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Is it unfair dismissal of an employee if their work is ended because they decline to do particular work as a result of poor health and wellness requirements by the company?Can a staff member be sacked because they refuse to work in unsafe conditions?If a worker is forced to resign because of bad health and wellness conditions, can this be an useful unfair dismissal?This post will attempt to respond to those concerns, and the law around unfair dismissal and hazardous work conditions.What is Unfair Dismissal?Unfair dismissal implies that a staff member was fired from their task, and that the termination was unfair within the significance of the Fair Work Act.For a dismissal to be unjust, it requires to be identified that the dismissal was unfair, harsh, and/or unreasonable.There is a great deal of case law on what these things have indicated in different circumstances.However did you understand that a staff member can likewise claim unfair dismissal if they resign? This is called constructive dismissal.CONSTRUCTIVE DISMISSALConstructive dismissal (also referred to as forced resignation) is when a worker is essentially required to stop or has no option however to resign from the work.This typically consists of conduct such as:Bullying in the workplace;If a staff member is dismissed after informing the company an intent to resign in the future; andThe employer has continually failed to pay earnings to the employee.The Fair Work Commission will also go over other factors.WHAT FACTORS WILL THE FAIR WORK COMMISSION GO OVER?The Fair Work Commission will look at (among other things):.If there is a valid reason that the worker was dismissed;.The employee's behavior prior to the termination;.If the staff member was given notice, and reasons, and offered an opportunity to react;.The size of the business, and the wage of the staff member;.Any other reasons that the Fair Work Commission believe are necessary.But what about if the employer attempts to require the employee to operate in hazardous conditions?COMPANY PROVIDES UNSAFE WORKING CONDITIONS.Well, at first bullying will likely have an influence on the worker's health and wellness, so in this case, supplying an environment which is risky to an individual's mental health will likely be arguable in a constructive dismissal case.A company has a positive responsibility in both in legislation and the common law to offer a safe office.If the employer declines to provide a safe workplace then this is likewise one of the events that a staff member can state caused them to resign from their employment.If the worker can prove that they made the employer knowledgeable about the hazardous working conditions, supplied proper notice, and the employer still did nothing to rectify the issue, then this might be positive unfair dismissal.In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 the Court identified what threat means. The Court stated:.In my opinion, the word "risks" in s 8( 2) also refers to the possibility of risk. The word "exposed" refers to an individual who is adequately proximate to the source of the risk at the relevant time or times for that danger to perhaps impinge upon his or her health or safety.If the staff member is exposed to the possibility of danger upon his or her health or security, then this may be enough. If the employee refuses to work because of threat, they can not be terminated relatively.What about Employee Breaches?EMPLOYEE BREACHES HEALTH & SAFETY RULES.It is pretty well understood that if a worker consistently breaches health and wellness rules that their employment can be ended.The company must bring the alleged breach to the worker's attention and offer training (if needed) and instruction on what to do and not do.Repetitive breaches will not be unfair dismissal for the most part.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 protested their air filtering policy for working in underground mines. James Felton declined.His work was terminated. He sued for unfair dismissal.The Fair Work Commission stated:.On balance, and having actually weighed each of the considerations in s. 387 of the FW Act, I consider that Mr Felton's dismissal was not harsh, unjust or unreasonable. It was not unreasonable within the meaning of the FW Act.WHAT HAPPENS IF UNFAIR DISMISSAL IS FOUND?There are three (3) prospective outcomes if a finding of unfair dismissal or useful unfair dismissal is made. These are:.An order that the staff member is restored to their job;.An order that the worker gets payment; or.A decision to make no order.If an employee is restored, then they get their task back.If an order for settlement is made, then an employee will be paid up to 26 weeks pay from the employer.FINAL THOUGHT.As you can see, failure to supply a safe working environment for staff members may result in them receiving compensation for constructive unfair dismissal. The constructive dismissal must have been unjustified, severe, and/or unreasonable in the circumstances.If a worker breaches health and safety requirements repeatedly, and does not alter their behaviour, then they might not have any option to unfair dismissal laws.great post to readLitigation lawyers Queenslandfind out this here