Mr Luke Faulkner v BHP Coal Pty Ltd

[2014] FWC 9330

[2014] FWC 9330

FAIR WORK COMMISSION

DECISION

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

Mr Luke Faulkner
v
BHP Coal Pty Ltd
(U2014/4966)

COMMISSIONER SPENCER BRISBANE, 22 DECEMBER 2014

Application for relief from unfair dismissal - misconduct - alleged breach of mobile devices procedure - Facebook post - procedural deficiencies

Introduction

[1] This decision relates to an application, filed in the Fair Work Commission (the Commission) by the Construction, Forestry, Mining and Energy Union (CFMEU) on behalf of Mr Luke Faulkner (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth). The application alleges that the Applicant was unfairly dismissed from his employment, by BHP Coal Pty Ltd (the Respondent) for an alleged breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure (the procedure).

[2] The application was the subject of conciliation before a Fair Work Commission Conciliator but was unable to be resolved.

[3] Directions for the filing of material and evidence were issued.

[4] The matter was heard before the Commission, as currently constituted, on 9 and 10 September 2014 in Mackay, with a final hearing in Brisbane on 10 October 2014 after the filing of final submissions. Subsequent to this both parties filed additional submissions. The Applicant was represented by Mr Rowan Anderson, Legal Officer of the CFMEU and the Respondent was represented by Mr Steven Smith, Partner, Ms Kristin Gamble and Mr Ben Quinn of Herbert Smith Freehills Solicitors.

[5] This matter was heard in connection with another hearing of a dismissal by the Respondent for a breach of the same procedure. A number of the same witnesses were involved in both matters. Some parts of the transcript are shared and there is some common material in the decisions.

[6] It is noted that whilst not all of the evidence and submissions are referred to, in this matter, all of such have been considered in making the decision.

Background

[7] The Applicant was employed by the Respondent as an Operator at the Goonyella Riverside Open Cut Coal Mine (the Mine), on a full time basis and had been so since 15 October 2008.

[8] The Applicant contended that on 22 January 2014, the Applicant started work at approximately 6:15pm. At 3:35am on 23 January 2014, the Applicant was in a Rear Dump Truck being loaded by a shovel. The Applicant stated the truck was stationary and the park break was on. The process of loading the truck took approximately 4 minutes and completion of this process was signalled by a beeping noise. During this time, after looking in his bag and discovering his mobile phone, the Applicant turned on his phone and posted a comment on Facebook as follows:

“Zachary J........your lucky I’m here to get your truck out of the bog you got it into.”

[9] An employee at the minesite was a Facebook friend of the Applicant and she reported the post during that shift to management. The Respondent considered this conduct was in breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure and the Applicant’s termination was effected on this basis.

[10] An updated version of the procedure was in place. Relevantly, the procedure states as follows:

“ ...

1.0 Context

To ensure all coal mine workers and visitors at Goonyella riverside are not exposed to an unacceptable level of risk by the use of mobile electronic devices whilst on site.

2.0 Scope

Mobile electronic devices include but are not limited to:

● Personal laptop computers/tablets (eg. iPad)
● Music/media players (eg. iPod)
● Mobile phones
● Cameras
● Electronic gaming devices.
● Any other device capable of sending or receiving radio signal

Two way radios, vehicle mounted/fixed AM/FM radios, GOIC/VOIP systems, and fixed phones including those installed in BMA owned equipment are not considered mobile electronic devices.

This procedure prohibits mobile electronic devices from all areas onsite, with the exception of those areas highlighted on the ‘Riverside and Goonyella Mobile Electronic Device Exemption Area Map’, without the prior written consent of the SSE or Department Manager.

The SSE or Department Manager may provide, to any person, an exemption from this procedure or declare any area on site (with the exception of the open cut excavation) as being exempt from this procedure (see exemptions).

It is the responsibility of Department Managers, Superintendents and Supervisors to:

● Inform all coal mineworkers and visitors in their area of responsibility or under their control of the requirements of this procedure.
● Implement and monitor this procedure in their area of responsibility, by communicating and taking appropriate corrective actions when required.

Personnel can store their device in their vehicle in the car park external to TAMS, in the mobile device lockers provided on site, or at the Site Access Centre or during business hours at Riverside Reception.

Coal mine workers and visitors shall comply with this procedure.

3.0 Exemptions

Areas exempt from these requirements are highlighted on the ‘Riverside and Goonyella Mobile Electronic Device Exemption Area Map’. Access to designated areas with a non-authorised device is permitted, provided the following requirements are met-

● the direct path / between designated areas is taken
● the mobile electronic device is not utilised during transit

Personnel may access their device throughout the day provided it does not impact on their normal work duties and they have permission from their Supervisor.

