Katrina Saunders v Bengalla Mining Company Pty Ltd
[2025] FWC 658
•5 MARCH 2025
| [2025] FWC 658 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Katrina Saunders
v
Bengalla Mining Company Pty Ltd
(U2024/8658)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 5 MARCH 2025 |
Application for relief from unfair dismissal – alleged interaction with mobile phone while operating a haul truck at an open cut coal mine – secondary case that applicant breached policy by having her mobile phone turned on and in the cab with her while operating equipment – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
Ms Katrina Saunders was employed by Bengalla Mining Company Pty Ltd as a production employee, mainly operating water trucks and haul trucks at Bengalla’s open cut coal Mine in Muswellbrook, New South Wales. Ms Saunders was dismissed for serious misconduct.
Bengalla’s primary case is that Ms Saunders interacted with her mobile phone, on 10 occasions between January and June 2024, whilst operating a truck at the Mine. Ms Saunders denies that she engaged in the conduct alleged against her. The secondary case advanced by Bengalla is that Ms Saunders breached the ‘PHMP – Roads or Other Vehicle Operating Area’ safety Policy by having her mobile phone turned on and in the cab with her while she was operating equipment at the Mine.
I heard Ms Saunders’ unfair dismissal case against Bengalla on 3 December 2024 and 11 to 13 February 2025. The proceedings were adjourned after the hearing on 3 December 2024 because, at that time, Bengalla sought, for the first time, to advance an alternative case that Ms Saunders breached the Policy by having her mobile phone turned on and in the cab with her while she was operating equipment at the Mine. Bengalla says that it did not advance its secondary case prior to 3 December 2024 because, at all times prior to the receipt of Ms Saunders’ reply witness statement on the afternoon of Friday, 29 November 2024, Bengalla was not aware of a contention by Ms Saunders that she had inadvertently had her mobile phone turned on in the cab of a truck while she was driving the truck. Ms Saunders contends that this happened when her phone had no remaining battery charge and she plugged the phone (whilst it was turned off) into a portable battery pack during a crib break. The mobile phone then turned itself on after reaching a certain level of charge from the portable battery. I decided that it was in the interests of justice to permit Bengalla to run its secondary case, but only on the basis that the parties had an opportunity to file and serve evidence and submissions in relation to it. Accordingly, an adjournment was granted and directions were made for the filing of such material prior to the resumption of the hearing on 11 February 2025.
Ms Saunders gave evidence in support of her case. She also adduced evidence from Mr Benjamin Murphy, an employee of Glencore Coal Assets Australia Pty Ltd whose job is to work at Glencore’s Operator Awareness Monitoring Centre, monitoring production operators where possible fatigue events and unsafe and operational distractions of operators is being detected by the Operator Awareness System.
Bengalla adduced evidence from the following witnesses:
Mr Glenn Meyn, Mining Manager;
Mr Matthew McNamara, Senior Production Supervisor;
Mr Clint Kent, Production Superintendent;
Mr Stephen Jackson, Technology Coordinator; and
Dr Lachlan Rogers, expert witness.
Initial matters to be considered
Section 396 of the Fair Work Act2009 (Cth) sets out four matters which I am required to decide before I consider the merits of an unfair dismissal application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)Ms Saunders’ application for unfair dismissal was made within the period required by s 394(2) of the Act;
(b)Ms Saunders was a person protected from unfair dismissal;
(c)the Small Business Fair Dismissal Code did not apply to Ms Saunders’ dismissal; and
(d)Ms Saunders’ dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Saunders’ dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[5]
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]
The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[8] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[9]
In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[10] Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:
“Fact Finding and the State of Satisfaction Required
14.It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.
15.Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.
16.It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw...at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):
‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...
Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).
17.It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)…”
It follows that for Bengalla to succeed in relation to its allegations of misconduct against Ms Saunders I am required to reach a state of satisfaction or an actual persuasion that Bengalla has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.[11]
Alleged valid reason
Bengalla contends that it had a valid reason to dismiss Ms Saunders because she breached the Policy, which relevantly provides:
Device Conditions Mobile transmitting devices While at work: turned off and not stored on their person.
During crib breaks: Can only be used in the crib hut.
Exceptions: work phones, or as approved by supervisor.Interactive devices
(e-books, audio players)May only be interacted with whilst the equipment is stationary.
*Headphones/earphones are not to be used except for training purposes.
Bengalla contends that Ms Saunders breached the Policy, on 10 separate occasions, by:
(a)having her mobile phone turned on and interacting with it while she was operating a haul truck at the Mine; and/or
(b)having her mobile phone turned on and in the cab with her while she was operating a haul truck at the Mine.
There is no doubt that Ms Saunders was trained in, and aware of, the requirements of the Policy insofar as they relate to mobile phones.
Relevant facts
The haul trucks operated by Ms Saunders at the Mine are installed with a Hexagon OP Operator Alertness System, which uses an infrared sensor/camera to detect fatigue and distraction events.
In April 2024, a review of video footage from the OAS revealed what Bengalla considered was mobile phone use, contrary to the Policy, by approximately seven employees and contractors. In six of the seven cases detected in April 2024 the operator admitted that they were using a mobile phone in the video footage shown to them during an investigation. All those employees and contractors were dismissed. In July 2024, Bengalla also had a mobile phone use case in which a technician resigned on receipt of a show cause notice. A further case, in September 2024, resulted in the termination of an employee after they admitted using their mobile phone.
Bengalla relied on video footage captured by the OAS to determine that, on 10 occasions between January and June 2024, Ms Saunders interacted with her mobile phone while operating a truck. The video footage was identified because, on 11 June 2024, Mr Jackson reviewed footage of a distraction event involving Ms Saunders. Mr Jackson suspected mobile phone usage by Ms Saunders whilst driving a haul truck. In accordance with his usual process, Mr Jackson then retrieved previous footage and found nine other instances where he believed Ms Saunders had used her mobile phone whilst operating a haul truck.
Mr Jackson has been undertaking the task of reviewing footage of distraction events from the OAS for about five years. He has detected approximately 12 suspected cases of employees using mobile phones through this process. To the best of Mr Jackson’s knowledge, he has only been wrong on one occasion, which involved the use of an e-reader that emitted infrared light. The circumstances of this case are set out in more detail below.
