How to bungle a termination…

…even when you are a large employer with heaps of resources.

One Minute Summary

The employee was terminated after being involved in three altercations at a mine site.
During Commission proceedings it became clear that the final written warning in relation to the first incident was not justified as the employee had not actually been threatening or intimidating.
The investigation in to the second and third incidents was quite flawed and inadequate. The investigator made a recommendation to terminate which was followed by the senior manager without properly reviewing the background.
The employee was terminated for threatening and intimidating behaviour when it was actually the other person involved in the altercation. A proper and complete investigation would have shown this.
The employer viewed an apology during the Show Cause meeting as an admission of guilt. The Commission did not accept this stating it was more about being involved in the incidents.

Mr Mouat had been employed at the Goonyella Riverside Mine in Queensland for approximately 5 years. For most of that he had an positive work record and had been promoted into a technical role.

Following three incidents (January 2024, April 2024 and September 2024) he was terminated in April 2025 for misconduct represented by threatening and intimidating behaviour.

While working at the mine he met his Partner and formed a relationship. She worked on the same site and is not named in the decision.

Following the January 2024 incident, he was issued with a Final Written Warning for ‘threatening and intimidating’ behaviour. The incident involved another employee who was speaking in a derogatory manner about his partner. During the meeting to issue the Final Written Warning Mr Mouat challenged the wording stating there had been a loud conversation and some swearing but he had not acted in a threatening or intimidating manner. The manager accepted this and agreed to replace ‘threatening and intimidating’ with “tone and swearing”. However, when issued with the Final Warning ‘threatening and intimidating’ had not been removed but the additional words (tone and swearing) were tacked on the end. This warning was issued in April after a complaint had been lodged some months after the incident in January.

Two further incidents occurred in April and in September between Mr Mouat and a Mr Brazier. Mr Brazier reported the April incident at the same time as the September incident.

Both incidents were verbal altercations and concerned Mr Mouat approaching Mr Brazier about his derogatory comments and inappropriate behaviour concerning Mr Mouat’s partner.

An investigation was initiated by HR onsite. The person who started the investigation was taken off the matter part way through and was replaced by another HR person – who Mr Mouat did not view as independent. Mr Mouat complained about this with no change.

Mr Mouat continued working while the investigation proceeded but was suddenly suspended (on full pay) during the investigation without a specific reason.

Mr Mouat was brought back on to site in November 2024 and presented with a ‘Show Cause’ letter as to why he should not be terminated. During that discussion Mr Mouat attempted to explain the reason for his discussions with Mr Brazier were in relation to his behaviour towards his partner.

A week prior to the Show Cause letter being issued Mr Mouat’s partner lodged a sexual harassment complaint against Mr Brazier and others at the site.

The manager who was issuing the Show Cause letter decided to put Mr Mouat disciplinary/termination process on hold pending the outcome of that investigation. Mr Mouat continued to be suspended from work and paid while this occurred.

Some 4 months later the investigation was concluded into Mr Brazier and resulted in him being terminated due to his behaviours.

Mr Mouat was then asked to come back to site and was terminated for intimidating and threatening behaviours in April and September based on the January Final Written Warning.

Fair Work Commission

In a very long and detailed decision the Commission effectively reinvestigated the incidents and revealed some interesting potential flaws in the process leading to the termination.

The senior manager who made the decision to terminate had been provided with an email from the HR investigator with a recommendation to terminate Mr Mouat based on intimidating and threatening behaviours. In accepting that recommendation the manager did not ask the HR investigator how they came to that recommendation. He reviewed the matter at a high level and made no attempt to examine the details in the investigation.

The senior manager stated Mr Mouat ‘demonstrated a lack of insight into his behaviour and tried to justify it by reference to the treatment of his partner’ (by Mr Brazier). The manager stated that Mr Brazier’s behaviour towards Mr Mouat and his partner did not absolve or mitigate his misconduct. He should not have approached Mr Brazier but reported the allegations in the appropriate way.

