Daniel John Roy Kirkwood v BHP Coal Pty Ltd
[2022] FWC 3074
•18 NOVEMBER 2022
| [2022] FWC 3074 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel John Roy Kirkwood
v
BHP Coal Pty Ltd
(U2022/5802)
| COMMISSIONER SIMPSON | BRISBANE, 18 NOVEMBER 2022 |
Application for an unfair dismissal remedy – Dismissal not unfair – Application dismissed.
On 27 May 2022, Daniel John Roy Kirkwood (Mr Kirkwood/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against BHP Coal Pty Ltd (BHP/ the Respondent).
The matter was listed for a conciliation before a Commission Conciliator on 25 July 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 12 August 2022. The matter was set for a substantive hearing on 23 September 2022 which was later adjourned until 4 October 2022.
REPRESENTATION
On 19 August 2022, the Respondent submitted material pursuant to s.596 of the Act. After weighing each of the considerations under s.596 and in light of the material, I determined on 30 August 2022 to grant the Respondent leave to be represented. At the Hearing, the Applicant represented himself, and the Respondent was represented by Mr Nick Le Mare, of Corrs Chambers Westgarth.
BACKGROUND
Mr Kirkwood was employed by BHP Coal on 16 June 2014. He was employed in the role of Supervisor in the Coal Handling Preparation Plant (CHPP) team at the Caval Ridge Mine in Moranbah, Queensland (the Mine).
Mr Kirkwood was employed as a Supervisor at the Mine at the time of his dismissal. This role involved the following duties:
· supervising 8 to 10 employees;
· overseeing and supervising production outcomes for the CHPP team including washing and loading coal, managing stockpiles and preparing coal for shipping to customers;
· managing the health and safety of his crew members and other persons at the Mine.
Between 27 April 2022 to 2 May 2022, Mr Kirkwood allegedly:
· directed a worker to enter the product stockpile yard in circumstances where Mr Kirkwood knew or ought to have known that, following a slumping incident in that area, people were precluded from entering it;
· did so without conducting a proper risk assessment process and/or putting in place a “Job Step Analysis” (JSA) to control health and safety risks in the area as directed by his line manager;
· removed the original JSA put in place for the product stockpile yard without first discussing with or obtaining approval from his Superintendent; and
· otherwise failed to complete all requirements and manage risks as per the Mine’s Safety and Health Management System (SHMS), (Incident).
Mr Kirkwood was stood down on pay pending an investigation into his conduct and allegations he breached his duties as Supervisor, the Code of Conduct and health and safety policies and procedures.
Based on evidence including that obtained from Mr Kirkwood, the investigation found that two of the allegations against Mr Kirkwood were substantiated, either in whole or in part. The Respondent submits that the two substantiated allegations gave rise to significant concerns about Mr Kirkwood’s understanding of his role as Supervisor and his ability to appropriately identify health and safety risks and implement controls to minimise or remove them.
On 13 May 2022, Mr Kirkwood was informed of the outcome of the investigation and was asked to show cause as to why his employment should not be terminated in light of the substantiated allegations.
Mr Kirkwood provided a written response to the show cause letter. BHP submitted that the response failed to properly address the health and safety concerns BHP Coal held and did not provide a response that reasonably excused his conduct. BHP Coal considered the mitigating circumstances raised by Mr Kirkwood as well as his employment history.
Ultimately, BHP Coal decided to terminate Mr Kirkwood’s employment on or about 18
May 2022. Mr Kirkwood was dismissed because he was found to have engaged in misconduct in breach of the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act), BHP’s Charter Values of sustainability and accountability, and BHP’s risk management policy.
EVIDENCE AND SUBMISSIONS
Mr Kirkwood relies on his witness statement[1] filed on 2 September 2022 and an Outline of Argument filed on the same date and gave oral evidence at the hearing.
The Respondent relied on the statements of Mr Jamie Doidge[2] dated 14 September 2022 and Ms Susan Ditton dated 16 September 2022.[3] Mr Doidge is the Production Superintendent of Draglines at Caval Ridge Mine and Ms Ditton is the Coal Production Manager at the Mine. Ms Ditton included in her evidence that Ms Wills who was the Superintendent that Mr Kirkwood reported to, is currently on parental leave and not due to return to work until late January 2023, which is the reason Ms Wills did not give evidence at the hearing. Ms Wills reports to Ms Ditton in her role.
Mr Kirkwood said at the hearing that he was “happy” with the witness statements of the Respondent’s two witnesses, however there were a few things he would like to dispute.
Mr Kirkwood’s own statement is brief, stating that he worked at BHP as a processing supervisor for four years, and previous to this, he was an operator maintainer. Mr Kirkwood said that he had experience in coal preparation plants of over 15 years. He said at no stage did he place a worker in an unsafe area.
Mr Kirkwood said the conditions of the JSA had changed therefore had to be reassessed. He said the importance of the JSA was not communicated effectively, and the basis of the termination comes from a personal animosity held by the Superintendent (Ms Wills) towards himself.
Mr Kirkwood said in his Outline of Argument that whilst employed by the Respondent he earned $209,000 per year with bonuses.
Mr Kirkwood submitted that he did not agree he engaged in misconduct. He said the Respondent alleges that he directed a worker under his supervision, to enter an area where he was in danger of possible engulfment. Mr Kirkwood said this was untrue as at no stage was this a possibility, and not only was the risk of slumping as low as reasonably possible, but the worker was also in a CAT 980 wheel loader, classified as a medium vehicle onsite, making engulfment impossible.
Mr Kirkwood did not avail himself of the opportunity provided in the directions issued by the Commission prior to the hearing, to file any material in reply to the Respondent’s evidence and submissions.
