Posted on 09 Aug. 2017
Commission awards reinstatement of BHP employee unfairly dismissed although for a valid reason
By Slater and Gordon
Slater and Gordon Lawyers recently represented Mr Andrew Tomlinson, who with the support of his union the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), took BHP Coal Pty Ltd (BHP) to the Fair Work Commission seeking an unfair dismissal remedy.
Mr Tomlinson was employed by BHP at its Peak Downs Mine in Queensland in the Warehouse. At the time of the termination of his employment Mr Tomlinson had been employed by BHP in this capacity for 7 years. One aspect of his role involved the loading and unloading of trucks at the Warehouse using a forklift.
On 12 November 2016, Mr Tomlinson was involved in a safety incident whereby a truck driver making a delivery to the mine, sustained injuries to his left hand when Mr Tomlinson was reloading an empty cage onto the back of the delivery driver’s truck. This incident led BHP to terminate Mr Tomlinson’s employment. The basis of the termination was that Mr Tomlinson intentionally failed to follow procedure.
The Commission found that a valid reason did exist for Mr Tomlinson’s termination, but that the dismissal was procedurally unfair, resulting in Mr Tomlinson being reinstated.
Case in detail
The circumstances of the incident that led to Mr Tomlinson’s termination were that Mr Tomlinson was in control of a forklift and loading a cage onto a truck while the driver of the truck was located on the back of the truck, acting as a spotter. While the driver was guiding the cage onto the truck, his hand became caught between a curtain rod and a steel of the truck as a result of the cage being loaded by Mr Tomlinson making contact with the curtain rod, causing the driver to be hospitalised.
As a result of the safety incident, BHP terminated Mr Tomlinson’s employment with payment in lieu of notice. BHP’s reasons for termination were that Mr Tomlinson failed to follow procedure; specifically he deliberately failed to comply with the Unloading and Loading Standard Work Instructions (U&L SWI). It was submitted that Mr Tomlinson breached the procedure as he loaded the cage while the driver was on the deck of the truck or in the “red zone”.
BHP determined Mr Tomlinson intentionally failed to follow the U&L SWI, partly because he did not properly fill out the required “Hazard Form” before loading the cage. As a result, Mr Tomlinson was said to be in breach of the procedure and the Code of Conduct and Values.
BHP also relied upon a previous warning issued to him for a failure to follow procedures in relation to the reporting of a safety incident.
Finally, BHP relied on what it found was Mr Tomlinson’s failure to show a level of accountability for his actions.
The Commission re-examined the circumstances of the previous warning that Mr Tomlinson had received and Mr Tomlinson’s conduct and concluded, as Mr Tomlinson argued, that the warning, which included the prospect of further disciplinary action including possible termination was excessive and lacked proportionality. The Commission concluded that the warning did not warrant significant weight being attached to it in support of BHP’s later decision to terminate Mr Tomlinson.
The Commission was not satisfied that Mr Tomlinson deliberately or knowingly breached the U&L SWI. This finding was based on a combination of factors including:
- The U&L SWI was only introduced in about August 2016;
- Prior to the introduction of the U&L SWI it was not uncommon for a spotter to remain on the truck in the red zone during loading;
- Prior to the introduction of the U&L SWI the standard work procedure did not make it expressly clear that a truck driver could not be in the deck of a truck during loading;
- Whilst Mr Tomlinson had signed the U&L SWI when it was given to him at a pre-start meeting when it was first introduced, the Commission accepted that the operation of the U&L SWI was never explained in detail to him. The Commission concluded that BHP should have done more to provide instruction to its employees about what was expected of them following the introduction of the new U&L SWI;
- The U&L SWI was amended after Mr Tomlinson’s termination to include a section on loading which was not the case prior to termination, reflecting recommendations from the internal investigation undertaken into the incident.
Having determined that Mr Tomlinson did not intentionally breach the U&L SWI, the Commission had to then decide whether Mr Tomlinson’s action in moving the forklift forward when the driver was spotting from the deck of his truck, within the red zone, was itself a valid reason for dismissal.
Mr Tomlinson accepted that when he moved the forklift forward as he did, he made a wrong and unsafe decision. He described his actions as a ‘momentary lapse of judgement’. Mr Tomlinson also admitted to failing to complete the required Hazard Form in full. These facts alone, the Commission found, pointed to the conclusion that BHP did have a valid reason for termination.
Harsh, Unjust or Unreasonable
Although the Commission found that BHP had a valid reason for termination, the Commission ultimately decided that termination in all the circumstances was nonetheless harsh, unjust and unreasonable.
In reaching this conclusion, the Commission relied on his findings that:
- Mr Tomlinson had not been provided with an opportunity to respond to BHP in relation to the conclusion that he had not shown accountability (which was only raised in the termination letter and was based on Mr Tomlinson’s response to the proposed termination);
- Mr Tomlinson was presented with BHP’s conclusion, based on the internal investigation report (the ICAM report) that Mr Tomlinson had breached policy and procedure, and was asked to provide a response as to why his employment should not be terminated. Mr Tomlinson was never given an opportunity to respond to BHP as to whether he deliberately or intentionally breached procedure;
- Mr Tomlinson was not notified of all the reasons for his termination. At the hearing it became clear that BHP had considered relevant a previous warning given to Mr Tomlinson which he was not given an opportunity to respond to;
- The U&L SWI was ambiguous;
- Training in relation to the U&L SWI was not provided;
- Previous procedure allowed drivers on the deck of the trucks while loading;
- Mr Tomlinson had a good safety record; and
- Mr Tomlinson will not readily find suitable alternative employment.
The Commission ordered that Mr Tomlinson be reinstated, that he be paid the amount that he would have earned had he not been dismissed, discounted by an amount equal to two months’ salary due to the finding of a valid reason for termination and in recognition of the need for deterrence against other breaches.
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