Mr Cliff Jones v BHP Billiton Iron Ore Pty Ltd
[2010] FWA 6959
•23 SEPTEMBER 2010
[2010] FWA 6959 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Cliff Jones
v
BHP Billiton Iron Ore Pty Ltd
(U2010/8123)
COMMISSIONER CLOGHAN | PERTH, 23 SEPTEMBER 2010 |
Unfair dismissal.
[1] On 20 April 2010, Mr Cliff Jones (“the Applicant”) made application to Fair Work Australia alleging that he was unfairly dismissed from his employment with BHP Billiton Iron Ore Pty Ltd (BHPB) (“the Employer”) on 16 April 2010.
[2] Mr Jones has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”). Mr Jones is seeking reinstatement as a remedy for his alleged unfair dismissal and compensation for the period since his termination of employment.
[3] Mr Jones’ application was unable to be resolved at conciliation and subsequently referred to me for arbitration. Arbitration took place on 9, 10 and 11 August 2010.
[4] Mr Jones and his work colleague, Mr Ivan Mountford, Rail Track Technician, gave evidence in support of the application. For the Employer, the following gave evidence: Mr Mark Hutchins, Track Technician and Health and Safety Representative for A Shift; Mr Rhett Arnold, Track Maintenance Supervisor for B Shift; Mr James Durant, Production Planning Engineer; Mr Val Middleton, Structures Inspector; Dr Shane Richardson, Principal Forensic Engineer, Delta V Experts; Mr Damian Cann, Superintendent, Health and Hygiene, Rail Safety Health and Environment; Ms Louise Gibson, Superintendent, Human Resources; and Mr Peter Priestley, Manager, Track and Signals.
[5] To assist proceedings, both parties provided documentation to the Tribunal which was incorporated into proceedings. Having received this material, heard submissions, oral evidence and provided with further exhibits, I reserved by decision. In reaching this decision, I have considered and given appropriate weight to all the material provided to the Tribunal.
BACKGROUND
[6] Mr Jones commenced employment as a Track Maintenance Technician with the Employer on 9 September 2008.
[7] Mr Jones is employed in one of three “gangs” whose role is to ensure that the railway track from Newman to Port Hedland is safe and free of defects. If defects on the railway track are found, they are categorised according to severity and repaired. Mr Jones’ “gang” is responsible for that part of the railway track from Newman to the 294.4 kilometre point from Port Hedland.
[8] On 31 March 2010, an incident occurred on the Newman access road at approximately the 336.5km mark where a truck Mr Jones was driving, veered off the access road and rolled over. Mr Mountford was the only passenger in the truck at the time. No injuries were sustained by Mr Jones or Mr Mountford, however, an estimated $50,000 worth of damage was caused to the truck. This incident led to the Applicant’s termination of employment on 16 April 2010. Much of the evidence and material presented was not contentious, where it was, I have made a finding of fact in those relevant areas.
THE NATURE OF THESE PROCEEDINGS
[9] The Applicant states that:
- there was no valid reason for termination of employment;
- a valid reason for termination of employment must be “sound, defensible and well founded”;
- in determining whether there was a valid reason for the Employer to terminate Mr Jones, I must look at the Applicant’s conduct and determine, on the balance of probabilities, that the conduct alleged took place;
- the test, in examining the alleged conduct, should be based on evidence provided in these proceedings, and not whether the Employer believed, on reasonable grounds, that the alleged conduct occurred;
- it is not the role of the Tribunal to substitute its view for that of the decision of the Employer but to assess whether the Employer had a valid reason to terminate the Applicant in relation to his conduct; and
- in matters involving misconduct, the onus is upon the Employer to establish that Mr Jones’ misconduct took place.
[10] Turning to other matters, the Applicant submits:
- the Employer did not conduct a proper investigation and in doing so, Mr Jones was not afforded natural justice or procedural fairness;
- the Employer, in terminating Mr Jones, employment, failed to take into account his length of service and otherwise good record of employment; and
- Mr Jones’ honest and open participation in the investigation into the incident.
[11] The Employer submitted that safety is the “first priority” in the management of its business. To achieve a safe working environment, it has introduced and implemented numerous policies and procedures which employees, including Mr Jones, are required to comply with in accordance with their contract of employment.
[12] One such safety procedure Mr Jones had to comply with, was BHPB’s Road Going Vehicles Journey Management and Off Site Driving Procedure (“Driving Procedure”). The Driving Procedure required Mr Jones to follow all road and site rules (which includes obeying road speed limits) and must always drive to the conditions of the road, regardless of the posted speed limit signage.
[13] Following an investigation, which included expert evidence, and the absence of an alternative explanation to the contrary, the Employer concluded that Mr Jones was driving in excess of 80kph and consequently was not driving to the conditions of the road. In view of the seriousness of the breach of safety policies; and
- the fact that Mr Jones was likely to know that he was committing these breaches;
- showed no remorse for his conduct; and
- because of the lack of remorse, the Employer had significant and serious concerns, as to whether the Applicant could be trusted to comply with the Employer’s safety policies in the future
his employment was terminated.
