AN EMPLOYEE has failed to persuade the Fair Work Commission (FWC) that disciplinary action taken against him was unfair after excessively watering a mine haulage road, causing the rollover of a vehicle worth $1.2 million.

While watering roads for dust control in August 2013, the employee of BHP Billiton’s Peak Downs coal mine in Queensland was found to have used excessive water, causing a $1.2 million water tanker to topple on its side, injuring the driver and writing off the truck.

Following its workplace investigation BHP Billiton determined that disciplinary action was necessary with verbal counselling, known as a ‘Step 1’ action under BHP’s policies, delivered by the driver’s supervisor.

However, shortly after, the Construction, Forestry, Mining and Energy Union (CFMEU) launched proceedings against BHP Billiton arguing the employer’s actions were excessive.

A key consideration in this case was that more serious disciplinary actions had been considered by the employer and decided against.

“It is relevant to note that more severe disciplinary action than the verbal counselling was the subject of discussion and was actively contemplated during the process,” Commissioner Lewin said.

“[The manager] judged that any greater action would be excessive to the facts and its effects on Mr Reyes. Rightly so in my view. I judge that [the manager] was required to make an important and finely balanced decision in onerous circumstances. The accident could have been fatal. The damage was very significant.

“Anything greater than Step 1 would have placed [the driver’s] employment in jeopardy. On the evidence, I am satisfied that [the manager] weighed this consideration and decided against more severe disciplinary action. In this respect, there was clearly no injustice.”

Describing BHP Billiton as taking a ‘carefully and finely calibrated’ approach to disciplining the employee, Commissioner Lewin determined that it would have been ‘inappropriate’ had the company taken no disciplinary action.

“I am not satisfied on all that is before me that a decision to take no disciplinary action in relation to [the driver] in accordance with the [company policies] was the only outcome reasonably and fairly available,” he said.

“Indeed, on that evidence, I consider it would have been inappropriate not to verbally counsel [the driver] absent the need to exercise diligent operator discretion when watering the roads of the mine.”

Commission Lewin ruled in favour of BHP Billiton and dismissed the application.

Click here to read the full decision.

Implications for Employers

This decision is significant for resource industry employers as Commissioner Lewin highlighted the importance of company policies that reflected fair and responsive workplace practices.

Specifically, Commissioner Lewin praised BHP Billiton for its human resource management.

“The policies and procedures in this mine are well developed and the human resources management practice is commendable,” he said.

“There is always a need for well trained and diligent application of such policies and practices in order that they lead to appropriate outcomes.

“The application of good policies and procedures affecting the management and performance of employees also requires time, effort, good judgement and a fair process for employee participation.

“In my observation, those qualities were present throughout the process and the application of the dispute settlement procedure under the Agreement which brought this matter before the Commission.”

AMMA’s workplace relations consultants can provide advice, information and guidance on your organisational policies to minimise the risk of disputation. Contact your local AMMA office for more information.