A mine worker who was sacked after posting a photo to Facebook that showed him standing on top of a piece of heavy machinery with its engine running, has lost his unfair dismissal claim.
The Fair Work Commission found that Global Mining Services had a valid reason to sack the worker because he had breached the company’s health and safety policies, and had shown no remorse for his conduct.
When he was asked why he posed for the photo, the worker responded because he thought “it’d look just as cool as hell”.
Naresh Connolly-Manga was an experienced underground coal miner who started working for Global Mining Services in early 2018, at Whitehaven Coal’s underground coal mine in Narrabri.
In August, while waiting with some workmates, he decided it would be a good idea to pose for a photo.
Mr Connolly-Manga climbed on top of an Eimco load, haul, dump machine, which was parked, but still had its engine running.
He stood on top of the Loader with one foot on top of the cab while holding a large metal roof bolt in his right hand which he later posted on Facebook.
When Global Mine Services saw the photo, it commenced an investigation, before summarily dismissing him for serious misconduct.
What the Fair Work Commission heard
Mr Connolly-Manga argued that his dismissal was harsh, unjust and unreasonable.
While he accepted that his conduct was out of line and was a silly thing to do, he did not accept that he could have fallen off the machine or that his conduct amounted to a breach of the employer’s policies or procedures.
He told the Commission that he had experience with loaders in his previous employment, and on the day the photo was taken, it was daylight, and the Loader was on an even surface with no obstacles or walls nearby.
Global Mine Services maintained its dismissal of Mr Connolly-Manga was not in any way unfair.
It argued that not only did he breach the company’s policies, be he also risked damaging its commercial relationship with Whitehaven Coal, and, in circumstances where Whitehaven is a key client of GMS, put GMS’s reputation, viability and profitability at risk.
Whitehaven had previously expressed concerns to GSM about the number of workplace injuries occurring at the mine, and requested an overhaul of safety procedures and training.
What the Commission ruled
Deputy President Tony Saunders found that Mr Connolly-Manga had been trained in a range of safety policies, rules and procedures, and therefore should have known that climbing on a piece of heavy machinery that was still running was a breach of those policies.
“I am satisfied that Mr Connolly-Manga engaged in substantial breaches of the Policy, Declaration, Procedure and Rules,” Mr Saunders said.
“As a result, GMS had a valid reason for his dismissal.”
Further, deputy president Saunders accepted that there were valid reasons for dismissal because Mr Connolly-Manga’s actions were not only risky in terms of safety, but also risked the employer’s reputation and business interests.
Mr Saunders was also critical of Mr Connolly-Manga’s refusal to accept that his actions posed a safety risk, and of the sarcastic explanation he gave to management that he posed for the photo because he though “it’d just look cool as hell”.
“These refusals, together with the contents of his response to the ‘show cause’ request demonstrate Mr Connolly-Manga’s lack of genuine remorse and acceptance of accountability for his conduct,” he said.
The Commission found that there was nothing unfair about the employee’s dismissal and his application was dismissed.
Be careful what you post online
George Calderon, employment lawyer and seconded consultant at Fair Work Claims, said the case should serve as a warning to all workers.
“Your boss is watching your social media, and he can sack you for it,” he said.
“It’s always a good idea to regularly check the privacy settings on all of your social media accounts, and make sure they are locked down – and whatever you do, never ever post anything that is critical of your employer or their clients or customers,” he said.
“And never post any photos of you doing the wrong thing – whether it’s breaking safety rules at a mine, or enjoying a day at the beach when you’ve called in sick to the office.”
Mr Calderon said workers who are accused of serious misconduct should seek urgent expert legal advice.
“Employers sometimes mistakenly think that a breach of a company policy is automatically serious misconduct and grounds for instant dismissal – but that is simply not the case,” he said.
“Any worker who is facing allegations of serious misconduct needs to speak to an industrial relations professional who can advise them of their options, and hopefully save them from being fired.”
George Calderon is one of our specialist team at Fair Work Claims who can help employees who have been unfairly dismissed from employment, or who are facing allegations of serious misconduct.
If you have been unfairly dismissed from employment, or are facing disciplinary action at work, we can help.
Please call our team at Fair Work Claims today on
1300 853 837