A Saraji coal miner who was sacked in March will be re-instated and paid $47,000 after Fair Work Commission found his dismissal was unfair.
A Saraji coal miner who was sacked in March will be re-instated and paid $47,000 after Fair Work Commission found his dismissal was unfair.

Sacked BHP worker re-instated as company 'jumped at shadows'

THE permanent workforce at BHP is being moved out to make way for casual workers, according to the CFMEU's Rowan Anderson.

Mining giant BHP was recently forced to re-instate Saraji coal miner James Hayes, at least the second Saraji coal miner to be re-hired after being sacked following a verbal stoush with a contract worker in 18 months.

Mr Hayes was fired in March after a heated argument with a contract worker after he delivered a truck to the maintenance workshop with a fuel tank of petrol when it was supposed to be empty..

BHP submitted to the Fair Work Commission that the contract worker believed Mr Hayes had become verbally aggressive towards him because he was a contractor and not an employee of BHP.

It was also said this contributed to Mr Hayes being fired.

But Commissioner Chris Simpson said there was no evidence to prove that.

"I am left with the impression from the evidence that the view BHP arrived at concerning Mr Hayes attitude toward contractors appeared to become convoluted with a separate issue concerning BHP's wider concerns about workplace culture and the nature of relationships between directly employed workers, and employees of contractors generally," commissioner Simpson wrote in his decision.

Construction, Forestry, Mining, and Energy union representative Mr Anderson who represented Mr Hayes said BHP was "jumping at shadows" when it came to conflicts between its permanent workforce and contractors.

"The company are very quick to try and blame permanent workers for any perceived issues and most of those issues don't exist," he said.

"If they do exist they are a consequence of the company's lack of management, in relation to contractors.

"They are simply about increasing casualisation and looking for any reason to get rid of a permanent employee."

Mr Anderson said this was a growing trend as the company continued to prioritise cheap labour at the expensive of its permanent workforce.

A BHP spokesman said the company's position on this particular matter was based on the incident in question, and didn't in any way reflect a broader view about the composition of BMA's workforce.

However, Fair Work Commission found Mr Hayes' sacking was unreasonable and that he didn't get a chance to respond to the claims about his attitude towards contractors.

Commissioner Simpson ordered Mr Hayes be reinstated and paid $46,748.

Commissioner Simpson wrote the argument was a one-off and the first time Mr Hayes had been disciplined since he started at the Dysart mine in 2008.

He wrote that the accounts of what was said were disputed but both men agreed there were raised voices with both claiming the other swore.

"Mr Hayes accepted that the exchange was inappropriate and should not have occurred, however it does not appear from the evidence that the nature of the exchange was sufficient to terminate his employment," the decision reads.


In October 2016, the Fair Work Commission also ruled that BHP reinstate a fired Saraji mine worker who referred to "scabs" in conversation with a colleague.

After the conversation on October 15, 2015, Gary McDermott, who had been an operator at the mine for 12 years, was asked to show case as to why he shouldn't be fired for saying it.

Mr McDermott said his colleague had said words to the effect of "we are here to pick up your dig rate you useless c***".

"I was offended by the comment. Without thinking I retorted with a comment to him to the effect that all he does is suck d*ck," Mr McDermott said in a response letter to BHP Coal.

"While I am not completely sure of the next statement I made to the best of my recollection I said words to the effect of 'next the scabby/grubby (not sure which) from down the other end will be here on the shovel'. This comment was not directed at anyone participating in the conversation or any particular person."

BHP Coal alleged he had said "it doesn't matter, the scabby bugger will come and jump on it anyway".

On November 6, 2015, the company handed Mr McDermott a termination letter, saying he had breached the BHP Billiton Charter Values of Respect, Integrity and Accountability.

He was given four weeks' termination pay.

In the Fair Work Commission in Brisbane in October 2016, Commissioner Paula Spencer found that Mr McDermott's termination had been "disproportionate" to his breach.

The Commissioner said while it was understandable that the employer consider Mr McDermott's behaviour to be non-compliant with the Code and Charter values, "it could equally be construed that the standards of behaviour in terms of the language and the interaction used by the other employees involved, also fell short of the required standards".

She ordered Mr McDermott be reinstated within 14 days of the order, but declined to order remuneration, as he had breached company policy.

During hearings, the company's lawyers referred to the 2013 decision of CFMEU v BHP Coal Pty Ltd.

In that case, the High Court ruled the dismissal of a man protesting at Saraji mine held a sign that read 'No principles SCABS no guts' had been lawful.

The Commissioner said there were "marked differences" between the two cases.

"Participants in the current discussion were all behaving in a casual but somewhat cavalier manner but there was no predetermination or significant hostility present," she said.

During questioning, the mine general manager said the word 'scab' was worse than 'c***'.

"It is like, in my mind, a black person being called a 'n*****' in the deep South of America. It is off the scale in terms of abhorrentness," he said.

In her decision, the Commissioner said that if BHP Coal had communicated a "zero tolerance" policy to the use of the word 'scab' on site, such a termination could be legal.

CFMEU legal officer Rowan Anderson, who represented Mr McDermott, said was "pleased with the decision that he will be reinstated to the role that he had been working in for over a decade".

"Reinstatement is appropriate and he is happy to be going back to work."