Mr Andrew Maunder v Moolarben Coal Operations Pty Ltd

[2014] FWC 7971

[2014] FWC 7971 [Note: An appeal pursuant to s.604 (C2014/7253) was lodged against this decision - refer to Full Bench decision dated 23 January 2015 [[2015] FWCFB 387] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Andrew Maunder
v
Moolarben Coal Operations Pty Ltd
(U2014/6585)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 10 NOVEMBER 2014

Application for relief from unfair dismissal

[1] This decision arises from an application by Mr Maunder for an unfair dismissal remedy pursuant to section 394(1) of the Fair Work Act 2009 (the Act).

[2] Mr Maunder was represented by Mr Adam Walkaden, National Legal Officer, of the Construction, Forestry, Mining and Energy Union (CFMEU). Having considered the requirements of the Act I granted Moolarben Coal Operations Pty Ltd (Moolarben) permission to be legally represented. Moolarben was represented by Mr Simon Meehan of Counsel, instructed by Ms Raynor and Ms Firth of Ashursts, solicitors. I heard the application in Mudgee on 26 June 2014 and in Sydney on 6 and 7 August 2014.

[3] I have had regard to s.396 of the Act and have determined that this application was lodged within the period required by the Act, that Mr Maunder is a person protected from unfair dismissal, that Moolarben is not a small business employer and that there is no issue of genuine redundancy.

[4] It is necessary for me to determine whether or not Mr Maunder's termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“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 for followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[5] Mr Maunder commenced work for Moolarben on or about 5 May 2010 as a mechanical technician. Moolarben terminated his employment with notice on 26 March 2014. At the date of termination of employment Mr Maunder was a leading hand. Moolarben’s reasons for the termination of Mr Maunder's employment are set out in the letter of termination as follows:

“Re: Disciplinary Proceedings

I refer to the Company’s investigation into allegations about your conduct on Saturday 22 March 2014 and to the meeting held today with Barry McKay, Maintenance Manager, Luke Bowden, Environment & Community Manager and yourself. Luke O’Connell was also in attendance as your support person.

The investigation is now complete. In reaching the following findings I have considered all relevant information, including information that has been collected throughout the investigation and your response provided in our meeting on 25 March 2014.

Findings

I have made the following findings in relation to each of the allegations:

1. Failed to isolate and dissipate energies associated with the task. (You were working in and around the engine of EX0112 conducting a 250 hour service and had failed to isolate the machine).

Based on the information in the investigation this allegation has been substantiated.

2. Failed to carry out an appropriate pre-task risk assessment that identified the respective hazards for the task and implement appropriate controls. (A Take 5 was not done prior to the commencement of the task).

Based on the information in the investigation this allegation has been substantiated.

Staff Briefings on 21 March 2014

On Friday 21 March 2014 at approximately 6.50 am during the pre-start meeting Peter Crawford reminded your crew about the need to follow the company procedures, in particular Take 5’s and isolations.

On Friday 21 March 2014 at approximately 7.30 am during the monthly toolbox meeting Bruce Birchall again showed the attached slide and discussed short cuts, failure to assess risks and not following procedures. A copy of the attendance records with your signature is also attached.

On Friday 21 March 2014 at approximately 10.00am both Barry McKay and Scott McDonnell addressed your specific crew and discussed the recent incident where 3 employees were found to have not followed the required procedures.

Breaches

Based on the findings in the investigation I am satisfied that you have breached your responsibilities as employee of MCO. Specifically you breached the following:

• The MCO Isolation Procedure;



• MCO Risk Management Procedure;



• MCO Safety Creed; and



• Your duties under work health and safety laws.

Termination of Employment

In considering the appropriate disciplinary action, the Company has taken all relevant information into account, including:

• Your comments during the meeting today;



• Your role and understanding of the site rule and regulations;



• The fact that you were reminded about the correct safety and risk assessment procedures three times the (sic) day prior to the incident; and



• Your personal circumstances including your length of service and implication of future employment.

