Brenda Plunkett v Thiess Pty Ltd

[2014] FWC 3287

[2014] FWC 3287

FAIR WORK COMMISSION

DECISION

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

Brenda Plunkett
v
Thiess Pty Ltd
(U2013/14637)

COMMISSIONER STANTON NEWCASTLE, 16 MAY 2014

Application for unfair dismissal - whether dismissal harsh, unjust or unreasonable - Fair Work Act 2009 - ss.387, 394, 587 considered - application dismissed

Introduction

[1] This decision relates to an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Miss Brenda Plunkett (the applicant) arising from the termination of her employment by Thiess Pty Ltd (the respondent) on 30 October 2013.

[2] At the hearing of the matter Mr K Endacott from the Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District (the Union) appeared for the applicant. Ms C Brattey, solicitor, appeared for the respondent by permission.

Background

[3] The applicant was employed by the respondent at its Mt Owen Mine on 10 October 2011. On 9 October 2013, the applicant was operating a CAT 793F haul truck when an alarm was activated. The respondent alleged that the applicant subsequently travelled for 1 minute 36 seconds prior to stopping the vehicle. Over that time the vehicle travelled approximately one kilometre. She made a decision to stop the vehicle and shut it down at the first appropriate and safe location which in her view was at the bottom of a ramp.

[4] The applicant was subsequently summarily dismissed for a serious breach of safe operating procedures, namely:

• her decision to drive the CAT 793F she was operating for one minute 36 seconds after a stage 3 alarm had sounded;



• the fact that she was fully aware of the relevant safe operating procedures, specifically that a category 3 warning states:




“This category requires an immediate safe shutdown of the machine. Injury to the operator can occur. Severe damage to the truck can occur.”

Despite such warning, the applicant chose to disregard these procedures and caused the significant damage to the truck she was operating.

Evidence

Applicant

[5] It was the applicant’s evidence that she had worked at a number of mines prior to commencing work with the respondent. Prior to working on those mine sites she was required to undertake specific familiarisation training including the relevant mine Surface Transport Rules (the Transport Rules) that applied. Each mine was required to develop site specific Transport Rules.

[6] The applicant stated she was summarily dismissed on 29 October 2013 for gross negligence following the incident that occurred on 9 October 2013. The applicant stated that when she was operating the truck on 9 October 2013 the two-way and AM/FM radios were on and was wearing moulded ear plugs at the time. She further stated that the trucks were noisy. When she ultimately heard the relevant alarm she immediately looked at the Vital Information Management System (VIMS) screen. Although she was unsure as to how long the alarm had been running before she heard it, it was the applicant’s evidence that upon hearing the alarm she checked the VIMS system. At that time, she determined that the most appropriate safe location to park the vehicle so the engine oil could be checked was the bottom of ramp 1. She understood this approach to be in accordance with the normal operation procedures of the mine should a defect become apparent.

[7] Approximately halfway down the ramp another alarm engaged. The applicant subsequently checked the VIMS screen which read, “Shutdown.” She continued to operate the vehicle in accordance with what she understood was a safe operating procedure and stop the vehicle in a safe place which was at the bottom of ramp 1. The applicant did not consider the ramp itself was a safe location to park the vehicle. 1 She considered the end of ramp 1 was a safe and fundamentally stable location.

[8] The applicant understood that the procedures she had adopted in shutting down the truck were consistent with the mine’s Transport Rules. It was also consistent with training she had received at the Bulga Open Cut Mine and the Coal and Allied Hunter Valley Operations Mine. She referred to a “golden rule” that operated at the Hunter Valley Operations Mine which was that “you could be dismissed if you did not shutdown your dump truck in a fundamentally stable location if possible.” 2

[9] Given the fact that a CAT 793F haul truck can weigh between 286,000 and 290,000 kilograms fully loaded and between 140,000 and 150,000 kilograms unloaded, she considered that the only fundamentally stable location available to her to safely shutdown the truck was at the bottom of the ramp. 3 In that regard she referred to Clause 2.2, Vehicle Safety Operations, under the mine’s Transport Rules which relevantly stated “should a defect become apparent during a shift, the operator should stop the vehicle in a safe place and report immediately to OCE/Supervisor.”4

[10] It was the applicant’s evidence that she considered stopping the vehicle in the middle of a haul road or on the ramp itself would constitute a safety hazard.

[11] The applicant stated that prior to the incident she had never been informed by the respondent that in the event the CAT 793F alarm system indicated there was a requirement to shutdown the vehicle that it should occur immediately, even if you were on a haul road or a ramp. In that regard, the applicant maintained that it was in her experience she had always been informed that immediate shutdown did not mean “immediate shutdown without considerations for safety.” 5

[12] At BP-5, annexed to her statement, the applicant set out certain training material for the CAT 793F haul truck indicating the VIMS had three categories of alarm. A category 3 warning indicated “an immediate safe shutdown of the machine.” 6

[13] The applicant contended that a tradesperson had failed to properly maintain the vehicle and as a result of the incident, there was approximately $500,000 worth of damage incurred. She further contended that the respondent needed to blame someone for the incident.

[14] The applicant sought reinstatement to her former position with back pay. In a second statement filed in these proceedings the applicant sought to rebut the evidence filed by Mr Chris Allan, Mr James Armstrong, Mr Jeroen Hendriks and Ms Leanne Johnson on behalf of the respondent. That evidence dealt with the VIMS system including the warning messages concerning “engine shutdown” and “shutdown immediately.” The applicant also referred to her training at Hunter Valley Operations, Bulga and Mt Owen mines concerning procedures to be followed to bring a truck to a stop in an emergency.

[15] The applicant also stated she had attempted to obtain employment in the Hunter Valley coal mining industry and in that regard she had applied for approximately 60 positions without success. She remains unemployed and was reliant upon her savings.

[16] In cross-examination, the applicant confirmed she was passed as competent to drive the respondent’s vehicles on 18 December 2011. The test vehicle at the time was a different variation to the CAT 793F. 7 With respect to question 16 of that assessment which asked candidates to list 3 warning levels of an alarm on a VIMS panel, the applicant confirmed that a category 3 warning stated immediate engine shutdown.8

[17] Ms Brattey referred the applicant to the powerpoint presentation concerning the CAT 793F haul truck machine familiarisation. The applicant stated she “definitely” did not remember the powerpoint presentation but suggested it would have been accompanied by a book and a sheet of paper for the answers. 9 The applicant subsequently stated she had not seen the document during the course of her employment with the respondent.10

[18] The applicant agreed that part of her duties and responsibilities as a competent operator was that she should be familiar with the operating procedures of the vehicle including the alarms. She also agreed that in her written evidence she had claimed that she was not familiar with those alarms. 11 The applicant confirmed that the VIMS panel displays messages that inform the operator that something could be wrong with the vehicle.12 She disagreed that part of her duties as an operator was to “check the gauges, check the VIMS system, check that the truck is running.” The applicant subsequently agreed that as an experienced operator, part of her duties and responsibilities were that she should know and understand any danger signals associated with the equipment that she was operating.13 In that regard she further agreed that as an operator, she had a duty to herself and other employees in terms of health and safety. The applicant accepted that in the event an operator failed to act on a VIMS warning signal, damage could occur to the operator and others. However, with respect to the CAT 793F vehicle, she did not know what the stage 3 alarm sounded like.14

[19] With respect to a category 3 warning, the applicant disputed the message required an immediate shutdown of the vehicle. 15

[20] With reference to the tool box meeting on 14 May 2013 following the dozer incident, the applicant disagreed the respondent was referring to the requirement that when a VIMS stage 3 alarm was activated, the operator was to immediately shutdown the vehicle. In the applicant’s opinion, the tool box meeting was “talking about the dozer” and not a haul truck. 16 The applicant’s evidence was that she understood the shutdown procedure for a vehicle to be “park up in a fundamentally safe spot.”17 In that regard, a fundamentally safe spot was not on a haul road or a ramp.18

[21] The applicant agreed that during the investigation meetings, Mr Armstrong told her that the alarm came on at 10:47am and lasted for 1 minute 36 seconds. 19 It was the applicant’s evidence that she saw a level one alarm had been activated in or around 11.51 a.m. and the relevant VIMS message was, “check engine oil level.” She subsequently saw the category 3 warning. In response to the category 3 warning, the applicant stated she would not have stopped on the ramp as she was “heading down to check the engine oil level and that is where I stopped.”20 The applicant subsequently stated that while she did hear an alarm, she was unsure whether it was a category 1, 2 or 3 warning.21

[22] The applicant stated that she was unsure when the stage 3 alarm was activated but was resolute that she first heard the alarm sound shortly before the East Lookout corner. 22 In response to the respondent’s proposition that the alarm had been operating for some 44 seconds before she had heard it, the applicant was adamant that she did not hear the alarm until shortly before she turned at the East Lookout and headed down the ramp.23

[23] It was the applicant’s evidence that an immediate safe shutdown of a vehicle could not be performed on a ramp nor was it safe to turn the wheels into the windrow. 24 She disagreed with the respondent’s view that when a stage 3 alarm is activated, a shutdown on a haul road is perfectly acceptable as is securing the vehicle by turning the wheels into the windrow. The applicant further stated confirmed that it was her understanding that the safe operating procedures required her to find a safe spot to park the vehicle and make it fundamentally safe.25 She disagreed that her understanding of the safe operating procedures were inconsistent with the requirements of the respondent.

Robert Lawman

[24] Mr Lawman is an operator employed by the respondent and generally drives haul trucks and self-propelled drill units. He has worked in the industry principally at the Mt Owen Mine for some 21 years. He is also the Union’s Site Lodge President.