Bengalla accepts that there is no mobile phone visible in the footage captured by the OAS involving Ms Saunders. I have viewed that footage as part of the evidence relied on by Bengalla. The footage shows Ms Saunders’ head and neck (from a front view) as she is driving a haul truck. Bengalla relied on the following features of the footage to determine that Ms Saunders had in fact been interacting with her mobile phone on the relevant dates:
(a)Ms Saunders repeatedly looks down at the passenger seat for prolonged periods of time. This is to be contrasted with an employee looking horizontally out of the window of the truck at something outside the truck; and
(b)the presence of flashes of light and bright spots on Ms Saunders’ face while she is driving the truck. This is to be contrasted with a flash of light from an external white light source, e.g. sun coming through the window of the truck fills the entire cab, produces lens flare and washes out the picture, as opposed to just illuminating one area of the footage. There is no equipment installed in the cabin of the haul trucks that would create a flash of light or dots on the user’s face. Under normal operating conditions, the OAS does not produce footage exhibiting bright dots. Bengalla’s Technology Coordinator (Mr Jackson) has only ever seen bright dots appear as a result of mobile phone use or the use of a specific model of e-reader.
Ms Saunders denied using her mobile phone during the investigation into the allegations. Ms Saunders stated in the investigation meeting that her phone was turned off and in her bag. She provided alternative potential explanations in the investigation meeting for her head movements as shown in the footage, including looking out of the window for potential vehicle interactions, getting food or drinks out of her bag, her book having been dislodged from her bag and Ms Saunders preventing it from falling, cleaning up or preventing a drink from spilling, or a hard hat may have fallen down against the passenger door activating Ms Saunders’ headlamp and causing it to flash. Ms Saunders says she felt pressured during the investigation meeting to give immediate answers, which were difficult to provide given the time that had passed between the dates on which the footage was recorded and the investigation meeting on 18 June 2024. Ms Saunders says that she was essentially speculating on why she was looking to the right in the video footage, some of which was on loop (replay) during the investigation meeting.
There is no dispute that in the investigation meeting Mr Kent told Ms Saunders, on a number of occasions, that she had to be honest during the investigation meeting and not being truthful in an investigation amounts to serious misconduct.[12] Ms Saunders contends that Mr Kent also said words to the effect, “And I want you to be truthful here because we don’t like liars at Bengalla”. Mr Kent denies making such a statement to Ms Saunders. Mr Kent gave evidence that he is certain that he would not, and did not, say that to Ms Saunders. I prefer Mr Kent’s evidence in relation to this disputed statement over the evidence given by Ms Saunders. There is no suggestion in the documents evidencing or recording part of what was discussed at this meeting that such words were spoken by Mr Kent.[13] Further, I consider Mr Kent’s evidence in which he firmly denied the allegations to be persuasive.
Ms Saunders gave evidence that she felt very upset at the investigation meeting on 18 June 2024. I accept this evidence even though it did not accord with Mr Kent’s assessment. Ms Saunders’ evidence is consistent with a handwritten note made by a representative of Bengalla at the meeting: “Katrina very upset”.[14] I am satisfied that the handwritten notes made on Ex A10 were written by Ms Sumner, who attended the meeting with Mr Kent. The evidence given by Mr Kent was that Ms Sumner took notes at the meeting and Mr Kent did not make any of the handwritten notes on Ex A10.
Ms Saunders contends that Mr Kent said to her support person, Mr Shane West, at the investigation meeting on 18 June 2024, words to the effect, “Shane, you are here as a support person only, you do not have a voice in these meetings”. Mr Kent does not think that he said such words, but accepts that he explained to Mr West that his role at the meeting as a support person was as an observer only. In light of the consistency between these two accounts, I am satisfied that Mr Kent made clear to Mr West that he was not to speak during the investigation meeting.
Following the investigation meeting on 18 June 2024, Bengalla finalised its investigation. The investigators formed the opinion that Ms Saunders had likely breached the Policy by interacting with her mobile phone whilst operating a haul truck.
On 21 June 2024, Ms Saunders attended a meeting at which she was issued with a letter inviting her to show cause why her employment should not be terminated. She was given a copy of the video footage of the 10 incidents to consider before making her show cause response. Ms Saunders’ letter dated 28 June 2024 responding to the show cause notice includes the following response to the allegations:
“In response to the specific allegation of using a phone while operating the vehicle, I have thoroughly reviewed the provided footage and can offer reasonable explanations for the events captured. The footage does not show the use of a mobile phone. The flashing that is seen in the provided footage is from other factors in the truck’s cab and from outside. I believe my actions and the in-cab environment have been mis-interpreted as mobile phone use. While I am operating my mobile phone is turned off and kept in the back pouch of my crib bag. My mobile phone, even when turned on, does not flash. At no time during these alleged incidents am I interacting with my mobile phone.
The events in question illustrate a variety of actions. Predominantly, I am observed looking out the passenger window to check for potential hazards. Additionally, the following activities, which have been incorrectly labelled as distractions, noted: setting and adjusting the auto-retard mechanism and organising my equipment bag and its contents. The flashing lights seen in some videos are from the reverse camera illuminating as the tray of the truck I am operating bounces. When the trays on trucks bounce, in this case Truck 90, it causes the reverse lights and camera to activate and flash on and off with the bouncing and this is picked up in the reverse camera in the cab. One video shows a flashing light from another vehicle that I was passing.
I have taken the time to review each video is provided to me, and I respond below to each individual allegation describing what was occurring or what I was doing at the time…”
Bengalla then conducted a re-enactment of the alternative explanations provided by Ms Saunders to see whether they could account for the relevant features observed in the footage. During the hearing, Mr Mueller, on behalf of Ms Saunders, criticised Bengalla for not conducted a re-enactment in circumstances where Ms Saunders’ mobile phone was switched on and located in her (open) bag. I do not accept that this criticism is valid. Bengalla was seeking to re-enact what Ms Saunders put forward as potential explanations for the light seen on her face in the videos. Those explanations put forward by Ms Saunders during the investigation meeting and in her show cause response were coupled with a constant assertion by Ms Saunders that her mobile phone was turned off and located in her bag at all times. Further, Bengalla did not need to re-enact a scenario in which Ms Saunders had her phone turned on in the cab of the truck, because they already had actual video footage which they believed showed that scenario. It should also be recognised that Bengalla had recently conducted a re-enactment in another case of suspected mobile phone use by a different operator and had determined, after that re-enactment, that the explanation put forward by the operator was correct and explained the infrared light source in a manner which did not contravene the Policy. That case involved an employee who had used an e-reader to read in the cab of a truck while the truck was stationery. The e-reader emitted infrared light which was visible on video footage captured by the OAS camera. Because the e-reader was being used while the truck was stationery, the operator had not breached the Policy. This supports Bengalla’s position that it was making a bona fide attempt to evaluate and consider the alternative explanations put forward by Ms Saunders when the re-enactment was conducted in Ms Saunders’ case.
