Gender-specific observation

“In some respects, Mr Macklin might be considered to be a workplace ‘dinosaur’ on account of his conduct and demonstration of disrespect, at times,” Commissioner Hunt noted in a decision handed down in Brisbane on Monday.

“He has been employed by the one employer for 38 years, and like the character Brooks Hatlen in The Shawshank Redemption, he appears to me to have become institutionalised; resistant to change and outside pressures.

“He doesn’t know how other workplaces operate, and how over the many years since 1980 when he was first employed, workers across all industries have adapted to change, welcomed greater female participation, including more women in senior roles. Men are now often told what to do by women in the workplace, probably a rare scenario in the early 1980s,” Hunt wrote in her December 31 decision.

There are three reasons why the commissioner may have added that gender-specific observation.

First, Macklin had earned a formal warning from mine management in 2016 after he ridiculed a female bus driver who had told him to put his seat belt on while riding in her bus.

Second, because from June 1, 2017, Macklin had reported to Melissa Mouat. She is a supervisor at Goonyella and expressed concern during the hearing at the potential that Macklin might return to work at the mine.

And third, because Macklin earned a final written warning in August 2017 for his dismissive conduct at an externally operated training course that was run by a woman.

“I accept that over very recent years Mr Macklin has behaved poorly in specific circumstances,” Commissioner Hunt wrote.

‘Class clown’

“He has undoubtedly acted disrespectfully. Relevant to the bus incident, I consider that he was acting like a class clown, effectively informing the female bus driver that she had to pay more attention to driving than worrying about his seat belt being on because, after all, she is female.

“In an era when mine operators are doing their best to attract female workers, it is not helpful if a near-60-year-old man with decades of experience takes it upon himself to belittle a female bus driver in a bus full of, presumably, men. The driver is likely to have been humiliated,” she said.

“Relevant to the training course conduct, I consider that Mr Macklin behaved incredibly poorly. He showed contempt for the training, and in doing so was extraordinarily disrespectful …

“I find that he did make inappropriate references to breastfeeding in the workplace. It took one-and-a-half days for Mr Macklin to remedy his conduct. It is easy to presume that other participants in the course were aware Mr Macklin was employed by BHP, and accordingly, he was, for the first day-and-a-half, disgracing BHP’s reputation.”

Macklin’s inability to “recognise and concede” the “inappropriate” nature of his past conduct remained “concerning” to Commissioner Hunt.

“I consider that Mr Macklin has become ‘far too big for his boots’ in the manner in which he sometimes addresses people,” she observed.

Now, while that history informed BHP’s attempt to sack Macklin, it was not the final trigger for what has been found, ultimately, to be his unfair dismissal.

As well as being an expert grader and dozer driver, Macklin has been a rated trainer and assessor at Goonyella for the past 17 years.

Twice refused direction

These are positions authorised under Queensland’s Coal Mining and Safety Act. So, while Macklin has an oft-stated preference to train people in the arts of dozer and grader driving, he is rated for heavy trucks as well.

In June last year, Macklin twice refused direction from a shift supervisor that he should “assess” the truck driving capacities of a contract worker who was new to the Goonyella operation.Twice Macklin refused.

According to Macklin’s own recollection presented to the commission hearing, his response to the initial direction to assess the driver’s capacities was: “Well no, I don’t train contractors. I would resign as a [trainer/assessor] if I had to train contractors. I don’t train contractors because I don’t believe I’m required to and because I don’t want to.”

His response to the supervisor’s second invitation to assess the new guy was: “No, I don’t train contractors that will take my job.”

What BHP received as a breach of charter values, Macklin identified as an option allowed him under the BMA (BHP Mitsubishi Alliance) enterprise agreement. His problem was that the new 2018 agreement further dissolved the differentiation between direct and outsourced workers at BMA sites.

Having been instructed in his error by management and his union lodge leadership, Macklin subsequently offered a written apology to his bosses for what was a “lapse of judgment”.

“My misunderstanding at the time came from the uniqueness of the request and my understanding of the obligations under the relevant enterprise agreement,” he said.

“Firstly, I note that I do not recall any other occasion in my experience of 35 years where I have been asked to provide such assistance to an employee of a discrete contractor.

Serious flaws

“The difference in this case, as I understood it at the time, was the Downer workers were contracted to perform particular work at the mine under a specific contract … In my mind at the time there was a big difference between being asked to assist with the training of labour hire/temporary workers, and of Downer employees.”

Management did not accept this as adequate justification for refusing reasonable and lawful direction. The house view was that Macklin’s apology was concocted by the union to save Macklin’s job and that his long experience should have informed a response to direction that was more respectful of management and BHP’s charter.

Commissioner Hunt found fault with this logic and serious flaws in the subsequent processes that resulted in Macklin’s dismissal.

Management was wrong in its assumption that Macklin had previously trained contract workers and it was wrong not to tell Macklin that the “concocted” response was one more reason why he was being dismissed. It was wrong to notify Macklin of only some of the reasons for his sacking.

Management was wrong to attempt to start the disciplinary process without ensuring Macklin had access to his nominated union representative. Management was also wrong not to inform Macklin and his union adviser that they regarded his behaviour as “deviant” under the company’s Just Culture standards.

“It is somewhat disturbing that an organisation the size of BHP can keep this important, rather subjective assessment of an employee out of sight of the employee,” Hunt observed.

“If an assessment is conducted after findings have been made, why is it not shared with the employee to allow the employee to influence a final decision on the matter? Why is the employee not provided a copy of the Just Culture form as part of the show cause letter? My preference would be that it be done prior to any findings are actually made, but to not even provide it at the show cause stage is unfair.”

In closing, Commissioner Hunt offered Macklin some helpful advice. Having noted that he “cannot escape his past conduct” she recommended that, on his return to work, he would be “properly advised” to “follow direction, embrace change and above all, be respectful to all he encounters, whether he agrees with them or not.”

Amen to that.

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