[25] Mr Lawman deposed that he was present onsite on 9 October 2013 when the incident occurred. At approximately 11.00 a.m. on 9 October 2013, he was travelling on the haul road on a flat area near the East Lookout with Mr Saunders, a Step-Up Supervisor employed by the respondent. During that trip, he and Mr Saunders observed a very large oil spill in the middle of the left lane of the haul road. The oil spill was approximately four to five metres wide and about 15 metres long. 26 Mr Lawman further deposed that the nature of the oil spill suggested that the vehicle in question had suffered a “major haemorrhage which emptied the engine in a matter of a few seconds.”27 At that time he and Mr Saunders agreed that the oil spill was serious and they both considered the spill contained engine oil. When he and Mr Saunders commenced their descent from the top of the ramp, they observed the applicant’s vehicle at the bottom of the road parked off the haul road on a flat bench area in what he described as a “fundamentally stable position.”28 Shortly before observing the truck, he and Mr Saunders heard a two-way radio message from the applicant:

“Emergency, emergency, emergency. I’m in truck 2737, the base of ramp 1.” 29

[26] After parking their vehicle, Mr Lawman stated Mr Saunders advised the relevant Open Cut Examiner that there was no emergency.

[27] With reference to the video evidence attached to Mr Armstrong’s statement, Mr Lawman observed he was a competent CAT 793F operator and was personally concerned with both the design and the layout of the cabin. He further stated that in May 2012, he lodged a number of hazard reports with the respondent concerning those matters. Five hazard reports were annexed to his statement. One of his complaints concerned his view that the dash and instrument arrangement of the CAT 793F truck was “too complicated”. In that regard he explained that the dash contained too many switches and other aids that have the capacity to distract drivers. 30 He further explained that in older CAT 793B and 793C haul trucks that he had operated in the past, the dash display which included the VIMS system was immediately in front of the driver’s eye line whereas the VIMS warning display in the CAT 793F cab was offset to the right of the driver. He also noted the category 3 warning indicator appears to be smaller on the CAT 793F than the earlier models he referred to in his statement.

[28] Mr Lawman stated the warning alarm on the CAT 793F was an intermittent sound whereas it was continuous on the earlier CAT 793B and 793C models. He also contended the alarm sound was much louder in the earlier CAT 793B and 793C vehicles.

[29] Mr Lawman disagreed with the contentions held by the respondent that the applicant should have brought the vehicle to an immediate stop either on the East Lookout part of the haul road or anywhere along ramp 1, or by positioning the vehicle against the windrow on ramp 1 before exiting the vehicle. He stated ramp 1 was at an approximate incline of 10% and in his view most operators would not regard it as safe to execute an immediate stop on any ramp whilst descending, due to the fact that the vehicle would normally be travelling at speeds between 50 and 60 kilometres an hour and in the event there was another vehicle travelling behind, there would be a risk of collision. It was Mr Lawman’s evidence that the position where the applicant parked her vehicle on 9 October 2013 was, in his opinion, the first available flat area where the vehicle could be parked safely. 31

[30] In relation to the proposition that the applicant could have safely stopped her vehicle by turning into a windrow on the ramp, Mr Lawman stated he did not consider this to be an option or a proper way to execute a safe stop. The only exception would be where the vehicle had experienced a complete brake failure. It was also Mr Lawman’s evidence that he had provided assistance to the applicant during the investigation where she had consistently denied hearing any alarm before the bend at the top of ramp 1. He also said that the applicant was consistent about her account that she saw the VIMS message “shutdown immediately” when she was halfway down ramp 1.

[31] In cross-examination, Mr Lawman confirmed that a category 1 warning shows a flashing light whereas a category 3 warning is a flashing light and an intermittent alarm. 32 He also confirmed that during the course of the first meeting he attended with the applicant, he understood the allegations against her were serious or gross negligence based on the fact that she had driven the vehicle “too long” when a stage 3 alarm had been active.33 Mr Lawman recalled the respondent had put to the applicant that the first stage 3 alarm was activated at the East Lookout. However, he did not hear her response.34 Further, he did recall the fact that the duration of the stage 3 alarm was 1 minute 36 seconds was put to the applicant on a number of occasions. Mr Lawman agreed that when a stage 3 alarm is activated, the appropriate response is an immediate safe shutdown.35

[32] While Mr Lawman disagreed with the respondent’s contention that it was possible for the applicant to bring the vehicle to a fundamental safe park by turning it towards the windrow, 36 he did agree that it was acceptable to align the rear wheels with the windrow but certainly not the front wheels.37 Mr Lawman later agreed that the site road rules permit a fundamentally stable park by turning the front wheels towards the windrow. However, he also noted that this practice was not a general one in his experience.38

[33] It was Mr Lawman’s evidence that a ramp was not necessarily a safe place to park a truck. 39 In that regard, he agreed that in the event a truck broke down on a ramp the operator would advise other operators via the two-way radio system. He later conceded that whilst it might be permissible to stop on a ramp it is not a response he believed operators would follow if they could avoid it.40 Mr Lawman contended that engine failure was not an emergency situation.41 He further contended that it was quite common for engines, or parts of engines and transmissions to fail. In such circumstances he understood operators generally tried to find a spot that was flat and away from production to park up the vehicle and subsequently call a fitter to examine the cause of the problem.42 In his view, to stop the vehicle on the ramp could evoke “a bit of a dressing down for interrupting production.”43 Although a stage 3 alarm required an immediate safe shutdown, it was not the practice of operators to stop the vehicle in the middle of a ramp.44 In his view, the first practical place for the applicant to park the truck was at the bottom of the ramp.

[34] Mr Lawman confirmed that during the course of meetings between the applicant and himself and the respondent concerning the incident, Mr Hendriks had stated on a number of occasions, “immediate safe shutdown means immediate safe shutdown, not at the bottom of the ramp.” 45 Mr Lawman recalled that he had told Mr Hendriks that the majority of operators would do what the applicant did and pull up at the base of the ramp.46

[35] Mr Lawman accepted that a stage 3 alarm was a significant warning which could result in damage to the vehicle or cause damage to the operator. However, he was adamant that in such circumstances he would pull the vehicle up at the base of the ramp. 47

Respondent

James Armstrong

[36] Mr Armstrong’s position with the respondent is Mine Manager. Mr Armstrong stated that following the incident on 9 October 2013, the applicant completed a personal incident statement which was subsequently forwarded to her supervisor. That document was attached to Mr Armstrong’s Statement and marked ‘JA-1’.

[37] A subsequent incident report form generated by the respondent attached and marked ‘JA-2’ to Mr Armstrong’s statement stated that “engine oil pipe joint bolts fallen out and pipe joint has come apart allowing all oil to leak out” was the contributing factor to the incident.

[38] It was Mr Armstrong’s evidence that when a major engine failure occurred alarms are usually triggered in the vehicle. The CAT 793F vehicle contains a VIMS “which is like a sensor and notes when something is wrong with the vehicle.” 48 The relevant alarms are triggered when errors are detected. In that regard, he stated a large loss of oil should trigger a stage 3 alarm warning the vehicle should immediately be shutdown.

[39] Shortly after the incident, the applicant’s supervisor, Mr Daniel Blyton determined that the applicant’s statement did not match her account of what happened according to the respondent’s Ivolve system which is GPS-based and can identify the location of a vehicle and whether any of its alarms have been triggered. 49 Shortly stated, the respondent determined the applicant’s statement concerning the incident did not match the alarm timings or the location where the oil had been dumped according to the Ivolve system. The respondent subsequently sought a statement from Mr Saunders who was travelling behind the applicant’s vehicle shortly before the incident. In a statement attached and marked ‘JA-3’ to Mr Armstrong’s statement, Mr Saunders stated the following:

• emergency was called, came across oil on the ramp approximately 200 metres north of lookout. Across half the ramp; and



• oil continued down past lookout to the corner in that fashion, then proceeded to taper down to a small thin trail to truck.

[40] Mr Armstrong contended Mr Saunders account of the incident was inconsistent with the applicant’s statement that the alarm came on at the corner of ramp 1. Mr Armstrong also noted that it was Mr Saunders evidence that the vehicle had been leaking oil well before entering the corner of ramp 1.

[41] Against that backdrop, Mr Armstrong instructed Mr Chris Allen to extract information from the VIMS, together with the relevant Ivolve data, to establish precisely what information the vehicle had relayed to the operator and which alarms had been triggered at the time in the vehicle. Attached and marked ‘JA-4’ to Mr Armstrong’s statement was a copy of a spreadsheet detailing the times the relevant alarms sounded on the applicant’s vehicle at the time of the incident on 9 October 2013. At 10:51am, the spreadsheet showed that a stage 3 alarm was sounded and the relevant message read ‘Lo EngOil Pres’ which means low engine oil pressure. 50 He further described the stage 3 alarm as being loud and intermittent.

[42] Mr Armstrong stated that when a stage 3 alarm sounds, an action light will flash red on the VIMS panel and a message detailing the malfunction also appears. It was Mr Armstrong’s evidence that when the Ivolve message stated ‘Lo EngOil Pres’, the VIMS should have told the applicant to shutdown the vehicle immediately. However, the applicant failed to shutdown the vehicle and the stage 3 alarm sounded for 1 minute 36 seconds before the vehicle was ultimately shutdown.

[43] The Ivolve recorded that the vehicle continued to be driven after the stage 3 alarm was first sounded and, 44 seconds later, the VIMS panel message changed to ‘Oil lvl Lo Mark.’ This message was also a stage 3 alarm which meant that the oil in the vehicle was very low and had already passed the ‘low mark,’ meaning that it was not safe to continue driving the vehicle. 51 The ‘Oil lvl Lo Mark’ alarm continued for a total of 52 seconds until the applicant brought the vehicle to a stop. However, by that stage the engine was clearly out of oil and “blew up.”52

[44] It was Mr Armstrong’s evidence that it took the applicant a total of 1 minute 36 seconds for her to shut the vehicle down after a stage 3 alarm had sounded. Moreover, information extracted from the VIMS and Ivolve system was contrary to the incident statement that the applicant had given the respondent at the time of the incident as set out in ‘JA-2’. In that regard, Mr Armstrong stated the Ivolve system showed the position of the vehicle was just before the East Lookout when the first stage 3 alarm sounded. The message at that time displayed on the VIMS was ‘Lo EngOil Pres’ meaning low oil pressure. 53 The stage 3 alarm required immediate shutdown of the vehicle whereas the applicant continued to drive the vehicle for 450 metres when the message on the VIMS changed to “oil level below mark.” Despite that warning the applicant continued to travel down the ramp a further 320 metres before shutting the vehicle down. In summary, Mr Armstrong stated the applicant had travelled a distance of 770 metres over 1 minute 36 seconds before bringing the vehicle to a stop at which point the engine was completely out of oil.