Ms Saunders felt too stressed to participate in the re-enactment. Another employee took her place. Following the re-enactment, Bengalla decided that none of the alternative explanations provided by Ms Saunders could account for the relevant features observed in the footage.
Bengalla invited Ms Saunders to attend a meeting to review the video footage of the re-enactment. Ms Saunders elected not to attend such a meeting. The video footage of the re-enactment was provided to the Mining and Energy Union delegate, so it could be given to Ms Saunders.
By letter dated 12 July 2024, Bengalla summarily terminated Ms Saunders’ employment on the basis that she interacted “with a mobile transmitting device whilst operating a haul truck on numerous occasions”.
Expert evidence
After Ms Saunders’ dismissal and in preparation for the hearing of Ms Saunders’ unfair dismissal application, Bengalla obtained expert opinion evidence from Dr Lachlan Rogers, a lecturer and researcher in physics at the University of Newcastle. Dr Rogers’ area of research expertise is optical characterisation and control of materials which have potential as building-blocks for quantum technologies. This work regularly involves measuring light in the visible and near-infrared parts of the spectrum. Dr Rogers teaches advanced optics to senior physics and engineering students.
Dr Rogers accepted in his oral evidence that, prior to this matter, he has never conducted an investigation into mobile phone usage in a workplace or in the mining industry, he has never written an opinion or report concerning mobile phone usage in the mining industry, and he has not had any experience in the OAS or Hexagon systems.
In connection with his first report, Dr Rogers was provided with the video footage from one of the 10 incidents in which it was alleged that Ms Saunders had used her mobile phone whilst driving a haul truck. Dr Rogers was asked by Bengalla to answer the following questions in his first report:
1. Whether infrared light is emitted from an iPhone 13 or 15 (e.g. Face ID).
2.Whether the OAS camera can detect infrared light of the type emitted by an iPhone 13 or 15, and if so how the infrared light would present on the footage.
3.Whether it is more likely than not that the presence of an infrared light source is the cause of the observed bright dots and flashes in the video footage (attachment 6 to Dr Rogers’ report, from which image 3 and attachment 7 were extracted).
4.Having regard to the footage of admitted mobile phone use (by other employees of Bengalla) in attachment 9 to Dr Rogers’ report and the still image in attachment 10 to Dr Rogers’ report, whether it is more likely than not that the flashes and bright spots included in the video footage in attachment 6 and the still images in attachments 7 and 8 to Dr Rogers’ report are caused by an infrared light source from a mobile phone.
In summary, Dr Rogers answered those questions as follows:
·The Apple iPhone 13 and 15 both contain Face ID technology, and this technology does emit infrared light. In particular, the flood illuminator is a wide-beam infrared source which the camera within the phone uses to establish the presence of a face. A dot projector within the phone then flashes an array of infrared dots onto the face of the user, which are used to determine whether the person is the authorised user of the phone. The number of infrared dots varies from up to 30,000 dots when the iPhone is in learning mode and is learning the features of the user’s face down to a smaller number of dots after the learning mode is complete. Apple does not publish information as to the precise number of dots needed to recognise the face of a user on an iPhone.
·The Face ID technology used in iPhones uses two infrared sources. The dot projector is a laser-array source that emits a narrow spectral band at (or close to) 940 nm. Dr Rogers was unable to find the spectral characteristics of the flood illuminator used in iPhones, but expressed the opinion that it operates in the same spectral band as the dot projector.
·The infrared light emitted by the iPhone Face ID system is in the same wavelength range as the illumination source built into the OAS alertness camera. Activating the Face ID system will mean that the phone emits infrared light that can definitely be detected by the OAS camera. The infrared illumination will appear as increased brightness in the video imagery from the OAS camera.
·In a vehicle cabin a phone would be used within the reach of an arm, meaning a distance of about 500mm or less from the user’s face. The Face ID flood illuminator is designed to give a broad beam (to illuminate a face) rather than a collimated beam, and it is expected that some of this infrared light will pass around the face to components of the cabin beyond the user’s head. Even though the dot projector uses laser technology to project collimated ‘dot’ beams, it is configured in an array of dots that also must span the user’s face and so similarly it is expected that some of this light will be able to reach parts of the cabin. The position of a driver in the vehicle cabin means that some cabin components (eg ceiling, headrest, door pillar) are 200-500mm further from a handheld source than the user’s face. The inverse square law means that increasing the source distance from 500mm to 700mm is enough to halve the illumination intensity, and doubling the distance to 1000mm would quarter the intensity. The infrared light from iPhone Face ID would therefore appear as brighter illumination on the face, with less brightness occurring elsewhere in the cabin given that those locations elsewhere in the cabin are at further distances from the phone.
·Since the Face ID system involves at least two infrared illumination events in sequence (flood illumination followed by dot projection) it is likely to present in the video as more than one flash. Face ID completes within a fraction of a second, and the OAS video files are recorded at 15 frames per second, meaning 66.7 ms per frame. It is possible that the Face ID protocol completes its sequence within less than 66.7 ms, in which case it would only appear as an illumination flash in one single video frame.
·Dr Rogers’ opinion is that the bright flashes visible in the video (attachment 6) are from an infrared light source. The technical reasoning relates to the filter on the sensor of the OAS alertness camera device, which passes infrared light to the sensor while blocking effectively all of the visible part of the spectrum. In addition, the ambient cabin lighting appears in the video to be quite dark relative to the driver’s face, despite the video being recorded in the early afternoon. It is highly likely that the OAS is designed to prevent visible light from reaching the sensor, so that the detected signal is primarily from the integrated infrared illuminator. The flashes in the OAS video are separated by about 70 ms which is too fast to be produced by an incandescent source.
·The flashes of broad illumination on the driver’s face in the footage are clearly consistent with Face ID technology from an iPhone.
·It is not possible for the OAS camera to distinctly image all 30,000 points from a Face ID dot projector. In the situation where the image ‘under samples’ the dot pattern at a lower resolution then the dots will appear to blur together rather than remain distinct. This could explain the mottled illumination on the cheek as observed in a still photograph of Ms Saunders. This frame also contains a small number of small bright dots that are not visible in any other frames of the video clip. These must be the result of a brief flash of illumination focussed or otherwise concentrated into dots.
