Adam Trompp v Endeavour Coal Pty Ltd

[2013] FWC 9887

[2013] FWC 9887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Adam Trompp
v
Endeavour Coal Pty Ltd
(U2013/9733)

VICE PRESIDENT LAWLER SYDNEY, 20 DECEMBER 2013

Application for relief from unfair dismissal.

[1] This is an application for an unfair dismissal remedy by Mr Adam Trompp. Mr Trompp worked as a Ventilation Operator at the Appin West Coal Mine operated by Endeavour Coal Pty Ltd (Company). Mr Trompp was dismissed by the Company on 13 May 2013 for “pre-meditating” theft of company property. Essentially, the company contends that Mr Trompp was caught in the act of preparing to steal company property.

[2] The Appin West Mine has a surface storage area adjacent to the mine shaft (Surface Area) and administration buildings. There is a further storage area known as the “Bull Paddock” where large items and rubbish are stored. It is located some distance away from the main mine complex, including the Surface Area.

[3] Mr Raymond Hook and Mr Kenneth Hoskin are the afternoon shift Surface Supply Operators. Those roles are surface jobs – neither works underground. Both report to the Surface Supply Coordinator, Mr Steve Bedson. Their work involves moving items within the Surface Area and the Bull Paddock, keeping those areas tidy, and transporting necessary plant and material to and from the mind shaft.

[4] This matter concerns events that occurred on 9 April 2013.

[5] On that day, Mr Trompp arrived on site at about 12.30pm for the commencement of his shift at 1.00pm.

[6] He had a discussion with his immediate supervisor, Mr Barthelmess, the Venilation Engineer at the mine. Mr Barthelmess agreed that Mr Trompp could work above ground on that shift doing surface preparation work. Mr Barthelmess gave the following account of his conversation with Mr Trompp:

“T: "There is lots of work on the surface which I can do today. What about if I stay on surface and do this today?"

B: "What work did you have in mind, Adam?"

T: "I can load the stopping trailer. I can sort through the doors in the paddock. The aquacrete pump also needs to be sent away for repair."

B: "Yeah, fair enough."”

[7] A Job Instruction was prepared for Mr Trompp’s work that day. It had the following job steps:

“1. Update Stopping Trailer. Trailer is on the surface, AT to re-stock and load with stopping supplies, caps, wedges, nails, cold chisel, lump hammer and PPE. Get the trailer into the pit and lock up at Douglas 2 1/2 ct. Obtain job materials for upcoming North 30ct stopping repair. Materials are pogo sticks.

2. Brattice and 120m feed hoses. These could also be put on the stopping trailer and loaded into pit. Materials to be delivered by AT to job site prior to work being carried out.

3. There are several sets of doors that are located in the bull paddock that have been taken out of the pit. These are second hand but still usable. AT to put these doors on a pallet and bundled etc and shall be put in a safe area for re-use.

4. Remove the second Aquacrete broken pump motor and box up. AT to arrange motor to be sent for repairs. Service the rest of the pump and ready it for the return of the fixed motor.”

[8] Mr Hook returned from a meeting to the Surface Area at about 3.30pm. Mr Hook saw Mr Trompp drive into the Surface Area on the 7 tonne forklift. Mr Hook statement records:

“6. We had a discussion in words to the effect:

I said: "Are you finished with the forklift?"

Adam said: "Yes. I dropped a door off a pod near the roof mesh."

I said: "How come you put it there?"

Adam said: "It was in front of some old hoses which I had to move."

7. I found it unusual that Mr Trompp had moved the door. I was also concerned that Mr Trompp said he had moved old hoses. Old hoses are not kept in the yard area.

8. At the time, I also knew that there were two ABM cables, one 100 metres and the other 50 metres long, which had been on double pallet in the place where Mr Trompp said he had moved hoses from because I had put the pallet in the place a couple of weeks ago to be sent away for repair. The door which Mr Trompp had moved was put in front of the pallet of cables. The pallet was not there when I returned from the meeting.

9. I also noticed that the forklift prongs on the forklift which Mr Trompp had used were open to full capacity. The forklift prongs are typically opened to full capacity to transport a double pallet.

10. Mr Trompp then got off the forklift and I drove it up to the Bull Paddock with some items I needed to transport.

11. While I was in the Bull Paddock performing other work, I came across the double pallet with the ABM cables that had been in the yard area before I went into the meeting.

