Employer groups are furious with Fair Work Australia's decision to order the reinstatement of a worker who was sacked because of "serious misconduct" relating to a health and safety breach, because of his family circumstances, length of service and poor job prospects.

The case involves Paul Quinlivan, an employee at Norske Skog Paper Mills in Albury, who was dismissed in September last year after repeatedly removing his safety glasses while cleaning a piece of machinery during a plant shutdown.

While FWA vice president Michael Lawler found "the applicant's dismissal was neither unjust nor unreasonable" he did find it was harsh, citing the fact that Quinlivan is married with two daughters aged 9 and 11, was poorly educated and has a $70,000 mortgage and had low chances of finding other work.

Lawler ordered the worker be reinstated and the worker be compensated for lost pay, although he did reduce the amount of back pay the employee could receive as a sort of sanction against him. He also told the employee that he is on his final warning.

But the decision has outraged the Australian Chamber of Commerce and Industry, who are concerned that FWA has sent the wrong message to companies who take their health and safety obligations seriously.

"The principal concern so far is here is a company that is quite clearly aware of its health and safety obligation and has taken actions in accordance with those obligations. But its decisions taken in the health and safety area are being second-guessed by the industrial trial," ACCI's workplace policy director David Gregory told SmartCompany this morning.

Workplace lawyer Peter Vitale of CCI Lawyers says while Lawler's decision to put the employees personal circumstances in front of the safety breach is unusual but not unheard of.

"It's always been the understanding that harshness to some extent revolves around the personal circumstances of the individual. It's only in what the Commission views as pretty extreme circumstances will they override a termination."

Vitale also says the case underlines the need for employers to warn workers that they can face dismissal for safety breaches.

"Employers should have policies that have the most serious consequences in place for a breach. Yes, an employer should and is in within their rights to tell employees that if they are continuing to breach they are putting their employment at risk."

The full story is at SmartCompany.