Warning over Previous Health and Safety Incidents and Performance Improvement Plan
The Respondent submitted that one of Mr Kirkwood’s responsibilities in his role as Supervisor included undertaking and recording area inspections each shift. In practical terms, this meant undertaking a risk assessment and inspecting work areas each shift, to identify health and safety hazards and put in place controls to minimise or remove identified hazards. The purpose of the inspection is to proactively identify and manage hazards as early as possible. Following an audit by the Regulator in or around August 2021, BHP Coal gave a commitment to ensure area inspections were completed every shift. A direction was given by Ms Wills to all Supervisors at the Mine, including Mr Kirkwood, on 10 August 2021 to carry out the area inspections in accordance with this commitment (Area Inspection Direction).
The Respondent submitted that Mr Kirkwood failed to comply with the Area Inspection Direction from 10 August 2021 to 6 September 2021.
Ms Ditton said in her evidence that one of the key safety responsibilities for Mr Kirkwood was and is to undertake area inspections and prepare written records about that each shift. Ms Ditton said an area inspection involves ensuring your team is working safely, completing risk assessments, and otherwise inspecting work areas to identify health and safety hazards and implement controls in respect of them.
Ms Ditton said that Supervisors must also upload written records of the inspection using an application called iAuditor, which records identified hazards and controls implemented. Ms Ditton said the purpose of undertaking area inspections is to ensure hazards are identified and
communicated to workers as early as possible and that appropriate controls are put in place to minimise risks to health and safety at the Mine before they occur.
Ms Ditton said in or around August 2021, the Company was audited by the Coal Mines Inspectorate and arising from that audit gave a commitment that it would ensure area inspections are completed every shift. Ms Ditton said that on or around 10 August 2021, Ms Wills sent an email to all Supervisors at the Mine about the audit and the requirement to conduct and record area inspections every shift. In that email, Ms Wills gave a direction to all Supervisors to ensure area inspections take place every shift and maintain accurate records about that.
Ms Ditton said that in or around September 2021, it became apparent that Mr Kirkwood was not complying with the Area Inspection Direction; and as a consequence, on or around 6 September 2021, Ms Wills met with Mr Kirkwood to reinforce the Area Inspection Direction and the need for him to comply with it.
Between 6 September 2021 to in or around early October 2021, the Respondent submitted that it became apparent that Mr Kirkwood was continuing his practice of not completing area inspections. Specifically, it became apparent that he completed only 8 out of the 26 area inspections he was required to complete. This was set out in the evidence of Ms Ditton.
On 4 and 5 October 2021, Ms Wills followed this up with Mr Kirkwood by email. Mr Kirkwood provided a response to Ms Wills which, in essence, said that he must have not understood their previous discussions about area inspections. In all the circumstances, the Respondent contended that this was an entirely unsatisfactory response.
The Respondent submitted that Mr Kirkwood’s response did not sufficiently address:
· why he had failed to comply with the Area Inspection Direction despite being given the direction on 10 August 2021 and 6 September 2021; and
· why he had not spoken with Ms Wills if he did not understand the Area Inspection Direction or its purpose.
On 18 October 2021, Ms Wills again met with Mr Kirkwood and issued him with a written warning regarding his failure to complete area inspections (Written Warning). The Respondent submitted that Ms Wills also reiterated the importance of Mr Kirkwood’s health and safety obligations as Supervisor. This is consistent with the evidence of Ms Ditton.
The Respondent contended that from 18 October 2021 to 25 January 2022, Mr Kirkwood’s performance deteriorated. This is also set out in the evidence of Ms Ditton. The issues which arose included:
· failure to adequately identify and train personnel to maintain minimum skill levels;
· lack of hazard identification under his supervision;
· disrespectful behaviour;
· negative and argumentative behaviour; and
· failing to escalate and report safety impacts and production events as per the Mine’s Safety and Health Management System which occurred under his supervision.
It was submitted by the Respondent that in light of the ongoing issues with Mr Kirkwood’s conduct and performance, on 25 January 2022 a performance improvement plan was implemented (PIP). The purpose of the PIP was to address the areas of concern previously raised with Mr Kirkwood and give him an opportunity to meet the minimum expectations of his role as Supervisor. The intention was to monitor Mr Kirkwood’s progress with his line manager and ensure he had enough support and resources available to him to improve. This is also consistent with the evidence of Ms Ditton.
During his oral evidence Mr Kirkwood explained that his safety obligations under the Act included giving out safety information and to do safety area inspections daily and raise issues. Mr Kirkwood accepted that he was given a written warning about not doing the inspections in a daily basis. Mr Kirkwood said he was doing them however the issue was not recording them in the way Ms Wills wanted them to be recorded.
Mr Kirkwood accepted that he was put on a PIP, and he said it sought to address issues within the team as far as training went, and members of the team were not being trained in a timely matter, and also that the general culture of the team was sliding, and it was not meeting Ms Wills expectations.
Mr Kirkwood accepted that an element of the PIP identified that he encouraged a lax culture as far as hazard identification went. He agreed that one of the action items was for him to be more active in terms of escalating and reporting safety impacts and hazards.
It was put to Mr Kirkwood that he had claimed that he had an unblemished record however he also accepted he had received a written warning. Mr Kirkwood said he was referring to the period before the last six months of his employment.
Slumping Event 4 April
On 4 April 2022, Ms Ditton gave evidence that there was a product stockpile yard failure at the Mine which caused a slump to breach an adjacent road (Slumping Event).
The product stockpile yard was located in an area where mine workers would frequently drive past or park their vehicles. The Respondent submitted that the Slumping Event posed a significant risk to health and safety because if any further slumping occurred while a person was in that area, there was a risk of engulfment which could cause serious injury or death.
The Slumping Event was consequently reported to the Mines Inspectorate as a High Potential Incident (HPI) to identify the cause and controls to be put in place to prevent further slumping in the future. As an interim measure to address the health and safety risks posed by the Slumping Event, a JSA was implemented. In essence, the Respondent submitted that the relevant JSA put in place an exclusion zone over the entire product stockpile yard, limited the number of people who could access the area and imposed conditions for access.
