Was the dismissal of Mr Goodall unfair?

How does it affect you?

Because the Fair Work Commission (the Commission) has a broad discretion in determining the fairness of a dismissal, employers can never be certain of a favourable outcome in these cases, regardless of the circumstances.

Employers should always factor in the risk of an adverse outcome and reinstatement when assessing the risks of defending an unfair dismissal claim. That doesn’t mean paying ‘go away’ money. It’s about being mindful of the inherent unpredictability of these cases.

Background

Mr Goodall was employed by Mt Arthur Coal Pty Ltd as a heavy-duty vehicle operator.

Due to the dangers associated with the operation of heavy-duty vehicles at the mine site, operators were required to maintain regular contact with one another regarding their movements. This contact was to be made via channel one of the two-way radio system installed in each vehicle. This was set out in Mt Arthur Coal’s Surface Transport Management Plan (the Plan) and emphasised in training.

During an all-night shift in November 2015, Mr Goodall spent an extended period of time tuned to channel six in conversation with other operators, during which he made a number of lewd and Islamophobic comments. Mt Arthur Coal considered that this behaviour was not only inappropriate, but also made it more difficult to contact Mr Goodall if necessary, which created a safety risk.

Following an investigation into the conduct, Mt Arthur Coal determined that Mr Goodall had breached its Code of Business Conduct (the Code) and the Plan and terminated his employment.

Was the dismissal unfair?

The Commission decided that there was a valid reason for Mr Goodall’s termination of employment, namely his breach of the Code and the Plan, and the matter was properly investigated. However, the Commission noted that there were a number of other relevant matters that warranted consideration, including that:

• for the five years that Mr Goodall had been employed by Mt Arthur Coal, he had maintained an exemplary employment record;
• despite giving rise to a risk to his and others’ safety, the Commission considered that Mr Goodall’s conduct was at the lower end of the scale of impropriety, particularly given the nature of the workplace and the fact that the comments were made in an effort to be entertaining;
• the personal and economic consequences of the dismissal for Mr Goodall were severe;
• the inappropriate comments were made at a time when Mr Goodall’s judgment was likely to be impaired by fatigue;
• there was an accepted practice of using channel six for non-work communications; and
• Mr Goodall expressed remorse regarding his actions and accepted that they were inappropriate.

Based on these considerations, the Commission found that the dismissal was harsh in its consequences and was disproportionate to the seriousness of Mr Goodall’s conduct. This was despite the Commission’s acknowledgement that Mr Goodall’s conduct was ‘inappropriate’ and posed a ‘real and not trivial’ risk to safety.

The Commission ordered that Mr Goodall be reinstated without back-pay. We understand that the decision has been appealed.

Productivity Commission review

It’s a shame that the Productivity Commission review of the Workplace Relations Framework did not consider whether a different approach should be taken in these matters, to permit employers to make reasonable decisions about dismissal without fear of having to reinstate the employee.

We submitted to the Productivity Commission that the law should be recast so that instead of the Fair Work Commission determining whether the dismissal was ‘harsh, unjust or unreasonable’, the test is whether the employer’s decision was, in all the circumstances, so unreasonable that no reasonable employer could have made it. In our opinion, that approach would have the advantage of focusing attention on whether the dismissal was warranted in the circumstances of a particular case.

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About Simon Dewberry:

Simon is a workplace relations expert and Partner at Allens in Melbourne. His experience relates to:

• grievance procedures, disciplinary processes and termination of employment;
• drafting of and advising on employment contracts, policies and procedures;
• protection of confidential information and enforcement of non-competition covenants;
• discrimination and harassment;
• enterprise bargaining, industrial dispute management and award compliance; and
• industrial relations and workplace health and safety advice, strategy and management for projects and operations.

Simon has acted in significant litigation and he appears as an advocate in the courts and tribunals.

Simon’s clients include BP, ExxonMobil, Rio Tinto, Newcrest, Hastings Deering, Australia Post, CSL, GlaxoSmithKline, KPMG, iSelect and the Victorian Government.