Terminated over claims he breached BHP’s code of conduct in relation to an alleged “pattern of threatening and intimidating behaviour" towards colleagues, the resulting unfair dismissal case at the Fair Work Commission revealed that the claims against Fitzpatrick were largely based on the witness testimony of fellow shotfirer Dean Jenner.
Various colourful claims of Fitzpatrick’s alleged behaviour were raised in the case, with Fitzpatrick denying them as “unfounded or exaggerated”.
In a 2012 blast crew meeting over the “dog on the crew who is going to management” – the words of an unnamed employee – Fitzpatrick was accused of saying “dog or dogs would get bashed if they were found out” and that he told Jenner in particular: “I have cut tongues out for less than this.”
Fitzpatrick was also accused of confronting fellow shotfirer, Brett Spokes, for taking an unauthorised second crib break during his shift with Jenner previously telling a BHP production superintendent that he had threatened Spokes’ life over it.
However, Spokes denied his life was threatened and even told the commission that Fitzpatrick was one of the best shotfirers to work with.
Fitzpatrick was also accused of calling another worker a “dobber” and telling him to "just wait until we are out the gate, and I am on my bike, then you will know how dangerous I am". However, that worker never raised any incident that he was “bullied, harassed or threatened”
Fitzpatrick further told the commission that he never rode his motorcycle to work as he was required to wear his motorcycle club colours.
“Members of the shotfiring crew were unaware of his club affiliation until a new employee showed them a photograph of him wearing his club colours,” the FWC said in the decision document.
“It was the applicant’s evidence that he would only speak about his club involvement if asked which was fairly rare. He denied Mr Jenner’s references concerning his photograph being on Facebook dressed in club colours. In that regard, the applicant stated it was club policy was that no member photographs were to be placed on social media.”
While a lot of the evidence was based on Jenner’s previous claims to BHP management, he did not attend the commission hearings. The relevant BHP-employed legal representative said Jenner started experiencing “technical difficulties with his telephone whereby the telephone call was subsequently disconnected” when called to attend the hearing.
The lawyer attempted to contact him again but instead reached his voicemail and received no further contact from him.
During the hearings Fitzpatrick also said that he and other shotfirers were aware that Jenner would sneak away from work early, plus Jenner became “annoyed” when Fitzpatrick raised the prospect of informing management.
With Jenner unavailable for cross examination, Commissioner John Stanton took note of Fitzpatrick’s nearly ten years of exemplary employment in his finding on Friday that the dismissal was harsh, unjust and unreasonable.
“There was no evidence that prior to Mr Jenner raising allegations against the applicant that he had committed or been warned about similar behaviour,” he said in relation to the bullying claims.
“In my opinion, factors in favour of the applicant’s reinstatement include the alleged conduct was largely not proven to the requisite standard, the applicant’s long and uncontroversial employment record, a view amongst fellow crew members that they would be happy to work alongside him again and the fact that the respondent also regarded him as a good shotfirer.”
The commissioner ruled that Fitzpatrick be reinstated, including receiving lost pay for the time since his unfair dismissal.