It was submitted by the Respondent that on 5 and 15 April 2022, all workers at the Mine were notified of the Slumping Event and the exclusion zone put in place over the product stockpile yard. While the HPI investigation was ongoing, all Supervisors in Ms Wills’ CHPP team, including Mr Kirkwood, were required to review and sign the relevant JSA every seven days to confirm their understanding of it. Ms Ditton gave evidence concerning the particulars of these communications.
Ms Ditton said in her evidence that the risk of slumping is determined by many factors, the main one being the moisture content of the coal, some of the properties of the coal which make the coal more susceptible to a higher moisture content and it is a view that there were possibly some drainage issues within the stockpile which needed remediation as well, causing for moisture to remain in the stockpile. The risk had nothing to do with a stockpile that had already slumped, it is looking at these other factors across the entire stockpile area to see where else the risk remained.
Mr Kirkwood said in relation to the slumping event on 4 April that they are fairly common, and they have been at the workplace for the last 10 years. Mr Kirkwood said in this instance it seeped onto a road. Mr Kirkwood said the slump was raised as an event. Mr Kirkwood was asked what this event was characterised as, and he initially said he was not sure. He was asked what it was characterised as in terms of severity, and he said he couldn’t recall. It was put to him that it was a High Potential Incident and Mr Kirkwood said it was not raised as a HPI until the next day, and he then accepted that it was a HPI. Mr Kirkwood said if something is raised as a HPI the area has to be barricaded off and closed off until the mines inspectorate is notified, and the area is released once the mines inspectorate gives its go ahead.
Mr Kirkwood accepted that means the area is cordoned off, and it is not accessed until the mines inspectorate releases it. Mr Kirkwood accepted that a JSA was put on the area the next day. Mr Kirkwood said that the effect of the JSA was to cordon off only one side of the stockpile, which was the eastern side, and it was a no-go zone, and the gate was tagged. Mr Kirkwood was referred to the JSA and where it said “No access to eastern LV road. Gates closed and danger tape across with info tags.” He agreed that was the exclusion he was talking about.
Mr Kirkwood said the western side was able to be accessed for maintenance and inspections as long as you communicated you were going there, and there were a few stipulations about parking LV’s under stackers, and LV’s needed to be parked next to an empty stockpile if possible.
Mr Kirkwood was asked if he received any emails about the exclusion zone and restrictions on access and he said he did. Mr Kirkwood was referred to an Information Brief on 5 April 2022 about the slump and he confirmed he remembered receiving it.
Incident from 27 April to 2 May 2022
The Respondent’s submission was that Mr Kirkwood knew about the JSA because he had attended a prestart briefing on 27 April 2022 during which it was confirmed the JSA over the product stockpile yard was in place. He had also signed the JSA on 27 April and 2 May 2022 to acknowledge he had reviewed it and would comply with it.
The Respondent further submitted that Mr Kirkwood also knew the HPI investigation was ongoing because Ms Wills sent an email to Mr Kirkwood on 27 April 2022 requesting that he provide all primary information about the Slumping Event as well as a timeline of events and statements for the HPI investigation.
Mr Kirkwood said in his oral evidence that he disputed that Ms Wills gave him a direction on 27 April that the work could only be undertaken if a new JSA was completed, and appropriate health and safety controls implemented before any persons entered the product stockpile yard. Mr Kirkwood said he disputed that conversation ever happened.Mr Kirkwood said that was the only thing that he wanted to raise in response to the two statements filed for the Respondent.
The Respondent submitted that on 27 April 2022, Mr Kirkwood informed Ms Wills that he wanted to clean the slumped material caused by the Slumping Event in the product stockpile yard. In response, Ms Wills gave a direction to Mr Kirkwood that this work could be undertaken only if a new JSA was completed, and appropriate health and safety controls implemented before any persons entered the product stockpile yard (JSA Direction).
It was submitted by the Respondent that on or around 27 or 28 April 2022, Mr Kirkwood directed a worker at the Mine, Stuart Lock, into the product stockpile yard to clean the slumped material caused by the Slumping Event without completing a new JSA or implementing any health and safety controls.
Following the clean-up of the slumped material in the stockpile yard, on or around 27 April to 2 May 2022, the Respondent’s evidence was that Mr Kirkwood removed the JSA and the exclusion zone put in place to limit access to the product stockpile yard without checking whether the HPI investigation had been completed and without communicating with or notifying Ms Wills. Mr Kirkwood informed Dave Borwick, the Open Cut Examiner (OCE) managing the product stockpile yard, that the area was no longer subject to a JSA.
Mr Kirkwood stated that he removed the JSA because the hazard it identified no longer existed and as such the JSA was no longer required. Mr Kirkwood submitted that the JSA did not state he needed to seek permission to remove it. He stated that he conducted an inspection of the area and gathered other data, such as moisture levels and stockpile configurations. After this assessment he decided that since the slumped pile had been removed completely, it posed no further risk, and the removal of the remaining spillage could take place safely under the permanent standard operating procedure for that area. Mr Kirkwood’s evidence was that JSA’s are a temporary written procedure and BHPs own guidelines for these risk assessments state that if conditions change the JSA must be re-assessed. Mr Kirkwood submitted that he followed this guideline and found the hazard of slumping to be no more of a risk than what the SOP already covers.
Mr Kirkwood said in his role as a supervisor he has written, placed, and removed hundreds of JSA’s and similar risk assessments. He said each one has been carefully considered and he has drawn on his knowledge and experience of over 27 years in mining and heavy industry. He said that in that time, he has never placed or been placed in a potentially dangerous situation and has never been involved in a serious accident or incident.
