CONSISTENCY is the key when considering when determining appropriate disciplinary action as two recent cases before the full bench of the Western Australian Industrial Relations Commission both involving BHP Billiton Iron Ore have shown.
The decisions show industrial tribunals will compare the disciplinary measures, or their lack, taken by the employer in similar circumstances.
The WAIRC reviewed the actions of BHPBIO in dismissing two train drivers for breaches of the BHP Iron Ore – Pilbara District Railroad Rules and Regulations.
The first case involved employee Cupak who overrode the automatic train protection system twice to prevent his train from stopping because he believed the system was malfunctioning.
He also went through a red signal, assuming the signal light was faulty due to an electrical storm.
The second case involved employee Burtenshaw who was required to conduct calibration tests on a weighbridge.
He was required to take the train over sensors a number of times. Having completed one pass, the train would reverse back over the sensors to its starting place to begin another pass.
Although required to obtain radio permission before reversing the train after each pass, he only obtained permission on the first two occasions and subsequently passed through a red signal 10 or 11 times.
He also turned off the ATP to allow him to get the job done more quickly and had turned his radio down, which made instructions difficult to hear.
In regard to Cupak, the full bench held the dismissal unfair because he had done the best he could in an emergency, had a good employment record and his treatment was severe compared to BHP’s treatment of other employees who had broken the rules.
However, the full bench held the dismissal of Burtenshaw was not unfair despite BHP’s more lenient treatment of other employees.
It held that due to the "nature and number" of his transgressions, Burtenshaw’s conduct was more serious than that of the other drivers and his dismissal was justified.
Andrew Burnett, partner
9429 7414
Minter Ellison