Final warning issued to union delegate ruled unreasonable
The Fair Work Commission has agreed that an employer’s decision to impose a final written warning on a union delegate was inappropriate and excessive in the circumstances, as well as being critical of aspects of the investigation process undertaken by the employer concerning the allegations.
The CFMMEU lodged a dispute under section 739 of the Fair Work Act 2009 on behalf of its member RR, relating to the imposition of a disciplinary sanction issued to him, being a final written warning.
The mine worker has been employed by BHP Coal Pty Ltd (BHP Coal) at the Goonyella Riverside Mine near Moranbah in the Bowen Basin since 2001, as well as being a long-term member and official of the CFMMEU.
The union contested BHP’s finding that two of eight allegations against RR had been substantiated, and in any case, the penalty issued in February 2001, being a final written warning, was disproportionate to the alleged offences. Ultimately, Deputy President Ingrid Asbury agreed.
The substantiated allegations, allegations ‘2’ and ‘8’ against RR can be summarised as:
“Approximately 12 months prior”, he had been disrespectful to a supervisor during a pre-start meeting and had failed to follow a lawful and reasonable direction given to him to stop using his mobile phone;
“He used offensive language towards a co-worker, saying to him, “You cannot break a SOP (Safe Operating Procedure) … if you are a weak c**t about that, someone is going to get seriously hurt”.
In evidence before the Deputy President, RR could not recall the circumstances surrounding the first allegation, but accepted the second allegation stating it was typical language used in the male-dominated workplace and warranted as he was reinforcing critical safety messages of BHP Coal.
Deputy President Asbury was critical of BHP Coal’s approach towards the worker in regard to investigating the mobile phone incident. The company’s failure to provide him with particulars of the incident, despite his repeated requests, was noted by her, “I am of the view that the failure to provide details to Mr R to assist him in responding allegation 2 was unreasonable. It is clear from the statements in evidence in these proceedings that further information was available which could have been provided”.
The Deputy President also noted that concerns raised by RR about a past complaint he had made about the supervisor were ignored during the investigation, as well as failure to obtain satisfactory corroboration from witnesses about the alleged episode. As she noted, “I am not satisfied that it was reasonable for Mr G (the Mine Superintendent) to conclude that allegation 2 was substantiated”.
The Deputy President refuted RR’s claim that the language he acknowledged using in the second allegation towards a co-worker was acceptable and commonplace in the mine. As she noted, “At the risk of stating the obvious, the term ‘c**t’ is vulgar slang used to describe a woman’s genitals. The use of the term ‘c**t’ in any workplace is objectively offensive and is inexcusable, regardless of context or the nature of the workplace”.
Critically; however, the Deputy President distinguished RR’s comment noting, “The comment was not directed at Mr CR in the sense that RR did not call him a ‘c**t’. Instead, RR said that if Mr CR was a ‘weak c**t’ and did not follow an SOP or SWI, someone would be hurt”. The Deputy President highlighted the support the co-worker gave RR during the hearing and that there was no evidence that anyone else heard the comment or was offended by it.
In summary, the Deputy President noted, “On balance, allegation 2 was not established to the necessary standard, if at all, and allegation 8 did not justify the response of a Level 3 Final Warning”.
For queries about discipline, appropriate language, misconduct, issuing warnings, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law at 1300 WAL LAW, 0417 622 178 or via email to firstname.lastname@example.org
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.