Mr Leonard Brown v BHP Billiton Iron Ore Pty Ltd
[2010] FWA 4560
•21 JUNE 2010
[2010] FWA 4560 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Mr Leonard Brown
v
BHP Billiton Iron Ore Pty Ltd
(U2009/10139)
DEPUTY PRESIDENT MCCARTHY | PERTH, 21 JUNE 2010 |
Termination of employment.
Background
[1] This matter concerns an application lodged on behalf of Mr Leonard Brown (the Applicant) claiming that his employment with BHP Billiton Iron Ore Pty Ltd (the Respondent) was terminated harshly, unjustly or unreasonably (unfairly).
[2] The Applicant is a 53 year old male. He commenced employment with the Respondent on 11 May 1989 and his employment was terminated on 29 June 2009. Immediately prior to the termination he was employed as an ore processor. His duties ordinarily consisted of fixed and mobile plant operation, truck driving, loader, forklift, excavator and bobcat operation in that capacity and was the single designated operator of and responsible for a truck referred to as PIL 25 (the truck) at the ore processing plant at Mount Whaleback. The truck was owned by Pilbara Logistics Pty Ltd (Pilbara Logistics) and leased to the Respondent.
[3] There were a number of areas of damage incurred to the truck that the Applicant was driving. The first involved damage to the hub sight glass on the right hand front wheel of the truck (the sight glass damage). The second was a dent to the fuel tank (the fuel tank damage) and the third was damage to a bracket near the fuel tank (the bracket damage).
[4] The Respondent stated that there were three interrelated reasons why the Applicant’s employment was terminated. The first reason was that the truck that the Applicant was responsible for was damaged. The second reason was that the Applicant did not report the damage as soon as he became aware of it. The third reason was that the Applicant was not frank and candid in the investigation that occurred into the damage and the failure to report it. However the Respondent also says that the more significant matters are the failure to follow practice, in terms of reporting damage in a timely manner and the conduct of the Applicant and the inquiry that was undertaken by the Respondent into the damage.
[5] The Applicant says he became aware of the sight glass damage and he took steps to ensure the owner of the vehicle was aware of that damage. He also says that he took steps to have his supervisor informed and that he endeavoured to directly contact him. He says he was able to advise his supervisor 20 minutes to an hour after the damage had occurred.
[6] With respect to the fuel tank damage the Applicant initially said that he did not report that damage because he was not aware of it. He later corrected that and stated the damage was not new damage in that it was damage that must have occurred months beforehand. He claims he was not aware of the damage to the bracket.
[7] The Applicant asserts that he was truthful to his employer and his supervisors and complied with his obligations under the Respondent’s policies.
Evidence
[8] The Applicant gave evidence that on 19 June 2009 he was at work but was not working his normal duties as he was working light duties. Light duties consisted of solely operating trucks. He was not driving loaders, forklifts, excavators or bobcats or operated machinery other than trucks. He says he started work at about 6am and conducted the usual pre-start inspection of the truck. He did not at that time notice any damage to the truck, which may have been because of poor light at that time.
[9] He worked at the M16 conveyor for a couple of hours with a co-worker, Mr Ralph Mongoo (Ralph). He was then directed to go to the Environmental Rehabilitation Area (ERA) to tidy up that area as there was a lot of rubbish and debris there. That job took about one hour, and he went back to the MI6 conveyor. At around 12.00pm he took his lunch break. All of the time, up until at least the lunch break, Ralph was with the Applicant.
[10] After lunch Ralph indicated that he would go back to the MI6 conveyor to pile up the wet mud and that this would take him about 15 minutes and then after that they could go to the wet screens. While Ralph was at the MI6 conveyor the Applicant went back to have a look at the ERA. He was driving the truck during this time. He then went to the wet screens and Ralph joined him.
[11] While walking back to the trucks Ralph noticed there was oil on the driver’s side front tyre of the truck. The Applicant had a closer look and noticed that the sight glass on the oil reservoir on the front wheel had broken, which was causing the oil to seep out. He drove the truck back to the lay down yard for repair and he asked Ralph to contact Ethan Smith (Smith), the Manager for Pilbara Logistics, over the radio and report the damage of the sight glass. The Applicant asserts that Ralph endeavoured to contact Smith by radio but was unsuccessful.
