The power of ‘mitigating factors’ in rendering a dismissal ‘harsh’

The case of Goodall v Mt Arthur Coal Pty Ltd [2016] FWC 4129 serves as a clear reminder for all employers to enforce their workplace policies consistently.

In this case, a mining truck operator won reinstatement after his dismissal from BHP Billiton’s Hunter Valley coal mine (‘Company’) for:

  1. excessive use of the mine’s radio channel in breach of workplace policies; and
  2. several derogatory comments over a two-way radio which were heard by over 100 employees: described as “chat and banter”.

This ‘chat and banter’ included comments that a colleague was reading a book “on 50 ways to eat c**k”, that a colleague would “probably like a good tea-bagging” and that Muslims “had 1400 years of bloody inbreeding, so they gotta be f­­­­­­­—– up”.

The mineworker argued he had engaged in ‘chat and banter’ over a radio system “as a means of dealing with fatigue” towards the end of a 12.5-hour night shift and the channel he used was commonly referred to as the ‘chat channel’.

Decision

Although the Fair Work Commission (Commission) found that the ‘substantial breaches’ of the mine’s policies provided a ‘sound, defensible and well-founded reason for dismissal’, the Commission nevertheless concluded that the dismissal had been harsh for the following reasons:

  • The comments were not directed towards anyone;
  • “Profanities are commonly used” in the mining industry;
  • Most of the comments were “in the mid-range on a scale of seriousness” and made in the early hours of the morning when the employee was likely very fatigued;
  • In practice, the radio channel was regularly used for chatting, particularly during late night shifts;
  • The employee had not had any other disciplinary issues during his five years’ employment with the company;
  • The employee was deeply remorseful for his actions; and
  • The employee was the main financial earner for his family and had relocated for the role.

Upon assessing these factors, the Commission ordered that the employee be reinstated, although the Commission declined to order payment for loss of pay during the period of termination. This decision was later upheld on appeal.

This case demonstrates that employers should look at the ‘bigger picture’ before terminating an employee. In the current legal context, mitigating factors weigh heavily on the issue of a dismissal being “harsh”. Employers should consider an employee’s work history, any contrition on behalf of the employee, and any financial consequences of the dismissal.

Employers must also ensure they have clear company policies and these policies are enforced consistently and equally among employees.

Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about workplace policies or terminating an employee.