[2016] FWC 2848

FAIR WORK COMMISSION

DECISION

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

Mr Craig Garland
v
Wambo Open Cut Pty Ltd
(U2015/15407)

COMMISSIONER SAUNDERS

NEWCASTLE, 6 MAY 2016

Application for relief from unfair dismissal.

[1] On the evening of 7 November 2015, Mr Craig Garland, an Operator working at the Wambo Open Cut Mine, reversed a Cat D11T Dozer about 100 m across a dump on the mine. While he was reversing, Mr Garland looked over his right shoulder but did not look over his left shoulder. As a result, he did not see a 500 tonne 1 haul truck that had arrived on the dump to dump its load. After reversing about 100 m, Mr Garland stopped the dozer and put it in forward. He looked up and saw the truck (about 5 m away) reversing towards him. Mr Garland had no time to contact the operator of the truck on his two-way radio to inform him of his position. Mr Garland heard a very loud crunching sound as the truck made contact with the left hand side of the dozer in which he was sitting. The collision caused the entire dozer to slide laterally about 1 m. Mr Garland was wearing a seatbelt at the time, which prevented him from being violently thrown around the cabin, but his upper body was thrown to the right. The size and weight of the truck is such that when the truck collided with the dozer the operator of the truck “felt a bump to the rear of the truck” and thought he “had hit a large rock”. Fortunately, the operator of the truck then stopped reversing and the truck rolled forward. It is also fortunate that no one was seriously injured.

[2] Following an investigation into the events of 7 November 2015, Mr Garland was dismissed by Wambo Open Cut Pty Ltd (Wambo) on 24 November 2015, and was paid two weeks’ wages in lieu of his notice period. Mr Garland claims that his dismissal was harsh, unjust and unreasonable. Wambo denies those allegations.

Agreed matters

[3] It is not in dispute and I am satisfied on the evidence that:

(a) Mr Garland was, at the time of the termination of his employment with Wambo, a person protected from unfair dismissal because he had completed at least the minimum employment period and the Downer EDI Mining Wambo Enterprise Agreement 2011 applied to him (s.382 of the Fair Work Act 2009 (Cth) (the Act));

(b) Mr Garland was dismissed (s.385(a) of the Act);

(c) Wambo was not, at the time of Mr Garland’s dismissal, a small business employer. Accordingly, his dismissal was not consistent with the Small Business Fair Dismissal Code (s.385(c) of the Act);

(d) Mr Garland’s dismissal was not a case of genuine redundancy (s.385(d) of the Act); and

(e) Mr Garland made his unfair dismissal application (the Application) within the period required in subsection 394(2) of the Act.

Hearing

[4] The matter proceeded by way of hearing on 14 March 2016. Mr Garland, Mr Scott Brittliffe, Wambo Plant Operator, Ms Nicole McLeod, Wambo Operator, and Mr Bradley Howard, Wambo Operator, gave evidence on behalf of Mr Garland.

[5] Wambo led evidence from the following witnesses:

(a) Mr Callum Baxter-Walters, Senior HR Adviser;

(b) Mr Corey Ayre, Open Cut Examiner;

(d) Mr Justin Bate, Health Safety Training Adviser; and

(e) Mr Geoffrey Moore, Manager of the Wambo Open Cut Mine.

Was there a valid reason for Mr Garland’s dismissal (s.387(a))?

[6] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 2 The reason for the dismissal should be “sound, defensible and well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4

[7] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 5 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁶

[8] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁷ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 8

[9] The employer bears the onus of proving that the conduct on which it relies took place. 9 The Briginshaw10 standard applies to allegations of serious misconduct.

[10] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 11as follows:

“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal.”

[11] Wambo contends it had a “valid reason” for Mr Garland’s dismissal on the basis that he breached the relevant safe work procedure (WA-MIN-SWP 12250 Operation of a Dozer (Dozer SWP)) in three ways on 7 November 2015. Mr Garland denies that he breached the Dozer SWP.

First alleged breach of the Dozer SWP – failure to comply with the 50 - 30 rule

[12] One of the “Must Do” safety rules in the Dozer SWP is “obey the 50 – 30 rule at all times”.

[13] To comply with the 50 – 30 rule on the evening of 7 November 2015, Mr Garland was required to take the following steps:

(a) Make positive contact with Mr Howard, who was operating the haul truck that came into the dump on which Mr Garland was operating the dozer, outside of a 50 m zone from the haul truck, informing Mr Howard of his intention to approach the area Mr Howard was in;

(b) Stay outside of a 50 m radius from the haul truck until Mr Howard had parked up the truck in a fundamentally stable location; and

(c) Once Mr Howard had parked up the truck, Mr Garland could have advanced to within 30 m of the haul truck, provided he kept the dozer in a fundamentally stable position.

[14] In order to comply with the 50 – 30 rule, it is necessary for the dozer operator to be aware, at all times, of other trucks and vehicles operating in the same work area. On the evening of 7 November 2015, the relevant work area for Mr Garland was the dump in which he was operating the dozer. On that evening, there were 11 dump trucks regularly arriving at and departing from the dump in which Mr Garland was operating the dozer. Accordingly, Mr Garland had to be regularly looking around his dozer to ensure he did not drive the dozer within 50m of a dump truck or other vehicle.

[15] There is no dispute that Mr Garland did not take any of the steps set out in paragraph [13] above on 7 November 2015. The reason he did not do so is because he says he did not, at any time, see Mr Howard’s haul truck enter the dump in which Mr Garland was operating the dozer. I accept that Mr Garland did not see Mr Howard’s haul truck until it was about 5 m away from him and it was too late to do anything to avoid the collision.

[16] I also accept Mr Garland’s evidence that he checked over his left and right shoulders before commencing to reverse the dozer, and that he did not see Mr Howard’s haul truck when he did so.

[17] There is no dispute that while Mr Garland was reversing the dozer about 100 m across the dump, he was looking over his right shoulder but did not look over his left shoulder. Had he looked over his left shoulder during the process of reversing about 100 m across the dump, Mr Garland would have seen Mr Howard’s dump truck.

[18] Mr Garland contends that he did not breach the 50 – 30 rule because he did not see Mr Howard’s dump truck and therefore had no basis to make contact with Mr Howard before entering within 50 m of Mr Howard’s dump truck. I reject this contention. An essential requirement of the 50 – 30 rule for an operator of a dozer is to regularly look around the dozer to ensure it does not come within a 50 m radius of a truck or other vehicle. By failing to look over his left shoulder at any time while reversing about 100 m across the dump, Mr Garland did not keep himself aware of what was going on around him and thereby caused the dozer he was operating to come within 50 m of Mr Howard’s dump truck. That was a substantial breach of the 50 - 30 rule.

[19] Mr Garland also submits that as a result of blind spots around the dozer, there are difficulties with being able to see 360 degrees around the dozer, and as a result he did not see Mr Howard’s truck on the dump. Mr Garland says the blind spots are caused by the following items:

(a) towards the front of the dozer – pillars (which are two feet wide) and the blade of the dozer; and

(b) on the left hand side of the dozer - cylinders for the fire extinguishers, a roll over protection system, a fire suppression for the motor, and an access ladder.

