Mr Conor Lagan v Watpac Civil and Mining Pty Ltd

[2015] FWC 2905

[2015] FWC 2905

FAIR WORK COMMISSION

DECISION

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

Mr Conor Lagan
v
Watpac Civil and Mining Pty Ltd
(U2014/12555)

COMMISSIONER CLOGHAN PERTH, 30 APRIL 2015

Application for relief from unfair dismissal.

[1] This is an application by Mr Conor Lagan (Mr Lagan or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, Watpac Civil and Mining Pty Ltd (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing, Mr Lagan was represented by Mr Robert Brown. The Applicant gave evidence on his own behalf.

[4] The Employer was represented by Mr S Heathcote of Counsel. Evidence for the Employer was given by:

• Mr J A Robertson, Superintendent; and



• Mr J D Chomley, Alternative Project Manager.

[5] This is my decision and reasons for decision on Mr Lagan’s application.

RELEVANT LEGISLATIVE FRAMEWORK

[6] There is now no dispute between the parties that Mr Lagan has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.

[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”

[8] Section 387 of the FW Act is as follows:

“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.”

RELEVANT BACKGROUND

[9] The Applicant was employed by the Employer from 3 September 2012 to 26 August 2014.

[10] Mr Lagan was employed at the Nullagine Iron Ore Project site.

[11] During his period of employment, the Applicant was involved in three incidents; the last of which resulted in Mr Lagan’s dismissal.

[12] On 5 February 2013, Mr Lagan was issued a “Final Warning Letter” by the Mine Superintendent regarding an incident on 3 February 2013. In the incident, the Applicant was driving a loaded dump truck when he drove on the wrong side of the road to avoid a break up in the road. In doing so, he lost control of the dump truck, hit a tree and caused damage to the truck 1.

[13] The Employer concluded that Mr Lagan failed to comply with the designated speed limits and a prior instruction from the Shift Supervisor regarding gear selection; this failure to follow instructions contributed to the Applicant losing control of the truck 2.

[14] In addition, the Applicant was advised that his failure to stop at the site of the incident and report the matter was a breach of site safety policies 3.

[15] At the meeting following the incident, Mr Lagan acknowledged that his actions had been unacceptable and he understood the severity of the incident 4.

[16] The Final Warning Letter concluded, by informing Mr Lagan, that he must comply with all of the Employer’s policies and procedures and that any further breach may result in disciplinary action, which could include termination of his employment 5.

[17] On 1 April 2014, the Applicant received a further “Final Written Warning”. The correspondence refers to an incident on 13 March 2014. With respect to this incident, the Employer acknowledged that there were many contributing factors to the incident in which the truck, Mr Lagan was driving, made contact with a dozer. However, the Employer came to the conclusion that, notwithstanding the contributing factors and taking into account the previous warning on failing to “freeze the scene”, Mr Lagan should be issued with a final warning and advised that any further breaches of policy would “likely result in the termination of [his] employment” 6.

[18] The third incident which ultimately led to Mr Lagan’s dismissal will be discussed later in this Decision.

[19] Mr Lagan submits that in each of the three (3) incidents, there was “contributory negligence on behalf of the Employer, lack of adherence to procedure and procedural fairness and a disregard for employee health and welfare” 7.

[20] The Employer submitted that the Applicant knew its safety rules, but despite its repeated efforts to remind the Applicant to work safely, he continued to flout its safety rules 8.

[21] The last incident was described by the Employer as a “very fortunate near miss” 9. Following the incident, the Applicant was given the opportunity to explain why he behaved in such a dangerous way. The Applicant failed to provide to provide a suitable explanation. Ultimately, the Employer came to the view that Mr Lagan “posed a risk to himself and colleagues” and had no choice but to terminate his employment. The Employer submits that Mr Lagan was given procedural fairness in the termination of his employment.

[22] Mr Lagan’s letter of termination of employment relevantly reads:

“It has been concluded that the incident you were involved in on Saturday, 23 August uncovered that you failed to follow correct on-site safety procedures, which could have potentially resulted in a major or catastrophic event On this occasion, your behaviour has been assessed as a reckless violation of on-site safety procedures, and given there have been other examples of you failing to comply with safety procedures, the decision has been made to terminate your employment contract with notice.” 10

CONSIDERATION

[23] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[24] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[25] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[26] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 11.

Incident on 23 August 2014

[27] The Applicant was dismissed by the Employer following an incident on 23 August 2014, and took into account two (2) previous warnings issued to Mr Lagan regarding incidents which involved safety and non-compliance with the Employer’s site policies and procedures.

[28] The incident which led to the Applicant’s dismissal on 23 August 2014, is that of Mr Lagan failing “to follow correct on-site safety procedures” 12.

[29] The incident can be broken down into the following component parts.