12. The cables were behind some belt structure and were hidden. I also noticed a new roll of brattice next to the cables.

13. I was concerned about the location of the cables and the brattice because there was no reason for them to be in the Bull Paddock. I saw Ken Hoskin dumping rubbish in another part of the Bull Paddock so I went over to him and we had a discussion in words to the effect:

I said: "You will not believe what I just saw."

Ken said: "It's cables, isn't it?"

I said: "Yes."

14. Ken and I agreed to each report the matter as we were worried that we might get blamed for the cables if they went missing or were stolen.

15. I went to the office and spoke to Tas Cranney, Mine Services Electrical Engineer. We had a conversation to the effect:

I said: "Do you have a minute?"

Tas said"Yeah that's fine."

I said: "I'm worried that Tromppy might be flogging stuff and I don’t want to get blamed for it. I saw some cables a brattice in the paddock which I think he is putting there to take away later on. They are hidden behind some belt structure and I stumbled across it. I don't know what to do and want to tell someone. He'll know I dobbed him in 'cause I saw him using the forklift to move the pallet of cables."

Tas said: "Okay, leave it with me. I'll let Ray know."

[9] Mr Hoskin stated:

“6. On 9 April 2013, a staff member approached me and asked, "why did you take the cable up the back?" I considered this to be strange and did not know about any cable being moved. I responded to the effect "I didn’t move any cable". Later on, Ray Hooke told me about him seeing Adam Trompp move cables (as stated in paragraph 3 of the Investigation Statement).

7. By this stage, I was very concerned because I thought the supervisor had thought I had removed a cable and I might get blamed if the cable went missing. I am generally the only person working on surface during the night shift and am trusted by management. I decided to tell Steve Bedson, Supply Coordinator, about the matter.

8. I called Steve and we had a conversation in words to the effect:

I said: "I've got a bit of a problem. Can I have few minutes."

Steve said: "Yeah sure. What's up?"

I said: "I think something's going to go walkabout. Someone's told me about cables being taken to the back paddock. I don't quite know how to handle it and don’t want to get blamed if it goes missing."

Steve said: "Who was it?"

I said: "I don't do names. I don't want to be involved."

Steve said: "Is it an underground person?"

I said: "Yeah."

Steve said: "That's a sackable offence. If I were you, I'd approach the person, tell them to put it back and tell them that it's a sackable offence. I can't talk now, my other phone's ringing and it's Ray Esler."”

[10] Mr Bedson gave a statement consistent with that of Mr Hoskin. He reported Mr Hoskin’s information to Mr Ray Esler, the Production Manager at the mine and the most senior manager involved in this matter.

[11] Mr Cranney also reported the information provided by Mr Hook to Mr Esler. Mr Esler’s statement gives his recollection of his conversation with Mr Cranney:

“Mr Cranney: "I had Ray Hook in my office and he reckons someone is going to steal cables tonight. I wasn't sure who I should call and wanted to check with you."

I said: "Who does he think is going to pinch the cables?"

Mr Cranney: "Tromppy" (by which I understood him to mean, Adam Trompp).

I said: "Alright, do you know where Tromppy is right now?"

Mr Cranney: "He's on the surface doing surface duties."

I said: "Ok, leave it with me, I'll take care of it."”

[12] Mr Esler also stated:

“23. ABM cables are used in the mine to power the continuous miners from the DCB (Distribution Control Centre) which is the power supply for the development panel of nominal lengths 50m, 100m and 150m. ABM cables have a 120 square millimetre cross sectional area, are 300 amps and have a high copper content. I have known ABM cables to go missing from site previously. They can be stripped to leave the copper content which can then be sold for a significant sum of money.

24. I was very concerned to hear about the possible theft of cables. In particular, there had been previous occasions at the mine of cables and other equipment going missing. For instance:

(a) in April 2013, I was copied in on an email to Steve Bedson, Surface Supply Coordinator, from Tim Smith, Longwall Coordinator, advising that a shearer cable and two other cables had gone missing and could not be located in circumstances where they had previously been used underground. Attached to this Statement and marked "RJE-7" is a copy of an email I received from Tim Smith dated 12 April 2013 and forwarding other emails on the matter; and

(b) in late 2012, stringers went missing. I was informed by Brian Hutton, Coal Clearance Coordinator, that new stringers had to be purchased to replace the missing stringers. Attached to this Statement and marked "RJE-8" is a copy of an invoice, by way of example, dated 24 October 2012 which indicates that the Company paid $4554 to acquire 20 stringers at a cost of approximately $207 per stringer. I am aware, based on a review of the Company's records, that it has paid further amounts to replace approximately 200 missing stringers since last year.”

