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Reinstated, but $55K deducted from pay for misconduct

Breach of safety procedures resulted in a co-worker being seriously injured.
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Reinstated, but $55K deducted from pay for misconduct

Reinstated, but $55K deducted from pay for misconduct

3 November 2020

By Mike Toten

The Fair Work Commission has reinstated a mine employee with 40 years’ service, but deducted three months’ pay from his compensation because of his misconduct.

The employee's breach of safety procedures resulted in a co-worker being seriously injured.



Facts of case

The incident that led to dismissal of the employee, a mine undermanager, was that a co-worker was required to replace dust bat bags, and a conveyor belt he was standing on to reach them suddenly started moving. The resulting injury to his leg put him off full work duties for several months.

The dismissed employee was standing near the conveyor belt’s power switch, and was required to liaise with the co-worker about replacing the bags and also ensure that the belt was switched off and isolated during the replacement process. When the belt started moving, it took both employees by surprise. The employee was walking towards the switch at the time and was unaware that the co-worker had stepped off the ladder he was using and onto the conveyor belt. Nor, he claimed, did he expect the co-worker would step onto the belt to replace the bags. The two of them had discussed the job before it commenced.

It was disputed between the parties whether the employee had fully completed a documented checking process before the job went ahead, or whether he had altered the records to make it look like he did a full check. The FWC concluded that he had not done the latter.

The employee opted for the more expedient action of turning the switch off, but a safer practice would have been to isolate the conveyor belt as well. The control to do so was located further away.

The employer dismissed him for a breach of its Site Energy Control Standard, and because he failed to provide a satisfactory explanation of his failure to properly supervise the situation.

However, evidence showed that notes prepared by the executive general manager (who had authorised the dismissal) during his meeting with the employee indicated that he thought the employee was lying and did not treat his explanation seriously. On the other hand, the mine manager (the employee’s immediate supervisor) had also said “my hands are tied” when dismissing him, which suggested he did not believe dismissal was justified. The mine manager appeared to believe that a warning and two-week suspension would have been more appropriate, the same sanction the injured employee had received.

The employer claimed it had a valid reason for dismissal, citing breach of a safety procedure (by failing to isolate the conveyor belt), dishonesty when asked to explain what happened, and failure to carry out the responsibilities of his role.


Decision

The FWC agreed that the breach of the safety procedure provided a valid reason for dismissal, although it did not find the employee had been dishonest. It concluded that dismissal was too harsh in the circumstances, although not unjust or unreasonable. The employee had an otherwise-
unblemished 40-year record, had shown genuine contrition, and his dismissal had severe economic and personal repercussions for him. He did not instruct the co-worker to stand on the conveyor belt, nor did he know he was about to do so. Finally, the possibility of fatal or permanent injury was very low.

It was not fair to dismiss one employee and retain the other (albeit with sanctions), even though the dismissed employee was more senior and had greater responsibility. The FWC commented that the degree of misconduct by both employees was similar.

However, he needed to take some responsibility for his loss of income. The FWC estimated the latter at more than $100,000, and ordered the employer to pay some, but not all of it. It deducted three months’ pay from the amount and ordered reinstatement of the employee. Given his contrition, admission of errors and his past record, the FWC believed that the relationship of trust between the parties would remain strong enough for reinstatement to be feasible.

The bottom line: This is an example of a case in which there was a valid reason for dismissal (a clear breach of safety procedures) but dismissal was found to be too harsh a sanction in the circumstances.

The factors that swayed the FWC towards reinstating the employee were:
  • his past record and long employment service
  • differential treatment when a co-worker also committed misconduct but kept his job
  • the harsher-than-normal impact of dismissal on him
  • his contrition, which indicated that similar misconduct would not recur
  • the low potential for serious injury to have occurred

Another lesson for employers from this case is the need to clearly set out procedures for safe work when tasks have a potential for injury to occur.

In this case, there was no specified procedure for replacing dust bags that employees were required to follow. The employee chose a method that was risky, but not actually prohibited.


Read the judgment

Dyson v Centennial Myuna Pty Ltd [2020] FWC 5486, 14 October 2020

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