Mining giant BHP Billiton Mitsubishi Alliance may be forced to review one of its new safety policies at one of its Queensland mines after an order from the Fair Work Commission last week to reinstate two dismissed employees.
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The two men were employed as operators at the Goonyella Riverside Mine when their contracts were terminated in February for breaches of the mine's Mobile Electronic Device Procedure, which prohibits the employees from carrying their mobile devices onto the worksite.
Employee Luke Faulkner's breach was discovered when he used his phone while on site to post a comment to Facebook, and was reported to management by another employee with whom he was friends on Facebook.
One week later, Shannon Boal, who had worked at the mine for 15 years, had his employment terminated when his phone was discovered in the cabin of his truck.
On December 22, the commission found that while there were valid grounds to dismiss both men, procedural deficiencies with the mine's mobile policy and its implementation rendered the terminations unfair, and ordered the two men be reinstated.
In what may prompt a rewriting of the procedure, the commission held the policy, which was implemented in November 2013, was "not clearly written or implemented as zero-tolerance policy" and that the employees had not been adequately trained in the operation of the new policy.
In another embarrassing blow to the mine owner, the commission found the mine's disciplinary process to be inadequate, deeming management to have failed to provide both employees with an appropriate opportunity to respond to the reasons for their termination.
Responding to the decisions, a spokesperson for the mine owner said the policy had been implemented to ensure employees were "not exposed to an unacceptable level of risk" .
The Australian Mines and Metals Association was critical of the commission's findings, which it said left employers "increasingly caught between laws on safety and laws on unfair dismissal".
"It should be possible for an employer to set clear policies on safety, set out clear consequences for breaching them, and to follow them through. However, we are increasingly seeing instances of these policies being overturned by the Fair Work Commission," AMMA executive director of policy Scott Barklamb said.
But the Construction, Forestry, Mining and Energy Union, which brought the claims of unfair dismissal on behalf of the employees, said the outcome reflected the "excessively harsh" nature of the punishment and would not jeopardise future safety standards at the mine.
"The reinstatement of these men does not undermine the implementation of this policy or any other safety measure," Queensland secretary Tim Whyte said.
