Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall  FWCFB 5492. (C2016/4422). HATCHER, VP, WELLS, DP, JOHNS, C.
This is a classic interpretation of “whether the punishment meets the crime.” The company in this matter dismissed the applicant, and one other person. It also barred a contractor, and disciplined a number of other employees.
It did so following an investigation found that the applicant (and others) had used a two-way radio to communicate in a homophobic and isomorphic manner. The channel used on the radio was meant for training purposes, with “channel 1” being the required channel for communication – also for OH&S emergencies.
In the initial matter, Saunders, C. found that:
“The comments made by Mr Goodall…above breached his obligations under the Code and the STM Plan in the following ways:
(a) he made comments which may reasonably be viewed as offensive;
(b) he demonstrated a lack of respect for other persons;
(c) he made comments which were sexual in nature and may reasonably be viewed as offensive; and
(d) he made comments and used language which may have offended people of a particular race/religion and which expressed and incited derogatory views of people of a particular race/religion.
“Goodall’s conduct in making inappropriate comments over the two-way radio system and thereby engaging in substantial breaches of his employer’s policies gave Mt Arthur a sound, defensible and well-founded reason for dismissal related to his conduct. Accordingly, I find that Mt Arthur had a valid reason to dismiss Mr Goodall related to his conduct in making inappropriate comments on the two-way radio system during the Shift.”
The safety risk posed by Mr Goodall’s use of Channel 6 (and thus not being contactable on Channel 1), the Commissioner ordered reinstatement without loss of service. However, did not order payment for time the applicant had been off work, this a form of penalty.
The company appealed, and the appeal was allowed by the Full Bench because it raised a “novel question”:
“In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at , Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test…as ‘a stringent one’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
‘… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’
“…we had decided to grant permission to appeal [because] Mt Arthur’s appeal raised a novel question, namely whether derogatory remarks in the workplace of the type made by Mr Goodall – that is, remarks which vilify persons of a particular religion – are capable of being assessed, like most forms of misconduct, on a range of seriousness, or whether they constitute a form of misconduct which is sui generis [ed: something that is unique or different] and must be considered in a distinct way…For that reason, we concluded that the grant of permission would be in the public interest.
“For example, in the Full Bench decision in B, C and D v Australian Postal Corporation the majority applied that process of reasoning in relation to misconduct in the form of bringing pornography into the workplace:
‘The nature of material that will come within descriptors such as ‘inappropriate”, “unacceptable” or “pornographic” and the like will present as a spectrum. The lines of delineation between appropriate and inappropriate or acceptable and unacceptable are not sharp because they are broad, even amorphous, terms in respect of which reasonable minds might differ. Emailing pornography to a friend or other willing recipient is objectively a less serious breach of policy than emailing pornography to unwilling recipients or for the purposes of harassment.”
“We do not consider that there is anything intrinsically different about inappropriate workplace comments which involve religious vilification which precludes the adoption of a comparative analysis approach in order to assess its seriousness. That is not to say this is the only process of reasoning to be used, but only that it is one approach that might be taken by a logical or rational decision-maker.
“Nor do we consider that the actual comparison made by the Commissioner was illogical or irrational. It is reasonable to conclude, for example, that for an employee to personally direct anti-Muslim comments at a fellow employee who is known to be of the Islamic faith is objectively more serious than the expression of anti-Muslim opinions to fellow employees who are known to hold similar views…”
The Full Bench ultimately confirming the original decision to reinstate the applicant, with unbroken service, but not ordering payment for the time the applicant was not at work.
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