[45] The respondent met with the applicant and her support person, Mr Lawman on 18 October 2013. Mr Armstrong stated the respondent was represented by Ms Johnson, HR Advisor, Mr Hendriks, General Manager and himself. He explained his role was to collect all the relevant information as Mine Manager for consideration by Mr Hendriks. The purpose of the meeting on 18 October 2013 was to obtain the applicant’s recollection of events. During the meeting the applicant explained that her recollection was that the alarm went off on ramp 1, near the corner and then half way down ramp 2, the second alarm sounded and she thought she would “get a safe spot to park.” 54 Mr Hendriks subsequently asked the applicant what her training had taught her to do in such situations. Her reply was to the effect that “she wasn’t going to check oil when on a ramp and she was not aware the vehicle was dropping oil.”55 Mr Hendriks repeated the question and it was Mr Armstrong’s recollection that the applicant provided no substantive answer in reply. Mr Armstrong subsequently explained to the meeting that the Ivolve data did not match the applicant’s version of events. In that regard, the applicant’s response was that if she knew the vehicle was dropping oil at the time she would’ve stopped immediately. At the conclusion of that meeting, the applicant was stood down pending further investigations.

[46] A second meeting with the applicant was convened on 21 October 2013 when the applicant was supported by four Union representatives. Mr Armstrong stated that between 18 and 21 October 2013, Mr Hendriks, Ms Johnson and himself had an opportunity to reconsider the Ivolve data in greater detail and also consider the extent of training the applicant had undertaken. Mr Allen had also prepared a video simulating a stage 3 alarm for the purposes of checking the message that would be displayed and the noise level of the alarm itself. During the course of the meeting the applicant reconfirmed her version of the events that took place on 9 October 2013. In response to a question from Mr Hendriks seeking the applicant’s response to “what her training has told her to do”, the applicant replied words to the effect that she was not going to check the oil when on the ramp and later stated “she did not know as it had never happened to her before.”  56 During the meeting, the VIMS times which suggested the stage 3 alarm had been activated well before the applicant recalled hearing the alarm was raised with her. Mr Hendriks also asked the applicant why she did not stop in the 500 metres before she reached the ramp which is in the vicinity of where the VIMS data showed the stage 3 alarm was activated. There was no response to this question. At the end of this meeting, the applicant was given a ‘Show Cause’ letter which stated in part:

The Company has conducted an investigation into the incident that occurred on 9 October 2013 where the engine on the truck you were operating failed due to low oil level resulting in major equipment damage.

You were interviewed as part of this process on 18 October, 2013.

The investigation process has now concluded and the Company has identified that:

• you travelled for 1 minute 36 seconds with a stage 3 alarm sounding and travelled approximately 1 kilometre before stopping the truck; and

• despite you being fully aware of the safe operating procedures for a 793F truck you failed to adhere to safe operating procedures which for a category 3 warning states, ‘This category requires an immediate safe shutdown of the machine. Injury to the operator can occur. Severe damage to the machine can occur’.

Due to the seriousness of this event, I am considering why your employment should not be terminated.

[47] On 25 November 2013, the meeting reconvened to consider the applicant’s show cause letter response which was attached and marked ‘JA-9’ to Mr Armstrong’s Statement. It was Mr Armstrong’s evidence that between 25 and 29 October 2013, he conducted a test with an operator of a CAT 793F in an attempt to simulate the same conditions the applicant experienced on the ramp on the day of the incident. He explained the vehicle was empty and was travelling at approximately 50 kilometres per hour. The road conditions were “dry”. On his command, the operator “hit the brakes” and it took approximately five seconds to bring the vehicle to a complete stop safely. 57 Details concerning this test were attached an marked ‘JA-10’ to his statement.

[48] It was also Mr Armstrong’s evidence that when a stage 3 alarm has sounded the operator can stop the vehicle anywhere on the mine road circuit and in his view, the vehicle does not have to be stopped in a fundamentally stable position. Rather, the only time the vehicle has to be fundamentally stable is when the operator intends to exit the vehicle. An operator can make a vehicle fundamentally stable on a ramp by simply turning the wheels into the windrow.

[49] Mr Armstrong speculated that in the event he accepted the applicant’s version of events and the stage 3 alarm was activated when she was travelling half way down the ramp, he considered the vehicle could have been brought to a stop on the ramp by simply turning the vehicle into the windrow. Instead the applicant chose to drive the vehicle for a further 370 metres.

[50] Subsequent to the incident, Mr Armstrong stated that he had put the question concerning what should an operator do when a stage 3 alarm sounds to four operators and all responded that they would stop the vehicle immediately. Mr Armstrong stated that prior to the final termination meeting, he had checked the applicant’s training records to ensure that she had understood the warning system and noted the relevant theory tests had been signed off on 18 November 2011. A copy of that training record was attached and marked ‘JA-11’ to his statement.

[51] Mr Armstrong noted that the theory assessment training record clearly stated at question 16 that the applicant understood that a stage 3 alarm meant shutdown the vehicle. The applicant had also successfully completed a competency assessment for all truck operations on 18 December 2012. A copy of the competency assessment was attached and marked ‘JA-12’ to his statement. The applicant had also passed the CAT 793F familiarisation theory assessment on 23 January 2013. A copy of the assessment was attached and marked ‘JA-13’ to his statement. The applicant was assessed as competent following her familiarisation of the CAT 793F vehicle on 7 April 2013. A copy of the assessment was attached and marked ‘JA-14’ to his statement. A copy of the powerpoint presentation which reminded operators about the relevant alarm systems was also attached and marked ‘JA-15’ to his statement. A clear message of the powerpoint presentation was that a stage 3 alarm required an immediate shutdown of the vehicle. 58

[52] Mr Armstrong also stated that on 14 May 2013, the applicant attended a meeting where all crews were reminded that they should not delay shutting down a vehicle in the event of a stage 3 alarm. That meeting followed a dozer incident where the operator had taken between 30 and 60 seconds to shutdown his vehicle causing significant damage to the engine. Mr Armstrong deposed that on 29 October 2013, Mr Hendriks, Ms Johnson and himself met to review all the relevant information prior to taking a final decision to dismiss the applicant. 59

[53] Mr Armstrong stated the meeting considered the following materials:

1. the applicant’s show cause response;

2. the information from Ivolve and VIMS;

3. the incident report;

4. the statements of the applicant and Mr Saunders;

5. the applicant’s training records including her competency signed off 18 December 2011, the familiarisation on 21 January 2012 and the competency assessment on 7 April 2012; and

6. the tool box meeting conducted on 14 May 2013 following the dozer incident. 60

[54] The meeting also considered Mr Armstrong’s site test with an operator and the information given by the Union that operators would have done much the same as the applicant in responding to a stage 3 alarm. In that regard Mr Armstrong stated that he considered the applicant’s statement was incorrect and for whatever reason she was not prepared to acknowledge that the alarm came on when the VIMS said it did. It was simply unacceptable for the applicant to continue to drive the vehicle for 770 metres and 1 minute 36 seconds after the stage 3 alarm had activated, particularly in this case where there was plenty of room for her to bring the vehicle to a stop. Mr Armstrong considered the evidence of Mr Saunders and Mr Lawson concerning where the oil first appeared on the ramp was corroborated by the VIMS data, which was that the stage 3 alarm was first activated about 500 metres from the corner of ramp 1.

[55] Mr Armstrong referred to a video of the haul road the applicant was travelling on when the alarms were triggered. A copy of that video was attached and marked ‘JA-17’ to his statement. Mr Armstrong contended the video demonstrated there was plenty of opportunity for the applicant to park up in this area as it was a relatively flat 500 metre stretch of roadway. Mr Armstrong stated that while the applicant claimed she understood the process was to find a safe location to park the vehicle so the engine oil could be checked, a stage 3 alarm does not inform the operator to check the oil. Rather, it instructs the operator to shutdown the vehicle. With respect to the applicant’s claim that halfway down the ramp another alarm sounded and at that point the VIMS read “Shutdown”, she continued with what she thought was a safe procedure and that was to stop the truck at the bottom of the ramp. 61 That decision was not consistent with her training. In any event the VIMS data revealed the alarm activated approximately 500 metres before the applicant says she heard the alarm. The VIMS data stated low oil pressure and not “check engine oil.”62 44 seconds later a second alarm was triggered and the VIMS messaging changed to “oil level low mark.” The duration of this alarm was 52 seconds according to the VIMS data.63 Mr Armstrong considered it was inconceivable that somebody could drive a vehicle for 1 minute 36 seconds when the stage 3 alarm was sounding. The applicant’s employment was subsequently terminated for gross negligence.