RELEVANT MATTERS FOR CONSIDERATION
The Applicant’s Case and the Employer’s Response
[14] Both Counsel for the Applicant and the Employer agreed that the fundamental issue to be determined is whether there was a valid reason for terminating Mr Jones’ employment.
[15] Mr Jones moved to Newman in June 2008 and commenced with the Employer in September 2008.
[16] Mr Jones is employed on Rail Track Maintenance Gang A. Gang A is responsible for the safe conditions of its allocated portion of the railway track between Port Hedland and Newman.
[17] Mr Jones claimed, and it was not contested, that he had “every single ticket on rail” 1 and “at one stage I was the most qualified person in rail2.
[18] Prior to the incident on 31 March 2010, Mr Jones had not been the subject of any disciplinary proceedings 3.
[19] Prior to taking up employment at BHPB, Mr Jones was a safety representative with another mining company 4, however, he has no occupational health and safety training5. The only safety issue Mr Jones was involved in, prior to the incident, was a self reported derailment which, in evidence, he stated, “I could have...gone another 10 yards and jumped back on track and nobody would have known6...But I decided to call and do the right thing, yes. But nothing came of it because, you know, did all the right - went through all the right procedure”7.
[20] Further and finally, Mr Jones instigated daily vehicle pre-start checks in contrast to the established weekly occurrence. Daily vehicle pre-start checks are now mandatory at the Employer’s site.
[21] Mr Jones admitted in evidence, that although the Job Hazard Analysis (“JHA”) in relation to “Early Start” risk control states, “no alcohol”, he had two beers at 5:30pm on the evening before 31 March 2010.
[22] Following two JHAs on 30 July 2010, and a safe start meeting on 31 July 2010, Mr Jones and his work colleagues set off around 5:00am to replace a plug and undertake welding, at the 332 kilometre mark on the rail track.
[23] TK26 is a welding truck and was driven by Mr Mountford on the outward journey to the work site. Other employees travelled in a TK5, which contained a HIAB, and a Crib bus. The outward journey was unremarkable and the work was undertaken smoothly and without problems. Having had morning tea, the gang departed to return to Newman and agreed to meet at Calgin, to unload the old rails.
[24] Mr Jones was the driver of the TK26 on the return journey, and Mr Mountford his passenger.
[25] Mr Jones did not dispute that the driving conditions were normal -- he was not tired, visibility was good, sunny with no dust.
[26] Mr Jones had driven TK26 previously, however, only once without the HIAB on the back 8. The Applicant conceded that TK26 usually “drives all right”9 -- “providing it’s a good road”10 or “except when you hit real bad corrugation”11.
[27] Mr Jones gave evidence that when TK26 hits corrugation “...at any speed, it just vibrates so much up the steering wheel it rips it out of your hand” 12. The Applicant gave evidence of another Track Technician who injured his wrists because he was holding the steering wheel too firm and hit corrugations13.
[28] TK26, while fitted with cruise control, this was not engaged on the day of the incident. However, Mr Jones gave evidence that he checked his speedo regularly.
[29] At the Sand Hills, the Applicant reduced his speed, and after negotiating two bends, increased speed 14. Mr Jones crossed the cattle grid where it was even and continued driving ahead.
[30] Some distance after crossing the cattle grid:
“I hit the potholes and bang, she was gone”. 15
[31] The truck veered to the right. Mr Jones presumed, but could not remember, if he tried to “straighten it [the truck] up” 16. Also at the same time, he hit the potholes, the steering wheel was ripped out of his hand17.
[32] Mr Jones gave evidence that his hands remained on the steering wheel which was shaking “violently” 18, and assumed he tried to straighten up and brake at the same time19.
[33] The truck continued to the right, the back end slid around, crossed the windrow, hit a culvert and tipped over into the wash-out 20.
[34] Mr Mountford kicked out the front windscreen and both employees jumped out uninjured.
[35] The Applicant made radio contact with a Gang A colleague and Mr Rhett Arnold in Newman. Mr Arnold made a brief diary note to say that the incident occurred at 11:30am at the 336.5 kilometre point on the access road.
[36] Mr Jones turned the gas off on the truck and moved away.
[37] Apart from his colleagues setting out the cones to mark out the incident site for investigation, three vehicles passed through the incident area either going to or coming from Port Hedland.
[38] Mr Jones returned to Newman, he underwent a drug and alcohol test which was negative and wrote up an incident report. Mr Jones was not interviewed about the incident 21.
[39] As the Applicant was on the last day of his “swing” he proceeded on five (5) rostered days off. Mr Jones returned to work on 6 April 2010. Mr Jones was stood down, pending an inquiry, on or about lunchtime on 6 April 2010. Mr Jones was not interviewed about the incident until 8 April 2010 as part of Incident Cause Analysis Method (ICAM).
[40] The notes of the telephone interview, as part of ICAM, essentially confirm the Applicant’s evidence of the incident: he was familiar with that area of the access road where the incident occurred; there was nothing untoward regarding TK26 prior to the incident; he had previously experienced the steering wheel being ripped out of his truck (sic) when hitting corrugations and extreme vibration; left hand side of access road had corrugations about 100 metres from grid; “he hit pot holes, veered to the right, tried to bring the truck under control”; thinks he used the brake; mentioned a tyre blow out; was holding the steering wheel loosely and that immediately prior to the incident was driving at 80kph. Mr Jones also stated that he believed that driving at 80kph was suitable given the conditions of the road 22.
