A Fair Work Commission (FWC) member has heavily criticised a decision to reinstate a mine operator who made homophobic and anti-Muslim remarks, labelling the ruling ‘plainly unjust’ and ‘irrational’.

FWC Commissioner Leigh Johns’s criticism came in his minority ruling in Mt Arthur Coal’s appeal of a July 2016 decision by Commissioner Tony Saunders that the company’s dismissal of an operator (Mr Goodall) at the open cut coal mine was harsh.

In the full-bench decision handed down on 4 November, Commissioner Johns was overruled by Vice President Adam Hatcher and Deputy President Nicole Wells who rejected Mt Arthur Coal’s appeal. The company’s failed in its appeal on nine grounds including that it was irrational to assume Mr Goodall’s comments were ‘less serious’ because they were not directed at any particular Muslim or group of Muslims at the mine.

Also among the appeal grounds, Mt Arthur Coal unsuccessfully argued that Commissioner Saunders erred in finding that fatigue played a role in Mr Goodall making the comments, when there was no evidence to suggest fatigue was a causative factor.

Background

As summarised in a previous edition of the AMMA News Update, Mr Goodall was dismissed from his position as an operator after it was found he made offensive comments, some of which were lewd, homophobic as well as derogatory towards Muslims over a two-way radio channel.

When considering Mr Goodall’s unfair dismissal claim, Commissioner Saunders found no fault in the investigation process undertaken by the employer or its reasons underpinning the termination.

However, he ruled the termination to be harsh due to the personal and economic consequences of the dismissal on Mr Goodall and his dependent children. He also found the termination to be a disproportionate response to the seriousness of the misconduct.

‘Plainly unjust’

In his scathing dissenting decision, Commissioner Johns went beyond expressing a preference for a different outcome.

The ultimate outcome, i.e. the reinstatement of Mr Goodall to his employment, was unreasonable and plainly unjust when considered in the light of the duty to ensure a “fair go all round” is accorded to both the employer and the employee concerned,” Commissioner Johns said.

He believed Commissioner Saunders failed to take into account the known adverse impact of discrimination in the workplace and said the Commissioner’s findings that Mr Goodall’s conduct was either at the lower-end or mid-range of the scale of seriousness was not what ‘a logical or rational person could reach’.

“There is extensive literature about the effects of discrimination, including in the workplace. Making jokes or comments that are inherently Islamophobic and homophobic is likely to negatively affect the mental health of people in the workplace ranging from anxiety to depression. The Commissioner should have taken “judicial notice” of the same,” he said.

“…In my opinion, Mr Goodall’s careless disregard for whether, out of the 100 people who might have heard his comments, might be Muslim and be offended by them, should have been an aggravating factor and rendered the conduct more than a mid-range breach.”

Commissioner Johns also found Commissioner Saunders failed to consider all of Mr Goodall’s comments in their totality.

“His failing in this regard was a further error on his behalf that should attract interest at the appellate level. If the Commissioner had properly exercised his discretion he would have assessed each of the comments made by Mr Goodall more seriously, found that the totality of the conduct constituted serious misconduct and not determined that the other factors mitigated against the same and rendered the termination harsh,” he said.

The only praise in Commissioner Johns’s decision was reserved for Mt Arthur. He said the company’s “decisive action to eliminate Islamophobia and homophobia in its workplace”, as backed by its Code of Business Conduct, should have been commended, not punished by being required to take Mr Goodall back.

He added that quashing the decision at first instance would have been consistent with the Full Bench decision in Harbour City Ferries Pty Ltd v Toms where a ferry master who tested positive for cannabis was reinstated, and on appeal, his unfair dismissal application was dismissed. (This decision was later backed by the Federal Court in 2015 – click here to read AMMA’s summary).

Click here for the full Mt Arthur Coal v Jodie Goodall decision.

Implications for employers

The decision highlights the inconsistency of opinion within the Fair Work Commission over what constitutes a harsh dismissal.

Although Mt Arthur met the requirements of procedural fairness before dismissing the employee and had a clear code of conduct for behaviour in the workplace, this case demonstrates that the Commission can override employers’ decision making in this area and support an unfair dismissal remedy brought against a business.

AMMA’s experienced workplace relations consultants can provided advice on, and assistance with, workplace investigations and terminations to mitigate adverse impacts on your business. To learn more, contact an AMMA consultant near you.