All personal exemptions will be listed on the ‘GRM Mobile Electronic Devices Approval Register’ (KM#6307159) with a copy of the approval saved to folder KM# 9685099. It is the responsibility of coal mine workers to produce a copy of the exemption on request in cases where the exemption has been provided for a fixed period (short-term).

3.1 Conditions of use of mobile electronic devices

If an exemption is granted mobile electronic devices may only be used in the following way:

● In a safe location
● Whether hands free or not, shall only be used by the driver of a vehicle whilst the vehicle is stationary and in a safe position.
● Must not be used whilst operating equipment
● At no time shall coal mine worker’s walk whilst operating mobile electronic devices

Failure to comply with this policy may lead to disciplinary action or removal from site.”

[11] The Applicant was instructed to attend a meeting with his supervisor at approximately 5:00am on 23 January 2014. The Respondent had obtained a screenshot of the Facebook post. As a result of the meeting the Applicant was suspended (with payment) from his employment on 23 January 2014. The Applicant was issued with the following letter (the show cause letter):

“...

Dear Luke

YOUR EMPLOYMENT WITH BMA GOONYELLA RIVERSIDE MINE

I refer to our meeting today during which you were provided with the outcome of the investigation into your alleged breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure (Procedure).

Findings

In reaching the following findings, the investigator considered all relevant information. They took into account all of the information that was collected throughout the investigation, including your verbal responses and the reports of other parties.
It was substantiated that you had a mobile telephone in truck RD01 during night shift whilst you were operating on the morning of Thursday, 23 January 2014.

Breaches

Your actions are considered to be in breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure. In particular Section 2.0, which prohibits mobile electronic devices (as defined by the Procedure) from all areas onsite, except those areas exempted by the Procedure, without the prior written consent of the SSE or Department Manager.
As you are aware, BMA employees are required to comply with all BMA policies and procedures at all times during their employment.

Outcome - show cause

Luke, these findings are very serious. BMA is considering disciplinary action against you, which might include the termination of your employment. Before deciding the appropriate outcome, I would like to provide you with an opportunity to consider the findings of the investigation and your employment history with BMA.

You are required to provide a written response and to show cause as to why your employment should not be terminated. Please provide your written response to me by no later than 4.00 p.m on Thursday, 30 January 2014. If you do not provide any written response by this time, I will have no alternative but to make a decision in relation to your employment based on the information presently available.

In deciding the appropriate outcome I will consider a number of factors including your written and verbal responses, all of the information obtained as part of the investigation, your employment history with BMA and any other relevant factors.

Direction not to attend work

You are directed not to attend work from today until further notice. You will continue to be paid during this time and must be available at the company’s request. We currently have your contact details on file as [number deleted from decision] (mobile) Please let us know if those contact details are incorrect.

Employee Assistance Program

Luke, I understand that this may be a difficult time for you. I wish to again extend to you the offer of any assistance you may require regarding this matter and also remind you that the company’s Employee Assistance Program is available to you by calling [number deleted from decision].
I look forward to receiving your written response by 4.00 p.m. on Thursday, 30 January 2014.

Tony Briffa...”

[12] The Applicant, in his show cause response letter to the Respondent, dated 29 January 2014, acknowledged that it was substantiated that he had a mobile phone in his truck while working on 23 January 2014. The response to the show cause was as follows:

“Dear Tony,

I refer you your letter of 23 January 2014 in which you requested that I respond to you and ‘show cause’ as a result of my actions on 23 January 2014.

Allegation

It was substantiated that I had a mobile phone in truck RD01 during night shift whilst I was operating on the morning of Thursday 23 January 2014.

The company have found my actions to be in breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure. Section 2 prohibits mobile electronic devices (as defined by the Procedure) from all areas onsite, except those areas exempted by the procedure, without the prior written consent from the SSE or Department Manager.

Response to Allegation

I acknowledge and apologise for my actions. I pride myself on doing the right thing at work and I am very disappointed in myself for make such a poor decision to have my phone on me.

I have worked at Goonyella Riverside mine for approximately 6 years. In all of that time I have received good ratings on my performance. I have recently been given approval by my supervisors to become a trainer assessor. This in addition to my upcoming training on a digger is a good reflection on my good, safe work ethic. I pride myself on being a safe and productive employee.

I realise that this does not justify my actions but I hope that you take this into consideration when deciding whether or not you wish to terminate my employment. I assure you that if my employment is not terminated and I am allowed to resume my duties I shall not breach this or any other company policy. I understand that if I do breach any other policy, I am liable to have my employment terminated.

