A BHP subsidiary has been ordered to reinstate a member of the CFMEU and the Comancheros Motorcycle Club after it found he was unfairly dismissed following allegations of threatening and intimidating behaviour.

The employee (applicant) had worked as a shotfirer at Mt Arthur Coal Pty Ltd (respondent) for almost 10 years before he was dismissed on the grounds of serious misconduct.

Confident of carrying out a ‘detailed’ and ‘thorough’ investigation into multiple allegations concerning the employee’s behaviour, the employer determined:

• the employee had engaged in a pattern of threatening and intimidating behaviour towards other employees; and
• the pattern of threatening and intimidating behaviour constituted a breach of the BHP Billiton Code of Conduct which warranted dismissal. The employee had received training, including refresher training concerning the Code of Conduct.

The employee subsequently filed an application for unfair dismissal on the grounds that the allegations were unfounded and exaggerated, and that he was denied procedural fairness due to not being shown copies of the statements to support the allegations.

The allegations

Allegations about the applicant’s conduct were first heard by a company superintendent in July 2013, when another employee claimed to have received threats on his life.

An investigation was conducted by human resources and the management, involving interviews with 30 employees. The respondent submitted that threatening and initiating comments and behaviour were witnessed by employees on separate occasions and that:

• on various occasions he had made threatening and intimidating comments to and about other employees which were of a violent nature or, of a threatening nature;
• he had made inappropriate comments of a bullying and harassing nature to other employees; and
• he caused operational ineffectiveness by not releasing the company vehicle regularly used by him as (or when) required by other blast crew members.

Evidence was submitted that the applicant’s intimidating comments included:

• “Dog or dogs would get bashed if they were found out.”
• “If you **** with my family’s money, I will **** with your life.”
• “I have cut tongues out for less than this.”
• “Geriatric old ****, you should hurry up and retire”.

The employee that initially raised the matter resigned in August 2013. He later expressed to management that he was concerned for his and his family’s safety since making the allegations and was not prepared to be a witness in proceedings.

Applicant’s argument

The applicant denied the allegations against him, claiming they were either fabricated or exaggerated, and put forward that he had never been counselled or warned since commencing work with the company.

Further, the applicant challenged that the investigation was flawed, with no proper follow-up investigations, no formal records of interviews, and contained uncorroborated allegations that were largely based on hearsay.

When employees interviewed during the investigation were called to the hearing, each refuted claims that they had been bullied by the applicant.

The applicant also told the Commission that although he was a member of the Comancheros Motorcycle Club, he never rode his bike to work, and only spoke about the club when specifically asked.

It was argued that the applicant be reinstated on the grounds that his dismissal was harsh, unjust and unreasonable.

Determination

In determining the matter, Commissioner JD Stanton noted the applicant suffered a degree of unfairness given he was not able to see or test the complete allegations against him until the Commission proceedings, or cross-examine the employee who first raised the allegations.

The Commissioner found that the investigation failed to properly corroborate or prove the conduct that occurred. He also acknowledged that a petition circulated by the CFMEU suggested that a number of the applicant’s fellow employees would welcome him back to the workplace.

“In my opinion, factors in favour of the applicant’s reinstatement include the alleged conduct was largely not proven to the requisite standard, the applicant’s long and uncontroversial employment record, a view amongst fellow crew members that they would be happy to work alongside him again and the fact that the respondent also regarded him as a good shotfirer,” the Commissioner said.

The Commissioner concluded that the dismissal was harsh, unjust and unreasonable within the meaning of the Fair Work Act and that reinstatement, with employment accumulations adjusted and payment of wages lost, was an appropriate remedy.

Click here to view the full decision.

Implications for employers

Although in this case the employer was confident that a workplace investigation was conducted thoroughly, and substantial evidence was collected to warrant a dismissal due to behaviour that negated the code of conduct, the Commission found otherwise.

This highlights the need for all personnel involved in a workplace investigation to be aware of how to conduct a workplace investigation properly and effectively.

This is an area that AREEA’s workplace consultants specialise in and can advise members on. Contact AREEA for a confidential discussion.

This topic will also be explored in detail at AREEA’s free Industry Briefing in Newcastle on 23 June. Click here to register (other locations and dates also available).