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Is it unfair dismissal of an employee if their work is terminated because they refuse to do specific work due to bad health and wellness requirements by the employer?

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

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

This short article will try to address those questions, and the law around unfair dismissal and hazardous work conditions.

What is Unfair Dismissal?

Unfair dismissal means that a staff member was dismissed from their task, and that the termination was unfair within the meaning of the Fair Work Act.

For a dismissal to be unreasonable, 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 suggested in various circumstances.

But did you understand that a worker can likewise declare unfair dismissal if they resign? This is called constructive dismissal.

CONSTRUCTIVE DISMISSAL
Constructive dismissal (also known as forced resignation) is when a staff member is essentially required to quit or has no option but to resign from the employment.

This usually consists of conduct such as:

Bullying in the workplace;
If a staff member is fired after informing the company an objective to resign in the future; and
The company has continuously failed to pay wages to the employee.
The Fair Work Commission will also review other factors.

WHAT FACTORS WILL THE FAIR WORK COMMISSION LOOK INTO?
The Fair Work Commission will examine (amongst other things):.

If there is a legitimate reason that the worker was terminated;.
The employee's behavior prior to the dismissal;.
If the worker was notified, and reasons, and offered an opportunity to react;.
The size of the business, and the wage of the employee;.
Any other reasons that the Fair Work Commission believe are necessary.
But what about if the company tries to require the employee to operate in risky conditions?

COMPANY PROVIDES UNSAFE WORKING CONDITIONS.
Well, at first bullying will likely have an effect on the employee's health and safety, so in this case, providing an environment which is unsafe to a person's mental health will likely be arguable in a constructive dismissal case.

A company has a favorable duty in both in legislation and the common law to supply a safe work environment.

If the employer refuses to offer a safe office then this is also one of the occasions that an employee can say caused them to resign from their employment.

If the staff member can prove that they made the employer knowledgeable about the unsafe working conditions, offered proper notification, and the company still not did anything to correct the problem, then this might be useful unfair dismissal.

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

In my viewpoint, the word "risks" in s 8( 2) likewise refers to the possibility of risk. The word "exposed" describes an individual who is sufficiently proximate to the source of the danger at the appropriate time or times for that threat to potentially impinge upon his or her health or safety.

If the employee is exposed to the possibility of threat upon his or her health or safety, then this may be enough. If the staff member refuses to work because of risk, they can not be ended relatively.

But What about Employee Breaches?

STAFF MEMBER BREACHES HEALTH & SAFETY RULES.
It is quite well understood that if a staff member consistently breaches health and wellness guidelines that their work can be ended.

The employer must bring the supposed breach to the employee's attention and offer training (if needed) and instruction 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 filtration policy for working 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 dismissal was not harsh, unfair or unreasonable. It was not unjust within the meaning of the FW Act.

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

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

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

CONCLUSION.
As you can see, failure to provide a safe workplace for employees might lead to them receiving payment for positive unfair dismissal. The constructive dismissal must have been unfair, harsh, and/or unreasonable in the circumstances.

If a worker breaches health and safety requirements repeatedly, and does not change their behaviour, then they might not have any recourse to unfair dismissal laws.
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