[13] Stringers are lengths of U or Box cross-section metal that are used to construct the conveyor belt structure within the mine.

[14] In the mean time, at about 4pm, Mr Trompp returned the ABM cable to the Surface Area. Mr Hoskin gave the following account:

“9. Later during that shift, I saw Adam coming from the stone dust silo. I called him over and we had a discussion in words to the effect:

I said: "Did you take a cable up the back?"

Adam said: "Yes, it was in my way."

I said: "I think you had better bring it back down."

Adam said: "Oh okay."”

10. About 10 minutes later I saw Adam driving a forklift with the double pallet on the tynes. I know that he had a cable on the pallet, not a hose. I knew this because it was in a figure eight. Hoses are coiled up in a single coil. I also knew that it was a cable because it was on a pallet, which is what is used to take cables away to be repaired. He was also driving the forklift towards the yard, where the cables are generally placed. Used hoses are placed in the rubbish in the Bull Paddock.”

[15] The 7 tonne forklift has an electronic system that automatically records user codes entered to start the machine. The event record for that forklift on 9 April 2013 records Mr Trompp as the operator at 2:43pm and again at 4pm. It is common ground that Mr Trompp used the 7 tonne forklift on two occasions on 9 April 2013 – first when he moved the ABM cable to the Bull Paddock (and moved doors in that area), and secondly when he returned the cable after being challenged by Mr Hook. It is more likely than not that the return of the ABM cable observed by Mr Hoskin occurred at about 4pm.

[16] Mr Esler was at home at the time he was contacted by Mr Cranney and Mr Bedson and informed of suspected preparations for a theft. Mr Esler stated:

“25. ... I contacted Steve Bedson, Surface Supply Coordinator, and arranged to meet with him as set out in paragraphs 5 to 6 of the Investigation Statement. In light of the instances of Company property going missing and the cost of replacing this to the Company, I did not wish to wait until the cables or any other Company property had been removed. I considered it appropriate and necessary to act immediately.”

[17] Mr Sulter, the Shift Undermanager, responded to a message to call Mr Esler. Mr Esler said to Mr Sulter words to the effect:

“There has been an incident and we think there might be a theft of company property. I need you to get Adam Trompp underground until at least 9:30pm so that I can check things out on the surface.”

[18] Mr Sulter arranged for an instruction to be given to Mr Trompp to go underground and perform particular work. Mr Trompp complied with the direction.

[19] Mr Esler and Mr Bedson inspected the Bull Paddock and found Mr Trompp’s private vehicle, a Landcruiser utility with a 1 tonne tray, in a remote corner of the Bull Paddock. They observed 8 ‘stringers’ tied down on the tray of the vehicle to create a suitable pad onto which a double pallet could be placed.

[20] Mr Trompp returned to the surface at about 9.30pm. Mr Esler and Mr Bedson remained at Mr Trompp’s vehicle in the Bull Paddock, waiting for Mr Trompp to return.

[21] Mr Esler stated that at about 10pm

“26. ... Mr Trompp suddenly came up behind us in the Bull Paddock. Mr Bedson and I were surprised by his appearance because, rather than access the Bull Paddock using the lit and established access path, he had instead walked through an area which was not a pathway. It was uneven, had bushes throughout and had a steep ascent to the area of the Bull Paddock. It was also late in the evening and there were no lights in the area. While Mr Trompp was wearing a safety hat and had a cap lamp, the cap lamp was switched off.”

[22] Mr Bedson stated:

“10. Mr Esler and I decided to wait in front of the ute for Mr Trompp to return. We were standing there waiting for him to come down the road when he came up behind us instead. I saw him come up over the embankment and it surprised me that he had come that way in the dark without his light on.”

[23] Mr Esler gave the following account of the events that followed Mr Trompp’s return to his private vehicle in the unexpected manner described:

“27. On Mr Trompp arriving, I had a conversation in words to the effect:

He said: "Hi fellas."

