Unfair Dismissal Min

Unfair Dismissals

Recent BHP Truck Driver Unfair Dismissal case raises the question – how can you protect your business?

A recent decision by the Fair Work Commission that a dismissal was unfair because it was too harsh forces us to think about how we can protect our businesses from claims that would appear to the ordinary person to be bordering on the ridiculous.

The Fair Work Commission made a recent ruling that a BHP Billiton subsidiary acted too harshly in sacking a truck driver for making sexist and bigoted comments at work over a company radio, where he could be heard by 100 workers, including saying Muslims have had “1400 years of bloody inbreeding, so they gotta be f—d up”.

The truck driver made both anti-Muslim and homophobic comments, and agreed with a co-worker who said the government should hire professional hit men to “cull dirtbag Australians” and “people who don’t deserve to be in this country”.

The company conducted an eight-week investigation and sacked him for inappropriate behaviour, violating company policy and not upholding company’s values.

The dismissed employee defended his actions as “banter” to combat fatigue during a long shift. He also said he was not aware of any Muslims employed at the mine and would not have discussed his views on the open radio channel if he was.

Commissioner Tony Saunders said the worker’s behavioural record with the company was not considered when he was disciplined and found BHP’s reaction ‘too harsh’, the Herald Sun reported.

BHP appealed the decision and argued that the anti-Muslim comments incited racism and could not be treated lightly.

The Fair Work Commission ruled that whilst the remarks incited derogatory views of people of a particular race or religion, they were only in the “mid-range of seriousness” because they were not directed directly at a Muslim co-worker, so the decision was upheld to reinstate the worker.

So, where does that leave business owners? It would seem that a worker’s behaviour has to be quite extreme for a dismissal decision to stand based on this case. Here at HR Gurus, we would always recommend that as a minimum a company has clear outlined expectations of behaviour in their policies, procedures and employment agreements. Too often we see Small Business employers fall into the trap of terminating employees without the correct policies in place as well as the correct process.

Before you decide to sack a worker, make sure you have followed a proper process so that you are less likely to end up defending an unfair dismissal claim. Having values, policies and a proper process for investigating misconduct will all help.

If you are unsure, we are here to help. Call HR gurus on 1300 959 560 where our qualified and experienced team can help you through any tricky situation you may have.

This blog was written resident HR Guru Jessy Warn.

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