07 Mar 2013

Latest dance craze not a hit with employer

by Saul Harben, Steve Bowler

An employer's right to terminate a worker's employment for breaches of safety procedures is likely to come under the spotlight in the wake of a mining company's decision to dismiss up to 15 workers for performing the "Harlem Shake" dance craze while at work on site.

What happened?

During a shift break in an underground pit at the Agnew gold mine in WA, a group of workers filmed themselves performing the latest dance craze, the Harlem Shake. According to one of the workers involved, the stunt was performed as a "bit of fun" and to "get us going again" in the early hours of the morning of a long shift.

The 30 second clip of the dancing workers was uploaded to YouTube and quickly went viral. When the workers' employer, Barminco, became aware of the video, the response was less positive. Within a week, up to 15 of the workers involved in the stunt were informed that their employment had been terminated, including employees who had just been watching the performance. The workers were also informed that they has been banned for life from working at any of Barminco's projects.

According to the termination letters sent to the employees, Barminco considered the stunt to be a serious breach of the company's safety procedures and its "core values of safety, integrity and excellence".

However, some of the dismissed employees have subsequently disputed the company's reasons for its decision, claiming that the workers involved had discussed safety prior to performing the dance. According to one of the workers, the safety-conscious performers wore protective equipment including rescue devices containing portable oxygen during the stunt to ensure they obliged with workplace safety regulations. Although some of the dancers admitted to breaching procedures by removing their long-sleeved shirts, this was claimed to have been done to avoid Barminco being identified in the accompanying video.

Some of the dismissed workers have since confirmed that they are seeking legal advice regarding the termination of their employment.

Implications

It is well established that a breach of safety procedures can be a valid reason for dismissing an employee, and can even constitute serious misconduct in some cases. Additionally, employers are required under workplace health and safety legislation to respond appropriately to all incidents where safety requirements are breached, in order to meet their obligation to maintain a safe workplace.

However, just how serious a safety breach has to be to warrant the summary dismissal and blacklisting of several workers is likely to become the central issue in any claim made by any of the dismissed employees against their employer. If Barminco is faced with one or more unfair dismissal cases as a result of its decision to terminate the workers' employment, which is extremely likely to be the case, the company will need to be able to show that the workers' actions placed their own safety and the safety of other workers at serious risk, leaving the company little choice but to terminate their employment.

Although the impromptu performance may have been in breach of the company's safety procedures, the dismissal of the employees could still be found to be unjust, harsh or unreasonable if the Fair Work Commission considers that the company's response was disproportionate to the seriousness of the alleged misconduct. (ie. would a written warning have sufficed?) In defending such a claim, the company may be required to produce evidence that the workers' actions could have resulted in serious safety consequences, such as a serious injury or fatality, despite the workers' claims that safety requirements were for the most part observed. If this can't be established, the company could potentially be ordered to reinstate some of the employees or pay them compensation. At the same time, the company may be able to argue that its actions were warranted by and consistent with its safety policies and its statutory obligations under workplace health and safety legislation.

This case clearly underlines the balancing act that employers are required to maintain between their duty under workplace health and safety legislation to maintain a safe workplace where workers are not exposed to hazards, and their obligations under the Fair Work Act to not unfairly dismiss an employee. The incident is also another clear warning to employees with respect to the use of social media involving the workplace. As demonstrated in this case, employees need to be aware that employers do pay attention to what is published on social media and will take action if they don't like what they see!

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.