A Rio Tinto employee fired for swearing at his supervisor has had his unfair dismissal claim rejected by the Fair Work Commission.
Dump truck driver Trevor Godfrey was accused of intentionally driving over a windrow containing large rocks at the Mount Thorley-Warkworth mine on 29 September 2013.
Godfrey was dismissed on October 16 following an internal investigation by Rio Tinto Coal and Allied which found Godfrey had “engaged in inappropriate conduct whereby he spoke loudly, confrontationally and without respect”, and that he had said “ah f*ck you” to his supervisor.
Godfrey denied these allegations and sought reinstatement through representation by the CFMEU.
The former employee gave evidence that while driving haul truck number 741 (a Komatsu 830E DC dump truck) he had judged the windrow in question to be grader rill nine inches high and that he had not driven over any rocks.
Supervisor Rod Griffis called Godfrey into a crib hut, saying he had been driving behind Godfrey in a light vehicle, seen him drive over the rill at an intersection, and stopped to take photos of two rocks he contended Godfrey should have avoided.
However, Godfrey said he had not driven over any rocks and claimed Griffis had fabricated the photographs by positioning the rocks, but Griffis said he would issue a written warning, which allegedly led to Godfrey saying “ah f*ck you” to Griffis.
A letter presented in a show cause meeting on October 8 said: “This type of language and behaviour is inappropriate and a breach of the Rio Tinto Way We Work and RTCA Code of Conduct.”
Godfrey was then terminated on October 16.
In cross-examination at the FWC hearing, Godfrey acknowledged there had been promotion of a tyre performance program in toolbox meetings, which had conveyed the message that any rock larger than a fist would cause damage to tyres, worth more than $30,000 each.
Godrey also contended that he had been harassed and bullied by Griffis on a number of occasions.
Griffis contended that Godfrey had been abusive during their meeting about the incident, and that Godfrey had said words to the following effect: “Who the f*ck cares, it’s your word against mine”, “ah fuck you”, “I’ll take you to fucking court, you’re harassing me you can’t prove how big those rocks are”.
Another supervisor claimed to have heard the words “ah fuck you” from another office nearby the crib hut.
Grader operator Warren Daniel was called to give evidence, who said that around 20 to 30 dump trucks had driven over the grader rill that morning.
Godrey had been pulled up and warned on other occasions for speeding in a light vehicle, and failure to wear a hard hat.
The FWC found that Godrey was afforded procedural fairness throughout the investigation, which had identified clear and valid reasons for his termination, and dismissed the application.