A Fair Work Commission full bench has reversed a decision that a boilermaker was fairly dismissed for using an unsafe method to cut a steel plate, finding he was not given sufficient opportunity to respond to allegations about his conduct or to attend his employer's re-enactment of the incident.
Deputy President Brendan McCarthy and Commissioners Peter Hampton and Danny Cloghan in Friday's ruling agreed with Commissioner Bruce Williams that there was a valid reason for Bradken Resources Pty Ltd to terminate the boilermaker's employment, but said the company had not given him a proper explanation of the accusations against him.
The boilermaker had suspended the steel plate from a crane, rather than laying it out horizontally, in order to cut it.
As part of its investigation, Bradken conducted a re-enactment of the incident, but did not invite the boilermaker to attend.
The full bench accepted that the company had explained "a form of the allegations" to him at a meeting the day after the incident, but said he had disputed the account and was in an agitated state.
It said Bradken "seemed to recognise the state he was in and purported to give him an opportunity to respond in writing to the allegations".
"However the letter sent to him was poorly framed and merely stated that he had been involved in the 'cutting of plate in a suspended condition'. He disputed that, primarily on the basis that the plate was not 'suspended'. Following the [worker's] response without any further discussion or involvement [his] employment was terminated," the full bench said.
The bench noted the company had no specific rules or policies for the cutting of steel plates.
In those circumstances, where there is a dispute about standard practice, "an unsafe act can often only be determined by reliance on individual assessments and opinions about that act".
"The importance of providing a proper and precise explanation to the employee accused of unsafe conduct in these circumstances is of significant importance in order that the employee can truly be regarded as having had an opportunity to respond to the accusation," the full bench said.
The bench also took into account Bradken's failure to invite the boilermaker to the re-enactment.
"The importance of a proper opportunity to respond and confirm the accuracy of the re-enactment was critical in such circumstances," it said.
The bench disagreed with the commissioner's view that giving the boilermaker a better opportunity to respond to the allegations would not have made a difference to the result, finding that it was "unsafe to make such speculation".
"The [boilermaker] may or may not have responded in the way he did if the accusation was properly put to him. This is significant given that the dismissal was founded upon differing views about the safety of [his] actions," the bench said.
The bench decided to rehear the case itself, and concluded "on balance" that the dismissal was harsh.
It said the boilermaker's experience and good record were factors in his favour, but also weighed against him.
"A tradesman with his expertise and experience should readily acknowledge and be willing to participate in discussions about safer conduct," the bench said.
Commissioner Cloghan will determine a remedy for the boilermaker.
Haigh v Bradken Resources Pty Ltd [2013] FWCFB 2918 (28 June 2013)