[20] I reject Mr Garland’s argument in relation to blind spots for two reasons:

(a) First, Mr Garland admits that he did not look over his left shoulder while he was reversing about 100 m across the dump. Accordingly, the existence of blind spots on the left-hand side of the dozer did not cause Mr Garland’s failure to see the dump truck being operated by Mr Howard. I accept that Mr Garland needed to look over his right shoulder for part of the time that he was reversing the dozer to ensure he did not run over the windrow, but that did not entitle him to ignore what was over his left shoulder throughout the period of time that he reversed the dozer about 100 m; and

(b) Secondly, Mr Garland gave evidence in cross examination that he would have been able to see 360 degrees around the dozer and therefore avoid the blind spots if he had moved himself sufficiently to do so. 12 That is, if Mr Garland had leaned in different directions in his seat, he could have avoided the blind spots.

[21] The reversing camera on the dozer being operated by Mr Garland at the time of the incident was not working. Mr Garland contends that had the reversing camera been working at the time of the incident, he would have seen Mr Howard enter the dump, made positive communication with him, and applied the 50 – 30 rule.

[22] The fact that the reversing camera was not working does not alter my conclusion that Mr Garland breached the 50 – 30 rule, nor does it absolve him from responsibility for what happened. The fact remains that Mr Garland drove the dozer well within 50 m of the dump truck being operated by Mr Howard without first making contact with Mr Howard or ensuring that Mr Howard had parked the dump truck in a stable condition. Wambo reinforces to its employees that reversing cameras are to be used as additional aids, rather than as a substitution for carrying out manual checks. Further, Mr Garland was aware that the reversing camera was not operating and he needed to use other methods to maintain his awareness of what was around him. In those circumstances, it was incumbent on him to exercise greater caution when reversing the dozer. In addition, Mr Garland did not report the fact that the reversing camera was not operating at the commencement of his shift, which he ought to have done if he considered it to be a genuine hazard.

[23] Mr Garland suggests that he was entitled to assume there would be no dump trucks entering the dump on which he was working at the time he reversed the dozer about 100 m across the dump because he says a code red had been called over the two-way radio immediately prior to the incident. A code red occurs when lightning is in the area of the mine while there is a loaded shot ready for blasting at the mine. When a code red is called, any person operating equipment within 300 m of the loaded shot, or undertaking other work within 500 m of the loaded shot, must stop work and wait to be picked up by a light vehicle.

[24] There is a dispute as to whether or not a code red was called over the two-way radio system on the evening of 7 November 2015. Mr Garland and Ms McLeod, another operator working at the mine on the evening of 7 November 2015, who was not required for cross examination, gave evidence that a code red was called over the two-way radio system due to lightning in the area. Mr Ayre, the Open Cut Examiner working at the time of the incident, accepted in cross examination that there was lightning in the region shortly before the incident on 7 November 2015, 13 the following sequence of codes were issued: blue, yellow, orange, yellow and then clear,14 but there was no code red issued on 7 November 2015. Mr Kane, the Production Superintendent, who was not at work at the time, relied on information from the “control room” to state there was no code red on the day.15

[25] There was no dispute that if a code red was called Mr Garland was entitled to continue operating the dozer because he was not working within the relevant exclusion zone from any loaded shot. Mr Garland gave evidence that the code red might have required some of the dump trucks operating in the area to cease operating if they were operating within the relevant exclusion zone from a loaded shot. 16

[26] I am satisfied, on the balance of probabilities, that a code red was not called at the mine shortly before the incident on 7 November 2015. I make that finding for the following reasons:

(a) Mr Ayre was cross examined about his denial that there was a code red called on 7 November 2015 and he gave the following evidence 17, which I accept as accurate and truthful:

“Did you look at any documents in determining the codes that were called on the evening on 7 November 2015? – – – What do you mean by that?

Have you reviewed any documents to work out what codes were called on that shift? – – – Just the emails come through.

You have reviewed the emails? – – – The emails come through with a lightning code, yes.

Who are they from? – – – Weatherzone.
…

Then once you receive an email, you then make the call on the code? – – – No. Once the email comes through or the phone message comes through, it goes to the underground control. The underground control put an announcement over the two-way and that is when I get the message.

You reviewed those emails, but you didn’t include them in your statement? – – – No.

You didn’t consider them to be relevant? – – – Well, I do now, yes.

I put it to you that there was a code red on that evening? – – – There wasn’t.

The reason you didn’t provide those emails is because it doesn’t help your case? – – – They are here now if you want to have a look.

You have all of them with you? – – – Yes.

Are there any emails missing from that evening? – – – It comes through the time that it comes through in the code colour at that time.

That is all of your emails that you received on the evening of 7 November 2015? – – – Yes.

You are under oath and you are saying to me that is all the emails in relation to the codes called? – – – Yes.

If I can have a look at those codes, thank you.”

(b) Ms Short then proceeded to review the emails provided by Mr Ayre, but no further questions were asked of Mr Ayre in relation to the emails and no attempt was made to tender them;

(c) Mr Kane said in cross examination that: “The evidence that we have from the control room states that there was no code red on that day”; 18 and

(d) It is likely that Mr Garland and Ms McLeod are mistaken in their recollection that a code red was called shortly before the incident. Mr Ayre gave unchallenged evidence that, as soon as he was notified of the incident by Mr Garland, Mr Ayre “instructed all machinery in the dump to pull up and for the circuit to be shut down”. 19 Ms McLeod, whose evidence was not challenged by Wambo, gave evidence that Mr Ayre “instructed the Operators to dump their loads and park up”.20 Ms McLeod’s evidence was that Mr Ayre gave this instruction “after announcing a code red”.21 Given the close proximity in time between when Ms McLeod and Mr Garland believe Mr Ayre called a code red and when Mr Ayre undoubtedly instructed the Operators to “pull up”, together with the documents on which Mr Ayre and Mr Kane reviewed to satisfy themselves that codes blue, yellow and orange, but not red, were called on the evening of 7 November 2015, I am satisfied, on the balance of probabilities, that a code red was not called.

[27] Even if a code red had been called shortly before the incident on 7 November 2015, that would not have provided Mr Garland with any proper basis to assume there would be no dump trucks entering the dump on which he was working at the time he reversed the dozer about 100 m across the dump. That is because Mr Garland gave evidence, as did Ms McLeod 22, which I accept, that he heard over the two-way radio a direction for truck operators to “tip their loads and park up”.23 By that direction, Mr Garland understood, so he said in cross examination, that the truck operators would be dumping their loads in the dump area in which Mr Garland was operating his dozer.24 Mr Garland explained his understanding of the situation in the following way in re-examination:25

“Well, in light of the code red – so a code red is called? – – – Okay.

How do you know how many – can you explain how you know how many trucks are coming to the dump? – – – I don’t know if any have parked up down [at] the digger or the – they’re all coming to the dump, I don’t know.

But they could all be parked up and you wouldn’t have known if they were loaded or not? – – – Exactly, yes.”

[28] Given that Mr Garland was aware that any one or more of the 11 dump trucks operating in the area could have been heading towards, or about to enter, the dump in which he was operating at the time he alleges he heard the code red to dump their loads and park up, he had no basis to assume there would not be any trucks in the dump when he was reversing the dozer about 100m across the dump.

