A BHP mine worker who was sacked after appearing in a Facebook photo exposing her cleavage while wearing her work uniform has won her unfair dismissal claim and $6,550 compensation.
The worker had also been responsible for a prank involving a sex toy at the local airport a few months earlier.
Although the Fair Work Commission found that the employee’s conduct was “unacceptable”, and denied her request to be reinstated, it was scathing of the mine management’s failure to follow its own ‘Fair Play Guidelines’ during its investigation into the matter.
“You just can’t have BHP turning up to defend unfair dismissal cases and using this guideline when it wishes and when it doesn’t,” Commissioner Jennifer Hunt told the employer’s representatives during the hearing.
The photo incident
Tara Odgers worked at the Caval Ridge Mine south-west of Mackay in Queensland from 2014 until she was dismissed in March this year.
On March 2nd, she stood on a table in a meal room at the mine, unbuttoned her top down to the last two buttons and then “provocatively bared the top of her breasts” while bending forward.
Two other female colleagues posed in a similar way in the photo.
At the time, Ms Odgers was wearing a pink breast cancer shirt which has a BMA logo on it, and is considered a BHP uniform.
The picture was later posted on Facebook by another worker, and was subsequently seen by a number of mine employees.
The sex toy incident
The previous October, Ms Odgers admitted to pulling a prank on a co-worker by putting a sex toy in his carry-on luggage at the local airport along with a butter knife she had taken from the workplace.
Airport scanners were activated when the co-worker went through security, and the sex toy was subsequently discovered in his bag.
Although mine management was aware of the airport incident, it did not commence an investigation until the following February.
All the workers involved in the photo incident were given first and final warnings, but on the basis of the previous airport sex toy incident, BHP decided to terminate Ms Odgers’ employment.
Worker argued photo was not offensive
Fair Work Employment Lawyers filed a claim on behalf of Ms Odgers in the Fair Work Commission, claiming she had been unfairly dismissed.
Ms Odgers argued that the company logo on the shirt she was wearing in the photo would not be recognisable by the general public, and that other workers had engaged in similar conduct and had not lost their jobs.
She told the Commission that she did not consider the photo was offensive, but conceded that it was inappropriate in a work setting when questioned by Commissioner Hunt.
Ms Odgers also argued the airport sex toy incident should not have been taken into consideration in her dismissal, because a formal investigation wasn’t commenced for nearly six months.
BHP failed to follow own guidelines
Commissioner Hunt said that while the mine had a valid reason to sack Ms Odgers, the dismissal was harsh and unjust because it did not follow its own ‘Fair Play Guidelines’ which were agreed to in the Enterprise Agreement.
The Fair Play Guidelines state that Ms Odgers should have been given the opportunity to meet with management to respond to the allegations against her.
“Of incredible concern to me is the abject failure of [BHP]… to adhere to its obligations to follow the BMA Guideline to Fair Play policy (Fair Play Guidelines).
“As I explained to the parties during the hearing, in other BMA or other associated entity matters that have been before me, it has often been presented that the Fair Play Guidelines are a “bible”.
“Most concerning was during the first day of hearing when it was suggested by [BHP legal] that [the employer] is not obligated to follow the Fair Play Guidelines.”
Worker deprived of workplace right
Troy Spence, Counsel acting for Ms Odgers, told the Commission that by failing to follow the steps in the guideline, it “deprived [Ms Odgers] an opportunity to respond to the allegations or have an opportunity to be engaged with that process as is her right set out in the Enterprise Agreement at clause 27.4.”
In her judgement, Commissioner Hunt continued with her extraordinary criticism of the employer’s conduct:
“I am deeply troubled by [BHP’s] failure to meet its lawful obligations to comply with the enterprise agreement it has entered into. The Fair Play Guidelines are a requirement to follow; they are not just something that can be completed whenever a manager decides he or she will do so.
“The size of [BHP] and its obligation to its employees warrants a firm position on this matter by the Commission as currently constituted. [BHP] was obliged to consult with Ms Odgers and inform her of its decision relevant to the Just Culture Decision Making Tree. She was entitled to be informed that following the investigation, [BHP] considered her conduct to be intentionally deviant…
“However, for [BHP] to have no regard at all to its obligations in this matter of applying the Fair Play Guidelines pursuant to the relevant enterprise agreement, means that despite there being a valid reason for the dismissal, and despite Ms Odgers knowing the context of [BHP’s] findings in relation to each of the incidents, I conclude that for the reasons above, the dismissal was unjust and unreasonable.
“Accordingly I determine that Ms Odgers’ dismissal was unfair.”
Commissioner Hunt did not consider it appropriate to reinstate Ms Odgers, and instead awarded her $13,100 compensation, with a discount of 50 per cent for her misconduct, making the final payout $6,550 plus superannuation.
If you have been unfairly dismissed from employment, you may be entitled to compensation.
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