[56] In cross-examination, Mr Armstrong confirmed that throughout the investigation process the applicant gave a consistent view that she did not hear the alarm until just before the bend. 64 He agreed that when the second alarm was triggered the VIMS message would have cycled between “Low engine oil pressure, shutdown safely now” and “Oil level low mark. Advise shutdown. Check before restart.”65 Mr Armstrong stated that in his experience, if a category 1 alarm was triggered, an operator would have a quick look at the VIMS screen. However, if a category 2 alarm was triggered he would take more notice of the message and in the event a stage 3 alarm was activated, “you would read the screen.”66 He acknowledged the VIMS messages were different, but reiterated that the instructions for a stage 3 alarm is “Immediate safe shutdown” irrespective of what the VIMS screen is showing at the time.67 He subsequently confirmed that both messages required shutdown.68

[57] Mr Armstrong stated the respondent had procedures in place in the event of a vehicle breakdown on a ramp and those procedures “would mitigate the risk as effectively as stopping at the bottom of the ramp.” 69 Mr Armstrong stated that following the dozer incident in May 2013 the respondent advised all operators that in the event of a stage 3 alarm “everything must be shut immediately to avert potential damage to the equipment.”70 It was also Mr Armstrong’s evidence that when driving a mine truck the radio should be set so that you are able to immediately hear an alarm when it sounds. With reference to the applicant’s conduct, he considered the fact that she drove for 1 minute 36 seconds and 770 metres after the stage 3 alarm had been activated was gross negligence for two reasons. Firstly, for not identifying the alarm when it sounded and two, failing to act on that alarm consistent with her training.71 Mr Armstrong observed that when a stage 3 alarm sounds it is not simply a matter of stopping or parking the truck. The stage 3 alarm can indicate serious damage to equipment and if you are driving a truck at 50 kilometres an hour and the engine “pops out of the housing and blows the truck to a million pieces...(that) is a bigger hazard than stopping the truck on a ramp.”72 He agreed that the ultimate location at the bottom of the ramp where the applicant parked the vehicle was a safe location.73

Chris Allen

[58] Mr Allen is a Maintenance Planner with the respondent. On 9 October 2013 he became aware of a potential engine failure in a CAT 793F truck following a discussion with a fitter who had been instructed to check the vehicle. Mr Allen stated that when an incident of this nature occurs it is standard practice for a maintenance team member to download the relevant VIMS data from the vehicle and endeavour to establish what caused the particular problem. The relevant VIMS data was attached and marked ‘CA-1’ to his statement. The vehicle was checked by a fitter and himself to ensure the audible alarm was functioning.

[59] Mr Allen referred to attachment ‘CA-1’ and noted the following:

At 10:51 a.m. on 9 October 2013, a level 3 alarm was triggered and the message that was displayed on the VIMS system was ‘low engOil Pres’, meaning low engine oil pressure. The duration of the alarm was 1 minute 36 seconds. 74

Mr Allen explained that when a stage 3 alarm is triggered the operator of the vehicle will hear a pulsating action alarm and the VIMS panel will flash a warning signal. The VIMS will also display a message telling the operator what to do in response to the alarm. When a low engine oil pressure stage 3 alarm is activated, the VIMS informs the operator of low engine oil pressure and instructs that operator to stop the engine immediately.

[60] Mr Allen stated that a stage 1 alarm was also set off simultaneously with the stage 3 alarm. The relevant VIMS data stated that at 10:51am, the stage 1 alarm was also running concurrently in the background. However the fact that a stage 1 alarm was running in the background does not affect the stage 3 alarm which took precedent. Accordingly, the VIMS continued to display ‘Lo EngOil Pres’ - ‘Shutdown Safely Now’. 75

[61] Mr Allen stated the next event triggered was a stage 3 alarm for ‘Oil Lvl Lo Mark’. At this juncture the oil level had dropped below the first level sensor and required the vehicle to shutdown so as to adjust the oil level. The VIMS subsequently changed to ‘Oil Lvl Lo Mark’ - ‘Shutdown/Check before restart.’ 76 Given that two stage 3 alarms were running simultaneously, the VIMS would alternate the message between ‘Lo EngOil Pres’ - ‘Shutdown Safely Now’ and ‘Oil Lvl Lo Mark’ - ‘Shutdown/Check before restart.’77 Meanwhile the alarm in the truck cabin continues to pulsate and the VIMS continue to flash a warning signal. The downloaded material also stated that the second stage 3 alarm lasted for 52 seconds and at 1 minute 36 seconds the engine had been shutdown.

[62] It was Mr Allen’s evidence that by the time the vehicle had shutdown the engine had seized due to lack of oil flow. While the VIMS data does not give any breakdown in “seconds” as to when the alarm was activated, or the location of the vehicle at that time, the Ivolve system which uses a combination of VIMS data and GPS can provide the location of the vehicle. A copy of the relevant Ivolve information considered by the respondent was attached and marked ‘CA-2’ to Mr Allen’s statement. A series of photographs as set out in attachment ‘CA-2’ record the duration of the first stage 3 alarm was 1 minute 36 seconds. The photographs also show that the second stage 3 alarm, triggered by the ‘Oil Lvl Lo Mark’ displayed message commenced at 11:49.22 a.m. and ended 52 seconds later at 11:50.14 a.m. which is consistent with the downloaded VIMS data. Mr Allen also stated that it was possible to establish the distance travelled between the times the alarms were activated from the Ivolve data.

[63] Attached to Mr Allen’s statement and marked ‘CA-4’ was a video of a stage 3 alarm showing what the operator would see in the cabin of a CAT 793F vehicle. Mr Allen explained the simulation he conducted displayed a message on the VIMS panel which was ‘Oil Level Lo Mark’ 78. Mr Allen stated the stage 3 alarm is brought to the operator’s attention simply by the flashing amber light on the dashboard, the pulsating alarm and the VIMS message informing the operator what action they are required to take. In this case, the VIMS displayed the following message:

‘Oil Lvl Lo Mark Shutdown/Check before restart’. 79

[64] Mr Allen stated he could not simulate the first stage 3 alarm that the operator heard as it was not possible to carry out this particular simulation. According to the VIMS and Ivolve systems, the first stage 3 alarm that the applicant should have heard occurred at 11:48.59 a.m. The VIMS message concerning low engine oil pressure required her to shutdown the vehicle immediately. As the vehicle continued to be driven, the stage 3 alarm was in continuous operation and in that regard the VIMS messaging would alternate between ‘Lo EngOil Pres/Shutdown Safely Now and ‘Oil level low mark’ advising shutdown/check before restart.’ 80

[65] In cross-examination, Mr Allen confirmed that he had not been present in a vehicle when a stage 3 alarm had been triggered. He completed the simulation exercise to establish how it worked. 81 He also confirmed that when a stage 3 alarm was triggered the relevant VIMS construction would read “Low engine oil level, shutdown, check before restart.”82

[66] Mr Allen stated that it was possible for the VIMS message to change from “Low engine oil pressure, shutdown safely now” to “Oil level low mark, shutdown, check before start. 83 He further confirmed that the message “Oil level low mark, shutdown, check before restart” was active for 1 minute 36 seconds and 23 seconds later the second, first stage warning alarm activated with the message, “Low engine oil pressure, shutdown safely now” and that message appeared on the screen for 52 seconds.84

[67] In relation to the Ivolve data, he explained from a series of photographs where the incident occurred at 11:48.59 a.m. and where it ended, 1 minute 36 seconds later at 11:50.35 a.m. He also explained where the second, first stage 3 alarm was activated at 11:49.22 a.m. and the location where it finished some 52 seconds later at 11:50.14 a.m.

[68] With reference to the video simulation, Mr Allen stated he had used his iPhone. He could not recall where he held the iPhone nor did he measure the intensity of the surrounding noise. He subsequently confirmed that he took no steps to compensate for any loss of volume or additional volume depending where he held the iPhone at the time of making the recording. 85 He also confirmed that at the time of taking the video neither the two-way radio nor the AM/FM radio installed in the cabin had been turned on.86

Leanne Johnson

[69] Ms Johnson is the respondent’s Manager, Human Resources. She deposed her role following the incident was to ensure the incident was thoroughly investigated and that the applicant was given every opportunity to explain her version of events. In that regard she ensured that Mr Hendriks had all the relevant information before him concerning the incident and the applicant’s training relevant to the operation of a CAT 793F truck. She attended the meeting on 18 October 2013 with Mr Lawman, the applicant and Mr Armstrong. She confirmed Mr Armstrong’s contentions expressed at that meeting that the VIMS and Ivolve data contradicted the applicant’s version of events. 87 Ms Johnson stated that the applicant’s response was words to the effect that if in the event she knew the vehicle was dropping oil, she would have stopped immediately.

[70] In relation to training, Ms Johnson stated that the applicant had completed the CAT 785C and 793C theory assessments and in relation to question 16 of those assessments, she was asked to list three warning levels of alarm on the VIMS message panel. In that regard, the applicant correctly indicated that a stage 3 alarm means that the dash light will flash and an alarm will sound. The appropriate action is to shutdown the vehicle. 88 A copy of that assessment was attached and marked ‘LJ-12’ to her statement. Ms Johnson confirmed the applicant had completed the pre-start check list training on 19 November 2011, a competency assessment on 18 December 2011 and a theory assessment for the CAT 793F vehicle on 23 January 2012. Moreover, on 7 April 2012, the applicant was deemed competent having successfully completed the CAT 793F familiarisation theory assessment. Copies of the relevant assessments were attached and marked ‘LJ-14’ to ‘LJ-17’ to Ms Johnson’s statement.

[71] As part of the investigation process, Ms Johnson made specific enquiries concerning what other training the applicant had been given in relation to stage 3 alarms. A copy of a powerpoint presentation headed “793F Haul Truck Machine Familiarisation” was attached and marked ‘LJ-18’ to her statement. Ms Johnson noted that the presentation stated that a category 3 warning requires the operator to immediately shutdown the engine. 89 On 14 May 2013, the applicant was present at a tool box meeting where the 793F Haul Truck Machine Familiarisation procedure stating that with a category 3 warning, the operator should take steps to immediately shutdown the engine was reviewed.

[72] With reference to the meeting that took place on 29 October 2013 to consider the applicant’s show cause response, it was Ms Johnson’s evidence that Mr Lawman stated during that meeting that when you are driving a truck, “you are not looking at the dashboard for the alarms.” 90 In response Mr Hendriks stated words to the effect “you cannot miss the alarm, it is audible and very loud, as well as being visible.”

[73] Ms Johnson confirmed that a decision was taken by Mr Hendriks to dismiss the applicant for gross negligence. In that regard, Ms Johnson stated that Mr Hendriks, Mr Armstrong and herself determined the incident was very serious because the applicant had:

• driven the vehicle for 1 minute 36 seconds after a stage 3 alarm had been triggered;



• was fully aware of the operating procedures and had blatantly disregarded them; and



• caused significant damage to the vehicle. 91

[74] In cross-examination, Ms Johnson confirmed her role in the investigation process that ultimately led to the applicant’s dismissal.