[41] Mr Jones did not see a copy of the interview notes until after his employment was terminated but, with one additional comment, agreed with its content 23.
[42] Subsequently, Mr Jones received a telephone call to say that the Employer’s “expert” had provided a report which stated that the Applicant was travelling between 95kph and 100kph and there was a need for further investigation. Mr Jones was not shown the expert’s report.
[43] Mr Jones attended a further meeting on 15 April 2010. Mr Mountford was interviewed on the same day but earlier than Mr Jones.
[44] Ms Gibson gave evidence that Mr Mountford said nothing which raised any concerns for the Employer regarding his behaviour. Further, he did not raise or say anything regarding Mr Jones’ behaviour, or cause of the incident that had not been considered as part of the ICAM investigation.
[45] Ms Gibson’s evidence of the interview on 15 April 2010 revolved around the key finding of the ICAM Report that Mr Jones’ speed was between 95kph and 100kph. Mr Jones understood the allegations.
[46] At the interview, Mr Jones explained, as he did in oral evidence, that he was driving between 70kph and 80kph, but did not look at the speedo at the time the incident occurred. Mr Jones makes the point that a truck will respond differently to a car when hitting a pot hole. The Applicant also informed the Employer that he had been driving the road for 18 months and he looks at his speedo constantly.
[47] Mr Jones stated at the interview that he does not expect to lose his job over the incident but would expect something, and further, he did not cause the incident on purpose.
[48] Although not entirely clear, Mr Jones informed the Employer at the interview that he had been told by those at the incident area, the “tyre marks are clear, come straight out of pot holes, veered to right, clear on day after the incident” 24. As to why there was no over-correction, the conjecture is that, without the HIAB, the truck is lighter. Finally, and it is again unclear, but the notes of the meeting indicate that Mr Jones had not driven TK26 since the HIAB had been removed.
[49] Finally, Mr Jones says that he is being honest and his comments reflect what he normally does 25.
[50] On 16 April 2010, Mr Jones attended what was to be his final meeting where he was advised that the incident was serious, had potential to cause injury or death, he was unable to provide a reasonable explanation “for your speed” (95kph-100kph according to the Employer), and that his actions constitute serious misconduct because he had “disregarded one of the critical controls associated with driving a vehicle, that is, driving within the speed limit and to road conditions. On the basis of these findings, Mr Jones’ employment was terminated.
[51] Finally, it is notable from the notes of the meeting that Mr Jones asserts he could not achieve such a speed from the corner and he would prove it 26.
Expert Evidence
[52] The incident occurred at approximately 11:30am on 31 March 2010.
[53] At 3:26pm on 1 April 2010, Dr Richardson was contacted by Mr Priestley who provided him with basic preliminary material regarding the incident with some photographs of the incident site. Mr Priestley specifically asks, “I would like your assistance in determining if possible speed of truck prior to rollover” 27. Dr Richardson responded at 1:28pm (European Time Zone (ETZ)) to say that he was prepared to assist but required, what he described, as “collision scene survey and...images of the vehicle”28.
[54] Dr Richardson contacted Mr Priestley at 2:09am ETZ advising that he had received the additional images, however, he makes two observations which, in my view, provide context to his overall assessment. The observations are:
“The pre-rollover collision tyre marks are not suggestive of a deflated front tyre, however I cannot prove based on the provided images that the tyre was not deflated to cause the yaw to the right”; and
“...your people would benefit from some education in what to do at a collision scene to record it. I have previously suggested this to BHP Billition (sic). People don’t need to be trained crash investigators rather they need some exposure to the methods to record a scene. So someone else can reconstruct or analysis (sic) the collision” 29. (my emphasis)
[55] On 4 April 2010 at 5:59pm ETZ, Dr Richardson reached the following assessment:
“If the marks are assumed to be yaw marks (a tyre which is rolling and sliding sideways) then the speed of the vehicle at the start of the marks can be estimated using circular motion theory and assuming the friction factor for the road surface” 30.
[56] Following the assumption that the marks were yaw marks, applying a co-efficient of friction and the driver braking, Dr Richardson reached a preliminary conclusion, that:
“...the estimated the speed of the truck at 76kph to 99kph prior to loss of control. To further refine the speed estimate the friction of the road surface (skid tests) at the collision site would need to be measured” 31.
[57] Consequently, a fair assessment of the Employer’s position 3-4 days after the incident, is that the speed of the vehicle at the time the incident happened was, in all probability, greater than 80kph, the designated upper limit on the access road. Further, it was in excess of Mr Jones’ assessment of the speed he was travelling.
[58] For the skid test, Mr Priestly made the assumption that a similar truck would be required. Intuitively, such an approach seems logical, however, Dr Richardson advised that “...you can use a 4x4 (Prado or Landcruiser)” 32.
[59] On 7 April 2010, Dr Richardson estimated:
“...that the vehicle was travelling at between 95kph and 100kph immediately prior to the loss of control” 33.
