Michael Kenny v BHP Coal Pty Ltd
[2015] FWC 4231
•13 NOVEMBER 2015
| [2015] FWC 4231 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Kenny
v
BHP Coal Pty Ltd
(U2014/16001)
COMMISSIONER BOOTH | BRISBANE, 13 NOVEMBER 2015 |
Termination of employment – arbitration – Reinstatement, Continuity of employment and compensation.
[1] Mr Michael Kenny made application for unfair dismissal relief under s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Kenny worked as an electrician for BHP Coal at the Goonyella Riverside Mine (the Mine) near Moranbah until his termination on 2 December 2014. He had been employed continuously with BHP Coal since December 1986, almost 28 years.
[2] BHP Coal’s case is that it had a valid reason to terminate Mr Kenny's employment after a vehicle rollover and two earlier failures (on the same shift) by Mr Kenny to complete safety requirements. BHP Coal asserts it lost confidence in Mr Kenny’s ability to work in a safe manner. He was dismissed and paid in lieu of notice.
[3] Mr Kenny submitted the dismissal was unfair, and seeks to be reinstated to his position with ancillary orders about continuity of employment and restoration of the lost pay.
[4] He was represented by Ms Hartigan of Counsel instructed by Ms Pat Rogers of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and BHP Coal by Mr Hall of Ashurst Australia.
Facts
[5] Mr Kenny’s night shift was due to run from 6.00pm on 29 October 2014 to 6.15am the next morning.
Storm at the start of shift
[6] Mr Kenny was a passenger in a vehicle with other crew members driving to the site when a storm broke out, bringing winds, rain, hail and dust. The driver pulled off the road until visibility improved sufficiently to drive safely, some 30 minutes later. As a result the routine for the start of the shift was disrupted. Mr Kenny checked with the crew he was relieving, warning them of potential hazards arising from the storm, and checking work requirements for the shift ahead.
[7] He neglected to complete the Occupational Safety Performance Assessment Technology (OSPAT) Test, a mandatory fitness for work test then in use at the Mine. It is not contended that he was impaired or unfit for work. Later drug and alcohol tests were negative.
A second storm
[8] Mr Kenny commenced a pre-start check of the vehicle he was to use during his shift, a Toyota Landcruiser utility. The vehicle was parked in the open. He noted there were no issues recorded in the checklist from the previous shift. His evidence is that he completed the external checks, and checks of the brakes, steering, tyres and seat belts. He was still to check fluid levels, belts, brakes, lights, first aid and safety equipment, two-way radio and dashboard instruments when a dust storm arose. He returned the checklist book to the vehicle and took shelter in the workshop. While waiting for the storm to abate, he commenced his scheduled work with another electrician, Mr Walton, modifying equipment that was to be fitted to a dragline that evening.
[9] The weather alerts continued until about 7.50pm. Access was then permitted to the mine site. Mr Kenny and Mr Walton loaded the equipment they had been modifying onto the vehicle and drove off to fit it to the dragline. Mr Kenny admits that he failed to complete the balance of the pre-start check before setting out, saying the omission was inadvertent resulting from the disruption caused by the storms.
Vehicle rollover
[10] Over the course of performing of his duties, Mr Kenny had driven along a particular unsealed road four times. Mr Walton was a passenger. On his fifth trip at about 1.15am, while Mr Walton was on a scheduled break, Mr Kenny was driving alone when the vehicle rolled. He was uninjured in the incident. Mr Kenny was driving at about 60 kmph or maybe a little faster at the time of the rollover. The posted limit was 80 kmph.
Discipline and dismissal
[11] Mr Kenny was called on to show cause, by letter of 24 November 2014, why his employment should not be terminated. The letter, signed by Mr Swinnerton, the General Manager of the Mine, stated the findings of an investigation to be:
- You failed to complete OSPAT before the start of the shift.
- You failed to complete a Pre-start before operating the Light Vehicle in accordance with relevant site requirements.
- The root cause of the incident was your unsafe operation of the Light Vehicle. In particular, the Light Vehicle has rolled over because you made a highly dangerous sharp left turn [10-15m prior to soft spot] and you were also driving in the centre of the road. The manner in which the vehicle was driven was inconsistent with the requirement to drive to the conditions, which include the potential to encounter soft spots.
- You reported incorrect information during the investigation regarding completion of the OSPAT. 1
[12] The letter went on to state that Mr Kenny’s actions constituted misconduct contrary to certain requirements of BHP Coal. Mr Kenny was given until 5.00pm 26 November to respond. Time was extended at Mr Kenny’s request and a response was given on 27 November. 2
[13] Mr Swinnerton, by letter of 2 December 2014, dismissed Mr Kenny citing “multiple failings” on his part including his:
… failure to complete OSPAT, the failure to undertake a vehicle pre-start check, and … failure to drive in a safe manner… The company has found the root cause of the incident was the dangerous sharp left turn you made, and … that this is an error that would not have been made by a reasonable coal mine worker. … you have failed to drive to the conditions...
[14] The letter of dismissal also stated:
“… I unfortunately no longer have confidence in your ability to work in a safe manner at the Mine, and have decided to terminate your employment effective immediately.”
[15] Neither the show cause nor the dismissal letter referred to the speed at which Mr Kenny drove or the line he was driving on the road.
Investigations
[16] BHP Coal dismissed Mr Kenny after several investigations and reports including the following:
- Mr Kenny reported the rollover by two-way radio.
- Mr Kenny submitted himself to mandatory drug and alcohol tests. The results were negative to the presence of drugs and alcohol.
- Mr Monteith interviewed Mr Kenny in the first aid room at about 2.00am, and Mr Hoare met with Mr Kenny at about 2.30am.
- Messrs Monteith, Hoare and Kenny then visited the rollover site. Mr Monteith and Mr Hoare made observations, placed signs and traffic cones and took photographs (lights had apparently been placed at the scene).
- At about 4.30am, Mr Kenny was interviewed by Messrs Hoare and Girle, in the company of a union delegate.
- Mr Monteith, in Mr Kenny’s company, completed an information gathering form that Mr Kenny signed.
- Mr Hoare attended the scene again at about 7.00am to take photographs, and arranged for a survey to be completed.
- Mr Monteith and Mr Hoare interviewed Mr Kenny on 5 November.
- An Incident Cause Analysis Method (ICAM) investigation 3 was conducted on 6 November (first ICAM)4 by Messrs Briffa, Hoare, Meikle, Monteith, Taylor and Zonca. The root cause identified in the ICAM was “a large soft spot (bull dust) 25m long x approximately 2.5m wide and 150mm in depth”.5
An expert report into the rollover was prepared by Mr David Tulloch. The report was commissioned by Mr Hoare on 6 November and received by him on 7 November. 6 An addendum report was commissioned for the purposes of these proceedings. Neither report is dated.
- A second ICAM on 10 November was conducted by Messrs Hoare, Monteith, Taylor and Zonca. Mr Tulloch’s report was considered at the meeting. This ICAM concluded contributing factors to be the soft spot and the lack of electronic stability control on the vehicle, but revised the root cause to be a poor decision and over-reaction by Mr Kenny. 7
- A management review of the second ICAM took place later on 10 November, attended by Messrs Zonca, McDonald and Hoare. This third ICAM analysis did not change the contributing factors or root cause.