On 2 May 2022, Ms Wills became aware of Mr Kirkwood’s actions and discussed the Incident with Mr Kirkwood. The Respondent’s evidence was that during this discussion, Mr Kirkwood indicated that he had removed the JSA because the slumped material had been cleared away and the JSA was no longer necessary. The Respondent submitted that Mr Kirkwood could not adequately explain to Ms Wills why he felt it was reasonable to lift the JSA without additional controls in place or without escalating to Ms Wills prior to removing the JSA. The JSA was reinstated to limit access to the product stockpile yard.
During his oral evidence it was put to Mr Kirkwood there is provision on the JSA for it to be signed, and it indicates that he signed it on 27 April and 2 May 2022. He accepted he signed the document. He said he agreed to the document and the restrictions put on the stockpile. He said he signed it on the morning of 27 April which was at the beginning of his swing. Mr Kirkwood said he got the restart pack, which also mentioned that the JSA was still in place.
Mr Kirkwood was taken to paragraph 28 of the statement of Ms Ditton where she said as follows:
“I am informed by Ms Wills and believe to be true that later on or around 27 April 2022:
(a) Mr Kirkwood said to Ms Wills words to the effect that he wanted to clean the slump in the product stockpile yard; and
(b) Ms Wills said to Mr Kirkwood words to the effect that he could proceed to clean the slump but would need to complete a JSA and implement appropriate health and safety controls before directing anyone into that area because the HPI investigation was ongoing (JSA Direction).”
Mr Kirkwood claimed that this conversation never occurred. Mr Kirkwood said he agreed that Ms Wills mentioned that after he told her that he had removed that JSA, and this would have been the following week, which he said was on 2nd or 3rd of April. It would appear Mr Kirkwood intended to say 2nd or 3rd of May. He agreed that the conversation happened but on a different date and did not happen before he cleaned the slump up. Mr Kirkwood again confirmed his agreement that the conversation did happen, but he maintained that Ms Wills had the sequence wrong.
Mr Kirkwood said that he thought the HPI launched on 5 April had been concluded by 27 April, and he said the JSA, or the restart pack did not mention the HPI. Mr Kirkwood said the slumped stockpile was reclaimed and all that remained was the material that had slumped over the railway and that was only 1.5 to 2 metres high. Mr Kirkwood said after inspecting the stockpile he decided that the JSA was no longer valid, and he did not “fully comprehend” that the HPI was still ongoing, and he thought the investigation would have been over by that time as it was more than 20 days before.
Mr Kirkwood said he lifted the JSA and instructed Mr Lock to go in and clean the rest of it up, and they would go back to the Standard Work Instruction (SWI) for the product stockpile area. Mr Kirkwood accepted that the JSA had still been in place at that time. Mr Kirkwood agreed that people were not to enter the area of the yard where he directed Mr Lock unless he lifted the JSA, which he did. Mr Kirkwood said he saw no further risk of slumping in the stockpile. Mr Kirkwood said he arrived at that decision based in the moisture results, the weather, and his experience from looking at stockpiles and signs of slumping. Mr Kirkwood accepted that he did not undertake a formal process before giving the direction to Mr Lock.
Mr Kirkwood was asked if he escalated the issue or raised it with anyone else and he said only the OCE. Mr Kirkwood said in relation to Mr Lock that he said to Mr Lock that they were going to go in and clean that road up, and Mr Lock replied, “I’ll just do it in the big loader.” Mr Kirkwood said there was no discussions about risk, and Mr Lock is a very experienced operator. Mr Kirkwood still maintained it was safe for Mr Lock to do that task.
Mr Kirkwood was asked if he had the chance again, whether he would do anything differently, and Mr Kirkwood replied that he would probably have informed a superintendent that he was going to go ahead and do that. Mr Kirkwood said in his career he had placed and lifted hundreds of JSA’s, and he did not think this one was any different.
Mr Kirkwood agreed that he recalled a conversation with Ms Wills on 2 May, and he said that would have been a Monday. Mr Kirkwood was asked about the contents of Ms Ditton’s evidence, and he was asked whether he recalled saying to Ms Wills the following:
“I removed the JSA because the slump had been cleared away and I didn’t think it necessary to leave the JSA in place but will reinstate it now.”
Mr Kirkwood said that he said at the time that he would reinstate it now if she liked. Mr Kirkwood was asked if he recalled later in the conversation that he apologised for lifting the JSA and admitting that he should not have done this. Mr Kirkwood said he did not recall that part of the conversation. Mr Kirkwood was asked whether he did not recall it, or whether he never made that concession. Mr Kirkwood replied that he did not think he would have made that concession, and he didn’t recall saying that.
It was put to Mr Kirkwood that is what he said, and he was apologetic at the time. Mr Kirkwood said he might have said that in the following interviews, but he did not say that on the spot, and he told Ms Wills he had lifted the JSA, and she did not even know the JSA had been lifted.
Mr Kirkwood was asked if at any stage he was apologetic and accepting that what he had done was wrong. Mr Kirkwood said that he accepted that had occurred in the following conversations. He said he would have called Ms Wills had he known the HPI was on there, but not knowing the HPI was on, he would not have called. He said you don’t call the superintendent for lifting JSA’s.
Mr Kirkwood was asked how he knew about the status of the HPI investigation at the time, and he said Ms Wills told him when he told Ms Wills that he had lifted the JSA. Mr Kirkwood said that Ms Wills asked him whether he knew that there was a HPI and an active investigation and he said he replied no.
It was put to Mr Kirkwood that he had been asked to provide information previously in relation to that HPI investigation. Mr Kirkwood said that more than 20 days before he had been asked about it.
Mr Kirkwood said in submissions that slumps are caused mainly by weather events and high moisture content and neither of those issues were present that week. Mr Kirkwood said employees were sent into the western side when the JSA was in place. Mr Kirkwood said the HPI and JSI were not mentioned in the restart pack, and he wrongly assumed that the HPI had been investigated.
