Harley Schofield v Broadmeadow Mine Services Pty Ltd

[2014] FWC 9309

[2014] FWC 9309

FAIR WORK COMMISSION

DECISION

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

Harley Schofield
v
Broadmeadow Mine Services Pty Ltd
(U2014/1271)

Mark Winterton
v
Broadmeadow Mine Services Pty Ltd
(U2014/1272)

VICE PRESIDENT HATCHER SYDNEY, 24 DECEMBER 2014

Application for relief from unfair dismissal.

Introduction

[1] Mr Harley Schofield and Mr Mark Winterton, the applicants in these matters, seek unfair dismissal remedies in relation to their dismissals from employment with Broadmeadow Mine Services Pty Ltd (BMS). BMS employs the majority of personnel at the Broadmeadow Mine (Mine), which is an underground coal mine in the Bowen Basin area in Central Queensland owned and operated by the BHP Billiton-Mitsubishi Alliance (BMA). Both were dismissed with four weeks’ pay in lieu of notice on 2 April 2014 as a result of their conduct in a safety incident which occurred on 18 March 2014. That conduct was determined to involve a breach of the second of the seven “BMA Life Saving Rules” (Rule 2) that apply at the Mine, namely:

“Protect yourself against a fall and falling objects if working above 1.8m, within 2m of an edge and before approaching high-walls, low-walls and operating faces.”

[2] Because the dismissals arose from a substantially common substratum of facts, the two applications were heard together, and evidence in each matter was treated as also being evidence in the other matter.

Preliminary matters for determination

[3] Section 396 of the Fair Work Act 2009 (Act) requires that four specified matters must be decided before the merits of the applications may be considered. There was no contest between the parties about any of those matters. I find that:

(a) Both applications were made within the period required by s.394(2);

(b) Mr Schofield and Mr Winterton were both persons protected from unfair dismissal;

(c) BMS was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) neither dismissal was a case of genuine redundancy.

The facts

[4] Because there was ultimately little dispute about the facts of this matter, for the most part it has been possible for me to set out the relevant facts without needing to compare and analyse the evidence given by the respective witnesses. Where there was a serious contest about any factual issue, I have set out the nature of the contest and my findings concerning those contested facts.

[5] Evidence was given by Mr Schofield, Mr Winterton, and for BMS by the following persons:

• Luke Murray, the Engineering Superintendent at the Mine;
• Barry Mitchell, the General Manager of the Mine; and
• Kristi Gooch, who was at the time of the safety incident and the dismissal the Senior HR Business Partner at the Mine.

[6] I consider all the witnesses to have been credible in the sense that they described matters of fact honestly and to the best of their recollection and expressed opinions which were genuinely held.

Employment backgrounds of the applicants

[7] Mr Winterton is a trade-qualified fitter. He commenced employment with BMS at the Mine on 17 September 2007. Throughout his employment with BMS he was a Mechanical Technician in Outbye Services. His role mainly involved maintaining the conveyors and other pieces of fixed plant and equipment. Prior to the incident which caused his dismissal, he had an unblemished disciplinary record and had not been involved in any safety incident. He was well rated by BMS in performance reviews.

[8] Mr Schofield is a trade-qualified diesel technician. He was employed in that capacity by BMS on 19 November 2012. Initially, most of his work involved maintenance duties in the Mine workshop on the surface, and he was only required to go underground to assist with a breakdown of machinery or equipment approximately once a month. He later performed more underground work when he worked some shifts with an underground crew for a three-month period from August 2013, but was still regarded as inexperienced in underground work (and therefore known as a “pink hat”) In early 2014 the workshop was merged with Outbye Services, and Mr Schofield began maintaining a broader range of machinery including belts, pumps and drive motors. Mr Schofield had an unblemished disciplinary and safety record before the incident which led to his dismissal, and his performance was satisfactorily rated.

Relevant statutory and workplace safety requirements

[9] The Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) regulates the conduct of coal mining in Queensland for health and safety purposes. Section 42(c) of the CMSH Act requires the senior site executive for a coal mine to develop and implement a single safety and health management system (SHMS) for all persons at the mine. Under s.62(3)(d), the SHMS must include standard operating procedures. Section 39 requires coal mine workers, among other things, to comply with applicable procedures that are part of the SHMS for the mine 1, to work in a way that does not expose the worker or someone else to an unacceptable level of risk2, and to comply with instructions given for the safety and health of persons by a supervisor at the mine3. Under s.26, a supervisor for the purpose of the CMSH Act is a coal mine worker who is authorised by the senior site executive to give directions to other coal mine workers in accordance with the SHMS. One of the supervisory personnel required to be appointed under the CMSH Act is, under s.60(10), a person to “control and manage the mechanical and electrical engineering activities of the mine”.

[10] The Coal Mining Safety and Health Regulation 2001 (Qld) (CMSH Regulation), made pursuant to the CMSH Act, contains more prescriptive requirements concerning the safe and healthy conduct of coal mining in Queensland. Section 92 of the CMSH Regulation relevantly provides:

92 Working at heights

(1) A coal mine's safety and health management system must provide for controlling risk associated with working at heights at the mine.

(2) If a person is required to work at a height greater than 2.4m, the system must provide for minimising the person's risk of injury from falling.

(3) The system must include standard operating procedures for using personal protective equipment to control the risk.

(4) The system may include provision for using the following plant to control the risk -

(a) work boxes and work platforms;

(b) scaffolding, barricades, hand rails and restraining or fall arresting devices.
...