Given the serious nature of the substantiated allegations of misconduct and the breaches identified above, the Company has decided to terminate your employment effective from today.

You will be provided with 3 weeks’ pay in lieu of notice as well as any other applicable leave entitlements.

Andrew, I would like to take this opportunity to wish you well in your future endeavours.”

[6] Mr Maunder immediately conceded that he was required to isolate the shovel and complete the "Take 5" and that he failed to do so. Mr Maunder submits that, although there was a valid reason for the termination of his employment because of these failures, that the termination of his employment was nonetheless harsh, unjust or unreasonable.

[7] In particular Mr Maunder submitted that:

• No person was exposed to danger because he had isolated the fuel tank to the shovel and therefore it could not start. The isolation of the fuel tank had the same purpose and outcome as isolating the shovel in the manner required by Moolarben.
• His conduct was unintentional.
• His mistake was an honest one.
• His conduct in the investigation was honest and cooperative. He admitted his mistake.

• He was contrite.

• He has been subject to differential treatment. Mr Maunder alleges that the Open Cut Manager who observed and reported his conduct and the two contractors who were with that manager also failed to comply with applicable procedures and work rules. In relation to this manager and the two contractors, Moolarben has failed to clearly and properly apply its procedures and work rules in relation to isolation and "Take 5".

• Taking into account all of these matters the termination of his employment was disproportionate to the conduct which occurred.

[8] In its Employer Response Moolarben responded as follows:

“1. On 22 March 2014 Bruce Birchall, Open Cut Mine Manager, observed the Applicant working in the engine area of an excavator (EX0112). The Applicant had failed to isolate the machine and had not completed the required ‘Take 5’ risk assessment in relation to the task.

2. The Respondent conducted an investigation in relation to the Applicant’s conduct.

3. During the investigation the Applicant admitted that he:

a. Failed to isolate and dissipate energies associated with the task; and
b. Failed to carry out an appropriate pre-task risk assessment that identified the respective hazards for the task and implemented appropriate controls.

4. The Applicant’s non-compliance with the Respondent’s safety procedures exposed the Applicant and other persons to risk of injury.

5. In response to the Applicant’s contention that the machine could not have started because the Applicant had isolated the fuel taps to the machine, the Respondent says that this process does not isolate and dissipate the energies associated with the task. The isolation of a fuel tap is not a recognized isolation point as a personnel isolation lock cannot be fitted. This process would allow starter motors to start the engines using the un-isolated battery power and residual fuel in the system. The MCO Isolation Procedure requires the worker to isolate and dissipate relevant energies associated with the task in a 12 step process.

6. During the investigation the Applicant admitted that he was focused on ‘getting the job done before the end of my shift’ and ‘rushed my job when I should have stopped.’

7. The day prior to the incident, the Applicant had attended three separate briefings during which he was specifically reminded of the need to carry out risk assessments and isolate machinery. During these briefings the Applicant was told about an incident on 11 March 2014 where three employees failed to conduct risk assessments and isolate a machine and had been disciplined as a result (see further below).

8. The Respondent says that there was a valid reason for the Applicant’s dismissal based on his breaches of Company safety procedures in circumstances where he was specifically reminded about the requirement to follow those procedures the day prior to the incident.

9. The Respondent does not accept that the dismissal was disproportionate to the Applicant’s conduct.

10. On 11 March 2014 three employees were involved in an incident where they failed to isolate a truck and failed to carry out adequate risk assessments. The Open Cut Manager was not involved in this incident as the Applicant contends. The employees involved in the incident were subject to disciplinary action.

11. Following the incident on 11 March 2014, the Respondent undertook briefings of all employees during which they were specifically reminded of the requirements in relation to risk assessments and isolations and were put on notice that failure to follow safety procedures could result in termination of employment.

12. The Respondent determined that the Applicant’s circumstances should be distinguished from those of the three employees who were involved in the incident on 11 March 2014 because the Applicant, unlike the other employees, had been specifically reminded of the requirement to follow risk assessment and isolation procedures on three occasions the day before he engaged in conduct in breach of those procedures.”