I said: "What are you doing here and why is your cap light off? You should have your light on.

He said: "It doesn't look good does it. I've come up to move my car."”

28. We then had a further conversation to the effect set out in paragraphs 7 to 13 of the Investigation Statement. During this conversation, Mr Trompp made comments to the following effect in explaining his actions:

(a) The stringers were in front of the container where he was trying to work so he got his car to move them;

(b) He took his car through the boom gates;

(c) He loaded the stringers into his car along with two pallets, plus two empty oil drums and drove them to the Bull Paddock; and

(d) He had unloaded the drums and pallets when Phil Hatfield came to get him to go underground.

29. I asked Mr Trompp if he had notified the control room before driving his vehicle onto the site. It is a requirement of the Surface Transport Management Plan, that all vehicles entering the mine site must stop at the boom gates and press the communication pad to contact site security before entering the site. In response to my question, Mr Trompp said words to the effect:

"I didn't notify control, I just drove through the gap past the boom gates as I've done in the past."

30. I further asked Mr Trompp if he was aware of the Transport Management Plan on site and he replied in words to the effect:

"I'm aware of it and I know I've broken the rule."

31. Under the Transport Management Plan, it is important for safety reasons that any vehicles accessing site do not go into restricted areas. Further, they must have certain safety features, such as flashing lights. Without these safety features, vehicles are not permitted to access the site beyond the staff and visitor parking areas.

...

35. ... I also questioned Mr Trompp if he had used the forklift as he had been seen by Ray Hook driving a forklift with a pallet of cables to the Bull Paddock. Mr Trompp replied in words to the effect:

"I wasn't moving cables, I was moving damaged hoses."

36. This response surprised me because, as a matter of practice, damaged hoses come up from the mine into the Bull Paddock to be refurbished or thrown out. Damaged hoses are not kept in the store area which is where Mr Trompp claimed he was working at the time.”

[24] Mr Esler formed the view that Mr Trompp was intending the steal the stringers and the electrical cable that he had moved to the Bull Paddock. Mr Trompp was suspended and a professional investigator was engaged to conduct an investigation.

[25] The investigation confirmed the provisional view formed by Esler.

[26] During an interview on 10 April 2013 with Ms Deanne Howard, who at the time was employed as Appin Mine’s Human Resources Manager, Mr Trompp provided a number of explanations for his actions. In particular:

“(a) "I couldn't find a forklift" and "the main reason I used my personal vehicle was to load some stringers and other rubbish. I didn't think to drive the company utes. The stringers were in my way.";

(b) "I understood the Surface Traffic Management Plans" and "I had breached these"; and

(c) "I used a forklift to take hoses up to the paddock. The witness who you say saw me take cables is mistaken. I didn’t take any cables."”

[27] There was a further disciplinary meeting on 1 May 2013. Mr Trompp provided a detailed explanation in a letter dated 8 May 2013:

“ Each of the work activities I performed on that shift was in accordance with the job steps given to me.

• There were 8 stringers blocking the doors to a container that contained an aquacrete pump that I was required to work on and remove (job step 4). Someone had also knocked over a pump pod that also blocked the container doors. I was unable to access a suitable forklift and trailer to move this equipment and complete my task on the aquacrete pump.



• Having access to a small forklift, I transported some doors to the Bull Paddock and positioned them with the other doors being stored in that area. That way, I could check all of the doors and choose the best of them for later use (Job Step 3).



• I transported some brattice to the Bull Paddock to use as a cover for the doors so as to prevent damage/deterioration to them.



• Back on the surface area I subsequently obtained access to the large forklift. I also observed a pod, which I moved to another area for later use. I also observed what I believed to be a hose on a pallet. I picked it up and together with two other hoses I placed on the pallet, transported them to the Bull Paddock to put them with the other hoses. This was part of my task of selecting 120m feed hoses for use underground (Job Step 1).



• These items I would load together with the stopping props that are also in the Bull Paddock once a trailer becomes available during my shift, as I had asked earlier for a trailer to load this equipment to carry out (Job Step 1)



• When I returned to the surface area I was required to give the forklift to someone else. No other forklift was available.



• I was subsequently informed that I had taken the wrong pallet to the Bull Paddock. I decided that when I got a forklift I would return it to its original position. This I subsequently did.



