Mitigating factors not heard: dismissal unfair


Mitigating factors not heard: dismissal unfair

A plant operator who was not given an opportunity to put forward mitigating factors was unfairly dismissed, the FWC has ruled.


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A sacked plant operator who was not given an opportunity to put forward mitigating factors has won his unfair dismissal case.


Peter Brain was employed by Nyrstar from March 1980 until his dismissal in May 2017. 
At the time of his dismissal he worked as a plant operator. During his 37-year service Mr Brain only received two notifications in relation to his employment, the most recent was 14 years prior to his dismissal. 

On 21 April 2017 Mr Brain removed a Live Testing Statement and a Person in Control Tag from the control panel of a zinc dust elevator and started the equipment. At the time, maintenance was being carried out on the equipment. This led to a safety breach as it potentially put at risk a co-worker who was working on the elevator.

Mr Brain failed to follow procedure: equipment should not be turned on unless the equipment is signed off by the person in control which in this case was a Mr Moore. 

Following this incident, Mr Brain was dismissed. He then made an application to the Fair Work Commission for unfair dismissal.

The law 

If a person is dismissed, and that dismissal is harsh, unjust or unreasonable, then it is unfair (s385 of the Fair Work Act). There are several criteria for setting out whether a dismissal is harsh, unjust or unreasonable and these include whether or not there was a valid reason, whether the person was notified of the reason and whether the person being fired was given an opportunity to respond. 


Mr Brain argued that there was no valid reason for his dismissal. He argued that even if it was valid, it was nonetheless harsh, unreasonable, or unjust especially in light of his long service, the absence of recent prior notifications and his lack of potential for future employment. 

The employer argued there was a valid reason for dismissal because the seriousness of the breach outweighed any other factors. 


The commission considered the factors under s387 of the Act to determine if the dismissal was harsh, unreasonable, or unjust.

Was the decision valid?

The commission found that the decision was valid. It stated: “The applicant took it upon himself to ignore tags on the equipment… failed to enquire whether the work had in fact finished and to energise the equipment when he had no authority to do so. His conduct created a potentially dangerous situation, especially for the person working on the conveyor belts.”

Was he notified of reason for dismissal?

The commission found that Mr Brain was aware and understood the reason why he was stood down, namely removing tags from the equipment.

Was he given an opportunity to respond? 

The commission found Mr Brain was provided with sufficient information in order to respond. He responded in a manner which indicated he did not know that he had removed the tags and he conceded his error in starting the equipment.

The commission stated Mr Brain “said all he could say about what happened.”

Were there other relevant matters?

The FWC said Mr Brain was not given a chance to put forward mitigating factors. 

Deputy president Barclay found this to be a particular flaw and stated: “I do not regard the applicant’s conduct as so serious as to justify termination without specifically hearing from the applicant about sanction.” 

If given the opportunity, Mr Brain could have put forward the fact he had worked for the company for 37 years, he had no formal warnings for safety issues, he would find it impossible to find alternative employment in Hobart, and that he had significant financial obligations. 


The commission ruled the dismissal was harsh as Mr Brain was not given a chance to put forward mitigating factors. The commission ordered he be reinstated. 

Peter Brain v Nyrstar Hobart Pty Ltd (8 February 2018) 

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