FWC orders reinstatement for former veteran with PTSD

FWC orders reinstatement for former veteran with PTSD

Despite finding that there was a valid reason for dismissal, the Fair Work Commission has ordered the reinstatement of a mine worker after accepting that his aggression towards a co-worker was partly due to being provoked, as well as being linked to a diagnosis of PTSD arising from his army service in Somalia.

The worker ‘PW’ had been employed by Coal & Allied Mining Services Pty Ltd (Coal & Allied) for twelve years until his dismissal on 7 September 2022. At the time of his dismissal, he was employed as a drill operator but had previously operated dump trucks and other equipment at the mine.

He had an unblemished disciplinary record, having never been given a warning or been subject to any disciplinary action.

The events which led to his dismissal took place on 13 August 2022 and involved two interactions between himself and another worker, initially in the car park and later, inside a pre-start room. The connection between the two workers was that they operated the same drill on successive shifts.

The decision of Deputy President Tony Saunders involves a thorough examination of conflicting evidence given by the dismissed worker, his colleague, and other witnesses.

The Deputy President’s summary of the incidents can be summarised as follows.

The co-worker initially made a comment in the carpark about PW’s lack of housekeeping of their shared drill and suggested he should return to operating dump trucks, which was provocative in nature. PW then came into close contact with the co-worker’s stomach as he approached him. PW said words to the effect of, “What are you going to do about it?” and the co-worker replied, “Let’s take this inside to the supervisors”.

Both workers were very upset in the pre-start room.

Crucially, at one point, PW became very agitated, pointed at the co-worker with an open hand and said, “If this bloke says to go back to the trucks one more time, I will cut his throat”.

As the Deputy President initially noted, “I am satisfied that Coal and Allied had a valid reason to terminate Mr (W)’s employment on the basis of his conduct at the mine on 13 August 2022. Mr (W)’s conduct on that day in acting in an aggressive manner and making a threat to cut the throat of a co-worker if he said something was inappropriate … Coal & Allied had a sound, defensible and well-founded reason to terminate Mr (W)’s employment..”.

In respect of mitigation, the Deputy President accepted that PW had been contrite and remorseful and apologised during the investigation process for his actions. He also accepted uncontested evidence that PW suffers from PTSD as a result of his active service in Somalia resulting in him suffering from depression, anxiety and anger management issues. As the Deputy President noted, “The fact that Mr (W) suffers from PTSD does not excuse his conduct on 13 August 2022, but it does provide relevant context and helps to explain why Mr (W) conducted himself in this way”.

Further, the Deputy President noted that PW had been unable to secure employment and would be unlikely to obtain alternative employment in the mining industry in light of the reason for his dismissal.

Despite finding overall that the dismissal was unfair and ordering reinstatement, the Deputy President did not order repayment of his lost earnings since the dismissal to reinforce the contribution his actions made to the dismissal and to ensure that there would be no reoccurrence of his behaviour.

PW v Coal & Allied Mining Services Pty Limited (U2022/9468) 13 January 2023

For queries about employee incidents, conducting investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 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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