A string of recent unfair dismissal cases have seen employees
reinstated to their former positions following dismissal for
breaches of safety regulations and practices. They have created a
considerable grey area for practitioners and employers navigating
the minefield of competing obligations under occupational health
and safety (OHS) laws and the unfair dismissal provisions of the
Fair Work Act 2009.
In each case, subjective, mitigating circumstances have rendered
dismissals harsh that were otherwise procedurally fair and for a
valid reason. The cases reinforce that before dismissing an
employee for a valid reason, such as a serious safety breach, not
only must the employer afford the employee appropriate procedural
fairness, it must also have regard to all of the prevailing
circumstances, particularly where they may constitute persuasive,
mitigating circumstances.
