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Termination of bully upheld as a fair dismissal

September 23, 2016

A mineworker, along with two other colleagues who were dismissed for bullying a fellow employee by boxing his vehicle in on a highway, failed to convince the FWC that they were dismissed unfairly.

Rio Tinto subsidiary Coal & Allied Mining Services Pty Ltd (Mt Thorley) conducted an investigation into the incident.  As a result of the investigation, two of the employees were dismissed and the other given a final warning.

One of the dismissed employees lodged an unfair dismissal claim with the Fair Work Commission (FWC), denying that the incident was intentional.  He also claimed that there was no collusion with colleagues about getting their story straight. The basis of his argument was that the victim did not make a formal complaint, therefore the investigation was invalid.

Commissioner Tony Saunders rejected the employee’s argument as the victim was happy to have action taken further in regards to informing his superintendent of the incident. This constituted an obligation on behalf of Mt Thorley to take action.

Commissioner Saunders found the mineworker to have “intentionally” slowed down on the highway “as a result of the ‘game’ of ‘cat and mouse’ being played” in an attempt to prevent their colleague from exiting the highway to go home. The Commissioner based these findings on:

  • one colleague’s admission to the incident;
  • the fact that one colleague made eye contact, smiled, laughed or grinned whilst enacting the incident; and
  • that two of the colleagues threw a petroleum jelly covered rag at the victim before the three colleagues spoke for 10 minutes and got into their vehicles to leave work.

It is believed that the victim of the bullying became a target due to his strong work ethic and the amount of work he was able to complete during shifts as he was told to “stop doing what you’re doing, stop working how you do, you’re breaking down our conditions“.

Commissioner Saunders found that there was a clear and blatant breach of Rio Tinto’s policies, such as its code of conduct, anti-discrimination, sexual harassment and bullying policies. The substantial policy breaches, the employee’s intentional conduct and the adverse effect on the victim’s safety constituted valid reason to dismiss the employee.

It is of vital importance that employers ensure they have clear, watertight policies for their business. For further information regarding your business’ policies or for advice regarding bullying in the workplace, contact the National Retail Association Hotline and speak to one of our Workplace Advisors on 1800 RETAIL (738 245).

The full case can be viewed here.

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