A Moolarben mine worker had his appeal against an unfair dismissal decision rejected by the Fair Work Commission late last week.
Andrew Maunder was dismissed on 22 March 2014 from the NSW coal mine for serious safety breaches involving maintenance work carried out on a EX112 Shovel.
The mechanical technician failed to properly isolate the shovel, and also failed to undertake a Take 5 risk assessment; facts which Mr Maunder does not contest.
Mr Maunder’s appeal against his unfair dismissal was made on the grounds of differential treatment.
In support of his case, a representative of Mr Maunder called evidence in order to “demonstrate that other employees who had committed breaches of safety policies of a comparable nature had not been dismissed but rather subjected to more lenient disciplinary action.”
Mr Maunder’s representative claimed that others workers had breached the isolation and “Take 5” safety protocols in the period before Mr Maunder’s safety breach. However these workers were not dismissed for their breaches.
Despite taking this into consideration the Senior Deputy President of the Fair Work Commission upheld the ruling of unfair dismissal due to, “…a background of recent warnings.”
“I have also considered the circumstances of those workers who breached the isolation and “Take 5” in the period before Mr Maunder’s safety breach and his dismissal. They were not dismissed for that breach. I am satisfied that what occurred following the safety breach by those workers is that Moolarben took into account its own failure to adequately highlight its safety procedures as a mitigating factor,” the Senior Deputy President wrote in his ruling.
“I am satisfied that Moolarben subsequently adjusted its conduct and engaged in a process which highlighted the safety procedures. I am satisfied that, as a result, Mr Maunder was reminded of those procedures.”
“Because Mr Maunder and others received that warning, and received them so close in time to his failure to adhere to the procedure, I am satisfied that Mr Maunder’s circumstances can be distinguished from the treatment of those other workers.
“There was a sufficient differential in the circumstances surrounding the conduct of Mr Maunder and those persons to cause me to be satisfied that the termination of Mr Maunder’s employment was not harsh unjust or unreasonable,” the Senior Deputy President said.