AMMA workplace relations lawyer Lindsay Carroll (pictured) examines a recent unfair dismissal case where the Fair Work Commission reinstated an employee due to procedural unfairness, despite finding a valid reason for termination.

THE FAIR Work Commission has ordered the reinstatement of a warehouse employee at the Peak Downs Mine, after it found his dismissal by BHP Coal was unfair.

This single-member decision is another concern for resource employers among a string of dismissal-related cases where the employer’s decision has been overturned despite a valid reason for termination being found.

Background

The applicant worked in the role of ‘Administrator Warehouse’ at the mine in Moranbah, Queensland, when his employment was terminated on 30 November, 2016, following a safety incident where a truck driver’s hand was injured.

The employer said the employee failed to provide satisfactory responses or show a level of accountability for his actions during the meeting where his employment was terminated.

In giving evidence, the employee admitted he made a ‘wrong’ and ‘unsafe’ decision during a ‘lapse of judgement’ as he operated a forklift to unload a truck on 12 November, 2016, when the incident which led to his dismissal occurred.

After the applicant had finished unloading the truck, he began loading a cage onto the back of the truck but the cage made contact with the end of the truck’s curtain, which had fallen.

The driver called out to the employee that the forklift was hitting the curtain of the truck and told the employee to ‘back off’ so he could ‘pull it out of the way’.

The applicant said he wrongly trusted that the truck driver had correctly considered that the curtain could be safety restrained and that he could and would be able to do so while he reloaded the cage.

As the driver attempted to move the curtain, the employee moved the forklift forward, catching the driver’s hand between the curtain rod and the steel upright on the truck.

The driver sustained a laceration to one finger and a dislocation to another.

Decision – Valid reason but unfair procedure

In his decision, Commissioner Chris Simpson found BHP Coal had a valid reason to terminate the employee, but labelled its dismissal process as ‘procedurally unfair’ due to unclear loading procedures.

Commissioner Simpson noted that at the time of the incident, the applicant was on a Written Warning ‘for breaching the BHP Billiton Code of Business Conduct by failing to report a positive contact breach, which was a failure to follow procedure’ following from a separate incident on 30 October, 2016.

However, he ruled that BHP shouldn’t have taken into account the prior warning in determining the disciplinary outcome for the applicant’s breach involving the truck driver, because the warning lacked proportionality and was excessive in the circumstances.

“On that basis I have concluded the warning does not warrant significant weight being attached to it in support of BHP’s subsequent decision to afford weight to it in later deciding to terminate (the applicant),” Commissioner Simpson said.

Commissioner Simpson also stated that the applicant was never told that the facts that led to the warning were considered relevant to demonstrate the subsequently determined pattern of behaviour.

“Further, (the applicant) was not given an opportunity to address BHP in relation to the conclusion that he had not shown accountability,” he stated. It was also relevant that the applicant was never given an opportunity to respond to BHP on the matter of whether he deliberately or intentionally breached procedure.

Commissioner Simpson also ruled there was ambiguity in BHP Coal’s loading procedures and ‘should have done more to provide instruction’ to address its expectation of safe loading and unloading of trucks.

Despite two of the witnesses called by BHP concluding the employee intentionally breached procedure, there was a loss of trust in the ‘employer’ and ‘employee’ relationship and safety concerns about the applicant returning to the workplace, Commissioner Simpson ordered reinstatement.

Commissioner Simpson stated the applicant was never given an opportunity to respond to BHP on the matter of whether he deliberately or intentionally breached procedure.

In finding the applicant’s actions were not deliberate, Commissioner Simpson labelled the incident ‘an isolated lapse in judgement, and not recurring in nature’, citing an otherwise good record concerning safety matters.

The Commissioner found the failure to reinstate the employee would be ‘significant’ and result in him remaining on temporary and insecure employment on wages well over 50 per cent lower than his rates of pay at BHP.

Commissioner Simpson ordered reinstatement and $10,578 for lost pay, deducting two months’ pay for the employee’s part in the incident.

Implications for employers

The Fair Work Commission’s interpretation and application of the Fair Work Act’s unfair dismissal provisions continue to be a growing area of concern for employers.

Specifically, the increasing trend of FWC decisions to reinstate and/or award compensation, despite agreeing the employer had a valid reason to terminate employment, is of particular concern.

The criteria for determining what is ‘unfair’ has become highly challenging for employers as it provides members of the Commission with the discretion to award remedies for unfair dismissal based on their own interpretation of what is ‘harsh’, even after finding a valid reason for termination exists.

This case also demonstrates the importance of ensuring procedural fairness is followed meticulously, and the need to implement disciplinary procedures that adhere to the requirements of the Fair Work Act 2009.

Given the delicate nature of disciplinary measures, and the possible dismissal action that sometimes follows, AMMA members are encouraged to seek advice before effecting dismissals in their workplaces.

Learn about AMMA’s campaign for Five Urgent Workplace Reforms, including restoring balance to Australia’s termination of service laws.

For more information on this matter or any workplace discipline or dismissal advice, contact Lindsay Carroll via (07) 3210 0313 or [email protected]