• I was getting a bit frustrated and stressed at the time as I felt that I was not getting the job done in the manner I wanted. Nothing seemed to be going right. This was exacerbated by the fact that I was already suffering from anxiety for which I was receiving counselling and for which the company was aware.



• Because of the frustration and anxiety I felt in not being able to properly perform my job, I made a decision to use my personal vehicle to transport material to the Bull Paddock.



• I also decided to have a cigarette to relieve my tension. To do so I had to leave the site in my personal vehicle. When I was off site I parked my vehicle by a side road and noticed the gate was open. I knew the gate led onto Company property and suspected that the road would lead to the Bull Paddock. I decided to find out and proceeded to drive up that road and found that it came out at the Bull Paddock. I was aware the company had a closed circuit camera observing the area, which would have recorded my entry to the Bull Paddock. I now realize that I should have taken my vehicle on to the mine site through the main gate.”

[28] Mr Trompp also addressed other relevant matters in his letter of 8 May 2013:

“1. It is said that I breached the traffic management plan. I do not have any recollection of seeing any traffic management plan or receiving any training in that plan. Further, nothing has been put to me regarding the details of why and how I breached the plan. It is not possible for me to address this allegation on the basis of the material put to me thus far.

2. It is said that I left the site without permission. I acknowledge that I left the site and did not seek permission to do so. I very much regret doing so and apologise for my action in that regard. However, as I have said I was feeling stressed and frustrated because I was not able to get on with my job as I desired and thought that if I had a cigarette I would calm down. The stress and frustration impacted on my ability to think clearly. I remained in radio contact with Control in the event I was needed and I was only a few minutes away. I also was of the impression that there was a practice where people left the site briefly without obtaining permission to do so.

3. It is said that I breached the site approval process for the removal of redundant/excess stock. As I did not have any intention to remove redundant or excess stock and nor did I remove any such stock, I deny any such breach.

4. It is said that I deliberately told lies about whether I carried hoses or cable by forklift to the Bull Paddock. I deny this. I was of the view that I transported hoses to the Bull Paddock. Had I known the material on the pallet was electrical cable I would not have transported it in the first place. I recall that it was dirty and muddy when I first saw it. Later when I was told that I had taken the wrong pallet to the Bun Paddock I was not informed that it was electrical cable on it. I only found that out as part of this investigation.

5. With respect to how I accessed the Bull Paddock, I saw this as part of the issue regarding leaving the site without permission. It was an error on my part and I deeply regret and am sorry it happened. During the interviews I felt stressed and confused and I did not set out to deliberately mislead anyone. I should point out however that it was myself who came forward to correct the situation. This was because I recognized that I had done the wrong thing and want to correct it as soon as possible.”

[29] On 13 May 2013 there was a further disciplinary meeting. Mr Trompp was dismissed at the end of that meeting.

[30] Mr Trompp has consistently and strongly denied any intention to steal.

[31] I found each of the company’s witnesses to be a reliable witness. I accept the evidence of Ms Howard, Mr Barthelmess, Mr Hook, Mr Hoskin, Mr Bedson, Mr Esler (subject to a minor qualification 1) and Mr Sulter.

[32] There are a series of matters that raise a rational concern that Mr Trompp’s denial of an intent to steal, and his explanations, are unreliable.

[33] The Commission conducted a view of the relevant parts of the mine: Mr Trompp’s container, the aquacrete pump, the Surface Area, the Bull Paddock, the route taken to return the stringers to the Bull Paddock and, finally, the route from the Surface Area to the Bull Paddock (and the embankment over which Mr Trompp climbed) when he returned to his private vehicle at about 10pm.

[34] Mr Trompp needed to provide an explanation as to why he had moved what others had identified as an ABM cable to the Bull Paddock and why company property – the 8 stringers – were tied down on the tray of his private vehicle in the Bull Paddock, as observed by Mr Bedson and Mr Esler.

