Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 16 July 2024, Mr Ben Hutchins (Mr Hutchins) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy alleging that he had been unfairly dismissed from his employment with BHP WAIO Pty Ltd (BHP). Mr Hutchins seeks compensation for his dismissal.

[2] From the outset, I would like to acknowledge that I do not doubt the sincerity or seriousness of the adverse health reaction suffered by Mr Hutchins. My findings in relation to the validity of the decision of BHP to terminate Mr Hutchins' employment should not be taken as my not accepting or my questioning of the sincerity of Mr Hutchins' evidence. I have no doubt that the medical diagnosis and the impact it has had on Mr Hutchins has been life-altering, and I extend my sincerest sympathies for such circumstances.

[3] It is not in dispute that Mr Hutchins was a person protected from unfair dismissal, and I so find that:

• Mr Hutchins filed his application within the required 21-day period;

• Mr Hutchins was a person protected from unfair dismissal as he earned under the high-income threshold at the time of his dismissal;

• Mr Hutchins had been employed for more than 6 months at the time of his dismissal;

• Mr Hutchins' employment did not end by way of genuine redundancy; and

• The Small Business Fair Dismissal Code did not apply to Mr Hutchins, as BHP employed more than 15 employees at the time of his dismissal.

[4] The parties attended a conciliation before the Commission on 16 September 2024. However, they were unable to resolve the matter.

[5] The matter was then listed for hearing on Friday 8 November 2024. Prior to the hearing, Mr Hutchins filed submissions on 7 October and 28 October 2024. BHP filed submissions on 21 October 2024. At the hearing, BHP was represented by HWL Ebsworth who instructed Mr Nico Burmeister as Counsel, Mr Hutchins was self-represented. I granted permission for BHP to be represented, pursuant to section 596(2)(a) of the Act, being satisfied that, due to the complexity of the matter, granting permission would allow for the matter to be dealt with more efficiently and effectively. Mr Hutchins gave evidence on his own behalf and Mr Robert Hall (Mr Hall), Acting Manager for Maintenance and Water, gave evidence on behalf of BHP.

[6] Mr Hutchins commenced employment with BHP on 19 December 2018, he was initially employed as a Technician - Plumbing and, at the time of his dismissal, he was employed as an Engineering Technician - Mechanical Water. Mr Hutchins resides in Perth and was employed on a fly-in fly-out (FIFO) basis to work in Newman. It is not disputed that Mr Hutchins' position involved physical outdoor work in remote locations.

[7] In October 2021, in response to the COVID-19 pandemic, BHP introduced a vaccination policy, this policy was implemented in response to the policy introduced by the WA state government. Mr Hutchins had his first COVID-19 vaccination on 20 October 2021. Mr Hutchins' evidence is that, shortly after his first vaccination, he started feeling unwell and commenced having heart related issues. Mr Hutchins provided copies of medical evidence to support this submission.

[8] On 26 November 2021, Mr Hutchins was onsite and rushed to a medical facility, at BHP's Yandi site, for a medical evaluation following acute heart related issues. Subsequently, Mr Hutchins left site and returned to Perth on or around 28 November 2021. Mr Hutchins would not return to site after this date.

[9] Upon returning to Perth, Mr Hutchins was diagnosed with pericarditis on 5 December 2021. Mr Hutchins provided copies of medical records to support this diagnosis. Following the initial diagnosis, Mr Hutchins and BHP were in regular and consistent contact regarding how a return to work might be managed. However, over the course of the following two and a half years, the contact between the parties reduced to the extent that there were extended periods (over three months) without any communication between Mr Hutchins and BHP. Both parties provided copies of the extended communication between themselves. For the sake of brevity, I will avoid repeating or replicating the correspondence in this decision.

[10] Mr Hutchins provided a large quantity of material in relation to his application. Again, for the sake of brevity, I will not be outlining these in detail. A significant portion of the materials provided by Mr Hutchins concern BHP's vaccination policy, the WA state government vaccine mandates that were in place for a period, and other BHP workplace policies. Mr Hutchins also provided a large quantity of emails between himself, BHP, and BHP's representatives. These communications often discuss medical appointments, Mr Hutchins' medical exemption, and other information about his diagnosis.

