Mr Roy Smout v BHP Coal Pty Ltd - [2024] FWC 2062

[2024] FWC 2062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Roy Smout
v

BHP Coal Pty Ltd

(U2024/4252)

COMMISSIONER RIORDAN

SYDNEY, 19 SEPTEMBER 2024

Application for an unfair dismissal remedy

On 12 April 2024, Mr Roy Smout (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by BHP Coal Pty Ltd (the Respondent) on 28 March 2024.

Background

In early March 2024, the Respondent was made aware that two female cleaners, Ms Heming and Ms Williams (the complainants), who were employed by ESS Support Services at the Blackwater Mine, had made a complaint about the Applicant, including allegations of sexual harassment.

Mr Patrick Ritchie, Senior Associate of MinterEllison, and an embedded contractor with BHP as an Investigator for BHP’s Ethics and Investigations team, was appointed to investigate the complaints made against the Applicant.

Mr Ritchie interviewed the complainants on 20 March.

The Applicant was stood down on 22 March 2024, pending the outcome of the investigation into the allegations made against him.

The Applicant was interviewed by Mr Ritchie as part of the investigation process on 25 March 2024.

Mr Ritchie delivered his Investigation Findings Memo (the Report) to the Respondent on 26 March 2024.

The Applicant attended a Show Cause Meeting with the Respondent on 28 March 2024, the day before the Easter long weekend. It is uncontroversial that no HR staff of the Respondent would be on duty over the long weekend.

The Applicant was issued a Termination Letter on 28 March 2024, which provided as follows:

“28 March 2024

Roy Smout
Operator Processing
Blackwater Mine
Dear Roy,
TERMINATION OF EMPLOYMENT
I refer to the meeting held with you on 28 March 2024 attended by you and Greg Donohue (Operator, Employee Representative). You were provided the opportunity to bring a support person to this meeting and Greg acted in this capacity for you. During this meeting, there was a final discussion regarding the outcome of an investigation into the following serious allegations:

1.On 1 March 2024, in the male toilets near the CHPP at Blackwater Mine, that you made sexually suggestive comments to Impacted Person 1 and Impacted Person 2 without their invitation or consent, asked them if they had partners, if Impacted Person 1 could be trusted, if Impacted Person 1 trusted her partner who worked in Western Australia, suggested Impacted Person 1’s partner was sleeping with other people, said ‘What happens in WA stays in WA’ and looked at Impacted Person 1’s body up and down and down. It is alleged that you sexually harassed Impacted Person 1 and Impacted Person 2 in breach of the BHP Code of Conduct.

2.On 2 March 2024, near the CHPP control room at Blackwater Mine, that you made sexually suggestive comments to…

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: [2024] FWC 2062
Decision Date: 19 SEPTEMBER 2024

CaseChat Overview and Summary

Roy Smout (the Applicant) brought an application for unfair dismissal against BHP Coal Pty Ltd (the Respondent). The Applicant, a process technician and trainer assessor in the Coal Handling and Processing Plant (CHPP) at the Blackwater Mine, was dismissed on 28 March 2024 following an investigation into allegations of sexual harassment made by two female cleaners, Ms Heming and Ms Williams. The Applicant sought an order of the Fair Work Commission (FWC) for reinstatement to his position, including continuity of employment, and compensation for lost wages. The Respondent submitted that the dismissal was not unfair and dismissed the application. The Commission found that the dismissal was unfair due to a lack of procedural fairness, despite the Respondent having a valid reason to terminate the Applicant. The Commission ordered that the Respondent pay the Applicant compensation for one week's pay.

The Commission held that the Respondent had a valid reason to terminate the Applicant based on his conduct. The Commission found that the Applicant had made inappropriate comments to the complainants, which constituted sexual harassment. However, the Commission found that the process followed by the Respondent was flawed and did not provide the Applicant with a full opportunity to respond to the allegations, as required by the Fair Work Act 2009 (FW Act). The Commission held that the termination was unfair due to the lack of procedural fairness. The Commission ordered compensation for one week's pay.

Orders