These passages from an unfair dismissal case determined by the Fair Work Commission contain contain an analysis of the legal issues involved when determining whether a lengthy absence form work can constitute a valid reason for dismissal.
“[17] BHP also submits that, even if they had sent the show cause letter by email instead of registered post, this would not have changed the result. BHP submits that Mr Hutchins had the show cause letter by, at the latest, 25 June 2024 and received his termination letter on 8 July 2024. BHP submits that, in the circumstances, due to the medical incapacity suffered by Mr Hutchins, it is highly unlikely he could have provided any significant information during the show cause process that would have changed the practical reality or outcome.
[18] BHP submits that this situation was contemplated by the former Deputy President Bartel in David Lawless v Qantas Airways Limited,1 when it was observed that there might be cases
where a failing in the process leading to termination is of “no consequence because the outcome would have been the same”.
Consideration
[19] I find that BHP had a valid reason to terminate Mr Hutchins’ employment related to his capacity to work for BHP (s 387(a)), as Mr Hutchins had been absent from work for more than 950 days (the vast majority of which was unpaid leave) and there was no discernible medical evidence as to when or if Mr Hutchins could return to work with BHP.
[20] I find that Mr Hutchins was notified of the valid reason and provided with an opportunity to respond to the valid reason (ss 387 (b) and (c)). I acknowledge that the 24-hour period to respond to the show cause letter may have felt short to Mr Hutchins. However, there is no minimum period that an employer must allow for an employee to provide a response to a show cause process, rather, it must simply be reasonable in the circumstances. I also note that, although BHP could have emailed a copy of the letter once it had been posted to Mr Hutchins (as opposed to some 13 days later), I do not consider such an oversight to be a material failing by BHP. I find that the period of 24 hours was not an unreasonable period for Mr Hutchins to provide a response or, at least, respond by seeking additional time from BHP to provide a response. I accept the evidence of Mr Hall that, had Mr Hutchins requested an extension to reply, he would have accommodated such request. Mr Hutchins was provided with an opportunity to respond to the reason for his termination prior to a decision being made, however, Mr Hutchins did not respond, nor did he seek additional time to provide a response. Given the prolonged absence from work and noting that, as of the date of the hearing, Mr Hutchins has not been able to provide any information that would suggest the valid reason for his termination (medical incapacity) was incorrect, I am satisfied BHP’s reference to the decision in Lawless is relevant.
[21] There is no suggestion that BHP unreasonably refused any request for a support person (s 387(d)). As the dismissal of Mr Hutchins did not relate to unsatisfactory performance, s 387(e) is not a relevant consideration. Regarding sections 387 (f) and (g), BHP is a large employer with both internal and external human resources and industrial relations management support and the procedures followed in the dismissal are consistent with what would be expected by such an organization.
[22] Regarding other relevant factors (s 387(h)), I will address issues that were raised by Mr Hutchins in relation to his dismissal.
[23] Mr Hutchins provided a significant volume of material regarding numerous concerns including, but not limited to, the below items:
• Implementation and duration of BHP’s COVID-19 vaccination policy.
• BHP not recognizing his medical exemption from further COVID-19 vaccinations.
• Differences between BHP requirements and WA state government requirements.
• Requests to attend fitness for work medical appointments.
• Concerns about contact from BHP (noting the volume of emails and after-hours phone calls).
• Concerns regarding the application of BHP internal policies.
[24] I am not going to address the above items individually, however, there is no evidence that these items (or any of the other concerns) were a factor in Mr Hutchins’ termination from BHP. The reasoning that has been provided by BHP for the termination of Mr Hutchins’ employment is medical incapacity, not for unwillingness or inability to take further COVID-19 vaccinations or concerns he raised about BHP policies.
[25] Mr Hutchins also raised concerns that BHP did not make a reasonable accommodation and offer him a work from home position. Mr Hutchins submits that he consistently showed a willingness to work in a modified capacity, such as remote work or reduced hours. I accept that there were discussions between BHP and Mr Hutchins about remote work from home arrangements in early 2022, over two years before the eventual termination of employment. However, it was deemed that Mr Hutchins could not perform this work due to his condition at that time. At the time of his dismissal, Mr Hutchins had not provided BHP with any medical clearance or similar which would suggest he was able to perform remote work or reduced hours from home. The information that BHP had was that Mr Hutchins was unfit to perform the inherent requirements of his position, that being a FIFO site-based Engineering Technician – Mechanical Water, nor had they received any medical clearance that suggested Mr Hutchins could perform an alternative position from home. Importantly, there is also nothing before the Commission to suggest that BHP’s conclusion was unfounded. Having considered the materials before me, I do not accept the submission regarding a denial to make reasonable accommodations.
[26] Mr Hutchins suggests that BHP took retaliatory action against him by terminating his employment because of concerns raised about his missing personal belongings not being returned to him. I accept that, on 7 February 2024, there was an email exchange between Mr Hutchins and Mr Hall in relation to his personal belongings. Again, having examined the communication trail between the parties, I do not believe there is supporting evidence or a reasonable suggestion that Mr Hall’s decision to terminate Mr Hutchins was motivated by this item. Rather, I am satisfied Mr Hall’s decision to terminate Mr Hutchins’ employment was for the valid reason articulated earlier in this decision.
Conclusion
[27] Having considered the matters in s 387 of the Act, I have determined that the dismissal of Mr Hutchins was not harsh, unjust, or unreasonable. It was therefore not unfair.
[28] Accordingly, the application is dismissed, an Order to that effect is issued.2”
[17] BHP also submits that, even if they had sent the show cause letter by email instead of registered post, this would not have changed the result. BHP submits that Mr Hutchins had the show cause letter by, at the latest, 25 June 2024 and received his termination letter on 8 July 2024. BHP submits that, in the circumstances, due to the medical incapacity suffered by Mr Hutchins, it is highly unlikely he could have provided any significant information during the show cause process that would have changed the practical reality or outcome.
[18] BHP submits that this situation was contemplated by the former Deputy President Bartel in David Lawless v Qantas Airways Limited,1 when it was observed that there might be cases where a failing in the process leading to termination is of “no consequence because the outcome would have been the same”.
Hutchins v BHP WAIO Pty Ltd [2025] FWC 546 delivered 25 February 2025 per Schneider C