3 May Stand Down
On 3 May 2022, Ms Ditton and Ms Wills met with Mr Kirkwood to further discuss the Incident. The Respondent submitted that this discussion caused Ms Ditton (and Ms Wills) to crystallise their concerns about Mr Kirkwood, his approach to safety, his compliance with safety directions and other safety and health management system requirements. Consequently, Mr Kirkwood was stood down pending an investigation into his conduct concerning the Incident.
Mr Kirkwood’s evidence was that he was interviewed then stood down, and was then escorted from site without being able to retrieve personal belongings. He submitted that whilst stood down, he was not kept informed of the progress of the investigation unless he prompted them through contact.
Mr Kirkwood was asked about Ms Ditton’s evidence where she recounts a conversation, she claimed to have had with Mr Kirkwood and Ms Wills on or around 3 May 2022. It was put to Mr Kirkwood that he said to Ms Ditton words to effect;
“I shouldn’t have lifted it. I removed the slump but didn’t see risk. I didn’t see risk anymore. I inspected the area and seen no risk. The area didn’t look slumpish.”
Mr Kirkwood agreed he said those words. Mr Kirkwood said that he made this statement during the conversation where he was about to be stood down.
It was put to Mr Kirkwood that he said to Ms Ditton words to the effect;
“I will put up my hand, I made a mistake. I should have spoken to Bianca”,
Mr Kirkwood said he agreed that he said that, however he was about to be fired, and said he would say anything to keep his job. It was put to Mr Kirkwood that Ms Wills said to him as follows:
“I’m trying to understand where the gap was, was it event reporting or understanding the risk?” and he replied “a bit of both”.
Mr Kirkwood confirmed he did recall that being said. Mr Kirkwood was asked what he meant when he said, “a bit of both” and he replied that maybe he didn’t quite understand that the HPI still existed and the investigation was ongoing, and also that he was admitting that he probably overlooked the risk of further slumping on both sides of the stockpile.
Mr Kirkwood was then asked if he now accepted that he should not have directed Mr Lock into the yard and he said no. Mr Kirkwood said you would pretty much say anything to keep your job when you are about to be stood down. Mr Kirkwood agreed that he said these things because he thought it was what Ms Wills and Ms Ditton wanted to hear.
Further slumping event on 5 May
On or around 5 May 2022, another slumping event occurred in the product stockpile yard. The Respondent contended that had the JSA not been reinstated, and a worker had been in the area, they could have been injured or worse.
The Respondent submitted that this further slumping event is set out in the evidence of Ms Ditton and fortunately no one was injured however there was some property damage. The Respondent submitted that it demonstrates the risk that the JSA was designed to protect against materialised. Mr Kirkwood submitted that that slumping incident happened during a weather event.
Referral for Investigation
The Respondent submitted that Mr Doidge and Mr Brad Campbell, Product Superintendent for Coal Mining, were appointed to investigate Mr Kirkwood’s conduct concerning the Incident.
The Respondent submitted that Mr Doidge and Mr Campbell were selected to conduct the investigation because they have significant experience in the mining industry. They are familiar with BHP Coal’s risk management processes as well as the responsibilities and obligations of Supervisors under the Act. Mr Doidge also has extensive experience investigating health and safety matters, in particular in respect of obligations owed pursuant to the Act.
Another reason included that neither Mr Doidge nor Mr Campbell were in Mr Kirkwood’s team and were not involved in the management of his employment. Accordingly, their appointment was thought appropriate in order to facilitate an independent and unbiased process.
Investigation and Findings
On or around 5 May 2022, Mr Doidge and Mr Campbell commenced their investigation into the Incident and Mr Kirkwood’s conduct. There were four allegations being considered:
whether Mr Kirkwood failed to assess, adequately control, escalate and report the Slumping Event when an operator informed Mr Kirkwood of the slumped material on 4 April 2022 (Allegation 1);
whether Mr Kirkwood:
(a) failed to meet his obligations as a Supervisor by lifting the JSA on 28 April 2022 which was implementing the safety controls in product stockpile stockyard to manage the risks identified following the Slumping Event without seeking adequate approvals or identifying the residual risks which were still present at the time; and
(b) failed to implement adequate controls to manage these risks putting coal mine workers at risk,
(Allegation 2);
whether Mr Kirkwood:
(a) failed to identify and manage risks following a directive to complete a JSA prior to directing a coal mine worker into a product stockpile yard on 27 April 2022 to clear the slumped material caused by the Slumping Event; and
(b) put coal mine workers at the Mine entering the product stockpile yard to carry out work at risk,
(Allegation 3);
whether Mr Kirkwood breached his confidentiality obligations by discussing the details pertaining to the investigation with persons other than his support person (Allegation 4),
The Respondent’s evidence was that the investigators considered background information regarding the Incident provided by Ms Wills, the HPI investigation materials and interviewed Mr Kirkwood regarding the Allegations against him as well as two other witnesses.
The Respondent submitted that during the investigation interview, Mr Kirkwood made the following admissions:
· he did not implement a JSA prior to directing Mr Lock to clear the slumped material from the product stockpile yard;
· he had misinterpreted the JSA that was in place at the time and thought it was for one stockpile only, not the entire product stockpile yard;
· he did not talk to anyone about removing the JSA, except for Mr Borwick; and
· in hindsight, he should have got Ms Wills’ approval to remove the existing JSA.
The Respondent submitted that to come to a finding, Mr Doidge and Mr Campbell considered the evidence gathered during the investigation, including the admissions made by Mr Kirkwood during his interview. This was weighed against mitigating circumstances, including his length of service with BHP Coal.