[60] Dr Richardson asserts in his evidence, that where he is unable to visit the scene of a crash, he can determine its cause remotely using photographs and survey data. This assertion is premised on a crash site being more accurately represented in photographs taken shortly after the time of the crash, than on site inspections, after 48 hours. The Applicant did not argue with Dr Richardson’s contention but submitted implicitly that, an on-the-ground inspection soon after any incident, would appear to provide the best basis for any assessment of the cause of a crash 34.
[61] In the words of Dr Richardson, provided he is “given enough quality information regarding the crash, the value of my assessment and the accuracy of my conclusion, is the same as if I had viewed the scene in person” 35. In view of this opinion, it is necessary to reconcile Dr Richardson’s view on 2 April 2010 that “whilst there have been lost (presumably ‘lots’) of images taken and are useful, your people would benefit from some education in what to do at a collision scene to record if...they need some exposure to the methods to record a scene”36, with his witness statement, which states:
“I was satisfied Priestley had sent me enough photographs to allow me to properly assess the cause of the incident. I was also satisfied that the quality of the photographs and the surveyor’s report were sufficient in order to allow me to make an accurate speed assessment of the vehicle at the time before it crashes” 37
“I was also provided with a lot of good quality photographs which were sufficient to give me a good idea of the crash site” 38; and
“I am also confident in my estimate because the quality of the information that I was provided about the crash...” 39.
[62] In addition, it was notable that when asked by Mr Millman, for the Applicant, to identify the photograph “where we could put our hand on heart and say, ‘that is absolutely a yaw mark’?” 40, it required an adjournment of the hearing. The question was important for the Applicant, as it was his case, that the truck was not yawing. After a 15 minute adjournment, Dr Richardson was able to identify three photographs; 62.18, 62.30 and 62.10241 which together enabled Dr Richardson to interpret that the truck was yawing42. However, following further cross examination, particularly regarding the “slip angle”, or the difference between the direction the tyre is pointing and the direction the tyre is travelling, Dr Richardson agreed that he could not identify any close up of tyre marks to enhance his view that the truck is yawing; to be fair to Dr Richardson, this is due to the nature of the gravel surface. Further and in conclusion, it was put to Dr Richardson:
“If you can't identify from the tyre tread that the truck is yawing because it's reached a critical speed, is it possible that the yaw marks that you're referring to were made at significantly lower speeds than critical speed yaw marks, is that a possibility?---Yes.” 43
[63] Dr Richardson’s speed assessment of the truck was also premised on the fact that if Mr Jones was doing 80kph, and lost control at the cattle grid, he would, after reasonable braking, come to a halt within 90 metres. However, Mr Jones’ evidence was that he travelled over the cattle grid without event and “way after the grid” 44 he hit the pot holes -- “I lost control 90 metres up from the grid”45.
[64] This particular issue is crucial. Should Dr Richardson’s assumption be inconsistent with the evidence of Mr Jones, which he gave within hours of the accident, the conclusion of Dr Richardson has to be reassessed.
[65] In technical matters such as these, the Tribunal needs all the assistance it can receive. Dr Richardson gave his evidence in an impartial way. That evidence was challenged in a fair and vigorous way. While there was disagreement, that disagreement helped narrow down the issues, and my concerns, at least, to the following:
- the assumption in Dr Richardson’s assessment, of the speed of the truck was premised on Mr Jones losing control of the truck at the cattle grid when the Applicant’s evidence was that he lost control 90 metres beyond the cattle grid:
- the absence of photographs of tyre tread to support the proposition that the truck was yawing, and the possibility, because of this, travelling at a significantly lower speed than the speed determined by Dr Richardson;
- the quality of the photographic evidence of the accident site, for analysis and reconstruction purposes.
[66] While a significant amount of other evidence was given by Dr Richardson, it is important for the Tribunal to consider not only his expert evidence, but to evaluate all of the remaining evidence presented at the hearing.
Condition of Access Road
[67] The Applicant made a statement on the day of the incident that he “lost control of truck over potholes and blew front L/H steering wheel. I may have over corrected” and “approximate speed between 60 and 80 km due to pot holes in that area” 46.
[68] Mr Mountford, who was in the truck at the same time as the Applicant gave evidence “...truck ran through pot holes or heavy corrugations which appeared to cause blow out and loss of control...” 47.
[69] Mr Priestley gave evidence that Mr Daley had advised him of the incident on 31 March 2010 that the surface, on that part of the access road, may have been a factor in the incident 48. Accordingly, Mr Priestley requested that Mr Anderson and Mr Middleton attend the site to assess the surface of the access road.
[70] Mr Middleton’s response indicates that Mr Jones was on the wrong side of the road for a “smoother ride” 49. Mr Middleton also confirmed the Applicant’s evidence “that the approach to the grid at 336.3 was reasonably smooth...did not pose any problems, and once again, it was reasonably smooth until 336.35 where there was an area of corrugation, and this appears to be the point of departure...at 336.45 and, from that point, the truck was heading west. Further, “I noticed there were two rail plugs on the passenger side, and this may have contributed to an unbalanced load on the back of the truck”50. While Mr Middleton concludes that speed was a factor in the incident, it is important to note the consistency of evidence with the Applicant that the ride over the cattle grid was smooth and there was an area of corrugation at the point of loss of control of the vehicle. Finally, in cross examination, Mr Middleton agreed that the incident area was “the worst part of the road that he examined”51. Mr Middleton also drew a distinction between driving a four wheel drive vehicle over corrugation at higher speed to make it “easier” to handle, and a truck, which at the same speed, would be “harder to handle”52.