[75] Ms Johnson recalled that during the course of the investigation the applicant believed that she had acted in accordance with the correct procedure. Ms Johnson maintained her response was inconsistent with her training. 92 In the applicant’s view “immediate safe shutdown” meant that it was open to her to shut the vehicle down on the ramp so long as she acted safely. The vehicle does not have to be driven to a flat spot.93

[76] Ms Johnson agreed that for the purposes of the investigation she prepared the relevant timeline of events. However, she stressed that she was not a technical expert.

Jeroen Hendriks

[77] Mr Hendriks is the respondent’s General Manager. Shortly after 11.50 a.m. in 9 October 2013 he was advised that one of the respondent’s CAT 793F trucks “blew out”. 94 Shortly thereafter an investigation commenced initially involving Mr Armstrong and Mr Allen. As the investigation progressed Ms Johnson became involved and she and Mr Armstrong worked together to bring all the relevant facts concerning the incident to his attention so that he could determine what course of action was appropriate in those circumstances.

[78] In the course of his statement, Mr Hendriks referred to the VIMS and Ivolve data prepared by Mr Allen and upon considering that material, he formed a similar view to Mr Armstrong that the applicant’s response to the incident was inconsistent with the VIMS and Ivolve material prepared by Mr Allen.

[79] Mr Hendriks described the events that took place between the respondent and applicant on 18 October and 21 October 2013 where, in response to the applicant’s version of events, she was issued with a show cause letter. A copy of the show cause letter was attached and marked ‘JH-10’ to his statement.

[80] It was Mr Hendriks evidence that he was very familiar with the route the applicant was taking on the day of the incident and in his view the part of the road where the alarm first sounded was fairly flat and in that regard the applicant “could have easily pulled up.” Moreover, it was also Mr Hendriks view that once the applicant had turned the corner there was still ample places for her to stop the vehicle. He described the road as being wide and if the applicant wanted to ensure that the vehicle was parked “fundamentally stable” she could have turned the vehicle into the windrow at anytime. 95

[81] With reference to the meeting conducted on 25 October 2013 to consider the applicant’s show cause response, Mr Hendriks referred to a statement made by Mr Shane Thompson, one of the applicant’s support persons who said words to the effect, “Brenda didn’t understand what the alarm was immediately and that the Union had asked some operators and it didn’t get a clear understanding from them as to what should happen when a stage 3 alarm went off.” 96 Mr Thompson also alleged that in his view, “training was pretty light at Thiess.” Mr Hendriks stated he disagreed with Mr Thompson’s assertions and in order to confirm his understanding of the training afforded to operators, he spoke to Ms Felicity Moore, the respondent’s Training Coordinator who confirmed that training involved classroom-based learning plus time out on trucks with a trainer before operators were assessed and passed as being competent.97

[82] With reference to the meeting convened on 29 October 2013, Mr Hendriks stated that he met with Mr Armstrong and Ms Johnson prior to that meeting to “go through the sequence of events and review all the information before we took any decisions.” 98

[83] Mr Hendriks stated that in reviewing the applicant’s show cause response he noted:

(a) the applicant was of the view that the safe location to stop the truck was at the bottom of the ramp; and

(b) the applicant believed she was following safe procedures.

(a) Applicant was of the view that the safe location to stop the truck was at the bottom of the ramp

[84] Mr Hendriks stated it was clear to him that the stage 3 alarm was activated in a different location to that claimed by the applicant. This view was confirmed by the VIMS, the Ivolve data and the witnesses who saw the oil on the road where the respondent believed the first alarm was activated. Mr Lawman had confirmed that he saw oil on the ground and both Mr Armstrong and Mr Allen had also confirmed there was oil on the ground at the location where the first alarm was activated according to the VIMS and Ivolve data. Accordingly, Mr Hendriks determined that the first alarm was activated approximately 450 metres from the ramp 1 corner and there was plenty of roadway for the applicant to pull up safely at this time. 99

[85] With regard to the applicant’s explanation that she understood the process was to find a safe location to park the vehicle so that the oil could be checked, Mr Hendriks stated a stage 3 alarm does not require the operator to check the oil but rather, to immediately shutdown the vehicle. Further, Mr Hendriks view of the matter was that it was perfectly safe for the applicant to park the vehicle on the ramp as she was only required to make the vehicle fundamentally stable if she was going to exit the vehicle. In such circumstances, Mr Hendriks contended it was the operator’s responsibility to check with the supervisor to ascertain what should occur. 100 Further, even in the event that the applicant was correct and she had to park the vehicle “fundamentally stable”, she could have done that by simply turning the vehicle into the windrow.101

(b) Applicant believed that she was following safe procedures

[86] With reference to the applicant’s show cause response that she believed she was following safe operating procedures, Mr Hendriks stated that he had reviewed her records and noted the following:

• on 19 November 2011, the applicant completed a theory assessment, the pre-start inspection checklist and basic operating procedures training;



• on 18 December 2011, the applicant successfully completed her competency assessment and on 23 January 2012, she completed a theory assessment for the CAT 793F.



• the applicant’s answer to question 16 of the theory assessment where it asked her to list the three warning levels of alarm on the VIMS panel. Her written response to that question was that a category 3 alarm requires shutdown of the vehicle; and



• on 7 April 2012, the applicant was deemed competent on the CAT 793F. Mr Hendriks stated that as part of the CAT 793F familiarisation process, operators were given a powerpoint presentation which informed about the alarm systems of the vehicle. The presentation states that a category 3 warning requires an immediate safe shutdown of the machine.

Mr Hendriks also stated that prior to making any decision, the respondent reviewed the following material:

• the incident report and the applicant’s statement;



• Mr Saunder’s statement;



• the VIMS and Ivolve information including the timeline constructed by Ms Johnson;



• the applicant’s performance and training records;



• the applicant’s response to her show cause letter;



• the tool box talk conducted on 14 May 2013 following the dozer incident;



• the test conducted by Mr Armstrong to determine how quickly a similar vehicle to the applicant’s could be brought to a stop on the haul road;



• the information provided by Mr Armstrong that the drivers he had spoken to concerning their understanding of a stage 3 alarm response confirmed that they would pull the vehicle up immediately; and



• the fact that the Union had spoken to operators who had a different understanding to those spoken to by Mr Armstrong.

[87] It was Mr Hendriks evidence that he did not consider the fact that the applicant drove the truck for 1 minute 36 seconds after the stage 3 alarm was activated to be an “immediate action” particularly when there were plenty of opportunities available to her to have stopped the vehicle. 102 He noted that in the test conducted by Mr Armstrong, it took less than five seconds to bring an unloaded vehicle travelling at 50 kilometres per hour down the ramp to a complete stop.103

[88] Mr Hendriks stated that the respondent’s procedures do not tell operators that a stage 3 alarm means the vehicle has to be shutdown in a location that is safe and fundamentally stable. In that regard, operators were clearly told not to delay shutting down a machine if a category 3 warning is triggered during the course of a tool box meeting conducted by the respondent on 14 May 2013.

[89] Mr Hendriks considered the applicant’s employment record and noted that while there were a few minor disciplinary issues her performance record on balance was “ok.” 104 However, in considering all the elements of this particular case, he formed the view that the applicant’s action in not shutting the vehicle down in accordance with the established procedures was gross negligence. By not following the respondent’s procedures as outlined in her training, the applicant created the potential for a major safety issue that could have exposed herself and others to injury. The applicant’s actions also caused significant damage to the vehicle. The applicant drove the vehicle for such a period after the stage 3 alarm had been activated that the engine had lost its oil and accordingly, could have completely self-destructed causing injury to the her and any other vehicle that happened to be passing at that time.105 96 seconds is not an immediate safe stop and is inconsistent with the respondent’s policies and the training that she had been given.

[90] Mr Hendriks stated that despite the fact that the applicant was wearing ear plugs, in his view they did not drown out the noise of an alarm. 106 He further stated that the term “fundamentally stable” does not mean the vehicle had to be parked on flat ground. Rather, it means putting the vehicle into a position where it cannot roll under its own weight. Turning the vehicle into the windrow would have made the vehicle “fundamentally stable.”107

[91] In cross-examination, Mr Hendriks confirmed he was the principal decision maker in deciding to terminate the applicant. Following the investigation he formed the view that the applicant’s conduct amounted to gross negligence which justified summary dismissal. 108 With reference to the video simulation prepared by Mr Allen, Mr Hendriks stated that when he observed the video footage, he did not pay any attention to the volume that the iPhone had been set at. He agreed the noise generated by the operations of the truck was such that the majority of operators chose to wear hearing protection.109 During the course of the investigation he did not recall asking the applicant whether at the time of the incident she had the two-way radio on as well as the AM/FM radio installed in the truck cabin.110 Mr Hendriks stated that while he had never operated a CAT 793F vehicle it was his view that an operator would detect a VIMS message within a couple of seconds of it being flashed up on the screen.111

[92] Mr Hendriks stated the applicant’s conduct amounted to gross negligence because an alarm had sounded and a light was flashing indicating there was trouble with the vehicle and it should have been shutdown immediately. 112 The first direct action the applicant took in response to the activation of the alarm was at the bottom of the ramp, 1 minute 36 seconds after it had first activated.113 It was Mr Hendriks evidence that when an alarm sounds the operator needs to take steps to shutdown the vehicle immediately and safely. Mr Hendriks confirmed his view that shutting a vehicle down 1 minute 36 seconds after the first alarm was activated was not an immediate safe shutdown in accordance with the respondent’s procedures.114 He contended the applicant should have pulled the vehicle up on the ramp.115

Submissions

Applicant

[93] At the outset Mr Endacott submitted the applicant had a good working relationship with the respondent and had never been given a formal warning during the course of her employment. The applicant disputes that her conduct was such that it constituted gross negligence and/or serious and wilful misconduct justifying the summary dismissal of her employment. The applicant further disputes the allegation that she disregarded the respondent’s safe operating procedures. The applicant further disputes that there was any wilful misconduct on her behalf and further asserted that at all times she acted in accordance with what she understood were the correct procedures under the circumstances. 116

[94] Mr Endacott submitted the factual matrix surrounding the incident was not complicated. Firstly, the CAT 793F vehicle the applicant was driving was defective. A trades person had failed to maintain the vehicle correctly by failing to attach a pipe that was critical to the operation of the vehicle.

