Introduction
In a recent ruling, the Fair Work Commission (FWC) found that a long-serving BHP Coal technician, despite engaging in inappropriate behaviour amounting to sexual harassment, was unfairly dismissed due to a flawed investigative process and a lack of procedural fairness. This case, which unfolded at the Blackwater Mine in Queensland’s Bowen Basin, underscores the importance of conducting thorough, independent investigations while adapting to evolving workplace standards.
Background and Key Allegations
The case centres around a series of events that occurred in early March 2024, where the mine technician allegedly made inappropriate remarks to two female cleaners, employees of ESS Support Services at the Blackwater Mine. The two complainants, Ms. Heming and Ms. Williams, testified that the technician made personal inquiries about their relationships. In particular, when one cleaner mentioned her partner worked in Western Australia, the technician allegedly questioned her trust in her partner, following up with the comment: “What happens in WA stays in WA.” This remark was perceived as implying sexual infidelity, a suggestion that deeply offended the cleaner.
The Fair Work Commission found that the technician’s comment about Western Australia, while framed as a joke, was inappropriate, particularly given the context of the earlier conversation. The comment, paired with his questioning of the complainant’s trust in her partner, was considered suggestive and unprofessional. Commissioner Riordan acknowledged, “I accept that he may have simply been trying to be funny, but it was a totally inappropriate comment… Ms. Heming was offended. I can understand why.”
Further Allegations
The complaints didn’t stop with this conversation. On 2 March, the technician allegedly referred to the cleaners as “dumb bitches” and suggested that they could use their bodies to secure better jobs at the mine. One of the complainants, Ms. Williams, recorded this incident in her notebook, citing the technician’s insinuation that being provocative could lead to job opportunities with male supervisors. Both complainants expressed feelings of discomfort and disgust, providing similar written complaints and testimonies during the investigation.
The Flawed Investigation
Patrick Ritchie, a Senior Associate from Minter Ellison, was appointed as the investigator for the case. However, the Commission found serious flaws in the way the investigation was conducted. Ritchie was criticized for lacking independence, as he was an embedded contractor at BHP, which raised concerns about the impartiality of his report. He shared drafts of his findings with BHP’s HR team before finalizing the report, a practice condemned by Commissioner Riordan, who stated, “How such a practice could be deemed appropriate in an independent investigation is beyond my comprehension.”
Ritchie was further criticized for failing to interview a key witness, a male employee who was allegedly present during one of the incidents. Despite being named by both complainants, this individual was never contacted, a significant oversight in the investigation. Additionally, the interviews with the complainants were conducted over the phone, preventing Ritchie from assessing their body language or gauging their reactions during questioning. Commissioner Riordan remarked, “Body language is an important component of every interview. This process was totally inappropriate.”
Procedural Fairness and the Rushed Dismissal
The mine technician was stood down on 22 March 2024, and just six days later, on 28 March, he was called into a "show cause" meeting. The meeting lasted only five to ten minutes, after which the technician was given a 30-minute break before his dismissal was confirmed. He was handed a letter outlining the allegations and told that he had breached BHP’s code of conduct. His employment was terminated immediately, with five weeks’ pay in lieu of notice.
The Commission found that the dismissal process had been rushed, driven by BHP’s pending sale of the Blackwater Mine to Whitehaven Coal, scheduled for 3 April 2024. This urgency, according to the FWC, led to a lack of due process, denying the technician a genuine opportunity to respond. Commissioner Riordan observed that “the Applicant was denied the full opportunity to respond,” and noted that the show cause meeting should have been conducted over the standard seven-day period rather than immediately before a holiday weekend.
The Technician's Defense
In his defense, the technician denied the allegations, maintaining that his comments were misinterpreted. He argued that he had no history of complaints in his 38 years with BHP and that a formal warning would have sufficed. Additionally, he contended that his career, being close to its end, was severely impacted by the dismissal, as he was nearing retirement age and had limited prospects for reemployment.
Despite these claims, the Commission upheld that the technician’s behaviour was inappropriate and constituted sexual harassment under the Fair Work Act and Sex Discrimination Act. However, the procedural flaws and rushed nature of the dismissal process led the FWC to rule in favour of the technician’s claim of unfair dismissal.
Conclusion and Ruling
Commissioner Riordan concluded that while the technician’s behaviour provided a valid reason for dismissal, BHP’s investigation lacked the independence and thoroughness required. He emphasized that the investigation's “rigour that would be expected in an external and independent process was simply non-existent.” Consequently, the rushed dismissal was deemed procedurally unfair, and the technician was awarded compensation equivalent to one week’s pay in lieu of reinstatement.
This case serves as a reminder to employers of the importance of maintaining fairness and rigor in workplace investigations, particularly in cases involving severe consequences such as dismissal.
Mr Roy Smout v BHP Coal Pty Ltd [2024] FWC 2062 (19 September 2024)
(U2024/4252) COMMISSIONER RIORDAN
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