[71] According to Mr Middleton, the corrugation would have been approximately 20-25mm deep and while not “picture perfect”, can be identified on the photographs 53. I finally note the Mr Middleton’s assessment of the surface was done in a Toyota Prado and not a truck.
[72] Prior to the incident, Mr Middleton, on 23 February 2010, came to the view that “there were some rough patches... between 350k and 390k...and [Mr Middleton] would ask the Grader Newman...to concentrate on the area between 390 and 300k” and conceded that the access road should be in better condition 54.
[73] Mr Durant made the observation that the area around the incident site was “not markedly different in condition to the road either side of the accident bar a few small points” 55. Mr Durant adds that, “after the grid, the road cambers to the right and would have induced the vehicle to slew to the right especially after hitting the grid and corrugations at speed56.
[74] Mr Durant’s inspection found that the pot holes would be about “five centimetres probably deep” 57. Importantly, Mr Durant advised, from his experience, that he would ask for the road to be “graded upward”58.
[75] Mr Arnold, the Track Maintenance Supervisor for B Shift had a lot of experience (8 years) driving trucks similar to TK26 on the access road.
[76] Having first-hand experience, Mr Arnold gave evidence that while the maximum speed is 80kmp, it does not mean it is safe to drive at that speed. Further, the ruts that appeared after the cattle grid were not unusual but the road is, “rocky...attracts dusts, and the ruts and corrugations tend to be slightly worse than in the rest of the access road” 59.
[77] It was uncontested that a BHPB employee had sustained wrist injuries while traversing corrugations. However, the extent of those injuries may not have occurred if the employee was holding the wheel correctly. The employee was not called as a witness, consequently, the relevance to the hearing is contextual and not conclusive of the Applicant’s assertions.
[78] Finally, and this appears to support Dr Richardson’s claims regarding the need to improve photograph images, it was difficult in many photographs to appreciate the depth of pot holes, corrugations or ruts, due to them being taken in the middle of the day 60.
[79] It was uncontested that in late February or early March 2010, the area subject to the incident was last graded and it was planned to have the area graded again shortly after the incident.
ICAM Report
[80] The ICAM Report determined that the root causes of the incident was that the driver of TK26 did not drive to the conditions or the sign posted speed of the access road and concluded that Mr Jones was driving between 95kpm and 100kph. Having arrived at the root causes, the Report poses the question why? The responses in the Report are divided into three categories, and in each case, the response leads to further questions and responses:
A. Response: believed the road conditions had improved and could handle increased speed after negotiating Sandhill area.
Question: why?
Response: no warning that road conditions remained a hazard.
Question: why?
Response: no common practice to place warning signs for corrugations.
B. Response: no deterrent for driving at high speed.
Question: why?
Response: IVMS not fitted in truck.
Question: why?
Response: business decision not to fit IVF in large trucks.
C. Response: driver did not comply with access road rules.
Question: why?
Response: radar monitoring was not a deterrent for speeding.
Question: why?
Response: workers had not been radar tested recently.
[81] Mr Jones’ termination letter asserts that his failure to take every action to mitigate risks at the workplace, cannot be tolerated, however, the ICAM Report gives context to his action of speeding in the workplace (which is denied by Mr Jones).
DISCUSSION AND CONCLUSION
[82] Put shortly, the issue for the Tribunal is to consider the conflict between the oral evidence given by the Applicant and his passenger plus documentary material collated for the ICAM Report and disciplinary investigation, and the expert evidence of Dr Richardson which the Employer substantially relied upon to terminate Mr Jones’ employment.
[83] These proceedings have enabled full analysis of Dr Richardson’s assessment of Mr Jones’ speed at the time of the incident. The analysis has questioned some assumptions made by Dr Richardson. Further, it has enabled, for the first time, the Applicant’s context and statements to be considered; it should be remembered that Dr Richardson’s final assessment was provided to the Employer on 7 April 2010 and Mr Jones was first interviewed for ICAM Report purposes on 8 April 2010.
[84] Having received Dr Richardson’s assessment on the causation of the incident, the Employer relied upon it as the root cause for the purposes of the ICAM Report, and subsequently, in the disciplinary investigation. For the lay persons involved in these investigations, Dr Richardson’s assessment was understandably, in my view, considered an established fact.
[85] Mr Jones attempted also to provide his lay person explanation of the incident but could not persuade the Employer, as honest and candid as he was, of what happened; having heard all the evidence, his prospect of success, at the time, was limited.
[86] The nature and totality of the evidence presented in the hearing made it necessary to consider why Mr Jones would act in the way alleged by the Employer, if he did act in the way alleged.
[87] While having no formal training in occupational health and safety, prior to taking up a position with the Employer, he had been elected as the health and safety representative with a previous employer. In the period of employment with BHPB, he had only one self reported, safe incident. Further, Mr Jones had suggested, and subsequently was implemented, a safety improvement at his workplace.
