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 User Description: Is it unfair dismissal of a staff member if their employment is ended due to the fact that they refuse to do particular work because of bad health and safety standards by the company?Can an employee be sacked due to the fact that they refuse to work in harmful conditions?If a worker is forced to resign because of bad health and safety conditions, can this be a positive unfair dismissal?This short article will attempt to answer those concerns, and the law around unfair dismissal and hazardous work conditions.What is Unfair Dismissal?Unfair dismissal suggests that a worker was dismissed from their task, and that the termination was unfair within the meaning of the Fair Work Act.For a dismissal to be unjust, it needs to be identified that the dismissal was unjust, extreme, and/or unreasonable.There is a great deal of case law on what these things have actually suggested in different scenarios.Did you know that a worker can also claim unfair dismissal if they resign? This is called constructive dismissal.CONSTRUCTIVE DISMISSALConstructive dismissal (also called forced resignation) is when an employee is essentially forced to stop or has no option however to resign from the employment.This generally consists of conduct such as:Bullying in the work environment;If an employee is dismissed after notifying the employer an objective to resign in the future; andThe company has constantly stopped working to pay wages to the employee.The Fair Work Commission will also look into other factors.WHAT FACTORS WILL THE FAIR WORK COMMISSION EXAMINE?The Fair Work Commission will look at (among other things):.If there is a legitimate reason that the employee was terminated;.The employee's conduct prior to the termination;.If the employee was notified, and factors, and provided an opportunity to react;.The size of the business, and the income of the employee;.Any other factors that the Fair Work Commission believe are essential.What about if the employer attempts to require the staff member to work in unsafe conditions?COMPANY PROVIDES UNSAFE WORKING CONDITIONS.Well, at first bullying will likely have an effect on the employee's health and safety, so in this case, supplying an environment which is hazardous to an individual's psychological health will likely be feasible in a constructive dismissal case.A company has a positive task in both in legislation and the common law to offer a safe workplace.If the employer refuses to offer a safe work environment then this is also one of the celebrations that a staff member can state triggered them to resign from their employment.If the staff member can prove that they made the employer knowledgeable about the hazardous working conditions, offered correct notification, and the employer still did nothing to remedy the problem, then this may be positive unfair dismissal.In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court identified what risk means. The Court said:.In my viewpoint, the word "risks" in s 8( 2) also describes the possibility of danger. The word "exposed" describes an individual who is sufficiently proximate to the source of the risk at the pertinent time or times for that danger to perhaps impinge upon his/her health or safety.So, if the staff member is exposed to the possibility of danger upon his/her health or safety, then this may be enough. If the staff member refuses to work because of risk, they can not be ended fairly.What about Employee Breaches?EMPLOYEE BREACHES HEALTH & SAFETY RULES.It is quite well understood that if an employee consistently breaches health and wellness rules that their employment can be terminated.The company should bring the supposed breach to the worker's attention and offer training (if required) and guideline on what to do and refrain from doing.Repeated breaches will not be unfair dismissal in most cases.In James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 the Plaintiff was used by BHP as a truck driver. BHP directed him a variety of times to shave his beard as it was against their air purification policy for operating in underground mines. James Felton declined.His work was ended. He demanded unfair dismissal.The Fair Work Commission stated:.On balance, and having weighed each of the factors to consider in s. 387 of the FW Act, I think about that Mr Felton's dismissal was not extreme, unjust or unreasonable. As such, it was not unfair within the meaning of the FW Act.WHAT HAPPENS IF UNFAIR DISMISSAL IS FOUND?There are three (3) possible outcomes if a finding of unfair dismissal or positive unfair dismissal is made. These are:.An order that the employee is renewed to their job;.An order that the staff member gets compensation; or.A decision to make no order.If an employee is reinstated, then they get their task back.If an order for compensation is made, then an employee will be paid up to 26 weeks pay from the employer.FINAL THOUGHT.As you can see, failure to provide a safe workplace for workers may result in them getting settlement for useful unfair dismissal. The constructive dismissal should have been unjustified, severe, and/or unreasonable in the scenarios.Likewise, if an employee breaches health and wellness requirements consistently, and does not change their behaviour, then they may not have any option to unfair dismissal laws.official websitecheck thatright here