Mr Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth

[2010] FWA 6750

Note: An appeal pursuant to s.604 (C2010/5297) was lodged against this decision - refer to Full Bench decision dated 24 December 2010 [[2010] FWAFB 10089] for result of appeal.

[2010] FWA 6750

FAIR WORK AUSTRALIA

DECISION

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

Mr Lindsay Douglas Lawrence
v
Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth
(U2010/6469)

COMMISSIONER MACDONALD SYDNEY, 30 SEPTEMBER 2010

Application for unfair dismissal remedy - breach of company’s safety policy - mining industry - reinstatement application declined - no other orders made

[1] This decision arises from an application by Mr Lindsay Lawrence (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth (the respondent).

[2] The applicant was dismissed on 22 February 2010 for a serious breach of a safety isolation procedure. He was provided with five weeks payment for notice period.

[3] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 23 February.

[4] The file was dealt with by an FWA Conciliator on 23 March but did not settle.

[5] A threshold hearing on legal representation was held on 8 June. The applicant opposed the respondent having legal representation at the substantive hearing.

[6] Commissioner Stanton gave his decision on 6 July on that threshold issue and granted the respondent the right to have legal representation. 1

[7] The substantive hearing took place in Newcastle on 13 and 14 July, before myself (Commissioner Macdonald).

[8] At that hearing, the applicant was represented by Mr K Endacott and Mr R Trappel of the Construction, Forestry, Mining & Energy Union (Mining and Energy Division) (the CFMEU). Mr Endacott called the applicant as a witness.

[9] The respondent was represented by Mr A Longland and Mr Bannerman, solicitors. Mr Longland called the following witnesses:

Mr Glen Meyn - superintendent

Mr Jared Everett - supervisor

BACKGROUND

[10] The applicant had 28 years service at the time of the incident that led to his dismissal.

[11] The incident took place on Monday, 8 February 2010.

[12] The respondent is engaged in mining operations outside of Newcastle. The applicant was employed as a production employee and his duties mainly involved that of a shot firer - the firing of the shot to remove material in order to gain access to a coal seam.

[13] At the time of his termination, he had been working with water pumps. The mine is vast and requires de-watering where rain gathers in pools. The mine has about 20 pumps and a network of pipes which are used in the de-watering process.

[14] On 8 February 2010, the applicant commenced his shift at 7.00am. His role that day was to de-water the West Pit area. There was already a pump located within that body of water for the de-watering process. Repair work was required to be carried out on a pipe (poly pipe) connected to the pump. For the purpose of repair, two outside contractors were engaged.

[15] In order to carry out the pipe repair, a certain safety procedure is required by the contractors - water pump isolation by use of isolation locks.

[16] The water pump in question is about the size of a shipping container (see Ex 15) and was partly submerged in the water to be pumped out via the poly-piping connected to the water pump. The pump is diesel powered and the diesel engine is started by use of a battery. An isolator switch separates the battery from the rest of the pump. In order to carry out repair work, and for safety reasons, the isolator switch is switched from the “ON” position to “OFF”. The contractors then affix their own personal safety lock to a scissor clip which is affixed to the isolator in order to isolate the battery from the diesel engine. These safety locks prevent the pump from being switched on whilst any workers are carrying out work.

[17] Mr Jared Everett, supervisor of the blast and pump crews, deposed as to the relevant safety issue, that the pumps are capable of pumping water to a pressure of 750kPa being more than 100 pounds per square inch, and results in the pumping of about 180 litres per second. These pumps could potentially cause serious injuries or fatalities if the proper observance of safety procedures are not followed. 2 The applicant disputed the foregoing pumping capacity and said the rate for the pump in question was 50 litres a second.3

[18] After the safety locks (two) had been affixed by the two contractors, they began their repair work (welding) on the poly pipe. At the conclusion of that task, they left to attend another job (for about 10 minutes) within the coal mine area. The applicant was present throughout this time. After the contractors left the area (but without removing their locks), the applicant carried out work involving piping work and moving the pump further into the pooled water.

[19] The applicant left the scene and returned later, about one to two hours later. He relocated the water pump further again into the pooled water. (For present purposes, this water pump is designated as water pump number one.)