[88] In addition, without exception, his work colleagues had observed Mr Jones to be a safe and competent employee. Finally, on the day of the incident, Mr Jones was in the last vehicle to leave the work site and, because of a discrete work finishing time, there appears to have been no immediate benefit in hurrying back to Newman.
[89] In the interview on 16 April 2010 and in the letter of termination of employment on the same date, the Employer asserts that Mr Jones could not provide any reasonable explanation for the vehicle leaving the road and subsequently rolling over. While a purposeful area for investigation, Mr Jones did provide an explanation which was, to the best of his knowledge, he was driving within the designated speed limit. I am satisfied that the request to provide a “reasonable explanation” for the incident was essentially an opportunity to rebut the speed assessment of Dr Richardson.
[90] Faced with Dr Richardson’s expert assessment, I am satisfied that the Employer “down played” Mr Jones’ explanation. In reaching this conclusion, I should emphasise that there was nothing which concerned me regarding Mr Jones’ reliability and credibility as a witness. I consider it a fair assessment to say, that apart from this one incident, there were no deep seated concerns by the Employer regarding Mr Jones’ safety behaviour or conduct - in fact, it was the opposite.
[91] Finally, it was noticeable, during the conduct of the investigation, there was no criticism of the Applicant even to the extent that, his letter of termination, provided a “back handed” compliment regarding his candour.
[92] Having considered Mr Jones’ safety behaviour and conduct, it is necessary to consider it in the context of the Employer’s decision-making process to terminate his employment.
[93] Ms Gibson gave evidence that the Employer concluded that Mr Jones’ actions “reflect little regard or an intent not to conform to HSEC requirements and/or Iron Ore Policy” 61. Those actions, together with the fact that Mr Jones had received the relevant training and information, meant that his conduct fell into the “reckless violation” category of the Just Culture Decision Tree and as a consequence, the potential outcomes, were discipline or termination62.
[94] The reason why the Employer considered it was a “reckless violation” was that Mr Jones had stated during the disciplinary investigation: that the condition of the road was poor; the vehicle was difficult to handle; and “he didn’t consciously make sure he wasn’t speeding. So that’s why we wouldn’t end up at error, slip or lapse because we had a yes coming out of that [reckless violation] box” 63. Further, Ms Gibson’s statement conveys clearly the Employer’s view, that if Mr Jones thought the road conditions poor, he was expected to take adequate precautions to ensure he was not speeding. While the Tribunal has not had the benefit of travelling the access road, the evidence given and photographs taken indicate it would not be a “smooth ride”. The driver would need to be alert to the conditions of the road, and periodically look at the speedometer. Further, the movement of the truck would, given all the circumstances, not lead to consistent foot/accelerator pedal contact.
[95] Ms Gibson is saying, for the Employer, that if Mr Jones knew the road was in poor condition, he needed to adjust his driving behaviour and not have run off the road and rolled over. Consequently having run off the road, together with having received training, the Employer arrived at the conclusion that his conduct was reckless violation. For the reasons above, I am not satisfied that this conclusion is sound and certain -- all the observations of the witnesses, save one self reported instance -- are that Mr Jones had an active and positive behaviour to workplace health and safety.
[96] Having reaching the above conclusion, I am satisfied that applying the supporting guidelines of the Just Culture Decision Tree, particularly:
“The decision maker will then need to exercise judgement to determine an appropriate course of action giving consideration to the broader situation including mitigating circumstances and previous safety breaches” 64
that Mr Jones’ conduct did not fall within the ordinary meaning of reckless violation.
[97] Mr Jones’ actions/behaviour both in his 18 months employment, and at the incident, indicated a desire to conform with applicable procedures and policies; consequently, applying the Just Culture Decision Tree flowchart, his conduct fell into the error, slip or lapse category.
[98] With respect to Dr Richardson’s report, it is necessary to consider whether he had sufficient information and photographic images to determine with certainty the speed of the vehicle at the time of the incident.
[99] Firstly, it is noticeable and notable that Dr Richardson, on receiving the photographic images, reflects, in my view, on their imperfect nature for analysis, and the need for education/exposure to record an incident site. Further, he received an incident report which states:
“...As they travelled...and over the cattle grid, the vehicle lost control veering off to the right hand side of the road...” 65
[100] In view of the incident report, Dr Richardson calculated the speed of TK26 at the time of the incident based upon losing control at the cattle grid. Dr Richardson’s commencing point appears logical in view of the way it is expressed in the incident report. Dr Richardson concludes:
“I believe it likely that the truck crossed the cattle grid at speed and experienced bounces of the grid in the vertical plane. As the truck has bounced, the steering became lighter due to the reduced contact force between the front steer and the travel road. As the steering became lighter, the driver turned the wheel more than he would usually would in order to get a response from the vehicle. He has overturned the wheel causing the vehicle to go off to the right...” 66
[101] However, the evidence of Mr Jones was that he crossed the cattle grid without event, hit pot holes about 90 metres from the grid and this is where he lost control, veered to the right. The fact that the cattle grid did not pose a problem was corroborated by the evidence of Mr Middleton and Mr Durant who stated that the ruts appeared after the cattle grid.
