David Hendry v Perilya Broken Hill Limited

[2014] FWC 6181

[2014] FWC 6181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Hendry
v
Perilya Broken Hill Limited
(U2014/1131)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal - breach of safety requirements - written warnings - valid reason - fair process - not harsh, unjust or unreasonable.

[1] On 7 April 2014 Mr Hendry lodged an unfair dismissal application with respect to the termination of his employment with Perilya Broken Hill Limited. The application was not settled through the conciliation process and was referred to me for arbitration.

[2] It was the subject of a hearing in Broken Hill on 25 and 26 August 2014. Mr Hendry was represented at this hearing by Mr Walkaden of the CFMEU and Perilya Broken Hill Limited (Perilya) by its Human Resources Manager, Mr Marshall. I note that, as part of these proceedings and at Mr Hendry's request, I inspected the road access to the Perilya mine site.

[3] There were no initial or jurisdictional issues associated with the application.

[4] The background to the application is that Mr Hendry worked in the mine now owned and operated by Perilya from 1977. Ownership of the mine has changed on a number of occasions. Mr Hendry was made redundant in 2002 but recommenced employment, initially with a labour hire company but, from 2007, with Perilya.

[5] Mr Hendry worked as a truck driver. In August 2013 Mr Hendry was involved in an incident which led to him being given a final written warning on 9 September 2013 for finishing work early. Mr Hendry signed that warning on 23 September 2013 on the basis that it would remain on his personnel file for a period of 6 months. I note that the parties dispute the relevance of this incident and subsequent warning.

[6] On 21 January 2014 Perilya concluded that Mr Hendry had failed to complete a mandatory prestart safety check referred to as a 3TC (Take Time Take Charge). Perilya determined that Mr Hendry subsequently drove an underground dump truck into a gate end and caused damage including exposed wiring. Perilya concluded that Mr Hendry failed to report that damage which represented a significant safety risk. Perilya management met with Mr Hendry and discussed the incident and ultimately issued a further final written warning to him on 10 February 2014. I also note that the parties disagree over the circumstances of this warning.

[7] On 19 February 2014 Mr Hendry was observed to be not wearing safety glasses in breach of a standing instruction to do so. After meeting with him, Perilya issued Mr Hendry with a third final written warning. The parties also dispute the significance of this incident.

[8] On 1 April 2014 Mr Hendry was observed driving onto the mine site at what was assessed to be an excessive speed. This allegation was discussed with him and a support person. Mr Hendry signed a written apology in which he acknowledged that he "may have been speeding on site". After considering the incident Perilya advised Mr Hendry of the termination of his employment with effect from 3 April 2014. Mr Hendry was paid four weeks pay in lieu of notice. Mr Hendry disputes the extent to which he was speeding.

[9] Additionally, at the commencement of the hearing I was provided with copies of disciplinary actions of two earlier actions relative to Mr Hendry. 1 The first of these is a record of a verbal warning or counselling which followed an incident in September 2008 where Mr Hendry failed to remove a fuel hose from his truck before driving off.

[10] The second relates to an incident which occurred on 23 May 2012 when Mr Hendry left his truck in the vicinity of a remotely controlled rock breaker, without advising the rock breaker operator. Mr Hendry was given a first written warning for this incident. This information was provided to me well outside of the time limits set in directions that I issued before the hearing in this matter. Nevertheless I have taken this material into account in reaching a conclusion in this matter because I consider that it would be unfair to both parties to avoid reaching a conclusion with respect to the relevance of that material.

[11] Given the dispute about the facts with respect to the conduct issues considered by Perilya, Mr Hendry asserts that there was no valid reason for the termination of his employment. Further, and in any event, Mr Hendry asserts that termination of his employment was disproportionate to his conduct and the Perilya actions and procedures were inconsistent with its obligations under its policies and enterprise agreement. Mr Hendry asserts that termination of his employment was harsh and unfair given the circumstances and its consequences for him. Mr Hendry seeks reinstatement.

[12] The Perilya position is that Mr Hendry's repeated breaches of established safety requirements represented a valid reason for the termination of his employment and that the process followed to investigate and assess his behaviour was fair and reasonable.

