Explosive Urge to Go Leads to Miner’s Sacking

A mine worker who was dismissed for defecating in an active work area on two occasions has lost his unfair dismissal claim after the Fair Work Commission (FWC) decided his conduct amounted to a valid reason for dismissal.

What happened

The applicant in the matter had worked for BHP WAIO Pty Ltd for seven years before his dismissal.  He was working at the Yandi Mine in Western Australia when, on 9 March 2020, he defecated down an active drill hole.  On 27 March 2020, he defecated on the collar of an active drill hole.  In his evidence to the FWC, the applicant said the first incident involved a sudden urge to defecate that hit him ‘like a samboy chip.’  The second incident was said by the applicant to have involved the onset of ‘urgent and explosive diarrhoea.’  The applicant secured other employment within weeks of his dismissal and sought compensation in his claim, rather than reinstatement.

The FWC heard that bathroom facilities on the mine site were generally spaced at no more than 5-6 minute intervals.  A staff member needing to use the bathroom would use an available light vehicle to access the nearest facilities.  The company’s evidence was that employees do not defecate on the blast pattern and were to instead utilise the designated bathroom facilities.  If an employee was unable to utilise those facilities, the employee would move away from the blast pattern onto surrounding land.

What the FWC found

The applicant told the FWC that during the 9 March incident, the urge to defecate came upon him quite suddenly such that he had no option to act as he did.  But the FWC found he should have at least moved off the work pattern and gone at a windrow or a patch of vacant land which would have been far better than going in an area where the crew were still working and down a hole which was due to be blasted.  While the applicant claimed that he had not been trained on what he should do in the circumstances, the FWC found it was self-explanatory that defecating in an area where people were working is ‘completely unacceptable and demonstrates a lack of respect for both co-workers and the Respondent company.’ 

As for the 27 March episode, the FWC found the circumstances were somewhat different because the applicant was overcome by sudden pain and the onset of extreme diarrhoea.  While it would have been preferable for the applicant to have gone in an area approximately 40 metres aware that was covered with windrows, the FWC accepted the defecation in the area it occurred was unavoidable.

The FWC found that the applicant had a ‘palpable lack of respect for the respondent’ and heard that the applicant had been subject to some earlier warnings and a PIP was in place over attitudinal issues.  The applicant’s conduct was a breach of his obligation to act with respect and integrity under the employer’s policies.  When the applicant was interviewed by the respondent about his conduct, he was said to have been dismissive about its concerns and maintained an attitude that there was nothing problematic in his defecting on a work pattern.  The FWC found his attitude toward the respondent was ‘poor and unacceptable.’  It was decided that there was a valid reason for dismissal and the applicant had been afforded procedural fairness by the respondent in dismissing him.  His unfair dismissal claim was dismissed.

Lear v BHP WAIO Pty Ltd [2020] FWC 4949