The Construction Forestry, Mining and Energy Union took BHP Coal to the FWC after the major gave the employee “verbal counselling”, which is “Step 1” in the “just culture decision tree” disciplinary process in BMA’s Guideline to Fair Play Policy, which is behind a formal warning and a final warning before dismissal.

On the night of August 19, 2013, Reyes was driving a water tanker operating in the Peak Downs open cut coal mine when another water tanker slipped on a road within the mine and toppled onto its side.

The accident led to the driver of the affected water tanker suffering injuries. The water tanker was damaged beyond repair and was replaced at a cost to BHP Coal of $1.2 million.

Reyes maintained that when applying the water he followed the standard procedure for doing so and therefore any disciplinary action was inappropriate.

The kicker in the case is that Reyes advanced to step 3 in the Fair Play Policy disciplinary process – a final warning – because, for reasons unrelated to the events of August 19, 2013, he was at that time at Step 2, a formal warning.

FWC commissioner John Lewin agreed that the superintendent (production pre-strip) at the Peak Downs Mines – named only as Mr Perry in the findings – was wrong in construing that Reyes overwatered the road intentionally.

However, as the case before him only pertained to Reyes being verbally counselled according to Step 1, Lewin said that disciplinary action in itself was fairly lenient, and even praised BHP for what could potentially have been harsher consequences.

“Over the last five years or so, the decisions of courts and tribunals have been critical and sometimes scathing of corporate human resource management policies and procedures or the failure of management to apply them properly,” Lewin said in his ruling.

“The policies and procedures in this mine are well developed and the human resources management practice is commendable. There is always a need for well trained and diligent application of such policies and practices in order that they lead to appropriate outcomes.

“The application of good policies and procedures affecting the management and performance of employees also requires time, effort, good judgement and a fair process for employee participation.

“In my observation, those qualities were present throughout the fair play policy and just decision tree process and the application of the dispute settlement procedure under the Agreement which brought this matter before the commission.”

Lewin said the nature and consequence of the verbal counselling for Reyes was “relatively benign”, and is the lowest level of disciplinary action in the Fair Play Policy.

“Moreover, there would be and was no effect on the continuity of Mr Reyes’ employment or his terms and conditions of employment,” Lewin said in his ruling.

“The verbal counselling would lapse and extinguish as part of Mr Reyes’ employment profile within the time frame of 12 months and indeed has elapsed uneventfully at the time of the decision in this matter.”