[35] In summary, Mr Trompp’s explanation is as follows:

(a) While in the Storage Area attending to his work, he noticed what he thought was a used hose coiled on a double pallet that he recognised as not belonging in the Surface Storage Area. Believing that a used hose should be stored in the Bull Paddock, he borrowed the 7 tonne forklift from Mr Hook and moved the hose to the Bull Paddock. Later in the day it was suggested, by Mr Hoskin, that he return the hose to the Storage Area.. Mr Trompp was however unable to obtain access to the forklift at that time. He became anxious and decided to have a cigarette. Mr Trompp drove off the mine site and onto Douglas Park Road so that he could have a cigarette (smoking is not permitted on site). He pulled to side of the road a short distance from the mine entrance and had a cigarette.

(b) Job Step 4 required him to get the aquacrete pump out of the container. That required a forklift because a wheel on the pump was broken. Forklift access to the container to remove the pump was prevented by a large metal pump pod in front of the container and a number of stringers that some person had left on the ground in front of the container. Mr Trompp needed to move the stringers. A company utility was not available and, in any event, did not have a large enough tray to fit the stringers. During or prior to his cigarette break, Mr Trompp decided that he would use his own vehicle (which had a larger tray) and return the stringers to the Bull Paddock where they were supposed to be stored. Whilst he was having a cigarette on the side of the road, he noticed that a gate onto the mine property adjacent to where he had stopped was open. He had never been through the gate but figured that he would be able to drive to the Bull Paddock from it. He chose to proceed to the Bull Paddock in that fashion rather than driving back to the mine and entering through the boom gate. From the Bull Paddock, Mr Trompp drove his car to his container where he loaded the stringers on to the back of his ute along with two empty drums and two empty pallets.

(c) After loading the items into his ute, Mr Trompp became aware that that the forklift was available. He took the forklift to the Bull Paddock and transported the “hose” back to the Surface Area. He then drove his loaded ute from the Surface Area to the Bull Paddock. Mr Trompp unloaded the empty drums and placed the pallets in the pallet stack in the Bull Paddock. Mr Trompp then proceeded to the belt structure area to unload the stringers when he was approached by Mr Hatfield who told Mr Trompp that he was required to work underground. Mr Trompp left his vehicle in the Bull Paddock and reported to the undermanager, Mr Sulter.

(d) Mr Trompp returned from underground at 9:30pm. He spoke to Mr Hatfield who informed him that Mr Bedson and Mr Esler were in the Bull Paddock looking at his truck. Mr Trompp then proceeded to the Bull Paddock via the bush track between the Surface Area and the Bull Paddock. Mr Trompp explains that he took this particular route because “it was quicker and you do not come into contact with vehicles.” I note that this route involved a climb over an embankment.

[36] That explanation is implausible in several respects.

Claim of mistaking cable for a hose

[37] The movement of the “used hose” to the Bull Paddock was not part of any of the job steps in Mr Trompp’s job instruction for 9 April 2013. It was to be characterised as the act of a conscientious employee.

[38] Mr Trompp was insistent that he believed that what he had moved, coiled on a double pallet, was a used hose, rather than an ABM cable. The Bull Paddock was the appropriate place for an old hose (because old hoses are discarded as rubbish) whereas Mr Trompp could not plausibly claim to believe that the Bull Paddock was the appropriate place to store ABM cables when it was obvious that they were stored in the Surface Area.

[39] Several of the Company’s witnesses gave evidence that an ABM cable could not be mistaken for a hose. On the evidence, particularly in light of the view, I reached the conclusion that Mr Trompp’s claim to have mistaken the cable on the double pallet that he moved to the Bull Paddock must be rejected. The ABM cables are relatively inflexible and they require a double pallet for storage and are stored in a ‘figure 8’ pile. Hoses, which are far more flexible, are usually stored coiled on a single pallet. Several witnesses said they had never seen a hose coiled in a ‘figure 8’ on a double pallet. It is clear that the coiling of a hose in a ‘figure 8’ on a double pallet is something that rarely, if ever, occurs at the mine.

[40] Further, ABM cables have bulky, brightly coloured metal fittings at either end. I find it improbable, as Mr Trompp claimed, that these coloured fittings often cannot be seen because they are (often) covered in mud when they come out of the mine or because the fitting has been obscured in the coiling. I viewed a number of ABM cables in the Surface Storage area, including both new cables and cables that were clearly used cables. The coloured fittings were readily visible on all of them. The evident inflexibility of the ABM cables, that necessitates their coiling on a double pallet, makes it unlikely that the brightly coloured fitting is ever wound into the coil so as to be entirely out of view to someone, like Mr Trompp, who loaded it onto a forklift. None of the number of cables I observed was wound in that fashion, nor appeared comfortably capable of being wound in that fashion. Further, I accept the evidence of Mr Hook and Mr Hoskin that the great difference in weight between a hose and an ABM cable would be apparent to anyone with experience driving a forklift. Both Mr Hook (when he first saw the cable in the Bull Paddock) and Mr Hoskin (when he observed Mr Trompp returning it) had no difficulty in discerning that it was a cable rather than a hose.