·The distribution of brightness indicates the source is nearby to the driver. A light source far from the driver (outside the vehicle) would be expected to have similar levels of illumination on the driver’s face and on parts of the interior of the cabin as on the driver's face. Contrary to this, the video data shows noticeably higher brightness on the driver's face than on the door pillar and other parts of the cabin. This is consistent with the infrared light source being considerably closer to the face than the vehicle door.
·In order for a light source other than Face ID on an iPhone to produce the features on the video:
oit must flash briefly. Flashlights and head torches are typically designed with toggle switching for convenience, making it hard to flash on and off multiple times in the observed time interval of 200 ms;
oit must be either designed to emit infrared light in the spectral band being detected by the OAS camera, or be a bright enough broadband source that it has considerable spectral intensity in this band. There are other common devices which use infrared, such as remotes for televisions and air conditioners. Such devices would need to be specifically pointed backwards (towards the operator’s face) for the infrared LED to emit the observed illumination pattern on the face. They would also need a remarkable coincidence of momentary button pressing to achieve the observed sequence of just two flashes at close separation. They usually communicate instructions to the television or air conditioner with a more extended burst of infrared; and
oit must be close to the driver’s face, and specifically be considerably closer to the face than the door or ceiling of the cabin due to the inverse square law. This indicates a source within arm’s reach.
·These combine to pose an unlikely alternative situation. The widespread use of Face ID on Apple iPhones, coupled with the fact that mobile phones are frequently carried on/near a person and kept within arm’s reach, mean that in all likelihood the flashes and dots observed in the video are caused by an infrared light source in a mobile phone.
Dr Rogers provided a second report in which he was asked to answer the following questions:
1.Whether and, if so, how an infrared light source emitted from a mobile phone located inside the bag shown in photos at attachment 20 could be detected by the OAS?
2.If an infrared light source emitted from a mobile phone located inside the bag could be detected by the OAS camera, how that infrared light would present on the footage recorded by the OAS camera?
3.Whether his opinion in relation to the video footage at attachment six remains as stated in his first report?
4.Whether it is more likely than not that any flashes and bright spots present in the video footage at attachments 11 – 19 (new and additional to the first report) are caused by an infrared light source from a mobile phone?
5.If any flashes and bright spots present in the video footage at attachments six and 11 – 19 are more likely than not caused by an infrared light source from a mobile phone, where and how the mobile phone would need to be positioned to cause those flashes and bright spots?
6.If any flashes and bright spots present in the video footage at attachments six and 11 – 19 are more likely than not caused by an infrared light source from a mobile phone and the mobile phone was located in the bag at attachment 20, where and how the mobile phone would need to be positioned to cause those flashes and bright spots?
Dr Rogers viewed the video footage provided to him of the other nine incidents and, in summary, answered the questions as follows in his second report:
·The bag shown in attachment 20 appears to be made of a sturdy grey canvas or synthetic canvas-like material. The sides of the bag have a flatness that indicates some sort of stiffening material is included in the fabrication. It is not likely that infrared light can pass through the side walls which appear to consist of the outer grey canvas, a stiffening sheet, and the black interior lining. Even if some infrared light is able to pass through this fabric, it has a rough textured weave. This means that the optical part of any transmitted light would be diffuse and scattered in a wide range of directions.
·Nothing in any of the additional videos provided to Dr Rogers in connection with the preparation of his second report alter his opinions in relation to attachment six, being the video Dr Rogers examined in connection with the preparation of his first report. In particular, the further investigation documented in Dr Rogers’ second report did not lead him to be able to identify any further plausible alternative explanations for the flashes and dots observed in attachment six.
·As is the case with the video in attachment six, the videos and attachments 11 and 13 are clearly indicative of the presence of a mobile phone.
·As to the video in attachment 11,
othere are some transient moments of illumination which appeared to be bright only on the driver’s face and not throughout the cabin;
oillumination on the underside of the driver’s nose in particular indicates that the light source is positioned at a low angle to the face (i.e. located below the face);
othe illumination is far from uniform across the driver’s face, indicating that the source is close to the face. Light from this source must travel further to even the top of the face and especially to other surfaces in the cabin, leading to lower intensity according to the inverse square law;
othe transient nature and evident location of the light source (within the cabin below the driver’s face) cause Dr Rogers to form the view that these flashes are caused by the infrared light source of the FaceID system in an iPhone.
·As to the video in attachment 13,
othere is a sharply defined pattern of illumination, where the chin and underside of the nose is bright and the side of the mouth and rest of the face is not brighter than normal. The difference between the sharp outline on the chin and the blurred broad illumination of the ceiling suggest a source in proximity to the driver’s chin. The sharper shadow line (thin penumbra) on the face indicates that the flash is coming from a small, localised source,
othe flash is particularly bright on the underside of the nose, indicating that the light source is positioned lower than the face,
othe ceiling is illuminated less brightly but quite broadly, extending to the rectangular patches on the top of the side wall above the left-hand window. This indicates a fairly unobstructed path from the source to most points high in the cabin,
oif the flash is coming from a phone that is located in the bag shown in attachment 20 then the illumination pattern indicates the lid of the bag must be open,
othese factors cause Dr Rogers to form the view that these flashes are caused by the infrared light source of the FaceID system in an iPhone,
ofurthermore, the partial obstruction that causes the shadow edge in flashed light would mean that the FaceID flood illumination does not have a clear view of the operator’s face. This would lead to the FaceID system making repeated attempts to identify the presence of a face, matching the observation of multiple flashes in this video.
·The videos in attachments 14 and 15 likely indicate the presence of a mobile phone, but Dr Rogers was not able to, having regard to his obligations as an expert, offer that view with the same degree of certainty as for the videos in attachments 6, 11 and 13. Dr Rogers provided detailed explanations for his opinions in relation to the videos in attachments 14 and 15.
·The videos in attachments 12, 16, 17, 18 and 19 do not contain clear enough details for Dr Rogers to express a conclusion about the presence of a mobile phone with the requisite degree of scientific confidence. Dr Rogers’ failure to express an opinion in relation to these videos is not to say that there is no phone present or that there are features of the footage that are inconsistent with the presence of a phone. It is simply that the clarity and framerate of the footage does not allow Dr Rogers to express, with a sufficient degree of certainty, a view regarding the illumination patterns observable.
