вторник, 27 сентября 2016 г.

Австралия. Работнику угольной шахты не удалось выспаться днем в субботу между ночными сменами (гости в доме). Он вышел вечером на работу и рассказал менеджеру, что не смог выспаться. Позже суд установил, что, оказывается, работник не предупредил менеджера о степени своей усталости, что явилось нарушением локального акта, который обязывает работника сообщать об усталости. Это было одно из оснований увольнения указанного работника. Второе основание - работник не предупредил руководство, что его бульдозер неисправен (течь масла), хотя работник сообщил об этом слесарю, который устранил поломку. Третье основание – работник вместо 35 минутного перерыва отдыхал 100 минут (не услышал будильника в телефоне). Суд отказал работнику в иске о незаконном увольнении.


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Tuesday 27th September 2016
The difference between being tired and fatigued
In today's Health & Safety Bulletin:
  • Shift worker sacked for serious safety breaches
Jeff Salton PortraitA coal mine shift worker who arrived for work fatigued due to a lack of sleep was dismissed for a number of serious workplace safety breaches, including sleeping for around 100 minutes during a scheduled 30-minute break and failing to tell his supervisor.
The shift worker was employed by Mt Arthur Coal Pty Ltd (Mt Arthur) as an operator, working at the Mt Arthur coal mine near Muswellbrook in the Hunter Valley, NSW. After completing night shift at 7:10am on the morning of Sunday, 20 March 2016, he went home and tried to sleep to prepare for the night shift at 6:30pm that evening.
However, he did not sleep well because there were five adults and three children under the age of six at his house for a Sunday family lunch.
When the worker arrived at the mine at 6:30pm that evening he informed his supervisor that he had not slept well but proceeded to operate a bulldozer during his shift.
During his shift, the worker:
  • lost track of time during his first crib break and taking about a 60-minute break rather than a 30- or 35-minute break;
  • did not inform his supervisor that the grader he was operating started leaking oil and needed repairing; and
  • slept during his second crib break for a period of approximately 100 minutes.
When it was discovered what had happened, Mt Arthur gave the worker an opportunity to show cause why his employment should not be terminated, then dismissed him and paid him four weeks’ pay in lieu of notice.
The worker then alleged unfair dismissal, claiming his dismissal was harsh, unjust and unreasonable.
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The court heard that in March this year Mount Arthur dismissed the worker for failing to notify his manager of the extent of his fatigue levels before and during the shift or that his machine had an oil leak, and taking two extended crib breaks.
These were deemed serious safety breaches and the commission agreed, rejecting his unfair dismissal claim.
Fair Work Commissioner Tony Saunders said this was not "simply a case where an employee has fallen asleep during a night shift", but one where he breached a number of fatigue-related policies, procedures and directions, which had serious safety implications for the workplace.
At the FWC hearing, the worker conceded that he should have, but did not, notify his supervisor and dispatch department when the grader he was operating had an oil leak and needed to be repaired at about 2:30am on 21 March 2016. Instead, the worker notified a fitter, who undertook the necessary repair work to the grader.
While repairs were being done, the worker took his second crib break at about 2:30am while the grader he had been operating was being repaired. He went to a fatigue hut, set the alarm on his phone for 35 minutes and went to sleep. Mr Parish then slept through his alarm, waking about 100 minutes later.
Asleep in the fatigue hut
During this time, the dispatch department rang the supervisor and informed him that “[the worker] had been inactive for an extended period of time, but had not logged a delay in the system nor been in contact to explain why.” The supervisor then tried to contact the worker over the two-way radio and on his mobile phone to check he was alright and to find out what was happening, but the worker did not respond because he was asleep in the fatigue hut.
Mount Arthur's fatigue management procedure required workers to identify, monitor and report any fatigue issues, and fatigue-related safety issues were discussed in pre-start meetings, along with the importance of reporting equipment defects.
Commissioner Saunders found Mount Arthur had a "sound, defensible and well-founded" reason to dismiss the worker.
Although the worker argued that fatigued caused his errors during his shift and they were not misconduct, the Commissioner Saunders said the worker’s failure to comply with Mt Arthur's policies, procedures and directions meant that the dismissal was "not disproportionate to the gravity of the misconduct in which he engaged, nor was it harsh in any other sense.”
Are your safety procedures clear and understood by your workers? Are they robust enough to be defensible in court?
The Health & Safety Handbook, written by the legal experts at Holding Redlich, will guide you step-by-step through the process of developing your own, site-specific policies and procedures to ensure you protect your workers from harm and can penalise those who breach them.
Order your copy of the handbook today an obligation-free trial and take advantage of the checklists, step-by-step instructions, downloadable templates and other helpful hints and legal advice contained in each chapter.
Keep up the good work,

Jeff Salton signature
Jeff Salton
Editor, Health & Safety Bulletin

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