A recent Fair Work Commission (FWC) decision reinforces that proving a work health and safety breach will not act as an impenetrable mantra to defend an unfair dismissal claim. Employers must prove they act consistently (and proactively) with respect to the work health and safety process upon which the dismissal was based.

Background
The employer dismissed a rigger, claiming that he had:

• breached a site health and safety 'Golden Rule' by working at height (he was standing on a stack of pipes) without using fall protection
• deliberately disregarded a direction not to work at height without fall protection when he repeated the act and climbed up on the pipe stack on a further occasion.

The rigger claimed his dismissal was unfair and challenged the decision in the FWC.

The evidence before the FWC included:

1. That the employer's 'Golden Rule' for working at height was distributed on site and discussed at tool box meetings.
2. That the rigger had attended a tool box talk that addressed working at height only the day before the incident which lead to his dismissal.
3. That the Golden Rule was covered in the general site induction.

The FWC was satisfied that the rigger was specifically trained on working safely at height and that the employer had paid for the rigger to attend an accredited safety course on working at height.

Decision
Despite the importance of the 'Golden Rule' and the training given to the rigger, Deputy President Asbury held that the rigger was unfairly dismissed.

Deputy President Asbury was not satisfied that the rigger was given a clear direction to stop the unsafe work on the day in question. Deputy President Asbury also held that the employer acted inconsistently with its insistence on strict adherence to the 'Golden Rule'. That is, it had enforced and applied the 'Golden Rule' differently in the past and could not demonstrate a 'zero tolerance' attitude to breaches.

As a result, Deputy President Asbury held that the employer's claims that the 'Golden Rule' was critically important rang hollow because:

• the employer did not proffer an alternative safe work method
• the employer left it to the employees to "sort [the safe system of working] out for themselves"
• the rigger was not stood down until four days after the incident.

Implications
Employers must act consistently with their own work health and safety rules and with any claim that those rules are critically important. If employers are to rely on a breach of a safety rule as the valid reason for dismissal, they must:

• maintain a clear and consistent approach to work health and safety compliance
• give clear and consistent directions to stop unsafe work
• not leave it to workers to sort out safe work processes themselves
• ensure safe work methods are readily available.