[11] BMS, through its senior site executive at the Mine, has implemented a SHMS at the Mine in accordance with the CMSH Act. According to Mr Mitchell, the BMA Life Saving Rules form part of the SHMS. They are intended to prescribe crucial life saving behaviours, and compliance with them is required in order to keep employees safe from high risk behaviours and activities. Employees are trained in the Life Saving Rules during their initial induction and during refresher induction training which occurs every five years. They are displayed in various areas around the Mine site such as the prestart rooms and crib rooms, and are regularly discussed during toolbox talks. They are also displayed in the blue hard cover to the “BMA Safe” Booklet (Booklet) which must be carried by all employees. There was an issue as to whether the blue hard cover was issued to all employees together with the Booklet itself, or whether as a matter of practice employees actually carried the Booklet in its blue hard cover with them whilst working. However I do not regard this as an issue of significance since it was not in dispute that Mr Schofield and Mr Winterton were familiar with the Life Saving Rules, including Rule 2 as earlier quoted.

[12] Rule 2 of the Life Saving Rules is supplemented by more detailed safety standards and procedures. Under these standards and procedures:

• personnel working at heights must have completed work at heights training and refresher training;

• persons working at heights must have been issued with a permit authorising this work;

• there is a hierarchy of controls to eliminate or mitigate the risks of falls from heights;

• under that hierarchy, personnel should work from the ground or from a solid construction where possible; if that is not practicable a temporary work platform such as a work basket should be used; if the use of a temporary work platform is not practicable or possible, a fall prevention device (such as a harness connected by a lanyard to an anchor point) must be considered; and finally where a higher level of control is not practicable, a fall arrest system must be considered.

[13] The Booklet contains pro forma safety checklists which must be completed by each employee prior to the performance of any job. The checklist requires identifying details for each job, and contains 15 questions concerning safety issues which must be ticked “yes” or “no” if applicable. If the answer is “yes”, a further “yes” or “no” must be ticked in response to the question “Can I manage this Hazard?” Question 3 in the checklist asks “Can I fall onto, into or from anything?”, and question 13 is “Do I need a permit?”. Overleaf is a section requiring the identification of “Controls put in place to manage hazard”, and then a tick “yes” or “no” is required for each identified control in response to the question “Will controls effectively manage the hazard?”.

Events of 18 March 2014

[14] Tuesday 18 March 2014 was a scheduled maintenance day. Mr Winterton and Mr Schofield spent most of their shift carrying out six-monthly off-line ramp inspections. This was the first time that they had worked together.

[15] At about 2.30pm, Mr Winterton received a text message from his direct supervisor, Mr Matthew Smith, advising him that he and Mr Schofield were to go down to Main Gate 9 (MG9) to set a Pressure Reducing Valve (PRV) with Mr Fidel Gonzalez-Escorida at 3.30pm. A PRV is used at the Mine to reduce water mains pressure as water supply travels down into the Mine. Main Gate 9 is one of entrances to the underground mine. Mr Gonzalez-Escorida was a member of the Mine’s Senior Person and Supervisory Structure and was the supervisor appointed pursuant to s.60(10) of the CMSH Act to control and manage the Mine’s mechanical and electrical engineering activities. This was known to Mr Winterton and Mr Schofield, but neither had ever worked with Mr Gonzalez-Escorida before. Mr Schofield had never worked on a PRV before.

[16] Mr Winterton and Mr Schofield completed the work that they were doing and made their way to MG9 in accordance with Mr Smith’s instruction just before 3.30pm. Mr Winterton picked up a copy of the PRV Setting Procedure manual from his locker on the way. On arrival at the MG9 portal, they saw that a crew of operators was installing a PRV on piping high up on one side of the mine portal with the assistance of Mr Gonzalez-Escorida. It was once the PRV was installed that it would need to be adjusted and set by Mr Winterton and Mr Schofield.

[17] Once the crew had finished installing the PRV, they requested that they be able to take their crib break before resuming production duties. At this point, Mr Gonzalez-Escorida asked Mr Winterton and Mr Schofield whether either of them had a loader or man basket ticket. Mr Winterton said that he was not sure whether his ticket was current or not, and Mr Schofield said that while he had a ticket to drive a loader on the surface, as an inexperienced mine worker he was not permitted to operate equipment underground.

[18] Mr Gonzalez-Escorida then asked whether either of them had a ticket for a “drifty”. A “drifty” or “driftrunner” is a vehicle used to transport personnel and their equipment underground in the Mine. It has a driver’s compartment towards the front, and behind it is an area containing benches running along each side of the vehicle and facing inwards. There is a U-shaped platform which sits as a roof above the benches and the driver’s platform. This serves the dual purpose of protecting the driver and passengers from any falling objects, and allowing for the storage of the Mine workers’ equipment. The roof platform is edged with a grate around the sides, about 15 centimetres high, to facilitate the storage function. The height of the roof platform from the ground was established by the evidence to be 1.95 metres. Its surface is made of metal, and does not have any grip on it. There is no ladder or steps to enable ready access to the roof platform. It is clear that the roof was not designed to be used as a work platform. There was a driftrunner present at the job location which had transported the crew there.

[19] Mr Winterton said that he had such a ticket. Mr Gonzalez-Escorida then said that they would drop the crew at their crib location, and then use the driftrunner as a platform to perform the work setting the PRV.

[20] Mr Winterton got into the driver’s seat of the driftrunner which had transported the crew to the location, and Mr Gonzalez-Escorida, Mr Schofield and the crew went into its rear section. Mr Winterton then drove the driftrunner to the MG9 crib room, and then returned with Mr Gonzalez-Escorida and Mr Schofield back to the location where the PRV job was to be performed. As they returned, Mr Schofield read through the PRV Setting Procedure manual which Mr Winterton had brought from his locker, and also completed a BMA Safe checklist in his Booklet. He was not able to obtain a copy of this for the purpose of the proceedings, since he left his Booklet in his locker on 18 March 2014 and he was not permitted to return to the Mine site after that date.

[21] Upon their return to the job location, Mr Gonzalez-Escorida got out of the driftrunner and directed Mr Winterton as to where to park it. It was parked directly under the PRV and against the side wall of the portal. The surface had a slight slope. Mr Winterton applied the hand brake, and then placed site-compliant chocks against the wheels in accordance with site procedure to ensure that the driftrunner could not move.