[29] As part of his defence to the claim that he breached the Dozer SWP, Mr Garland also seeks to rely on alleged deficiencies in, and subsequent amendments made to, the Dozer SWP.

[30] Wambo was required to, and did, notify the Mines Inspectorate of the incident on 7 November 2015 pursuant to the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW). An Improvement Notice was issued to Wambo and recommendations were made by an Inspector. Following its investigation into the incident, Wambo reviewed the Dozer SWP and amended it by including the following requirements:

(a) Always check behind before reversing to ensure that it is safe to reverse;

(b) Do not reverse more than 15 meters without stopping and reassessing the area behind;

(d) Always work towards the end of the dump that is active at the time. Do not reverse towards the active end.

[31] Mr Garland also points to the fact that, at the time of the incident, the Dozer SWP did not prohibit dozer operators from reversing the dozer for any particular distance along a dump, it did not state that a dozer operator is required to look both left and right while reversing, nor did it define if back blading (the activity Mr Garland was undertaking on the dozer at the time of the incident) is allowed.

[32] Mr Garland submits that Mr Moore, the Manager of the Wambo Open Cut Mine, gave evidence that there was an acknowledgement from the company that the safe work procedure in place at the time of the incident was not adequate. In support of this submission, Mr Garland relies on the following evidence given by Mr Moore in cross examination: 26

“The recommendations, are they made on the basis that there were deficiencies in the safe work procedure that was in place at the time of the incident? – – – I guess where there’s an incident, there’s a view that something has gone wrong. Whether it’s all procedure or whether it’s behaviour, I guess that’s where the judgment lies.

But there is an acknowledgement from the company, isn’t there, that the safe work procedure at the time wasn’t adequate? – – – There was, I guess, a view that we could add – make improvements. I mean, there was one – in particular one section that related to this particular incident which talked about the – I guess the cutting of the toe of the windrow, which wasn’t covered in the procedure of the time.”

[33] In my view, this evidence does not constitute an acknowledgement or concession by Wambo that the version of the Dozer SWP applicable at the time of the incident was “not adequate”. There is no doubt that Wambo has taken steps to improve the Dozer SWP as a result of the incident. That is something which all employers should do following a serious incident in the workplace. However, making such improvements does not necessarily demonstrate that the procedure applicable at the time of the incident was “not adequate”. I am satisfied that the requirement, at the time of the incident, in the Dozer SWP for a dozer operator such as Mr Garland to comply with the 50 – 30 rule was both clear and clearly understood by Mr Garland. The fact that the Dozer SWP has been amended and improved since the incident does not alter my conclusion that Mr Garland breached the procedure in a substantial way on 7 November 2015 when he failed to comply with the 50 – 30 rule.

Second alleged breach of the Dozer SWP – failure to maintain communications

[34] Wambo alleges that Mr Garland failed to comply with his obligation under the Dozer SWP to ensure “clear precise positive communications must be used whilst conducting operations”. This requirement appears directly beneath the requirement to obey the 50 – 30 rule in the Dozer SWP.

[35] Mr Garland submits that he did not make positive communication with Mr Howard in his dump truck because he did not see Mr Howard enter the dump and, if he had, he would have stopped and contacted Mr Howard.

[36] The answer to this point is the same as the point made above in relation to the failure to comply with the 50 – 30 rule, namely, in order to comply with an obligation to ensure “clear precise positive communications” are used, the dozer operator must be regularly looking around the dozer he is operating to identify the locations of trucks and other vehicles with whom he must make “clear precise positive communications”. Mr Garland failed to do this when he reversed a dozer about 100 m across the dump without looking over his left shoulder.

[37] Mr Garland contends that it is everyone’s responsibility on a mine site to ensure positive communication. Given that Mr Howard saw Mr Garland operating the dozer when Mr Howard entered the dump, Mr Howard was under an obligation, so it is argued by Mr Garland, to make positive communication with Mr Garland. Had Mr Howard made positive communication with Mr Garland upon entering the dump, Mr Garland submits the incident would not have occurred.

[38] The following provisions of the Dozer SWP are relevant to this argument:

“General Requirements

The Dozer operator is in control of the dump at all times. Dozer operator shall control the traffic flow and direct truck dumping locations as required.

…

Working on a dump

Safe dumping practices are a shared responsibility of all people working on the dump, Dozer operator is in charge of dump.

…

Constructing a ramp or road (Narrow road or tip head)

The truck operator is to gain positive communication with the dozer operator prior to entering the work area. When constructing a road, ramp or dump with a narrow tip head the dozer operator will control the flow of trucks in and out of the work area. Trucks will dump from right to left as detailed below…”

[39] It is necessary to construe the relevant provisions of the Dozer SWP in relation to communications in context. The relevant context in relation to the incident on 7 November 2015 is that one dozer, being operated by Mr Garland, was working in a dump where 11 dump trucks were entering the dump regularly to dump their loads and then depart again. As a result, there were hundreds of movements into and out of the dump by the dump trucks during the shift on 7 November 2015.

[40] The dump is about 100 m long. In a circumstance where, for example, Mr Garland was operating the dozer at one end of the dump and a truck was dumping its load at the other end of the dump, there was no need for Mr Garland to have any communications with the operator of the dump truck.

[41] I accept Mr Ayre’s evidence that the effect of the communication requirements of the Dozer SWP were such that the dozer operator was only required to make positive communications with trucks in the dump area if the dozer was within 50 m of the truck. 27 I also accept Mr Ayre’s evidence that Mr Howard was not required to make positive communications with Mr Garland when Mr Howard entered the dump because he did not come within 50m of the dozer being operated by Mr Garland. It was only when Mr Garland reversed the dozer to within 50m of the dump truck being operated by Mr Howard that Mr Garland entered Mr Howard’s “work area” and was required to make positive communications with him. Mr Garland failed to comply with that obligation. That failure is, in essence, no different from the failure to comply with the 50-30 rule.

Third alleged breach of the Dozer SWP – fail to appropriately complete a Take 2

[42] The Dozer SWP states that a dozer operator must “complete a Take 2 review of this procedure before starting this task & again if conditions change”.

[43] A Take 2 is a risk assessment tool which employees must use to assess the likelihood of risks and the implementation of control measures to address such risks. The general requirement is for employees to complete a Take 2 at the start of the shift and again if anything changes throughout the shift. All employees have a Take 2 booklet which fits within their pocket and so can be carried around by them at all times.

[44] Mr Garland completed a Take 2 on 7 November 2015. Wambo alleges that he did not complete the Take 2 appropriately because he failed to identify the possible interaction between the dozer he was operating and other personnel or equipment as a potential hazard in the Take 2 form.

[45] In circumstances where Mr Garland was working on a busy dump with 11 dump trucks coming and going on a regular basis, it is clear in my view that Mr Garland should have ticked “yes” to the question on the Take 2 about interaction between his task on the dozer and other equipment, and identified any relevant control measures to mitigate this hazard, such as making positive communication with the operators of the dump trucks and complying with the 50 – 30 rule. Indeed, Mr Garland admitted in cross-examination that he should have answered “yes” to the question. 28 When asked how he had answered the question on other days, Mr Garland responded as follows:29

“It depends on the circumstances. If it was a smaller dump, I probably would have ticked the other one and put interactions and pos comms and – but it was a wide-open dump.”