- Mr Kenny was again interviewed on 17 November by Mr Hoare and Mr Girle, and on 19 November by Mr Swinnerton and Mr Girle.
- Mr Kenny was called on to show cause on 24 November.
- Mr Kenny provided a response to the show cause letter on 28 November.
- A further review of the third ICAM was conducted on 28 November at about 5.00pm by Mr Swinnerton and other managers, 8 resulting in a significantly revised fourth ICAM document. This was the first time Mr Swinnerton became personally involved in the ICAM.9 The root cause was now determined to be Mr Kenny’s “poor decision to sharply turn vehicle at speed”10. This ICAM took place after Mr Kenny’s show cause response.
Earlier rollovers
[17] There had been four earlier light vehicle rollovers between July 2014 and September 2014. Each was considered preventable, the various causes including driver inattention, speed and fatigue. 11 Two incidents involving contractors resulted in each contractor’s site access being revoked. The incidents involving BHP Coal employees both appeared to involve driver error. They resulted in (i) a step 3 final warning and revocation of light vehicle licence; and (ii) a final written warning.
[18] These earlier incidents resulted in Mr Swinnerton issuing an announcement reminding coal mine workers of their responsibilities, among other things, to assess hazards, drive to speed limits, and attend to the task and drive to conditions. The announcement warned:
Failure to do so will result in disciplinary action and/or dismissal … Remember: YOU have the responsibility to ensure that you adequately assess the associated hazards when driving around the mine site, that you drive to the posted speed limits, that your attention is the task that you are doing and most importantly that you DRIVE TO CONDITIONS. 12
[19] BHP Coal’s evidence was that this announcement did not change policy, but merely restated it.
Relativity
[20] Mr Kenny’s case includes the relative treatment of those involved in the earlier rollovers especially that employees involved in the earlier rollovers were not dismissed. 13
[21] Mr Kenny had never previously been the subject of any form of counselling or disciplinary action, and had never been involved in a serious driving incident at work or privately.
Applicant’s evidence and submissions
[22] Evidence was given in these proceedings for the Applicant by Messrs Kenny, Chant, Meikle, Walton, Reynolds and Byrne.
[23] Mr Kenny submitted there was no valid reason for his dismissal. He contended the failure to complete OSPAT and pre-start check was inadvertence, arising from the disrupted start of his shift. His evidence is that the rollover was an accident, caused by factors beyond his control, and not a deliberate act or negligence on his part.
[24] His evidence about the rollover, in his statement, was as follows:
23. I was driving to collect my specially insulated reading glasses when I drove the vehicle into a hole that was filled with bulldust. The hole was not visible because the wind had blown the bulldust in the hole so that it was flat and appeared to be part of the usual road surface.
24. As the vehicle entered the hole the front wheels pulled sharply to the left. I did not turn the vehicle to the left; the wheels pulled to the left. I believe that the soft bulldust affected the steering…
25. As I was not sure whether taking evasive action would make the situation worse I allowed the vehicle to slide hoping it would come to a halt.
[25] This evidence is consistent with previous statements made by Mr Kenny, including his response to the show cause letter, 14 the information gathering form filled by Mr Monteith and signed by Mr Kenny shortly after the rollover;15 Mr Hoare’s evidence of what Mr Kenny told him immediately after the rollover;16 and Mr Montieth’s diary entry of that discussion.17
[26] Mr Kenny has also consistently maintained that he drove towards the centre of the road (rather than to the left of the road) because he thought the road to the left had recently been watered and he sought a safer, dry line of driving. 18
[27] Mr Kenny was not given access to Mr Tulloch’s report nor to the ICAM reports before his dismissal, although he was given synopses. 19
[28] On the non-completion of OSPAT Mr Kenny stated:
“I would normally complete the test on the Occupational Safety Performance Assessment Technology (OSPAT) Test prior to starting work. However, because of the various disruptions to the start of my shift, on this occasion I forgot to complete the necessary test.”
[29] As to the incomplete pre-start check Mr Kenny submitted “it became clear that the normal pre-start routine would be disrupted due to the weather”.
[30] He acknowledged he failed to complete the pre-start check once normal work was possible, but it was as an oversight. He said he had completed all the critical checks of the vehicle. 20
[31] Prior to the rollover Mr Kenny submitted he had driven the particular route four times previously that night and had only encountered a hard compacted road surface.
[32] He deposed he must have taken a slightly different track, perhaps only by several metres before he drove into a hole filled with bull dust. The hole was not visible because the wind had blown the bull dust so that the hole was flat and appeared to be part of the usual road surface.
[33] Mr Kenny also gave evidence about the way the vehicle was loaded, possibly contributing to the rollover. The vehicle was loaded on the right-hand side with a toolbox containing tools and consumables, two 20 litre containers of water and heavy cabling equipment. Mr Kenny suggested this loading would have contributed to the rollover.
[34] Mr Kenny considers the weight of these combined with his weight, also on the right-hand side of the vehicle, the vehicle’s raised suspension, and poor road conditions on the night were significant contributing factors to the vehicle rolling.
[35] On driving towards the centre of the road, Mr Kenny deposed as follows:
… it was clear to me from looking at the road that a water truck had travelled this route some time previously and I believed that I was driving towards the centre of the road to take advantage of a “dry line” and to minimise the risk of an accident. The hole in the road hidden as it was by the covering of bull dust, was totally unexpected.
[36] He deposed that the cause of the rollover was an accident not his failure to drive in a safe manner. In support of this he deposed as follows:
- he was travelling well below the speed limit;
- he had driven the road several times early on the night of the accident and had not seen anything to indicate there was a hazard in that part of the road;
- he had not been advised by BHP Coal that there was a hazard in that part of the road;
- driving the dry line was safer than driving in possibly wet conditions further to the left.
[37] Mr Meikle, an Open Cut Examiner and Site Safety Health Representative employed by BHP Coal and associated entities, gave evidence about the first ICAM (which he attended) and the use of OSPAT. Mr Meikle did not know Mr Kenny.
[38] Mr Meikle’s evidence was that bulldust holes of the size encountered by Mr Kenny are a hazard. They would not be expected. Such holes should be marked and signed as hazards. 21 In his view, the fact that Mr Kenny reduced his speed to 20 kph below the limit indicated that he was driving to conditions, including by driving towards the middle of the road.22 He further noted that the speed limit on the road had been reduced to 60 kph since Mr Kenny’s rollover.23
[39] Other witnesses called for Mr Kenny, including Messrs Walton, Reynolds and Byrne, gave evidence as to the state of the roads, the prevalence of bulldust and other hazards, driving conditions and practice at the Mine, and detectability of bulldust. Mr Chant, a union delegate gave evidence of meetings he attended in support of Mr Kenny.
[40] Mr Walton’s statement confirmed Mr Kenny’s evidence of the early storm, that he saw Mr Kenny commence the pre-start check, and that he was interrupted by the later storm, and that he and Mr Kenny undertook the workshop activities before loading the vehicle and attending to the dragline. 24 He gave evidence of the journeys he took with Mr Kenny over the road before the rollover.
