“Miner” Misconduct Does Not Justify Dismissal

Ms Catherine Hocroft (the Applicant) has won an action brought before the Fair Work Commission (FWC) regarding her employment with Verifact Pty Ltd (the Respondent). The relevant events took place over several months between January and March 2018.

The facts

The Applicant was employed as a paramedic by the Respondent which in turn held a contract with BHP. The applicant was employed as a paramedic whose job was to perform drug and alcohol testing on BHP’s employees on a mine site.

Complaints by BHP were made to the Respondent about the Applicant’s conduct. The complaints related to the Applicant’s demeanour when performing drug and alcohol testing. Commissioner Cambridge of the FWC stated that the complaints suggested the Applicant performed these tests in an, “officious and unnecessarily insensitive manner”. BHP also made the Respondent aware that as a result, the Applicant’s access to the mine would be revoked. The Respondent did not discuss these complaints with the Applicant before her access to the mine was revoked.

In February 2018 the Applicant wrote to her employer via email regarding several employment issues. These issues were fairly typical queries regarding her job description and leave entitlements. However, she has also copied a representative of BHP into the email chain. As a result, BHP told her that they did not wish to be involved in any further emails, and her employer told her to refrain from including clients in future matters of this nature. They asserted that what she had done was a breach of contract because it painted the company in a bad light, and that she ought not to do it again.

An email was sent to the Applicant on February 26 telling her to attend a meeting on March 1.  It was on this day that the Applicant was terminated, having been given a letter of termination which outlined two reasons for her dismissal:

• The allegations of her conduct when performing the drug and alcohol testing.
• The private correspondence regarding her entitlements which she copied BHP into, thus, according to her employer, placed the business in a state of disrepute.

What did the Commission say?

The Commission had to consider whether or not there was a valid reason for dismissal, as well as asking whether or not the dismissal itself was harsh, unjust, or unreasonable. Commissioner Cambridge acknowledged that the Applicant’s conduct regarding the drug testing may well have constituted grounds for dismissal, but in this case, it could not be used to justify the termination. He found that there was no evidence that the Respondent had done anything to substantiate these claims and had simply accepted these allegations as fact without any evidence of serious or thorough investigation. On this basis he rejected these allegations as a valid reason for dismissal.

The second reason for dismissal was the Applicant’s decision to include a BHP representative in an email chain between her and the Employer. The Respondent claimed this painted the company in an unnecessarily bad light, brought the company into disrepute in the eyes of their client, and was a breach of the Applicant’s employment contract. However, the Commission also rejected this finding. Commissioner Cambridge explained:

“It was clear from the employer’s response to the applicant’s email of 15 December, that the employer treated the applicant’s actions as conduct that unless it was continued would not establish reason for dismissal.”

Commissioner Cambridge then went onto say that the real reason for dismissal was the Applicant’s loss of access to the mine, which was simply a result of a third party exercising their rights as stipulated in the contract between Verifact and BHP. The contractual right was, in the Commissioner’s opinion, unfortunately inconvenient for the Respondent, but ultimately lawful. The dismissal was not for a valid reason and therefore the dismissal was unfair.

The Commission also considered other factors, such as the chance to respond to allegations, the presence of dedicated HR staff and the size of the business. Upon examination none of these factors favoured the Respondent. The Commissioner found that the Applicant had no opportunity to respond and was not made aware that her conduct was of such a nature as to warrant dismissal. Commissioner Cambridge stated that:

“…the absence of such specialists could not justify the adoption of a procedure whereby the decision to dismiss the applicant was taken without providing any opportunity to hear from the applicant.”

What can you do in this case?

If your business is contracted by another party and similar issues arise about the party’s dissatisfaction with one of your employees which may limit their ability to carry out work, seek professional advice. As you’ve just read, the issues can be complex. A fair dismissal in one instance may be unfair in the next even with the most minute of changes to the relevant facts. At Employer Services we specialise in professional and comprehensive advice relating to a vast range of employment and industrial matters, and can help your business to ensure all procedures are conducted professionally, efficiently, and within the law.