The mine site is a forum where iconic Australian
"banter" can be seen at its strongest, creating a myriad
of situations where the "line" between a joke,
discrimination and bullying can be blurred.
One such situation arose in February this year. A truck driver
at Mt Arthur Coal mine was lucky to have his job reinstated
following almost 2 hours of radio use during his 12.5 hour night
shift. The duration of the use was only one problem, what he
actually said was the other. By way of example, the comments
included references to:
a colleague who he thought would "like a good
Muslims being "f-cked up" because of "years of
another colleague reading a book about "50 ways to eat
another colleague's "Jatz crackers" falling out
at the gym.
See the decision in Goodall v Mt Arthur Coal Pty Ltd
 FWC 4129 (1 July 2016) for further detail.
The employee said that the comments were made in banter and
helped to keep him alert and awake during the hardest part of night
shift – the early morning. But on any version of the facts it
is clear that the employee's comments were discriminatory. It
is also clear that they were in breach of a number of mine site
policies. When viewed in isolation, any reasonable person would
consider dismissal to be a "reasonable" and
So why did the Fair Work Commission (FWC) find
that dismissing him was harsh? The answer – the length of his
employment, his unblemished employment record, his remorse and the
significant financial impact it would have on his family. In other
words, it came down to it being "harsh" in the
Mt Arthur conceded that profanities were commonly used in the
mine, thus one day of swearing and "crude, lewd and sexist
comments" over the radio was considered to be at the lower end
of seriousness. Given the mitigating factors, the FWC thought it
unlikely that such behaviour would be repeated.
The FWC did decline to order that the employee be paid for the
five months of employment he had lost, stating that the employee
needed to bear "a substantial degree of responsibility for the
financial consequences of his dismissal". The absence of an
order for lost pay underlined the FWC's view regarding the
conduct and (hopefully) created a strong incentive not to repeat
In the current economy it is likely that mitigating factors will
continue to weigh heavily on the issue of a dismissal being
"harsh". These days it is difficult to think of a
circumstance where the loss of a job wouldn't result in
financial hardship for a mining family. The result in this case
would have probably been different if the employee lacked an
unblemished record and remorse.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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