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Introduction

Full decision here.

What happens when a truckie at a mine site wants an apology a supervisor using the “f-word”, and finishes his shift early, goes on five weeks’ leave and does not turn up for work because of no apology?

Background

The Applicant commenced employment with the Respondent as an Operator Truck Driver on 1 February 2018 at a Western Australian gold mine.

Nearing the end of his shift (and about to go on 5 weeks’ leave), the supervisor asks via two-way radio for how many loads the truckie had completed for the shift. In this request he used some “fruity language” as part of the request.

The applicant was upset by this use of language towards him, resulting in his parking the truck, having a shower, filling out a report of the incident (at management’s request) and going on leave.

During the period of leave, the respondent attempted to contact the applicant to see if he was okay. The, applicant not responding to these attempts, led to the respondent investigating the matter without the applicant’s input.

The investigation concluded that the applicant had concluded his shift early without proper authority and issued the applicant with a “show cause” letter. With a meeting set up for the date of his scheduled return from leave.

However, despite the respondent’s attempts to contact the applicant, the applicant failed to return to work. The respondent then invoked their enterprise agreement and leave policy requirements relating to abandonment of employment; and after a number of further attempts to contact the applicant, the applicant was dismissed due to abandonment of employment.

The Commissioner’s findings

The Commissioner’s opinion was:

“Whilst the Applicant was entitled to be upset about what was said to him over the radio on 26 December 2019 his reaction that morning was out of proportion with what had occurred. What occurred was quite a brief conversation on the radio.

“The Applicant’s evidence was very clear that at no time on that morning was he scared, there was not any physical altercation, and nobody threatened him.

“The Applicant complains about the swearing of others, but the evidence is he swore himself that morning a number of times.

“The Applicant’s swearing at [redacted], his stopping work before his shift had finished and leaving his truck in an unacceptable condition was not acceptable behaviour.

“The Applicant explained during the hearing that all he was asking for was an apology which would have gone a long way to sorting things out for him.

“Separately the Applicant’s opinion that it was a minor matter for him, after five weeks of annual leave, to not attend site for work as rostered and to make no effort to contact his employer before his rostered shift started to tell them he would not be attending and to then ignore their attempts to communicate with him and finally only contact them a number of days after he was due to return demonstrates a total disregard for his obligations as an employee to his employer.

“In addition, his repeated refusal to come to site, as directed by his employer, where all of the issues could have been dealt with in the normal manner, was unreasonable in all of the circumstances.

“The Applicant’s unsatisfactory behaviour himself on the morning of 26 December 2019, his failure to resume work as rostered after his annual leave, his failure to comply with the Leave Policy and to provide any reason for his non-attendance and his refusal to attend onsite to allow the disciplinary processes to be undertaken were valid reasons for his dismissal related to his conduct”.

Other matters

In dismissing the application, the Commissioner also stating that:

“It is correct as the Respondent has submitted that the Applicant demonstrated no insight in to his own poor conduct throughout this matter in particular he was unconcerned about his deliberate failure to resume work after his annual leave, his failure to notify his employer before this occurred and that he deliberately ignored his employer’s attempts to contact him for a further three days”.