Failure to provide procedural fairness results in significant payment and reinstatement

Failure to provide procedural fairness results in significant payment and reinstatement.png

Failure to provide procedural fairness results in significant payment and reinstatement

Despite ruling that an employer had a valid reason for terminating a long-term worker who breached a safety procedure, the Fair Work Commission ordered the employee’s reinstatement and granted him 26 weeks in lost wages. The decision was due to ongoing failures by the employer to provide procedural fairness during the investigation and subsequent termination.

The employee had worked for Whitehaven Coal Mining Ltd (the employer) at the Tarrawong Coal Open Cut Coal Mine in New South Wales’s Gunneda Coal basin region for nine and a half years. It was acknowledged that he had an unblemished disciplinary history during his employment.

The employee was terminated for serious misconduct due to breaching a site safety rule. At approximately 1.30 pm on 22 September 2020, he was driving a utility on the site that came within 50 metres of a water cart. Under the mine’s Safehaven Rules, once he entered this proximity, he was required to make positive contact with the other vehicle, which he failed to do so. He acknowledged his failure to do so, both during the investigation and at the hearing.

Following several meetings, he was terminated less than a week later, on 28 September 2020.

Despite Commissioner Bernie Riordan noting in his decision that the safety breach offered the employer a valid reason to dismiss the employee, he ruled that the employee had not been afforded procedural fairness and ordered his reinstatement and payment for lost wages. As he commented, “The actions of the Respondent effectively turned a very strong case with a valid reason to one with little or no procedural fairness”.

Amongst numerous failings of the employer’s processes, Commissioner Riordan noted:

  • The employee was issued a `Show Cause’ letter but only given 24 hours’ notice to respond;

  • The employer refused the employee’s request to extend his response time to the Show Cause by four days (they only granted a 24-hour extension);

  • The employer rejected a written request by the employee’s union representative to reschedule a Show Cause meeting to allow him to represent the employee, despite knowing that the request was due to him appearing in another Commission matter;

  • The employer’s Human Resource officer contacted the employee and encouraged him to resign prior to termination;

  • In the Show Cause letter, the employer stated, “To be clear, the Company will move to terminate your employment based upon the information currently before us…should you fail to respond to this request”.  Commissioner Riordan believed this meant the decision had been pre-determined, irrespective of any response from the employee;

  • The employer had issued final warnings to several other employees who had breached the same site rules, but chose termination in this situation; and

  • The decision to terminate the employee was conveyed via email without a meeting being held with the employee.

Commissioner Riordan rejected the employer’s argument that the employee could not be reinstated, noting his extreme contrition and remorse towards the safety incident. He also ordered the payment of lost wages, amounting to 26 weeks.

N M v Whitehaven Coal Mining Ltd [2021] FWC 838 (24 March 2021)

For queries about misconduct investigations, procedural fairness, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to

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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