Noise induced hearing loss remains a significant workplace injury that often goes unnoticed until employment ends or a serious impairment emerges. Prevention is straightforward in principle. Effective noise controls and consistent use of hearing protection. But in practice employers frequently face difficulty when workers repeatedly breach safety rules despite warnings and retraining.

This creates a complex dilemma. Employers must meet their statutory duty to provide a safe workplace, yet any disciplinary response, including dismissal, must also be fair and legally defensible. Matters become even more complicated when a worker who has breached noise safety rules lodges a workers compensation claim.

Fair Work Act considerations

Unfair dismissal jurisprudence demonstrates that dismissal for safety breaches is not automatically justified. While the Fair Work Commission places strong weight on an employer’s duty to keep workers safe, it assesses each case on its own facts. In some matters, even where a safety breach is established, reinstatement or compensation has been ordered.

Key factors considered include the seriousness of the breach and whether it created a real and immediate risk of harm. Breaches of critical or “golden” safety rules designed to prevent fatalities or serious injury are more likely to justify termination. For less critical rules, the Commission examines whether the rule was consistently enforced, clearly communicated, and understood, including whether employees were warned that dismissal could follow a breach.

The Commission also considers the employee’s length of service, disciplinary history, and the proportionality of dismissal, as well as whether the employer followed a fair process and took account of mitigating circumstances before making a termination decision.

Work Health and Safety Act obligations

Under work health and safety legislation, a person conducting a business or undertaking (PCBU) must eliminate noise risks so far as reasonably practicable, or otherwise minimise them. Where workers are frequently required to use hearing protection because noise exceeds exposure standards, the PCBU must provide and fund audiometric testing.

Baseline hearing tests must be conducted within three months of commencement, with follow up tests at least every two years. These records are confidential and play a critical evidentiary role in any later noise induced hearing loss claim. Where significant threshold shifts or tinnitus are identified, the PCBU must review noise controls, hearing protection, training, and work practices to prevent further harm.

Importantly, compliance with these obligations does not remove the employer’s exposure to prosecution if controls are inadequate or poorly enforced.

Return to Work Act implications

Noise induced hearing loss claims are subject to strong statutory presumptions. In most cases, hearing loss is deemed to arise from employment involving noise exposure, and the whole of the loss is attributed to the current or last employer unless proven otherwise.

Although the scheme is generally no fault, a claim may be rejected if the injury is wholly and predominantly caused by the worker’s serious and wilful misconduct. This requires deliberate and knowing conduct amounting to a breach of a fundamental employment obligation, assessed in light of all circumstances, including whether the worker had a reasonable excuse. Repeated, documented failures to comply with hearing protection requirements may meet this threshold.

Conclusion

Noise related injury matters require careful, case by case assessment. Employers must be able to demonstrate compliance with work health and safety obligations, consistent enforcement of safety rules, and fair disciplinary processes. Before disciplining a worker or rejecting a compensation claim, employers should ensure that all legislative duties have been met and that decisions are proportionate, well documented, and legally justified.