The manager also stated the apology given by Mr Mouat during the Show Cause meeting proved that he was guilty of the misconduct otherwise why would he apologise. The Commissioner refuted this assumption stating “It is not to be an admission that he acted in an intimidating and aggressive manner and was no more than an apology for being involved in the events themselves”

During the unfair dismissal proceedings it became apparent that a number of witnesses were not interviewed during the investigation. They were in a more advantageous position to hear the details of the altercation. As the facts became more obvious it was Mr Brazier who had been aggressive and not Mr Mouat. Evidence later revealed that during their interactions Mr Brazier had aggressively called Mr Mouat ‘mentally unstable’ and ‘crazy’ during his attempt to ask him to stop harassing his partner. While Mr Mouat had been loud he had not been aggressive.

Prior to the September incident Mr Mouat had talked to two supervisors about talking to Mr Brazier directly to ask him to stop his behaviour towards his partner on site. They had cautioned Mr Mouat to keep his cool but allowed him to talk directly to Mr Brazier about his derogatory comments about Mr Mouat’s partner. While the (flawed) investigation stated that Mr Mouat was aggressive in that discussion the full evidence presented in the hearing indicated it was Mr Brazier who had been intimidating and Mr Mouat had been relatively controlled.

The Final Written Warning issued in January was obviously flawed. It was based on supposed ‘threatening and intimidating conduct’ rather than the loud conversation and swearing which had occurred. The Commission stated that ‘tone and swearing do not justify a final written warning given the norms of the site’ .

As mentioned at the start the Commission effectively reinvestigated the incidents to find the facts of what had occurred. It also highlighted differences between the original witness statements and evidence presented to the Commission. Some of these differences (in the hearings) were in the applicant’s favour.

In conclusion the Commission found the initial incident in January may have justified a warning but not a final written warning as the matter was not that serious. The later two incidents in April and September did not involve intimidating and aggressive behaviour and therefore there was no valid reason for a dismissal.

The Commission set a date for a Directions hearing to deal with remedy. Unless the matter is settled before any such hearing I would envisage there being a substantial monetary award. Given Goonyella Mine is part of BHP any cost will be negligible to the bottom line.

Commentary

The monetary award the employee is likely to receive will be substantial. For a large company this is bearable but for most businesses it will hurt financially.

The initial incident had been mismanaged resulting in the issuing of a final written warning when it clearly was not justified.

The investigation following the September and April incidents had been undertaken by two HR staff. It became clear that this investigation was incomplete and inadequate. This contributed to the incorrect recommendation and then the decision to terminate. In the absence of any evidence to indicate that this was deliberate it can only be put down to inexperience or incompetence.

An investigator normally issues a report based on the facts of the matter with statements attached. This is then carefully analysed by the manager who makes the decision on next steps. They may consult with the investigator in coming to a conclusion.

The findings into Mr Brazier’s behaviour (and subsequent termination) did not excuse or absolve the Mr Mouat’s so called ‘misconduct’. To some extent this is correct, but the behaviour needs to be examined as well as the context – as well as whether there was any real misconduct.

It is important to note that a prior final written warning (which is not justified) which then results in a later termination is likely to make that later termination invalid. Any higher-level warnings (especially the one prior to termination) must fit the grade of misconduct that occurred.

The nature of the workplace should be considered in assessing whether an altercation resulted in misconduct. A mine site has a different ‘normal’ culture in comparison to a white-collar office environment. Every conversation with raised voices should not be interpreted as intimidation and aggressiveness

It is interesting to note that the employer was aware of derogatory and inappropriate behaviour but did not initiate an investigation until Mr Mouat’s partner lodging a formal complaint. When an employer becomes aware of such behaviour, they must initiate an investigation.

Please contact Hunter Employee Relations if you require assistance with issuing warnings or are initiating a termination process.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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