[22] Mr Winterton then completed his BMA Safe checklist in his Booklet at 4.14pm. He ticked “no” to the questions “Can I fall onto, into or from anything?” and “Do I need a permit?”; however he ticked “yes” to the questions “Can I slip or trip on anything” and “Could there be any uncontrolled movement, like ground movement, machine movement?”, and identified overleaf two controls which he indicated would effectively manage these hazards, namely “Housekeeping of work area, 3 point contact, eyes on path” and “Machine chocked, park brake applied”. Mr Winterton explained that the former control concerned dealing with the risk of slipping or tripping by checking that the roof platform of the driftrunner did not contain any items that might be a trip hazard, and by maintaining three-point contact when climbing up to the roof platform.

[23] Mr Winterton’s evidence was that while he was conscious of the Life Saving Rules when he completed the BMA checklist, he presumed that the height of the roof platform of the driftrunner was not above 1.8 metres. He was influenced in this regard by the fact that, during the course of his employment at the Mine, he had seen fellow mineworkers including supervisors using the roof of a driftrunner as a work platform, and had done so himself in the presence of other mineworkers, supervisors and even Mine deputies. He named a specific Mine Superintendent and an Underground Mine Manager under whose observation he had done a job in 2010 while standing on the roof of a driftrunner. He said that he had never been told by anyone that the use of a driftrunner in this manner was prohibited, and the fact that on 18 March 2014 Mr Gonzalez-Escorida, who held a statutory position under the CMSH Act, had suggested the use of the driftrunner as a work platform reinforced his understanding that this was an acceptable practice. There was no means at hand to actually measure the height of the driftrunner.

[24] I accept Mr Winterton’s evidence in this respect, including his evidence concerning the prior use of driftrunners in this way. BMS adduced no evidence of probative value to rebut it. Ms Gooch’s investigation of this aspect of Mr Winterton’s evidence was confined to asking the then Manager - Maintenance, Mr Scott Brenchley, about this, and requesting the HR team to check the Mine’s computerised records of safety incidents. These inquiries did not, Ms Gooch said in her evidence, disclose the existence of a work practice of using the roof of a driftrunner as a work platform. Mr Brenchley did not give evidence, so that his state of knowledge on the issue cannot be determined. It is not clear why BMS’s records of safety incidents would have disclosed anything relevant about the matter one way or the other. If there had never been any safety incident arising from the use of a driftrunner as a work platform, it would never have been recorded as such.

[25] Mr Winterton did not, during the course of the investigation process prior to his dismissal, identify any prior usage of driftrunners as a work platform. This was a matter which only emerged in his evidence to this Commission. However I consider that this is to be explained by the fact that such a disclosure would have rendered Mr Winterton open to being accused of prior breaches of the “working at heights” Life Saving Rule. Indeed, in cross-examination of Mr Winterton, counsel for BMS raised the issue precisely in this way to challenge Mr Winterton’s evidence in his witness statement that he had a good prior safety record. It does not cause me to doubt the veracity of Mr Winterton’s evidence on this issue. I also note in this connection that when Mr Gonzalez-Escorida was interviewed about the incident on 20 March 2014, he said “I’ve used the SMV [driftrunner] to do this type of work at other mines, it never occurred to me that we were working at heights”.

[26] Mr Schofield said that, before climbing onto the roof of the driftrunner, he thought about whether the height of the roof was greater than 1.8 metres, but honestly did not believe that it was. He was likewise influenced in this belief by the fact that he had, on a small number of previous occasions, seen Mine workers using the roof of a driftrunner as a platform, and that Mr Gonzalez-Escorida had suggested the use of the driftrunner in this way to perform the PRV job. I accept his evidence in this respect.

[27] Mr Winterton and Mr Schofield climbed on to the roof of the driftrunner from the front bumper, maintaining three-point contact while they did so. Once they reached the roof, they began to set the PRV. There was an inconsistency in the evidence about their positioning while they did this: Mr Winterton said that they were half sitting and half kneeling while they performed the work, while Mr Schofield said they were standing. This inconsistency cannot be resolved except to say that it is possible that they took different positions at different times while performing the job. Mr Gonzalez-Escorida initially watched them from the ground, but after about five minutes climbed up to join them.

[28] After about 15 minutes, the outgoing Development Bull Gang Crew passed by them in another driftrunner. The Deputy of the crew, who held a statutory position and was in the driftrunner, said to them words to the effect that they were too high and needed to come down. Mr Gonzalez-Escorida initially denied that they were too high, but the Deputy repeated his direction for them to come down. They came down, and Mr Gonzalez-Escorida then walked over to the Deputy in the other driftrunner. Mr Schofield described the Deputy and Mr Gonzalez-Escorida as then having a “heated discussion”, and the Deputy then got out of his driftrunner and measured the one that they had been using to perform the PRV job (the Deputy evidently had a measuring device with him). The Deputy measured it as 2.1 metres from the ground to the top of the side grate on the roof platform (noting, as earlier stated, that this was 15 centimetres above the level of the roof platform).

[29] Mr Winterton and Mr Schofield then had a discussion between themselves as to how to finish the job. They eventually asked two Operators who were passing by whether either had a ticket to operate a loader or man basket. One of them did and was able to go and obtain a loader and man basket to bring it to the location. Both Mr Winterton and Mr Schofield completed further BMA Safe checklists for the job, and then climbed into the man basket, which was then lifted up to the PRV by the loader being driven by the Operator with the requisite ticket. Mr Gonzalez-Escorida had by this time left and returned to the surface, at which time he apparently self-reported the incident. Mr Winterton and Mr Schofield then finished setting the PRV. By the time they finished, Mr Gonzalez-Escorida had returned to them. He said, according to Mr Winterton: “Look, I’m sorry fellas. I have a feeling this might escalate. Don’t worry, it’s all my fault. I will look after you both. I know that you guys were just doing your job”.

[30] Both Mr Winterton and Mr Schofield finished their shifts shortly afterwards. Neither was rostered to work again until 24 March 2014.

