By Gaby Grammeno Contributor

The worker was employed as a process technician and trainer assessor in the Coal Handling and Processing Plant at BHP Coal’s Blackwater Mine in Queensland.

When two female cleaners at the mine complained about him in early March 2024 alleging sexual harassment, a law firm was appointed to investigate the complaints. The worker was stood down pending the outcome of the investigation.

On 25 March he was interviewed by the investigator, a Senior Associate of a prominent law firm and an ‘embedded contractor’ with BHP. The investigator delivered his findings to the company the next day, substantiating the cleaners’ allegations.

Two days later the worker attended a show cause meeting with management. Later the same day, he was given a letter terminating his employment, with five weeks pay in lieu of notice.

The worker applied to the Fair Work Commission, alleging he was unfairly dismissed and seeking reinstatement and compensation.

In the Commission

Commissioner Bernie Riordan heard evidence that the worker had made sexually suggestive and personally intrusive comments to the two cleaners on more than one occasion, referred to them as ‘dumb cleaners’ and ‘dumb bitches’, told them they were ‘fucking useless’ and that his wage was double theirs, and suggested they ‘show off’ their bodies to sexually provoke a male supervisor to offer them a job. 

The company’s position was that the worker’s behaviour was totally unacceptable and constituted serious breaches of BHP’s Charter Values and Code of Conduct.

The worker presented a very different account of what had transpired. He claimed that the cleaners’ allegations were false and that he hadn’t behaved in the way they claimed. He said he'd had no intention of humiliating, intimidating or offending the cleaners, that they’d misinterpreted words he’d meant as the type of banter that was common in the workplace, and that his dismissal was harsh, unjust or unreasonable. 

He said that before he was dismissed, he’d had no disciplinary warnings or other performance or conduct issues in almost 38 years’ employment with the company.

He submitted that the company did not undertake its normal show cause process – that he was not informed of the reasons for dismissal or provided with a genuine opportunity to respond before a decision was made to dismiss him.

He claimed that corners were cut in the investigation and disciplinary process to complete it before 2 April 2024, due to BHP’s upcoming divestment of the Blackwater Mine. He alleged that the decision to sack him had been made before the show cause process was undertaken. 

He sought an order for reinstatement to his position, including continuity of employment and compensation for lost wages.

Commissioner Riordan criticised the investigator’s methods because he interviewed the complainants by telephone, making it impossible for him to know who else might have been present, and whether the complainant was reading answers from a written script. Interviewing by phone would also have made it impossible for the investigator to view and evaluate their body language. 

‘This process was totally inappropriate. Body language is an important component of every interview,’ he said, adding that ‘[t]he investigative rigour that would be expected in an external and independent process was simply non-existent’.

He also said ‘it beggars belief’ that the investigator had not interviewed other witnesses whose testimony could have corroborated or refuted the cleaners’ evidence.

The Commissioner found that the worker had sexually harassed the cleaners and that this was a valid reason to terminate his employment, but that it was unfair because of the hurried, flawed investigation process and the worker’s not having had a full enough opportunity to respond.

With regard to the remedy, Commissioner Riordan found that, though the worker was seeking reinstatement, it was not appropriate in the circumstances because he had breached the employer’s Code of Conduct, the Fair Work Act 2009 and the Sex Discrimination Act 1984. 

The Commissioner agreed with the employer that as a result of his conduct, ‘the trust and confidence required in an employment relationship cannot be restored in these circumstances’. 

He found the employer’s show cause process should have taken a further week as per the employer’s normal practice, but said he was satisfied ‘that a thorough process, including giving the [worker] a full opportunity to respond to the allegations, would have still resulted in [his] being found to have sexually harassed [the two cleaners] and he would have ultimately been dismissed’.

The Commissioner found that compensation was the appropriate remedy. If misconduct is found to have contributed to the employer’s decision to dismiss the person, the FWC must reduce the compensation otherwise payable by an appropriate amount on account of the misconduct.

Commissioner Riordan ordered BHP Coal to pay the worker one week’s pay.

What it means for employers

Unacceptable behaviour that breaches the employer’s code of conduct does not need to be tolerated, but allegations should be fairly assessed and disciplinary processes must include giving workers against whom allegations have been made a full opportunity to respond.

Read the decision

Mr Roy Smout v BHP Coal Pty Ltd [2024] FWC 2062 (19 September 2024)