The Fair Work Commission (FWC) has upheld an employer's decision to sack two workers for using a "non-designated" tool for a high-risk task. Highlighting the importance for every business to develop and communicate policies for the use of non-designated tools, or more specifically the banning of the use of non-task specific tools without a risk assessment.
In September last year two floor men on an offshore drilling rig used a broom handle instead of the special scraping tool to clear cuttings from a grate above a rotating auger. As a result the broom handle of one went through and grate, getting caught in the auger and striking the worker in the head, resulting in a head injury and him being helicoptered off the drilling rig.
Both men were sacked for breaching safety practices by using a non-designed tool. They sort relief from an unfair dismissal at the FWC, arguing the decision to sack them was made even before the incident investigation was held.
The employer argued the men wilfully and recklessly breached its safety protocols in using an inappropriate tool and in failing to conduct a risk assessment prior to using a non-designated tool. It also told FW Commissioner Bruce Williams in Perth that it was obvious that using a broom handle instead of the designated scraping tool – which was specifically designed so it couldn't pass through the grating and touch the auger – created a high risk of injury.
Commissioner Williams found Transocean had a well-developed safety management system, and the two workers knew they could be dismissed for breaching its safety protocols. Having evidence the workers attended pre-start and toolbox meetings to discuss safety issues and risk assess tasks before every shift, and attended weekly general safety meetings that reinforced the importance of complying with safety rules, he said, using the broom handle "involved a conscious decision to ignore the applicable safety protocols of which [they were] fully aware".
The Commissioner added that in failing to acknowledge the seriousness of the breach, there were "good reasons" to doubt the workers were "truly committed to not repeating similar behaviour".
"The consequential doubt about each employee's commitment to complying with safety protocols in the future in my view supports a finding that the dismissal was not harsh, unjust or unreasonable."