Published 1 November 2017
In a recent case, Johnson v BHP Billiton Olympic Dam Corporation Pty  FWC 4097, the Fair Work Commission found an employee’s dismissal was harsh despite misconduct. However, this did not justify reinstatement.
Mr Johnson commenced employment with BHP Billiton Olympic Dam Corporation Pty (BHPB) in 2001 and was promoted to Process Specialist in approximately 2007. During his service at BHPB, he had only been given one formal warning, although he had received other forms of less serious disciplinary action. In 2014, he was disciplined for failing to wear the prescribed gloves and for using inappropriate language in a work email. In 2016, he was said to have “failed to adequately undertake a task”, and in 2015 he had not undertaken a start-up procedure as required.
In March 2017, there was an explosion at BHPB’s smelter building. The evacuation alarm sounded, however Mr Johnson did not evacuate. Pursuant to instructions from his supervisor, Mr Johnson inspected a site from behind a column. This site was referred to as “BTH5” and had been impacted by the explosion causing further explosions. Mr Johnson walked closer to BTH5 until he was directly in front of it. He observed the site both with his safety visor on and after removing it.
BHPB considered that Mr Johnson’s actions, both in not evacuating at the sound of the evacuation alarm and by inspecting BTH5 at an unsafe distance, constituted serious misconduct. After considering Mr Johnson’s past safety breaches, BHPB decided to terminate his employment.
Mr Johnson argued he had obeyed instructions from his supervisor, and acted in a way similarly to how he did in an incident in 2013 for which he was praised. He sought reinstatement.
The Fair Work Commission found that failing to evacuate was not a valid reason for dismissal because BHPB’s policies did “not provide for absolute obligation to immediately evacuate” and the prospect of completing work in a safe manner was “expressly contemplated under the procedure”. However, inspecting BTH5 in the way conducted by Mr Johnson did constitute misconduct because the “inspection was not operationally necessary” and it could not be reliably ascertained whether another explosion may occur.
The dismissal was found by the Commission to be harsh because the disciplinary action was disproportionate to the misconduct, especially after considering that Mr Johnson may not be able to find a similar job near his home. However, reinstatement was not appropriate given the loss of trust and confidence that BHPB had in Mr Johnson’s ability to work in a safe and policy compliant manner.
BHPB was ordered to pay $47,676 in compensation. This amount encompassed the projected remuneration lost by Mr Johnson, with a 60% deduction for misconduct and consideration that another relevant incident may have occurred. A deduction was also made for the 5 weeks’ pay that Mr Johnson received in lieu of notice.
Key issues for employers
This case demonstrates that a dismissal may be harsh, unjust or unreasonable even if there is a valid reason for dismissal. Employers should carefully consider what has occurred, as well as any instances of previous misconduct, and then determine whether dismissal is a proportionate and appropriate response to the misconduct. Even if a dismissal is found to be unfair, employers can still successfully resist reinstatement if they can show that there is a rational basis for their loss of trust and confidence in the employee.