[20] The applicant drove from pump number one to the next pump (the inline pump) and turned it on. This inline pump is located on a higher level of ground to pump number one and it assists in powering the water along the pipeline (which is some 5 kms long) to the water outlet.

[21] The applicant drove back to pump number one via the length of the piping between the inline pump and pump number one. This distance travelled along the winding pipeline is about 500 metres, due to the contour of the ground. The actual distance, point to point, between the two water pumps is about 200 metres.

[22] The applicant, in driving along the length of the pipeline, was able to discern that no person was working on this length of pipeline. The evidence showed agreement that an observer, standing at either pump, could not see the entire length of this pipeline.

[23] The applicant arrived at water pump number one. He noted that the contractors had not returned but he knew that their job had been completed. He sought to turn on the pump but it did not start. He observed that the reason for the non-start was that the contractors’ safety isolation locks were still in place. The applicant removed those locks by prying open the scissor clips and turned on the pump. He assessed, he said, the situation and said there was no danger to any workers in removing the locks. 4 The applicant left that area of work to look for, he said, the contractors.

[24] The contractors returned to the work area and saw that their personal safety locks had been removed and the pump turned on. They telephoned a Mr Barry Trudgett, job co-ordinator, who advised them to speak to the applicant (who had informed Mr Trudgett of the safety lock removals). They retrieved their locks from the applicant.

[25] Five days later, on Friday 12 February, Mr Trudgett received an email from Mines Assist, being the company that let out the contractors to the respondent. The email raised the isolation breach (removal of the personal safety locks) of 8 February.

[26] Mr Trudgett telephoned Mr Jared Everett about the email and thus began the respondent’s investigation into the applicant’s removal of the two safety locks.

[27] The applicant was stood down with pay on Friday 12 February.

[28] Arising out of the investigation, the applicant was dismissed on 22 February. The termination letter stated that the applicant’s conduct in removing the contractors’ safety locks was a serious and clear breach of the isolation procedure which is one of the Golden Rules and which is critical to ensuring the safety of all people working at Mount Thorley. 5

FINAL SUBMISSIONS

For the Applicant

[29] Mr Endacott, for the applicant, put the following in final submissions:

(a) The applicant had approximately 28 years of service with the respondent.

(b) The applicant was terminated for failing to follow the isolation procedures when working on a pump with contractors.

(c) The circumstances surrounding the applicant’s conduct in removing the safety locks of the contractors should be considered. The applicant was present during the time the contractors were carrying out their repair work and he was aware that they had finished their work when he removed their safety locks from the isolation point.

(d) The applicant had 28 years service and had never been previously warned or counselled about any aspect of his employment.

(e) The removal of the contractors’ isolation locks was out of character and was contributed to by his attempt to be helpful.

(f) There was no danger to himself or any other person as a consequence of his failure to follow the correct procedure (that is, not remove the isolation locks belonging to others).

(g) The foregoing circumstances made out a case that the termination of the employee was not a valid termination. The applicant should have been given a warning.

(h) The applicant has a hard working employee record of employment.

(i) The applicant worked for many years in a safety critical role of shot firer and had performed his duties in a safe and appropriate manner.

(j) The applicant is 55 years of age and is the major breadwinner.

(k)The applicant seeks reinstatement, loss of remuneration and continuity of employment.

For the Respondent

[30] Mr Longland, for the respondent put the following in final submissions:

(a) Employee health and safety is at the core of the issues in these proceedings. The applicant deliberately breached a critical safety procedure at the respondent’s mine.

(b) The applicant’s removal of the contractors’ personal locks from the isolation point on the pump was a breach of the respondent’s Isolation Standard and Golden Rules.

(c) The Golden Rules are important safety rules at the mine. Each of the Golden Rules is in place because each rule reflects a serious injury or fatality in the past.

(d) The applicant admitted he breached the Isolation Standard by removing the safety locks - albeit he was attempting to be helpful.

(e) The applicant could not be sure that there was no danger to himself or other workers as a consequence of his breach of the Golden Rules.

(f) For the foregoing reasoning, the termination of the applicant was a valid termination.

(g) Although the applicant had a lengthy period of service, the breach of the safety procedure was so serious, it was not unfair to terminate his services.

(h) The applicant’s financial circumstances is not a reason for concluding that the termination was unfair.

(i) The respondent opposed the remedies being sought by the applicant.

