causenorth4

Is it unfair dismissal of a staff member if their work is terminated due to the fact that they decline to do specific work because of poor health and safety standards by the company?

Can a staff member be sacked due to the fact that they refuse to work in dangerous conditions?

If an employee is forced to resign because of bad health and wellness conditions, can this be a constructive unfair dismissal?

This post will try to answer those concerns, and the law around unfair dismissal and unsafe work conditions.

What is Unfair Dismissal?

Unfair dismissal suggests that an employee was fired from their task, and that the termination was unfair within the significance of the Fair Work Act.

For a termination to be unjust, it needs to be figured out that the termination was unfair, extreme, and/or unreasonable.

There is a great deal of case law on what these things have actually indicated in various circumstances.

But did you understand that a staff member can likewise claim unfair dismissal if they resign? This is called constructive dismissal.

CONSTRUCTIVE DISMISSAL
Constructive dismissal (likewise known as forced resignation) is when a staff member is basically forced to quit or has no option however to resign from the work.

This typically consists of conduct such as:

Bullying in the work environment;
If a staff member is fired after informing the employer an intention to resign in the future; and
The employer has constantly stopped working to pay incomes to the staff member.
The Fair Work Commission will likewise go over other factors.

WHAT FACTORS WILL THE FAIR WORK COMMISSION EXAMINE?
The Fair Work Commission will take a look at (among other things):.

If there is a legitimate factor that the employee was fired;.
The staff member's behavior prior to the termination;.
If the employee was given notice, and reasons, and offered a chance to react;.
The size of business, and the wage of the worker;.
Any other factors that the Fair Work Commission think are important.
What about if the company tries to force the employee to work in unsafe conditions?

COMPANY PROVIDES UNSAFE WORKING CONDITIONS.
Well, initially bullying will likely have an impact on the worker's health and wellness, so in this case, offering an environment which is hazardous to an individual's psychological health will likely be feasible in a constructive dismissal case.

An employer has a positive duty in both in legislation and the common law to offer a safe work environment.

If the company refuses to supply a safe work environment then this is likewise among the events that an employee can state triggered them to resign from their work.

If the staff member can show that they made the employer knowledgeable about the risky working conditions, offered correct notification, and the company still did nothing to rectify the issue, then this may be positive unfair dismissal.

In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court identified what threat implies. The Court said:.

In my opinion, the word "risks" in s 8( 2) likewise refers to the possibility of threat. The word "exposed" describes an individual who is sufficiently near to the source of the risk at the pertinent time or times for that danger to perhaps impinge upon his/her health or security.

If the staff member is exposed to the possibility of danger upon his or her health or security, then this might be enough. If the worker refuses to work because of threat, they can not be ended relatively.

What about Employee Breaches?

WORKER BREACHES HEALTH & SAFETY RULES.
It is quite well understood that if a staff member repeatedly breaches health and wellness rules that their employment can be ended.

The employer should bring the alleged breach to the staff member's attention and provide training (if needed) and guideline on what to do and refrain from doing.

Repeated breaches will not be unfair dismissal for the most part.

In James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 the Plaintiff was utilized by BHP as a truck driver. BHP directed him a number of times to shave his beard as it protested their air filtering policy for operating in underground mines. James Felton refused.

His employment was ended. He sued for unfair dismissal.

The Fair Work Commission said:.

On balance, and having actually weighed each of the factors to consider in s. 387 of the FW Act, I think about that Mr Felton's termination was not severe, unjustified or unreasonable. It was not unfair within the significance of the FW Act.

WHAT HAPPENS IF UNFAIR DISMISSAL IS FOUND?
There are 3 (3) potential outcomes if a finding of unfair dismissal or useful unfair dismissal is made. These are:.

An order that the worker is restored to their task;.
An order that the staff member gets settlement; or.
A choice to make no order.
If an employee is reinstated, then they get their task back.

If an order for compensation is made, then a worker will be paid up to 26 weeks pay from the company.

CONCLUSION.
As you can see, failure to offer a safe workplace for employees may lead to them receiving payment for positive unfair dismissal. The constructive dismissal should have been unjustified, extreme, and/or unreasonable in the circumstances.

Likewise, if a staff member breaches health and wellness requirements repeatedly, and does not alter their behaviour, then they may not have any option to unfair dismissal laws.
Source
Discover More Here