Personal Circumstances

I currently live with my wife in Moranbah. My wife is a full time employee for BMA also. In the event that my employment is terminated I will have to relocate to seek alternative employment. This would cause significant financial and emotional detriment to myself and my wife. I am currently in the process of paying off a personal debt which requires regular repayments. The termination of my employment would impact on my ability to meet these payments, and may result in me defaulting.

I enjoy working at the Goonyella mine and I wish to continue working for BMA for many years to come.

I urge the company to please consider any other form of disciplinary action. I realise and accept that if I am allowed to resume my position I would be on a final warning and if I was to commit any other form of misconduct, no matter how minor, it would undoubtedly end in the termination of my employment. I can assure you that I would do everything in my power to not let this happen.

I thank you for reading this letter and I hope that you allow me to resume my duties as soon as possible.

Yours Sincerely

Luke Faulkner”

[13] The Applicant was issued with a termination letter on 4 February 2014 in the following form:

“...

Dear Luke

Termination of Employment

I refer to my letter to you dated 23 January 2014 regarding your employment at BMA Goonyella Riverside Mine.

In that letter I invited you to provide me with a response by 30 January 2014 as to why your employment should not be terminated for breaching the Goonyella Riverside Mine Mobile Electronic Device Procedure. You provided me with your written response on 30 January 2014. I have now had an opportunity to consider your written response.

In determining the appropriate outcome, I have applied the Just Culture Decision Tree and have taken all relevant matters into account, including the findings of the investigation, relevant information obtained during the investigation, your employment history and your responses.

By using a mobile device whilst operating heavy equipment you put yourself and other Coal Mine Workers at an unacceptable level of risk and breached your obligations as an employee at BMA Goonyella Riverside Mine. In the circumstances, given the nature of your misconduct, I have decided to terminate your employment effective immediately.

In accordance with the BMA Enterprise Agreement 2012, BMA will make a payment to you equivalent to 5 weeks’ pay in lieu of notice of termination of your employment. This payment will be made to you as soon as practicable.

Payment of Accrued Entitlements

Upon termination for your employment, you will be paid all outstanding wages and all accrued and untaken annual leave and long service leave entitlements. Details of your termination payments will be provided to you separately.

Post-Employment Obligations

After your employment ends, you must not disclose to anyone any confidential information about BMA. You also remain bound by all other obligations in your contract of employment and associated documentation which are expressed to continue after the termination of your employment.

Return of BMA property and Separation Paperwork

Please ensure that all BMA property in your possession is returned to me before Tuesday 11 February 2014. This includes but is not limited to any tools and equipment and all BMA documents.

I have also attached to this letter Separation Paperwork which must be completed as soon as possible to allow for processing of your final pay. This paperwork includes a Movement / Separation Pack Checklist (1 page), a Movement / Separation Clearance Certificate (2 pages) and an Application for Long Service Leave Benefit on Termination form (1 page).

...

Employee Assistance Program (EAP)

Luke, I understand that this may be a difficult time for you and your family. I wish to extend to you the offer of any assistance you may require regarding this matter and also remind you that a professional, confidential counselling service is available to you for the next 4 weeks, free of charge, through our EAP provider. Appointments may be made by contacting the provider directly on [deleted from decision].

Yours sincerely,

Tony Briffa...”

Legislation

[14] The application has been made pursuant to s.394 of the Act, which provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)...”

[15] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(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.”

[16] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 25 February 2014. The originating application stated that the dismissal took effect on 4 February 2014. As the date of termination is not disputed between the parties, the application was made within the period required in s.394(2) of the Act.

[17] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[18] There is no dispute between the parties that the Applicant had completed the minimum employment period and was not a high income employee. No other jurisdictional objections were made by the Applicant. The Applicant was a person protected from unfair dismissal at the time of dismissal.

[19] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

[20] There is no dispute that the Applicant is a person who has been dismissed. Those matters in ss.385(c) and (d) do not arise.

[21] The Applicant has alleged that his dismissal was harsh, unjust or unreasonable. The Applicant seeks reinstatement. In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account those matters specified by s.387 of the Act, as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant.”

[22] These matters are considered later in this decision.

Summary of the Applicant’s Submissions and Evidence

[23] Evidence was provided by the Applicant. Mr Russell Robertson (Lodge President) also provided two affidavits, tendered as exhibits. He was not cross-examined. Mr Robertson’s evidence addressed the alleged comparative differences in applying the procedure to different employees, with different disciplinary outcomes resulting.