CONSIDERATION

[31] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[32] The unfair dismissal application was made one (1) day after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.

[33] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the applicant is a person protected from unfair dismissal.

[34] Paragraph (c) and (d) of section 396 have no relevance in this case.

[35] The applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.

[36] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[37] Paragraph (a) of section 395 is satisfied by way of the dismissal of the applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the applicant said his dismissal was harsh and/or unjust and/or unreasonable.

[38] In order to determine whether the applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matter that FWA considers relevant.”

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[39] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issue put against the applicant relates to his conduct on the day of 8 February 2010.

[40] The respondent set out in its letter of termination of 22 February 2010, the reasons for dismissal: the applicant had made a conscious and deliberate decision to remove the contractors’ personal isolation locks and the applicant had failed to report that conduct. This overall conduct was a serious breach. 6

[41] The termination letter cited the respondent’s Isolation Procedure policy which the respondent said had been breached by the applicant:

“3.4.11 Personal locks may never be removed other than by their owner, other than in the presence of and under the supervision of the General Manager or his/her appointed nominee, and in accordance with a documented procedure.”

[42] The termination letter then said that isolation procedure is one of the respondent’s Golden Rules and is critical to ensuring the safety of all people on site.

[43] The respondent has the burden to prove that the facts existed to support the dismissal. In this case, the respondent is relieved of that burden as the applicant conceded he engaged in the conduct that led to his dismissal.

[44] That conduct needs elaboration in light of the reference to the respondent’s policies.

[45] Each employee has his/her own safety lock. Even contractors brought in from outside have their own safety locks. The safety lock is key operated, so that only the owner of the lock can remove the lock that has been placed on equipment.

[46] The plant and machinery on site contains a switch (called an isolator) which connects the power source of the plant or machinery to the rest of the plant or machine. When the switch/isolator is in the “OFF” position, then the plant or machinery is cut off from its power source and thus the power source is isolated. To ensure that the isolator remains in the “OFF” position, a personal lock is placed on the isolator. This isolator procedure is designed to ensure that nobody is injured. Thus, without this isolation procedure, somebody may turn on the power source whilst another person is working on the plant or machinery.

[47] In the present case, the two contractors were carrying out welding work on water piping which was attached to a water pump (the size of a shipping container) and whose power source had been isolated by their safety procedure of placing their locks on to scissor clips which were then placed on the switch/isolator.

[48] The applicant’s conduct for which he was dismissed, was the removal of the contractors’ safety locks. He was able to remove the locks by prying open the scissor clips, to which the locks were attached. It was the scissor clips, per se, which were attached to the isolator switch, rather than the locks themselves.

[49] As stated above, the termination letter advised that the applicant’s conduct was in breach of the respondent’s Isolation Procedure policy and its Golden Rules.

[50] The applicant certainly breached the Isolation Procedure by removing the locks as he was not the owner of the locks and did not otherwise comply with the other aspects of this policy for removal of a lock which is not your own.

[51] The respondent also said in its termination letter that the applicant had breached one of the respondent’s Golden Rules. These are a list of rules designed to protect employees and contractors from serious injury or fatality. Evidence was given that each Golden Rule is a reflection of a safety failure, somewhere in the world, and which has caused a fatality at a mine.

[52] The respondent claimed that the applicant had breached Golden Rule #1: “Never work on equipment without first applying your personal lock(s) in accordance with isolation procedures.”

[53] Mr Glenn Meyn (who recommended the applicant’s dismissal following the investigation), agreed under cross-examination that the applicant had not breached this Golden Rule, per se. 7

[54] Despite there being no breach, per se, of one of the Golden Rules of safety, it is still the case that the applicant breached (and he conceded he did so) the Isolation Procedure policy. The question then for myself is whether that breach of policy is such as to make the termination of the applicant’s employment, a valid reason. Case law makes it clear that in order for a reason for dismissal to be valid, that reason(s) must be sound, defensible or well founded 8 and the reason(s) for termination must be defensible or justifiable on an objective analysis of the relevant facts.9

[55] The respondent’s justification for its decision to dismiss the applicant was that of safety - a safe working environment.

[56] Mr Meyn’s witness statement sets out, inter alia, the respondent’s safety policies and procedures. 10

[57] Mr Meyn was, at all relevant times for this Decision, the Acting Manager, Mining, at Mount Thorley/Warkworth Operations (MTW).

