Error of fact caused the Full Bench of the FWC to relist an unfair dismissal matter

Published 11 September 2016

On appeal the Full Bench of the Fair Work Commission have overturned an unfair dismissal decision. At first instance Commission Booth held, amongst other reasons, that the dismissal was unfair due to the employer not genuinely keeping an open mind when putting the allegations of misconduct to the employee. The Full Bench found this was an error of fact and has re-listed the matter to re-determine the matter.

Mr Schmidt, an operator employee of BHP Coal Pty Ltd, was on duty at the Saraji mine when he was informed by other employees that the skid fuel tank which he moved using a dozer had a leakage. He did not secure the site after being notified of this and finding there was damage and leaking.

Mr Schmidt, who had 13 years of service with BHP, alleged that he tried to contact his supervisor to inform them of the damage and leakage. However, contact was not made about the incident. He tried to use the two way and his mobile to make contact but was unable to do so as he was at the bottom of a pit. When he came out of the pit he text the number he thought was his supervisor, notifying of the leakage, but this was an old number and so no notification was received. When Mr Schmidt did finally talk to his supervisor they talked about other work related issues and the leakage was not raised.

Prior to the leakage incident Mr Schmidt had been issued with a final warning relating to lateness and failure to notify of this. Mr Schmidt disputed the validity of this and a prior warning.

BHP launched an investigation into this incident and considered it a serious safety issue and breach of policy. Obligations to notify a supervisor, secure a site and undertake various safety checks whilst working were highlighted as being breached. Several meetings were held with Mr Schmidt, during which he was given the opportunity to respond to the allegations of misconduct.

BHP asked Mr Schmidt to show cause why his employment should not be terminated for this serious misconduct and he submitted a response to this. Mr Schmidt admitted that it was likely he caused the leakage. He further explained why he did not secure the site and that the text message was to confirm the issue with his supervisor. Mr Schmidt expressed his willingness to undertake re-training.

Commission Booth, who heard the matter at first instance, found that the termination of Mr Schmidt for the breaches had been predetermined. She further stated that there was no real opportunity for Mr Schmidt to change BHP’s mind about the matter as a result of this.  As a result of this, and other issues not looked at on appeal, it was held by Commissioner Booth that the termination of Mr Schmitd’s employment was harsh and unjust.

The Full Bench on appeal found that this finding was a significant error of fact. They highlighted that Mr Fox, who provided evidence for BHP on the investigation process, had never had it put to him in cross-examination that the determination of the outcome was predetermined. Instead, the Full Bench noted that Mr Fox provided evidence of the process that was gone through to ensure procedural fairness, including considering Mr Schmidt’ response.

The Full Bench stated:

‘The Employer of course needs to retain an open mind and have regard to responses made by the employee. But applied in a common sense way, if serious misconduct is evidence form the investigation, an employer cannot be expected to have no leanings or inclinations as to the likely sanction against the employee.’

Although there were other factors which led Commission Booth, at first instance, to find that the termination was harsh and unjust, which were raised in BHP’s appeal, the Full Bench did not traverse these matters. Instead, the Full Bench decided to relist the matter for further submissions and a further determination of the matter.

Read the full decision here

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