The Evidence

[13] Mr Hendry's evidence went to his employment history and to each of the safety incidents about which he was warned and to the incident that ultimately led to his dismissal. Without being prescriptive about that evidence, I note that in terms of the matter which led to the September 2013 warning Mr Hendry's evidence went to the extent to which he believed that his actions were appropriate and reflected common practices. In relation to the second incident, which occurred in an area of the mine referred to as "Wayne's World", Mr Hendry's evidence was that he did not conduct a 3TC because he did not actually commence to work in that area. Further, he advised that while he accepted that he may have hit the Gate End Panel, he was not sure of this and was certainly not aware of it such that he could report the matter.

[14] Relative to the February 2014 incident where Mr Hendry was not wearing his safety glasses, his evidence went to the circumstances of that incident, its significance and the approach applied by Perilya relative to comparable situations.

[15] Mr Hendry gave evidence about the 1 April 2014 speeding incident which led to his dismissal. His evidence went to the personal circumstances which resulted in him being late, and his acknowledgement that, while he may have been speeding he was not doing so to the extent alleged. He explained that he apologised if he was speeding because he was concerned that the matter could affect his employment. His evidence also went to his concerns about the process followed by Perilya.

[16] Finally, Mr Hendry's evidence went to the impact of the termination of his employment, his attempts to gain alternative employment and his position that reinstatement was an appropriate remedy.

[17] Mr McManus worked at the mine for many years prior to his retirement in April 2014. His evidence went to his dealings with Mr Hendry and his awareness and commitment to safety issues.

[18] Mr Ryan works for Perilya. His evidence went to the operation of the Boom Gates at the entrance to the mine site.

[19] Mr Pressler works for Perilya. His evidence went to the events of 1 April 2014 to the extent that, while the Perilya records established that he exited the site at around the same time as Mr Hendry was arriving, he did not see a vehicle speeding on the mine access road.

[20] Mr Hume is the Perilya Broken Hill Operations Manager. His evidence went to his involvement in investigating the 1 April 2014 speeding allegation and to the matters he took into account in deciding to terminate Mr Hendry's employment. Mr Hume's evidence went to the process he followed to effect the termination of Mr Hendry's employment.

[21] Mr Slade is the Manager of Mining at Perilya's Southern Operations at Broken Hill. Mr Hendry reported to him. His evidence went to his involvement in four of the incidents which preceded the termination of his employment. His evidence went to his role in these respects and to his observations of a vehicle he asserted was speeding as it travelled down the access road to the mine site. He then established that this vehicle was driven by Mr Hendry and reported the matter to Mr Hume.

[22] While I have considered all of the material before me, I have particularly noted the provisions of clause 8.3 of the Perilya Broken Hill Enterprise Agreement 2012, which relevantly states:

“8.3. Disciplinary Procedure

8.3.1 First Warning

Where counselling does not result in performance improving to meet required standards or the employee is in breach of site rules, statutory requirements or employment requirements, the Employee will be issued with a written warning. The Supervisor will clearly specify the performance that is expected and where the Employee is not reaching such expectations. The Supervisor will explore all reasons for such poor performance and seek to reach agreement on future performance objectives or behaviour. The Supervisor shall inform the Employee that he/she may choose to have a nominated workplace representative present at this discussion.

The Supervisor will document the event in accordance with the format set out below:

• evidence of sub-standard performance or behaviour;

• Employee’s explanation;

• a statement of remedial action required.

A copy of this document will be given to the Employee and the nominated workplace representative and a copy placed on the Employee's personnel file. The first warning will lapse after 12 months.

8.3.2 Final Warning

Where an Employee's performance persists below expected standards or there is a continuing or serious breach of site rules, statutory requirements or employment requirements in spite of counselling and/or warning, as detailed above, the Employee will be interviewed by the Supervisor and the Employer's senior representative on the mine in the presence of the Employee's workplace representative.

If the Employee is not able to offer any reasonable explanation for the continuing sub-standard performance or breaches, he/she will be issued with a final written warning which shall detail the facts discussed in the interview and advising that the consequences of continued sub-standard performance or further breaches will be termination of employment without further warning. The written final warning will lapse after six months and, where agreed, first and final warnings may extend for twelve months (i.e. drug and alcohol offences).

As an alternative to termination, the employer may:

a) Stand-down the employee from attending work for a maximum period of five rostered days without the obligation on the employer to provide payment to the employee for that period, or;

b) Direct the employee to undertake duties at another classification within the skills and competence of the employee and for the employee to be paid at the base rate for that classification.