[41] Mr Taylor was the open cut examiner on duty the night of the incident. He had driven the road in question but only in the opposite direction and could not see the other side of the road. His evidence was that the road was not receiving maintenance, as it was not at that time an active haul road. 25 To the best of his knowledge the bulldust patch was not noted as a hazard.26
[42] His observation at the scene was that the tracks were straight in the first 5m of bulldust then veered left where the bulldust was deepest. 27 In his experience and belief, Mr Kenny could not have done anything to prevent the accident. He attributed the road conditions as the major contributing factor.28
The Respondent’s evidence
[43] BHP Coal’s evidence was provided by Messrs Monteith, Briffa, Lewis, Hoare, Swinnerton and Tulloch.
[44] Mr Tulloch, a traffic incident expert, attached two reports to his statement. The first was prepared shortly after the rollover on the basis of information provided to him by BHP Coal. He did not undertake a site visit at the time and did not obtain material from, nor interview Mr Kenny, relying on a “driver version of incident supplied through a 3rd party”. He was not provided information as to the measured depth of the bulldust, 29 and conceded the first report was a “simple report”.30
[45] In that first report Mr Tulloch concluded that the incident was a relatively low speed rollover, and that the speed was not excessive or inappropriate for the conditions. He concluded that:
- The direct cause of the incident is aggressive left steer input by the driver immediately prior to (about 10-15m) from the unconsolidated road section. This steering response was unusual in that no steering response would have been the most prudent and safe approach as there was no immediate threat of collision or incident. [sic]
- The reason for the panic reaction tyre [sic: presumably type] of steering is likely to be either fatigue and/or driver inattention to the road ahead … combined with the sudden realisation that a steering manoeuvre was required to avoid the potential unconsolidated surface hazard.
- The other consideration is that the driver steering input was deliberate which would constitute reckless driving; however, there is no reliable or firm evidence available for review by the report author that corroborates or supports this suggestion.
- The vehicle does not have an electronic stability control (ECS) system installed. These systems are designed to operate independently of the driver to prevent crashes of this nature from occurring and may have done so if it was fitted to the vehicle. 31
[46] The Addendum Report was commissioned from Mr Tulloch for these proceedings. It was prepared with the benefit of, and in part responded to, Mr Kenny’s statement, and those of Messrs Taylor, Meikle, Reynolds, Byrne and Walton. Mr Tulloch visited the site on 20 May 2015 and had the benefit of additional testing performed then. It is unclear whether the road had been subjected to significant works in the intervening 6 months, although by the time of hearing that was the case.
[47] The Addendum Report confirms the conclusions in the initial report.
[48] Mr Lewis, a Surveyor, suggested that the hole was not bulldust as in his experience bulldust existed only in other parts of the Mine. Under cross-examination he admitted that he had no expertise in that issue and had not visited the scene of the rollover. 32 The surveys in evidence were prepared by a subordinate, Mr Hurren.33
[49] Mr Monteith was Mr Kenny’s supervisor. He gave evidence of his actions soon after the incident and subsequent involvement in the ICAM process.
[50] He stated that Mr Kenny had indicated that he had taken his foot off the accelerator so it would ease up on the vehicle’s slide to the left once it entered the soft section. Mr Kenny said that the vehicle just rolled over.
[51] He said that Mr Kenny repeated this later at the scene.
[52] He completed an information gathering form that was signed by Mr Kenny. It described the incident in similar terms including the following: “Travelling at approximately 60 kph the vehicle hit a soft section of road causing the vehicle (corrected) to swerve left then hitting hard ground causing the vehicle (corrected) to rollover.”
[53] In identifying other factors influencing the incident the following was recorded “dark, wet road soft road surface time of day”.
[54] As to whether the incident could have been prevented it was noted “better road maintenance”.
[55] Mr Monteith assisted Mr Hoare by seeking to verify if there had been water trucks on the road. BHP Coal could not conclusively determine whether the road had been watered in the hours before the rollover, but it had had been graded around 28 October. There was some evidence that grading alone would not consolidate the road and could possibly disguise a soft area by making the surface appear similar to the rest of the road.
[56] In cross-examination Mr Monteith agreed with the proposition put to him that “the vehicle tyre tracks indicated that there was a straight movement into the soft spot and then it veered to the left once it had entered the soft spot area”. 34
[57] Mr Hoare is Field Maintenance Superintendent at the Mine. He provided similar evidence to Mr Monteith’s of the aftermath of the incident and the ICAM, and of commissioning Mr Tulloch’s first report and receiving it the next day.
[58] He deposed as to the events that morning:
Upon hearing Mr Kenny's explanation for a second time, I considered how it could be the case that the vehicle that Mick Kenny had been driving had suddenly steered left and had then rolled over a full 360 degrees while travelling at 60 kilometres per hour.
Whilst I wanted to believe Mick Kenny's explanation, I did not believe his explanation as to how the Incident had occurred given the speed that he said he was travelling at and the experiences that I have had driving through soft spots at the Mine. 35
[59] He further deposed his view that, other than the soft spot, the road was in good condition and that there were no signs of rocks, divots or ruts on the road.
[60] Mr Swinnerton gave evidence about the ICAM and disciplinary processes.
[61] In his statement he exhibited the completed “Just Culture Decision Tree” (Decision Tree). 36 BHP Coal uses the “BMA Guideline to Fair Play” in determining the response to disciplinary incidents. The Decision Tree forms part of that guideline. The purpose of the Decision Tree is stated as “a 7 part process used to determine whether an already investigated event or breach was intentional or unintentional. This process is not an investigation.” The document was not given to Mr Kenny and it is not BHP Coal’s practice to provide such documents to employees under investigation.
[62] The document as part of the background, stated the breaches as follows:
What breach of policy, procedure or practice has occurred?
Failure to complete OSPAT is a breach of Fitness for Work Procedure, Roles and Responsibility – Employees
Failure to complete Pre-start in accordance with 030.01 SOP – Safe Operation of Vehicles and Mobile Equipment
Failure to drive to conditions and unsafe driving, including by steering sharply to the left and driving in the middle of the road – Breach of 030.01 SOP – Safe Operation of Vehicles and Mobile Equipment
Reported incorrect information during the investigation regarding completion of OSPAT. Inconsistent with Charter Values.
[63] Part 3 of the document is the Decision Tree. Mr Swinnerton’s exhibit had three such Decision Trees: one for the rollover; one for the two safety issues; and the third for the incorrect information.
[64] On the incorrect information, the Decision Tree concluded Mr Kenny’s breach was a human error, unintentional, a lapse. The record explains the reasons for this conclusion to be mitigating circumstances in the stressful investigation environment. This breach was not taken into account in the disciplinary process.
[65] The Decision Tree identified, identically for the safety issues and the rollover, cascading causes as follows:
Human Error
Intentional
Violation
Deviant – An intentional error by a person even though they thought it is not the approved/tolerated action
[66] The Decision Tree then asks: “Why does this matter fall within the area indicated above?”.
[67] On the safety breaches, that question was answered:
Investigation shows that OSPAT was not performed.
The operator was required to perform the OSPAT.
Investigation shows that a pre-start was not performed.
The operator was required to perform a pre-start.
