Neglect Proper Expertise at Your Peril

Mr Shannon Boal v BHP Coal Pty Ltd [2014] FWC 9331 (22 December 2014)

Mr Luke Faulkner v BHP Coal Pty Ltd [2014] FWC 9330 (22 December 2014)

The mightiest of Australian employers has been embarrassed by its failure to properly use its vast human resource and industrial relations expertise in disciplining two wayward truck drivers – and lost badly in an unfair dismissal case in the Fair Work Commission.

Both drivers had used their telephones while at work, in the cabs of their trucks, in a coal mining operation, contrary to policy. The policy was unremarkable given the nature of the business and the recognised dangers of distraction from phones in vehicles.

In fact the policy had been recently revised and made more onerous on employees, and the FWC acknowledged the company’s absolute right to do all that.

Where FWC was critical, and where it cost the employer, was that it allowed the local mine managers to formulate and execute the disciplinary actions. FWC highlighted that the mine managers were unsurprisingly focussed on operational matters and not sufficiently trained in, or sensitive to, the nuances that ought to be part of a disciplinary process.

Of particular concern to FWC was the manner in which the employees were dealt in the investigation and the casual manner in which the policy’s ‘zero tolerance’ status had been established. FWC was also critical of the apparent disregard to the long service of one of the drivers and the lack of consistent treatment of the other when compared to colleagues.

The issues raised by FWC are second-nature to experienced HR/IR experts, and it is unsurprising that FWC made much of the failure of the company to engage its significant expertise in this area.

The employees did not get off scot free – they got reinstated, but no back-pay for the period off work. This was small comfort to the employer whose processes and procedures were found wanting. Employers with access to expertise will be penalised by FWC if they choose to ignore the resource when dealing with employment matters.