Speed

[30] The following evidence was given in cross examination:

“So at the time that you got to the bottom, you were required to get the dump truck into low gear and proceed up the ramp at 20 kilometres an hour.  That is what your standard operating instructions are, aren’t they?---That’s – that’s correct.

Is that what you did?---No.

So you approached the slope, that is the bottom of the ramp, more quickly than 20 kilometres an hour?---Yes.

You weren’t necessarily in low gear at that point?---No.” 13

Radio contact

[31] Mr Lagan gave evidence that the correct procedure is for a Dump Truck driver to make positive radio contact with a Grader driver, and advise the driver that they are in the vicinity and intend to overtake. The Grader driver stops and the Dump Truck keeps moving and overtakes the Grader 14.

[32] Mr Lagan’s evidence in cross examination was as follows:

“So the protocol is you stay behind the grader until you first establish positive radio communications with the operator.  That is correct, isn’t it?---Yes, you do.

On this occasion all you did was attempt to make the contact and then overtook anyway?---No, that’s not correct.  I attempted to make contact and when I couldn’t make contact I was actually not overtaking.  I actually pulled up to the rear of him as he pulled out in front of me.” 15

“So why did you try to make radio contact with him?---Because that’s what you do when you come up behind a grader.” 16

“So you moved yourself to a position on the road where you could overtake?---Yes, if the opportunity arose.

You began to make the overtaking manoeuvre, didn’t you?  You started to drive past it?---I positioned myself to overtake the grader, yes.

At that point in time you hadn’t had any communication with the grader operator at all, had you?---No.

So you know full well that to do what you were doing in those circumstances was contrary to safety instructions?---Yes.” 17

[33] Mr Lagan’s written witness statement relevantly reads:

“...I failed to gain positive radio contact with the grader driver as I had inadvertently turned my radio to the wrong channel.” 18

[34] On his own evidence, Mr Lagan agrees that, in relation to speed and radio contact, he failed to comply with the Employer’s site safe operating procedures.

[35] In his witness statement, the Applicant asserts that he does not consider himself “totally blameless” and contends with respect to the incident on 23 August 2014, “As I passed, the grader driver began to turn into my path. Simultaneously, we both recognised the danger and stopped, freezing the scene.” 19

[36] In cross examination, Mr Lagan changed his evidence from “as I passed [the Grader]” to “attempted to pass” 20. This change in his evidence marked the beginning of the Applicant, in cross examination, giving evidence that was inconsistent, improbable and contradictory in some cases. It is not necessary to make a finding on each and every issue raised save to say as follows.

[37] Mr Chomley’s evidence is that he dismissed Mr Lagan on 26 August 2014, for the incident on 23 August 2014 21taking into account the two previous incidents.

[38] Mr Chomley was advised by Mr Robertson of the incident. Mr Chomley directed that those involved in the incident, and in the vicinity, be required to make written statements before the end of the night shift. Five (5) statements were obtained on what are described as a “HSEQT Form - Witness Statement”. In addition, Mr Chomley spoke to the leading hand, Mr Lagan and the Grader driver.

[39] Mr Chomley’s unchallenged written evidence was that Mr Lagan admitted that:

“(a) he hadn’t been in a low gear and he may have been speeding;

(b) his two-way radio was tuned to the wrong channel; and

(c) he hadn’t establish[ed] positive communications with the grader operator before he attempted to overtake the grader.” 22

[40] At this point, Mr Lagan was suspended with pay.

[41] The written statements are generally consistent with Mr Lagan’s admissions regarding speed and lack of radio contact with the Grader driver.

[42] In view of credibility issues concerning Mr Lagan’s evidence, I am satisfied that Mr Lagan was passing the Grader when the Grader turned right as set out in the Grader driver’s statement 23.

[43] The statements of the Night Shift Supervisor and Leading Hand both contain the observation that Mr Lagan admitted he was in the wrong and “knows the rules” 24.

[44] Importantly, and again uncontested, was Mr Chomley’s evidence that, “some of the pieces of mobile plant that we use on the Project are very large, and collisions have to be avoided because of the potential catastrophic consequences for the operators.” 25. Clearly, while there is a tendency to refer to machinery on mining sites as “toys”, as was the case in this hearing, the vehicles are anything but “toys” - they are huge and expensive work tools.

[45] The statements by the employees also reveal comments/observations to the effect that Mr Lagan has what can be described as a “flexible” attitude to the Employer’s safety protocols when driving a Dump Truck, and that this was not the first occasion of him not complying with the “rules” 26.

[46] The Employer has a statutory general duty of care to, as far as practicable, provide a safe workplace. It is for this reason that employers identify and prevent unsafe circumstances; that is why the Employer has in place safety procedures or “rules” as they were generically called in the hearing. An employee has a similar statutory general duty of care to both themselves and other employees. It is for this reason, employees, including Mr Lagan, must comply with the “rules”. To not comply with the safety rules, puts employees at risk of losing their jobs - it is no more complicated than that.