Investigation and dismissal process

[31] The Mine’s management became aware of the incident the following day (19 March 2014). That same day Ms Gooch and Mr Brenchley called Mr Gonzalez-Escorida in for a meeting, at which he was informed that he was suspended and required to prepare a formal statement about the incident. He was then interviewed again the following day (20 March 2014). Ms Gooch took notes of the interview, which were put into evidence by BMS. From Mr Gonzalez-Escorida’s statement and the notes of the interview, it can be gleaned that:

• Mr Gonzalez-Escorida had been or was about to be placed on a performance improvement plan, and felt under pressure to perform (“I felt like I needed to prove myself, to put my money where my mouth is”);

• the task of completing the PRV installation job had been categorised as a priority, and he had been tasked by Mr Murray with completing it, with progress being tracked on a daily basis;

• two earlier attempts to complete the job, on 4 and 11 March 2014, had been unsuccessful;

• progress with completing the job on 18 March 2014 had been delayed for various reasons;

• after he found out that Mr Winterton and Mr Schofield did not have the necessary tickets to operate a man basket, meaning that the job would come to a complete stop unless another person was found, Mr Gonzalez-Escorida “was not ready to allow this to happen, given the numerous tries at completing this job”;

• it was in this context that it was determined to use the driftrunner as a work platform, and it did not occur to him that this involved working at heights; and

• he said “I should not have allowed myself to be pressured by all the things that happened leading up to it. The world will fall on me, I should have just pulled up.”

[32] On the basis that Mr Gonzalez-Escorida held a statutory position under the CMSH Act, that he was a permit issuer for working at heights and was thus a “risk-owner” in this area, that he had suggested the use of the driftrunner as a work platform, Ms Gooch and Mr Brenchley determined that his conduct in breaching the Life Saving Rules and “recklessly failing to identify ... that the roof of the driftrunner was above 1.8 metres” was unacceptable. Mr Gonzalez-Escorida was required to show cause why he should not be dismissed, but at a further meeting on 25 March 2014 he resigned.

[33] Mr Winterton’s and Mr Schofield’s first shift at the Mine after 18 March 2014 was on 24 March 2014. Before their shifts commenced, they were informed that they were not required to work, but were instead required to attend meetings with Ms Gooch and Mr Brenchley that day. At these meetings, both Mr Winterton and Mr Schofield were interviewed about the incident and then given letters informing them that they were suspended with pay pending further investigation. Mr Chris Smythe, the Broadmeadow Mine Lodge Vice President, attended both of these meeting in support of Mr Winterton and Mr Schofield.

[34] After the meetings on 24 March 2014, Ms Gooch and Mr Brenchley discussed how the conduct of Mr Winterton and Mr Schofield should be categorised under the Broadmeadow Behaviour Management Guideline (Guideline). The Guideline is a document, based on a BMA standard, which guides how disciplinary matters are to be dealt with. It applies to “all personnel employed at or visiting” the Mine, and contractor companies are expected to apply the principles outlined in it “as a minimum”. It establishes three “error types” in relation to “human behaviour [that] significantly contributed to an incident” as follows:

“(a) Slips / Lapses – Un-intentional errors attributed to normal human limitations (i.e. the individual involved had the right intentions but were unsuccessful in carrying them out). Slips / lapses include errors due to forgetfulness, lapses in attention, distraction, and miss-perceptions.

(b) Mistakes – Un-intentional errors associated with the deliberate choice to behave in a particular manner or not (i.e. the individual involved had the right intention but acted in an inappropriate manner or made an incorrect decision).

(c) Violations – Intentional action, that deviates from clearly known, understood and accepted practices (i.e. the individual involved knew and understood the requirements but deliberately deviated from accepted practice).”

[35] The Guideline then gives guidance as to the range of disciplinary action appropriate for each type of error. In relation to “Slips/lapses”, the Guideline states that “where action is deemed necessary it may be in the form of counselling, retraining, diary notes and notes to personnel files”. For “Mistakes”, the Guideline prescribes that, in addition to the action that might be taken for slips/lapses, “the appropriate use of recorded warnings, probation, or suspension may be considered where potential risk associated with the incident is determined to be in the high or extreme categories”. For “Violations”, the Guideline provides that “The appropriate use of recorded warnings, probation, suspension or termination of tenure may be considered where the potential risk associated with the incident is determined to be in the high or extreme categories”.

[36] Ms Gooch and Mr Brenchley determined that the conduct of Mr Winterton and Mr Schofield in breaching the “working at heights” Life Saving Rule constituted a violation under the Guideline, for the following reasons:

• they both admitted they were aware of the rule;

• they both admitted they had failed to identify height as a hazard;

• a competent mine worker would have realised that the roof platform of a driftrunner was above 1.8 metres, since anything above head height would be a good chance of being above the 1.8 metres limit;

• they should have identified working at heights as a risk when completing their BMA Safe checklists;

• the use of the driftrunner was deliberate, and their conduct in failing to appreciate the hazard of height was reckless or exceptionally negligent; and

• by breaching a Life Saving Rule, they breached their obligations under the CMSH Act.

[37] Ms Gooch also took the view that Mr Winterton and Mr Schofield had breached the BHP Billiton Code of Business Conduct and the BMA Charter. She regarded their “reckless and grossly negligent violations” of a Life Saving Rule as “being at the most serious end of the spectrum” and therefore warranting a disciplinary response “potentially up to and including termination of employment”. Ms Gooch’s evidence was that Mr Brenchley (who did not himself give evidence) agreed with her and determined that Mr Winterton and Mr Schofield should be asked to show cause as to why their employment should not be terminated.

