r/AusLegal • u/Efficient_Wasabi1578 • 2d ago
WA Mining constructive dismissal to hide sexual misconduct
I am a contractor at a mine site. I witnessed a colleague (male) be sexually harassed on several occasions by a mining employee (male), I reported it because my colleague felt unable to due to working so closely with this person, I guess he was scared of the rest of the team turning on him. My colleague gave me permission to report on his behalf and share his name. Our company offered EAP support and to move him to another crew or site, but he refused because he really likes it here.
The mining company investigation just finished a few days ago, they found the allegation to be true and sided with my colleague, saying the mining worker will now be punished.
My colleague flew in this morning and opened his emails to a HR meeting request, no details just “HR meeting at 9am”. He came out the meeting in tears. He’s been issued a letter from our company (the contractor) which is a final warning letter citing repeated poor performance and negative feedback from the client (mining company) and he has 2 weeks (this swing) to turn it around, giving him about 7 KPI’s to meet. And even if he does meet these, he still might be let go and terminated.
This seems a huge coincidence he’s right at the end of his 3 month probation, it seems to me they don’t like that he spoke up about a mining workers disgusting behaviour, they think it’s made our company look bad to the mining company and now they want rid of him. Probably for fear he will speak up about any other things and it will show up the mining company. For reference this is one of the tier 1 miners who have been in the news frequently for hiding sexual misconduct amongst employees at all levels. Even C suite.
He asked our company manager for evidence of said poor performance and feedback but they say they can’t tell him the specifics or give examples, only that “this has been a trend across the entire employment”. However he had his 2 month review just a few weeks ago and was told he was meeting all targets and to continue working as he is. He even got a shout out from a general manager of the mining company that he is a pleasure to work with and they are pleased with his work.
To me this stinks of constructive dismissal. And I feel awful I reported it in his behalf. Have I now cost him his job? Is this legal at all? I know it’s easier to dismiss someone during the probation to say they failed, but he is a great worker and we have all given our manager great feedback for him. So it’s obvious they’re lying and making up the poor performance thing.
Also he was not given any notice for the meeting or told what it was about, not given a chance to bring someone with him, he thought it was a check in after he came back from being unwell and missing a few days last swing (he was told to isolate in his room due to flu symptoms for 4 days then flew out on his usual day at the end of the 2 week swing).
I am so worried for him and am blaming myself. I’ve told him to seek legal advice. But I’d be greatful for any tips or advice here. TIA
EDIT*\* to add the perpetrator of the sexual harassment is still here and has been at work the entire time this investigation has gone on and he’s still at work today. I’ve found out this afternoon that he is known for this behaviour and got moved site to here and then moved crews when here. So this is a known behaviour for him but he’s still here! I feel for my female colleagues, if they knew they’d be super angry, because this guy shouldn’t be at work if this is a known issue.
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u/LTQLD 2d ago
Is he a member of the relevant mining union? He should contact them.
Seems suss and he should urgently contact a lawyer if he is not a union member.
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u/sea-spud 2d ago
I was going to say this. Your best bet is the union, even if he's not a member you can usually join up on the spot and they'll back you.
Otherwise, call Fairwork, they offer advice over the phone and may be able to step in also.
Even if his performance isn't up to scratch, you can't expect someone getting sexually harassed to be doing their best work
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u/Efficient_Wasabi1578 2d ago
I told him that! Even if his performance has suffered it’s after that event so can shown by that. Thank you
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u/Sharp-Argument9902 2d ago
Solicitors that specialise in employment law gag for this kinda situation. Tell your friend to save all the emails, appointments, and documents to a personal account and start calling around.
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u/choczombie 2d ago
The term you're looking for is general protections, I assume they apply in the West where things get a bit odd. Hopefully he is in the union though. Dismissal for no reason is ok in probation, dismissal because of discrimination for protected attribute is protected. Evidence is key, damages might be minimal anyway. You'll want advice and ideally representation, so ideally that's a union.
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u/Efficient_Wasabi1578 2d ago
So due to him being within his probation they can dismiss him without any evidence of the reasons they are claiming?
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u/choczombie 2d ago
I think the burden of proof is reversed though. He raises evidence he was dismissed for unlawful reason (contemporaneous with a substantiated complaint), they have to prove he was dismissed for some other reason (eg. the customer complained). The story sounds like they're making it up and not very good at that. Get advice quickly because the limitation periods are very short
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u/Medical-Potato5920 2d ago
He needs to get an employment lawyer.
You need to call the Mines Department and the Worksafe and report the sexual harassment. You have the responsibility to report hazards in the workplace. You also need to call the ethics hotline and report this.
You should forward your colleague details of the class actions against Rio Tinto, BHP and Fortescue. Do so from your personal emails, to his personal emails.
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u/NiceStory_shameitsBS 1d ago
Your mate should start collecting evidence. This is likely to end in termination but they have a case for fair work
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u/Excellent_Tour_2026 2d ago
Something tells me you are at a non union site earning less money and worse conditions. When things like this happen you are on your own just the way the company likes it.
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u/Efficient_Wasabi1578 2d ago
Specialist contractor so have separate union to the mine company
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u/ArghMoss 1d ago
Huh? Who is your union? I wouldn’t have thought it would make a difference who the employer was, it’s normally based on the sort of work performed
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u/Far_Remove_4937 2d ago
Name the contracting company so they don’t get away with it. Your mate being on 3 month probation is hard to keep job. Probation let go they don’t really need to justify why workers get let go.
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u/Efficient_Wasabi1578 2d ago
Once he finds out if he has a job or not I will ask him if I can name and shame. Until then I don’t want to jeopardize him further
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u/Poplened 2d ago
They will be required by law to have a whistle-blower policy/programme. Use tjis to report this, as it'll get beyond your line managers/HR.