[68] On the rollover, the answer was:
Investigation shows the soft spot (bull dust – 25 m long x approx. 2.5 m wide and 150 mm in depth) was a contributing factor to incident. Soft spots are part of the conditions normally encountered on roads on a mine site.
The Root Cause of the incident was that the Operator made poor decision and over reacted.
The manner in which the vehicle was driven was inconsistent with the requirement to drive to conditions, which include the potential to encounter soft spots.
The choice to drive the vehicle in its location (central area of the road) and speed were intentional.
[69] Mr Swinnerton concluded, in completing the Decision Tree, that Mr Kenny’s conduct in the rollover was intentional in that he drove at speed on the line he drove by choice and that it was “deviant” (in the sense used in the BMA Guideline). 37
[70] His evidence is that he decided to dismiss Mr Kenny considering 14 factors enumerated in his statement, 38 concluding:
… that the roll over incident (in combination with the other safety breaches) was so severe, that I believed that I had no option but to terminate Mr Kenny’s employment to ensure the health and safety of all coal mine workers at the Mine. 39
[71] Under cross-examination he stated that he would bar Mr Kenny from working at the Mine as a contractor. 40
[72] Mr Briffa was formerly the Production Manager of the Mine, sometime acting General Manager, and at the time of the incident the Site Senior Executive statutorily responsible for safety issues. He gave evidence of the antecedent rollovers and road conditions at the Mine, the ICAM process and the discipline. He deposed that in attending the site:
… my immediate impression from the scene of the incident was that the incident appeared to have been preventable and that Mr Kenny had made a significant driving error so as to roll the vehicle 360 degrees on a straight road, and without contacting a bund.
… I was of the opinion that Mr Kenny had attempted to take some type of evasive steering action as indicated by the tyre marks. I considered the only plausible explanation to roll over a light vehicle on a straight road at moderate speed would be if the driver had attempted to aggressively steer the wheel of the vehicle left, causing the vehicle to slew sideways and roll over. 41
The divergent views and effects of “soft spots” on the road.
[73] Evidence diverged on whether a soft spot was easy or difficult to see when driving at night. Mr Swinnerton’s position was that Mr Kenny should have avoided the hazard by adjusting his driving behaviour. He admitted that a hazard that cannot be identified is difficult to avoid. 42
[74] Mr Kenny’s evidence was that he could not see the hazard:
The hole was not visible because the wind had blown the bulldust in the hole so that it was flat and appeared to be part of the usual road surface. 43
The hole in the road, hidden as it was by the covering bulldust, was totally unexpected. 44
Mr Hall cross-examining Mr Kenny: … you didn’t see the hole, as you call it, before you went in it. You didn't see it – the first you knew of it, when you’ve hit that soft patch?---Yes. 45
[75] Under cross-examination he said he was looking out for hazards, and because it was night time and the weather had been poor, he was vigilant. 46 While he could not recall if his lights were on high beam, it would be usual for that to be the case without oncoming traffic.47
[76] Mr Meikle expressly disagreed with Mr Briffa’s evidence that “it is not uncommon for drivers … to encounter … soft spots of a similar size.” 48 His evidence was that such soft spots, or bulldust49 would take 1-2 weeks to form and present a risk to road users:
I would not expect to be faced with such a hazard. I would expect that the hazard caused by the hole would have been identified and that it would have been marked as a hazard with the necessary signs. I do not agree that the hole did not present an unacceptable level of risk [sic]. 50
[77] Mr Walton accompanied Mr Kenny that night, passing over the road several times before the rollover. He deposed:
21. It was difficult driving that night because of the weather. The roads were quite deceptive – they are dirt roads shared with heavy vehicles and because it was a stormy night you could not necessarily see where the loose dirt was. The water carts spray water in an effort to keep the dust down, and they try to leave a dry line for people to drive on. Mick was driving well and was driving on the dry line as normal.
22. The road where the accident occurred is commonly known as “the goat track”. I had driven on that road with Mick a number of times that night. When we were driving on that road neither Mick nor I noticed the patch of bull dust where Mick later had the accident. This is not surprising as it was night, the weather conditions were extremely poor and the hole in the road, covered by a patch of bull dust, had not previously been identified as a hazard.
[78] In oral evidence he stated that soft patches can be “sometimes hard to recognise”, 51 and how such hazards might be identified:
… you couldn’t have picked it, especially, like, for Mick’s incident, that section of road had a light sprinkle of rain over it. You couldn't pick the difference in texture. It was, yes, totally hidden. 52
[79] Mr Byrne, a plant operator in oral evidence, stated that drivers at the Mine would regulate their behaviour “if you can see the hazard” 53. He said:
… your light gets absorbed dramatically by your surrounds … Your light just – like coal, coal dust, it just disappears. It absorbs the light; 54 and
… you can only react to a hazard if you can see it. Where these blow outs occur and how these blow out occur, is a lot of the time they just sit there in waiting where a big truck has gone through it and the tyres have hit it and it just settles back down. And you’ve come off a surface like that and you’ve hit a hole the length of this room and half its width or its full width, and it’s like driving into water. But you don't know it’s there. You absolutely, you sometimes do not know they’re there. Taking light into consideration. Taking this situation into consideration where you’ve come up over a crest and started to descend down a downward gradient of usually around 7 percent, and you’re still driving on a perfectly good road and then without warning, without a sign, without an indication, you’re in the middle of a bulldust hole, and by the time you realise you’re in it, you’re in bloody trouble. 55
[80] For BHP Coal, Mr Tulloch, in his Addendum Report, contended:
The two road surfaces … are of a similar colour. This road feature may make it more difficult for a driver to distinguish between the different surface characteristic during night time driving conditions. It is apparent however, from photographs taken on the night of the incident and on the following day that the texture of the two surfaces appears different and is able to be distinguished. 56
[81] He concluded it was likely that a driver of Mr Kenny’s experience and habit would likely be able to perceive the “hole”.
[82] Mr Monteith in cross-examination was of the view that the soft spot appeared to be bulldust, with a light crust, and could be hard to identify. 57
[83] Mr Hoare deposed his opinion that Mr Kenny “would have been able to identify the hazard he encountered at the time of the Incident, due to the obvious discolouration and different surface material.” 58 Under cross-examination he admitted the surface was flat and even, not in his opinion bulldust, but “soft material” and still a hazard.59 He admitted identification of the hazard would be harder at night.60
[84] Mr Briffa, in addition to the comments above, under cross-examination admitted that a soft spot could be “potentially” difficult to identify, but would be obvious once a vehicle had touched it. He expressed his opinion that even driving at night “you can certainly see where there’s delineations on the road” although harder to see if graded. 61
Consideration
[85] It is uncontested that Mr Kenny failed to undertake the OSPAT. The evidence is that Mr Kenny commenced but did not complete the pre-start check. The relevant Decision Tree suggests he did not perform the check at all, 62 but I am satisfied that he commenced the check, ceased when the weather turned bad, and failed to complete the test before setting out on his duties.
[86] Mr Kenny’s case is that the two failures were inadvertence, arising from the disruptive effect of the storms. He said the rollover happened by accident: the wheels of the vehicle hit a soft spot, causing a sharp turn beyond his control, rolling once the lip was encountered.