During his oral evidence, Dr Rogers expanded on the reasoning set out in his two reports but he did not alter the opinions expressed in his reports. The oral evidence given by Dr Rogers included the following:
In respect of the three visible dots shown on a particular still photograph (frame 69), it is difficult to say whether the three dots would be sufficient for the iPhone to identify the user.
Dr Rogers was not asked to express an opinion as to whether Ms Saunders interacted with, or used, her mobile phone.
Dr Rogers rejected the proposition that he would not have seen anything on image 3 of attachment 7 if his instructors had not pointed out particular features on the image with red arrows and red writing. Dr Rogers explained that he used video editing software to look at the images frame by frame and he identified features of the video that were not pointed out to him. Dr Rogers also rejected the proposition that, absent being instructed about admitted mobile phone use, he would not have found the presence of a mobile phone in a particular instance.
The OAS camera in the cabin of the haul truck emits infrared light, but it could not be the source of the flashes and dots of infrared light seen on Ms Saunders’ face because those flashes and dots are only present in some of the images, whereas the infrared light from the OAS camera is continuously present.
Although the OAS system has as its principal purpose the detection of fatigue and distraction events, it is capable of detecting infrared light and can therefore be used as evidence in support of a finding of mobile phone use.
Footage from a forward facing camera in a haul truck would not have assisted in the task of determining whether the flashes and dots of light seen on Ms Saunders’ face were from an iPhone because (i) Dr Rogers formed the opinion, based on the inverse square law, that the source of the infrared light was in the cabin of the truck and (ii) it is unlikely that the forward facing camera would have the same clock syncronisation as the OAS camera, which would be required for the forward facing camera to be of any potential use.
Mr Murphy reviewed each of the 10 pieces of video footage relied on by Bengalla and expressed opinions about what he observed. As to the five videos where Dr Rogers opined that the light viewed in the footage is clearly indicative or likely indicative of the presence of a mobile phone, Mr Murphy expressed the following opinions:
Video Dr Rogers Mr Murphy SJ-14 Clearly indicative An alert is likely to have been triggered by the operator looking to her right.
I observe short flashes on her face and her looking to her right hand side. I would have concluded that there is not enough confirmation of interaction with a mobile phone device. I would need more evidence, for example observing directly interacting with a mobile phone, including through smart watches, or more prominent flashes with pixelations/dot projections. I would not have called this through as a mobile phone interaction/use.
I probably would also have looked at the front camera footage for a reflection of the phone on the glass on the front screen.
In my experience, phone use requires longer periods of flashes. I observe here that the operator looks only very briefly to her right and otherwise focuses on the road ahead for most of the video. When she looks to her right, I cannot see the direction of her eyes. Overall, there is not enough footage here to conclude that the operator was responding to any signal from a phone.
Overall, the footage is inconclusive as to the use or interaction with a PED.
SJ-8 Clearly indicative The videos I escalated were far more prominent, because the flashing is brighter, reflects of their faces, pixelation.
There is no pixelation/dot projection that is sufficient to conclude that there was an interaction with a PED or that a PED was present. The event is more behavioural as she is looking down and eating but since she is keeping her eyes on the road, I would not have escalated the event.
Since it is dark outside, any flashing from a mobile phone detection should be much more prominent and there should be pixelation/dot projection for me to raise concerns.
SJ-10 Clearly indicative I can see flashes of light. Because of the lack of pixelation or visible dots on the operator’s face or other bright areas, I would have rated this as an environmental cause such as lights coming in from the outside. I would not have rated this is indicative of phone use or the presence of a mobile phone. SJ-11 Likely indicative I can see fainter flashes of light but no dot projection. For the same reason as in SJ-10, I would have concluded that there were environmental causes and not the presence of a mobile phone. If there was an alert triggered, it would have been because the operator looked to her right and the system could not detect her eyes. SJ-12 Likely indicative I can see quite faint flashes of light on the operator’s face but no dot projection. For the reasons as in SJ-11, I would conclude that there are reasons other than the operation of a mobile phone to trigger an alert. There is not enough light present to trigger an event other than the operator looking at her side. I would not have assessed this to be conclusive of the presence of a mobile phone.
Mr Murphy accepted in his oral evidence that he had not inspected Bengalla’s processes or the technology used at the Mine and he could not rule out that the technology used by Bengalla is different to that used by Glencore.
Although Mr Murphy was not asked to agree to an expert code of conduct in connection with the preparation of his witness statements, I consider that, having regard to his experience and training, he was able to provide expert opinion evidence in relation to what he observed in the 10 videos in question in these proceedings.
To the extent that Dr Rogers and Mr Murphy differ in their opinions in relation to the five videos where Dr Rogers says that the footage is clearly indicative or likely indicative of a mobile phone in the cab of the truck, I prefer Dr Rogers’ evidence for the following reasons:
(a)Dr Rogers is a highly qualified expert with particular expertise and knowledge in relation to the science of optics. Although Mr Murphy has experience and some training in detecting the use of mobile phones in the mining industry, I do not consider that he has the same level of expertise and knowledge as Dr Rogers in relation to the science of optics. This is important in circumstances where Dr Rogers has been able to persuasively counter evidence given by Mr Murphy on the basis of scientific principles. For example, Dr Rogers applied his knowledge of the inverse square law to explain why the source of infrared light seen on Ms Saunders’ face in the videos is from a source from the inside the cab of the truck, rather than a potential source outside the cab, as opined by Mr Murphy;
(b)Dr Rogers did not just look at the video footage. He used video editing software to look at the videos frame by frame. He also undertook investigations, such as by using pixelwise digital imaging subtraction to compare two still frames in order to validate his opinion that there was a flash of brightness of infrared light on Ms Saunders’ face;[15]
(c)Dr Rogers explained Mr Murphy’s concern about a lack of dots on Ms Saunders’ face on the basis that 30,000 dots are projected by the Apple FaceID system when an iPhone is in training mode, but when the phone is used after the training mode is complete fewer than 30,000 dots are required to unlock the iPhone;
(d)I consider that in both his expert reports and his oral evidence Dr Rogers presented as a careful and cautious expert. He was not willing to express a conclusion or opinion if the video footage did not contain clear enough details to enable him to reach the requisite degree of scientific confidence. Nor did he seek to offer an opinion if the question was outside his field of expertise;
(e)I consider that Dr Rogers had conviction for the opinions he expressed, but he did not, as suggested on behalf of Ms Saunders, become biased or an advocate for Bengalla. I consider that he upheld his duty as an independent expert. Nor do to I accept that Dr Rogers’ opinions were determined or influenced by the instructions given to him. I accept Dr Rogers’ evidence that he examined the video footage provided to him and drew his own conclusions, for his own reasons, about what he saw; and
(f)Those providing instructions to Dr Rogers only gave him one of the 10 available videos in connection with his first report. Dr Rogers was only provided with the other 9 videos when he was asked to prepare his second report. While I accept that it would have been preferable to provide Dr Rogers with all 10 videos at the time he prepared his first report, I do not consider that providing the balance of the videos only in connection with the second report tainted or impugned the opinions expressed by Dr Rogers in his second report. I am satisfied that Dr Rogers took his responsibility to view the material provided to him seriously and express opinions based on his assessment of that material. The first video provided to Dr Rogers showed, in his opinion, the likely presence of a mobile phone. Some of the other nine videos provided to Dr Rogers in connection with his second report satisfied him to the same extent, while others did not.
