The recent case of Goodall v Mt Arthur Coal Pty Ltd  FWC 4129 (Goodall Case) serves as a reminder for all employers to enforce their staff policies and be clear about their expectations in relation to these policies. The Goodall case also reiterated that the Fair Work Commission (FWC) will take an employee’s work history into consideration and not just look at a particular action they may have taken on one occasion.
In this case, Mr Goodall’s employment was terminated for his misuse of a radio system on the site, as he chatted with other staff members on the radio in the early morning of his shift for a number of hours. During this time, the discussions undertaken by him were controversial and included sexist, racist and offensive comments. Although importantly the FWC noted that these comments were not directed at anyone in particular but were generally controversial comments. It is also contextually important to note that vulgar language is likely to be heard on a construction or mining site.
The employer argued that the radio channel was not meant to be used for chatting with other staff members and provided structured training around using the radio for particular purposes. However, in practice, it appeared as if the radio was used for chatting particularly during late night shifts so that the workers could keep themselves awake and entertained. The enforcing of policies equally amongst staff is important as the consistency of enforcement will be a factor when determining whether the dismissal was harsh, unjust or unreasonable.
The FWC noted that when assessing harshness, they will consider a number of factors. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the Court considered harsh to mean “harsh in its consequences for the personal and economic situation of the employee” and “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.
The FWC held that the dismissal was not unfair or unreasonable in the circumstances but that it was harsh considering a number of different factors in relation to Mr Goodall’s situation. In Mr Goodall’s case, he had not had any other issues about discipline noted during his record of 5 years with the company.
The Seriousness of the Misconduct
The FWC heard evidence in relation to the safety issues of the misuse of the radio and the impact that it would likely have on the employee’s safety and the safety of others. In the circumstances, although not compliant with safety practices, the employee did not place himself or his colleagues in significant danger, and there were other measures in place to ensure his safety was upheld.
Concerning the comments that Mr Goodall made, although inappropriate and in breach of the company’s policies in relation to onsite behaviour, they were not directed at another employee and therefore were “in the mid-range on a scale of seriousness”.
- The economic impact on the employee: The impact of the termination on Mr Goodall was serious in that he was the main financial earner for his family, relocated for the role and was only able to find casual work as new employment.
- Mitigating factors in relation to the employee’s behaviour: Although the comments were inappropriate, they were made over a short period in the early hours of the morning when Mr Goodall was likely very fatigued.
- The employee’s behaviour during the investigation and case: The employee was apologetic in relation to his behaviour and honest about the mistakes he made. He also approached the process with a contrite attitude.
- The FWC’s finding: Upon assessing a number of factors, the FWC held that the employee would be reinstated to his role with the employer. Although he was not paid loss of pay during the period of termination due to his actions that led to the termination.
Steps for Your Business
There are a number of important takeaways when looking at this case and implementing policies in your workplace. Firstly, it is important to have clearly written and enforced staff policies to ensure that expectations are met across the board. When enforcing your company policies, it is also critical to ensure that you are enforcing these policies consistently in relation to all of your workers.
When looking at terminating your employee for a breach of your policies (other than where it is serious misconduct for example stealing or violent behaviour in the workplace), you should consider their previous work history and whether they have been subject to any disciplinary procedures in the past. This is also an important reminder to keep track of any breaches of policies you have concerns about as an employer so that you can reference these if required later on. Termination may not be appropriate in all circumstances.
You should meet all of your procedural fairness requirements of termination as well as look at the bigger picture as to whether the termination is harsh. A clear termination procedure is also important to have in place so that there are no concerns that procedural fairness was not followed if the matter is reviewed.
Having in place a number of staff policies is an important step in managing staff. Equally as important, however, is enforcing and consistently applying these staff policies. An employment lawyer can help draft and put in place policies unique to your business and industry. They can also help you develop complaints policies, disciplinary policies and other procedures to help protect your business. If you have concerns about a specific employee’s behaviour and whether terminating them may result in a successful unfair dismissal claim, get in touch with our employment team who can help guide you through the process.