A BOILERMAKER has beaten the second biggest mining company in the world in an unfair dismissal claim but he hasn't been given back his job.
It was Andrew Crawford's second breach of safety guidelines at BHP's Peak Downs Mine but despite that Commissioner Jennifer Hunt decided BHP should pay him more than $25,000.
What stung the mining giant was how it conducted its investigation into the safety breach that ultimately cost Mr Crawford his job.
The Commission heard it was Mr Crawford's second safety breach in four months.
He previously had received a Step 3 warning for throwing a rattle gun about 20metres from a high wall after becoming frustrated with it on December 3, 2015.
However, on March 22, he was doing the right thing by chipping in to help other workers remove tracks from a dozer at BHP's Peak Downs Mine after he had finished all of his tasks, the Fair Work Commission heard.
It was a night shift and as he climbed along the tracks and then up into the dozer three people "spotted him" to make sure it was safe.
But on the way down, BHP's co-ordinator maintenance analysis Paul Withers told the Commission, he saw Mr Crawford while on a walk-around inspection of the workshop and said "that's a working at heights breach, coming down there like that".
Commissioner Hunt found that for one step off the dozer onto the tracks and another step on the tracks, Mr Crawford was above 1.8m and therefore working at heights.
Mr Withers told the Commission Mr Crawford didn't have three points of contact with the dozer at all times, which was a requirement when working at heights. He sent Mr Crawford home with pay.
From the evidence Commissioner Hunt agreed that Mr Crawford had not been working safely at heights.
"It would have been almost impossible for him to do so unless he was facing the dozer and crab-like, using his right leg to step down from the step onto the track while having his arms raised high," Commissioner Hunt said when handing down her decision.
"He would have been at significant risk of a twisting injury, and I do not accept this is how he took the step from the dozer to the track."
An investigation followed the incident and on May 3, 2016 Mr Crawford was sacked.
However, Commissioner Hunt found Mr Crawford wasn't included in the investigation. Had he been, she could have found the decision to sack him was fair.
"It makes no sense at all to freeze out an employee in such an important investigation," her decision reads.
"It is practical and prudent for BHP to carry out its investigation in the immediate moments after the incident. In obtaining just a one-page witness statement from Mr Crawford prior to determining the investigation findings and issuing to him a show cause letter is unreasonable."
As a result, she found Mr Crawford's conduct to be unsafe but the dismissal to be unfair; therefore, he was awarded compensation. However, BHP didn't have to reinstate him because she believed the company had lost confidence in his approach to safety.
Commissioner Hunt awarded Mr Crawford four months pay, which was $48,121 of his $144,365 yearly wage.
But she subtracted $5590 because he didn't give two weeks notice; $6175 because he had found another job and had been paid that amount in the four months; and deducted 30% for misconduct.
BHP will have to pay Mr Crawford $25,448.98 within a fortnight of February 21, when Commissioner Hunt handed down her decision.
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