Ultimately, Mr Doidge and Mr Campbell formed the view that the following Allegations against Mr Kirkwood were substantiated in whole or in part:
· Allegation 2 was partially substantiated because Mr Kirkwood was able to demonstrate how he applied risk management principles to make a determination to clear the stockpile but did not follow the required risk management process under the Mine’s Safety and Health Management System; and
· Allegation 3 was substantiated in whole.
(Findings).
The Respondent contended that it was evident to Mr Doidge and Mr Campbell that Mr Kirkwood’s conduct by way of the substantiated allegations constituted a breach of his obligations as a Supervisor under the Act as well as BHP Coal’s health and safety policies and procedures.
Mr Kirkwood agreed that he recalled attending a meeting with Mr Doidge and Mr Campbell on 10 May. Mr Kirkwood accepted that he was asked in the meeting to explain his decision to lift the JSA. Mr Doidge’s recollection of what Mr Kirkwood said at this meeting including the following:
“I inspected the area, the stockpile reclaimed at the time, I had a visual of east and west side. There were no visible signs of further slumping or excess moisture. Only slumped material remained. I was unaware that the investigation was ongoing. I believed slumping was caused by restacking on partially reclaimed stockpiles. I know I should have escalated it in hindsight. There was no JSA completed. Stuart Lock cleared the slumped material. The outcome of the investigation and the root cause was not known, and we were awaiting SME findings. We were signed on to JSA until the material was cleaned on 27 April 2022. I misinterpreted the JSA and assumed it only applied to that stockpile. Dave Borwick informed me that there was a JSA in place and it was included in the OCE report. When the JSA was lifted I rang Dave and reverted to normal stockpile operations.”
Mr Kirkwood agreed during his oral evidence that this was an accurate record of what he said at the meeting, and if he had his time again, he would have done things differently.
In respect of Allegation 3, Mr Kirkwood was asked if it was for Mr Lock to decide whether it was safe. Mr Kirkwood said he inspected the area first and then gave Mr Lock a direction to go into the area. It was put to Mr Kirkwood that he knew a JSA was in place that meant he could not direct Mr Lock to go in there. Mr Kirkwood said he had lifted the JSA. It was put to Mr Kirkwood that there was no process that he undertook to escalate or otherwise assess the risk in terms of his lifting the JSA. Mr Kirkwood agreed he did not do any formal risk assessment other than his own inspection.
It was put to Mr Kirkwood that he made a call to override what had been put in place by others. Mr Kirkwood accepted that. He said that was part of his job. Mr Kirkwood said you do not have to escalate the lifting of every JSA to a line leader.
Mr Doidge made observations about his discussions with Mr Kirkwood including the following:
“(c) Mr Kirkwood had his own views as to what caused the Slumping Event. I formed the view however that he was relying on what he thought were the causes, however he did not have the evidence to back that up.”
Mr Kirkwood was asked to respond to this observation of Mr Doidge, and he said that he agreed that he didn’t have the evidence, but queried what evidence was he after.
Mr Doidge said the following in his witness statement:
“One of the main functions of a Superintendent is to make decisions about matters that can affect the day-to-day health and safety of workers on site. While JSA removal is within Mr Kirkwood’s responsibilities, it is extraordinary to me that in circumstances where the relevant JSA was put in place, and he had direct knowledge of it, he would then remove it unilaterally without escalating to his Superintendent.”
Mr Doidge said in his oral evidence that there was no basis for a claim that Mr Kirkwood’s direction to Mr Lock to clean up the slump was safe. He said there was no formal risk assessment process before the direction was given. Mr Doidge said all the Respondent’s risk assessment processes rely on a cross section of workers getting together, identifying the risks in the area, and putting appropriate controls in place to ensure that people are not exposed to an unacceptable level of risk.
Mr Kirkwood asked Mr Doidge whether in his investigation the Respondent got to the bottom of why slumping occurred. Mr Doidge said that was not one of the things that he was asked to investigate. Mr Doidge was asked if he had a background in civil engineering or product stockpiles and he said no. Mr Kirkwood said in submissions he felt that the investigators did not have experience in slumping.
Ms Ditton said in her oral evidence that given the risk of the product stockpile slumping in other areas it was unsafe for Mr Kirkwood to have directed Mr Lock to go into the area as he did. Ms Ditton was asked by Mr Kirkwood whether this included the western side. Ms Ditton said the JSA was for the entire area but specified restricted access to the eastern side specifically.
Ms Ditton said this was the first time a HPI had been issued for a slump in the product stockpile yard to her knowledge since she had been at Caval Ridge. Ms Ditton agreed there had been a previous slump in the raw coal stockpile which is a different area. Ms Ditton was asked if that slump had been classed as a HPI and she said not at time, and that was due to other controls that were in that area that were not in the product stockpile yard.
Ms Ditton said at the time she started at Caval Ridge Mine, Mr Kirkwood was in the position of Acting Superintendent.
13 May Show Cause Letter
As a result of the Findings from the investigation into the Incident, BHP Coal commenced a show cause process.
On 13 May 2022, Ms Ditton sent Mr Kirkwood a show cause letter regarding the Findings in the investigation and stating that Mr Kirkwood’s conduct, specifically failing to adequately identify, assess and manage current risks to BHP Coal’s personnel in line with BHP Coal’s safety procedures and risk management standards was unacceptable and not tolerated (Show Cause Letter). The Show Cause Letter requested a response from Mr Kirkwood by 18 May 2022.
On 14 May 2022, Mr Kirkwood provided his response to the Show Cause Letter (Show Cause Response). Mr Kirkwood’s Show Cause Response indicated to BHP Coal that he acknowledged his actions were found to be negligent and he took responsibility for his mistake in judgment. However, the Respondent submitted that Mr Kirkwood also attempted to blame Ms Wills for the Slumping Event and continued risk of slumping in the product stockpile yard.