This may occur only by the authority of the Employer's senior representative on the mine.

8.3.3 Summary Dismissal

There will be occasions when the warning system is not appropriate, such as serious misconduct, in which case summary dismissal is the appropriate procedure. The Employee's workplace representative shall, where practicable, be informed of the circumstances prior to the dismissal. An Employee may be summarily dismissed only by the authority of the Employer's senior representative on the mine.”

[23] I have also noted that the precursor to this Agreement has a similar provision. As a matter of convenience I have referred to both Agreements as ‘the Agreement’.

Findings

[24] Section 387 of the FW Act sets out the factors to which I must have regard, in order to determine if the termination of Mr Hendry's employment was harsh, unjust or unreasonable. Before considering these issues I have detailed the conclusions I have reached on various issues in dispute between the parties.

[25] Mr Hume was ultimately responsible for the decision to terminate Mr Hendry's employment. His evidence was that on 2 April 2014 he, together with other Perilya personnel and a CFMEU official, met with Mr Hendry to consider possible disciplinary action. After discussing matters with Mr Hendry he adjourned the meeting. His evidence was that during that adjournment: 2

“SDP O’Callaghan: Can you give me your best recollections of what was discussed during that adjournment and with whom you had those discussions?

Mr Hume: My recollection is that those discussions were had with Mr Bateman and I believe Greg Braes remained in the room for that discussion. We discussed the nature of the incident on 1 April and the report that had been received an Mr Hendry’s statement and his answers in the meeting, and we then subsequently discussed the status of his disciplinary record and the appropriate action to be taken in light of the existing disciplinary record and the speeding offence on the 1st of April.

SDP O’Callaghan: You referred to the existing disciplinary record ...

Mr Hume: By which I mean Your Honour, the warnings that were currently within the expiry period, and therefore current written warnings on Mr Hendry’s personnel file.”

[26] I have accepted this evidence.

[27] The Employer's Response to the application (Form F3) asserts that:

“1. First Incident - leaving scheduled job early. On 23 August 2013 a Development Superintendent employed by the Respondent found the Applicant sitting and waiting at 2 Level after knocking off and leaving his designated work site early and without any reason. The Respondent met with the Applicant on or about 9 September 2013 to discuss the allegation and allow the Applicant an opportunity to respond to the allegation. At the meeting, the Applicant did not provide any reasons for leaving his scheduled job early and did not offer any mitigating circumstances. On 9 September 2013, the Respondent advised the Applicant in writing that finishing work early is an unacceptable behavior and will not be condoned issued a Final Written Warning to the Applicant. The Applicant agreed to a Remedial Action Plan and was advised the Final Written Warning will remain on his personnel file for a period of 6 months and any future breach of Company policy, procedure or standard, may result in further disciplinary action up to and including termination of employment. The Applicant signed and accepted the Written Warning on 24 September 2013.

2. Second incident - safety breach/failure to report damage. On 21 January 2014, the Applicant failed to complete a mandatory pre-start safety check called a 3TC. The Applicant subsequently drove an underground dump truck into a Gate End Panel (including electrical power box) (GEP) causing damage to the GEP. On 22 January 2014, the Respondent met with the Applicant to discuss the allegation and to allow the Applicant an opportunity to respond. Initially, the Applicant stated that he did not believe he hit the GEP. However, the Applicant ultimately accepted responsibility after considering to the accounts of two witnesses of the damage to the GEP. On completion of an investigation into the incident by the Respondent it was found the Applicant failed to:

(a) check the work area before operating the dump truck;

(b) complete a "3TC" pre-start safety check; and

(c) report the damage to the GEP to his shift boss,

as required and specified in the Perilya Broken Hill HSE Management System and Perilya Lease Induction Manual. In considering disciplinary options, it was noted that the Applicant received re-fresher training relating to the Perilya Broken Hill HSE Management System and Perilya Lease Induction Manual in March 2013, and had provided no plausible excuse or mitigating circumstances relating to these health and safety breaches.

3. In response to these serious breaches of the Respondent's safety procedures and serious incident notification procedures, the Applicant was issued with a Final Written Warning dated 10 February 2014. The Applicant was reminded verbally and also in writing of the Respondent's expectations regarding compliance with Company policies, procedures and requirements and expectations for all employees to maintain high standards on site. The Applicant signed and accepted a copy of the Final Written warning on 5 March 2014. The Applicant agreed to participate in further on on-going coaching sessions over a 6 month period with the Respondent's shift supervisors around completion of 3TC's.

