A mine worker sacked for serious misconduct over a site accident has won his unfair dismissal claim.
Despite the Fair Work Commission finding the fitter engaged in serious misconduct, it also found the dismissal unreasonable.
As it turns out, another worker at the same location had received differential treatment to that of the fitter.
Mine worker sacked for serious misconduct
The fitter worked at the Yallourn Open Cut Mine in the Latrobe Valley Mine in Victoria for two and a half years.
In August 2020, his supervisor directed him to top up the fresh water tank on a mobile site van.
He used a light vehicle with a water tank to carry out the job.
When the worker arrived at the job site, he said he stopped the vehicle, applied the handbrake and got out.
After finding the fill point for fresh water on the site van, he turned around to see the vehicle rolling away from where he had stopped it.
It rolled down an incline for 20 metres before crashing into a stationary truck.
No one was injured in the incident as most workers had been in the crib hut on a lunch break.
The fitter inspected both vehicles and found no damage, so he drove his back to the work site and completed his job.
He later drove back to the workshop where he told a supervisor about the incident.
Mine management immediately commenced an investigation interviewing the worker that same day.
It subsequently issued him with a Show Cause Notice accusing him of failing to meet reasonable safety expectations.
It also noted two previous safety breaches involving the worker.
The first involved him reversing a vehicle into an electrical cubicle causing damage to the busbars within the cabinet.
The second happened when the worker had been operating a water spray for which he received a verbal warning.
The mine eventually terminated the worker’s employment on the 18th of September 2020.
Fair Work Commission
The fitter filed an unfair dismissal claim in the Fair Work Commission.
Commissioner Michelle Bissett found the worker engaged in serious misconduct, and the mine therefore had a valid reason for dismissal.
However, she also found that another worker at the same location had received differential treatment to that of the fitter.
As a result, Commission Bissett found the dismissal unreasonable, and therefore unfair.
The fitter sought reinstatement, however the mine argued against this.
It submitted that as the fitter had contravened safety policies on more than one occasion, he demonstrated a careless disregard for known safety requirements.
Therefore, it concluded that it no longer had confidence in the fitter’s ability to perform work at the mine site safely.
The Commission agreed, finding reinstatement inappropriate.
Compensation is yet to be determined.
Industrial advocate Miles Heffernan from Dismissals ‘R’ Us says employers must be consistent when enforcing disciplinary action.
“Health and safety rules have to apply to everybody, equally,” he said.
“The minute you start treating one worker differently to another, you are asking for trouble.
“Consistency is the key to management action, otherwise you will find yourself defending a discrimination or unfair dismissal claim.”
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