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Managing people

Mine worker failed to report incident, but dismissal was unfair

The Fair Work Commission (FWC) has found that his sacking was harsh and unreasonable despite a worker’s failure to report an incident. Check out the FWC’s reasoning.

25 April 2024

The worker had been employed since 2006 with Illawarra Coal Holdings Pty Ltd at the Appin Colliery – an underground coal mine in New South Wales – and West Cliff Coal Preparation Plant.

On 23 March 2023, he was driving a Personnel Transport Vehicle – known as an SMV – involved in an incident.

Following an investigation, the worker was dismissed, with the employer alleging four instances of misconduct arising out of the incident:

  • he’d driven the SMV through a shared pedestrian and vehicle zone and continued to accelerate, travelling at more than 10kph
  • he’d lost control of the SMV as it rounded a corner, making it slide in an uncontrolled manner for a short period
  • afterwards, he’d failed to adequately answer a Deputy’s questions about whether and how he was driving the SMV and
  • he’d failed to report the incident.

The worker applied to the Fair Work Commission, alleging that he’d been unfairly dismissed.

In the Commission

The worker denied the allegations. He submitted that momentary loss of traction while operating an SMV is not uncommon in a wet underground road environment. Though the rear tyres briefly lost traction, he did not lose control of the SMV but took appropriate measures to correct its course. He believed he was driving at a low speed, safe for the corner and the parking area he was turning into (there was no working speedometer in the vehicle).

He said that when he climbed out of the SMV, he was approached by a statutory deputy who was clearly angry and asked him aggressively who’d been driving it. The worker had made a joking reply alluding to a cartoon ghost, in an attempt to defuse the situation. The statutory deputy had left abruptly without asking further questions.

In the worker’s view, there was no incident to report. At no time were pedestrians or the passengers in the vehicle at risk of injury; the SMV had maintained a safe distance from the wall and other vehicles and parked safely. He did not believe that losing traction on an SMV with the rear momentarily stepping out would constitute a reportable incident – it had been ‘blown out of proportion’.

The employer’s position was based primarily on evidence from the statutory deputy and another witness claiming the worker had been driving too fast, lost control of the SMV and slid in an uncontrolled manner, endangering passengers and pedestrians – he should have driven more slowly according to the conditions, as the road was visibly wet and slippery. Termination of the worker’s employment was the appropriate disciplinary response to his failure to report the incident, which was a breach of the company’s policies and procedures.

The worker had an extensive disciplinary history. He’d been counselled about numerous instances of inappropriate, disruptive or disrespectful behaviour and failure to comply with standard procedures, issued written warnings and a ‘Statement of Behavioural Expectations’ letter, and twice placed on a six-month performance improvement plan.

Notwithstanding his disciplinary history, however, there was no dispute that he was a good worker with a strong work ethic, well respected by his colleagues and an asset to the mine.

Commissioner Phillip Ryan found that the worker had failed to comply with the company’s policies and procedures and that failure was a valid reason for his dismissal.

However, the Commissioner found that there were significant inconsistencies between the evidence of the statutory deputy and other witnesses, as well as between CCTV footage and the evidence of another witness for the employer. The central elements of the misconduct alleged by the company had not been made out.

‘The only allegation which I have made a positive finding in relation to is the Applicant’s failure to report the incident and that it was at the lower end of the scale,’ he said.

He noted that a mitigating factor in the matter was that a statutory deputy witnessed and reported the incident on 23 March 2023.

‘It is a very different scenario from an incident that was not witnessed by anyone (other than those directly involved) and not reported. Furthermore, the letter of termination states that it was the Applicant’s responsibility to report the matter to [the Deputy], the very person who witnessed the incident, or another Company official.’

The Commissioner also took into account the effect of the dismissal upon the worker and his family, which weighed in favour of assessing the dismissal as harsh.

The employer had followed correct procedures in effecting the dismissal – the worker was notified of the reason for his dismissal in the show cause letter, was given opportunities to respond, and was not unreasonably refused a support person.

While the worker’s disciplinary history weighed marginally in the employer’s favour, after considering all of the relevant matters, Commissioner Ryan assessed ‘on very fine balance’ that the termination of the worker’s employment was both harsh and unreasonable. He had been unfairly dismissed.

What it means for employers

When investigating allegations of serious misconduct, employers need to take proper account of the full range of evidence rather than relying on the claims of a few individuals.

Read the decision

Joe Sleiman v Illawarra Coal Holdings Pty Ltd T/A South32 [2024] FWC 976 (15 April 2024)

Gaby Grammeno


Gaby has extensive experience as a researcher, writer, editor and project manager on a wide variety of information products, including books, guides, reports and submissions.

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