[11] Mr Hutchins makes several specific submissions concerning considerations relevant to other causes of action (for example, those under the General Protections), such as allegations that BHP has taken adverse action against Mr Hutchins due to a physical disability.

[12] BHP submits that there was a valid reason for the termination of Mr Hutchins, being that he could no longer meet the inherent requirements of the position. It is the Respondent's position that, as Mr Hutchins had been absent from the workplace for over 950 days, and with no clear medical evidence indicating an imminent or likely return, there was a valid reason for termination relating to Mr Hutchins' capacity.

[13] BHP also notes that Mr Hutchins had been requested to attend multiple fitness for work medicals, including on 8 November 2022, 5 December 2022, 20 December 2022, 21 February 2023, and 14 March 2023. However, Mr Hutchins states that he was unable to attend the medicals as he was not fit for work. BHP notes that Mr Hutchins, at the time of the hearing, was still incapable of performing the inherent requirements of his position.

[14] A notable submission that Mr Hutchins puts forth in relation to the criteria that the Commission must assess in an unfair dismissal application (under section 387 of the Act), is that BHP failed to provide him with adequate time to respond to the show cause letter. BHP sent a show cause letter, by registered post, on 12 June 2024. The show cause letter confirms that BHP was considering the termination of Mr Hutchins employment, citing medical incapacity.

[15] Mr Hutchins submits that the letter, sent by registered post, was a deviation from how BHP had previously communicated with him regarding his employment. Mr Hutchins submits that, as he did not become aware of the letter until a copy was emailed to him on 25 June 2024, he did not have a reasonable opportunity to respond, leaving only 24 hours, to respond to the show cause deadline set at 5:00pm on 26 June 2024. Mr Hutchins submits that, due to his health issues, he was incapable of providing a response by the required deadline.

[16] BHP submits that they provided Mr Hutchins with the reason for his potential termination and an opportunity to show cause in the letter mailed to Mr Hutchins on 12 June 2024 and emailed on 25 June 2024. BHP submits that the reason for sending the letter by registered post was due to previous issues raised by Mr Hutchins, including that he had changed his mobile phone number without advising BHP and had raised concerns over being harassed by email. These concerns are verified in emails between the parties. BHP submits that, in circumstances where Mr Hutchins confirmed that he was house bound and had a carer assisting him, sending the show cause by registered post was a rational and reasonable decision.

[17] BHP also submits that, even if they had sent the show cause letter by email instead of registered post, this would not have changed the result. BHP submits that Mr Hutchins had the show cause letter by, at the latest, 25 June 2024 and received his termination letter on 8 July 2024. BHP submits that, in the circumstances, due to the medical incapacity suffered by Mr Hutchins, it is highly unlikely he could have provided any significant information during the show cause process that would have changed the practical reality or outcome.

[18] BHP submits that this situation was contemplated by the former Deputy President Bartel in David Lawless v Qantas Airways Limited,[1] when it was observed that there might be cases where a failing in the process leading to termination is of "no consequence because the outcome would have been the same".

[19] I find that BHP had a valid reason to terminate Mr Hutchins' employment related to his capacity to work for BHP (s 387(a)), as Mr Hutchins had been absent from work for more than 950 days (the vast majority of which was unpaid leave) and there was no discernible medical evidence as to when or if Mr Hutchins could return to work with BHP.

