A former Rio Tinto worker has failed to convince the Fair Work Commission he was unfairly dismissed over a safety breach, in another case showing it is possible to sack a worker who uses “colourful” language.
Trevor Godfrey had been employed by Rio Tinto subsidiary Coal and Allied Mining Services as a production operator at the Mount Thorley Warkworth mine in the Hunter Valley since August 2011.
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The mining company terminated Godfrey’s employment in October 2013 after an incident in which it said Godfrey breached the mine’s safety procedures by driving over a windrow, a type of mound used on mining sites, that visibly contained large rocks.
Godfrey was also accused of using inappropriate language when confronted about the incident by his supervisor, allegedly telling his boss “ah, fuck you”, “who the fuck cares, it’s your word against mine”, and “I’ll take you to fucking court”.
But Godfrey denied both allegations and lodged an unfair dismissal claim before the Fair Work Commission, arguing he was bullied and harassed and should be given his job back.
Fair Work Commissioner John Stanton preferred the evidence provided by Coal and Allied Mining Services, which argued before the commission that Godfrey had a history of disciplinary issues at work, and on Monday ruled the company was within its rights to terminate Godfrey’s employment.
Stanton found Godfrey gave inconsistent evidence about his knowledge of the company’s safety policies by first arguing he was not aware that drivers were prohibited to drive over a windrow and then admitting during cross-examination that he had attended training sessions in which workers were told of the dangers of driving over the mounds.
He also admitted that supervisors on site regularly reminded workers about tyre safety, which driving over windrows can compromise.
“Having considered the evidence in its totality, I am satisfied that the conduct relied upon by the respondent to dismiss the applicant did occur,” Stanton said.
“Accordingly, I find there was a valid reason for the termination of the applicant’s employment. The allegations have been proven to the requisite standard.”
Workplace lawyer Peter Vitale told SmartCompany the outcome of the case was primarily decided on whether the safety breach occurred, with the inappropriate language a secondary consideration.
Vitale says given Stanton did not make any specific findings about Godfrey’s language, it is reasonable to assume the breach of the company’s safety policy “was sufficient” for Rio Tinto to terminate his employment.
“The key outcome of this case is the employer was very diligent about informing employees about safety policies and reminding them about the policies,” Vitale says.
Vitale says the safety policies put in place by Coal and Allied Mining Services were also found to be “justifiable and reasonable” and therefore a breach of those policies “provided clear basis for a valid termination”.
SmartCompany contacted Rio Tinto but did not receive a response prior to publication.
Tags: legal, unfair dismissal, Riot Tinto, Coal and Allied Mining Services, mining, swearing, safety, Fair Work Commission, Peter Vitale