[41] The weight of the evidence obliges me to reject Mr Trompp’s evidence that he believed he was moving a used hose rather than an ABM cable. I find on the balance of probabilities, to the level of satisfaction required by Briginshaw 2,that Mr Trompp knowingly moved the ABM to the Bull Paddock when there was no legitimate work related reason for him to do so.

Route taken by Mr Trompp to get to the Surface Area via the Bull Paddock in his private vehicle

[42] There is, adjacent to the administration buildings, a publicly accessible car park within the mine area that is used by employees (including Mr Trompp) to park their vehicles. Access to the rest of the mine site from that car park is via a set of boom gates. It is possible to drive around the lowered boom, however a vehicle seeking to pass through the boom gate is supposed to signal the control room. A controller will then open the boom. The boom gate is under video surveillance. It is possible to drive around the lowered boom

[43] Having decided that he was going to use his personal vehicle to transport the stringers from the Surface Area to the Bull Paddock, Mr Trompp did not drive his private vehicle on the natural and direct route to the Surface Area (a route that would have required him to pass through the boom gate), rather he drove out of the mine site and onto Douglas Park Road in order to have a cigarette. Thus far, Mr Trompp’s explanation is plausible because no smoking is permitted within the mine site and the Company tolerates employees who smoke going to the mine entrance to smoke during their breaks. However, Mr Trompp’s explanation for the route he took after finishing his cigarette is so implausible that I am obliged to reject it.

[44] The gate in the mine fence through which Mr Trompp drove after finishing his cigarette was observed during the view. The gate is an old, farm style, metal gate and the land immediately through the gate is timbered and with no discernible vehicular track. It is possible to navigate a vehicle through the timbered area and then across an open paddock and gain access to the Bull Paddock, however that would not be clear to a person, like Mr Trompp, who had never been through the gate before. Having regard to what was evident on the view, Mr Trompp’s explanation for driving through the gate is preposterous.

[45] Mr Trompp was aware that the Company’s traffic policy did not permit him to bring his private vehicle onto the mine site beyond the car park.

[46] The route Mr Trompp took suggests that he wanted to avoid being seen transporting the stringers to the Bull Paddock using his private vehicle.

[47] The route taken by Mr Trompp went past the explosives store. There is a single fixed CCTV camera mounted on a post within the explosives store enclosure. The camera is trained permanently on the two explosive store structures. Mr Trompp claimed that he believed that the Bull Paddock was subject to CCTV monitoring such that he could not enter the Bull Paddock in that fashion without being caught on CCTV camera. I accept the evidence for the Company that the camera trained on the explosives store was the only CCTV camera in the Bull Paddock area and that it would not have captured Mr Trompp’s private vehicle. I do not accept Mr Trompp’s evidence that he believed that the route he took was under CCTV surveillance. It is improbable that an employee with Mr Trompp’s length of service would be so mistaken about the location of fixed CCTV cameras.

Manner of Mr Trompp’s return to his vehicle

[48] The Company placed significant weight on the manner in which Mr Trompp returned to his vehicle after returning to the surface at about 9:30pm. The company’s evidence overstates the bushy nature of the walking route taken by Mr Trompp between the Surface Area and the Bull Paddock. On the view, the route has a track for most of the way and, in any event, the area has open timber with low grass that is safe and comfortable for walking. However, there is substance in the contention that an adverse inference ought be drawn against Mr Trompp. The embankment over where Mr Trompp climbed has no track and has a steep, and uneven surface at the relevant point. Mr Trompp returned to his vehicle well after dark and at a time when there was no moon. It must have been close to pitch black where he ascended the embankment. The fact that Mr Trompp chose to access the Bull Paddock at the particular point that he did with his lamp stitched off properly supports an inference that Mr Trompp was attempting to return to his vehicle unobserved, suggesting a consciousness of guilt.