[12] The Applicant arrived at the lay down yard. He then placed a rag over the broken cover to prevent dirt and dust from contaminating the bearings and placed an “out of service” tag to the Isolator. He drove Ralph back to the loader in another vehicle known as a C2. They then drove to the wash bay and started cleaning their vehicles.
[13] Around 10-20 minutes after they parked the truck in the lay down yard the Applicant received a call from Ben Dunstan (Dunstan), their supervisor, requesting them to do another job at Cranes and Rigging, which is located across the road. He told Dunstan that he had stood the truck down because of the fault with the truck as it was leaking oil and that he and Ralph had attempted to contact Smith, but had not spoken to him. Dunstan then requested the Applicant to go to the lay down yard.
[14] When he got back to the yard the Applicant noticed Smith was taping the broken sight glass situated on the oil reservoir. Dunstan called him over to the truck and asked him about the damage sustained to the sight glass. The Applicant admitted that it must have broken while he was driving the truck.
[15] Dunstan also pointed out some damage further back along the truck. The Applicant says he had not noticed the damage, apparently meaning the damage to the bracket but not the fuel tank, before that point. He says he did not know how this damage, i.e. the bracket, was caused and if he had known that he had caused the damage he would have had no hesitation in reporting it. He claims he did not know how the damage was caused and therefore he would not admit that he had caused the damage.
[16] The Applicant says that the Respondent appeared to have already made up their minds to terminate his employment before they had completed their enquiries. He claims that he was truthful during the investigations and that they kept asserting that the truck was damaged at the wash pad. He told the Respondent that he did not know how the damage to the bracket had been caused, but that they kept asserting that he was lying.
[17] Ralph gave the following written evidence:
“Len asked me to contact Ethan Smith (Ethan), the Manager of Pilbara Logistics, over the radio to report the damage to the sight glass. However, Ethan did not respond to my calls. When we got the Truck back to the yard Len placed an “out of service” tag on the truck. About 20 minutes to half an hour, Len received a call from Ben Dunstan (Ben), the Foreman, to move some dirt near the Cranes and Riggings building. Len then told Ben that he had stood the Truck down because it was leaking oil. I did not drive the truck on the 19 June 2009. I did not see the damage to the bracket. I do not know how the damage to the Truck was caused.”
[18] Ralph, in his verbal evidence, appeared to retract his written statement that he tried to contact Smith or at least seemed to have difficulty remembering it. 1 His verbal evidence was given by video conference and there may have been some confusion on his part but even allowing for that, and difficulties that may have been encountered through his written evidence being prepared in Perth whilst he was in Newman, the part of his evidence concerning contacting Smith is not evidence that one could safely rely on as support for the Applicant’s contention that Ralph was requested to contact Smith.
[19] The Respondent produced evidence regarding the investigation it had conducted into the damage to the truck and the Applicant’s participation and responses during that investigation. The Respondent through that evidence endeavoured to show that the Applicant had been untruthful during the investigation about his knowledge of the damage to the truck and about his failure to report that damage.
[20] If the Respondent’s account of the investigation and the Applicant’s conduct and responses in that investigation are accurate then there would be a valid reason for termination of the Applicant’s employment.
Consideration
[21] I find that a reason that the Applicant’s employment was terminated was because the Respondent believed that he had not followed their policies and procedures in the reporting of damage and that he had not been truthful in the investigation that they conducted. 2
[22] A critical issue here then is the credibility of the Applicant. I prefer the evidence of others rather than the evidence of the Applicant. Therefore I prefer the account of the Respondent regarding the events of 19 June 2009 and the investigation that followed. In particular I prefer the evidence of the Respondent that the Applicant did not try and notify his supervisor, or anyone else for that matter, regarding any of the damage to the truck under his control. There are a number of inconsistencies in his evidence that lead me to that preference.