[95] Mr Endacott described the events that led to the incident as follows:

There was an audible alarm system on the dump truck with the VIMS system indicating that the operator was to “check engine oil level.” The applicant proceeded with what she understood was the process to check the oil and decided on the safe location to park the truck up so the engine oil could be checked at the closest point which was at the bottom of ramp 1. While travelling to that location, a second audible alarm was engaged with the VIMS system which indicated that the machine was required to be “shutdown.”  117

[96] The applicant understood that the VIMS message “shutdown” required immediate shutdown of the dump truck and commenced giving effect to that requirement. In doing so she determined the closest safe location to shutdown the vehicle was the same location she had identified to check the engine oil. The applicant subsequently proceeded to the bottom of the ramp.

[97] Mr Endacott contended the CAT 793F vehicle weighed up to 300,000 kilograms loaded and 150,000 kilograms unloaded. Accordingly, in his view, a dump truck of this size that is not parked fundamentally stable presents a safety risk. Further, in his submission a dump truck that is parked or stopped in the middle of a haul road or on a ramp would not have been fundamentally stable but rather would have presented a hazard on the haul road. 118

Section 387(a) - Valid reason

[98] In her defence, Mr Endacott submitted the applicant had brought evidence that her conduct was consistent with her training whilst undertaking a traineeship at Coal and Allied’s Hunter Valley Operations Mine where the general emergency shutdown procedures stated “the truck is to be fundamentally stable before operator leaves the cab”. 119 Mr Endacott also contended that the applicant’s evidence concerning the requirements of the Hunter Valley Operations Mine were also consistent with the training she received at the Bulga Open Cut Coal Mine. Against that backdrop, Mr Endacott submitted the applicant’s conduct in bringing the vehicle to a stop was also consistent with the fair reading of the respondent’s Transport Rules.

[99] There was no evidence raised by the respondent in this matter that was sufficient to establish that the applicant’s conduct was wilful, deliberate or that she behaved in a manner other than what she believed was the correct procedure to be followed. He further submitted that negligence and gross negligence was not a basis for summary dismissal. He contended there was no negligence on the applicant’s behalf and in the event there was, it was not gross negligence as at all times the applicant believed she was conducting herself in accordance with the appropriate procedures for a safe shutdown of equipment. 120

[100] Mr Endacott referred to the respondent’s Transport Rules set out and annexed ‘BP-4’ to the applicant’s statement. Mr Endacott referred to the procedures under Clause 2.2 - Vehicle Safety Inspection at page 8 of the Transport Rules which state, “Should a defect come apparent during shift, the operator shall stop the vehicle in a safe place and report immediately to the OCE/Supervisor.” Under Section 4.8 - Parking, Mr Endacott referred the Commission to the procedure under 4.8.1, Fundamentally Stable - All Vehicles and Parking Situations. That procedure states “A vehicle can be left unattended without the possibility of it moving off under its own energy or the influence of gravity.” The procedure also notes that applying the park brake only is not fundamentally stable and should only be used as a short-term control. Under Clause 4.8.5 - Break Down - Heavy Vehicle, the Transport Rules supports the proposition that a truck that has stopped in the middle of a haul road presents a hazard. The provision relevantly provides an outline detailing the steps that an operator should take to barricade the vehicle and identify the hazard through traffic control signage and warning lights.

[101] Mr Endacott submitted that the applicant’s conduct was consistent with how she had been trained at other coal min operations to facilitate the safe shutdown of equipment. Accordingly, there was no valid reason for her dismissal.

Section 387(b) - Notification

[102] Mr Endacott conceded the applicant was notified of the reasons for her dismissal.

Section 387(c) - Opportunity to Respond

[103] Mr Endacott contended the applicant was not given a full opportunity to be able to respond to any reasons relating to her dismissal. The applicant was not provided with any rule that she clearly breached nor was any training material identified to her that would have enabled her to respond and explain her behaviour in the context of that training material.

[104] The respondent declined a request made by the Union on the applicant’s behalf that it interview other operators to ascertain their understanding of shutdown procedures. It was contended that the respondent had a “closed view” as to the understanding of the training that had been afforded to the applicant and the operation of their Transport Rules. In that regard the respondent failed to consider the views of other operators concerning the Transport Rules and the training they had received in responding to circumstances similar to those that faced the applicant on 9 October 2013. 121

Section 387(d) - Unreasonable refusal to allow a support person

[105] It was the Union’s submission that there was no unreasonable refusal by the respondent to allow a support person present. 122

Section 387(e) - Unsatisfactory performance

[106] Mr Endacott submitted there were no previous warnings concerning unsatisfactory performance relating to a failure by the applicant to follow safe operating procedures. 123

Section 387(f) - Size of employer and impact of human resources expertise and section 387(g) - Absence of dedicated human resource expertise

[107] Mr Endacott submitted the respondent was a major mining, construction and services company and has its own dedicated human resources expertise and specialists located at the respondent’s Mt Owen Mine. 124

Section 387(h) - Other matters

[108] Mr Endacott submitted the applicant’s conduct was consistent with her understanding of the procedure to be followed and she also acted in accordance with her understanding of those procedures consistent with the training she had received whilst employed by the respondent. Her conduct was also consistent with how she had been trained by previous employers in the mining industry. 125 If it was the respondent’s intention that the applicant should stop immediately, then the instruction of “immediate safe shutdown” should have been more thoroughly explained and it is arguable that in the event the applicant had shut the truck down in the middle of the haul road, that decision would have presented a hazard.

[109] Mr Endacott contended there was no deliberate conduct by the applicant that was contrary to her understanding of the obligations upon operators under the various procedures considered in evidence. The applicant was the sole bread winner in her family and given the current depressed nature of the coal mining industry she had been unable to find other employment. 126 Mr Endacott further alleged that the applicant had been summarily dismissed in response to the damage she had caused to the CAT 793F vehicle. In that regard he contended damage was caused in the main by poor maintenance. It was the applicant’s position to be reinstated to her former position with back pay.127

Respondent

Section 387(a) - Valid reason

[110] Ms Brattey submitted the applicant had been employed by the respondent for just over two years and was dismissed for serious breach of the respondent’s safety procedures, namely:

(a) her decision to drive the CAT 793F vehicle she was operating on 9 October 2013 for 1 minute 36 seconds after a stage 3 alarm had been activated;

(b) the fact that she was fully aware of the relevant safe operating procedures, specifically that a category 3 warning states, “This category requires an immediate shutdown of the machine. Injury to the operator can occur. Severe damage to the truck can occur.” The applicant chose to disregard such procedures; and

(c) the significant damage in excess of $500,000 caused to the vehicle she was operating. 128

[111] In view of the applicant’s conduct, the respondent considered summary dismissal was warranted on the grounds that she failed to take responsibility or show any remorse for her actions and her continual denial of any wrongdoing. 129 Accordingly, the respondent contended it had a valid reason for the applicant’s dismissal and the termination of her employment was not harsh, unjust or unreasonable. The application should be dismissed.

[112] Ms Brattey submitted the applicant considered that her dismissal was unfair because the respondent did not have a valid reason to dismiss her. She disputed that her conduct on 9 October 2013 was such that it constituted gross negligence and/or serious and wilful misconduct justifying her summary dismissal. In that regard the applicant disputed that she departed from what she understood were the safe operating procedures in existence at the time of the incident. 130

[113] Ms Brattey submitted the applicant was employed under the terms and conditions of the Mt Owen Mine Enterprise Agreement 2013. Clause 4.1 - Safety relevantly states:

Thiess Health and Safety is a prerequisite to all activities. The platform of the safety approach is that everyone at Mt Owen should expect to be able to work without injury. The safety of the public, employees and contractors is the responsibility of all mine personnel and is to be demonstrated at all times. 131

[114] Ms Brattey set out the following chronology of relevant events that led to the applicant’s dismissal.

9 October 2013

At 11.51 a.m. a stage 3 alarm is activated in the vehicle being driven at the time by the applicant. The VIMS panel stated “Lo Eng Oil Pres. Immediately shutdown safely.” The duration of this alarm was 1 minute 36 seconds. 132

Following this alarm a second stage 3 alarm was activated which ran for a period of 52 seconds and displayed the message, “Oil Lvl Lo Mark.” 133

At 11.52 a.m. the engine shutdown event occurred when the vehicle was parked to allow a system performed self-shutdown. At this point in time the engine was out of oil and had seized causing significant damage. 134 The investigation commenced shortly thereafter.

14 October 2013

As part of the investigation, the Mining and Maintenance team reported that while the vehicle incurred mechanical failure it had been driven for some time after a stage 3 alarm had been activated.

18 October 2013

The applicant was called to a fact-finding meeting and during the course of that meeting she was supported by her union representative. The applicant was asked for her version of the events and was subsequently stood down pending further investigations. 135

21 October 2013

A further meeting was called to discuss the incident and the applicant was supported by four union representatives at that meeting. During the course of that meeting, the respondent advised her that the data collected from the vehicle was not consistent with her version of the events that transpired on 9 October 2013. The applicant was advised that a stage 3 alarm was activated approximately 500 metres from where she claimed to have first heard an alarm. 136

In response to the alleged inconsistency concerning the applicant’s version of events she was asked to show cause as to why her employment should not be terminated on the grounds that the investigation had identified:

(a) “you travelled for 1 minute 36 seconds with a stage 3 alarm sounding and travelled approximately one kilometre before stopping the truck”; and

(b) despite being fully aware of the safe operating procedure for a CAT 793F vehicle you failed to adhere to safe operating procedures for which a category 3 warning states, “This category requires an immediate safe shutdown of the machine. Injury to the operator can occur. Severe damage to the machine can occur.” 137

25 October 2013

A further meeting was convened to enable the applicant to provide her show cause response. During the course of that meeting she was supported by a number of Union representatives.