Ms Ditton considered the Show Cause Response and determined that Mr Kirkwood’s Show Cause Response demonstrated he did not sufficiently understand the gravity of his actions and did not provide the necessary assurance, trust or confidence that he had an appropriate understanding of or ability to comply with his health and safety obligations as a supervisor.
Mr Kirkwood agreed he received the show cause letter of 13 May and agreed that he provided the Respondent a response to the show cause letter. He was referred to the following sentence in his show cause response.
“The preceding words in no way excuse my actions which have been found to be negligent, as I said to you in my first interview, I will take full responsibility for my mistake in judgement.”
Mr Kirkwood confirmed he said that. Mr Kirkwood agreed that he was given an opportunity to respond to the issues that led to his termination, and he agreed he had enough time to prepare his responses.
Termination Decision
Ms Ditton consequently decided to dismiss Mr Kirkwood from his employment. That decision was communicated to Mr Kirkwood orally and in writing on 18 May 2022.
The considerations Ms Ditton said she took into account were:
(a)Mr Kirkwood’s Show Cause Response:
(i)attempted to blame Ms Wills for the Slumping Event and continued risk of slumping in the product stockpile yard;
(ii)failed to demonstrate that Mr Kirkwood had properly undertaken and recorded a risk assessment in accordance with BHP Coal’s Safety and Health Management System;
(iii)failed to explain why he did not comply with the JSA Direction given by Ms Wills;
(iv)failed to explain why he did not communicate with Ms Wills or any other persons at the Mine regarding the status of the HPI investigation and whether the outcome of the investigation had been finalised;
(v)failed to explain why he did not communicate with Ms Wills or any other persons at the Mine if he was unsure about the scope of the JSA and exclusion zone in place in respect of the product stockpile yard;
(vi)failed to explain why he did not communicate with anyone before removing the JSA in place to address the HPI;
(vii)failed to explain why he interfered with the product stockpile yard which was subject to an ongoing HPI investigation;
(viii)did not sufficiently indicate that he understood the severity of the Incident and his actions;
(ix)did not indicate that he properly understood his health and safety obligations as a Supervisor;
(b)Mr Kirkwood admitted that his actions were negligent;
(c)the removal of the JSA gave rise to a serious risk to health and safety because:
(i)the HPI investigation had not confirmed the cause of the Slumping Event in the product stockpile yard and the risk to health and safety still existed;
(ii)Mr Kirkwood failed to undertake any risk assessment and implement any controls to address that risk in accordance with BHP Coal’s Safety and Health Management System; and
(iii)without any controls in place, coal mine workers at the Mine would be at risk of being in or near the product stockpile yard during a further slumping event;
(d)Mr Kirkwood’s actions constituted a breach of his duties as a Supervisor as well as his obligations under the Act, including interference with an ongoing HPI investigation without prior permission; and
(e)the Incident, as well as his previous conduct which resulted in the Written Warning and the PIP, demonstrated that he had a consistent, ongoing and recent disregard for health and safety obligations and safety directions which posed a risk to the health and safety of other workers at the Mine; and
(f)the mitigating factors raised by Mr Kirkwood did not outweigh the significant health and safety concerns raised following the Incident.
Mr Kirkwood maintained the decision to terminate him was harsh based on a misjudgement.
Mr Kirkwood said in closing submissions that he had stepped up and supported Ms Wills when she first became the Superintendent and he had acted in that role himself. Mr Kirkwood said during that time he had conducted Critical Control Verifications (CCV’s) which are in-depth safety audits and was praised for the quality of them. Mr Kirkwood said he had been asked to undertake these by Ms Wills at the same time that he was on PIP.
Employment since termination
Mr Kirkwood confirmed he had obtained other employment since termination and he has had work since termination, and he is currently on a project. He said it was a casual labour hire role and his income is in the order of $150,000. Mr Kirkwood said the current project he is engaged on should continue until February 2023.
CLOSING ORAL SUBMISSIONS
It was submitted for the Respondent that Mr Kirkwood was engaged as a supervisor and that role comes with additional responsibility to ensure the safety of people. That is an obligation shared by everyone on site but what comes with a supervisory role is an additional level of scrutiny and expectation of compliance with process.
The Respondent accepted there were no issues with Mr Kirkwood’s performance until more recently and it had been identified more recently that area inspections were not being done satisfactorily by Mr Kirkwood, and there were discussions and a process leading to a written warning in respect of that.
The Respondent said subsequent to the written warning Mr Kirkwood was put on a PIP that included the issue of health and safety identification and reporting.
The Respondent submitted that leads to the context of what occurred, which was a direction given by Mr Kirkwood to another member of the workforce to enter that area. The Respondent said it is relevant to the context that a JSA was put in place and it was signed on two separate occasions by Mr Kirkwood that he accepted it. The Respondent said the JSA was also dealt with at a prestart briefing.
The Respondent submitted that it is also relevant there was a notification of the initial slumping incident as a HPI investigation the day after the initial slumping incident. Further, Mr Kirkwood was asked to have input into the HPI investigation and he had knowledge of that and still directed Mr Lock into the yard.
The Respondent submits Mr Kirkwood has given a direction, or made “a call” to disregard the JSA that had been put in place for very good reason by others, and he had acknowledged as accepting the JSA.
The Respondent submitted that Mr Kirkwood had disregarded the JSA, and email correspondence issued to him and others regarding the exclusion around the area, and in disregarding the fact that he knew the HPI investigation was ongoing, conducted himself in the Respondent’s view, entirely unsatisfactorily in lifting the JSA and directing someone to go into that yard.
