Dismissal not marred by procedural flaws

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Dismissal not marred by procedural flaws

The Fair Work Commission has rejected an electrician's argument that his dismissal was marred by procedural flaws.

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The Fair Work Commission has rejected an electrician's argument that his dismissal was marred by procedural flaws.

Andrew Hill, who crashed a vehicle in a forbidden area while on his last warning, claimed he was not given a fair opportunity to respond to this allegation.

Background


Mr Hill was employed by Peabody Energy Australia from 2012-2016 as a high voltage electrician. His employment was terminated for crashing a vehicle in a “no-go zone”.

Mr Hill’s conduct was called in to question on two prior occasions, for which he received official warnings.

In 2014 Mr Hill allegedly fell asleep in his vehicle while on the job. In the second incident, Mr Hill read a magazine and rolled a cigarette during a pre-start meeting.

Prior to his dismissal, Mr Hill was sent a letter by Peabody Energy informing him of his pending termination. He was afforded the opportunity to respond to the allegations that he drove in a “no go zone” and crashed his vehicle within the zone due to reckless driving.

Mr Hill responded by noting the area was not actually a designated “no go zone.” He also stated he had previously made a complaint about the drivability of the vehicle he was occupying. 

While acknowledging Mr Hill’s response and amending its allegation about the “no go zone”, Peabody subsequently sent him a termination of employment letter.

The letter stated: “Although the allegation does not substantiate a breach of cardinal rule 3, Peabody considers that entering a restricted area without authorisation to be a very serious breach of site safety procedures.”

Mr Hill claims he was not given an opportunity to further respond to his letter of termination, which he considered unfair.

Was the dismissal harsh?


In Section 385 of the Fair Work Act (2009), one of the criteria for an unfair dismissal is whether the person was unreasonably or harshly dismissed. Section 387(c) states a dismissal is harsh if a person is not given an opportunity to respond to allegations about their conduct.

According to Mr Hill, his employment was terminated without taking into consideration his arguments about the validity of the “no-go zone” and the state of the vehicle.

Peabody stated that due to the amendment of its original allegation, a response from Mr Hill was not necessary.  

Findings


The commissioner stated although Mr Hill was not given the opportunity for a second response, he didn’t really require one.

“These issues arising from the applicant’s ability to properly respond and to consider the reasons being provided for his termination have been taken into account, and do not provide fatal procedural flaws that alter the substantive basis justifying the dismissal. The conduct of the applicant was substantiated as a valid reason for dismissal.”

Andrew Hill v Peabody Energy Australia PCI Mine Management Pty Ltd (U2016/11153)[2017] FWC 1952

This article was written by Chloe Hava.

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