[9] Mr Birchall, the Open Cut Mine Manager at Moolarben, provided a statement 1Exhibit Moolarben 2and gave evidence. His evidence regarding the Toolbox Talk on 21 March 2014 is set out below:

“3. On Friday 21 March 2014 at approximately 7.30am, I conducted the monthly Toolbox Talk with the Red Crew. During the Toolbox Talk, I said words to the effect of:

Everyone is reminded about the importance of following procedures at all times. As you are aware, we had an incident a couple of weeks ago with employees not following the correct procedures. That incident is still under investigation, so I will not go into detail about the incident, however the key issue in that incident was people rushing into tasks and not isolating energy. Everyone must remember to focus on the safety of every task that you perform.” 2

[10] Mr McKay, the maintenance manager at Moolarben, provided a statement 3and gave evidence. His evidence regarding the issues he took into account when deciding to terminate the employment of Mr Maunder are set out below:

“Steps for undertaking 250 hour service on EX112 Shovel

19. Part of Mr Maunder’s role as a mechanical technician was to perform 250 hour services on the EX112 Shovel. A 250 hour service is usually done every 2 weeks because the EX112 Shovel is in operation for around 100 hours per week.

20. Annexed and marked BM-7 is a copy of the Moolarben 250 HR Maintenance Inspection Service Sheet. This document sets out the processes involved in carrying out a 250 hour service and includes important safety instructions and warnings for maintenance personnel carrying out such a service. This document was initialled by Mr Maunder on 22 March 2014.

Impact of failure to isolate

21. Failure to isolate a piece of equipment before undertaking maintenance work on that piece of equipment is a serious safety breach and could result in that equipment inadvertently starting or an uncontrolled release of energy which could in turn cause serious injury or death.

22. If the isolation procedure has been followed correctly in relation to the EX112 Shovel, either the starter motor or the battery is disabled. In either case, the engine cannot be started. If the machine is not isolated, the ignition can be started on the shovel.

23. Turning off the fuel taps on the EX112 Shovel is not sufficient to prevent the engine from starting, because there is sufficient fuel in the fuel rail, fuel pump and pump suction line to allow the engine to start.

24. On 28 July 2014 I carried out live testing of the EX112 shovel which involved removing the fuel filters from the EX112 Shovel and then starting the engine.

25. This test confirmed my previous understanding that if the fuel filters have been removed in order to be changed, this does not mean the engine cannot start, because there is still sufficient fuel in the fuel rail, fuel pump and pump suction line to allow the engine to start.

26. During this test the engine continued to run for 23 second (sic) before it stopped as a result of air getting into the system.

27. Since the 250 hour service involves the technicians working in and around the engine of the shovel, if the machine has not been isolated in accordance with the required procedures, there is a risk that the engine could be started and this could result in a serious injury to a technician, including from moving parts, engine oil (which may be hot and is also pressurised) or engine cooling water (which can be very hot).

28. By way of example, the tasks involved in the 250 hour service include inspecting the air conditioner compressor drive belts and the alternator drive belts. In order to inspect these belts, it is necessary to remove the cover which protects the belts and check the belt tension. If the shovel is not isolated during this task, there is a risk that a technician could be seriously injured by moving parts if the engine was started while the technician was performing this task. Annexed to this Statement and marked BM-8 is a photograph showing the protective covering over these belts that needs to be removed for the purposes of the inspection.

Safety reminders prior to incident

29. On 11 March 2014, a serious safety incident occurred on site that involved a fully loaded haul truck with a damaged rock ejector being stopped on a ramp. Maintenance employees had proceeded to undertake work on the damaged ejector while positioned directly behind the haul truck wheels, without first following the isolation procedure. The employees had put themselves at risk of being crushed by the truck if it were to move. Following this incident a formal investigation was conducted. An incident alert was also published explaining the details of the incident and lessons learnt to all employees. A copy of the Incident Alert that was published is attached to this Statement and marked BM-9. The incident, the outcome of the investigation, and the importance of safety and following company procedures was also discussed with crews at pre-start meetings following the incident. Mr Maunder was in attendance at such prestart meetings.

