Is Common Sense Common Enough?

We are continually advising employers to have thorough and compliant employment contracts in place with their employees. In addition we advise frequently on the need to have policies in place that deal with many aspects of daily working life including bullying, harassment and, one of the more important onesoccupational health and safety. We are often asked by employers Why do I need these? Cant people just use their common sense? Our reply, all of the time isNO, because common sense isnt common enough! Whilst this may be true in many instances, it is heartening for employers to see a recent judgement that partly supports the notion that employers can rely on an employees common sense to a certain degree. The background to this case (Mr Shane Bailey v Interface Aust Pty Ltd T/A Interface Flor U2010/14705) involves an unfair dismissal application brought by employee at a carpet tile manufacturing plant located in Picton. Mr Bailey commenced employment with Interface Flor (Interface) in August 2006 as a production assistant. On the 17th November 2010, Mr Bailey climbed into a compacting machine in the plant and was subsequently dismissed. The applicant gave evidence that he was shown how to use the compactor by a fellow worker, Mr Dowd, who no longer works for Interface as he was dismissed for a safety breach. Mr Dowd allegedly told Mr Bailey that he could climb into the compactor to push down the carpet offcuts. Other than this, Mr Bailey received no formal training on the use of the compactor. According to Mr Bailey, he would regularly climb into the compactor, to push down the offcuts, and on average, would do this around 2 to 3 times per week and was never told not to do it. On the day of the 17th November 2010, an Occupational Health and Safety (OH&S) trainer was at the plant conducting group training. The group was observing the functions of the factory and was near the compactor machine at the time. Mr Bailey asked the trainer if he was here doing safety training, to which the safety trainer answered yes. After this, Mr Bailey jumped into the compactor and started to jump up and down in it and waving his arms around whilst smiling and giggling at the group. The trainer reported the incident to the employer and Mr Bailey was summarily dismissed. The employer argued that it had never seen anyone climb into the compactor and it defied common sense to do so, hence Mr Baileys immediate dismissal. In making her decision, Commissioner Cargill had to decide whether Mr Baileys dismissal was harsh, unjust or unreasonable. In the Commissioners view, the actions of the applicant were inherently unsafe and the applicant did not appear to be at all concerned about any of the possible risks and dangers associated with his actions. Importantly, the Commissioner points out that it is a matter of common sense not to climb into machinery in such circumstances and in her view the

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applicant should not have required training on this. As a result, Mr Baileys application was dismissed. This is an encouraging decision for employers as it suggests that dismissal may be possible for actions that can be demonstrated to be foolish or completely lacking in common sense. Importantly, the employer was able to demonstrate that It had a good safety record It had provided appropriate induction training It provided compliant policies on safety, and Regularly sourced external OH&S compliance officers. Had the background work environment in this case been different, then there may have been a different outcome. It is important to remember however, that whilst the law appears to be moving away from a strict liability interpretation, employers who do not comply with OH&S requirements will have less success in defending such actions. Authors: Danica Leys, Solicitor and Andrew Bland, Principal For more information, please contact us at enquiries@blandslaw.com.au It is intended as a guide only and does not replace specific legal advice.