The Respondent submitted that there is a factual dispute around a particular conversation that was allegedly had between Mr Kirkwood and Ms Wills. The Respondent submitted the Commission may not be in a position to determine that matter because the information that Ms Ditton puts in her statement based upon emails and recollection of others. The Respondent submitted the even if the Commission were to make no finding or disregard that, that does not undermine what is the key concern, that Mr Kirkwood had a recent history of noncompliance or non-conformance with safety expectations, and in the context he decided himself to lift the JSA and do something completely contrary to the JSA, and that of itself is sufficient reason to underpin the dismissal, and why the dismissal is not harsh, unjust or unreasonable.
The Respondent submits that Mr Kirkwood acknowledged during the investigation that what he did was not right. The Respondent submitted what compounds this is that Mr Kirkwood, even at the hearing maintains his view that what he did was right and he would do it again, and that underpins the concern from the Respondent about why Mr Kirkwood cannot be reinstated.
The Respondent submits that this factor distinguishes it from others where there may have been an inadvertent or non-serious safety breach, and that is the essence of the case from the Respondents perspective.
CONSIDERATION
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take 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 the FWC considers relevant.
I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[4]
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced.”[6] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
It is apparent from Mr Kirkwood’s evidence that he did not believe the HPI was still in place at the time he ordered Mr Lock into the area and incorrectly assumed the investigation into the slumping event had been concluded. The evidence demonstrates that he knew the HPI investigation had been commenced. Mr Kirkwood took no steps to find out what the status of the HPI investigation was before lifting the JSA in place at the time and directing Mr Lock into the area that was still the subject of the HPI investigation.
Making an incorrect assumption about the status of the HPI falls into a category of conduct that is related to the kind of conduct in relation to safety issues that led to the earlier written warning and subsequent PIP, such as not complying with the Area Inspection Direction, and other deficiencies identified in the evidence between 18 October 2021 and 25 January 2022 leading to the PIP. The conduct on 27 April in the context of the earlier issues, was a proper basis for the Respondent to hold a genuine concern about Mr Kirkwood’s tendency to not comply with safety processes.
I found Mr Kirkwood to be direct and straightforward in giving his evidence and I have little doubt he genuinely believes that Mr Lock was not placed in danger when he directed Mr Lock into the stockpile area. However, adherence to the Respondent’s workplace health and safety processes is at the very core of his role. It is obvious and trite to say that those processes exist for very good reasons, nowhere more so than in the coal mining industry. Whilst there is room for some disagreement on the evidence about the level of danger that Mr Lock may or may not have been exposed to, I cannot be satisfied from the evidence there was no danger. There was a further slumping event in the area on 5 May.
An important distinguishing feature of this case from other cases where the Commission has found a termination of employment for reasons in connection with safety has been unfair, is the pattern in this case of failure of an employee with supervisory responsibility to comply with established safety procedure.
This is not a case of a one-off event, or “brain snap” where the consequences of the safety breach did not cause significant exposure to risk. This is a case where failure to comply with the Respondent’s safety procedure has been occurred over a period of time. The failure to follow procedure on 27 April, occurring in what was not a significant amount of time after the earlier written warning in relation to safety, and the PIP, where one of the action items was for Mr Kirkwood to be more active in terms of escalating and reporting safety impacts and hazards, satisfies me that the Respondent had a valid reason for dismissal.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Mr Kirkwood was notified of the reason for his proposed dismissal in the Show Cause Letter sent to him on 13 May 2022. The reasons for the decision to terminate Mr Kirkwood’s employment were communicated orally and in writing on 18 May 2022. Mr Kirkwood accepted that he was given an opportunity to respond to the reasons for his termination as part of the show cause process.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
Mr Kirkwood was offered the opportunity of having a support person with him at the various stages of the process.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
Mr Kirkwood’s dismissal was not related to unsatisfactory performance but to his conduct. In any event, he was issued a written warning in relation to failure to comply with the Respondents workplace health and safety procedures.
(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
The Respondent is a large employer. The procedure followed in effecting the dismissal was a fair one.
(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
The Respondent has internal human resource management expertise, however as stated the procedure followed was a fair one.
(h) Any other matters that the FWC considers relevant
I do not accept the submissions that the investigators were not qualified to conduct the investigation and I am satisfied that the investigation was conducted in a fair manner. Whilst Mr Kirkwood has argued that the risk of slumping was as low as possible, as already stated, it is not possible to conclude there was no risk, particularly given that a subsequent slumping event occurred on 5 May.
I have taken into account that Mr Kirkwood has extensive experience in the coal mining industry and based on his experience he was of the opinion after conducting a visual inspection that the stockpile area was safe, the evidence does not support a conclusion that lifting the JSA could be justified when the HPI investigation was ongoing.
I have not been satisfied by the evidence that the termination was based on a personal animosity of his superintendent. The investigation was conducted at arm’s length from his superintendent.
In terms of the harshness, I have taken into account that Mr Kirkwood had a reasonably lengthy period of employment with the Respondent from 2014 to 2022, and he says his dismissal is now a barrier to him working in the mining industry again. Weighed against that is the fact of his having received warning before his termination, and his evidence that he obtained other employment within a short period of time. He gave evidence that his new employment is not permanent, however it appeared from his evidence he expects that his current employment will continue at least for the duration of the current project he is working on until February 2023.
CONCLUSION
I have considered each of the elements of section 387 as I am required to do. I have determined that the Respondent had a valid reason for dismissal, and I have also concluded the dismissal was not procedurally unfair. I have considered any other matters raised that are relevant and having weighed all relevant considerations under section 387 I have concluded that the dismissal was not harsh, unjust or unreasonable. Having reached that conclusion, the application is dismissed.
COMMISSIONER
Appearances:
Mr Daniel John Roy Kirkwood on his own behalf.
Mr Nick Le Mare of Corrs Chambers Westgarth, for the Respondent.
Hearing details:
2022
Brisbane (by Microsoft Teams Video)
4 October.
[1] Exhibit 1.
[2] Exhibit 2.
[3] Exhibit 3.
[4] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[6] Ibid.
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