Fair Work finds termination for a serious safety breach valid, but….

One Minute Summary

An experienced Ausgrid employee breached a fundamental safety rule and received burns to his face, arms and legs due to an electrical arc while working on a substation.
He had failed to wear a mandatory face shield, complete a safety assessment before the task and had falsified one afterwards.
Ausgrid terminated his employment for these breaches.
The Commission deemed the termination valid and not harsh. However, in the last part of the decision the Commission makes an interesting statement indicating that if the only misconduct had been not wearing the safety shield the termination would have been harsh.

Mr Tapp, a very experienced employee, had worked for Ausgrid for many years in a senior operational supervisory capacity. He was repairing a fault at a Substation in Hurstville on 10 July 2025 when an electrical arc erupted at 6.46pm. The electrical arc produces a flash of light, noise and a cloud of plasma like a fireball. The explosion threw him backwards and he suffered burns to his face, legs and arms.

During the subsequent investigation video footage showed that Mr Tapp had been wearing a hard had but had not been wearing the required face shield.

Wearing the face shield had been mandatory for this type of work since February 2025. In the Fair Work unfair dismissal hearing Mr Tapp admitted he was aware the shield was mandatory and stated the reason he had not worn the shield was due to ‘human error’.

The investigation also found that Mr Tapp had not completed the Hazard Assessment Conversation (HAC) before starting that job. The HAC assessments help employees identify hazards in relation to a job task as well as the correct protective equipment for that job. Mr Tapp acknowledged their purpose and importance but had not completed one. He provided no reason for this.

Before leaving for the hospital Mr Tapp had signed an old HAC form and had falsely recorded the completion time as having occurred at the start of that shift.

Mr Tapp was terminated for serious misconduct on the 28^th of July following several meetings involving himself represented by the Electrical Trades Union. The reasons Ausgrid gave for the termination were: failing to comply with safety procedures, attempting to disguise the non-compliance and for dishonesty during the investigation process.

Fair Work Commission Proceedings

During the Fair Work unfair dismissal proceedings Mr Tapp’s lawyers argued that he had been a long serving employee with an unblemished record who had survived a traumatic incident. For these reasons his termination was unjust and harsh. Fifteen Ausgrid employees had provided statements in support of Mr Tapp.

Ausgrid stated that failing to wear the face shield constituted a breach of lawful and reasonable directions issued by Ausgrid through several policies and procedures.

Commissioner Crawford stated that there was no dispute Mr Tapp had committed misconduct when he breached the safety procedures by failing to wear a face shield. The Commissioner also stated, “there is no dispute that the completion of the HACs constitutes a lawful and reasonable direction from Ausgrid”.

The Commissioner did not accept the union’s position that Mr Tapp had falsely completed the HAC due suffering from delirium following the incident. The surrounding evidence did not support this conclusion: “for these reasons, I consider Mr Tapp committed a further act of misconduct when he recorded false information on a HAC form.”

The Decision stated that failing to wear a face shield, failing to complete the a HAC and providing false information on an old HAC cumulatively provides a valid reason for dismissal. Mr Tapp had failed to comply with lawful and reasonable directions issued by Ausgrid.

While finding there was a valid reason for dismissal the Fair Work Act requires the Commission to take into account other matters it considers relevant. Commission Crawford makes the following observations:

“I consider that Mr Tapp’s extremely long period of largely unblemished service … is a matter that weighs in favour of finding Mr Tapp’s dismissal was harsh”
He also finds the traumatic event and the injuries suffered by Mr Tapp weigh in favour of finding that Mr Tapp’s dismissal was harsh.
The positive statements by fifteen Ausgrid employees weigh in favour the of finding Mr Tapp’s dismissal was harsh.
The falsely completed HAC weighed against finding Mr Tapp’s dismissal was harsh.
Mr Tapp’s very senior Supervisory position weigh against finding Mr Tapp’s dismissal was harsh

After making the above observations Commissioner Crawford states “I find on balance that Mr Tapp’s dismissal was not harsh, unjust or unreasonable”.

The Commissioner then makes an interesting additional statement. “If Mr Tapp’s only misconduct had been failing to wear a face shield at the end of a long shift, I would have had little hesitation in finding the dismissal to be harsh in all the circumstances.”

Commentary

Many manufacturing and heavy industry employers have a constant battle with ensuring employees comply with important safety rules and procedures. This is for one purpose only – to prevent serious injury and fatalities. Ausgrid’s rule about wearing face shields for this kind of work was no doubt for this very same reason.

The last line above is interesting “If Mr Tapp’s only misconduct had been failing to wear a face shield at the end of a long shift, I would have had little hesitation in finding the dismissal to be harsh in all the circumstances.”. Mr Tapp admitted he was fully aware of the need to wear a face shield and the reasons why. As he is a very experienced and in a senior supervisory position he is automatically a role model for other employees.

If the only misconduct by Mr Tapp had been not wearing a face shield Ausgrid would have been left in a ‘no-win’ dilemma.

If they have not terminated Mr Tapp the message some employees would have taken away is ‘its ok not to comply with safety rules’.
If they had terminated Mr Tapp and the Commission had reinstated him think about the ‘take away’ messaging across Ausgrid for operational employees.

Does being good guy with a long unblemished performance record give you a get out of jail free card for such a serious breach? I don’t think so.

In this case the additional non-completion of the HAC form and dishonesty justified the termination.

So where does that leave employers with serious safety risks at their workplace?

Three key points come to mind.

Make sure you have clear policies and procedures around such safety rules. No ambiguity.
Ensure employees receive training on commencement and refresher training at least an annual basis. Such training should show the potential impact of breaching that safety rule. Show pictures.
Ensure that employees know the consequences of breaching such safety rules. If the breach of a safety rule could lead to serious injury or fatality, then tell employees they could be terminated.

If all the above have been properly undertaken and an employee then breaches such a rule then terminate. You may just save a life in the future. I’ve found that nothing sends a clearer message to other employees about the importance of following safety rules than a termination. Followed by refresher briefing sessions.

Obviously ensure a thorough investigation takes place and procedural fairness is followed prior to termination. Be aware where English is a second language the employer has the obligation to ensure the safety message has been understood.

If you require assistance with framing policies and procedures, investigations and procedural fairness aspects in relation to misconduct incidents and potential terminations please contact Michael.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au