[46] Notwithstanding this concession made by Mr Garland in cross examination, in his written submissions Mr Garland seeks to rely on the following evidence 30 given by him in re-examination to support his contention that he did not fail to appropriately complete a Take 2:

“If I can take you to the Take 2 that you completed on the shift. It’s attached to your statement and marked CG2. And to question 5, which Mr Williams took you to, the question asked, “Does the task interact with other personnel or equipment?” And in brackets it says – on my version I can’t read it quite clearly, but “de-marc work area”, I think that’s what it says? – – – “Demarcate work area”.

What does that mean? – – – They have to petition it off with witches hats or something like that – more work.

Can you explain what a “de-marc work area” is? – – – It’s a high-risk work area.

It’s a high-risk work area. And what circumstances would give rise to an area to be de-marced? – – – Demarcated; a narrow dump or a ramp – narrow ramp where you’ve got to be – most ramps are only 40 m wide, and – yes – sometimes the trucks have to tip on your right side, not your left side like you’re supposed to, because you’ve got to keep working the dump to keep the diggers going, and, yes, that would be – yes, I would say that would be a high-risk area.

At any stage during the shift on 7 November was Dump 170RL considered to be a de-marc work area? – – – No.”

[47] Mr Garland was not asked whether the reason he answered “no” to the question “Does the task interact with other personnel or equipment? (demarcate work area)” was because the dump on which he was working on 7 November 2015 was not a “demarcate work area”. Based on the evidence given by Mr Garland, that was not something that entered his mind on 7 November 2015, yet he now contends in his written submissions that “he did not identify responding to question five of the Take 2 that the task involved interaction with personnel or equipment as the dump was not a demarcate work area”. 31 I reject that argument on the basis that it is not supported by the evidence, as set out above.

[48] In any event, I am of the view that Mr Garland should have answered “yes” to question 5 on the Take 2 for the following reasons:

(a) First, the proper construction of the words “(demarcate work area)” in question 5 of the Take 2 is, in the context of the hazard identification checklist, a suggestion of one of the control measures that could be put in place to deal with such a risk, rather than a limitation as to when the question applies. The word “demarcate” is a verb; it suggests something the author of the document should consider doing. 32 If the question only applied to “demarcated work areas”, as suggested by Mr Garland, it is likely that the word “demarcated”, rather than “demarcate”, would have been used. Further, the following words in brackets after question 8 in the Take 2 clearly suggest an action that should be taken if there is such a risk, rather than a limitation on the circumstances in which the question applies:

“8. Does this task involve using Hazardous Substances? (Review and action MSDS)” [emphasis added]

(b) Secondly, even if Mr Garland is correct in his belief that the question concerning interactions with other personnel or equipment (question 5 on the Take 2) only applies in a high-risk work area, I am satisfied that the dump on which Mr Garland was operating the dozer on 7 November 2015 was a high-risk work area, because Mr Garland was moving a dozer around a dump in which 11 x 500 tonne dump trucks were regularly entering, reversing, dumping their loads and departing.

[49] Mr Garland also contends that Wambo failed to have regard to the fact that he completed a Take 2 for maintenance employees, rather than a Take 2 for production employees, on 7 November 2015. The relevant questions in the Take 2’s vary as follows:

(a) the maintenance Take 2 asks: “Does the task interact with other personnel or equip? (demarcate work area)”; and

(b) the production Take 2 asks: “Potential vehicle interactions have been identified and controls implemented?”

[50] It is not clear why Mr Garland was using a maintenance Take 2. It could have been issued to Mr Garland from a vending machine by mistake. 33

[51] It is submitted on behalf of Mr Garland that it was reasonable to expect that in completing at least one Take 2 on every shift he worked that he would fail to notice the slight differences between the production Take 2 and the maintenance Take 2 documents. Because Mr Garland would have ticked “yes” to the relevant question on the production Take 2 (to confirm that potential vehicle interactions had been identified and controls implemented) and he would not, in those circumstances, have been required to complete the “controls” part of the Take 2, it was reasonable, so it is argued, for Mr Garland to have mistakenly ticked “no” to the relevant question on the maintenance Take 2, with the result that he did not have to complete the “control” part of the Take 2 document. I reject these arguments. Mr Garland did not give evidence that he was confused by the different Take 2’s. Further, the relevant questions on each of the maintenance Take 2 and the production Take 2 are clear. It is important when employees complete a Take 2 that they stop and think about the task they are about to undertake, and do not simply complete a document (Take 2) in the same way they have in the past. Even though Mr Garland was mistakenly completing a maintenance Take 2, the question in relation to interaction with other personnel or equipment was highly relevant to the task he was undertaking on the dump. As he acknowledged in cross examination, it was a mistake on his part to answer “no” to the question: “Does the task interact with other personnel or equip? (demarcate work area)”. 34

[52] For the reasons set out above, I find that Mr Garland failed to comply with the Dozer SWP on 7 November 2015 by failing to appropriately complete the Take 2 form, in particular question 5.

Conclusion on valid reason

[53] I find that there was a valid reason for Mr Garland’s dismissal. There can be no doubt that an open cut coal mine is a high risk working environment, and that consequently Wambo places a high priority on workplace safety. Having regard to this, as well as to Wambo's statutory workplace health and safety obligations, Wambo is, and was at the time of incident involving Mr Garland on 7 November 2015, entitled to impose reasonable safety rules and directions, such as the Dozer SWP, on its employees and to expect that they would be obeyed by those employees. 35

[54] I am satisfied that Mr Garland was trained in, and familiar with, the requirements of the Dozer SWP prior to the incident on 7 November 2015. 36

[55] I have found that Mr Garland breached the Dozer SWP on 7 November 2015. The breaches were substantial. They gave rise to a serious risk to health and safety, and resulted in property damage to the dozer and truck involved in the collision. It was fortunate that no one was seriously injured or killed. Mr Garland’s actions in operating the dozer in the way that he did on 7 November 2015 were intentional, although I accept that he did not intend to breach the Dozer SWP.

[56] Mr Garland’s breach of an important safety direction (the Dozer SWP) provided a sound, defensible and well-founded reason for his dismissal related to his conduct (including its effect on the safety and welfare of other employees).

Was Mr Garland notified of the reason for his dismissal and given an opportunity to respond (s.387(b)&(c))?

[57] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 37, and in explicit38 and plain and clear terms.39 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[58] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 40

[59] Mr Garland participated in an investigation undertaken by Wambo following the incident on 7 November 2015. On 11 November 2015, Mr Garland was stood down on full pay. On 16 November 2015, Mr Garland was provided with a show cause letter which set out the findings from Wambo’s investigation regarding Mr Garland’s conduct, particularised the allegations made against Mr Garland, and invited Mr Garland to respond to those matters and to show cause as to why disciplinary action, including possible termination of his employment, should not be taken against him. By letter dated 17 November 2015, Mr Garland provided a detailed response to Wambo’s show cause letter. Wambo considered the information contained in that response. On 24 November 2015, Mr Moore and Mr Baxter-Walters met with Mr Garland and Mr Brittliffe. In that meeting Mr Moore informed Mr Garland that his employment was being terminated and the reasons for that decision. At the conclusion of the meeting on 24 November 2015, Mr Garland was provided with the letter of termination which also set out the reasons for his dismissal.

