The Case

Leeder v John Holland Group Pty Ltd (2015)

John Holland dismissed its health and safety adviser for allegedly misrepresenting a safety incident. It was alleged that the adviser had deliberately downgraded the severity of a safety incident he had reported on, in which a 2 kilogram section of metal unistrut (metal framing) fell to the ground on the Perth Children’s Hospital construction project.

The employer claimed that employees and managers had informed the health and safety adviser that the object had narrowly missed hitting employees on the site. However, the adviser said he had no recollection of being given this information. Therefore, he did not include this information in his report and it was not provided to the authorities.

John Holland terminated the safety adviser’s employment. The adviser then commenced unfair dismissal proceedings.

The Verdict

The Fair Work Commission (FWC) found that the health and safety adviser had been unfairly dismissed and awarded him 2.28 months’ worth of compensation.

The FWC believed the adviser’s evidence under oath, and indicated that John Holland had failed to bring to court the employees who had supplied contradictory evidence to the adviser. This meant that the adviser’s legal representatives had no opportunity to cross-examine those employees.

However, the FWC declined to award the adviser more than 2.28 months’ compensation because he had failed to pursue other work to mitigate his loss, believing his professional reputation in the construction industry to have been tarnished.

The Lesson

Ensure that witnesses who provide statements in proceedings can attend court and be cross-examined (in other words, have their evidence tested).

If they cannot attend court, you risk that their statements will not be allowed into evidence or will not be given any weight when the court assesses the evidence.

This case is also a reminder that dismissed employees must attempt to mitigate their loss by seeking alternative work. If they don’t, their claim for compensation may be diminished.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.