[87] BHP Coal conceded that the safety breaches alone would not warrant dismissal, but taken with the rollover caused, it says, by Mr Kenny’s deliberate sharp turn, meant that he represented a safety risk warranting dismissal, and that the General Manager could not have confidence in Mr Kenny’s safety as a coal mine worker.
Factors to be considered
[88] Section 387 of the Act states criteria to be considered in determining if a dismissal was harsh, unjust or unreasonable as asserted for Mr Kenny:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[89] I turn to each of these considerations.
(a) Valid reason
[90] The Fair Work Commission (the Commission) is obliged by s.387(a) to consider “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)” in determining whether the dismissal was harsh, unjust or unreasonable.
[91] To determine a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred.63
[92] The proper test is as follows:
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved. 64
[93] All three matters, the rollover and the two safety matters, need to be considered together in determining if there was a valid reason to dismiss Mr Kenny.
[94] I agree with BHP Coal on its conclusion about the two safety breaches: alone or together they were not a valid cause for dismissal. I note the evidence that the vehicle was not materially defective, ruling out mechanical causes that might have been detected in a complete pre-start check, 65 thereby reducing the risk of the rollover. Mr Kenny asserted his fitness for duty and that he was unimpaired, an assertion confirmed by the later drug and alcohol test results. BHP Coal did not suggest otherwise.
[95] On the evidence before the Commission, neither the failure to take the OSPAT nor the failure to complete the pre-start check contributed to or caused the rollover.
[96] The cause of the rollover (taken in conjunction with the safety breaches) is critical to BHP Coal’s decision to dismiss. The two propositions are: BHP Coal’s conclusion that Mr Kenny deliberately effected a dangerous turn; alternatively, Mr Kenny’s evidence that he lost command of the vehicle in a soft spot, resulting in an accident, something beyond his control.
[97] The key question to be determined is as follows: has BHP Coal established, to the requisite standard, that Mr Kenny deliberately effected the dangerous turn? The requisite standard is the balance of probabilities. This is a question of misconduct with very serious consequences for Mr Kenny, in my view the Briginshaw principles 66 are relevant in that the strength of the evidence needs to reflect the seriousness of the alleged conduct and its consequences, at least the extent that deliberate misconduct is asserted.67
[98] The competing propositions are worded variously in evidence, but may be summarised as whether Mr Kenny lost control involuntarily in a “soft spot”, or whether he was inattentive, noticed the hazard late, and undertook a panic turn, as concluded by Mr Tulloch or in the employer’s words, he made a dangerous sharp left turn.
[99] There is no dispute that:
- Mr Kenny was involved in a rollover;
- it was the fifth such incident on the Mine over four months; and
- light vehicle safety was a serious issue requiring serious action.
[100] None of these matters answers the question about whether there was a deliberate or panic turn taken by Mr Kenny.
[101] Here, the conduct in regard to the rollover, was, in the words used by BHP Coal:
“… you made a highly dangerous sharp left turn (10-15m prior to soft spot) and you were also driving in the centre of the road”;68 and
“… the dangerous sharp left turn you made”.69
[102] Both statements are about execution of a sharp left turn by Mr Kenny, whether deliberately or negligently. He plainly denies such conduct, saying the movement of the vehicle to the left was beyond his control, and not caused by his acts.
[103] Mr Swinnerton, in his statement (and under cross-examination)70 concluded Mr Kenny’s conduct was deliberate:
When I completed the first JCDT in relation to Mr Kenny’s failure to drive to conditions, I considered whether or not Mr Kenny’s driving error was intentional or unintentional. The conclusion I drew was that Mr Kenny’s decision to drive the vehicle at the speed, to drive in the location of the road that he did, and to steer left prior to the soft spot were deliberate choices. I therefore considered that Mr Kenny’s error was an intentional error for the purposes of the JCDT form.
[104] The Decision Tree asks the decision maker whether the conduct was intentional or unintentional rather than “deliberate”, and if intentional, whether it was a product of a cultural norm (general acceptance of the misconduct) or “deviant”, namely intentional and not a cultural norm, and therefore a choice deviating from acceptable conduct whatsoever. Mr Swinnerton’s conclusion of deliberateness needs to be seen in that light.
[105] There was no suggestion on the evidence that Mr Kenny was fatigued at the time, one of the causal propositions put by Mr Tulloch. The drug and alcohol tests showed he was not impaired. It was not contended that he was other than a prudent driver. He had no prior road or traffic incidents of note and was an employee of long standing, no doubt practised at driving on the unsealed roads at his workplace of 28 years.
[106] Mr Kenny’s evidence about the rollover remained consistent through the long history of this matter. He remained steadfast in his version that he lost control of the vehicle and the sharp turn was effected outside his influence. Mr Hall remarked on the constancy of Mr Kenny’s version of events 71 and submitted that, as his unequivocal position cannot be reconciled with Mr Tulloch’s evidence, Mr Kenny was untruthful.72
[107] In contrast Ms Hartigan submitted that the report had limited evidentiary value arising:
… out of the paucity of material that Mr Tulloch was briefed with by Mr Hoare. The quality of the material was poor. The photos provided had limited evidentiary value as they did not provide any perspective on the scene (for instance, distance markers were not used). The report was in effect prepared between 2.44 pm on 6 November and when it was provided to Mr Hoare on 7 November 2014. It is not a detailed report and did not provide an insight into the methodology or analysis Mr Tulloch came to in order to form his opinions. 73
[108] Mr Tulloch’s initial report was prepared in very short order: commissioned one day, delivered the next. It was based on limited information given to him by BHP Coal, not on his independently gathered data, observations and inquiry. The report states Mr Tulloch’s expert opinion, but does not draw a clear line from the data he had, to the conclusions he reached. This brief report forms the basis of the conclusion that Mr Kenny was inattentive, noticed the hazard late, and undertook a panic turn, concluding he made a “highly dangerous sharp left turn”.
[109] The brevity and relative simplicity of this first report is illustrated by comparison with the Addendum Report, prepared many months later, but with the benefit of a site visit, road friction tests and other pertinent measurements and observations, and responding to Mr Kenny’s detailed statement in these proceedings (it is unclear if the site visit was before or after the road had been divided, separating light vehicle traffic from heavy haulage by significant earthworks and bunds).
[110] For the initial report, Mr Tulloch was not provided evidence of distance markers; he was not informed of the depth of the bulldust; he conceded under cross-examination that his opinion of where the turn took place could not be precisely determined; 74 and he was not informed in detail of Mr Kenny’s explanation of the events.
[111] As a witness, Mr Kenny did not prevaricate, and corrected himself from time to time. Having heard Mr Kenny under cross-examination, I do not conclude that his constancy was either a stubborn refusal to accept Mr Tulloch’s version or untruthfulness. I conclude it was reflective of his genuinely held understanding that he lost control of the vehicle in the soft spot and the rollover was an accident, beyond his intention or choice.
[112] BHP Coal’s understanding of the rollover evolved and changed over time, reflected in the three different statements of root causes in the ICAM documents, including the addition of speed as a factor in the final version (contrary to Mr Tulloch’s conclusions). I do not draw any adverse inference from the fact that the ICAM evolved. It is appropriate for a company to ensure that it relies on the best evidence possible in safety investigations. However the evidentiary value of these documents is affected by their variable content, particularly when the changes shift starkly, such as not make a finding of speed as a factor in the first three, but concluding in the fourth ICAM that speed contributed to the roll-over.