[60] Mr Garland accepts that he was notified of the reasons for his dismissal in the termination letter dated 24 November 2015, but contends that he was not provided with an adequate opportunity to respond to those reasons before the decision to dismiss was made because he was not provided with a copy of Wambo’s ICAM Investigation report or a summary of the report until such time that his dismissal had already taken effect. In addition, Mr Garland complains that he was not provided with a copy of the Dozer SWP or Wambo’s Discipline Policy. Mr Garland says that the ICAM Investigation summary subsequently provided to him identified as an organisational/system factor that the Dozer SWP did not define if dozer back-blading, which Mr Garland was doing when he reversed the dozer about 100 m across the dump, was allowed.

[61] The reason Wambo did not provide a copy of the ICAM investigation report or a summary of it to Mr Garland before his dismissal was because, during that time, the Mines Inspectorate was still conducting an investigation in relation to the incident. The report was confidential and for that reason Wambo says it would not have been appropriate to provide a copy or summary of it to Mr Garland. Once it became clear to Wambo that the Mines Inspectorate would not be pursuing any further action in relation to the incident, Wambo provided a summary of the findings of the ICAM report in so far as they related to his conduct to him on 4 December 2015.

[62] Importantly, Wambo included in its show cause letter to Mr Garland each of the findings from the ICAM report that formed the basis for Wambo’s concern that Mr Garland may have breached the Dozer SWP. No further information from the ICAM report was relied on by Wambo in making its decision to terminate Mr Garland’s employment.

[63] As to the Dozer SWP, Mr Garland did not request a copy of it during the investigation. 41 Mr Garland had been provided with a copy of that procedure on a number of previous occasions and he was familiar with it. Moreover, the parts of the Dozer SWP that Wambo asserted had been breached by Mr Garland were set out in the show cause letter.

[64] As to the Discipline Policy, Mr Garland did not request a copy of it during the investigation. The relevant parts of it were set out in the show cause letter. In particular, it was alleged in that letter that Mr Garland’s conduct resulting in the incident on 7 November 2015 constituted serious misconduct under the Discipline Policy due to serious failure by Mr Garland to observe occupational health & safety policies, instructions and requirements.

[65] On the basis of the findings I have made in the previous six paragraphs, I am satisfied that Mr Garland was (a) notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to the reasons for his dismissal prior to his dismissal.

Was there an unreasonable refusal to allow Mr Garland to have a support person present (s.387(d))?

[66] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[67] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”42

[68] There is no dispute and I am satisfied on the evidence that Mr Garland attended meetings in relation to his dismissal with a support person. Accordingly, I am satisfied that there was no unreasonable refusal by Wambo to allow Mr Garland to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

[69] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[70] In this case, the reasons for dismissal related to Mr Garland’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of Wambo on procedures followed in effecting the dismissal (s.387(f))

[71] Wambo is a large business enterprise, so that I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Garland’s dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[72] Wambo has dedicated human resource management specialists and expertise, so this consideration is not relevant.

Other relevant matters (s.387(h))

[73] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[74] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 43 in the following terms:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

[75] It is clear that a dismissal may be found to be harsh, notwithstanding a breach of an important safety procedure, having regard to, amongst other things, the risks, if any, to which the breach of safety procedure gave rise, the length and quality of an employee's service and the consequences for the employee of dismissal. The decision of the majority of the Full Bench in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth 44is an example of such a case. In that case, the majority (Lawler VP and Roberts C) said in relation to the facts of that case:

“[38]We regard the unqualified dismissal of an exemplary employee with 28 years of service, an impeccable disciplinary record and an otherwise impeccable safety record for a policy breach the sort that occurred in this case - particularly when the policy itself contemplates that breaches will not necessarily lead to disciplinary action let alone dismissal and having regard to the personal consequences for the employee and his family - as manifestly harsh. We accept that the misconduct reasonably called for a disciplinary sanction and that a period - even an extended period - of suspension without pay may still have been within the acceptable range. But in all the circumstances, unqualified dismissal was, in our view, manifestly harsh. On the rehearing we find that Mr Lawrence was unfairly dismissed within the meaning of s.385.”

[76] There are a number of “other matters” which are relevant to my determination as to whether Mr Garland’s dismissal was harsh, unjust or unreasonable. I will deal with each of them in turn below.

Harshness of the dismissal

[77] A dismissal may be “harsh” in either or both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 45, that is, “harsh in its consequences for the personal and economic situation of the employee” and/or “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[78] Mr Garland is married with two children who live at home. He has a mortgage on his family home. Following his dismissal from Wambo, Mr Garland commenced alternative employment with OneKey at the Moolarbern Mine on 4 January 2016 in the position of Operator. He is employed there on a casual basis and works an average of 42 hours per week. Mr Garland earns $43.00 gross per hour (which is less than he earned at Wambo), and he is concerned that his employment with OneKey is not as secure as his employment with Wambo because he is employed by OneKey on a casual basis. There is no doubt that Mr Garland’s dismissal by Wambo has had significant negative consequences for his personal and economic situation.

[79] As to the other sense in which a dismissal may be harsh, I am satisfied for the reasons set out above that Mr Garland’s breach of the Dozer SWP on the evening of 7 November 2015 was substantial and gave rise to potentially very serious safety risks and damage to property. In those circumstances, I find that Mr Garland’s dismissal was not disproportionate to the gravity of his misconduct in breaching the Dozer SWP.

[80] I also note that Wambo paid Mr Garland two weeks' pay in lieu of notice on his dismissal, in circumstances where I consider Wambo was entitled to dismiss him without notice. This also weighs against any conclusion that the dismissal was in all the circumstances harsh. 46

Mr Garland’s length of service

[81] Mr Garland commenced employment at the Wambo Open Cut Mine in March 2012 with the then operator of the mine. Mr Garland commenced employment with Wambo in April 2013 when Wambo took over operation of the mine. Accordingly, Mr Garland was employed at the Wambo Open Cut Mine for a relatively short period of time prior to his dismissal on 24 November 2015 (about 3.75 years). His relatively short period of service is a neutral factor in my assessment of whether his dismissal was harsh, unjust and/or unreasonable.

Mr Garland’s safety record and performance history at Wambo

[82] Apart from his breach of the Dozer SWP on 7 November 2015, Mr Garland had been involved in four previous safety incidents during his period of employment with Wambo (commencing in April 2013), each of which resulted in equipment damage. 47 As a result of one of the incidents, Wambo took Mr Garland away from operating a dozer for some time because Wambo believed that Mr Garland needed to re-establish to Wambo that he could comply with its safety and risk management procedures before he returned to work on a dozer.

