A string of recent unfair dismissal cases has seen employees reinstated to their former positions following dismissal for breaches of safety regulations and practices.
In recent occupational health and safety cases, the Fair Work Australia authority has considered various factors that lessen the severity of actions taken against employees.
To avoid costly court cases, employers considering disciplinary action would be well advised to think about the terms of the safety policy that has been breached and the consequences envisaged by the policy. Breaches should be assessed in light of any relevant subjective factors that might suggest a more moderate penalty.
As a guide, some of the factors that have been considered by Fair Work Australia are the personal and economic situation of the employee, including age, education, employment prospects, possible financial hardship and adverse impact on the employee's marriage.
Other factors that have been taken into account are the employee's unblemished record, practice by other staff, the length of time since training was last provided and the obligation to indicate whether additional training is required being placed on the employee rather than the employer.
Genuine remorse and contrition shown by the employee over past conduct and undertakings to improve in the future have also been considered.