Consideration of valid reason
I am satisfied on the balance of probabilities, having regard to the Briginshaw standard, that there was a mobile phone turned on in the cab of a truck with Ms Saunders on the five occasions where Dr Rogers expressed the opinion that the video footage is clearly indicative or likely indicative of a mobile phone in the cab of the truck. I make that finding for the reasons explained by Dr Rogers in relation to each of those five videos. It should also be noted that this finding is consistent with Ms Saunders’ own evidence that her mobile phone turned itself on, on at least two occasions, when she was driving at truck at the Mine.
I am not persuaded on the evidence that a mobile phone was present in the other five videos. I make that finding for the reasons explained by Dr Rogers in relation to each of those five videos.
Finding that a mobile phone was turned on in the cab with Ms Saunders does not establish that Ms Saunders used or interacted with her mobile phone while driving a truck.
Having repeatedly viewed the video footage in question, I am satisfied that the five videos in question show Ms Saunders repeatedly looking to her right in a downward direction. This is consistent with some of Ms Saunders own answers to questions put to her in the investigation meeting when she was shown the videos and asked to comment on what she was doing, including that she may have been getting food, drink, tablets or a book from her crib bag. There is no dispute that Ms Saunders’ kept her mobile phone in her crib bag, which was located on the seat of the cab, while she was driving a truck at the Mine.
In addition to the videos showing Ms Saunders looking repeatedly to her right in a downward direction, they also show that, at times when she was looking in that direction, infrared light was flashing on her face or infrared dots appeared on her face. This suggests that Ms Saunders was looking in the direction of her mobile phone and it was turned on at the time. Ms Saunders has not provided any cogent explanation as to what could have caused the infrared lights on her face, apart from her mobile phone.
I consider that Ms Saunders’ credibility in relation to her denial that she interacted with her mobile phone whilst driving a haul truck at the Mine is diminished by reason of the following matters:
(a)Ms Saunders maintained during her investigation interview on 18 June 2024[16] and her show cause response dated 28 June 2024 that her phone was always turned off and kept in the back pouch of her crib bag.[17] It was not until Ms Saunders prepared her witness statement in reply, on 28 November 2024, that she admitted that “the phone turns itself on automatically once it is sufficiently charged. I have noticed at times that the screen lights up when it is in my bag.”[18] Having regard to Ms Saunders’ evidence that she was shocked when she discovered that her phone had automatically turned itself on while she was driving a haul truck, that occurrence stuck with her, and she had to figure out what had happened, it is difficult to accept that Ms Saunders could have forgotten in June 2024 that her phone had “at times” turned itself on while it was in her bag in the cab of a truck at the Mine.
(b)Ms Saunders’ evidence about how many times her phone had turned itself on while she was driving a truck at the Mine was unconvincing and inconsistent. During the hearing on 3 December 2024, Ms Saunders gave evidence that her phone would turn itself on “every time” its battery was flat and it was plugged in to a battery pack.[19] Ms Saunders then gave the following evidence (also on 3 December 2024):[20]
“Now, if you can say with certainty, Ms Saunders, as you have, that on each occasion your phone is dead and you plug it into a battery pack you will turn itself on, that would mean that each time your phone was dead and you took it into the cab with you, and you plug it into the battery pack, you knew that in the course of that particular stint of driving it would turn itself back on?--- I worked it out in the end, obviously. I didn’t really know, I thought it was just clicking itself on in the – bouncing around in the bag. I didn’t know what was making it turn on. Then I think it might have been the battery recharging the did it.
Okay. So, Ms Saunders, you just said that she figured it out, and that you’d seen the phone turn on when it did?---Yes.
So you’d seen your phone turn on, on occasions that you are driving the truck?---Occasionally I had seen in turn on.
Okay. So?--- Well, I saw a flash of light that made me believe that perhaps it was turned on.
Well, which is it, Ms Saunders? Is it that you knew that it had turned on or that you believe it would turn on after being plugged in?---I – I saw that it did.
…When you observed this happen, you knew that your phone was turning on?--- I thought that’s perhaps what it was, yes.
So you don’t know that that’s what happened?---I did in the end, but to start with I wasn’t sure what was happening.
Okay. Roughly how many occasions?---I’m not that…
…has this happened?---I couldn’t say. I couldn’t say.
So you’d be driving and you would see your phone light up?---Not always.
Okay. On some occasions you would plug your phone into the battery pack, you would get in your truck, you would start driving and then you’d see your phone light up?---Yes. I put it all down in the back of my bag, plug it all in and it did what it did down there. I guess if it was dark, I may have seen it flash. If it was daylight I wouldn’t have known it was back on until I stopped again to see my phone.
Okay. So you’d stop and then you’d realise that your phone was turned on?---When I got back out of the truck and… Went to look for it, it would have been turned back on.
So, from that process, you understood that your phone had turned itself on while you were driving?---That’s correct.
So when you told Mr Kent at all times when you drive your phone is off, that wasn’t right, was it, Ms Saunders?---It wasn’t quite correct, no.
After the first time that’s happened, Ms Saunders, you’ve pieced together this puzzle, where you understand that your phone is dead, you plug it into the battery pack and then the phone will turn itself on?---Yes.
You have then, on another occasion, taken the dead phone into the cab with you, plugged it into the battery pack and started driving, haven’t you?---Yes, I have.
And you did that knowing the phone would turn on?---But if I wasn’t interacting with it, it wasn’t…
Ms Saunders that’s not my question. You knew the phone would turn on?---Yes.
You knew your phone would turn on whilst you are driving a truck?---Yes.”