[38] On advice from the Mine’s HR Manager, Ms Gooch then conducted a “sense check” to determine the nature of the disciplinary action which had resulted from breaches of the Life Saving Rules at other BMA mines. She checked at three other mines. In relation to the Blackwater Mine, she was advised that an employee had recently been dismissed for a breach of the Life Saving Rules. At the Goonyella Riverside Mine, an employee who had engaged in a “momentary lapse” which led to a breach of a Life Saving Rule had been disciplined but not dismissed. Ms Gooch also relied upon her own involvement in investigating an incident at the Mine in which a Supervisor had operated equipment he was not authorised to operate and in so doing breached a Life Saving Rule. The Supervisor was asked to show cause why he should not be terminated, but resigned at the meeting at which it was intended that he be dismissed. Ms Gooch concluded from this that the show cause process intended for Mr Winterton and Mr Schofield was appropriate.

[39] Ms Gooch and Mr Brenchley then discussed the matter with Mr Mitchell on 25 March 2014. He approved the show cause process on the basis that he considered the conduct of Mr Winterton and Mr Schofield to constitute more than a slip, lapse or mistake and agreed with the assessment of Ms Gooch and Mr Brenchley that they had been either reckless or exceptionally negligent. On 25 March 2014 Ms Gooch and Mr Brenchley conducted meetings with Mr Schofield and Mr Winterton at which they were each provided with a show cause letter. Mr Smythe also attended these meetings. The letters contained two adverse findings with respect to each of them: firstly, that they had failed to complete the BMA Safe checklist for the PRV job and, secondly, that they had worked at a height of at least two metres in breach of the working at heights Life Saving Rule. The first finding in respect of each employee was subsequently deleted from the letter by hand. The letters went on the basis of the findings, it was concluded that their conduct was inconsistent with their obligations under s.39 of the CMSH Act, Rule 2 of the Life Saving Rules, Part 2 of the BHP Billiton Code of Conduct and the BMA Charter.

[40] Mr Winterton and Mr Schofield were given the opportunity to provide written responses to their show cause letters. Both did so. Their accounts of the incident in those responses were in similar terms to the way in which it has been described above. Mr Winterton’s response was accompanied by references from a number of current and former senior work colleagues, including a superintendent and a number of supervisors. These references uniformly vouched for Mr Winterton as being a valued, dedicated and safety-conscious employee and described the working at heights incident as being out of character. Mr Schofield’s response was also accompanied by references from a former leading hand at his previous employment and a former team leader which characterised his work performance and safety record in glowing terms.

[41] Mr Brenchley and Ms Gooch then considered the position in the light of the responses. They acknowledged that the references were consistent with BMS’s own personnel records which showed that “Mr Schofield and Mr Winterton both had good employment histories and that neither of them had been involved in any safety incident at the Mine prior to the incident”. However it remained the position, according to Ms Gooch, that Mr Brenchley had lost confidence in the ability of Mr Winterton and Mr Schofield to perform their duties safely without exposing themselves or others to an unacceptable level of risk in that:

• they had failed to identify the working at heights risk despite their full awareness of Rule 2 of the Life Saving Rules;

• the risk of working at heights was not difficult to identify, since it involved working above head height and “can easily be checked with a tape measure”;

• given the gross negligence and recklessness displayed, there could not be certainty that a similar incident would not occur again in the future; and

• their actions in using the driftrunner as a work platform was within their control and not accidental or unintentional, and the lack of judgement and competency which they displayed could not be rehabilitated or reformed with any further training or retraining.

[42] Mr Brenchley decided, and Ms Gooch agreed, that there was “no alternative” but to dismiss Mr Winterton and Mr Schofield. Mr Mitchell was informed of their position on 1 April 2014, and he agreed that there was “no alternative” other than dismissal. Termination meetings were then held with each of them on 2 April 2014 (at which Mr Smythe was present), and each was provided with a termination letter. On Ms Gooch’s evidence, Mr Brenchley told both Mr Winterton and Mr Schofield that in the circumstances he had “no alternative” other than to terminate their employment. As earlier stated, they were dismissed with immediate effect but paid four weeks’ pay in lieu of notice.

Events since dismissal

[43] The current downturn in the coal mining industry has meant that Mr Winterton and Mr Schofield have both had difficulty in finding alternative employment. Despite applying for a large number of coal and iron ore mining jobs, Mr Winterton did not succeed in obtaining full-time employment until 2 June 2014, when he commenced employment as a fitter for a contractor to a coal mine in the Bowen Basin. This job pays approximately 40% less than his former employment with BMS, and is only for a fixed term subject to review in April 2015. His concern for him and his family’s future has caused him to suffer from stress, insomnia and depression. It is likely that his wife, who has recently given birth to their second child, will have to return to work earlier than planned because of their financial commitments.

[44] Mr Schofield also did not obtain alternative employment until he commenced employment as a casual fitter for a contracting company working at either a Bowen Basin mine or a coal port. The work is not full-time, regular or predictable, and generally has involved only about 24 hours work per week. He is earning less than half the amount he would have had he remained employed by BMS. His dismissal has placed him under a considerable degree of personal stress.

Disciplinary response to other comparable safety incidents

[45] Mr Winterton and Mr Schofield placed considerable reliance on the disciplinary response to a number of other safety incidents at the Mine and another BMA mine as demonstrating that their dismissals constituted unfair differential treatment. The evidence concerning these other safety incidents was derived from documents produced under summons and from Ms Gooch, and may be summarised as follows:

(1) Mr Robert Cookson, a maintenance employee at the Mine, was required in April 2012 to undertake maintenance work of an auxiliary fan together with a “pink hat”. He completed the BMA Safe checklist for the job and identified the need to isolate the fan in order to safely carry out the job. Although he took steps to isolate the fan while conducting the job, he failed to fit a personal isolation lock and danger tag. The incident was investigated, and Mr Cookson was stood aside during the investigation. During the investigation, Mr Cookson claimed that it was permissible under the standard operating procedure not to apply a personal isolation lock provided that the isolation point remained within arm’s reach. The conclusion was that the standard operating procedure was ambiguous, that Mr Cookson’s contravention was “technical” and non-intentional, and only constituted a Slip/Lapse, or at worst a Mistake, under the Guideline. However I consider that on any view Mr Cookson contravened the plain terms of Rule 1 of the Life Saving Rules, which provides: “Apply a personal isolation lock, tag and ‘test for dead’ before working on equipment”. The only disciplinary action taken was that he was counselled.