29 October 2013

The applicant was dismissed for gross negligence by allowing the vehicle to travel for 1 minute 36 seconds while a stage 3 alarm was activated in breach of established safety procedures. In deciding the sanction of dismissal the respondent concluded that the applicant was fully aware of the safe operating procedures that applied and had failed to follow them which caused significant damage to the vehicle. 138

[115] Ms Brattey submitted that the applicant’s evidence was that she was competent to drive the vehicle. 139 In that regard, the applicant had completed a theory assessment concerning the vehicle on 19 November 2011 and in response to an assessment question that asked her to list three warning levels of an alarm on the VIMS panel, the applicant answered that a stage 3 alarm required shutdown. Moreover on 7 April 2013, the applicant completed a familiarisation process presentation for the CAT 793F vehicle and this presentation also stated that a category 3 warning requires an immediate safe shutdown of the machine. The applicant also attended a Tool box Meeting on 14 May 2013 where the message delivered to operators was “Do not delay shutting down a vehicle when a stage 3 alarm is activated.

[116] Ms Brattey submitted that during the course of the meetings on 18 and 21 October 2013, the applicant had stated that in the event she knew the vehicle was dropping oil, she would have stopped immediately. 140 In that regard the respondent argued that the applicant knew the procedure required in the event of a stage 3 alarm sounding and blatantly disregarded that procedure. Such conduct amounted to gross negligence entitling the respondent to summarily dismiss her.

[117] Ms Brattey submitted that employees must obey all lawful commands that fall within the scope within the employment relationship and that are reasonable:  141 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan; and Woolworths v Brown. 142 This duty encompasses all matters that are connected with the job performed by the employee pursuant to his or her employment contract and any of its incidents.143

[118] Ms Brattey submitted the respondent had statutory and common law duties to prevent accidents in the workplace and in terms of accident prevention, it must have an ability to remove from the workplace someone who has seriously breached or undermined policies designed to ensure a safe system of work: McLean v Tedman, 144 Mason, Wilson, Brennan and Dawson JJ stated:

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system...

...in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

[119] Ms Brattey submitted Woolworths v Brown affirmed that a breach by an employee of a reasonable policy implemented by the employer can amount to a valid reason for termination pursuant to s.387(a) of the Act. Ms Brattey referred to the decision of the then Australian Industrial Relations Commission in Wayne William Davis v Collinsville Coal Operations 145 which involved an incident where an employee continued to drive a 777D Series Coal Truck after a level 3 warning had been triggered for a distance in excess of one kilometre. In that particular case the Commission found that the termination was not harsh, unjust or unreasonable and that Collinsville Coal Operations had a valid reason to terminate the employee on a number of grounds including:

(a) the fact that if the employee had not continued to drive the vehicle after the activation of the stage 3 alarm, the damage would not have occurred; 146

(b) the expectations, objectively observed, of the employee’s core duties and responsibilities in relation to the safe operation of a vehicle such as a 777D truck, for the purpose of ensuring human safety and ensuring that there is no damage done to the respondent’s equipment; 147 and

(c) the fact that employee concerned had conducted relevant training in relation to the requirements of the truck and was found to demonstrate competency in relation to all relevant training areas.

[120] Ms Brattey considered the applicant’s conduct on 9 October 2013 was in breach of the respondent’s safe operating procedures in that she specifically failed to adhere to the safe operating procedure to be applied when a stage 3 alarm is activated. The relevant safe operating procedures state that when a stage 3 alarm is activated, “This category requires an immediate safe shutdown of the machine. Injury to the operator can occur. Severe damage to the machine can occur.

[121] Ms Brattey also submitted the applicant’s conduct was in breach of the relationship of trust and confidence that must exist between employer and employee. The applicant’s conduct in breaching the respondent’s safe operating procedures was neither unintentional nor trivial in their nature.

[122] Ms Brattey submitted the applicant’s conduct showed that the breach of the procedures was both deliberate and serious. Accordingly, it was not unreasonable for the respondent to terminate her employment which was premised upon a valid reason for her dismissal. The respondent’s case that the applicant was well aware of the specific allegations against her and was given ample opportunity to respond while supported by Union representatives. During the meeting convened on 18 October 2013, the applicant was afforded an opportunity to put forward her version of the events related to the incident on 9 October 2013. On 21 October 2013, a meeting was convened to provide the applicant with a show cause letter setting out the allegations and requesting her response.

[123] The respondent rejected the notion that it had a closed view about the nature of the training afforded to the applicant and submitted that the training was clear and the applicant new what was required of her in the event that a stage 3 alarm was activated. 148

Section 387(b) - Notification

[124] The applicant was notified of the reasons for her dismissal.

Section 387(c) - Opportunity to Respond

[125] It was the respondent’s case that the applicant had been afforded an opportunity to respond consistent with the objects of s.387(c) of the Act.

Section 387(d) - Unreasonable refusal to allow a support person

[126] Ms Brattey submitted there was no unreasonable refusal by the respondent to allow the applicant a support person.

Section 387(e) - Unsatisfactory performance

[127] Ms Brattey conceded this consideration was irrelevant to these proceedings.

Section 387(f) - Size of employer and impact of human resources expertise

[128] Not a relevant consideration in this matter.

Section 387(g) - Absence of dedicated human resource expertise

[129] The respondent has dedicated human resource staff at its Mt Owen Mine.

Section 387(h) - Other matters

[130] The respondent rejected the submission of the applicant that her dismissal was harsh and a disproportionate response to the gravity of her conduct. In that regard the respondent submitted that the applicant’s circumstances are not dissimilar to other persons dismissed for reasons of misconduct. Ms Brattey also submitted that the applicant behaved in such a manner on 9 October 2013 that she put herself and others at risk as well as causing significant damage to the vehicle. Moreover, the applicant had also seriously breached the respondent’s safe operating procedures. 149 Accordingly, the respondent was entitled to take these matters into consideration when considering the sanction to apply. Ms Brattey further submitted that in the event the Commission determined that the applicant’s dismissal was unfair, it should nonetheless decline to reinstate her.150

[131] With respect to any remedy, both Mr Endacott and Ms Brattey submitted the Commission should hear further submissions in the event the application was upheld.

Consideration

The statutory requirements

[132] Section 385 of the Act relevantly provides that a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.

[133] Section 387 of the Act sets out the criteria to be considered by the Commission in determining whether a particular dismissal is harsh, unjust or unreasonable and provides the following criteria that must be taken into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWC considers relevant.

(a) Valid reason

[134] In Selvachandran v Peteron Plastics Pty Ltd, 151Northrop J considered the dismissal provisions of the Industrial Relations Act 1998 and determined:

...the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based up the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed upon them. The provisions must ‘be applied in a practical and commonsense way to ensure that’ the employer and employees are each treated fairly... 152

[135] In Parmalat Food Products Pty Ltd v Kasian Wililo, 153 a decision which considered a dismissal related to a safety breach, the Full Bench stated:

The existence of valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render any termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 154

[136] The Full Bench also considered the importance of upholding safety rules in the workplace:

In our view this case raises important questions about the respective rights and obligations of employers and employees in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

In this case the employer considered and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so can send a message to the workforce that safety breaches can occur with impunity. 155

[137] In determining this application, I have considered all the evidence and submissions put to the Commission by the parties. The allegations put to the applicant during the disciplinary meetings conducted as part of the respondent’s investigation were serious. However, for whatever reason she failed to hear the relevant stage 3 alarms at the times they were activated. I accept that the applicant had received training in how to respond to stage 3 alarms on more than one occasion. In any event, when the applicant finally did hear the sounding stage 3 alarm, she proceeded to shut the vehicle down in a fundamentally stable area at the bottom of the ramp. By that stage, the vehicle’s engine had lost its oil and the engine had seized.

[138] The applicant argued that the response she chose was consistent with her training and knowledge of the applicable Transport Rules that operated at the Bulga and Hunter Valley mines where she had previously worked. However, that response was inconsistent with the respondent’s Transport Rules in operation at Mt Owen and the training that she had received. In my view, the applicant’s conduct can be correctly characterised as serious misconduct. Her conduct was essentially antecedent behaviour which had the capacity to cause serious or imminent risk to a person’s health and safety in accordance with Regulation 2(b) of the Fair Work Regulations 2009 (the Regulations) and seriously breached the respondent’s transport rules, safety procedures and policy.

[139] Regulation 1.07 of the Regulations defines serious misconduct in the following terms:

Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

...

[140] The respondent takes its safety obligations seriously and is entitled to expect its employees reciprocate. Despite a number of opportunities afforded to her, the applicant failed to acknowledge that her actions were in breach of the respondent’s Transport Rules, safety procedures and policy for which she had received training. Safety rules and procedures are mandatory policies.

[141] In this matter I have found that the applicant’s conduct in not applying the respondent’s safe operating procedures for shutting down her vehicle as a result of a stage 3 alarm on 9 October 2013 for which she had been trained as alleged by the respondent occurred and the very nature of that conduct caused a serious and imminent risk to the health of other road users at the time as well as herself.

[142] The applicant’s dismissal was for reasons identified by Mr Hendriks in evidence and explained in the applicant’s letter of dismissal dated 30 October 2013. The applicant was presented with her show cause letter on 23 October 2013. At that time, the applicant was formally instructed that the respondent was relying on those reasons to support her possible dismissal.The applicant’s explanation was that she thought she was “doing the right thing in response to the situation that was at hand.” 156

[143] The respondent is obliged to take reasonable care to provide all employees with a safe place of work and safe systems of work at all times. In that regard, it is clear to the Commission that the applicant’s response to the incident that occurred on 9 October 2013 was inconsistent with her training generally with the respondent and the specific instruction given to her during the course of the tool box meeting on 14 May 2013 in response to the dozer incident. Against that backdrop, I do not consider the respondent’s decision to dismiss the applicant was a disproportionate to the gravity of her conduct on 9 October 2013.