(c)In her further statement made on 19 December 2024, Ms Saunders relevantly stated:[21]
“I refer to paragraph 11 in A-2 in which I mention the use of a battery pack. I used the battery pack twice to charge my completely discharged mobile phone in the cabin. I connected the phone to the battery pack in the crib hut when I noticed it was totally discharged. I then placed the phone and the connected battery pack in my bag. When I found that the phone had turned itself on the first time, I did not make a connection that this happened because of the battery pack. When it happened a second time, I realised that the reason was the battery pack, and I stopped using the battery pack in the cabin. I did so because I was aware of the prohibition on having a mobile phone on in the cabin and I wanted to make sure that I do not breach the policy.
The two times mentioned above are the only times that I am aware of having my mobile phone turned on and, on each occasion, I did not do so intentionally.”
(d)This evidence is inconsistent with the evidence given by Ms Saunders on 3 December 2024, in that (i) on 3 December 2024 Ms Saunders could not say “roughly” how many times her phone had turned itself on in the cab of a truck after being plugged in to a battery pack, yet on 19 December 2024 Ms Saunders was apparently able to recall that it had only happened on two occasions and (ii) on 3 December 2024 Ms Saunders accepted that she had taken her phone with a flat battery into the cab of a truck, plugged it in to the battery pack and started driving, knowing that the phone would turn itself on, yet on 19 December 2024 Ms Saunders stated that the first time her phone turned itself on she did not make the connection that it happened because of the battery pack and it was not until the second time it happened that she realised the reason was the battery pack.
(e)At the hearing on 11 February 2025, Ms Saunders gave evidence that she could not recall when she bought her battery pack for her phone, she could not recall the dates of the two occasions when her phone had turned itself on in a truck at the Mine, and she was not sure whether these events had occurred during daytime or nighttime but she thinks it may have been daytime.
In light of the matters set out above, I do not accept Ms Saunders’ denial that she did not interact with her mobile phone while driving a truck at the Mine. Having regard to all the evidence, I have reached a state of satisfaction that, on the five occasions where Dr Rogers expressed the opinion that the video footage is clearly indicative or likely indicative of a mobile phone in the cab of the truck, Ms Saunders interacted with her mobile phone while driving a truck at the Mine. The interactions involved Ms Saunders looking at whatever information was displayed on her phone while it was turned on in the cab of the haul truck. Interacting with a mobile phone while driving a haul truck on the Mine is a serious breach of the Policy. It provided Bengalla with a sound, defensible and well-founded reason to terminate Ms Saunders’ employment.
As to Bengalla’s secondary case, there is no dispute that there are at least two occasions on which Ms Saunders drove a truck at the Mine with her phone turned on. This constituted a breach of the Policy. I am satisfied that this did not constitute an innocent breach of the Policy because Ms Saunders accepted in her evidence on 3 December 2024 that she took her ‘dead’ phone into the cab of a truck, plugged it into the battery pack and started driving, knowing that the phone would turn on. It follows, in my opinion, that this breach of the Policy also gave Bengalla a valid reason to terminate Ms Saunders’ employment, particularly having regard to the safety critical nature of the mining industry and the significant risks which may be created if a mobile phone, turned on, distracts an operator while driving a haul truck.
Notification of reason (s 387(b))
Ms Saunders was notified of the reason for her dismissal insofar as it involved her interaction with a mobile phone while driving a truck at the Mine, both orally and in writing, during the investigation process, in the show cause letter dated 21 June 2024 and in the letter of termination.
At no time prior to her dismissal was Ms Saunders notified of an alleged breach of the Policy by reason of her driving a truck with her mobile phone turned on. Notification of such a reason was not communicated to Ms Saunders prior to her dismissal because Bengalla was not aware of the conduct until Ms Saunders served her reply witness statement on 29 November 2024.
Ms Saunders contends that she had difficulties in responding to 10 video footages dating back over six months, which gave rise to procedural unfairness. This does not bear on whether Ms Saunders was notified of the reason for her dismissal. I will take into account the procedural fairness argument under s 387(h) of the Act.
Opportunity to respond (s 387(c))
During the investigation process Ms Saunders was given opportunities to respond, and did in fact respond (including in her response to the show cause letter), to the reason for her dismissal insofar as it involved her interaction with a mobile phone while driving a truck at the Mine. Those opportunities included being shown the footage on which Bengalla relied and being asked to explain the features of the footage which were of concern to Bengalla. Ms Saunders was also invited to partake in the re-enactment, but she declined and chose to be represented by a MEU delegate.
Ms Saunders contends the reference by Bengalla to information provided by unnamed persons, including their purported admissions to mobile phone use, made any meaningful engagement with Bengalla’s allegations very difficult. I do not accept this contention. The allegations of use of her mobile phone while driving a haul truck were clearly put to Ms Saunders and she responded to those allegations. One of a number of matters put to Ms Saunders during the investigation was the similarity between Ms Saunders’ actions while driving a haul truck and allegedly looking at her mobile phone and the actions of other employees who had admitted to using their mobile phone while driving a haul truck. I do not consider that there was anything inappropriate about putting this to Ms Saunders for her response during the investigation.
At no time prior to her dismissal was Ms Saunders given an opportunity to respond to an alleged breach of the Policy by reason of her driving a truck with her mobile phone turned on. No such opportunity was given because Bengalla was not aware of the conduct until Ms Saunders served her reply witness statement on 29 November 2024.
Unreasonable refusal to allow a support person (s 387(d))
Ms Saunders had a MEU delegate present as her support person in all meetings regarding the alleged misconduct and her subsequent dismissal.
Ms Saunders contends that the MEU delegate who attended the meetings as her support person was not allowed to assist in the discussions relating to her dismissal in the sense contemplated by the Act. I will consider this issue under s 387(h). It does not bear on whether or not Bengalla unreasonably refused to allow Ms Saunders to have a support person present to assist in any discussions relating to her dismissal.
I am satisfied that there was not any unreasonable refusal by Bengalla to allow Ms Saunders to have a support person present to assist in any discussions relating to her dismissal.
Warnings of unsatisfactory performance (s 387(e))
Ms Saunders was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
Bengalla is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of Bengalla’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Ms Saunders’s dismissal.