[113] BHP Coal’s submissions invited the Commission to infer from its evidence that Mr Kenny had engaged in a deliberate sharp turn to the left, causing the rollover. Mr Kenny raised an alternate explanation, consistent with certain elements of the physical evidence. There was a bulldust pan at the scene of the rollover; he had driven the route uneventfully some four times already that night in the five or so hours before the incident; he was driving as much as 20 kph below the speed limit then designated for that stretch of track; the vehicle was not defective; there is no suggestion he was impaired; his choice of driving the “dry line” was in his opinion safer than a more left side line due to road conditions.
[114] While there may be other possible causes of the rollover, some alluded to by Mr Tulloch, there was no evidence before me that would allow me to draw inferences alternate to those proposed by the parties. 75
Deliberate act
[115] There is nothing in the evidence before me leading to a conclusion that Mr Kenny consciously or deliberately chose to execute a dangerous left turn. Mr Tulloch noted there is no evidence of a deliberate act, a prospect he raised merely “for due consideration by management”76. Mr Tulloch’s addendum report did not progress evidence to such a conclusion. Mr Kenny was the only person at the scene, and his version is that he did not deliberately effect a dangerous turn. Rather, he effected no steering at all, the course advised by Mr Tulloch. In my view, the evidence offered by BHP Coal cannot support a conclusion of a deliberate act.
Negligence
[116] Mr Tulloch’s scenarios include “a panic steer associated with immediate and impending collisions”. He concluded no such factors were present.77 He noted that once in soft dirt a vehicle may be harder to control but it was not (in his view) the cause of loss of control. His conjecture is that “inappropriate driver input in terms of steering that triggered the event”,78 although the factual and methodological basis for that conclusion is sparse, in keeping with the limits of his brief: one photograph showing “heavy left steer input immediately prior to entering onto the soft surface”. He was not instructed with observations or measurements of the soil at, before or around the turn point, data clearly relevant to testing Mr Kenny’s assertion. Further the tenor of oral instructions given to him was not the subject of evidence.
[117] Mr Tulloch’s conjecture may have been useful in responding quickly for incident investigation and future safety improvement: that was the ICAM context in which the report was commissioned and prepared. But it is not sufficient to discharge BHP Coal’s evidentiary burden here as to conduct.
[118] Mr Tulloch’s report states:
… a careful prudent driver if faced with the change in surface characteristics that existed at this scene, would not or should not have steered aggressively entering onto a soft surface. 79
[119] Mr Kenny’s evidence is that he did not steer aggressively, but that the vehicle had already encountered the soft surface when the wheels skidded left. Nothing has shown Mr Kenny to be other than a prudent driver, whose evidence was that he did what Mr Tulloch advised: “no steering response”.
[120] The evidence as to whether the soft spot could be readily identified is relevant. Mr Kenny, supported by the evidence of other coal mine workers, deposed that the soft spot was not identifiable, and appeared the same as the rest of the road surface. The fact that he had already driven the road four times that night safely in Mr Walton’s company supports the proposition that the road surface was otherwise stable. That was also Mr Hoare’s evidence.
[121] Mr Kenny was driving well below the posted speed limit, consistent with prudent driving in hazardous but relatively predictable conditions. There is no evidence suggesting that the road was so dangerous that night that particularly slow driving or other extra precautionary activity was warranted. The road had recently been graded and on Mr Kenny’s evidence, watered. Mr Kenny and Mr Walton's evidence was that they had driven the road four times already safely without the need for special caution, and it is not contended that the hazard had been identified by BHP Coal.
[122] There was evidence of Mr Kenny’s safety consciousness. His first act on arriving at the site was to advise outgoing crew of potential hazards from the storm. He commenced the pre-start check and there is no basis to suggest he would not have completed it but for the dust storm. The purpose of his solo drive was to collect insulated reading glasses, equipment he considered necessary for safe execution of a task ahead. He drove some 20 kph slower than permitted, and on Mr Walton’s evidence had been driving well in the prevailing conditions throughout the night. Apart from the incidents of that night, there was no evidence that Mr Kenny was other than a prudent, experienced and safety-conscious electrician with extensive experience at the Mine.
[123] The fact that the vehicle had been raised and was not fitted with electronic stability control may have made it more susceptible to rolling but there is insufficient evidence to reach a conclusion.
[124] On the matter of identifying the soft spot, Mr Kenny and his colleagues spoke of actual driving experience on the site and the prevalence of such hazards, and their identification at night. Mr Tulloch’s evidence was inferential and based on scant information, poor quality photographs, and site inspections many months later. Messrs Briffa, Monteith and Hoare conceded there were identification difficulties. Their assertions of ease of identification were based on more generalised considerations.
[125] The weight of the evidence is that the hazard encountered by Mr Kenny that night was not readily identifiable in the prevailing conditions, and given his multiple passages, not to be expected.
[126] I conclude the evidence does not establish on the balance of probabilities that Mr Kenny negligently or recklessly steered the vehicle as contended.
Was there a valid reason?
[127] In Miller v University of New South Wales, Gray, Ryan and Gyles JJ noted as to what was meant by “valid reason”:
The validity is not to be judged by reference to legal entitlements, but to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has done, or as to what the employer requires in order to continue its activities. 80
[128] Having seen the detailed evidence and heard the witnesses under cross-examination, my assessment of the factual circumstances is that Mr Kenny did not steer the vehicle sharply to the left. BHP Coal’s evidence does not show, to the requisite standard, that Mr Kenny effected a sharp left turn either deliberately or negligently.
[129] Mr Swinnerton’s evidence that two other factual circumstances, Mr Kenny’s speed and driving line, were “intentional” is uncontested. In light of the evidence before the Commission, the speed and driving line were not demonstrated to be dangerous, imprudent or unsafe.
[130] I conclude on that basis, relating to the rollover, that the conduct stated as the reasons for the dismissal did not take place as alleged and there was not a valid reason for the dismissal.
[131] I add that on my assessment of the evidence, Mr Kenny’s omission to take the OSPAT, his failure to complete the pre-start check that he had started, and the rollover resulting from matters beyond Mr Kenny’s control, are not sufficient to cause BHP Coal to lose confidence in Mr Kenny’s ability to work safely in the future. As discussed above, the evidence is that Mr Kenny was a prudent and safety conscious employee. BHP Coal’s assertion of loss of confidence, integral to what it says is a valid reason for dismissal, is not supported by the evidence, and relies on undue emphasis being placed on the rollover and the omissions and insufficient emphasis being placed on other relevant factors including work record, experience and explanations for the uncharacteristic conduct and the rollover.
[132] Mr Swinnerton’s evidence 81 is that Mr Kenny’s dismissal was causal of an improvement in safety outcomes since, including zero rollovers. This statement does not take into account other safety improvements implemented since the rollover. Road speeds have been reduced. The road in question has since been heavily worked including to divide light vehicles from heavy haulage. There have been improvements in driver training. OSPAT has been replaced by random drug and alcohol testing. Mr Swinnerton also reports an important company wide safety improvement initiative.82 These systemic, operational and engineering changes will have played a major part in improved safety outcomes.