[144] In the course of submissions, reference was made to the decision of Hungerford J inPastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3), (Gartrell White) 157 where his Honour observed that in cases of summary dismissal, the onus falls to the employer respondent to prove the conduct as alleged occurred:

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. 158

[145] His Honour considered both the nature and degree of the conduct concerned was a relevant consideration in defining the degree of misconduct that justified summary dismissal:

Permeating all of those earlier cases on this aspect of the law was the concept that the act of misconduct or of disobedience had to strike at the fundamental aspect of the relationship of employer-employee so as to make it plain that the conduct complained of was such that the non-offending party may properly conclude that the offending party no longer intended to be bound by the provisions of the employment contract. In other words, so it seems to me, the test comes down to the question whether the employee’s conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future. 159

[146] In Laws v London Chronicle (Indicator) Newspapers (Ltd), 160 Lord Evershed MR (Jenkins and Willmer LJJ agreeing) stated:161

The question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

[147] In my view, the applicant’s conduct, when viewed in its totality, amounted to gross negligence as alleged by the respondent. Her conduct on 9 October 2013 represented a very significant departure from the response expected of an experienced operator particularly given her training and the express instruction given to operators at the tool box meeting that she attended on 14 May 2014 following the dozer incident. On balance, her conduct expressed a wilful disregard of the instructions lawfully and reasonably put to during her training and the more recent tool box meeting. Her conduct also goes to the relationship of trust between the respondent and herself. It was also conduct that was in breach the implied term in her contract of employment to comply with the lawful and reasonable directions of the employer, 162 page 151 per Isaacs ACJ.

[148] The respondent had a valid reason to dismiss the applicant and was entitled to terminate her employment summarily.

(b) Notification

[149] It is clear on the evidence the applicant was informed of the reasons for her termination on 29 October 2013. Moreover, it is also clear the applicant was informed of the reasons for dismissal prior to the respondent’s decision to terminate her employment was made.

(c) Opportunity to Respond

[150] On the material before the Commission, the reasons for the applicant’s dismissal were clearly articulated to her in the show cause letter dated 23 October 2013.The respondent afforded the applicant ample opportunity during the investigation to put forward her explanation for her conduct. In that regard, Heerey J in Schaale v Hoechst Australia Ltd, 163 observed:

It would be harsh, unjust and unreasonable for an employer to dismiss an employee summarily on the ground of serious misconduct without taking reasonable steps to investigate those allegations and give the employee a fair chance of answering them… 164

[151] The show cause letter clearly set out the conduct alleged and invited the applicant to provide reasons why the respondent should not proceed to dismiss her. The applicant subsequently responded in writing. Her response was considered by the respondent at a meeting on 29 October 2013. Accordingly, the Commission finds the applicant was afforded an opportunity to respond to the reasons relied upon for her dismissal.

(d) Unreasonable refusal to allow a support person

[152] I am satisfied the applicant was afforded an opportunity to have a support person(s) present and the requirements of the sub-section were met.

(e) Unsatisfactory performance

[153] There was no evidence that unsatisfactory performance was related to the applicant’s dismissal.

(f) Size of employer and impact of human resources expertise

[154] The respondent is a large employer with dedicated human resources staff.

(g) Absence of dedicated human resource expertise

[155] This matter is not relevant.

(h) Other matters

[156] I have had regard to the applicant’s period of employment and all of the other matters pressed by Mr Endacott during proceedings.

Finding

[157] In finding the respondent had a valid reason for dismissing the applicant, and following consideration of the other relevant factors set out in s.387 of the Act, I also consider that the applicant has been afforded “a fair go all round.” Despite a vigorous defence mounted against the respondent’s case by the Union, the respondent is entitled to expect compliance with its express and Mt Owen mine site specific Transport Rules and related safety policies. On the evidence in this matter, the applicant’s vehicle had the capacity to cause severe injury to the applicant herself and potentially mine personnel as a result of the engine seizing due to lack of oil.

[158] For all the aforementioned reasons, I am unable to be satisfied that the applicant’s dismissal on 29 October 2013 was ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act. The application for a remedy from alleged unfair dismissal must be dismissed. An order to that effect will be published contemporaneously with this decision.

COMMISSIONER

Appearances:

For the applicant, Mr K Endacott, Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District.

For the respondent, Ms C Brattey, Solicitor, Herbert Smith Freehills.

Hearing details:

2014

Newcastle

26 and 27 March

 1   Applicant’s show cause Letter dated 23 October 2013

 2   Applicant’s (1st) Statement at para 17

 3   Ibid para 22

 4   Ibid para 23

 5   Ibid para 25

 6   Ibid para 26

 7   Transcript at PN360

 8   Ibid at PN381 and 385

 9   Ibid at PN390

 10   Ibid at PN407

 11   Ibid at PN416-419

 12   Ibid at PN438

 13   Ibid at PN450

 14   Ibid at PN451-456

 15   Ibid at PN503

 16   Ibid at PN517

 17   Ibid at PN518

 18   Ibid at PN519

 19   Ibid at PN565

 20   Ibid at PN567

 21   Ibid at PN573

 22   Ibid at PN611

 23   Ibid at PN612

 24   Ibid at PN667-669

 25   Ibid at PN805

 26   Witness Statement - Robert Lawman at para 8

 27   Ibid para 8

 28   Ibid para 10

 29   Ibid para 11

 30   Ibid para 16

 31   Ibid para 26

 32   Transcript at PN918-920

 33   Ibid at PN930-932

 34   Ibid at PN945-947

 35   Ibid at PN951

 36   Ibid at PN953

 37   Ibid at PN953

 38   Ibid at PN963

 39   Ibid at PN968

 40   Ibid at PN976

 41   Ibid at PN977

 42   Ibid at PN978

 43   Ibid at PN978

 44   Ibid at PN983

 45   Ibid at PN991

 46   Ibid at PN995-996

 47   Ibid at PN1009

 48   Witness Statement - James Armstrong at para 11

 49   Ibid para 13

 50   Ibid para 24

 51   Ibid para 31

 52   Ibid para 34

 53   Ibid para 37

 54   Ibid para 47

 55   Ibid para 48

 56   Ibid para 56

 57   Ibid para 70

 58   Ibid para 81

 59   Ibid para 84

 60   Ibid para 85

 61   Ibid para 93

 62   Ibid para 95

 63   Ibid para 96

 64   Transcript at PN1507-1508

 65   Ibid at PN1514

 66   Ibid at PN1524

 67   Ibid at PN1536

 68   Ibid at PN1554

 69   Ibid at PN1563

 70   Ibid at PN1591

 71   Ibid at PN1684-1685

 72   Ibid at PN1688

 73   Ibid at PN1690

 74   Witness statement - Chris Allen at para 16

 75   Ibid para 20

 76   Ibid para 22

 77   Ibid para 23

 78   Ibid para 38

 79   Ibid para 39

 80   Ibid para 41

 81   Transcript at PN1145-1146

 82   Ibid at PN1172

 83   Ibid at PN1187

 84   Ibid at PN1194

 85   Ibid at PN1285

 86   Ibid at PN1289-1290

 87   Witness Statement - Leanne Johnson at para 22

 88   Ibid para 43

 89   Ibid para 48

 90   Ibid para 56

 91   Ibid para 60

 92   Transcript at PN1345

 93   Ibid at PN1349

 94   Witness Statement - Jeroen Hendriks at para 5

 95   Ibid para 46

 96   Ibid para 49

 97   Ibid para 50

 98   Ibid para 53

 99   Ibid para 57

 100   Ibid para 58

 101   Ibid para 59

 102   Ibid para 63

 103   Ibid para 64

 104   Ibid para 67

 105   Ibid para 70

 106   Ibid para 77

 107   Ibid para 83

 108   Transcript at PN1800

 109   Ibid at PN1891

 110   Ibid at PN1898

 111   Ibid at PN1923-1926

 112   Ibid at PN1942

 113   Ibid at PN1946

 114   Ibid at PN1976

 115   Ibid at PN1983

 116   Applicant’s written submissions at para 10

 117   Ibid para 13

 118   Ibid para 17

 119   Ibid para 19

 120   Ibid para 24

 121   Ibid para 33

 122   Ibid para 34

 123   Ibid para 35

 124   Ibid para 36

 125   Ibid para 37-38

 126   Ibid para 41

 127   Ibid para 42-44

 128   Respondent’s written submissions at para 3

 129   Ibid para 4

 130   Ibid para 7

 131   Ibid para 10

 132   Witness statement - Chris Allen at para 16

 133   Ibid para 24

 134   Respondent’s written submissions at para 14

 135   Applicant’s witness statement at para 31

 136   Witness statements - Leanne Johnston at para 30 and James Armstrong at para 58

 137   Witness statement - James Armstrong at para 63

 138   Witness statement - Jeroen Hendriks at para 67

 139   Applicant’s witness statement at para 28

 140   Witness statements - Leanne Johnston at para 23 and 29 James Armstrong at para 42 to 51

 141   Respondent’s submissions at para 49

 142 (1938) 60 CLR 601 and (2005) 145 IR 285

 143 (2005) 145 IR 285

 144 (1984) 155 CLR 306

 145   [2004] AIRC 358

 146   [2004] AIRC 358 at 50

 147   [2004] AIRC 358 at 51

 148   Respondent’s written submissions at para 66

 149   Witness statement - Jeroen Hendriks at para 57 to 77

 150   Respondent’s written submissions at para 84

 151 [1995] IRCA 333

 152   Ibid at para [10]

 153   [2011] FWAFB 1166

 154   Ibid at para [24]

 155   Ibid at para [18]-[19]

 156   Form F2 Application for Unfair Dismissal remedy attachment

 157 (1990) 35 IR 70

 158   Ibid at page 84

 159   Ibid at page 74

 160 [1959] 1 WLR 698

 161   Ibid at para 700

 162   Adami v Maison de Luxe Ltd [1924] HCA 45 (1924) 35 CLR 143

 163 (1993) 47 IR 249

 164   Ibid at para 252

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