismissal was not harsh, unjust or unreasonable given the serious safety implications and the worker's failure to follow clear safety protocols.
