Health and Safety Representative (HSR) loses an appeal for unfair dismissal.  

Feb. 2015

In the case of Kaskol v TNT. the Fair Work Commission (“FWC”)  ruled that the employee, Alphonse Kaskol was lawfully dismissed after he made a series of “unsubstantiated” complaints relating to his role as an occupational health and safety representative at TNT. 

Mr Kaskol was employed as a casual dockhand at the Brisbane South Depot and had been elected Deputy HSR at the depot.

Mr Kaskol had raised various issues including questioning the validity of the constitution of TNT’s Safety Committee, and the company’s risk assessment tool.  His conduct in raising the issues was aggressive and he was derogatory of various TNT managers.  Mr Kaskol also alleged that he was subjected to bullying and harassment and racist comments by one of TNT’s manager and that there were “cover-ups” by management.

The employer argued that the employee had been warned about appropriate workplace behaviour and was issued with several reasonable and lawful directions over a number of years. These directions required the employee to report safety matters in accordance with the company procedure and to complete hazard reports for all safety allegations. He was also required to stop:

• sending emails and memoranda to managers that contained offensive and derogatory comments about senior colleagues  
• making broad and lengthy safety breach allegations that were not made in accordance with the established procedure  
• raising his voice and pointing his fingers at a manager and, when requested to stop doing so, retaliating in an offensive way  
• alleging that the company's WHS Committee's Constitution was corrupt, and  
• making unfounded complaints and allegations.  

The company terminated Mr Kaskol services in October 2013 on the grounds of serious misconduct, after failing to respond to a letter from TNT requesting that he substantiate his allegations of bullying and corruption.

The finding of the FWC

The FWC found that Mr Kaskol’s allegations were unsubstantiated and misconceived and the dismissal was not unfair, because:

TNT made reasonable attempts to address the concerns of Mr Kaskol  and explain why the allegations were misconceived. His  conduct was vexatious to the extent it was inconsistent with the continuation of his employment. 

Even if employees are acting in statutory roles they are not immune from complying with their obligations as employees, noting  “no employer should be required to continue the employment of an employee who makes false, spurious and vexatious claims…regardless [if they are] acting in the capacity of a [HSR]”; and

The conduct of Mr Kaskol was repeated and continued even in the face of being given clear warnings that he may be dismissed if his behavior continued.

Discriminatory Conduct

The WHS Act 2011 makes it unlawful for a person to engage in discriminatory conduct for ‘ prohibited reasons’ including dismissing a person because they are performing functions as a HSR or raising health and safety issues.  In this case, there was no discrimination as the   reason for the dismissal was not that the employee was exercising functions of a HSR or raising a safety issue, but that the employee was dismissed for misconduct.  Whilst performing the function of a HSR, the employee still has the obligation to cooperate and follow lawful and reasonable directions from employers and are not immune from being disciplined just because they hold the position of a HSR.

The law also provides for a HSR to be stripped of their position in terms of Section 65 by application to the Industrial Relations Commission, on the basis that the representative has:

(a)   exercised a power or performed a function as a health and safety representative for an improper purpose, or

(b) used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.

In a win for employers, the Commissioner stated that they should not be required to maintain employment of those who continuously make false and vexatious claims in the face of repeated warnings not to do so. Despite the significant affect the termination had on the employee, the dismissal was found to be appropriate in the circumstances. 

See also    http://www.mondaq.com/article.asp?articleid=408032&email_access=on  

Compare with the decision in