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Suppose a company fails to comply with safety regulations. A worker refuses to do the work and reports the dangerous situation to the company. The company makes no changes in response to this report, and the worker resigns rather than undertake dangerous work. Can that be considered constructive dismissal?

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  • I don't think that can reasonably be categorized as a "constructive dismissal for breach of contract," but I also suspect that you are interested less in that specific phrase than in the general causes of action that might arise in such a situation. I'd recommend adding more factual detail, identifying a specific jurisdiction, and asking more generally about the remedies available to the employee. Commented Nov 2 at 17:48
  • Thanks! here is the think, I used to work in a company as an Electrician, they gave us some training to comply with OSHA standards, LOTO procedures etc., but they have been changes devices with no knowlledge what they work for, I told them the devices were not properly selected, and if they dont wanted to know more, just they should take the same part of number and remplaced them, even with wires, they says just do it but thay wanted I must authorized my work orders, but in I know if there is a fire o something like that, they are going to blame me, don´t get me wrong but I´m not goint to do Commented Nov 2 at 18:33
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    We can not and will not give individualized legal advice - which your comment makes clear you are seeking.# Commented Nov 2 at 19:08

2 Answers 2

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You have both a right and a responsibility to refuse unsafe work

That is, an employer cannot take punitive action against an employee who refuses to perform a task on a good faith basis that the work itself is unsafe or that the work will create an unsafe situation. That’s the right.

In addition, a worker who knowingly performs work unsafely, or knowingly causes an unsafe situation has committed an offence. Albeit, these are typically only punished by the state in egregious circumstances. That’s the responsibility.

If there is a dispute about the safety of the work, it can and should be raised through the WHS channels that the employer was required by law to establish; these can be a WHS Committee, a WHS Representative, or any other suitable arrangements. If that fails to resolve the issue, the employer or the worker can request intervention from a Safe Work NSW inspector and each may be represented during that (paid for by the employer, if required).

Now, an employee who quits instead of going through that process, has probably not been constructively dismissed because there were administrative remedies that they did not pursue.

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The Employment Rights Act 1996, section 100 - Health and safety cases specifically excludes refusal to conduct unsafe work as valid grounds for dismissal.

If the employee left because of a danger "which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert" then the employer has no grounds to dismiss.

However, if the employee is able to reduce the risk to an acceptable level, then walking out would not be protected, so there is scope for argument in establishing the severity of risk and what actions are reasonable as response.

So that's the case for unfair dismissal. However, this situation is different because the employee resigned, so we need to turn to section 95 - Circumstances in which an employee is dismissed and determine whether the employee resigned "in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct". Refusal to implement reasonable safety measures (as the Health and Safety at Work Act requires) may be considered such conduct (but there may be argument as to what is reasonable depending on circumstances - Health and Safety at Work Act says that all "reasonably practicable" measures must be taken to ensure safety).

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  • "If the employee left a danger" should probably be "employer" Commented Nov 3 at 14:57
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    No @Stef - it was the employee who walked out, not the employer. This law allows the employee to leave if such a danger cannot reasonably be corrected. Commented Nov 3 at 15:32
  • There have been numerous cases where a refusal to work in an unsafe situation was considered to be a form of unfair dismissal. Commented Nov 3 at 19:32
  • @Richard You mean a situation where the employer deliberately left an unsafe situation such as to leave the worker to the choice of either quit or work in an unsafe environment (for minimal wages)? That's called "modern slavery". Commented Nov 4 at 14:23
  • @PMF - That's why the usual 2-year rule for unfair dismissal doesn't apply to H&S refusals. They apply from day zero, before the individual has even started work Commented Nov 4 at 16:11

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