4. In the Notification of Final Written Warning referred to in paragraph 3 above, it was made expressly clear to the Applicant that the Warning will remain on the Respondent's file for a period of 6 months and any future breach of Company policy, procedure or standard, may result in further disciplinary action up to and including termination of employment.

5. Third incident - failure to wear adequate PPE. On 19 February 2014, the Applicant was found to be operating a truck underground without wearing safety glasses in breach of the Perilya Broken Hill HSE Management System.

6. On 20 February 2014, the Applicant attended a disciplinary meeting (together with a support person) in regards to the PPE breach incident and previous safety breaches referred to in paragraphs 1 to 4 above. At this meeting it was agreed the Applicant would participate in further on-going coaching sessions over the next 6 months. It was also agreed the Applicant would be stood down without pay for the remainder of the panel.

7. On 24 February 2014 the Respondent issued a further 'Notification of Final Written Warning' to the Applicant referring to the most recent PPE Breach and previous health and safety breaches. In this further Final Written Warning, the Applicant was reminded for a third time in since September 2013 that any future breach of Company policy, procedure or standard, may result in further disciplinary action up to and including termination of employment. The Applicant signed and accepted this Final Written Warning on 5 March 2014.

8. Fourth incident - speeding on site. At approximately 6.50am (Broken Hill time) on 1 April 2014, while driving a motor vehicle on the Respondent's mining lease and mine site (the site access road to the main gate entrance), the Applicant was observed by a senior employee travelling at a rate of speed which appeared to be well in excess of both the sign posted 40km/h speed limit and sign posted 20km/h speed limits applicable to the site access road. The employee who witnessed the incident estimated the Applicant was travelling at approximately 80km/h. The access road is sign posted as 40km/h for the first 150m after turning off the main public road, the Silver City Highway. The sign posted speed limit is reduced to 20km/h in the approach to the boom gate. The access road is a busy and well used road at this time of day. Between 6.48am and 6.55am on 1 April 2014, a total of 23 employees (including the Applicant) gained entry through the boom gate. Numerous cars, trucks, motorcycles, bicycles use the road at this time of day (including pedestrians crossing at the boom gate). Limiting the speed of vehicles on this road (and all mine site roads) is an important risk control measure for the Company.

9. On 2 April 2014, the Respondent met with the Applicant (together with his support person) to discuss the speeding allegations and allow the Applicant an opportunity to respond. When queried by the Respondent regarding the allegation of driving at excessive speed on the access road, the Applicant admitted that he may have been speeding and explained he was afraid of getting into trouble resulting from being late but did not offer any plausible mitigating circumstances. At the meeting, the Applicant signed a written statement of apology relating to the on-site speeding dated 1 April 2014, which confirmed he may have been speeding on site (copy attached). The Respondent temporarily adjourned the meeting so it could consider the Applicant's response to the allegation. The Applicant's remorse in relation to the fourth incident was taken into account by the Respondent when considering disciplinary options.

10. On recommencement of the meeting on 2 April 2014, the Respondent advised the Applicant that, on the balance of the evidence available to the Respondent, the allegation of speeding on site was proven. The Applicant's employment was subsequently terminated effective 2 April2014 by way of 'Notification of Termination of Employment' dated 3 April 2014, which included reasons for dismissal.

11. The Applicant's length of service for the Respondent at the time of the Applicant's dismissal was 6 years and 7 months.”

[28] I have concluded that Mr Hume's evidence is more accurate than certain of these assertions and have concluded that the termination decision was made on the basis of the three most recent incidents involving Mr Hendry. These were the Wayne’s World incident, the failure to wear safety glasses and the speeding incident. Those three incidents were within the limitations of consideration of disciplinary action incorporated within clause 8.3 of the Agreement. While I have addressed Mr Hendry's disciplinary history generally later in this decision, I have primarily considered the incidents that led to the termination decision. As a matter of convenience I have commenced with consideration of the most recent incident.

