A mine site operator who slept for more than two hours during a shift has had his unfair dismissal application rejected after it was found his behaviour seriously breached safety policies and procedures. Here, AREEA employee relations lawyer, Lindsay Carroll reviews the Fair Wok Commission (FWC) decision and highlights the key take-outs for employers.

THE FWC has rejected an unfair dismissal claim from an operator employed by Mt Arthur Coal Pty Ltd who failed to inform his supervisor of the severity of his fatigue, fell asleep during two separate crib breaks, and neglected to report an oil leak on the machinery he was operating.

Mt Arthur Coal investigated the incidents and concluded that the operator had breached a number of lawful and reasonable directions by his supervisor and procedures for fatigue management at the workplace.

Relevantly, Mt Arthur Coal has extensive fatigue management policies and procedures in place to reduce the risk of a fatigue related safety breach which require all employees to identify, monitor and report any fatigue issues.

After giving the operator the opportunity to show cause why his employment should not be terminated, Mt Arthur Coal dismissed the operator with notice. In determining whether the dismissal was harsh, unjust or unreasonable within the meaning of the Fair Work Act, Commissioner Saunders considered that this was not ‘simply a case where an employee has fallen asleep during a night shift’ and found that the operator’s conduct amounted to serious misconduct warranting dismissal.

Sound, defensible and well-founded reason for dismissal

The Commissioner found that the operator’s conduct amounted to serious misconduct taking into account, the operator’s:

• failure to comply with company policies;
• failure to identify and report fatigue;
• failure to report the mechanical defects to his manager; and
• failure to communicate in an ‘open and transparent way’ with his supervisor after taking extended crib breaks.

Commissioner Saunders remarked upon the seriousness of fatigue management and its effect on safety, highlighting that ‘in a mining environment where heavy vehicles are operating, often in relatively close proximity to one another, fatigue management is a significant and serious matter’.

Claims the operator’s manager failed to identify signs of fatigue prior to commencing the shift, or check up on the operator’s condition during the shift, were also dismissed. In this regard, the Commissioner concluded that had the operator complied with his obligation to notify the shift supervisor of the extent of his fatigue, the manager would have ‘managed the risk by implementing a measure such as giving [him] a fatigue break, sending him home, or rotating his tasks’.

Click here to read the full decision.

Implications for employers

This decision demonstrates that serious breaches of an employer’s policies and procedures, including fatigue breaches, may give rise to a valid reason for dismissal. Employer’s should be mindful to ensure that investigation and show cause processes are carried our fairly and should seek advice before effecting a dismissal to mitigate the risk of litigation.

If you need assistance to respond to unfair dismissal or general protections claims, contact one of AREEA’s experienced employee relations practitioners for assistance.  Effecting dismissals will also be workshopped at AREEA’s upcoming Industry Briefings in Townsville, Newcastle and Brisbane. To register your attendance, click here.