(2) Mr Shannon Doherty was a maintenance employee at the Mine who in November 2012 was required to undertake work on an auxiliary fan. He attempted to isolate the fan before performing the work, but attached his personal isolation lock to the wrong area. In doing so, he failed in my view to properly comply with Rule 1 of the Life Saving Rules. He received a written warning on the basis that this was a Slip/Lapse, or at worst a Mistake.

(3) Mr Robert Moore was an employee of a contractor company at the Mine. In December 2009, he used a ladder to conduct an inspection of a newly-commissioned longwall belt. The ladder was 2 metres in height on the top rung. During the course of the inspection, Mr Moore at one point stood on the top rung. In doing so, he contravened the working at heights rule of the Life Saving Rules. Although BMS had the power to remove him from the site, it did not do so. He was given refresher training in the working at heights rule.

(4) Mr Robert Benbow was a fitter working at BMA’s Goonyella Riverside Mine in the Bowen Basin. On 27 March 2013 he was standing on the chassis of a dump vehicle performing maintenance work. The work required the removal of a hand rail and the installation of its replacement. Once he removed the existing hand rail and passed it to an assistant, he exposed himself to a 2.7 metres drop because there was no appropriate barricading or safety harness in place. This was determined to constitute an intentional breach of Rule 2 of the Life Saving Rules. A final written warning was issued to Mr Benbow. 

Whether Mr Winterton was unfairly dismissed

[46] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in relation to Mr Winterton’s application in turn below.

Paragraph 387(a)

[47] I consider that Mr Winterton’s breach of Rule 2 of the Life Saving Rules comprised a valid reason for his dismissal. The Life Saving Rules comprised a workplace safety policy compliance with which was considered fundamental at the Mine and was required by s.39 of the CMSH Act. Mr Winterton was fully familiar with the Life Saving Rules. He was required by BMS to be vigilant to ensure that he did not place himself in any situation where the Life Saving Rules were contravened. While I do not consider that he intentionally breached the Life Saving Rules by working above the specified height limit on 18 March 2014, I consider that he was negligent in not realising at least the possibility that using the driftrunner as a work platform might contravene Rule 2.

[48] There are a number of important mitigating factors which can be identified in the broader context of the incident on 18 March 2014. However, I adopt the view taken by the Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post 4 that the issue of whether a valid reason for the dismissal exists for the purpose of s.387(a) is to be determined from the employer’s perspective, and that issues of substantive fairness from the employee’s perspective are to be considered separately. Accordingly I will deal with the mitigating circumstances as other relevant matters under s.387(h).

Paragraphs 387(b) and (c)

[49] Mr Winterton was, through the “show cause” process described above, notified of the reasons for his dismissal and given the opportunity to respond in writing to those reasons.

Paragraph 387(d)

[50] Mr Winterton was allowed to and did bring a support person to all the meetings conducted during the investigation and dismissal process.

Paragraph 387(e)

[51] Mr Winterton’s dismissal was on the basis of serious misconduct, not unsatisfactory performance, so the issue of prior warnings does not arise.

Paragraphs 387(f) and (g)

[52] BMS, taken either alone or as part of the broader BMA business, is of substantial size, and has dedicated human resources management specialists and expertise. Its dismissal procedures were appropriate for a business of that size.

Paragraph 387(h)

[53] There are five categories of matters which I consider to be relevant to the question of whether Mr Winterton’s dismissal was harsh, unjust or unreasonable: mitigating circumstances in relation to the 18 March 2014 incident; what the Guideline prescribed as an appropriate disciplinary response to Mr Winterton’s conduct; differential treatment of employees at BMA mines who have breached the Life Saving Rules; Mr Winterton’s previous employment record; and the effect of the dismissal upon him and his family. These matters all weigh, in varying degrees, in favour of a finding that the dismissal was harsh.

[54] The mitigating circumstances are as follows:

(1) I have accepted Mr Winterton’s evidence that he had previously seen other senior personnel at the Mine use the roof of a driftrunner as a work platform, and had likewise himself done so under the observation of senior personnel. I consider that this would have influenced Mr Winterton to assume on 18 March 2014 that there was no working at heights issue connected with using the roof of a driftrunner as a work platform and distracted him from considering that issue when he completed his BMA Safe checklist.

(2) The use of the driftrunner was proposed by Mr Gonzalez-Escorida, who was the person directing the conduct of the PRV job, a senior person at the Mine and the holder of a statutory position under the CMSH Act. This again would have supported the assumption on Mr Winterton’s part that the use of the driftrunner did not involve any breach of the Life Saving Rules and thus that the working at heights issue did not require consideration. Although I fully accept the submission of BMS that no employee at the Mine is required to comply with an instruction or request to breach a Life Saving Rule or do anything else that is unsafe, that submission misses the point. It was not a case of Mr Winterton obeying a direction from Mr Gonzalez-Escorida to do something he knew to be unsafe; rather it was the fact that it was a person with the seniority and role of Mr Gonzalez-Escorida who proposed the use of the driftrunner that led Mr Winterton to assume that it would not involve a breach of the Life Saving Rules.

(3) Had the use of the driftrunner not been proposed by Mr Gonzalez-Escorida, the incident would never have happened. That proposal was advanced in circumstances where Mr Gonzalez-Escorida felt himself to be under pressure to complete the PRV job immediately because his performance generally was under scrutiny by management and because the job was a priority one which had been delayed a number of times for reasons beyond his control.

(4) It is clear that Mr Winterton understood the importance of Rule 2 of the Life Saving Rules and did not knowingly contravene it on 18 March 2014. His contravention was thus negligent rather than wilful. Further, he was far from oblivious concerning safety issues relevant to the use of the driftrunner as a work platform, since he completed his BMA Safe checklist in relation to its use, identified certain other safety hazards, and described and put in place controls to minimize those hazards.