[29] I am satisfied that Mr Slade witnessed a car, which he then established to be driven by Mr Hendry, speeding on the access road to the mine on 1 April 2014. Notwithstanding uncertainties with respect to Mr Slade's evidence about ancillary issues such as the position of the boom gate at the end of the road, I am satisfied that Mr Slade was able to conclude that the vehicle was travelling at an excessive speed well above the clearly sign posted 40 KMPH limit at a busy time of the day.

[30] I have concluded that Mr Hendry may not have been travelling at 80 KMPH but am satisfied, on the evidence of Mr Slade, that he was substantially exceeding the 40 KMPH speed limit. In reaching this conclusion I have taken into account the apology 3 provided by Mr Hendry on 2 April 2014. That apology states:

“I woke up late and I was concern that I was going to get in trouble for being late. I apologise if I was speeding on site. I was not doing 80 km as asked.

1/4/14 D Hendry” (sic)

[31] Mr Hendry's evidence was that he was unsure of the speed he was travelling. He conceded that this speed could have been more than 40 KMPH but asserts it was well below 80 KMPH.

[32] I am satisfied that Perilya was entitled to require that employees comply with that speed limit and have also noted that the road is part of a vehicle and pedestrian access area. Having considered the evidence of Mr Pressler, I am not satisfied that the gate access records establish that he would have been in a position to see Mr Hendry's vehicle.

[33] On 24 February Mr Hendry was given a Final Written warning for failing to wear his safety glasses on 19 February 2014. Mr Hendry does not dispute the validity of that warning. To the extent that the seriousness of this issue is challenged, I consider Perilya is clearly entitled and is effectively obligated to take steps such as requiring employees to wear personal protective safety equipment to meet its health and safety obligations. I have concluded that the warning given to Mr Hendry was appropriate in those circumstances.

[34] That 24 February warning identified that Mr Hendry was to participate in ongoing coaching sessions over the following six months. Mr Hendry asserts that this coaching did not occur before the 1 April 2014 incident. While I have accepted his evidence in this respect, I do not consider that to be relevant to the speeding incident.

[35] On 10 February 2014 Mr Hendry was given a Final Written warning on the basis of Perilya's conclusion that he drove his truck into the Wayne's World area and damaged a Gate End Panel. Perilya advised Mr Hendry that he failed to properly check the work area and conduct a 3TC assessment. Further, that he failed to report the damage of the Gate End Panel.

[36] The evidence before me confirms that Perilya was entitled to conclude that Mr Hendry was responsible for the damage to the Gate End Panel. However, I am not satisfied that the evidence before me establishes what instructions were given to Mr Hendry by Mr Travena relative to not entering that area. In this respect, had Perilya called other witnesses to give first hand evidence, I may have accepted that such an explicit instruction was given but, absent that evidence, I have accepted Mr Hendry's advice that he heard no such instruction. Whilst Mr Hendry's submissions were that the training and instructions given to him did not clearly establish an obligation to undertake a 3TC assessment before he could turn his truck around, his evidence was not consistent with that submission. His evidence was that: 4

“Mr Marshall: Now I put it to you, that it is actually company policy which you broke, to complete the 3TC in this very situation, isn’t it? It is company policy, isn’t it?

Mr Hendry: If you can do a 3TC on every job, yep and every driver (unclear) drive you (unclear), yep.

Mr Marshall: That is not my question Mr Hendry. It is, isn’t it, company policy as a truck driver in this situation ...

Mr Hendry: Yeah

Mr Marshall: So I put it to you, you breached that company policy.

Mr Hendry: Yeah.

[37] Consequently I have concluded that Mr Hendry was aware that he should have conducted that assessment.

[38] I have accepted Mr Hendry's evidence that he was not aware that he hit the Gate End Panel. I acknowledge that it sits somewhat uncomfortably with the apology written by Mr Hendry on 22 January 2014. 5 Nevertheless that evidence is consistent with the discussion that Mr Hendry had with Mr Travena later that shift. The evidence of Mr Slade relative to the interview he conducted with Mr Hendry after the investigation into the incident appears to confirm Mr Hendry was not aware that he had hit the Gate End Panel.6 Accordingly, I am not satisfied that the inclusion, in the warning of criticism of Mr Hendry for failing to report the incident, was established. Simply put, unless Perilya could establish that Mr Henry was aware that he damaged the Gate End Panel, the element of the warning which related to his failure to report that damage was inherently flawed. I have also noted that this warning specifies that Mr Hendry was to participate in further coaching over the next six months. Whilst I am not satisfied that this coaching had commenced before the termination of Mr Hendry's employment, I do not consider that significantly impacted on the termination of his employment.