[83] Wambo issued Mr Garland with the following Performance Improvement Notices (PIN) in relation to his performance history in the period after commencing with Wambo in April 2013:

(a) On 29 May 2013 Mr Garland was issued with a level 2 PIN in relation to damaging CAT dozers through poor operation on three separate occasions, causing Wambo to incur additional costs. The PIN states that Mr Garland needs to give greater attention to following Take 2 requirements;

(b) On 24 February 2014 Mr Garland was issued with a level 1 PIN in relation to demonstrating disruptive behaviour within his crew; and

(c) On 1 July 2014 Mr Garland was issued with a level 3 PIN for causing equipment damage (damaging an access ladder) by reversing a dozer into a highwall on the mine site. One of the corrective actions Mr Garland was required to undertake as a consequence of receiving this warning was “to complete Take 2’s before each task and assess the risk and identify hazards appropriately”.

[84] Wambo contends that Mr Garland’s safety record since commencing employment in April 2013 demonstrates a pattern of unacceptable conduct. While the expired level 3 warning was not the basis on which Mr Garland’s employment was terminated, Wambo submits that it is a relevant contextual factor to which it was entitled to have regard in making its decision to dismiss Mr Garland.

[85] Mr Garland contends that Wambo was not entitled to rely on previous PINs that were “inactive” at the time of Mr Garland’s dismissal. In support of that argument, Mr Garland relies on the terms of Wambo’s Discipline Policy, the relevant parts of which provide as follows:

“1.0 Purpose

The purpose of the Wambo Coal Counselling and Discipline Policy and Procedure is to provide a guide to the application and management of counselling and disciplinary action for unacceptable performance or misconduct with the aim of correcting an Employee’s behaviour. The nature of the Employee’s performance or behaviour will determine the stage of the Discipline process to be applied.
…

6.0 Discipline process

Once a problem has been established, the seriousness of the misconduct or performance issue will determine the level at which the process commences and will be determined as a result of objective analysis and sound judgment.
…

To assist with investigations related to suspected safety breaches a decision tree has been provided at the end of this document (Appendix iv).
…

Nothing in this procedure will prejudice the right of the Company to summarily dismiss an employee for serious misconduct.
…

6.1 Discipline levels

Other than for serious misconduct, there are four discipline levels:

LEVEL 1 - formal counselling/first warning;

LEVEL 2 - second warning;

LEVEL 3 - final warning; and

Show cause.

Level 1 - Formal Counselling/First Warning

… The Employee will be made aware that further breaches of the discipline policy within a fixed timeframe will result in escalated disciplinary action.

A Performance Improvement Notice (PIN) (Appendix i) will be completed which should be signed by all parties who are present at the formal counselling interview …

The PIN will be inactive after six (6) months and will not be considered for any future counselling and disciplinary actions after this period… This period can be amended at the discretion of the Department Manager. Any amendment must be documented with supporting evidence…

Level 2 - Second Warning

An Employee will normally be placed on Level 2 of the discipline policy and receive a formal warning when:

a) An Employee commits a Level 2 infringement; or

b) An Employee has failed to meet accepted behavioural standards within a six (6) month period of being placed on Level 1…

The Employee will be made aware that further breaches of the discipline policy within a fixed timeframe will result in escalated disciplinary action.

A PIN will be completed which should be signed by all parties who are present at the discipline interview …

The notice will be inactive after twelve (12) months and will not be considered for any future counselling and disciplinary actions after this period… This period can be amended at the discretion of the Department Manager. Any amendment must be documented with supporting evidence…

Level 3 - Final Warning

A final warning will be given to an Employee when:

a) The Employee commits a Level 3 infringement; or

b) The Employee has failed to meet accepted behavioural standards within a twelve (12) month period of being placed on Level 2…

The Employee will be made aware that further breaches of the discipline policy within a fixed timeframe will result in escalated disciplinary action.

A PIN will be completed which should be signed by all parties who are present at the discipline interview …

Show Cause

If an Employee’s behavioural standards do not improve after a Level 3 - Final Warning the Employee will be required to show cause why their employment should not be terminated or suspended without pay…

Summary Dismissal

Serious breaches may result in instant (summary) dismissal…” [emphasis added]

[86] In Toll Holdings Ltd v Johnpulle, a Full Bench of the Commission recently considered the relevance of earlier instances of misconduct in unfair dismissal proceedings (references omitted):

“[15]It may be accepted that, under the general law, an employer is disentitled to summarily dismiss an employee for an earlier instance of misconduct on the part of that employee where the employer with full knowledge of the misconduct had decided to retain the employee in employment. It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct by an employee in this way and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee. The Commissioner therefore did not err in declining to find that the instances of misconduct described in the second, third and fourth allegations against Mr Johnpulle constituted valid reasons for his dismissal. It may also be accepted that, for the purpose of s.387(h), the Commissioner was entitled to treat as relevant that Toll had previously elected not to dismiss Mr Johnpulle for his earlier instances of inappropriate behaviour towards Mr Karzi. However the fact that Mr Johnpulle had (as the Commissioner found) engaged in the earlier instances of inappropriate behaviour did not thereby become otherwise irrelevant in the consideration of whether his dismissal was harsh, unjust or unreasonable. The Commissioner’s own findings supported the conclusion, stated in Toll’s dismissal letter, that Mr Johnpulle had engaged in a “pattern of unacceptable behaviour” towards Mr Karzi and had persisted in that behaviour notwithstanding that he had been told by the Team Leader to cease such behaviour and he had agreed to do so. That was necessarily a highly material consideration which, while not necessarily being determinative, was adverse to the conclusion that the dismissal was harsh, unjust or unreasonable. It was also relevant to the issue of reinstatement, since it went to the degree of risk that Mr Johnpulle might repeat such behaviour in future if reinstated.

[16] The Commissioner did not have regard to the fact that Mr Johnpulle’s misconduct was not isolated but was part of a “pattern of unacceptable behaviour”. That was an error in the exercise of his discretion of the type described in House v The King as a failure to ‘take into account some material consideration’.”

[87] In my view, the proper construction of the Wambo Discipline Policy, when considered as a whole and in context, is as follows insofar as it relates to prior instances of conduct and performance:

(a) First, the purpose of the fixed periods for which each level of PIN remain “active” under the Discipline Policy is to clarify for both Wambo and its employees that Wambo is not permitted to dismiss, or take other action against, an employee in respect of the conduct and/or performance the subject of a PIN after it becomes “inactive”. In this way, the Discipline Policy gives effect to, and provides clarity around, the general law principle that “an employer is disentitled to summarily dismiss an employee for an earlier instance of misconduct on the part of that employee where the employer with full knowledge of the misconduct had decided to retain the employee in employment”; 48

(b) Secondly, the fact that a PIN becomes “inactive” after a fixed period of time under the Discipline Policy does not preclude Wambo from having regard to any pattern of conduct established by looking back at conduct the subject of prior (and expired) PINs in deciding whether the appropriate disciplinary action to take in respect of later misconduct is dismissal or some lesser sanction. There are a number of reasons why I prefer this construction of the Discipline Policy:

(i) It is the PIN, not the underlying conduct or performance, which becomes “inactive after six [or twelve] months and will not be considered for any future counselling and disciplinary actions”;

(ii) The first paragraph directly beneath the headings “Level 2 – Second Warning” and “Level 3 – Final Warning” in the Discipline Policy provide a strong indication of the objective intention for fixing the periods for which a PIN will remain “active”. Those paragraphs state, in effect, that the next level of warning will be given to an employee if, amongst other reasons, the employee fails to meet the accepted behavioural standards within a six month (or twelve month, as the case may be) period of being placed on the previous level warning. In other words, Wambo is permitted under the Discipline Policy to continue to rely on an earlier instance of misconduct or poor performance on the part of the employee to raise the warning to the next level if the employee’s conduct or performance does not improve within the fixed period of time stated in the Discipline Policy. When the scheme of the Discipline Policy is understood in this way, it is apparent that there is no prohibition on Wambo having regard to a pattern of prior misconduct or performance when making a decision about whether dismissal is the appropriate disciplinary action for later conduct; and

(iii) The Discipline Policy expressly permits Wambo to move straight to dismissal if the employee’s misconduct warrants such action. There is no prohibition or limitation in the Discipline Policy on the factors or matters to which the employer may have regard in deciding whether dismissal is the appropriate disciplinary action.

