Workers who reportedly continually bullied a colleague for working too hard have lost their unfair dismissal case.
Former Rio Tinto Mt Thorley coal mine worker Scott Kedwell has had his application for unfair dismissal rejected after the court found his bullying actions – over a colleague ‘working too hard’ – warranted his dismissal by Rio Tinto.
It comes only a year after it was revealed that Hunter Valley coal miners made more claims regarding workplace bullying than any other region in NSW.
The string of incidents, which involved Kedwell, Brendan Neuss, Zachary Fay, and an unnamed worker referred to only as X – all of whom are members of the field maintenance team at Mt Thorley – ran over a number of years, and culminated in a dangerous incident on the Golden Highway, in February this year.
According to court documents, X was subjected to unreasonable conduct in the workplace, including the aforementioned workers putting rocks in his bag, hiding his bag, painting his workboots and pants whilst he was wearing them, and making continual jokes at his expense.
He also had his hardhat knocked off whilst undertaking maintenance of an excavator, after Neuss and Fay threw Vaseline coat rags at him.
During this time, it was recorded that X did not complain to directly to Rio Tinto about the conduct; instead seeking to ‘get on with his job’.
However, he did tell a maintenance superintendent, Matthew Still, “I don’t know why they keep playing pranks on me. I don’t know what I am doing or saying that might cause it”.
“I just want to come to work, do what the supervisor tells me, then go home. I don’t want to be the black sheep of the team.”
X was unsure of why he was the target of bullying, although he was reportedly told by both Neuss and Fay to “stop doing what you’re doing, stop working how you do, you’re breaking down our conditions”, which X believes “is probably a reference to his work ethic and the amount of work he gets through during a shift,” Fair Work Commission commissioner Tony Saunders said.
“Regardless of the motive for the unreasonable conduct against X, it should not be happening.”
The issue came to a head when Kedwell, Neuss, and Fay drove in such a way as to box X in on the Golden Highway and prevent him from turning to head home, after planning to do so on Rio Tinto’s site.
Court documents state that as “X approached the overtaking lanes at the Broke Road intersection on the Golden Highway, he merged into the right lane and as he did so Mr Neuss, who was still driving in front of X, also merged into the right lane and slowed down. X saw the brake lights on Mr Neuss’ car come on. This caused X to brake.”
“X then moved back across into the left lane and sped up in an attempt to pass Mr Neuss. However, as X sped up so did Mr Neuss, Mr Fay and Mr Kedwell, with the result that X was travelling in the left lane at about the same speed and beside Mr Neuss in the right lane, who was closely followed by Mr Fay and then Mr Kedwell. X then slowed down to about 50 or 60km/hour and put his right hand blinker on in an attempt to get back into the right hand lane, which is where X needed to be in order to turn right into the Mitchell Line of Road on his way home. As X slowed down, so did Mr Neuss, Mr Fay and Mr Kedwell. X was unable to get back into the right lane.
“In the result, X was “boxed” into the left lane and could not get into the right lane to turn right off the Golden Highway to the Mitchell Line of Road. X had no choice but to go straight through the Mitchell Line of Road intersection. Further down the road X did a U-turn and travelled back to the Mitchell Line of Road, where he turned left towards his home.”
The findings added , “X asserted that Mr Kedwell looked across at him as they were driving next to each other on the Golden Highway and laughed, smiled or grinned at him. X also claims that Mr Neuss and Mr Fay laughed at him when he was driving next to each of them on the Golden Highway.”
Neuss also later told another worker, “we were just playing with … [X] to stop him from turning right.”
Following this incident Rio Tinto dismissed Kedwell and Neuss, and issued Fay with a final written warning.
Kedwell then applied for unfair dismissal, however this has been summarily rejected by the Fair Work Commission, which supported Rio Tinto’s move to stand down its workers under its Anti-Discrimination, Sexual Harassment and Bullying Policy.
Saunders stated, “Mr. Kedwell’s conduct in participating in the bullying of X on 11 February 2016 was unreasonable, without justification or provocation, and serious.”
“There is no question that an employee (X) of (Rio Tinto subsidiary) Coal & Allied Mining Services (Mt Thorley) has been bullied in a serious and unacceptable way by people with whom he worked.
“Kedwell’s dismissal was based on his substantial breaches of Mt Thorley policies and his unreasonable harassment of another employee (X) on his way home from work.”
The FWC stated Mt Thorley’s dismissal of Kedwell was not harsh, unjust, or unreasonable, and rejected Kedwell’s unfair dismissal application.