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Sacked: defecating in work area 'inexcusable'

The mine worker was validly dismissed, ruled the FWC.
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Sacked: defecating in work area

Sacked: defecating in work area 'inexcusable'

13 October 2020

By Mike Toten

A mine worker who twice defecated into an active drill hole on-site was validly dismissed for it. This was despite the second incident being considered unavoidable due to the sudden onset of severe diarrhoea, and comments by the Fair Work Commission that the employer’s correspondence relating to dismissal and presentation of its case to the FWC showed a significant lack of literacy skills.



'Urgent and explosive diarrhoea'

The two incidents happened about three weeks apart. The first time, the employee used a drill hole that was later loaded with explosives. He claimed that the need to defecate came on suddenly, there was no toilet nearby and he covered up the “evidence” immediately afterwards and primed the hole. The second time, he used the collar of an active drill hole. He claimed he had a sudden onset of “urgent and explosive diarrhoea” that was very painful at the time, and again there was no toilet available. He moved away from a female co-worker towards a dark area, but warned a nearby male co-worker what was about to happen.

The employer dismissed him for misconduct, also taking into account evidence that he had previously verbally disparaged the employer and its development plan in front of trainees, and had also falsely claimed that he reported the incidents to a supervisor. The employer claimed that accepted worksite practice was for employees to use a work vehicle to reach the nearest toilet if an urgent need arose, and the latter were placed about six minutes apart. If unable to do that, they needed to move off the work site well away from co-workers and onto vacant land.

The employee’s defence was as follows:
  • It was common practice for employees to urinate onsite without using a toilet.
  • The lack of nearby toilets meant that he had no other option.
  • The employer had not trained employees in what to do if an “emergency” arose.
  • Other employees had performed similar acts and not been dismissed.


Decision

In upholding the dismissal, the FWC found the employee’s conduct to be “inexcusable”, and for the first incident avoidable (he could have moved off the work pattern onto nearby vacant land, or waited a few minutes for work colleagues to return from a break). The second incident appeared to be unavoidable, however it would have been preferable to have moved off the work site to a covered area about 40 metres away.

The FWC also drew the distinction that faeces, unlike urine, contain bacteria and give off a foul smell. It was also obvious that he had a lack of respect for the employer and had been placed on a Performance Improvement Plan (PIP) earlier that year due to “attitude issues”. The PIP followed two previous warnings and was used as an alternative to disciplinary action.

The FWC found that the employee had failed to follow “standard practices” that applied to his situation. Dismissal was for a valid reason and implemented with procedural fairness.

However, it also found that the evidence presented by the supervisor and the dismissal letter he had authored demonstrated a lack of literacy skills. The commission said the employer should have provided the supervisor with more support to enable him to perform the roles of disciplining employees and to present the employer’s case in the FWC.

The bottom line: The FWC said that it was “self-explanatory” that employees should not defecate in an area where other employees are working, and also very disrespectful. It would also be regarded as a breach of most organisations’ codes of conduct.

In this case, the employer had set up a procedure to follow for employees who were “caught short”. Also, this particular employee had a past history of disrespectful conduct, and some of his evidence lacked credibility.


Read the judgment

Lear v BHP WAIO Pty Ltd [2020] FWC 4949, 25 September 2020

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