Claim that stringers were blocking Mr Trompp’s container unlikely

[49] Given the location of Mr Trompp’s container, it is improbable that any person left 8 stringers in front of that container. Stringers are part of the conveyor materials, all of which are stored in the Bull Paddock. There is no occasion for any employee ever to bring stringers to the Surface Area. Mr Hook and Mr Hoskin are the two employees whose role had them operating in the Surface Storage Area on every shift. Neither saw the stringers. If the stringers had been left as Mr Trompp says, it is likely that Mr Hook or Mr Hoskin would have seen them. Mr Bedson, the management employee with responsibility for the Surface Area, had never seen stringers lying in front of Mr Trompp’s container. The pump pod was not blocking Mr Trompp’s container. It was in front of the adjoining container on the far side.

Aquacrete Pump

[50] An essential part of Mr Trompp’s explanation was his claim that he could not move the aquacrete pump by hand because it had a broken wheel (hence the need to use a forklift and hence the need to move the stringers). The pump has two large wheels at the back and a small ‘dolly’ wheel at the front. Photographs tendered at the hearing showed that the rear wheels appeared to be intact. Mr Trompp then said that the broken wheel was the wheel at the front of the pump. On the view, it was clear that the wheel at the front was not broken. Mr Trompp then shifted his version again, stating that it was the pulling handle that was broken. On the view, the pulling handle was somewhat bent. It is not clear from the view that the bend in the handle would have prevented the pump being moved by hand.

Conclusion

[51] Mr Thomas, who appeared for Mr Trompp, put everything that could have been put on Mr Trompp’s behalf. However, when the evidence is considered as a whole, I cannot accept Mr Trompp’s evidence and am compelled to a conclusion, on the balance of probabilities, with the level of satisfaction required by Briginshaw, that Mr Trompp loaded the stringers on to his private utility with the intention of stealing them, along with the AMB cable that he previously moved to the Bull Paddock. Mr Trompp returned the cable only when he realised that his movement of the cable to the Bull Paddock, in preparation of the theft, had been observed and he was told to return it.

[52] That conduct constituted a valid reason for Mr Trompp’s dismissal (s.387(a)).

[53] Mr Trompp was notified of that reason (s.387(b)) and given a proper opportunity to respond (s.387(c)).

[54] Mr Trompp was permitted representation during the disciplinary process (s.387(d)). The dismissal did not relate to unsatisfactory performance (s.387(e)). The Company is part of a very large corporate group. It has dedicated human resources specialists and could be expected to conduct a disciplinary process in a procedurally fair manner (s.387(f) and (g)). I am satisfied that the Company’s investigation was conducted in a manner that was procedurally fair.

[55] Turning to other relevant matters (s.387(g)), I have taken into account the inevitably adverse consequences that the dismissal has had and will have on Mr Trompp and, indirectly, his family. Mr Trompp has suffered a period of unemployment before gaining insecure employment that involves a very substantial drop in income. It is unlikely that he will be able to find employment at anywhere near the level that he earned as an employee of the Company.

[56] I have taken into account Mr Trompp’s period of service. It is not particularly long, but neither is it short. I have taken into account Mr Trompp’s good disciplinary history and his good work performance.

[57] Nevertheless, dishonesty in the form of theft or planned theft, is well recognised as a most serious form of misconduct. In all the circumstances of the case I am satisfied that, weighing the misconduct against the mitigating factors, the Company acted reasonably and that the dismissal of the Mr Trompp was not harsh, unjust or unreasonable within the meaning of the Fair Work Act 2009. If follows that Mr Trompp was not unfairly dismissed within the meaning of s.385 and there is no jurisdiction to grant a remedy. The application is dismissed.

VICE PRESIDENT

Appearances:

Mr. A, Thomas of the Construction, Forestry, Mining and Energy Union - Mining and Energy Division on behalf of the Applicant.

Mr. B. Rauf of Ashurst on behalf of the Respondent.

Hearing details:

2013.

Sydney:

14-16 October.

11 November.

Final written submissions:

Filed by the Applicant on 8 November 2013.

 1   His evidence characterising the nature of the route taken by Mr Trompp when he returned to his vehicle in the Bull Paddock.

 2   Briginshaw v Briginshaw (1938) 60 CLR 336.

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