[102] While it is understandable that Dr Richardson’s calculation of vehicle speed commenced with loss of control at the cattle grid, this was not the evidence presented at the hearing.
[103] Dr Richardson’s logic was that if Mr Jones was travelling at 80kph at the cattle grid, lost control and decelerated, he would have come to a halt after approximately 100 metres. However, if the assumption of losing control at the cattle grid is erroneous, then the conclusion reached by Dr Richardson is uncertain.
[104] As a result of these proceedings, I am satisfied that there is uncertainty as to the speed Mr Jones was travelling just prior to losing control of the vehicle. Consequently, the causation factor relied upon by the Employer (travelling between 95kph and 100kph) which leads to Mr Jones not driving to the road conditions, which subsequently led to breaching safety policies and procedures, and ultimately, termination of Mr Jones’ employment, is not certain or reliable.
[105] I now turn to the conditions of the access road.
[106] I agree with Dr Richardson that while many of the photographic images are useful, it has been difficult to determine what inference can be drawn from the photographs. However, I am satisfied from the photographs and the evidence, viewed broadly, the access road has corrugations, ruts, pot holes, rocks, dust and is uneven. Consequently, it would be necessary for drivers of vehicles to be diligent and vigilant. However, I am also persuaded by the images, evidence and the totality of Mr Jones’ previous conduct in relation to safety matters, that he may have miscalculated or was unprepared for the unexpected - which happened.
[107] In reaching this decision, I draw also from the evidence of Mr Mountford who stated that ordinarily there may be no problems handling the truck:
“...then out of the blue, so to speak, I could hit a ridge or a rock or a pot hole, something minor, that could affect the truck adversely at any time, but it’s not one of those predictable things...” 67; and
“Did you think he was speeding?---No, I didn't think so.” 68; and
“Did you think he was driving to the conditions of the road?---I would've thought so, yes. I didn't feel uncomfortable with his driving. I suppose I was just thinking about my time off that was coming up that night, but I saw nothing out of the ordinary and I didn't feel uncomfortable with it.” 69
[108] In view of the fact that Mr Mountford was Mr Jones’ passenger at the time of the incident, his cross examination, of necessity, contrasted with the Employer’s case. In cross examination, Mr Mountford explains the context and the incident on the day as follows:
- “Yes, if you paying attention to the conditions of the road and driving at a speed appropriate to the conditions of the road. That's what the rule is, isn't it?---Yes, that's correct. But that's as long as you're aware that it's there. It gets me back to the point before, that different hours of the day - let me say - the sun shining at a different angle can accentuate the faults or problems in the road. When the sun is sitting high, as it would've been on that day, it's reflecting straight down there. There are no shadows projected from the irregularities in the road, which makes them harder to see.” 70
- “No, you're feeling it necessary to go from my question to an explanation of how it is that Mr Jones might have had the accident. Is that right?---No, I'm just trying to - you're telling me that I should be aware of obstacles on the road if I was concentrating on what I was doing. That is not always the case, you can be caught out. I have been caught out before and I think I'm feeling aware and careful with my driving, but I've still been caught, as all the other drivers have been.” 71
- “You both said that you thought that at some point he might have over-corrected? ---That's correct. I was asked in the interview I think towards the end there, ‘So what do you think caused the accident?’ Like failing the obvious sort of thing which was one of blowout or steering component's failure, I said, ‘I would think the other thing would be over-steering, over-correction’.” 72
- “I'm just saying that speeding would be another explanation?---Somebody's explanation, not mine.” 73
[109] In short, having the benefit of hearing and sighting all of the evidence, I prefer the first hand evidence of Mr Jones and Mr Mountford regarding the road conditions at the time of the incident. This evidence was, in many respects, corroborated by the Employer’s witnesses. This best evidence is not comparable to the material which Dr Richardson had to work with in reaching his assessment of the speed of the vehicle.
[110] During the course of proceedings, the issue of the mechanical condition of the truck before and after the incident and what was referred to as the Hydrosteer report was raised. Similarly, the issue of how the tyres came off their rims was raised. In view of my reasons above, it is not necessary to address the many contested issues relating to this aspect of the proceedings.
LEGISLATION
[111] The key provisions of the Act pertinent to this application are as follows:
- Section 385
“A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code : see section 388.”
and
- Section 387
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
FINDINGS
[112] For the reasons outlined above, on the evidence and documentary material provided in these proceedings, when viewed broadly and fairly, I am satisfied that the Employer’s reason to dismiss Mr Jones for serious misconduct was harsh, unjust and unreasonable. With the benefit of these proceedings, the reason advanced by the Employer of Mr Jones speeding and not driving to the conditions of the road is not borne out by the evidence in its totality. In reaching this finding, I must emphasise that the Employer’s commitment to safety is recognised and complemented. This Decision should not be interpreted by Mr Jones, or any other employees, as impairing or sanctioning anything less than Mr Klopper’s, Chief Executive Officer, commitment to working safely and striving to reach the goal of Zero Harm 74.
[113] The circumstances leading to Mr Jones’ termination were unique and applying the definition of valid, “in a practical, commonsense way to ensure that the employer and employee are treated fairly” 75, I find that the dismissal was unfair pursuant to s.385 of the Act.