[20] I find that Mr Hutchins was notified of the valid reason and provided with an opportunity to respond to the valid reason (ss 387 (b) and (c)). I acknowledge that the 24-hour period to respond to the show cause letter may have felt short to Mr Hutchins. However, there is no minimum period that an employer must allow for an employee to provide a response to a show cause process, rather, it must simply be reasonable in the circumstances. I also note that, although BHP could have emailed a copy of the letter once it had been posted to Mr Hutchins (as opposed to some 13 days later), I do not consider such an oversight to be a material failing by BHP. I find that the period of 24 hours was not an unreasonable period for Mr Hutchins to provide a response or, at least, respond by seeking additional time from BHP to provide a response. I accept the evidence of Mr Hall that, had Mr Hutchins requested an extension to reply, he would have accommodated such request. Mr Hutchins was provided with an opportunity to respond to the reason for his termination prior to a decision being made, however, Mr Hutchins did not respond, nor did he seek additional time to provide a response. Given the prolonged absence from work and noting that, as of the date of the hearing, Mr Hutchins has not been able to provide any information that would suggest the valid reason for his termination (medical incapacity) was incorrect, I am satisfied BHP's reference to the decision in Lawless is relevant.

[21] There is no suggestion that BHP unreasonably refused any request for a support person (s 387(d)). As the dismissal of Mr Hutchins did not relate to unsatisfactory performance, s 387(e) is not a relevant consideration. Regarding sections 387 (f) and (g), BHP is a large employer with both internal and external human resources and industrial relations management support and the procedures followed in the dismissal are consistent with what would be expected by such an organization.

[22] Regarding other relevant factors (s 387(h)), I will address issues that were raised by Mr Hutchins in relation to his dismissal.

[23] Mr Hutchins provided a significant volume of material regarding numerous concerns including, but not limited to, the below items:

• Implementation and duration of BHP's COVID-19 vaccination policy.

• BHP not recognizing his medical exemption from further COVID-19 vaccinations.

• Differences between BHP requirements and WA state government requirements.

• Requests to attend fitness for work medical appointments.

• Concerns about contact from BHP (noting the volume of emails and after-hours phone calls).

• Concerns regarding the application of BHP internal policies.

[24] I am not going to address the above items individually, however, there is no evidence that these items (or any of the other concerns) were a factor in Mr Hutchins' termination from BHP. The reasoning that has been provided by BHP for the termination of Mr Hutchins' employment is medical incapacity, not for unwillingness or inability to take further COVID-19 vaccinations or concerns he raised about BHP policies.

[25] Mr Hutchins also raised concerns that BHP did not make a reasonable accommodation and offer him a work from home position. Mr Hutchins submits that he consistently showed a willingness to work in a modified capacity, such as remote work or reduced hours. I accept that there were discussions between BHP and Mr Hutchins about remote work from home arrangements in early 2022, over two years before the eventual termination of employment. However, it was deemed that Mr Hutchins could not perform this work due to his condition at that time. At the time of his dismissal, Mr Hutchins had not provided BHP with any medical clearance or similar which would suggest he was able to perform remote work or reduced hours from home. The information that BHP had was that Mr Hutchins was unfit to perform the inherent requirements of his position, that being a FIFO site-based Engineering Technician - Mechanical Water, nor had they received any medical clearance that suggested Mr Hutchins could perform an alternative position from home. Importantly, there is also nothing before the Commission to suggest that BHP's conclusion was unfounded. Having considered the materials before me, I do not accept the submission regarding a denial to make reasonable accommodations.

[26] Mr Hutchins suggests that BHP took retaliatory action against him by terminating his employment because of concerns raised about his missing personal belongings not being returned to him. I accept that, on 7 February 2024, there was an email exchange between Mr Hutchins and Mr Hall in relation to his personal belongings. Again, having examined the communication trail between the parties, I do not believe there is supporting evidence or a reasonable suggestion that Mr Hall's decision to terminate Mr Hutchins was motivated by this item. Rather, I am satisfied Mr Hall's decision to terminate Mr Hutchins' employment was for the valid reason articulated earlier in this decision.

[27] Having considered the matters in s 387 of the Act, I have determined that the dismissal of Mr Hutchins was not harsh, unjust, or unreasonable. It was therefore not unfair.

[28] Accordingly, the application is dismissed, an Order to that effect is issued.[2]

N Burmeister of Counsel on behalf of the Respondent.

[1] [2015] FWC 6456, [90].

[2] [PR784671].

Printed by authority of the Commonwealth Government Printer