(5) The actual height of the roof of the driftrunner was only 15 centimetres above the 1.8 metres limit established by Rule 2 of the Life Saving Rules. This has two implications. Firstly, this meant that this was not a case where it was absolutely obvious that the working height was above the limit (although Mr Winterton, if he had given the matter any proper consideration, should nonetheless have realised that there was a risk that the driftrunner roof was above the height limit because it was about head height). Secondly, it meant that the contravention was at the lower end of the range in terms of the extent of the contravention and the risk to safety that it posed. The 1.95 metres working height was well below the 2.4 metres working height limit established by clause 92 of the CMSH Regulation. While it is of course the case that BMS was entitled to establish a more stringent safety standard than that prescribed by the CMSH Regulation, this nonetheless illustrates that Mr Winterton’s contravention of Rule 2 must be regarded as being in the less serious category. The fact that, as earlier stated, the contravention was non-intentional supports this conclusion.

[55] Under the Guideline, it is not clear whether Mr Winterton’s breach of the Life Saving Rules, which was the result of negligence rather than intentional, justified being categorised as a “Violation” rather than merely a “Mistake” (which, to repeat, was described in the Guideline as where the “individual involved had the right intention but acted in an inappropriate manner or made an incorrect decision”). If the latter, dismissal was not available as a disciplinary response under the Guideline. Even if his conduct could be categorised as a “Violation”, the Guideline allowed for “recorded warnings, probation, [and] suspension” as a response, including where the risk involved was deemed to be high or extreme. Therefore the position taken by Mr Brenchley, Ms Gooch and Mr Mitchell that they had “no alternative” other than to dismiss Mr Winterton was not supported by BMS’s own Guideline.

[56] I have earlier set out the other instances of disciplinary action taken for breaches of the Life Saving Rules at the Mine and another BMA mine relied upon by Mr Winterton and Mr Schofield to demonstrate that their dismissal constituted unfair differential treatment. It is well-established that differential disciplinary treatment of similar misconduct by an employer may be a legitimate basis upon which to find that a dismissal is unfair. 5 Here, the weight to be placed on the disciplinary action taken in response to different safety incidents is limited by the fact that they all turned on their particular facts. However, I consider that it can at least be concluded from these other incidents that, at the BMA mines, it is not the case that any contravention by an employee of a Life Saving Rule has been treated as requiring the employee’s dismissal, and that less serious contraventions of the Life Saving Rules have been the subject of lesser disciplinary sanctions. This has significance in the light of my earlier conclusion that the contravention by Mr Winterton must be categorised as being at the lower end of the range of seriousness. It also further demonstrates that the position of Mr Brenchley, Ms Gooch and Mr Mitchell that they had “no alternative” to dismissal was ill-founded.

[57] Mr Winterton’s employment history has earlier been described. His 6½ years of employment was unblemished in terms of performance, disciplinary and safety issues prior to the 18 March 2014 incident. The references from current and former senior employees at the Mine are an impressive testament to the regard in which he was held in the workplace. But more importantly those references, and Mr Winterton’s employment history generally, demonstrate that he usually had a very strong awareness and understanding of the importance of safety in the workplace and accordingly that his negligent behaviour on 18 March 2014 was anomalous, out of character and very unlikely to be repeated. Mr Brenchley’s view that Mr Winterton was incapable of “rehabilitation” I regard to be patently incorrect and indeed inexplicable once proper regard is had to his work record and the references in his support.

[58] The financial and personal consequences of the dismissal for Mr Winterton have been severe. Dismissed at a time when the coal mining industry has undergone a significant downturn, he has suffered a period of unemployment, loss of income, loss of secure employment, and adverse effects upon his well-being. This has also had consequences for his family.

Conclusion

[59] I consider, having regard to all the matters discussed above, that Mr Winterton’s dismissal was harsh notwithstanding that there was a valid reason for his dismissal because:

• the penalty of dismissal was disproportionate to the gravity of Mr Winterton’s misconduct, having regard to all the circumstances and the entire context of the 18 March 2014 incident;

• BMS effectively treated dismissal as a necessary consequence of Mr Winterton’s breach of the Life Saving Rules, in circumstances where that breach was at the lower end of the range of seriousness, the Guideline did not on any view require dismissal, and other breaches of the Life Saving Rules at the Mine and another BMA mine had not resulted in dismissal;

• Mr Winterton’s employment record was unblemished over a considerable period of time, and strongly indicated that his conduct on 18 March 2014 was out of character and would not be repeated; and

• the financial and personal consequences for him and his family of the dismissal were severe.

Mr Winterton - remedy

[60] Mr Winterton seeks an order reinstating him to his former employment with BMS under s.391 of the Act, together with ancillary orders to maintain the continuity of his employment and to compensate him for the remuneration he has lost. Reinstatement is the primary remedy provided for in respect of unfair dismissals under the Act, in the sense that there must be a finding that reinstatement is inappropriate before any power exists to make an order for compensation. 6 Accordingly, in respect of remedy, the primary issue which must be considered is whether it would be appropriate to make an order for Mr Winterton’s reinstatement.

[61] The main question which arises in this connection is whether BMS can have trust and confidence that, if reinstated, Mr Winterton would strictly comply with the Life Saving Rules and BMS’s other safety requirements and procedures. I consider that there is a proper basis to conclude that such trust and confidence can be restored. As I have earlier found, the evidence concerning Mr Winterton’s employment history and safety record strongly indicates that his conduct on 18 March 2014 was anomalous and a “one-off”, and is very unlikely to ever be repeated. Further, I have no doubt that his subsequent dismissal and the financial and personal consequences which have followed will have reinforced within his mind the absolute necessity of compliance with the Life Saving Rules and other safety requirements and procedures. I consider that reinstatement is practicable and appropriate. I also consider it appropriate to make an order under s.391(2) to maintain the continuity of Mr Winterton’s employment and the period of his continuous service with BMS.