[88] Accordingly, I agree with Mr Garland’s submission that, “in considering whether there was a valid reason for dismissal, the Commission should only have regard to the incident of 7 November 2015 and the SOPs that were in place at the time”. 49 However, for the reasons set out above, to the extent that it is suggested either that it was wrong for Wambo to have regard to Mr Garland’s prior safety record in making its decision that dismissal was the appropriate disciplinary action to take, or the Commission should not have regard to Mr Garland’s prior safety record as an “other relevant matter” under s.387(h) of the Act, I would reject such a submission.

[89] Mr Garland also contends that the Commission should disregard the PIN issued on 1 July 2014 because, although Mr Garland was banned from operating a dozer for a period of 12 months from 1 July 2014, he was assigned to operate a dozer in that period when other employees were absent from work or there was an insufficient number of dozer operators on the shift. I reject this contention. The fact that Mr Garland was trusted to operate a dozer at times during his 12 month ban demonstrates that Wambo had some level of confidence in his ability to operate safely. In that regard, Mr Baxter-Walters gave evidence, which I accept, that Mr Garland had “somewhat redeemed himself” after he had been issued with the 12 month ban. 50 However, Wambo’s confidence in Mr Garland to operate safely was destroyed as a result of his conduct on 7 November 2015. In those circumstances, it is appropriate to look at Mr Garland’s safety record under s.387(h) to see if it establishes a pattern of conduct.

[90] The fact that Wambo elected not to dismiss Mr Garland for his safety breaches in 2013 and June 2014 is a relevant matter under s.387(h). 51 However, the fact that Mr Garland engaged in a substantial breach of the Dozer SWP in November 2015 in circumstances that were somewhat similar to his June 2014 incident, in that they both involved the operation of a dozer, related to deficiencies in Take 2’s, and were caused, in part, by a failure on Mr Garland’s part to be aware of his surroundings, is also a material consideration which, while not being determinative, is adverse to the conclusion that Mr Garland’s dismissal was harsh, unjust or unreasonable.52

[91] In any event, even if I had not had regard to Mr Garland’s safety record at Wambo, I would still have concluded, on the basis of the other reasons set out in this decision, that Mr Garland’s dismissal was not harsh, unjust or unreasonable.

Options other than dismissal

[92] In light of the importance of safety at Wambo’s Open Cut Mine, serious breaches of safety policies and procedures constitute serious misconduct in accordance with Wambo’s Discipline Policy. Wambo has the right under its Discipline Policy to summarily dismiss an employee for serious misconduct, but it is not obliged to do so. It can exercise its discretion to take some lesser action if that is appropriate in the circumstances.

[93] Mr Moore and Mr Baxter-Walters were the decision makers in relation to Mr Garland’s dismissal. They considered the information provided by Mr Garland in his response to the show cause letter, together with the options they had available to deal with Mr Garland’s serious breach of the Dozer SWP, before making the decision to terminate his employment.

Inconsistent treatment

[94] Mr Garland asserts that he was unfairly afforded inconsistent treatment by Wambo for two reasons:

(a) First, he was dismissed for failing to appropriately complete a Take 2, whereas many other employees either do not complete Take 2’s at all or they do not complete them appropriately and they are not dismissed; and

(b) Secondly, other people were partly to blame for the incident on 7 November 2015, yet they were not subject to any disciplinary action. In particular, Mr Garland submits that the operator of the haul truck failed to make positive communications with him and there were deficiencies in the Dozer SWP that have been rectified since the incident.

[95] In Darvell v Australian Postal Corporation[2010] FWAFB 4082, the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted):

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.”

[96] I find that the different treatment of Mr Garland to other employees was not unfair for the following reasons:

(a) First, no evidence was adduced to prove the extent of any failure to complete, or appropriately complete, a Take 2 at the Wambo mine. Mr Kane gave evidence, which I accept, that “some people don’t do them [Take 2’s]” and Wambo does not keep a record of all Take 2’s. 53 In any event, Mr Garland was not dismissed simply because he failed to appropriately complete a Take 2. His failure to appropriately complete the Take 2 meant that he failed to identify the risk that he might interact with another vehicle or piece of equipment during the operation of the dozer, which was central to the cause of the incident on 7 November 2015. There is no evidence to support a submission that any such failure by another employee caused, or contributed to, such an incident; and

(b) Secondly, I am satisfied that Mr Howard did not breach any applicable procedure or do anything wrong on 7 November 2015. For the reasons set out above, Mr Howard did not fail to make positive communication with Mr Garland because Mr Howard did not drive the dump truck within 50 m of Mr Garland’s dozer. Mr Howard checked in both his mirrors before he commenced reversing the haul truck he was driving in the dump on 7 November 2015. Mr Howard did not see the dozer Mr Garland was operating when he looked in his mirrors because the dozer was in Mr Howard’s blind spot. Mr Garland agreed in cross examination that Mr Howard had not done anything wrong on 7 November 2015. 54 Further, for the reasons set out above, I am of the view that the requirements of the Dozer SWP were sufficiently clear, and were clearly understood by Mr Garland, at the time of the incident.

Procedural fairness issues

[97] Mr Garland contends that the investigation undertaken by Wambo immediately following the incident on 7 November 2015 was unfair for the following reasons:

(a) Neither Mr Garland nor Mr Howard was provided with first aid following the incident. In particular, Mr Garland submits that the fact that Wambo required him and Mr Howard to participate in having their statements taken immediately after the incident, when they were both in shock, without being provided first aid, is relevant to the accuracy of the information obtained during the investigation;

(b) Neither Mr Garland nor Mr Howard was provided with an opportunity to review the statements taken by Mr Ayre in the investigation following the incident. Mr Ayre wrote Mr Garland’s response to the question “What do you think caused the accident?” as “complacency”. Mr Garland contends that he did not know the real meaning of the word complacency.

[98] Mr Garland contends that the “Commission should place little to no value on the initial statements written by Mr Ayre shortly after the incident”. 55

[99] Mr Garland gave evidence in cross examination, which I accept, that, when Mr Ayre took a statement from him after the incident, he was “a bit shaken up”, 56 but he tried to give answers which were as honest as possible in the circumstances, he signed the statement prepared by Mr Ayre, he had a look at the statement before he signed it, and he was satisfied that it was a “fair enough representation” of his answers.57

[100] Mr Ayre gave evidence in cross examination that Mr Garland and Mr Howard each appeared “to be shaken up” when he arrived at the dump immediately after the accident. Mr Ayre also gave evidence, which I accept, that he asked Mr Garland and Mr Howard “if they were all right. They both said they were fine”, he did not offer them first-aid, and they did not ask to be provided with first aid. 58 In those circumstances, I am satisfied that the fact that Mr Ayre did not offer first-aid to Mr Garland and Mr Howard and he proceeded to interview them was not unfair or inappropriate.

