Worker refuses 'unsafe' direction in wet weather, faces dismissal for misconduct

Worker says safety concerns justified his refusal to relocate during rain

Worker refuses 'unsafe' direction in wet weather, faces dismissal for misconduct

The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim involving a construction worker who was dismissed for serious misconduct after refusing to follow a direction to relocate to another worksite during wet weather.

The worker sought a remedy, arguing that his dismissal was harsh, unjust, and unreasonable.

The worker argued that he was given an unlawful and unreasonable direction to work in unsafe conditions and that his conduct did not amount to serious misconduct.

He maintained that safety concerns about working with power tools in wet conditions and his lack of proper personal protective equipment justified his refusal to follow the employer's direction.

Wet weather safety concerns trigger disputes

The worker had been employed with a construction company from September 2023 until October 2024 as a construction labourer.

On 18 October 2024, the worker was scheduled to work at a site in South Yarra with two coworkers, tasked with completing post tensioning installation of cables.

He argued that it was unsafe to complete the work because it was wet and the use of power tools was unsafe.

At around 11:00 a.m., one of his coworkers contacted the director, and the crew was directed to a site in Brighton.

The Brighton task required cutting ducts and concrete, which the worker objected to because he did not have his correct personal protective equipment with him and claimed it was unsafe due to wet weather. The worker testified that the director responded that they would be "lucky to have a job by Monday" when he raised these concerns.

The worker gave evidence that he and his coworkers conducted a risk assessment before refusing to go to the Brighton site.

However, the FWC found: "In fact, there is no evidence of a completed risk assessment, [the worker] and his coworkers simply opined that it was unsafe because none of the three went to the site."

Direction compliance creates workplace safety tensions

The director provided evidence of four previous verbal warnings given to the worker before the dismissal incident.

These included incidents when the worker became aggressive to an occupational health and safety representative, refused to watch a concrete pour, redirected an employee from another site without authority, and left work early without permission.

During a telephone conversation on 18 October 2024 with the three employees in a car with the director on loudspeaker, the workers refused to go to the Brighton site because of safety concerns.

One coworker testified: "We tried to tell him and he ended the call with 'then you're done.'" The three workers understood this to mean they were dismissed.

The director explained: "During the telephone call he informed the three employees that the work was under cover and only one was required to wear a mask to cut the concrete while the other two were to scrape and clean up."

He said the worker "made it clear he wanted to go home and refused to work his allotted shift, despite being informed that 'instead of waiting out the rain, you can relocate to Brighton for a 30 minute job then go home.'"

Code provisions address workplace safety dismissals

The FWC assessed the dismissal under the Small Business Fair Dismissal Code, which applies to businesses employing fewer than 15 employees.

The code states: "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal."

The FWC applied a two-step test requiring consideration of whether the employer held the belief that the employee's conduct was sufficiently serious to justify immediate dismissal, and whether that belief was based on reasonable grounds.

The Commission found that serious misconduct includes "refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment" under Fair Work Regulations.

The director had offered alternative solutions for the mask issue, including purchasing a disposable mask at a hardware store with reimbursement or using a mask available at the site. The FWC found these suggestions reasonable.

Workplace safety claims fail legal test

The FWC stated: "I do not accept that it was an unsafe direction because firstly [the worker] simply did not want to go, then he raised the issue of him not having his mask on him before relying on the excuse of rain."

The Commission noted that failure to carry employer-provided personal protective equipment was "illogical and unreasonable" given that job requirements can change.

The FWC found: "No risk assessment was conducted by [the worker] or the crew; they simply opined it was unsafe. [The director] sensibly took instructions from the health and safety representative at the project site to establish the undercover work was safe to do."

The Commission determined that the direction to relocate was both reasonable and lawful given the circumstances.

The Commission concluded: "I am satisfied that [the director] formed on reasonable grounds that [the worker] refused to follow a lawful and reasonable direction which is serious enough to constitute serious misconduct and took reasonable steps to investigate."

The FWC determined that the dismissal was consistent with the Small Business Fair Dismissal Code, and therefore the worker was not unfairly dismissed. The application was dismissed.