An unfair dismissal matter involving an underground safety incident provides yet another example of why AMMA is advocating for reforms to the Fair Work Act, writes Brisbane-based Principal Workplace Relations Consultant, Katie Jacklin (pictured).
In a disappointing outcome for employers seeking to enforce a no-tolerance approach to serious safety breaches, the Fair Work Commission (FWC) has reinstated an undermanager at a New South Wales coal mine who was dismissed over an incident which resulted in a colleague injuring his leg.
Despite finding there was a valid reason for dismissal and there was no procedural unfairness, Deputy President Saunders used the FWC’s broad powers under s 387(h) of the Fair Work Act 2009 to consider a number of relevant matters which meant the undermanager’s dismissal was harsh.
The undermanager was employed at Centennial’s Myuna mine and was undertaking inspections underground when he sought assistance from two colleagues to replace damaged dust bags hanging above a conveyer belt.
He advised his colleagues he would turn off the conveyor belt and in order to do so had to walk some distance.
As the undermanager was walking to the belt switch, the conveyor belt stopped, and he assumed his colleagues had pulled the lanyard to stop it. He then stood next to the switch to ensure the belt remained off, however the belt started up again before stopping a few seconds later.
The undermanager could not understand how the conveyor belt had restarted. When he returned to his colleagues he learned one of them was standing on the conveyor belt when it started moving and injured his leg which resulted in him being off work for some months.
During the investigation, the undermanager maintained that he did not know his colleague was going to step onto the conveyor belt and further admitted that he “stuffed up” and “got it wrong”.
Centennial informed the undermanager that the investigation had found that he was one of three statutory officials who engaged in a process that was dangerous and in contravention of the mine’s safety policies.
When asked to provide reasons why his employment should not be terminated, the undermanager provided a myriad of reasons which included his long and unblemished employment record, the fact there was no specific procedure for the task and that he was sorry about what had occurred.
He also explained that he was having some significant personal difficulties which included caring for his parents, his separation from a long-term partner, some recent health issues, and his susceptibility to COVID-19. He also pointed out that he had agreed to cancel some pre-planned leave just before the incident at his manager’s request which demonstrated his commitment to his employer.
When asked by Centennial whether any of the extraneous matters he raised had influenced his decision making on the day of the incident, the undermanager replied no.
After considering the undermanager’s response to the allegations and findings of the investigation, Centennial dismissed him.
Reason for dismissal valid but “harsh”
DP Saunders accepted Centennial’s submissions that the undermanager was the most senior official on site at the time of the incident who held a number of statutory competencies regarding safety, was familiar with mine’s safety policies and recognised the hazards involved in the task.
DP Saunders found his failure to isolate the belt, comply with relevant policies and his obligations as an undermanager were serious matters which gave Centennial a valid reason to dismiss him.
However, DP Saunders rejected the employer’s contention that it had a further valid reason for dismissal due to the undermanager’s dishonesty and lack of candour during the investigation. The DP considered him to be a credible witness and the only person present at the time of the incident who gave evidence in proceedings.
DP Saunders then used the broad powers under s 387(h) of the FW Act to consider whether there were other relevant matters which made the dismissal harsh, unjust, or unreasonable.
Firstly, DP Saunders considered the undermanager’s exemplary 40 years of service at the mine. He found the length and quality of his employment record with Centennial weighed in favour of finding that the dismissal was harsh.
The DP then considered the gravity of the undermanager’s misconduct. Despite acknowledging the undermanager’s failure to comply with safety processes, DP Saunders said the fact he adopted a lesser control measure, he did not instruct his colleague to stand on the conveyor belt and the low prospect of serious injury or death also meant that dismissal in these circumstances was harsh.
DP Saunders considered the personal and financial consequences of the dismissal to be severe given his age (61 years old), health concerns, caring responsibilities, and recent relationship breakdown.
Lastly, the DP considered the undermanager to be genuinely contrite and had accepted his failure to comply with his duties and obligations on the day of the incident. DP Saunders said the undermanager “did not seek to make excuses and rely on prior practice or other matters that were plainly on his mind at the time such as his recent health concerns and relationship breakdown”.
In considering the other relevant matters, the DP found the dismissal was “harsh in its consequences for the personal and economic situation of the employee” and “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
The undermanager also contended that he was treated differently to his colleague who stood on the conveyor belt. He pointed to the fact his colleague received a final written warning, was suspended for two weeks, and demoted for his part in the incident.
While DP Saunders acknowledged the undermanager was the more senior person involved in the incident, he found that an employer acting reasonably would not dismiss one of the employees and retain the other, and that Centennial’s differential treatment meant the dismissal was harsh.
‘Sufficient’ trust and confidence supports reinstatement
DP Saunders rejected Centennial’s argument that reinstatement, continuity of service and back-pay would not be appropriate given the undermanager’s conduct. Centennial argued that the undermanager’s flagrant disregard towards his role, his conduct during the investigation, his failure to take responsibility for the incident and his dishonesty irreparably destroyed its’ trust and confidence in him.
The undermanager’s demeanour throughout proceedings along with his long and exemplary employment record supported DP Saunders’ view that there was a sufficient level of trust and confidence to enable the employment relationship to be viable and productive.
DP Saunders was “satisfied that to the extent that the undermanager has lost the trust and confidence of some of his colleagues, he will be able to regain it”.
DP Saunders ordered Centennial to reinstate the undermanager and maintain continuity of employment. In reinforcing the message that the undermanager’s conduct was inappropriate and not to be repeated, DP Saunders made an order for back-pay which excluded three months’ worth of his $222,000 annual salary.
Implications for employers
Since the introduction of the FW Act and its broad considerations for unfair dismissal (s 387(h)), it has become increasingly commonplace for members of the FWC to substitute their judgement of what is ‘harsh, unjust or unreasonable’ for that of the employer, even in cases where a valid reason for termination has been found.
This trend is a significant concern as it effectively sees members of the tribunal substitute their own decisions for those of experienced and competent management personnel, such as those with a statutory responsibility to ensure a safe workplace and/or enforce a ‘no-tolerance’ culture regarding compliance with WHS policies.
While DP Saunders stated in his decision that “the Commission will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer”, the outcome appears to have done just that.
It is AMMA’s strong position that there should be no question of reinstatement where an employer is found to have a valid reason for termination, especially when related to a safety incident, and the employee is afforded fairness and transparency throughout the process.
It is particularly unhelpful to workplace safety and a culture of trust and accountability, for the FWC to reinstate an employee due to personal factors often not directly relevant to the employment relationship or the incident at hand.
AMMA also recognises the cost to employers in defending these matters is very high compared to the minor cost to the applicant, and is also advocating for a faster and lower cost dispute settling process.
For information and advice on how to manage terminations, conduct independent investigations and be effectively represented in the Fair Work Commission, speak to AMMA’s workplace relations consultants by contacting your local AMMA office.