Defecating employee denied termination relief

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Defecating employee denied termination relief

An employee, who was terminated for defecating on two occasions in his immediate work area, has had his unfair dismissal application rejected by the FWC. DP Beaumont ruled that the employee’s behaviour was totally unacceptable and reflected his consistent disrespect towards the Company.

The worker had been employed as a Technician by BHP for over seven years, and at the time of termination, had been working at the Mine in Western Australia. Either party did not dispute that on two separate occasions,  being the 9th and 27th March 2020, he had defecated during a night shift in the vicinity of co-workers.

Consistent accounts were provided during the hearing that when wishing to access bathroom facilities, the established process was for the team member to use an available light vehicle to access the nearest facility. As a general rule, the facilities were spaced at no more than 5-6 minute intervals. There was no suggestion that he had sought the use of a vehicle on either occasion.

When informed of the two incidents, the employee was stood down, provided with show cause letters, and after several meetings, dismissed on the 12th April 2020. In the employer’s view, the behaviour was completely opposite to their expectations, particularly in the pandemic climate, and at total variance with the values espoused by BHP.

During the hearing, the worker’s primary arguments were that BHP had failed to provide him with adequate training to deal with the situation and that defecating is no different to urinating (which it was agreed appeared to be a relatively common occurrence on the site). DP Beaumont roundly rejected both arguments. As he commented,

“I am unpersuaded that the Respondent was obliged to provide, or otherwise should have been provided, such training. I consider it self-explanatory that defecating in an area where people are working is completely unacceptable and demonstrates a lack of respect for both co-workers and the Respondent company”.

With regard to comparing the acts with urination, DP Beaumont commented,

“I am reluctant to explore such an argument because he did not urinate, he defecated – not once, but twice, in the space of a month. Without stating the obvious, the two acts differ…While some may urinate in the active work area all the time, it does not render the conduct acceptable by the Respondent, nor does it, in turn, give rise to acceptance of this as a practice as mandating a similar practice for defecation”.

Consequently, DP Beaumont ruled that the dismissal was not unfair and dismissed the application.

BHP (U2020/5943) 25 September 2020

For queries about union right of entry or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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