30. On 21 March 2014, on three separate occasions, reminders were given to Mr Maunder’s crew about the incident on 11 March 2014 and the importance of safety and following procedures and completing Take 5s before each job, by Peter Crawford, Bruce Birchall and by me.

------

40. In light of all the information I had gathered, including through the company’s investigation into the incident and Mr Maunder’s response to the allegations, I made the decision that dismissal was appropriate in all the circumstances. I came to this decision on the basis of the following:

a) Mr Maunder had admitted failing to isolate and dissipate energies associated with the 250 hour service he was carrying out with Aaron Dawson on the EX112 shovel. He failed to isolate the primary source on the machine.

b) Mr Maunder had admitted failing to carry out an appropriate pre-task risk assessment (Take 5) that would have identified the respective hazards for the task and prompted him to implement appropriate controls before commencing work, including by isolating the machine with his personal lock.

c) Mr Maunder said that he isolated the fuel valves, but this was only a secondary source of energy and would not necessarily have prevented the engine from starting using residual fuel. Since there is fuel stored in the injectors, fuel pump and supply lines, I understood that the engine would have run for a few revolutions if the shovel had been turned on by someone who was unaware that the employees were working in the engine bay.

d) Failing to undertake these steps constituted a serious safety risk that endangered Mr Maunder’s and Mr Dawson’s safety.

e) Failing to undertake these steps breached a number of company policies including the Moolarben Isolation Policy, the Moolarben Risk Management Procedure, the Moolarben Safety Creed, and Mr Maunder’s individual duties under work health and safety legislation.

f) Mr Maunder had been trained in the Moolarben Isolation Procedure, and held the additional responsibility of an Authorised Isolator and Permit Holder. Mr Maunder knew that he had to perform the personal isolation procedure and the group Take 5 that Scott McDonnell had done earlier that day was not sufficient.

g) As well as his training, Mr Maunder had been in attendance at 3 separate briefings only the day before the incident where he and the rest of the crew were reminded about following procedures, including doing a Take 5 and isolating machinery.

h) the reminders had been as a result of another safety incident on 11 March 2014 which all of the maintenance department, including Mr Maunder, had been made aware of.

i) It was unacceptable that Mr Maunder said that he forgot to follow the procedures after so many reminders and I could not be confident that he would not forget again.

j) Allowing Mr Maunder to step down from his role as Leading Hand would not have ensured that he did not forget this fundamental step again.”

Whether there was a valid reason for the dismissal - s.387 (a)

[11] I am satisfied and find that Moolarben had a valid reason for the termination of Mr Maunder's employment. This reason was his failure, when conducting a 250 hours service, to isolate an EX112 Shovel and undertake a "Take 5". Moolarben's reasons for the termination of Mr Maunder’s employment were sound, defensible and well founded.    4

Notification of the Reason - s.387(b)

[12] I am satisfied and find Mr Maunder was notified of the reason for his dismissal.

Opportunity to Respond - s.387(c)

[13] I am satisfied and find that Mr Maunder had an opportunity to respond that was appropriate and adequate.

Support Person - s.387(d)

[14] There was no unreasonable refusal to have a support person present.

Unsatisfactory Performance - s387(e)

[15] Except in so far as Moolarben had a valid reason for Mr Maunder's termination of employment related to this particular instance of unsatisfactory performance, there were no performance issues.

Procedures for implementing dismissal - s.387(f) and (g)

[16] I am satisfied and find that the procedures adopted by Moolarben were appropriate. Given the size of Moolarben’s business and the availability of professional advice I am satisfied that the issues outlined in this subsection of the Act have no relevance to my consideration of this application.