[58] Mr Meyn’s witness statement deposed that:

(a) There is an overriding priority of safety to all coal mining operations at MTW.

(b) He had statutory duties as Acting Manager in relation to the health and safety of employees under the Coal Mine Health and Safety Act 2002 (NSW) and Occupational Health and Safety Act 2000 (NSW).

(c) In 2004, the respondent implemented its Golden Rules safety system. These rules are a list of seven safety rules which are designed to protect employees and contractors from serious injury or death. Each rule arises from a safety incident within the respondent’s global operations and which has caused a fatality. Presentations are made to employees to make them aware or refresh them as to the content of the Golden Rules, their seriousness and purpose.

(d) The respondent provides a “Take 5” flip book (Ex 7) to each employee. Before completing any task on site, every employee must perform a “Take 5”. This involves opening the flip book and mentally checking (and recording) the task at hand and the safety issues associated with that task. On the inside cover of the flip book is a list of the Golden Rules.

(e) The respondent has a RTCA Isolation Standard which forms part of the Rio Tinto Group Health, Safety and Environment Policy. The RTCA Isolation Standard refers to isolation procedures: that is, isolating the power source from machinery or equipment before carrying out any work. The current version of the Isolation Standard was shown as a PowerPoint presentation to employees at MTW around August 2006. Reference has already been made in this Decision to paragraph 3.4.11 of the Isolation Standard which says in part: “Personal locks may never be removed other than by their owner,...”.

(f) As employees leave the car park at the Mount Thorley side of MTW, there is a sign which contains a large picture of a personal lock, next to which are the words: “HAVE YOU REMOVED YOUR LOCK?”, in large, capital lettering. Some employees at MTW have left the site having inadvertently left their personal locks secured to a machine. In those cases, the lock has not been removed and the employee has been called to return to the mine to remove their personal lock or the Isolation Standard has been followed and the General Manager has become involved.

[59] From the foregoing account of safety features operating at the respondent’s coal mine site, I accept the respondent’s claim that safety and a safe working environment is an overriding priority. The applicant had 28 years services and is aware of the safety features referred to above. The applicant conceded that his conduct breached the Isolation Procedure because he removed personal locks that were not his own.

[60] Although the applicant conceded that he had breached the Isolation Procedure, he put forward defences as to why the decision to terminate his services was unfair (not a valid reason). Some of those defences (length of service etc) will be considered below under “Other Matters”.

[61] The primary defence of the applicant is that in removing the personal locks, he did not put any lives at risk. This was because he knew two things: firstly, the contractors had finished their welding task and secondly, he had driven the length of the piping between the inline pump and pump number one and no one was working on that pipeline section - as such no lives were at risk, when he removed the locks and started pump number one.

[62] During proceedings, this defence had a time factor applied to it. The evidence was that it would have taken two to three minutes to drive the length of the piping. It was put that it was highly unlikely that a worker would then have worked on that pipeline section, just traversed by the applicant, in the time that it took for him to then turn on the water pump.

[63] Mr Meyn however, in re-examination added another ten minutes delay before the applicant turned on the pump number one when he arrived at that location. This additional time was due to the task of pushing the water pump further into the pooled water before turning on. This further delay increased the chance of a worker doing work on that section of the pipeline.

[64] I considered this defence of remote possibility and accept that it was highly unlikely that another worker would work on that section of pipeline just traversed by the applicant when driving from the inline pump to pump number one. And even if a worker did so, what chance that the worker would actually rupture the pipeline and cause himself injury or fatality? It all seems very remote.

[65] At this level of my deliberation, I considered ordering the reinstatement of the applicant but without any order for lost remuneration (some seven months lost remuneration). That there would be no order for lost remuneration would be a reflection of the seriousness of the breach of Isolation Procedure Policy.

[66] However, at another level of my deliberation, was the respondent’s case that this was all about maintaining and promoting a safe working environment. This was not a case where an employee had a lapse of concentration in safety procedure and because it was only a lapse was not dismissed - there was such evidence before myself. This was a case, the respondent put, in which the applicant had deliberately breached a safety procedure, and this breach raised the possibility of risk of injury to another worker(s). As to how unlikely, how remote that possibility of risk, was irrelevant, the respondent submitted.

