A recent Fair Work Commission decision, considering the dismissal of a Work Health and Safety Officer in Queensland, provides some useful commentary about the importance of health and safety personnel not just escalating health and safety concerns, but pursuing those concerns. The case also reminds health and safety personnel to exercise good personal due diligence in their role.
The case, Mr Anthony Nieberg v The Heran Building Group Pty Ltd T/A Heran Building Group  FWC 6225, concerned an unfair dismissal claim by Mr Nieberg, a safety officer employed by Heran for about 15 months before they terminated his employment.
From an unfair dismissal perspective, there is nothing remarkable about the case. It is consistent with the principles governing termination of employment, which at its most basic requires a “valid” reason to end the employment relationship, and the employer exercises their right to terminate, based on that valid reason, “fairly”.
Heran defended the claim, saying they dismissed Mr Nieberg because he did not adequately perform his duties as a safety officer, he was issued three written warnings about his performance, but his performance did not improve.
Mr Nieberg oversaw safety on several building sites, and there was evidence in the case about concerns regarding safety on the sites. For example, a town planning and project consultant who had been working for Heran for over seven years wrote to the company about the danger the Heran sites posed and how the sites were not compliant with safety requirements.
The evidence showed safety issues were not being addressed despite warnings Heran gave to Mr Nieberg. The Commission formed the view Mr Nieberg was not taking the appropriate steps to confront the issues on site, or to raise “directly and assertively with the Directors of Heran his concern that site supervisors were simply not doing as he instructed” [my emphasis added] (see paragraph 96).
Mr Harris gave evidence for Mr Nieberg. Mr Harris had been a safety advisor for Heran for just under three months from June until September 2017. Mr Harris told the Commission he was not backed up by management “with health and safety rectifications”, and suggestions he made about safety did not mean much to the supervisors on-site “because they were protected as long as the progress of the sites continued without interruption” (see paragraphs 82 and 83).
Mr Harris said the culture on-site caused him to resign.
The Commission took Mr Harris’s evidence into account, but noted:
I have taken into account the evidence of Mr Harris that was to the effect that he resigned because of what he described as a poor culture of compliance, and because management did not back him up. This would have been of more assistance to Mr Nieberg had Mr Nieberg demonstrated he had been escalating issues to management and actively pursuing enforcement of safety however there is little evidence to prove that he was (see paragraph 105).
The Commission said, Mr Nieberg had “a position of considerable accountability and responsibility” but appeared to be of the view, “if a safety matter had been reported he had fulfilled his responsibility and it was then over to management”:
Mr Nieberg tended to seek to deflect responsibility for the identified safety deficiencies to either site supervisors, or directors for not supporting him. However given Mr Nieberg’s level of responsibility it fell to him to take action when others failed to comply with their safety obligations. I am inclined to accept that he did not escalate issues and insist on consequences being imposed on a failure to comply despite clear warnings that this was expected of him (paragraph 99).
The Commission found:
Heran had a valid reason to dismiss Mr Nieberg based on his performance over an extended period as Safety Officer in not taking measures necessary to ensure Heran’s jobs sites complied with workplace health and safety legislation and other safety related obligations, or to assertively escalate matters when personnel failed to comply with the relevant safety requirements (paragraph 107).
A lack of management support for health and safety is a common, and often very justified, complaint by health and safety personnel.
What this case illustrates is health and safety personnel, by virtue of their position, have to do more than simply raise concerns with management. There is an ongoing and positive obligation to pursue those issues and follow them up.
Moreover, the case reminds health and safety personnel to exercise personal due diligence in relation to their role. Specifically, health and safety personnel should keep good records of what they do in their role, what concerns they identify and raise about health and safety, how they deal with those concerns and how concerns are escalated and managed.
A benefit of health and safety personnel exercising good personal due diligence in relation to their obligations, is they will be better placed to help other managers understand and exercise personal due diligence in relation to health and safety.