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Occupational Health And Safety Reps. Information, Advice, Support...Speaking Up Together

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  •  > FAQs for OHS Reps

Can a worker be dismissed for OHS reasons?

There is nothing in OHS legislation that covers the dismissal of an employee. Warnings and dismissals are covered under the Fair Work Act and these are also usually covered in the award or Enterprise Bargaining Agreement.

The OHS Act places a clear duty on employees ( section 25), but this is very much dependent on the employer having complied with his/her duties ( section 21) - most importantly to provide such information, training and supervision.

If someone breaches their duties under the Act, then, depending on the severity WorkSafe may prosecute. It's not often that workers are prosecuted, mainly because often there's a breach on the employer side.

However, if an employee were to intentionally not comply with an OHS requirement, then the employer can take the matter up through the agreed or legislated (industrial) procedures - that is, a series of warnings (with a final written warning) which can then lead to dismissal if the matter is not remediated by the employee. Employees have a duty under employment law to follow any legal and reasonable request of the employer. So it's the same situation as, for example, an employee who is always late - he/she can't/shouldn't be dismissed immediately, but must be given the chance to remedy the problem. If this doesn't happen, then the employer has the right, after having followed the correct procedure, to dismiss him/her.

The exception is when an employee does something very serious, and it's intentional: basically this is gross misconduct (eg fighting, stealing, sabotage). If the gross misconduct is related to an ohs matter, then the same rules apply - the worker can be dismissed immediately (but like any other dismissal, the employee has the right to take the matter up as an 'unfair' dismissal if he/she believes there was any unfairness).

In cases where there may be such a situation, then WorkSafe may, in fact, also prosecute - but it would most likely be under a different section of the Act - Section 32, which places a duty (on ANYONE) to not 'grossly endanger' the health or safety of anyone at the workplace.

More FAQs

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    How do I find a suitable consultant?...read more

  • OHS reps and deputies...

    ... what is their role? Elected reps have a crucial role at the workplace... but what is it? And deputies?...read more

  • I've been given a duty statement..

    as an OHS rep. Is that right?...read more

  • Should reps be paid to be reps?

    Is it appropriate for employers to pay staff in their role as OHS reps? ...read more

  • OHS Rep's term of office

    Can the employer decide how long a rep holds his or her position?...read more

  • Volunteers in the workplace

     - are they covered by OHS Legislation?...read more

  • Facilities and Time Off

     - what is an elected OHS Rep entitled to?...read more

  • Must my employer pass on the inspector's paperwork?

     Or do I have to ask?...read more

  • Health and Safety Committees - what is their role?

    All workplaces should have a joint health and safety committee....read more

  • Issuing a PIN - how long must I wait?

    How long do reps have to wait to issue a PIN when trying to resolve an OHS problem?...read more

  • Multiple reps or deputies - which is better?

    There is no ‘right’ answer to this question... read more....read more

  • Renegotiating DWGs - who should be involved?

    Should the employer, employees and existing OHS rep/s be involved?...read more

  • My PIN is cancelled - what can I do?

    What can a rep do if a WorkSafe inspector cancels a PIN?...read more

  • What if inspectors don't visit my workplace?

    How can I organise for a WorkSafe inspector to come to my workplace?...read more

  • Discrimination and harassment

    .. what are they? What do these terms mean?...read more

  • DWGs - How big is too big?

    There's no right answer here.... but...read more

  • A death at the workplace

    – what do I do?...read more

  • Privacy legislation

    Does it affect my rights as an OHS rep?...read more

More Items

  • A PIN: How to use it

    Help for reps on when and how to use PINs (Provisional Improvement Notices) - and links to downloading one....read more

  • Fifteen things every unionist should know about OHS

    Good advice from one of Australia's biggest unions, the Australian Manufacturing Workers Union (AMWU)...read more

  • Inspectors and PINs

    What can an OHS rep expect from an inspector who comes to the workplace over a disputed PIN?...read more

  • OHS Reps' Right to Training

    Both the Victorian and the Commonwealth  Occupational Health and Safety Acts give elected reps, and deputies, the right to attend training courses. ...read more