[67] Having considered those two foregoing scenarios of deliberation, I have concluded that the respondent’s case is the correct scenario for adoption by myself.

[68] I am influenced in coming to that decision, by the nature of the industry in which the applicant worked, and the respondent’s case that the applicant made an assumption about the likelihood of risk.

[69] The industry in which the applicant worked was the mining industry. It is a working environment that is more risk concerned than say, an office environment. The applicant himself, worked for many years as a shot firer which required handling and setting off tonnes of explosives. The Golden Rules arose out of fatalities in the respondent’s mines located around the globe. That type of working environment requires workers to be safety conscious all of the time - because their lives depend on being safety conscious.

[70] The other influencing factor is the assumption of risk factor and its relationship to the nature of the industry. A worker (employee or contractor) needs to be able to work in that risk concerned environment, knowing that every other worker will follow safety procedures. It is a mutual safety first working environment. Each worker depends on the other(s) for their safety. There is no room, in that particular working environment, for assumptions as to risk where another worker(s) is unaware as to another worker’s breach of safety procedures.

[71] Although the respondent described the applicant’s conduct as a conscious effort in removing the two locks, the respondent was not describing that conduct as wilful. The applicant, it was said by the respondent, is a hard working employee. The applicant’s motive in removing the two locks, was to get the job underway by turning the pump on and draining the pooled water.

[72] Another matter raised by the CFMEU in final submissions was that the decision to terminate was unfair given that the decision was based in part on the applicant’s alleged breach of Golden Rule #1. This Golden Rule goes to an employee never working on equipment without first applying your personal lock. I accept that the CFMEU is correct in its submission that the applicant did not breach this Golden Rule which was relied upon, significantly, by the respondent in deciding to terminate the services of the applicant. However, this error on the part of the respondent does not alter the reasoning/finding I have set out about the applicant’s breach of the Isolation Procedure.

[73] Having considered all of the evidence and submissions, I find that there was a valid reason for this dismissal of the applicant based on the respondent’s case as discussed above.

(b) whether the person was notified of that reason

[74] The applicant conceded that he was notified of the reason for summary dismissal.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[75] The applicant provided an oral and written response to the issues raised by the respondent.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relating to dismissal

[76] The applicant advised that this was not an issue.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[77] There was no previous warning or counselling about the applicant’s performance in his 28 years of service.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[78] This factor was not an issue.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[79] This factor was not an issue.

(h) any other matters that FWA considers relevant

[80] The factors to consider here are the applicant’s length of service (28 years); his unblemished employment in that long time; his hardworking attitude; he had worked in a safety critical job as shot firer for most of that 28 years; he had not breached a Golden Rule; his age (55 years); his financial and personal circumstances; prior to removing the contractors’ locks, he had traversed the length of the pipeline and could see that no one was working on the pipeline - just before he turned on pump number one; the applicant’s conduct in removing the locks was out of character; and he was remorseful.

[81] Having considered all of those matters, I am still of the view that the respondent had a valid reason for terminating the services of the applicant.

CONCLUSION

[82] In this case, I have considered two possible outcomes:

(a) the dismissal was unfair because of the remoteness of injury to any worker(s) owing to the applicants conduct in removing the contractors’ locks and

(b) the dismissal was not unfair because the applicant consciously breached a safety procedure in a working environment wherein assumptions about risk likelihood to another worker(s) is not acceptable.

Having considered all of the evidence, I have concluded that the dismissal was not unfair: that is, was not harsh, unjust or unreasonable.

[83] Accordingly, I decline to intervene in the decision of the respondent to dismiss the services of the applicant.

COMMISSIONER

Appearances:

Mr K Endacott and Mr R Trappel of the CFMEU for the applicant

Mr A Longland and Mr Bannerman, Solicitors for the respondent

Hearing details:

2010

Newcastle

13 and 14 July

 1   [2010] FWA 4978 (6 July 2010)

 2 Ex 14, para 8

 3 Ex 2, para 3

 4 Ex 1, para 18

 5 Ex 1, annex LDL-3

 6   ibid

 7   PN949 to PN 955

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 9   Rode v Burwood Mitsubishi, Print R4471 at p19, 11 May 1999, Ross VP, Polites SDP, Foggo C

 10   Ex 11

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