Other relevant matters
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:[22]
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and her or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with her or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
Ms Saunders submits that she was employed by Bengalla at the Mine for over 16 years. In addition, she worked at the Mine through a labour hire agency for another three years before becoming a direct employee of Bengalla. During her 19 years working at the Mine, Ms Saunders only received one warning (in 2010). Overall, I accept that Ms Saunders had a good employment record prior to the misconduct which resulted in her dismissal. The length and quality of Ms Saunders’ employment with Bengalla weighs in support of her contention that her dismissal was harsh.
Ms Saunders submits that the impact of the dismissal on her was dramatic, including the emotional and financial toll the dismissal has taken on her and the difficulties she has experienced in obtaining other employment. Ms Saunders submits that her dismissal was harsh in its consequences for her personal and economic situation.
Bengalla contends that Ms Saunders’ dismissal was not harsh. It submits that the seriousness of the misconduct, Ms Saunders’ repeated denials that she had used her mobile phone, the absence of any remorse, and the potential risks the misconduct presented to the safety of others at the Mine, all suggest that her dismissal was an entirely appropriate response. In addition, Bengalla points to the fact that, in Ms Saunders’ final pay, she received an additional payment of two weeks’ remuneration and Ms Saunders has only applied for one job since her dismissal.
I accept that the dismissal has been difficult for Ms Saunders both personally and economically. However, I consider that the seriousness of the conduct in which I have found that Ms Saunders engaged outweighs the harsh consequences of the dismissal insofar as it has impacted on Ms Saunders’ personal and economic situation. Not only was it dangerous for Ms Saunders to drive a haul truck at the Mine while having her phone turned on and interacting with it, the extent to which Ms Saunders is seen in the video footage to be looking down and to her right while driving the truck is concerning. It shows an operator who is distracted and not paying sufficient attention to hazards which may be in front of the truck. My assessment is that Ms Saunders’ dismissal was not disproportionate to the gravity of her misconduct.
I am satisfied on the evidence that Bengalla undertook a fair investigation and afforded Ms Saunders procedural fairness prior to making the decision to terminate her employment. It was not until June 2024 that Mr Jackson became aware of video footage showing potential use by Ms Saunders of her mobile phone. Mr Jackson then reviewed earlier video footage and found other instances, dating back to January 2024, of potential mobile phone use. It was appropriate for those videos to be shown and, in some cases, re-shown to Ms Saunders during the investigation meeting. Ms Saunders was asked to explain what she was doing in the video footage. I accept that it would have been very difficult for Ms Saunders to recall, in June 2024, what she may have been doing on a particular shift in or about January 2024, even after seeing the video footage. That is why Ms Saunders came up with a range of potential explanations for her behaviour. Ms Saunders was also given a copy of the video footage and had time to review it before submitting her detailed show cause response. In my view, it was not inappropriate for Bengalla not to permit Ms Saunders’ support person to take a speaking role or act as an advocate during the investigatory meeting. It was open to Ms Saunders, or her support person, to seek a break or time to have a private discussion during the investigatory meeting so that the support person could provide advice or suggestions to Ms Saunders. I am satisfied that Bengalla acted reasonably in re-enacting the different potential explanations put forward by Ms Saunders for the light shown on her face in the videos. Ms Saunders was given the opportunity to participate in those re-enactments. She elected not to participate. Ms Saunders was given a fair opportunity, prior to her dismissal, to respond to Bengalla’s contention that she interacted with her phone while driving a haul truck at the Mine. She did not have the opportunity to respond to the contention that she breached the Policy simply by having her phone turned on while she was driving a haul truck at the Mine. But that was because Ms Saunders did not communicate to Bengalla, at any time prior to her dismissal, that her phone had been on while she was driving because it had turned itself on after being attached to a battery pack. Because Bengalla was not aware of this contention by Ms Saunders prior to 29 November 2024, it was not procedurally unfair not to put this contention to her prior to her dismissal. Finally, I consider that Mr Kent did not have a ‘closed mind’ during the investigation; he considered the material available during the investigation, including the video footage, Ms Saunders’ explanations, and the results of the re-enactment.
Much was made at the hearing of the fact that Bengalla did not use a system which was available to it in order to detect mobile phone use at the Mine. Bengalla has a system known as Transit Hound in its haul trucks at the Mine. Transit Hound detects 3G or 4G signals, which means that it can detect the use of a mobile phone. Bengalla made a decision to cease using Transit Hound for the purpose of detecting the use of mobile phones at the Mine because it found that haul trucks emit 3G or 4G signals, with the result that it was not possible to determine whether a positive detection by the Transit Hound system of a 3G or 4G signal was due to mobile phone use or the 3G/4G signal being emitted by the truck. Bengalla experienced about 65 such positive detections per hour per truck at the Mine. Given there are about 40 trucks at the Mine, it was not practicable for Bengalla to sift through all these positive detections to try to work out whether they might have come from a mobile phone. Having regard to those circumstances, I consider that Bengalla’s decision to cease using Transit Hound for the purpose of detecting the use of mobile phones at the Mine was a reasonable one.
Conclusion
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Bengalla’s dismissal of Ms Saunders was not harsh, unjust or unreasonable. There have been many instances where employees have been seriously injured or killed in the mining industry as a result of drivers of haul trucks not paying sufficient attention to the task of safely operating the truck. Distracting events such as personal mobile phones being turned on and interacted with increases the risk of such events occurring. It follows that the requirements of the Policy, insofar as it concerns mobile phones, are reasonable and soundly based. Bengalla is entitled to require its employees to adhere to the Policy. Ms Saunders contravened the Policy in a serious, not trivial, manner. I am also satisfied that Bengalla undertook a reasonable investigation and afforded Ms Saunders procedural fairness before making its decision to terminate her employment.
For the reasons given, Ms Saunders’ application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
S Mueller, Legal Officer of the MEU, for the Applicant
J McLean, of counsel, with M Cameron, solicitor, for the Respondent
Hearing details:
2024-5.
Newcastle:
3 December and 11-13 February.
[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
[2] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[3] Ibid
[4] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[5] Ibid
[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[7] Ibid
[8] Ibid
[9] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
[10] [2019] FCA 451
[11] Ibid at [18]
[12] Hearing Book at p 806
[13] Hearing Book at pp 806-808; Ex A10
[14] Ex A10
[15] Hearing Book at p 2974
[16] Hearing Book at pp 806-7
[17] Hearing Book at p 816
[18] Hearing Book at pp 38[11] and 2930 PN317
[19] Hearing Book at p 2930 [325]
[20] Hearing Book at pp 2931-2933 PN334-PN354
[21] Hearing Book at p 2953[3]-[4]
[22] [2013] FWCFB 6191
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