Fire Technician’s Risky Return: Dismissal Justified by WHS Violations 

Mr Oliver Doherty v Defend Fire Services Pty Ltd T/A Defend Fire [2024] FWC 1444 (3 June 2024) 

Background 

Mr Doherty, a fire technician for Defend Fire Services, had taken extended leave from work due to mental health reasons. In Early December 2023 he returned to work for four days, saying that he was “forced” to, because Defend Fire Services had indicated that they would retrieve and repurpose Mr Doherty’s work vehicle if his absence continued.  

Defend Fire Services dismissed Mr Doherty on 21 December 2023 for serious misconduct. The reasons given in the termination letter included using a work vehicle for personal travel without authorisation and failing to suitably maintain the vehicle, concealing a tool in a work vehicle after being asked to return it, concerns about presentation and behaviour on site, sending an abusive message to his supervisor, and unreasonable lengthy absences from work without reasonable grounds. 

Mr Doherty lodged an unfair dismissal claim, saying that he was dismissed for reasons that were not valid, relevant or sound. He also said that he was not given any warning or chance to respond.  

Decision 

Commissioner Crawford found that the employer had a valid reason to dismiss Mr Doherty, but not for any of the reasons given in the termination letter. He said that the main reason was the technician’s serious breach of his safety obligations under the NT’s WHS Act, which required him to take reasonable care that his acts or omissions did not harm the health and safety of others. 

The Commissioner did not accept Mr Doherty’s argument that he was pushed back to work, stating that it was unsurprising that Defend Fire Services would seek to take possession of the vehicle so it could be used for work purposes. Mr. Doherty decided that keeping the work vehicle was his priority and that he was prepared to attend work in an unfit state to do so. That decision created a substantial safety risk for Mr. Doherty and any other employees or contractors working on the site. Commissioner Crawford found this serious breach of safety laws to be serious misconduct that provided a valid reason for dismissal. 

The Commissioner admitted that the dismissal process was deficient, as Mr Doherty was not informed of the issues or given a chance to respond. However, he said that these matters were outweighed by the seriousness of the misconduct, and that the employer was dealing with an employee who was aggressive and erratic.  

Implications 

The case shows the importance of having a valid reason for dismissal, even if it is not the one given to the employee at the time of termination. It also shows that the FWC will consider the context and circumstances of the dismissal, and the balance between procedural fairness and substantive fairness. Employers should know their obligations under the WHS laws, and the consequences of allowing employees to work in an unfit state. Employees should be careful of their duty to take reasonable care of their own and others’ health and safety, and the impact of their conduct on their employment relationship.