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BHP Loses Unfair Dismissal After Sacking ‘dinosaur’ Worker

BHP loses unfair dismissal after sacking ‘dinosaur’ worker

BHP’s coal business has been ordered to compensate and reinstate a worker who was described as “a dinosaur”, after the mining giant sacked him for refusing to train a contractor.

Gregory Macklin was even compared to Brooks Hatlen in The Shawshank Redemption, because he appeared to have become institutionalised.

Despite evidence that he was resistant to change, and had made inappropriate comments to female colleagues, in addition to refusing to train the contractor, Fair Work Commissioner Jennifer Hunt found that BHP had not followed proper processes when dismissing him.

The details

Mr Macklin had worked as a grader driver at the BHP Goonyella mine in Queensland’s Bowen Basin since 1980.

For the past 17 years, he has also been a trainer and assessor of operators of heavy machinery at the mine.

In June last year, he twice refused a direction from a shift supervisor to “assess” the truck driving abilities of a contract worker.

He told the supervisor, “Well no, I don’t train contractors. I would resign as a [trainer/assessor] if I had to train contractors.  No, I don’t train contractors that will take my job.”

Previous warnings

Macklin had previously received a formal warning from mine management in 2016 after he ridiculed a female bus driver who had told him to put his seat belt on while riding in her bus.

He earned another written warning in 2017 for his dismissive conduct at an externally operated training course that was run by a woman.

Despite writing an apology with the help of his union for refusing to train the contractor, BHP terminated his employment for refusing a reasonable and lawful direction.

What the Commission said

Commissioner Hunt was extremely critical of Macklin’s previous conduct, particularly his behaviour towards women.

“I accept that over very recent years Mr Macklin has behaved poorly in specific circumstances,” Commissioner Hunt said.

“In some respects, Mr Macklin might be considered to be a workplace ‘dinosaur’ on account of his conduct and demonstration of disrespect, at times.

“He has been employed by the one employer for 38 years, and like the character Brooks Hatlen in The Shawshank Redemption, he appears to me to have become institutionalised; resistant to change and outside pressures.

“He doesn’t know how other workplaces operate, and how over the many years since 1980 when he was first employed, workers across all industries have adapted to change, welcomed greater female participation, including more women in senior roles.

“Men are now often told what to do by women in the workplace, probably a rare scenario in the early 1980s.”

Brooks Hatlen from ‘The Shawshank Redemption’.

“Relevant to the bus incident, I consider that he was acting like a class clown, effectively informing the female bus driver that she had to pay more attention to driving than worrying about his seat belt being on because, after all, she is female.

“In an era when mine operators are doing their best to attract female workers, it is not helpful if a near-60-year-old man with decades of experience takes it upon himself to belittle a female bus driver in a bus full of, presumably, men. The driver is likely to have been humiliated.”

“Relevant to the training course conduct, I consider that Mr Macklin behaved incredibly poorly.  He showed contempt for the training, and in doing so was extraordinarily disrespectful.

“I find that he did make inappropriate references to breastfeeding in the workplace.

“It is easy to presume that other participants in the course were aware Mr Macklin was employed by BHP, and accordingly, he was, for the first day-and-a-half, disgracing BHP’s reputation.”

Proper processes not followed

Despite her scathing assessment, Commissioner Hunt found that BHP had not followed proper procedures during the dismissal process by not allowing Macklin access to a nominated union representative, and not telling him all of the reasons for his sacking.

She found that management did not inform Macklin that they regarded his behaviour as “deviant” under the company’s Just Culture standards.

“It is somewhat disturbing that an organisation the size of BHP can keep this important, rather subjective assessment of an employee out of sight of the employee,” she said.

Commissioner Hunt found BHP was wrong in its assumption that Macklin had previously trained contract workers and it was wrong not to tell Macklin that it suspected his written apology had been “concocted” by the union – and was one more reason why he was being dismissed.

The Commission ordered the company to reinstate Macklin to his $151,000-a-year job and pay him $44,961 in lost wages.

In closing, Commissioner Hunt offered Macklin some helpful advice.

Having noted that he “cannot escape his past conduct” she recommended that, on his return to work, he would be “properly advised” to “follow direction, embrace change and above all, be respectful to all he encounters, whether he agrees with them or not.”

Employees must be given procedural fairness

George Calderon, lawyer and seconded consultant at Employer Advisors, said the case was a reminder that employers must follow correct processes and procedures when dismissing a worker.

“So many businesses get this wrong – even ones with HR departments full of employees – where the Fair Work Commission expects them to follow their own procedures and procedural fairness.

“Workers must always be given procedural fairness, and that includes being told about all of the allegations against them, and they must be given an opportunity to respond, before they are given the boot.

“If you are planning to commence disciplinary action against an employee, or if you are planning to sack someone, you should always get expert advice from an industrial relations professional.

“If you get it right the first time, you will ultimately save yourself time and money and an appearance before the Fair Work Commission.”


Go deeper

READ MORE:  Commissioner Hunt’s full decision

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RELATED STORY:  When can you sack an employee without warning

RELATED STORY:  Business loses unfair dismissal because it ‘jumped the gun’


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