The mine site is a forum where iconic Australian “banter” can be seen at its strongest, creating a myriad of situations where the “line” between a joke, discrimination and bullying can be blurred.
One such situation arose in February this year. A truck driver at Mt Arthur Coal mine was lucky to have his job reinstated following almost 2 hours of radio use during his 12.5 hour night shift. The duration of the use was only one problem, what he actually said was the other. By way of example, the comments included references to:
- a colleague who he thought would “like a good teabagging”;
- Muslims being “f-cked up” because of “years of in-breeding”;
- another colleague reading a book about “50 ways to eat c-ck”; and
- another colleague’s “Jatz crackers” falling out at the gym.
See the decision in Goodall v Mt Arthur Coal Pty Ltd  FWC 4129 (1 July 2016) for further detail.
The employee said that the comments were made in banter and helped to keep him alert and awake during the hardest part of night shift – the early morning. But on any version of the facts it is clear that the employee’s comments were discriminatory. It is also clear that they were in breach of a number of mine site policies. When viewed in isolation, any reasonable person would consider dismissal to be a “reasonable” and “just” response.
So why did the Fair Work Commission (FWC) find that dismissing him was harsh? The answer – the length of his employment, his unblemished employment record, his remorse and the significant financial impact it would have on his family. In other words, it came down to it being “harsh” in the circumstances.
Mt Arthur conceded that profanities were commonly used in the mine, thus one day of swearing and “crude, lewd and sexist comments” over the radio was considered to be at the lower end of seriousness. Given the mitigating factors, the FWC thought it unlikely that such behaviour would be repeated.
The FWC did decline to order that the employee be paid for the five months of employment he had lost, stating that the employee needed to bear “a substantial degree of responsibility for the financial consequences of his dismissal”. The absence of an order for lost pay underlined the FWC’s view regarding the conduct and (hopefully) created a strong incentive not to repeat it.
In the current economy it is likely that mitigating factors will continue to weigh heavily on the issue of a dismissal being “harsh”. These days it is difficult to think of a circumstance where the loss of a job wouldn’t result in financial hardship for a mining family. The result in this case would have probably been different if the employee lacked an unblemished record and remorse.
For more information about this Update please contact Mike Baldwin Senior Counsel on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.