[23] Firstly, in his witness statement the Applicant stated:
“Ralph and I then decided to drive the truck back to the lay down yard for repair. I asked Ralph to contact Ethan Smith (Ethan), who is the Manager for Pilbara Logistics, over the radio and report the damage of the sight glass. Ralph wasn’t able to get through to Ethan on the radio.” 3
[24] Yet in his evidence in person he stated that he did not ask Ralph to contact Smith, but rather Ralph did that of his own accord. 4 It was therefore perhaps not surprising at all that Ralph had no recollection of endeavouring to contact Smith.
[25] The Applicant had placed substantial effort on trying to substantiate that he had thought he had fulfilled his duty to notify by requesting Ralph to contact Smith and to have such a basic difference within his own accounts of how that occurred seriously undermines his credibility. Further, I accept the evidence for the Respondent that there was no record on the radio logs of the attempted contact.
[26] Secondly, it was not until the Applicant gave evidence in person that he asserted that he went looking for his supervisor at the lunch break to inform him of the sight glass damage. There is no evidence of that in his statement of evidence, nor any evidence of that endeavour in the records and evidence of interviews in the investigation undertaken by the Respondent. It is not believable that he would fail to mention that at that time given he thought his job was in jeopardy. Even if he considered the investigation was superficial he should have mentioned his endeavour to contact the supervisor personally. Nor is there any satisfactory explanation by him of that failure, rather he sought to deny that it was the first time he had asserted that to the Respondent by suggesting it was contained in documents.
[27] Thirdly and perhaps less controversial than the two previous discrepancies is that the Applicant had consistently asserted that he was not aware of any damage other than the sight glass damage. He clarified this during his in person evidence by stating that insofar as the damaged fuel tank was concerned he was aware of it but because it had been there for a long time that he should have referred to it as “new” damage. In the context of how things unfolded on and around 19 June 2009 that is understandable but it still is indicative of the Applicant either being careless with his accounts of matters, uncooperative, or even evasive to in reasonable questions that had been posed to him during the investigation.
[28] I therefore do not consider that the Applicant was a credible witness.
[29] Given the above conclusion regarding the Applicant’s credibility I have not recounted the evidence of the Respondent and I find it unnecessary to do so. Suffice to say that I prefer their evidence and find that it establishes that the Applicant did not follow correct procedures and was not truthful in the investigation they undertook.
[30] I therefore find that the Applicant did not follow the correct procedures in not immediately reporting damage to his vehicle when he became aware of it. I also find that the Applicant did not participate in the investigation in an honest and open way.
[31] The question arises as to whether his behaviour was such that there was a valid reason for termination. I have made no finding that the Applicant was responsible for the damage to the truck other than that which he admitted viz; the sight glass. But that is not the point here. The point here is his responsibilities to the Respondent in reporting and participation in the investigation relating to the damage. The cost of the damage and the approach the Respondent may have taken in any other incident involving damage is not a consideration that I regard as relevant to there being a valid reason for termination in these circumstances.
[32] I do not consider the decision to dismiss was differential to the treatment of other persons who may have been in a like position, nor do I consider it to have been a disproportionate response even taking account of the long length of service of the Applicant together with his work history.
[33] I therefore find that there was a valid reason for the termination of employment of the Applicant.
[34] The Applicant was clearly notified of the reasons and given an opportunity to respond. The Respondent had clear and sophisticated human resources practices and personnel available and conducted the approach to its decision making fairly and properly.
[35] The Respondent is entitled to expect that its procedures are followed although it does not follow that every failure to follow a policy or practice is serious enough to warrant dismissal. But a failure to follow established and indeed well known and express practices when it is accompanied by the approach that the Applicant to the investigation a termination cannot be unexpected to be the resultant discipline an employer decides upon. I do not in the circumstances consider the decision of the Respondent to terminate the employment of the Applicant as being harsh, unjust or unreasonable.
[36] The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Millman for the Applicant.
Mr P Quinlan for the Respondent.
Hearing details:
Perth.
2010:
May, 13 & 14.
1 PN 247-251, 294-301, 310
2 PN1747
3 Para 25 of Applicant’s witness statement
4 PN 1139-40
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