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Employment and Migration Blog

Employee Unfair Dismissal Ruled as Harsh by the Fair Work Commission

Posted by Laure Kenworthy on 29 Jan 2021

In Dyson v Centennial Myuna Pty Ltd (2020) the Fair Work Commission (‘the Commission’) reinstated a senior Undermanager after he was terminated for breaches of its workplace health and safety policy. Despite finding that the mining company had an entirely valid reason for the dismissal, the Commission determined that the decision was a harsh one.

The Facts

In April 2020, Mr Dyson attended the Myuna mine to undertake inspections of the site and monitor staff performing work. After an inspection revealed that there were six damaged dust bags, Mr McCarty under Mr Dyson’s supervision, climbed a ladder alongside a conveyor belt to replace two of the suspended bags. Whilst Mr Dyson was at the belt switch to ensure it was off, the employee stepped onto the belt and strained his leg. As a result, the employee was unable to undertake his usual duties for an extended period of time.

After hearing about the incident, Centennial’s management team met and decided to suspend Mr Dyson for two weeks given the severity of his safety breaches. Centennial then issued Mr Dyson with a termination letter in response to which Mr Dyson lodged an unfair dismissal claim.

The Issues

  1. Was there a valid reason for Mr Dyson’s dismissal?

At the heart of an unfair dismissal claim, the Commission needs to determine whether there was a valid reason for the termination which relates to the employee’s capacity or conduct.

As an Undermanager, Mr Dyson was responsible for applying a plant and equipment isolation procedure to the conveyor belt to minimise any health and safety risks it could pose to any Centennial workers. By failing to conduct a ‘SLAM’ (stop, look, assess and manage) and Job Safety Analysis (JSA) with respect to the conveyor, Mr Dyson failed to fulfil both the required safety protocol and his supervisory obligation in the presence of Mr McCarty.

Accordingly, the Commission found that this conduct constituted a valid reason for Mr Dyson’s dismissal.

  1. Was the dismissal harsh, unjust or unreasonable in the circumstances?

Having a valid reason for termination is but one element in unfair dismissal proceedings.

In this particular case, the Commission also considered other factors, which included Mr Dyson’s:

  • length of service with Centennial Myung Pty Ltd (approximately 40 years);
  • exemplary employment record;
  • failure to comply with Centennial’s policies and procedures, including his own contractual and statutory obligations;
  • failure to identify the potential hazard and isolate it, and the serious risk of injury if such steps were not taken;
  • age (being 61 years of age);
  • personal circumstances outside of work which included melanoma scares and operations, his parents’ falling ill and requiring his care, and his own long-term relationship breakdown;
  • inability to find another job; and,
  • acceptance of his failures to comply with safety policy and procedure as well as his contractual obligations and job duties.

The Commission also considered the action Centennial took against Mr McCarty for his participation in the unsafe practice of changing the dust bags. Centennial issued Mr McCarty with a final written warning, suspended him without pay for two weeks and was demoted.

Taking the above into account, the Commission determined that the decision to dismiss Mr Dyson was not unjust or unreasonable but harsh. An order was made for Mr Dyson to be reinstated to his position as Undermanager and for Centennial to pay Mr Dyson a portion of the remuneration lost by him because of his dismissal.

Key Lessons

Employers must ensure that the dismissal of an employee is procedurally fair and equitable. It is particularly important to consider all facts existing at the time dismissal is questioned to avoid a potentially costly outcome for the employer. By conducting the dismissal process properly, an employer may not only avoid monetary cost and the imposition of a decision to reinstate an employee, practically speaking they may also avoid the tension that can be created in workplace relationships where reinstatement is the outcome ordered.

If you have any questions about this article, please do not hesitate to reach out to a member of Coleman Greig’s Employment Law Team, who would be more than happy to assist you today.

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