[47] Having assessed the respective evidence of both parties, I am satisfied, firstly, that the Applicant failed to follow the correct on-site safety procedures relating to speed when ascending the ramp and communication contact with the Grader driver. Secondly, the Applicant’s failure to follow these procedures resulted in a “near miss” which had the potential to result in a major collision of two large vehicles and injury to himself and the Grader driver. Thirdly, in view of their relevance and their recency, I am satisfied that it was appropriate for the Employer to take into account the two previous final warnings issued to Mr Lagan in making its determination to dismiss him.

[48] In summary, I find that the Employer had a valid reason to terminate Mr Lagan’s employment; it was sound, defensible and well founded. The decision to terminate was not capricious, fanciful or spiteful.

s.387(b) - notification of the reasons for termination of employment

[49] I am satisfied that Mr Lagan, both at the interview on 26 August 2014 and later by correspondence dated 26 August 2014, was notified of the reasons for his dismissal.

s.387(c) - opportunity to respond

[50] Mr Lagan does not assert that he was not given the opportunity to respond during either the meetings on 24 August or 26 August 2014. I also have a statement which Mr Lagan supplied as part of the investigation into the incident on 23 August 2014; the statement is Mr Lagan’s response to the incident.

[51] I am satisfied that Mr Lagan had the opportunity to respond to his conduct on 23 August 2014.

s.387(d) - support person

[52] The Applicant does not assert that the Employer unreasonably refused a support person to be present during the discussions which led to Mr Lagan’s dismissal.

s.387(e) - unsatisfactory performance

[53] Mr Lagan’s dismissal essentially relates to his conduct and its effect on the safety and welfare of himself and other employees. The Applicant was not dismissed, in the ordinary sense, for poor performance.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[54] Mr Lagan’s dismissal was dealt with on-site, but with guidance from the Employer’s Human Resources department. The investigation procedures followed were simple and fairly straightforward.

s.387(h) - other matters

[55] Mr Robertson’s evidence was that “Conor [Mr Lagan] admitted his mistakes and I recall him telling us that he had “fucked up”. This evidence was not disturbed in cross examination. In such circumstances, it is difficult to determine how the Employer can be described as acting unfairly by accepting Mr Lagan’s own account of his conduct.

[56] Mr Lagan infers that because the Night Shift Leading Hand instructed the Grader driver and himself to move their vehicles to a safe area, the “scene” was not “frozen”, and as he continued working for the rest of the shift, that it was, and should have been treated as a minor incident. Firstly, it was a “near miss”. Secondly, the Night Shift Leading Hand reported it to the Supervisor, who in turn, reported it to Mr Chomley; this reporting indicated that the Employer did not treat the matter as “minor”. Once Mr Chomley received a report of the incident, it was sufficiently important, for him, to obtain written statements from the relevant persons, and meet face-to-face, with those directly involved. The Employer could not, and did not, consider the incident minor. The fact that Mr Lagan continued working during the rest of the night shift does not detract from this finding.

[57] Finally, Mr Lagan attempted to re-argue the circumstances of the two earlier incidents in February 2013 and March 2014. While this is not unusual from applicants, the Commission cannot avoid the facts that, in relation to those incidents, the Employer came to a finding, the bases of those findings, and final warnings were issued in which, a further breach of non-compliance with the Employer’s policies and procedures, would likely result in the termination of Mr Lagan’s employment. A further safety breach occurred and the breach was sufficient and valid for the Employer to terminate the employment relationship.

CONCLUSION

[58] Having considered the facts and evidence, and for the reasons outlined above, I find Mr Lagan’s dismissal was not harsh, unjust or unreasonable. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

R Brown on behalf of the Applicant.

S Heathcote of Counsel on behalf of the Employer.

Hearing details:

2015:

Perth,

30 March.

 1   Exhibit A3

 2   Exhibit A3

 3   Exhibit A3

 4   Exhibit A3

 5   Exhibit A3

 6   Exhibit A3

 7   Exhibit A1

 8   Transcript PN335

 9   Transcript PN336

 10   Exhibit A3

 11   Brink v TWU PR922612 at paragraph [7]

 12   Exhibit A3

 13   Transcript PN185 to PN188

 14   Transcript PN200

 15   Transcript PN121 and PN122

 16   Transcript PN165

 17   Transcript PN209 to PN212

 18   Exhibit A4

 19   Exhibit A4

 20   Transcript PN133

 21   Exhibit R2

 22   Exhibit R2

 23   Exhibit R2(c)

 24   Exhibit R2(d) and (e)

 25   Exhibit R2

 26   Exhibit R2(c) and (d)

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