Any other relevant matters – s.387 (h)

[17] I did not accept Mr Maunder's submission that, because he locked off the fuel lines, there could be no adverse consequence arising from his failure to apply a red lock. I am persuaded that there would be less risk in such circumstances. I am not persuaded that there would be no risk. However, that is not the point. What was and is required by Moolarben is best practice, and best practice is placing the red lock on the shovel.

[18] I have considered the detailed cross-examination of witnesses and the painstaking submissions of Mr Walkaden concerning what he identified as the failure of Moolarben to consider, and deal with in a consistent manner, the conduct of the Open Cut Manager at the site on the occasion when Mr Maunder's mistake was discovered.

[19] Mr Walkaden meticulously led the witnesses and me through a consideration of the actions of the manager and the two contractors who were at the site, in an attempt to establish that those persons also breached the safety procedures of Moolarben.

[20] I was not persuaded that the manager and contractors were in breach of Moolarben’s safety procedures, although Mr Walkaden’s cross examination did cause me to consider whether they might have been inappropriately close to the shovel. Despite my conclusion I decided to consider Mr Maunder’s situation as if the manager and contractors had been in breach and, if so, whether the failure to discipline those persons would have led me to conclude that there should have been a different outcome for Mr Maunder. Given the circumstances surrounding Mr Maunder’s breach, against a background of recent warnings, was there a sufficient standalone reason for the termination of his employment that was not harsh, unjust or unreasonable? I concluded that any differential treatment of the manager and contractors would not have persuaded me to a different conclusion.

[21] I have also considered the circumstances of those workers who breached the isolation and "Take 5" in the period before Mr Maunder’s safety breach and his dismissal. They were not dismissed for that breach. I am satisfied that what occurred following the safety breach by those workers is that Moolarben took into account its own failure to adequately highlight its safety procedures as a mitigating factor. I am satisfied that Moolarben subsequently adjusted its conduct and engaged in a process which highlighted the safety procedures. I am satisfied that, as a result, Mr Maunder was reminded of those procedures.

[22] Because Mr Maunder and others received that warning, and received them so close in time to his failure to adhere to the procedure, I am satisfied that Mr Maunder’s circumstances can be distinguished from the treatment of those other workers. There was a sufficient differential in the circumstances surrounding the conduct of Mr Maunder and those persons to cause me to be satisfied that the termination of Mr Maunder's employment was not harsh unjust or unreasonable.

[23] I have considered the financial and social consequences to Mr Maunder of the termination of his employment. The consequences of Mr Maunder's failure to apply the necessary safe procedures have been catastrophic for Mr Maunder and his family. He is a local person and the benefit to him and his family of performing this local work is very great indeed. It is a sad matter to see a careless error lead to such adverse consequences for a talented and hardworking young man with a family. However, whilst taking into account the predictability of human failure and the inevitability of an occasional error in even the best and most careful of workers, I have given greater weight to the possible consequences for other employees and their families if such safe procedures are not as strictly applied as often as is reasonably possible.

[24] This decision should be by no means interpreted as support for the proposition that any error in following a safety procedure is a valid reason for termination of employment or that termination of employment in such circumstances could not be harsh, unjust or unreasonable. This is a matter to be determined on the facts of each case.

[25] I accept that Mr Maunder’s mistake was unintentional, and that he was honest and co-operative in the investigation. His contrition was obvious to me and I accept his evidence that it is his intention to ensure that there are no further mistakes of this kind in his future work life.

Conclusion

[26] Having considered the matters to which my attention is directed by s.387 of the Act I am satisfied that the dismissal of Mr Maunder was on balance not harsh, unjust or unreasonable as contemplated by the Act.

[27] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Walkaden of the Construction, Forestry, Mining and Energy Union for Mr Maunder

Mr Meehaninstructed Ashursts, solicitorsfor Moolarben Coal Operations Pty Ltd

 1   Exhibit Moolarben 2

 2   Exhibit Moolarben 2 para 3

 3   Exhibit Moolarben 3

 4  

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