A Roy Hill employee has had his unfair dismissal application rejected after the Fair Work Commission heard of his ‘aggressive, threatening and insulting’ behaviour towards a nurse.
WORKING on a fly-in, fly-out basis at the Roy Hill iron ore operations in the Pilbara, the employee was terminated from his position as a truck driver in June 2016 following an investigation into his aggressive and abusive behaviour toward a registered nurse based at the village medical centre.
The employee first visited the nurse on 8 May complaining that he was suffering an asthma attack. The nurse took into account the employee’s history of asthma, but on this occasion did not see any clinical signs associated with the respiratory condition and instead diagnosed him as having a viral chest infection.
During the course of the day, the employee returned to the nurse twice. On the second occasion the nurse gave evidence that the employee appeared frantic and was wheezing in a way that appeared forced. The nurse gave the employee a sick note for the day but gave evidence that he appeared unhappy at not receiving medication.
On the third visit that day, the nurse gave evidence that the employee was more aggressive and requested a Ventolin nebuliser and oxygen. The nurse prepared a nebuliser to appease him but told the employee she thought his breathing difficulties were anxiety related. The nurse also became concerned with the employee’s demeanour and rude comments about her treatment of him.
Two days later on 10 May, the employee was visited by a site-based paramedic who did not believe him to be suffering from asthma or any other respiratory condition but rather gave evidence that his respiratory wheeze ‘appeared to be somewhat self-induced’.
Later that day, the employee again visited the nurse at the medical clinic at which point he spoke aggressively and shouted accusations such as ‘you don’t know what you’re f***ing doing’ and ‘you’re f***ing stupid’.
While receiving treatment with a Ventolin nebuliser prepared by the nurse, the employee also looked up medical websites on his mobile phone, pushed the phone close to the nurse’s face and made statements including ‘see you are wrong’ and ‘you are going to kill someone someday, you need to get some f***ing schooling’.
The employee’s behaviour was witnessed by someone who was invited into the treatment room by the nurse after she grew increasingly uncomfortable with the employee’s behaviour.
The nurse subsequently reported the employee’s behaviour to Roy Hill human resources personnel.
The employee was flown off-site the following day and was diagnosed with bronchial asthma after visiting a general practitioner.
On 14 May, the employee was stood down with pay while a formal investigation was undertaken which involved him receiving two ‘show cause’ letters and participating in discussions with management to discuss the allegations. After it was found that the employee’s behaviour was inconsistent with the values expected by Roy Hill, his employment was terminated.
In his 25 October decision, FWC senior deputy president Matthew O’Callaghan noted that the employee did not advise Roy Hill that he had a history of asthma when he completed his pre-employment medical, but that this was ‘not relevant to the termination of his employment’.
In regards to the employee’s behaviour on 8 May, SDP O’Callaghan found it was not ‘so inappropriate that it warranted disciplinary action including termination of employment or that his behaviour on that day was a determinative factor in the termination of employment decision’.
However, he was not satisfied that the nurse’s diagnosis on the day was ‘necessarily wrong’ or that it ‘provided a legitimate basis’ for the employee’s behaviour on his 10 May consultation with the nurse.
He took issue with numerous other aspects of the employee’s evidence, which he said ‘lacks credibility’ and in any event would not excuse his behaviour which he concluded to be ‘aggressive, threatening and insulting’.
In dismissing the employee’s unfair dismissal application, SDP O’Callaghan was satisfied with the investigation and termination process undertaken by Roy Hill.
“I do not consider that the termination of Mr Pauling’s employment was harsh, given the nature of his abusive behaviour toward Ms Ranga as the Roy Hill Nurse,” SDP O’Callaghan said.
“The termination of his employment was not unjust as it followed a fair and comprehensive investigation process which established the relevant facts. That employment termination followed behaviour which could only be regarded, on an objective basis, as unreasonable.”
Click here for the full decision.
Implications for employers
This case highlights the importance of having a clearly communicated code of conduct for behaviour in the workplace. The employee in this instance had been educated on Roy Hill’s code of conduct and completed online bullying and harassment training.
Although the employee did not adhere to the code of conduct, Roy Hill had processes in place for the nurse to report the employee’s bad behaviour and for a proper investigation to be followed before the decision to terminate employment was taken.
Backed by their unique understanding of the resource industry, AREEA’s employee relations consultants regularly deliver training on-site and at company headquarters on topics including discrimination, harassment and bullying awareness, workplace health and safety, and emotional intelligence.
AREEA is also your trusted partner when you need assistance in developing and communicating a workplace code of conduct, undertaking a workplace investigation or responding to an unfair dismissal claim. For further information, contact us today.