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June 2019

The FWC requires consistent disciplinary treatment of employees

Cordowiner v Ashton Coal Operations Pty Ltd (2019)

The Case

Mr Cordowiner, a mechanical fitter for Ashton Coal Operations Pty Ltd (AC Operations), was issued a written warning for breaching AC Operations’ Energy Isolation Procedure. It was alleged Mr Cordowiner had failed to isolate a vehicle from its power source before commencing work – lifting the rear chassis of a vehicle to replace Banjo fittings.

The Construction Forestry Maritime Mining and Energy Union (CFMMEU), on behalf of Mr Cordowiner, made an application to the Fair Work Commission (FWC) in accordance with the dispute settlement procedure in the Ashton Underground Mine Enterprise Agreement 2012. The FWC was asked to determine if the warning was unjust or unreasonable.

The Verdict

DP Saunders had to interpret the phrase “commencing work”, which he found did include preparatory work such as lifting a chassis. DP Saunders found that by not isolating the power source, Mr Cordowiner had committed a safety breach. However, he found it was unreasonable for AC Operations to have issued the warning in this case.

DP Saunders found it was common practice in the workplace to lift plant and equipment before isolation. While this was a breach of the Energy Isolation Procedure, it was not policed by AC operations. Hence, issuing the warning to Mr Cordowiner constituted differential treatment of an employee.

In addition, DP Saunders found that the failure to isolate only carried a small risk of injury.

AC Operations was ordered to withdraw the warning it had issued Mr Cordowiner.

The Lessons

Compliance with policies and procedures by employees needs to be consistently enforced, not enforced on an ad hoc basis. Enforcing them inconsistently results in differential and unfair treatment of employees, which may mean an employer cannot rely on that reason for disciplinary action. It also exposes the business to a breach of health and safety legislation, the risk of workplace injuries and prosecutions.

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