DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kevin Boyle
v
BHP Coal Pty Ltd
(U2019/2902)

COMMISSIONER HUNT

BRISBANE, 4 MARCH 2020

Application for an unfair dismissal remedy – Applicant made comment of vulgar and graphic nature while on mine site that may offend others – improved culture in modern workplaces towards offensive conduct of sexual nature – workplace humour – two reasons provided by Respondent as reasons for dismissal not valid reasons - procedural flaws and prejudicial application of Respondent’s investigation procedure into misconduct – alternative procedures available to Respondent for Applicant’s misconduct - Applicant made improper accusations against women in the workplace while downplaying conduct – Applicant’s dismissal not unfair in all the circumstances – application dismissed

[1] Mr Kevin Boyle has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with BHP Coal Pty Ltd (BHP or the Respondent) on or about 5 March 2019 and that his dismissal was unfair as it was harsh, unjust and unreasonable.

[2] No jurisdictional objections were made to Mr Boyle’s application. I note that while Mr Boyle’s annual earnings in his employment with BHP exceeded the high income threshold applicable at the date of his dismissal, he was employed pursuant to the BMA Enterprise Agreement 2018 (the Agreement) and was therefore an agreement-covered employee.

[3] I am satisfied that Mr Boyle is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Boyle’s application was made within the 21-day statutory time limit. The only matter that I must determine is whether Mr Boyle’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Background

[4] Whilst travelling in a vehicle with three other people on 2 November 2018, Mr Boyle said words to the effect, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally.”

[5] During a meeting on 30 November 2018 to discuss allegations as to what was said by Mr Boyle on 2 November 2018, Mr Boyle repeated the above statement. According to witness evidence of the Respondent, Mr Boyle made this statement more than once during the meeting. Further, the Respondent found that Mr Boyle reminded his employer that he works on a mine site in an apparent effort to explain the appropriateness of his conduct. Mr Boyle denied stating that he worked on a mine site.

[6] Mr Boyle was asked to show cause as to why his employment should not be terminated on account of breaching the BHP Code of Business Conduct and the BHP Charter Values, specifically “Respect” and “Integrity”.

[7] Following receipt of Mr Boyle’s show cause response letter, his employment was terminated by the giving of five weeks’ payment in lieu of notice.

Hearing

[8] This matter was heard before me in Mackay, QLD on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 1080
Decision Date: 4 MARCH 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Kevin Boyle initiated an application for an unfair dismissal remedy against his former employer, BHP Coal Pty Ltd. The crux of the dispute was Boyle's dismissal from his position following an incident at the mine site where he made a comment of a vulgar and graphic nature. The incident raised questions about workplace conduct in the modern era, particularly regarding offensive language of a sexual nature and the line between workplace humour and misconduct.

The court was required to determine several key legal issues. Firstly, it had to assess whether the reasons provided by BHP Coal for Boyle's dismissal were valid. The company cited two reasons: the vulgar comment and Boyle's inappropriate conduct towards women. Secondly, the court had to examine whether there were any procedural flaws or prejudicial conduct in BHP Coal's investigation into Boyle's misconduct. The court also needed to consider whether BHP Coal had alternative procedures available to address Boyle's misconduct without resorting to dismissal.

In its judgment, the court found that the reasons provided by BHP Coal for Boyle's dismissal were not valid as the vulgar comment was a single incident and the conduct towards women was not substantiated. The court also found procedural flaws in BHP Coal's investigation, including a prejudicial application of its investigation procedure. However, the court concluded that Boyle's dismissal was not unfair in all the circumstances, taking into account the nature of his conduct and the need to maintain a safe and respectful workplace. The court found that BHP Coal had alternative procedures available to address Boyle's misconduct, such as issuing a warning or requiring him to undergo training. As a result, the court dismissed Boyle's application for an unfair dismissal remedy.

Orders