BHP appeals Fair Work order reinstating fighting miner

The miner was sacked for punching a co-worker twice during a late-night fight at work.

BHP is appealing against a ruling reinstating a miner sacked over a work fight.

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BHP is appealing against a Fair Work decision that ordered the reinstatement of a miner sacked for punching a co-worker twice during a late-night fight at work.

Commission deputy president Terri Butler ruled the sacked miner was entitled to defend himself rather than allow a colleague to attack him.

In appealing against the decision, BHP argued the decision contained errors of fact and law, claiming Ms Butler ultimately reached the wrong conclusion about whether the sacked worker was acting in self-defence when he punched the co-worker.

The two men, aged in their 50s, were passengers in a Toyota HiLux being driven on a haul road at the Caval Ridge mine in Queensland’s Bowen Basin by a third man shortly after 10.30pm on a shift last year. The sacked worker was in the front passenger seat and his co-worker was in the rear passenger seat.

The altercation started after the sacked worker said to the co-worker: “I think my dozer is sick of cleaning up after your dozer.”

After arguing and swearing at each other, the co-worker leaned forward and grabbed at the sacked worker from behind, causing minor injuries to his face. As they struggled, he bit the sacked worker’s left thumb.

The driver stopped the car and told them to stop fighting. The sacked worker got out of the car, and opened the back door where the co-worker was sitting. The two tussled, and the sacked worker punched the co-worker twice and got hold of his hands, before they eventually stopped.

The sacked worker subsequently complained to police that the co-worker had assaulted him. A day after the fight, the co-worker resigned, writing that he had let himself down through his ­“totally unbecoming behaviour” and asked that the sacked worker not be dismissed.

When sacking the worker, BHP said his unacceptable behaviour breached its “charter ­values”.

Ms Butler found a company manager investigating the incident did not keep an open mind and “had a very rigid and narrow view about whether self-defence could ever be available as a justification in circumstances where a person had hit someone”.

Finding the dismissal harsh, unjust and unreasonable, she said: “It was harsh in light of the circumstances of the altercation and the lack of any adverse disciplinary history”; and “It was unjust because [the worker] was entitled to defend himself rather than allow a co-worker to attack him, and his acts were proportionate and reasonable in the circumstances.”

BHP expressed concern that Ms Butler’s decision to reinstate the worker did not properly take into account evidence indicating reinstatement was an inappropriate remedy in the circumstances.

BHP will argue that violence of any form is not acceptable in modern workplaces and that this position is consistent with community and industry standards.

Confirming the appeal, a BHP spokesman said the company’s “commitment to maintaining a workplace completely free of any violence obliges us to appeal this decision”.