[133] Even if Mr Kenny had been shown to have effected a dangerous turn in a panic (as suggested by Mr Tulloch), I remain unconvinced that the circumstances warranted Mr Kenny’s immediate dismissal, which might arise from a rationally based loss of confidence in capacity to work safely. 83 It is well established that loss of trust and confidence must be soundly based.84 On the basis discussed above, I conclude there was no sufficient basis to assert a loss of trust or confidence in Mr Kenny that would merit dismissal.
Conclusion on valid reason
[134] I find there was no valid reason to dismiss Mr Kenny.
(b) Notice
[135] I am satisfied that Mr Kenny was given notice by way of the show cause letter.
(c) Opportunity to respond
[136] There was some argument about the after-the-fact addition of speed to the ICAM, and Mr Kenny not being given an opportunity to respond to that. However, BHP Coal did not require Mr Kenny to respond to the ICAM, merely to the show cause letter. I conclude that Mr Kenny was given opportunity to respond through the show cause process.
(d) Support person
[137] It was not contended that Mr Kenny was unreasonably refused access to a support person.
(e) Performance
[138] There were no performance considerations relevant to the dismissal.
(f) Size of enterprise
[139] BHP Coal concedes this factor is not relevant.
(g) Dedicated human resources
[140] BHP Coal concedes this factor is not relevant.
(h) Other relevant matters
[141] Differential treatment. Mr Kenny’s dismissal stands in contrast to the treatment of the two BHP Coal workers involved in earlier rollovers. The notice did not add to or alter existing policy. The policy remained a requirement for prudent driving to conditions, with the prospect of “disciplinary action and/or dismissal” for failure to do so: BHP Coal had not changed its policy to zero tolerance of rollovers, including accidental ones, with dismissal as the necessary result. I consider that the treatment of the earlier cases should have informed BHP Coal’s decision making, especially given the paucity of evidence supporting the proposition of intentional acts on Mr Kenny’s part.
[142] Impact on the Applicant. Mr Kenny has been unable to find comparable alternative employment, and on Mr Swinnerton’s evidence would be excluded from contract work at the Mine. The impact on a worker of his experience and years is considerable. In my opinion the dismissal was harsh for its impact on Mr Kenny.
[143] Work history. As noted above, Mr Kenny’s unblemished 28 year work history with BHP Coal should have been given greater weight in the decision making. I find the dismissal unreasonable on that basis.
[144] Remorse and willingness to contribute. Mr Kenny expressed his sincere remorse at the incident in his response to the show cause notice, notwithstanding his position that the rollover was an accident and the safety omissions understandable because of the disruptions of the storms.
[145] Mr Kenny expressed willingness to assist BHP Coal in improving safety outcomes by actively contributing to workers’ understanding of his incident. BHP Coal submitted that this would be merely expected if he had not been dismissed. However Mr Kenny’s remorse and willingness to contribute fortified my view of his sincerity and safety consciousness.
[146] Confidence. BHP Coal maintained that the errors and the rollover caused Mr Swinnerton to lose confidence in Mr Kenny’s ability to work safely. For reasons discussed above, I do not consider the conclusion is supported by the evidence, especially in a very large workforce such as BHP Coal’s.
Conclusion
[147] I find the dismissal was not for a valid reason and was otherwise harsh, unjust or unreasonable.
Remedy
[148] Mr Kenny seeks orders for reinstatement, continuity and restoration of lost pay.
[149] The available remedies under the Act are reinstatement, and if reinstatement is not appropriate, compensation.
[150] BHP Coal does not assert that there is no position available for Mr Kenny or that work practice changes make it impractical for him to be reinstated. BHP Coal submitted that it had lost trust and confidence and accordingly reinstatement is not appropriate.
[151] However, the reason for the loss of trust and confidence must be ‘soundly and rationally based’ 85. For reasons I have detailed above, I have found above that there is no sufficient basis to reach that conclusion.
[152] An order for reinstatement in the terms of s.391(1) is therefore appropriate.
[153] Mr Kenny additionally seeks orders to maintain continuity. The Act in s.391(2) provides that the Commission may, where appropriate, make an order to maintain continuity of employment in addition to reinstatement.
[154] The order to maintain continuity requires the exercise of a discretion which is separate and distinct from the decision to reinstate an employee. That is, it does not follow simply because an employee is reinstated that a continuity of employment order will issue.
[155] On the facts of this matter, having decided to reinstate Mr Kenny’s continuity of employment it is “just and appropriate” 86. This is because of Mr Kenny’s long employment history and that it would seriously diminish the reinstatement decision for Mr Kenny to have to begin again to accrue entitlements in the same way as a new employee.
[156] Mr Kenny seeks orders to restore lost pay.
[157] The Commission may, where appropriate, make an order for lost wages in addition to reinstatement. Such order is discretionary and it must take into account remuneration earned.
[158] Mr Kenny submits that while he gained employment with a contractor after his termination; his employment was terminated when BHP Coal banned Mr Kenny’s access to the Broadmeadow Mine. Mr Swinnerton’s evidence is that he would also ban Mr Kenny’s access to the Goonyella Riverside Mine. Mr Kenny submits that as a result he has seriously limited prospects of finding alternative employment in the Moranbah area.
[159] Given the seriously limited opportunities to find employment, in the context of my findings and subject to the matters raised below, an order under s.391(3) will issue for restoration of lost wages (less any remuneration earned) in addition to reinstatement.
[160] An order to restore lost pay may take into account ‘all of the circumstances of the case, including the conduct of the employee that led to the dismissal’.
[161] While I have found there is no valid reason for the dismissal, Mr Kenny’s conduct in neglecting to complete the OSPAT and the failure to complete the pre-start check is conduct that is appropriate to take into consideration.
[162] It does not matter that ultimately these failures were not material or relevant to the rollover; they are conduct that was inconsistent with what is expected of an employee of BHP Coal.
[163] They are also a breach of the BHP Coal’s Safety Policy.
[164] Lawrence v Coal & Allied Mining Services Pty Limited, T/A Mt Thorley Operations/Warkworth 87(Lawrence) was an analogous case. Mr Lawrence, like Mr Kenny, was an employee of 28 years with an otherwise unblemished record. He was dismissed after a safety breach, the removal of an isolation lock fixed by another worker contrary to clear requirements. By majority the Full Bench ordered his reinstatement with restoration of lost wages, reduced for his misconduct by three months. The majority said of the reduction:
In this way, the importance of the respondent’s policies will be vindicated and no other employee ought be able to take any comfort from this decision that breaches of the isolation policy will do other than expose them to serious consequences. 88
[165] Here, the misconduct, the failure to complete the OSPAT and to finalise the pre-start check, were not the only or even determining reasons for Mr Kenny’s dismissal. In Lawrence the safety breach was the sole incidence of misconduct and it was a deliberate (not inadvertent) act, albeit one for which dismissal was found to be harsh.
[166] Nevertheless, the obligations to complete a pre-start check and (at the time) OSPAT were rational and reasonable. BHP Coal was entitled to take Mr Kenny’s omissions seriously. Therefore, there should be a deduction equivalent to two month’s salary: this takes into consideration that while the omissions were not deliberate the misconduct consisted of two breaches of safety requirements.