[39] I am satisfied that Mr Hendry was given a Final Written warning on 9 September 2013 with respect to Perilya's finding that he had finished work early without authorisation. 7 That warning was over six months old at the time of the termination of Mr Hendry's employment. I have concluded that it was not taken into account as a basis for the termination of Mr Hendry's employment because the evidence of Mr Hume indicated that records such as this were not relied upon in that decision making process. Nevertheless, I have noted that Mr Hendry disputes the basis upon which that warning was issued. I have not made a definitive finding in this respect as neither party has provided me with adequate evidence about the basis for the warning.

[40] Mr Hendry accepts that he was given a verbal warning on 19 September 2008 relative to the incident where he drove away from a refuelling station with the bowser still attached. On the basis of the evidence of Mr Hume, I do not consider this warning was considered to be a contributing factor in the decision to terminate his employment. While I could have formed the view that Mr Hendry's failure to include a reference to this incident in his evidence was deliberate, I have not done so because I am satisfied that he simply overlooked the matter.

[41] Mr Hendry similarly accepts that on 23 May 2012 he was given a written warning for entering a remote controlled rock breaker work area without advising the operator. Because this was a much more recent event I have concluded that Mr Hendry chose not to advise me of it. Nevertheless, it was an event and a warning which exceeded the six month period specified in the Agreement and I am satisfied that it was not relied upon as a basis for the termination of employment decision.

[42] I have concluded that Perilya has adopted a comprehensive approach to the management of safety in the workplace and have accepted that the evidence indicates that its policies and procedures are appropriate and consistently applied.

[43] As a component of that safety approach I acknowledge that Mr Hendry participated in refresher training in the Perilya Broken Hill Health Safety and Environmental Management System in February 2013. This training covered, amongst other matters the 3TC requirements. Mr Hendry was assessed as competent after this training.

Section 387

[44] This section states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[45] I have considered each of these factors in the context of all the evidence before me.

Valid Reason

[46] Notwithstanding that the legislation has subsequently changed so as to separately identify various of the factors previously encompassed within the concept of a valid reason I have applied the principle adopted by Northrop J in Selvachandran v Petersen Plastics Pty Ltd 8.

[47] I have concluded that Mr Hendry was travelling above the speed limit on 1 April 2014. Because of the uncertainty about the actual speed Mr Hendry was travelling on 1 April 2014, I am not satisfied that this incident, by itself, represented a valid reason for the termination of his employment. Had more definitive evidence of excessive speed been available, I may have adopted a different conclusion.

[48] Given my earlier conclusions about this incident, I have considered whether the speeding incident represents a valid reason for the termination of Mr Hendry's employment when considered in concert with the PPE warning of 24 February 2014 and the Gate End Panel warning of 10 February 2014. In terms of that Gate End Panel warning I have earlier set out my reservations about elements of that warning. Notwithstanding this, that warning put Mr Hendry on notice about his obligation to comply with safety instructions and was appropriate in terms of the 3TC reference and I do not consider that the one element of that warning which was flawed detracts from the essential message which was that: 9

“As you were advised, Perilya expects its employees to observe and comply with all Company policies, procedures and requirements. It is also an expectation of Perilya that all employees maintain high safety standards whilst on site and a commitment to their work.

...

On the basis of these discussions and our investigations conducted following the incident on 22 January 2014, Perilya Broken Hill Limited issues you with a Final Written Warning for breach of safety procedures.

This Warning will remain on your personnel file for a period of 6 months, during which time your failure to meet the outlined expectations of Perilya or any future breach of any Company policy, procedure or standard may result in further disciplinary action being undertaken, up to and including termination of your employment.”

[49] I have concluded that, the combination of these two warnings and the speeding incident represents a valid reason for the termination of Mr Hendry's employment and that this related to his repeated failures to comply with Perilya's reasonable safety instructions.

[50] In this respect I also note that this conclusion appears consistent with the first part of Mr Hendry's evidence that: 10

“Mr Marshall: Mr Hendry, I put it to you, that safety is paramount at Perilya Broken Hill and you’ve disregarded safety on a number of occasions and exposed others, your work mates, to risk and that this has resulted in a significant loss of trust in you as an employee of Perilya Broken Hill.

