The Fair Work Commission has upheld Gold Field’s dismissal of a mineworker who failed to comply with a direction to return to work following a heated exchange in the workplace.
This decision highlights that employees also have obligations in the employment relationship and a refusal to work or communicate with ones’ employer can result in a breach of trust and confidence within the relationship.
On 26 December 2019, a mineworker at the Agnew gold mine was working his last nightshift for the swing, transporting loads from underground to the surface. During one of his trips to the surface, he received a call over the radio from who he believed to be a colleague asking how many loads had been transported during the shift.
The mineworker responded by saying he did not know or care how many loads had been done and that it was his last shift. The mineworker soon realised it was in fact the supervisor who had asked the question which was being directed to another truck operator in the area.
Based on the evidence, the supervisor was frustrated by the mineworker’s interruption and again repeated the question as the mineworker continued to swear and yell over the radio. Following the exchange, the mineworker drove to the surface, parked his truck, and did not clean his truck before finishing his shift.
The mineworker alleged he was distressed and asked to leave site early to return home for his R&R. He was due to return to site on 30 January 2020 following a period of annual leave.
When the mineworker did not return for his rostered shift on 30 January, Gold Fields made multiple attempts to contact him for consecutive days. Gold Fields became concerned about the employee’s welfare after he failed to respond to any attempts to contact him.
On 3 February, some four days after he was expected back on site and after being told the employer would contact his next of kin, Gold Fields sent the employee a show cause letter.
The letter referred to the employee’s failure to attend his rostered shift, comply with the company’s leave policy, respond to attempts to contact him, return to work as directed by his supervisor and participate in discussions about the events on 26 December.
The letter also noted that an investigation had been conducted into the incident which occurred in December. The investigation found the employee displayed inappropriate and unprofessional behaviour, refused to finish his rostered shift, left his vehicle in an unacceptable state and, in doing so, breached the company values throughout the process.
After numerous attempts to get the employee to site to conduct a meeting, a show cause meeting was held over the phone during which the employee appeared distracted and disengaged.
The employee chose not to respond to the questions put forward in the meeting and said he would be getting legal advice before hanging up the phone.
On 9 February, the employee was sent a letter terminating his employment.
Employee disregards his employment obligations
The FWC found that whilst the employee was entitled to be upset about the verbal exchange over the radio, his reaction to the situation was out of proportion with what had occurred.
The employee swearing at the supervisor, stopping work before his shift had finished and leaving his truck in an unacceptable condition was not acceptable behaviour.
Further the FWC found the “employee’s opinion that it was a minor matter that after five weeks of annual leave, to not attend site for work as rostered and make no effort to contact his employer before his rostered shift to tell them he would not be attending and ignore their attempts to communicate with him and finally only contact them a number of days after he was due to return demonstrated a total disregard to his obligations as an employee.”
The FWC considered the employee’s repeatedly refusal to come to site to discuss the issues as directed by his employer was unreasonable in all of the circumstances. The FWC found based on the evidence provided, the worker’s conduct was a valid reason for termination and the employer’s procedure in effecting the termination was entirely fair.
The application was dismissed.
Implication for employers
Resources and energy employers welcome the FWC upholding Gold Fields’ decision to dismiss an employee who showed no regard for their obligations as an employee.
In recent times, the FWC has reminded employers that the usual provisions of the FW Act including unfair dismissal and general protections continue to operate despite some additional measures being temporarily included as a result of JobKeeper.
This decision is a timely reminder that employees also have obligations to uphold in regards to the employment relationship. Employers expect a standard of behaviour and conduct in the workplace and the ability for an employer to take action to uphold those standards is critically important.
While the circumstances of this matter arose prior to COVID, employers might find themselves dealing with issues of non-attendance as a result of the ongoing health crisis and restrictions still in effect in some workplaces.
Employees who are unable to attend work due to a public health direction or are awaiting test results must still notify their employer in accordance with their enterprise agreement or company policies. Employers should remind employees of their obligations to report any non-attendance and review reporting processes to ensure they are appropriate.
Unfair dismissal and adverse action reforms remain a priority for resources and energy employers. AMMA has continued advocating for employers to be supported in terminating employees found to have breached safety and/or community standards of conduct.
AMMA recognises that the cost to employers in defending these types of matters is very high compared to the minor cost to the applicant and continues to advocate the need for a faster and lower cost dispute settling process.
Termination can be a difficult and controversial road to navigate for resource employers, especially where rights and responsibilities are unclear. For information and advice on how to manage discipline within the workplace, speak to AMMA’s workplace relations consultants by contacting your local AMMA office.