BHP dismissal harsh – lack of procedural fairness

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BHP dismissal harsh – lack of procedural fairness

The Fair Work Commission has ruled BHP's dismissal of a mine employee was harsh due to procedural failings.

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The Fair Work Commission has ruled the dismissal of a mine worker was harsh, despite his failure to acknowledge unsafe conduct. 

Failure to work safely at height


A diesel fitter at a mine was performing maintenance work on a dozer in March 2016. When a maintenance coordinator witnessed the fitter descending from the cabin, he suggested he had been working from a height without any fall restraints.

The fitter said he had accessed the cabin the usual way, same as other workers. He was stood down for an investigation.

Two days later, the maintenance coordinator added another safety breach to his complaint about the fitter, claiming he had worked in the cabin while the left door was open, through which he could have fallen more than 2m. The fitter, however, said he was certain the door had been closed.

The employer’s investigation found that the fitter had failed to identify the hazards and comply with the standard operating procedure for working at height, and that, by failing to use fall protection, he had exposed himself to an unacceptable level of risk. He was issued with a ‘show cause’ letter on 13 April 2016.

His response to the letter was that he did not believe his actions had breached any safety procedures; he had used three points of contact when accessing and egressing the dozer; he believed additional hazards would have been created through the use of platforms or fall restraints; and he would be willing to undertake relevant training. No meeting was held to discuss his response. He simply was dismissed on May 2016.

The fitter applied to the Fair Work Commission for relief from unfair dismissal according to s394 of the Fair Work Act 2009.

He believed he had acted according to the training provided to him and in a manner consistent with other employees. He also believed he had been unfairly targeted for dismissal as a result of an incident in December 2015, when he had thrown a rattle gun from a high wall out of frustration because it did not work properly. For that act, he had been issued with a Step 3 warning.

Weighing up the evidence


Several other fitters, the maintenance coordinator and the maintenance manager gave evidence. Some of the other fitters agreed that the fitter had accessed the dozer cabin in the usual way and said they had not been aware that barriers were available or been trained in their use. There was also support for the fitter’s claim that he could not have worked with the cabin door open because an alarm would have sounded.

The maintenance manager explained that the decision to terminate the fitter’s employment had been taken because the fitter had not acknowledged any wrongdoing. Since he had not shown awareness of potential safety risks, the manager could not be confident he could perform his work safely. 

Having studied the standard work instruction for accessing the dozer cabin, Commissioner Hunt concluded that the method the fitter used had been inherently unsafe, even though it had only taken him to a height of between 1.55 and 1.65 m.

Despite his evidence, it was also unlikely that he had maintained three points of contact before stepping up onto the dozer. Consequently, the commissioner found that the fitter had not breached the employer’s working at heights policy, so that had not been a valid reason for his dismissal.

Cavalier approach to workplace safety


Regarding the fitter having worked in the cabin while the left door was open, creating a risk of falling more than 2m, this had been confirmed by witnesses and photographic evidence. This satisfied the commissioner that the fitter had shown a cavalier approach to workplace safety and had breached the employer’s ‘life saving’ rules. This breach had been a valid reason for his dismissal.

Commissioner Hunt did not accept that the fitter had been singled out and unfairly targeted in any way.

There was no evidence other employees had worked in similarly unsafe ways, or that the managers would have condoned such conduct. At the same time, the commissioner also commented that the employer "had done very little to warn employees or discipline others on the front line involved in the incident" and had also "done little about taking a firm position on the use of barriers".

Commissioner Hunt said: "There was simply too much vagueness as to what are acceptable methods of accessing the dozer, use of barriers and working at height risks to find the dismissal to be fair".

Despite the fact the cabin door had been left open at some stage, the commissioner found the dismissal had been harsh. It had also been unreasonable because of a lack of procedural fairness. The decision to dismiss the fitter had been influenced by allegations that he had been rude and dismissive to another staff member although this allegation had never been put to him.

Reinstatement not appropriate


Although the fitter sought reinstatement, Commissioner Hunt decided that it would not be appropriate since the employer had reasonable grounds for doubting his ability to work safely. 

In assessing compensation, the commissioner took into account the fitter’s earnings when dismissed and the wages he had earned in subsequent employment. It then deducted 30 per cent for misconduct. The employer was ordered to pay the fitter $25,448 plus superannuation in compensation.

C v BHP Coal Pty Ltd [2017] FWC 154 (21 February 2017)
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