Fair Work Commission Allows Termination of Employee

Recently, the Fair Work Commission (FWC) handed down a decision that reminds employers to always take active steps to protect the mental health and safety of their employees.

An employee of 17-years standing with no disciplinary record to speak of lost his unfair dismissal claim, despite the fact that the employer did not terminate his employment for bringing replica pistols and explosives to work until months after the event.

Attacks by people with weapons in public and at work across the world is so well publicised now, it is hard to believe that someone—even without any intent to harm anyone—would take guns and explosives to work.  The worker took explosive booster charges and replica duelling pistols to the workshop “to show a colleague”.

Deputy President Kovacic found that even though there was no intent on Mr Rodger’s part to harm anyone at all, it was “clear from their statements that none of the employees who saw the charges/guns felt intimidated or concerned about them being in the workplace, this is in my view due to good fortune rather than the absence of any risk to safety. Other employees may have reacted very differently in the circumstances and may have legitimately been fearful for their safety…[w]hether the booster charges were inert and the duelling pistols were inoperable does not, in my view, diminish the gravity of Mr Rodger’s conduct in bringing those items into the workplace. The fact of the matter is he had no legitimate reason to do so and by doing so he created a risk to safety, given the possibility that the items were live or operable”.

the decision is a timely reminder that when an employee does something that puts the mental health and well-being of their workmates at risk, an employer should act to discharge their safety obligation to those other employees. This is the case even if the employer learns of the events months later and even for long-standing employees with a “perfect record”. Of course, the disciplinary action to be taken (if any) will always need to be judged on the circumstances—but when it comes to firearms and explosives, and replicas or not, termination of employment and potentially criminal charges will be an option.

Thanks to Jackson Inglis of Sparke Helmore Lawyers for this article.