REMEDY FOR UNFAIR DISMISSAL
[114] The Applicant is seeking reinstatement in his employment and compensation.
[115] I am assisted by Mr Quinlan, Counsel for the Employer, who submitted that, if the Tribunal was to find the termination was unfair, reinstatement would be an appropriate remedy 76. Accordingly, I shall issue an Order for reinstatement.
ORDER TO MAINTAIN CONTINUITY OF EMPLOYMENT
[116] Section 391(2) states:
“If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person's employment;
(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.
[117] In view of all the circumstances, I consider that the reinstatement be effected in such a way that Mr Jones’ accrued entitlements be maintained from the date of his original engagement as an employee, up to the date of reinstatement and beyond.
ORDER TO RESTORE LOST PAY
[118] On 16 April 2010, Mr Jones received four (4) weeks’ pay in lieu of notice.
[119] On 18 May 2010, at conference, Mr Jones sought and was granted a deferral of the hearing from 2 June 2010 to sometime after 8 August 2010. The deferral was to seek legal advice. The Employer was ready, willing and able to proceed on 2 June 2010. However, if the hearing was not to proceed on that day, an Employer’s witness was not available until 8 August 2010. Consequently, the matter was set down for 9 August 2010. At the conference on 18 May 2010, I advised the Applicant that I would take his request to adjourn the hearing into consideration, should he seek an order to restore lost pay.
[120] From 16 April to 24 September 2010, there is 23 weeks. Mr Jones received 4 weeks’ pay in lieu of notice leaving a balance of 19 weeks. From 11 June to 8 August 2010 is approximately 9 weeks leaving a balance of 10 weeks. Mr Jones advised at the hearing that he had undertaken six weeks’ work since termination of his employment. As Mr Jones deferred the hearing of his application to seek legal advice on the Employer’s action of terminating his employment and the difficulties associated with engaging legal advice from Newman, I propose to make an order that Mr Jones receive four (4) weeks pay as a result of remuneration lost because of his dismissal on 16 April 2010.
COMMISSIONER
Appearances:
Mr S Millman on behalf of the applicant.
Mr P Quinlan, Counsel with Ms H Beech on behalf of the respondent.
Hearing details:
2010:
Perth
9, 10 and 11 August
1 PN 175 Transcript 9 August 2010
2 PN 176 Transcript 9 August 2010
3 PN 184 Transcript 9 August 2010
4 PN 185 Transcript 9 August 2010
5 PN 186 Transcript 9 August 2010
6 PN 195 Transcript 9 August 2010
7 PN 196 Transcript 9 August 2010
8 PN 361 Transcript 9 August 2010
9 PN 366 Transcript 9 August 2010
10 PN 366 Transcript 9 August 2010
11 PN 365 Transcript 9 August 2010
12 PN 367 Transcript 9 August 2010
13 PN 371 Transcript 9 August 2010
14 PN 396 Transcript 9 August 2010
15 PN 400 Transcript 9 August 2010
16 PN 405 Transcript 9 August 2010
17 PN 433 Transcript 9 August 2010
18 PN 440 Transcript 9 August 2010
19 PN 441 Transcript 9 August 2010
20 PN 453 Transcript 9 August 2010
21 PN 512 Transcript 9 August 2010
22 Document 40
23 PN 550 Transcript 9 August 2010
24 Document 5
25 Document 5
26 Document 4
27 Document 24
28 Document 24
29 Document 21
30 Document 19
31 Document 19
32 Document 18
33 Document 10
34 Applicant’s outline of submission
35 Exhibit R5
36 Document 21
37 Exhibit R5 para 27
38 Exhibit R5 para 46
39 Exhibit R5 para 46
40 PN 845 Transcript 10 August 2010
41 PN 892 Transcript 10 August 2010
42 PN 918 Transcript 10 August 2010
43 PN 947 Transcript 10 August 2010
44 PN 1073 Transcript 9 August 2010
45 PN 1083 Transcript 9 August 2010
46 Document 29
47 Document 30
48 Exhibit R8
49 PP 6
50 PP 6
51 PN 679 Transcript 10 August 2010
52 PN 684 Transcript 10 August 2010
53 VM 8
54 VM 1
55 PP 7
56 PP 7
57 PN 534 Transcript 10 August 2010
58 PN 539 Transcript 10 August 2010
59 Exhibit R2
60 PN 413 Transcript 10 August 2010
61 Exhibit R7
62 PP 17
63 PN 1621 Transcript 11 August 2010
64 PP 17
65 SR 4
66 SR 5
67 PN 1431 Transcript 9 August 2010
68 PN 1444 Transcript 9 August 2010
69 PN 1445 Transcript 9 August 2010
70 PN 1562 Transcript 9 August 2010
71 PN 1564 Transcript 9 August 2010
72 PN 1572 Transcript 9 August 2010
73 PN 1575 Transcript 9 August 2010
74 PP 1
75 North J in Selvechandron v Petersen Plastics (1995) 62 IR 371 at 373
76 PN 2172 Transcript 11 August 2010
Printed by authority of the Commonwealth Government Printer
<Price code C, PR501422>
0