The Fair Work Commission (FWC) has ruled in favour of Roy Smout, a former BHP Coal Pty Ltd employee, finding that his dismissal for alleged sexual harassment at Blackwater Mine was procedurally unfair, despite some of the allegations being substantiated. Smout, who had been employed by BHP for nearly 38 years, was dismissed in March 2024 following complaints by two female cleaners about inappropriate comments.
Background of the Case
In early March 2024, Mr. Smout was accused of making inappropriate and sexually suggestive comments to two cleaners employed by ESS Support Services at Blackwater Mine. The complaints included allegations that Smout made remarks questioning one cleaner’s trust in her partner, who worked in Western Australia, and made the comment: “What happens in WA stays in WA,” implying potential infidelity. Additionally, the complainants alleged that Smout made offensive comments about their work and suggested they could use their bodies to provoke a male supervisor into giving them a job.
BHP conducted an internal investigation, led by Patrick Ritchie, a contractor from Minter Ellison. The investigation resulted in the substantiation of the allegations, and Smout was dismissed on 28 March 2024. However, Smout contested the dismissal, filing an application with the FWC for an unfair dismissal remedy under the Fair Work Act 2009.
Flawed Investigation and Rushed Dismissal
The FWC found that while the allegations against Mr. Smout regarding inappropriate conduct were substantiated, the process leading to his dismissal was flawed. Commissioner Riordan criticised BHP’s investigation for several procedural failures, including the lack of independence in the investigation and the failure to interview key witnesses. It was noted that the investigation was rushed due to the impending sale of Blackwater Mine to Whitehaven Coal, which was scheduled for early April 2024.
Mr. Smout was only given a brief opportunity to respond to the allegations in a “show cause” meeting on 28 March 2024, which lasted less than 10 minutes. After a short break, his dismissal was confirmed. The FWC found that this denied Smout a fair opportunity to properly defend himself, as the standard seven-day period for responding to such serious allegations was not followed.
Decision
The Fair Work Commission concluded that while Mr. Smout had made some inappropriate comments, not all allegations against him were substantiated. Specifically, the Commission found that while he had indeed made offensive remarks about the trustworthiness of one of the complainants’ partners, the suggestion that the complainants should use their bodies to secure jobs was serious misconduct that breached BHP’s Code of Conduct, the Fair Work Act 2009, and the Sex Discrimination Act 1984.
The Commission criticised the investigation process, noting flaws in the handling of the allegations, including the failure to interview potential witnesses and the rushed nature of the investigation due to the impending sale of the Blackwater Mine to Whitehaven Coal. Despite these issues, the Commission upheld that the comments Mr. Smout admitted to were of a sexual nature and constituted harassment, giving BHP a valid reason for dismissal.
Fair Work Commission’s Ruling
The FWC ruled that while BHP had a valid reason to take disciplinary action against Smout, the termination was unfair due to the lack of procedural fairness in the investigation and dismissal process. Commissioner Riordan emphasised that the rushed nature of the process, combined with the investigator’s lack of independence and the failure to interview key witnesses, rendered the dismissal unjust.
The Commission did not order reinstatement, citing the seriousness of Smout’s conduct and the breakdown in trust between him and BHP. However, it awarded Smout compensation equivalent to one week’s pay, acknowledging that a more thorough process would likely have led to his dismissal, but with fairer procedures.
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