[167] Orders will issue accordingly.
COMMISSIONER
Appearances:
C Hartigan of Counsel for the Applicant.
J Hall of Ashurst for the Respondent.
Hearing details:
2015.
Moranbah:
July 28, 29 and 30.
Brisbane:
September 14.
1 Mr Swinnerton’s evidence is that he accepted this last point was an unintentional lapse in the immediate aftermath of the rollover and that he did not take it into account in deciding to dismiss Mr Kenny: Statement of Mr Swinnerton at paragraphs 119 to 121.
2 Statement of Mr Kenny, Attachment MK 7.
3 ICAM is a workplace incident investigation methodology designed to identify the root causes of incidents: Statement of Mr Hoare at paragraph 114.
4 There is some contest as to whether there were four ICAMs as contended for Mr Kenny, or one ICAM that was revised as information changed and different players became involved. The terminology used is for identification only and is not a conclusion on this point.
5 Statement of Mr Hoare, Annexure JH-16.
6 Statement of Mr Hoare at paragraphs 140 and 144.
7 Statement of Mr Swinnerton, Annexure MLS-5.
8 Statement of Mr Swinnerton at paragraph 158.
9 Statement of Mr Swinnerton at paragraph 155.
10 Statement of Mr Hoare, Annexure JH-20.
11 Statement of Mr Briffa at paragraphs 19 to 62.
12 Attachment 2 to BHP Coal’s response (Form F3) to the application.
13 Evidence of Mr Swinnerton in transcript dated 29 July 2015 at PN2883 and following.
14 Statement of Mr Kenny, Attachment MK 7.
15 Statement of Mr Monteith, Annexure AGM-15.
16 Statement of Mr Hoare at paragraph 86.
17 Statement of Mr Hoare, Annexure JH-6.
18 Statement of Mr Kenny at paragraph 27; Transcript dated 28 July 2015 at PN295.
19 Transcript dated 28 July 2015 at PN724 and following.
20 Statement of Mr Kenny paragraphs 19 and 20.
21 Statement in response of Mr Meikle at paragraph 14.
22 Statement in response of Mr Meikle at paragraphs 20 and 21.
23 Statement in response of Mr Meikle at paragraph 27.
24 Statement of Mr Walton at paragraphs 16 to 18.
25 Statement of Mr Taylor at paragraph 15.
26 ibid paragraph 19.
27 ibid paragraph 28.
28 ibid paragraphs 28 to 30.
29 Transcript dated 29 July 2015 at PN1704.
30 Transcript dated 29 July 2015 at PN1671.
31 Statement of Mr Tulloch, Annexure DCT-2, Attachment 1 at page 24 (page 9 of the first report).
32 Transcript dated 29 July 2015 at PN1887 and PN1890.
33 Transcript dated 29 July 2015 at PN1876 to PN1881.
34 Transcript dated 29 July 2015 at PN2100.
35 Statement of Mr Hoare paragraphs 87 and 88.
36 Statement of Mr Swinnerton; Annexure MLS-6.
37 Statement of Mr Swinnerton at paragraph 109 and following.
38 Ibid paragraph 173.
39 Ibid paragraph 174.
40 Transcript dated 29 July 2015 at PN2743.
41 Statement of Mr Briffa at paragraphs 84 and 85.
42 Transcript dated 29 July 2015 at PN3015 to PN3017.
43 Statement of Mr Kenny at paragraph 23.
44 ibid paragraph 27.
45 Transcript dated 28 July 2015 at PN292.
46 Transcript dated 28 July 2015 at PN205 and following, PN239.
47 Transcript dated 28 July 2015 at PN216 and following.
48 Statement of Mr Briffa at paragraph 80.
49 Transcript dated 28 July 2015 at PN918 “That was a bulldust hole. That wasn’t a soft patch.”
50 Statement in response of Mr Meikle at paragraph 14.
51 Transcript dated 28 July 2015 at PN1217.
52 Transcript dated 28 July 2015 at PN1316.
53 Transcript dated 28 July 2015 at PN1474 and PN1477.
54 Transcript dated 28 July 2015 at PN1483.
55 Transcript dated 28 July 2015 at PN1487.
56 Statement of D Tulloch; Annexure DCT-3 at page 5 Part 3.1.
57 Transcript dated 29 July 2015 at PN2104-PN2115.
58 Statement of Mr Hoare at paragraph 198.
59 Transcript dated 29 July 2015 at PN2372 to PN2381.
60 Transcript dated 29 July 2015 at PN2432.
61 Transcript dated 30 July 2015 at PN3538 and following, PN3543, PN3545, PN3547.
62 I place no particular weight on minor inconsistencies in expression used in the various ICAM documents, Mr Tulloch’s reports, the decision trees and the formal disciplinary notices, such as whether he failed to “perform” as opposed to “complete” the check, and whether he was driving “towards” or “in” the centre of the road.
63 Edwards v Justice Giudice [1999] FCA 1836; 94 FCR 561 at paragraphs 6 and 7.
64 King v Freshmore (Vic) Pty Ltd S4213 at [24] and [26] (Full Bench) (citations omitted).
65 Statement of Mr Hoare at paragraph 109(e) and Annexure JH-12.
66 Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
67 “Serious misconduct would require clear and cogent evidence”: Barwon Health - Geelong Hospital v Colson[2013] FWCFB 4515 at [87].
68 Statement of Mr Swinnerton; Annexure MLS-9 - Show Cause Notice.
69 Annexure MLS-13 - Letter of Dismissal.
70 Statement of Mr Swinnerton at paragraph 109; Transcript dated 29 July 2015 at PN2997 to PN3025.
71 Transcript dated 28 July 2015 at PN292 and PN294.
72 BHP Coal’s Final Outline of Submissions at paragraphs 27 and 28.
73 Mr Kenny’s Final Submissions at paragraph 65.
74 Transcript dated 29 July 2015 at PN1783-PN1784; Mr Kenny’s Final Submissions at paragraph 64; and in the Addendum Report was no longer “10-15m” but “likely within 10m or about 0.5 seconds travel time from the start of the unconsolidated surface”: Statement of Mr Tulloch Annexure DCT-3, Addendum Report page 19, Part 4.0.
75 Fuller-Lyons v New South Wales [2015] HCA 31.
76 Statement of Mr Tulloch Annexure DCT-2, Attachment 1 (page 6 of first report).
77 ibid.
78 ibid page 22, (page 7 Part 5.2).
79 ibid page 21 (page 6 Part 5.1).
80 [2003] FCAFC 180 at paragraph 13.
81 Statement of Mr Swinnerton at paragraph 189. The paragraph refers to other terminations that were not in evidence.
82 The “Manage What Matters Project” investing $1.5m across all BMA mines, including road surface improvement: Statement of Mr Swinnerton at paragraph 200 to 204.
83 eg Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20.
84 op cit.
85 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.
86 Kenley v JB Hi Fi Print 7235 at [34].
87 [2010] FWAFB 10089. Application for judicial review dismissed: Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54.
88 [2010] FWAFB 10089 at [44].
Printed by authority of the Commonwealth Government Printer
<Price code G, PR568644>
10
0