Mr Hendry: Yeah

Mr Marshall: I put it to you, your employment relationship with Perilya Broken Hill Ltd is untenable, is that correct? That is, if you went back to work you couldn’t pick up from where you left off.

Mr Hendry: I reckon I could go back tomorrow and start from where I left off.”

[51] This last assertion from Mr Hendry is difficult to reconcile with his safety record.

[52] In referring to Mr Hendry's evidence in this respect I also note that he continued to confirm his good relationship with Perilya personnel. I do not challenge that relationship as I do not consider that it impacts on the valid reason consideration.

Explanation of the reason

[53] I am satisfied that Mr Hendry was advised of the reason for the termination of his employment at the time of that termination. The termination of employment letter provided to him on 3 April 2014 stated: 11

“On the basis of your actions, coupled to the fact that at this time there were two current final written warnings for breaches of safety policies on your record, we are terminating your employment with Perilya Broken Hill Limited, effective immediately, 2 April 2014. You will be paid out 4 weeks in lieu of notice and any other entitlements you are entitled to.”

Opportunity to Respond

[54] Mr Hendry was given an opportunity to respond to the allegation that he was speeding at a meeting on 2 April 2014. He was assisted in that respect by a CFMEU official. The termination of employment decision was made after that opportunity was given to him.

Unreasonable refusal of a support person

[55] Mr Hendry had access to a support person and I am satisfied that Perilya facilitated this access.

Warnings about performance

[56] I have referred to the various warnings given to Mr Hendry since 2008. I have concluded that only the two February 2014 warnings were taken into account in the employment termination decision. I have concluded that while these warnings may not have been issued in a manner precisely consistent with the provisions of the Agreement in terms of the involvement of an employee representative, the clarity of the safety message inherent in them was absolutely clear.

Size of the Perilya business - access to Human Resource management expertise

[57] Perilya is a large employer. It had access to human resource management expertise.

Size of the Perilya business - Impact on policies and procedures

[58] Perilya has extensive disciplinary and safety management policies and procedures.

Any Other Factors

[59] In considering Mr Hendry's circumstances I have taken into account the extent of his very long service with Perilya and its predecessors. It is clear to me that he has been generally highly regarded and had these safety issues not occurred, I would have anticipated that he would have remained an employee for the foreseeable future.

[60] I have also considered the effect of the termination of Mr Hendry's employment on him. The evidence before me indicates that he may have some difficulty gaining employment in his traditional occupation and that opportunities in other fields may be limited.

[61] Alternative considerations are also relevant. It is clear that Perilya operates in a dangerous environment and that its commitment to high safety standards is obligatory. Finally in this respect, I note that the alternative to termination of Mr Hendry's employment would appear to be a third current final warning in a two month period which I consider creates the potential to denigrate the standing of final warnings in this risk intensive industry.

Conclusion - Harsh, Unjust or Unreasonable

[62] Having considered all of the circumstances of this matter I do not regard the termination of Mr Hendry's employment to be unfair. For it to be regarded as harsh I would need to discount the significance of the Perilya commitment to safety and the extensive warnings given to Mr Hendry in favour of considerations of the impact of that termination on him. Those considerations weigh against a finding of harshness. I do not consider the dismissal to be unjust as Mr Hendry breached the reasonable Perilya safety instructions on multiple occasions. It was not unreasonable as he had been warned about these matters and the consequences of further breaches of policy requirements in this respect.

[63] Accordingly, the application must be dismissed. An Order (PR555145) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

A Walkaden CFMEU, representing the Applicant.

C Marshall representing the respondent.

Hearing details:

2014.

Broken Hill:

August 25, 26.

 1   Exhibits P5 and P6

 2   Transcript Sound Recording, 25 August 2014, 2:53:48 pm - 2:55:19 pm

 3   Exhibit P7, document 9

 4   Transcript Sound Recording, 25 August 2014, 11:54:02 am - 11:54:40 am

 5   Exhibit P7, document 5

 6   Transcript Sound Recording, 26 August 2014, 9.15 am

 7   Exhibit P7, document 3

 8 (1995) 62 IR 371

 9   Exhibit P7, document 7

 10   Transcript Sound Recording, 25 August 2014, 12:21:27 pm - 12:22:26 pm

 11   Exhibit P7, document 10, last para

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555144>