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UpdatesJul 24, 2019

Employee who opened windows was not unfairly dismissed: FWC rules

The Fair Work Commission (FWC) has upheld the dismissal of an interior construction worker who was dismissed without a termination meeting or a support person.

The Fair Work Commission (FWC) has upheld the dismissal of an interior construction worker who was dismissed without a termination meeting or a support person.

The employee of Express Interiors Pty Ltd was dismissed for opening windows on a high-rise construction site on three occasions, even though he was directed to keep all windows closed. One time he opened a window, a piece of metal used to prop the window open dislodged and fell 67 storeys to the ground.

Express Interiors submitted that the employee had jeopardised the safety of others by not following the company’s project procedure. The company said that it held three toolbox meetings instructing all employees not to open windows without the employer’s permission, which the dismissed employee attended and signed for.

The employee admitted opening a window on one occasion, but argued there was no possibility a metal object had fallen from it, as there was a fly screen attached. He argued that his employer had acted like the “Communist Party” and treated him disproportionately as many other workers also opened windows.

However, at the same time the employee conceded that he had acted wrongly as safety issues on a building site are a serious matter and objects falling out of windows could seriously injure or kill other workers. He acknowledged that if his employer had ignored such events, it could be found liable for not protecting workers’ safety.

The employee complained that he had been dismissed without a meeting or any formal procedure. While FWC Deputy President Reg Hamilton found this was true, he pointed out that the employee was notified of the reason for his dismissal at the three toolbox meetings and was given an opportunity to respond at each meeting. He had also received a warning letter.

“[The employee] was on his own evidence aware of an employer direction that windows not be opened, and yet defied that employer direction on at least one or probably two or three occasions, and on the employer evidence three occasions and was defiant in his attitude to this reasonable employer direction,” Deputy President Hamilton said.

“He claimed in his written submission that he knew the employer’s policy that windows are not to be opened, yet also claimed in evidence before me that they could be opened if there was a fly screen. This shows a refusal to accept a most important employer policy and direction. This was a most serious matter, given the possibility of serious injury to other workers.

“The employer took serious steps to clearly communicate the policy to him and others, using Mandarin interpreters and toolbox meetings. I do not accept his explanations.

“Even if others did this on occasion, all had to comply with clearly stated safety directions. If the Commission were to excuse such breaches this would be condoning a serious threat of injury or worse to employees on building sites, which are dangerous places for workers.”

Deputy President Hamilton dismissed the unfair dismissal application.

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