[62] However I will not make any order for lost remuneration under s.391(3). Mr Winterton engaged in negligent conduct which resulted in him breaching a fundamental safety requirement at the Mine. Although I have found that dismissal was a disproportionate response to this conduct, it was conduct which was worthy of a lesser but still significant disciplinary response. The financial loss which Mr Winterton has suffered from his dismissal will serve as an appropriate sanction for his conduct. It will also serve as a reminder to him and others of the necessity for strict compliance with the Life Saving Rules.

Whether Mr Schofield’s dismissal was unfair

[63] The matters identified in s.387 are dealt with in relation to Mr Schofield’s application in turn below. Where the findings to be made in relation to Mr Schofield’s application are the same as for Mr Winterton’s application, I will not repeat the reasoning in support of such a finding but simply refer to my earlier reasons.

Paragraph 387(a)

I consider that Mr Schofield’s breach of Rule 2 of the Life Saving Rules comprised a valid reason for his dismissal for the same reasons as stated in respect of Mr Winterton’s application in paragraphs [47] and [48] above.

Paragraphs 387(b) and (c)

[64] Mr Schofield was, through the “show cause” process described above, notified of the reasons for his dismissal and given the opportunity to respond in writing to those reasons.

Paragraph 387(d)

[65] Mr Schofield was allowed to and did bring a support person to all the meetings conducted during the investigation and dismissal process.

Paragraph 387(e)

[66] Mr Schofield’s dismissal was on the basis of serious misconduct, not unsatisfactory performance, so the issue of prior warnings does not arise.

Paragraphs 387(f) and (g)

[67] I repeat the conclusion in paragraph [52] above.

Paragraph 387(h)

[68] The five categories of matters referred to as relevant in relation to Mr Winterton’s application in paragraph [53] above are also relevant to Mr Schofield’s application and also weigh in favour of a finding that his dismissal was harsh. The mitigating circumstances applicable to the 18 March 2014 incident set out in paragraph [54] are largely the same, but two distinctions may be noted:

(1) Mr Schofield’s previous experience in seeing other mine workers use a driftrunner as a work platform was obviously not identical to Mr Winterton’s, and he had never used a driftrunner for that purpose himself. Nonetheless he had see other seen other Mine workers using the roof of a driftrunner as a platform, and this influenced him to assume that it was a safe work practice.

(2) As a relatively junior employee and a “pink hat” in terms of underground mining experience, the effect of Mr Gonzalez-Escorida proposing the use of the driftrunner as a work platform in engendering an assumption that this was a safe work practice would have been greater in his case than in Mr Winterton’s.

[69] The conclusions stated in paragraph [55] concerning the application of the Guideline to Mr Winterton and in paragraph [56] concerning the way in which other breaches of the Life Saving Rules have been treated at the Mine and another BMA mine apply equally to Mr Schofield’s case. As for his employment history, his length of service was much shorter than Mr Winterton’s but he also had an unblemished disciplinary and safety record, and his references although fewer in number were also impressive. I consider that the conclusion is equally available in respect of Mr Schofield that his negligent conduct on 18 March 2014 was out of character and unlikely to be repeated, and that BMS’s view that he could not be rehabilitated was ill-founded. Mr Schofield has also suffered significant financial loss and adverse personal effects as a result of his dismissal.

Conclusion

[70] I consider, taking into account the matters dealt with above, that Mr Schofield’s dismissal was also harsh notwithstanding that there was a valid reason for his dismissal because:

• the penalty of dismissal was disproportionate to the gravity of Mr Schofield’s misconduct, having regard to all the circumstances and the entire context of the 18 March 2014 incident;

• BMS effectively treated dismissal as a necessary consequence of Mr Winterton’s breach of the Life Saving Rules, in circumstances where that breach was at the lower end of the range of seriousness, the Guideline did not on any view require dismissal, and other breaches of the Life Saving Rules at the Mine and another BMA mine had not resulted in dismissal;

• although Mr Schofield’s period of service was quite short, it was nonetheless unblemished and supported the view that his conduct on 18 March 2014 was out of character, anomalous and would not be repeated; and

• the financial and personal consequences of the dismissal for him were significant.

Mr Schofield - remedy

[71] Mr Schofield also seeks an order reinstating him to his former employment with BMS under s.391 of the Act, together with ancillary orders to maintain the continuity of his employment and to compensate him for the remuneration he has lost. For the same reasons as set out in relation to Mr Winterton’s application in paragraph [60] above I consider that reinstatement is an appropriate remedy and should be ordered, and I also consider it appropriate to make an order under s.391(2) to maintain the continuity of Mr Schofield’s employment and the period of his continuous service with BMS. For the same reasons as stated in paragraph [62] above, I decline to make an order for lost remuneration in Mr Schofield’s favour.

Orders

[72] Separate orders will issue reinstating Mr Winterton and Mr Schofield to the positions in which they were employed by BMS immediately before their dismissals and maintaining the continuity of their employment and period of continuous service with BMS.

VICE PRESIDENT

Appearances:

A. Walkaden from the Construction, Forestry, Mining and Energy Unionfor the applicants.

A. Duffy of counsel with T. Lutvey solicitor for the respondent.

Hearing details:

2014.

Mackay:

29-30 October.

 1   Section 39(1)(a) of the CMSH Act

 2   Section 39(2)(a) of the CMSH Act

 3   Section 39(2)(d) of the CMSH Act

 4   [2013] FWCFB 6191 at [35] and [42]-[46]

 5   Darvell v Australian Postal Corporation[2010] FWAFB 4082 at [21]-[24]; Linfox Australia Pty Ltd v Stutsel[2012] FWAFB 7097 at [32]-[33]

 6   Melanie Millington v Traders International Pty Ltd[2014] FWCFB 888 at [66]

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