[101] Mr Garland was cross examined about his answer of “complacency” to one of the questions asked of him by Mr Ayre in the investigation:

“At paragraph 5 – or answer five – you are asked the question, “What do you think caused to the incident?” And your answer was, “Complacency”? – – – Yes.

What does that mean? – – – You doing a job – this is my interpretation.

Yes? – – – You do a job and you do it over and over and over again and he used to it, and maybe too used to it.

Yes? – – – That’s the way it comes across to me, complacency, yes. I don’t know the real meaning of it, to be honest with you.”

[102] In my view, Mr Garland’s answers to these questions demonstrated that his understanding of the word “complacency”, in the context in which he used it, was correct. He understood that “complacency” can arise if somebody undertakes a task repetitively and becomes “too used to it” such that they failed to pay enough attention to the task or the risks associated with it. In the circumstances of what took place on 7 November 2015, I agree with Mr Garland’s assessment that he was complacent, because he did not look over both his left and his right shoulder as he was reversing the dozer about 100 m across the dump and he did not appropriately complete a Take 2 to identify the relevant risks.

[103] Mr Garland also submits that Wambo should have applied the “Possible Decision Tree for Investigation of a Suspected Safety Breach” set out in an appendix to the Discipline Policy. Mr Baxter-Walters confirmed in cross examination that Wambo did not apply the decision tree in determining whether or not to dismiss Mr Garland. It is contended by Mr Garland that had Mr Baxter-Walters applied the decision tree and correctly identified the Dozer SWP as being flawed in that process, Wambo would have come to the outcome: “system induced violation”, which does not warrant the termination of employment.

[104] The first answer to these submissions in relation to the decision tree is that Wambo’s Discipline Policy does not make it mandatory for the decision tree to be used when investigating a suspected safety breach. So much is clear from the fact that:

(a) the Discipline Policy is expressed to be a “guide to the application and management of counselling and disciplinary action for unacceptable performance or misconduct” [emphasis added];

(b) the decision tree, in appendix iv to the Discipline Policy, is described as a “possible decision tree for investigating a suspected safety breach” [emphasis added]; and

(c) clause 6.0 of the Discipline Policy states that the decision tree has been provided “to assist with investigations related to suspected safety breaches.”

[105] Moreover, even if the “possible decision tree” had been used I am satisfied that the outcome of the investigation would not have been “system induced violation”. In order to reach that conclusion, it would be necessary to answer “no” to the question: “Were procedures available, workable, intelligible and correct?” In my view, Mr Garland’s obligations under the Dozer SWP to “complete a Take 2”, “obey the 50 – 30 rule at all times”, and maintain “clear the size positive communications … whilst conducting operations” were “available, workable, intelligible and correct”.

[106] In my view, the procedure adopted by Wambo to investigate what happened on 7 November 2015 and decide on the appropriate disciplinary action for those involved was appropriate and fair. It involved interviewing relevant employees to find out what happened, putting allegations to Mr Garland in writing, giving him an appropriate opportunity to respond to those allegations, considering his responses, and deliberating on the appropriate disciplinary action to take before the decision to dismiss was made. The reasons for dismissal were then communicated to Mr Garland in writing.

Lawrence v Coal & Allied

[107] The facts of this case are distinguishable from those in Lawrence v Coal & Allied for the following reasons:

(a) Mr Garland was employed at the Wambo mine for a relatively short period of time. Mr Lawrence was employed by Coal & Allied for 28 years prior to his incident;

(b) the safety risks arising from Mr Garland’s safety procedure on 7 November 2015 were not “for all practical purposes, non—existent”, as they were in Mr Lawrence’s case. 59 Mr Garland’s conduct gave rise to a significant risk to his health and safety and the health and safety of other workers who were, or may have been, in the area. Mr Garland’s conduct also caused substantial property damage;

(c) Mr Garland maintains to this day that he did not breach the applicable safety procedure (the Dozer SWP). Mr Lawrence admitted the breach of safety procedure as soon as he became aware that the matter was being investigated; 60 and

(d) Mr Garland did not have an impeccable safety record. Mr Lawrence did.

[108] One point of similarity between Mr Lawrence’s case and the present case is that Mr Garland did not accrue any advantage whatsoever to himself by operating the dozer in the way that he did on 7 November 2015. Mr Garland’s only motivation was to complete his task as efficiently as possible. This factor weighs in his favour.

Conclusion

[109]Having considered each of the matters specified in section 387 of the Act, I am satisfied that Wambo’s dismissal of Mr Garland was not harsh, unjust or unreasonable. The Application is therefore dismissed.

COMMISSIONER

Appearances:

Ms J Short, Legal Officer, CFMEU, on behalf of the applicant;

Mr D Williams, Solicitor, Minter Ellison, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

March, 14.

1 When fully loaded (PN170)

2 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

3 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

4 Ibid

5 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

6 Ibid

7 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

8 Ibid

9 Ibid

10 Briginshaw v Briginshaw (1938) 60 CLR 336

11 [2013] FWCFB 6191

12 PN252

13 PN743-8

14 PN751

15 PN1035

16 PN221-4

17 PN837-852

18 PN1035

19 Ex R2 at [6]

20 Ex A3 at [15]

21 Ibid

22 Ibid

23 PN223

24 PN228

25 PN448-50

26 PN1550-1

27 PN866

28 PN183-9

29 PN191

30 PN435-9

31 Mr Garland’s written submissions dated 8 April 2016 at [19]

32 PN1288, PN1297, & PN1324-5

33 PN1292

34 PN183-9

35 Zhou v Weir Minerals Australia Ltd[2014] FWC 1531 at [27]

36 Ex R4 at [41]

37 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

38 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

39 Previsic v Australian Quarantine Inspection Services Print Q3730

40 RMIT v Asher (2010) 194 IR 1 at 14-15

41 PN49-50

42 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

43 [2013] FWCFB 6191

44 [2010] FWAFB 10089

45 (1995) 185 CLR 410 at 465

46 Zhou v Weir Minerals Australia Ltd[2014] FWC 1531 at [43]

47 Ex R4 at [42] and attachment JB-10

48 Toll Holdings Ltd t/a Toll Transport v Johnpulle[2016] FWCFB 108 at [15]

49 Mr Garland’s written submissions in reply dated 22 April 2016 at [29]

50 PN643

51 Toll Holdings Ltd t/a Toll Transport v Johnpulle[2016] FWCFB 108 at [15]

52 Ibid

53 PN927

54 PN313

55 Mr Garland’s written submissions dated 8 April 2016 at [63]

56 PN315

57 PN316-9

58 PN774-7

59 Lawrence v Coal & Allied at [32]

60 Ibid at [35]

Printed by authority of the Commonwealth Government Printer

Mr Craig Garland v Wambo Open Cut Pty Ltd