Site access revocation case highlights importance of timely feedback
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker was terminated after a client revoked his site access.
The worker claimed he was dismissed shortly after taking approved bereavement leave following his cousin's death, arguing he had never been warned about any performance or conduct issues during his employment.
The employer maintained they had valid grounds for termination, citing the worker's inability to fulfill his contractual obligations after losing site access. They also claimed the worker had attendance issues and performance concerns that had been identified months before the dismissal.
The dispute discussed whether the employer had acted fairly in managing the worker's performance before the dismissal, and whether reasonable steps were taken to explore alternative employment options after site access was revoked.
The worker was employed as a driller from August 2023 until September 2024, working at a mining project in Cobar, New South Wales. He was 41 years old with seven children and worked on a drive-in drive-out basis with 12-hour shifts on a continuous rotation - 14 days on and 14 days off.
His employment contract specifically stated that maintaining site clearance from the client was a condition of employment.
Records showed the worker was consistently drilling approximately 25-35% less than other drillers. The employer's superintendent testified that he had first identified this issue around May 2024, some four months before the dismissal.
Despite having access to these performance records for several months, the employer took no steps to address the worker's performance until the client expressed concerns in late August or early September 2024.
The superintendent had started preparing a Performance Improvement Plan (PIP) for the worker but never issued it as the worker was dismissed before it could be implemented.
The Enterprise Agreement covering the worker's employment required the employer to provide performance reviews typically at 6-month intervals, but the FWC found no evidence that such reviews had taken place.
In late August 2024, the worker received news that his close cousin had suddenly passed away. He called his superintendent and asked to take the rest of his swing off. According to the worker, the superintendent agreed, saying "family comes first" and offered to complete the necessary paperwork. This was followed by two days of sick leave related to a Health Management Plan that the worker was on.
Shortly after this absence, on September 7, 2024, the client company (a gold mining operation) revoked his site access. The client's Mining Projects Manager wrote in an email that this was "solely a business decision" as the worker had "proven too unreliable with his attendance and also the quality of his drilling."
The worker was then called by the superintendent on September 11, 2024, informing him that his site access had been revoked and that the employer would be sending a show cause letter regarding possible termination. The worker responded that he had not been advised of any concerns regarding his work.
The contract between the employer and the client permitted the client to remove an employee from site if they formed the opinion that the employee was not properly performing their duties, but the worker had not been made aware of these conditions under which his site clearance could be revoked.
The FWC found that while there was a valid reason for the dismissal based on capacity (the worker's inability to perform work at the site after access revocation), the dismissal was nonetheless harsh and unreasonable due to significant procedural failures.
The employer had checked for alternative positions at their next closest mine and at another site in South Australia, but testified that no driller roles were available at either location.
The worker argued that as an international mining contractor operating in 14 countries with 43 clients, the employer should have done more to find him alternative work.
When dismissing the worker, the employer characterised the situation as "misconduct," which was later amended to "serious misconduct." The FWC found this characterisation inappropriate and unreasonable as there was no evidence of willful or deliberate behavior by the worker.
The Deputy President noted in the decision: "I believe that if [the employer] had notified [the worker] of its concerns about his performance and attendance when these issues first arose and managed these in accordance with the Disciplinary Procedure, contract of employment and Enterprise Agreement, this would have given [the worker] the opportunity to address these matters and potentially avoided the revocation of his site access on 7 September 2024."
The worker did not seek reinstatement, citing a deterioration in the relationship with his employer. The FWC found reinstatement inappropriate, particularly given no evidence that a suitable position was available.
After being dismissed, the worker actively looked for employment and secured a new job within three weeks. However, he was earning less in his new role and incurring travel expenses he hadn't previously faced.
His new position was in Western Australia, requiring him to pay his own travel costs and resulting in approximately $616 less income per fortnight compared to his previous role.
The FWC determined compensation of $18,192 plus superannuation, calculated based on an assessment that the worker would likely have remained employed for six months if not dismissed, minus the income earned from his new employment during that period.
The FWC identified several factors that made the dismissal unfair despite there being a valid reason: "[The employer] failed to advise [the worker] of the conditions under which his site clearance could be revoked; [the employer] failed to advise [the worker] of its concerns about his performance and attendance when these issue first arose; [the employer] failed to provide [the worker] with an opportunity to address these concerns by following the relevant provisions of the Disciplinary Procedure, contract of employment and Enterprise Agreement."
The Deputy President further concluded that the employer had "inappropriately and unreasonably characterised the dismissal as 'misconduct' then 'serious misconduct' when there was no basis to do so" and "summarily dismissed [the worker] when there was no basis to do so."
In the final determination, the FWC emphasized: "I have found that [the worker's] dismissal was harsh and unreasonable for reasons which include that [the worker] was deprived of an opportunity to address performance and conduct issues and avoid revocation of his site clearance because [the employer] failed to notify [the worker] of its concerns when these issues first arose and to manage these in accordance with the Disciplinary Procedure, contract of employment and Enterprise Agreement."