[24] The Applicant’s employment was terminated on 4 February 2014 for misconduct. Whilst the Applicant admitted that he used his phone to make a Facebook post, the Applicant submitted that he did not have his phone with him deliberately, and only discovered it while looking in his bag, he said, for a snack and for something to read, to avoid the onset of fatigue. The Applicant submitted that the phone was used for the Facebook post while the truck was stationary and that he had turned the phone off again, before operating the truck. Accordingly, it was submitted on behalf of the Applicant that there was no associated risk with using the phone in the circumstances, where the truck was stationary and not being operated.

[25] The Applicant alleged that the Mobile Electronic Device Procedure was not clear that a breach of the procedure would result in dismissal, nor did it indicate what steps an employee should take if, unintentionally, they brought their phone onto site, potentially in breach of the procedure. The Respondent considered that a specific process for this, did not need to be dealt with in the procedure.

[26] It was submitted, on behalf of the Applicant, that the Applicant’s dismissal was an unfair dismissal on two main bases, the first being that the dismissal was not for a valid reason in consideration of s.387(a) of the Act and alternatively, that the dismissal was harsh, unjust and unreasonable.

[27] The Applicant submitted that a consideration of the “fair go all round” principle should be applied to the factors in s.387 of the Act and that all matters under s.387 must be considered by the Commission, in assessing the dismissal.

Valid Reason

[28] The Applicant referred to case law dealing with what constitutes a valid reason in their submissions. It was submitted that a valid reason within the meaning of s.387 was a reason that must be “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”. 1 Further, the Applicant submitted that the Commission must undertake an objective analysis of all the facts2 in determining whether there was a valid reason, and in that regard, the entire factual matrix is relevant3.

[29] With respect to the dismissal for misconduct, the Applicant submitted that the Commission must be satisfied that the conduct took place as stated 4, and in addition, the Respondent carries the onus of proving that the dismissal was not harsh, unjust or unreasonable. Further, it was stated that the standard of proof is on the balance of probabilities, however in a case where serious misconduct is alleged and needs to be proven, the Applicant submitted that the evidence relied upon must be strong and made out in accordance with principles in Briginshaw v Briginshaw5. The Respondent contended the Applicant conceded he had the phone in the truck, in breach of the procedure.

Notification of reasons for dismissal

[30] The Applicant submitted that the reasons for dismissal, outlined in the termination correspondence, differed substantially from those stated in the show cause letter. The Applicant submitted that the show cause letter, which contained the findings of the investigation, contained no allegation that an unacceptable level of risk was created. However, the Applicant submitted that the termination letter referred to an unacceptable level of risk in the primary reasons for termination.

[31] Further, the Applicant submitted that, while the show cause letter stated that the investigation concluded that the Applicant had a mobile phone with him, the reason for termination referred to the use of a mobile phone while operating. The Applicant argued he was not operating the truck, as it was stationary at the time of posting the entry. The Respondent argued that once responsibility is assumed for the vehicle and the driver is in the driver’s seat, the driver is operating the vehicle.

[32] The Applicant submitted that the differences between the show cause letter and the termination letter are not trivial and consequently, the Applicant was not notified of the reasons under consideration (as set out in the termination letter) for dismissal.

Opportunity to Respond

[33] The Applicant submitted that he was not provided with an opportunity to respond to the matters which were later said to justify or warrant the termination of his employment. The Applicant submitted that, whilst he was given the opportunity to respond to the allegation contained in the show cause letter, and did so, he did not respond to the issue of using the mobile phone, (opposed to just having it), or to the issue of creating an unacceptable level of risk, as to whether he was operating the vehicle or not.

[34] In relation to the reasons for dismissal, at paragraph [31] of Dr Briffa’s (General Manager Site Senior Executive) affidavit, he stated as follows:

“I Responded to Mr Kinderis saying words to the effect that:

(a) I agreed with Mr Kinderis’ assessment that Mr Faulkners conduct was intentional and deviant.

(b) Mr Faulkner’s conduct warranted that Mr Faulkner be stood down with full pay and asked to show cause as to why his employment should not be terminated, and

(c) I would telephone Mr Johnson to advise him of the incident and to get his approval to my proposed course of action.”

[35] The Applicant’s representative submitted the Applicant was denied the opportunity to respond to all of the matters under consideration in relation to the dismissal, including the matters of his employment history.

Unsatisfactory performance

[36] The Applicant submitted that the Respondent found that the Applicant had previously committed a safety breach; however, there were no substantiated prior disciplinary proceedings (raised in the show cause or) relied upon in the overall consideration of the dismissal. There had been no warning given to the Applicant for unsatisfactory work performance and the Respondent could not rely on a history of unsatisfactory work performance of the Applicant (in circumstances where this was not clearly set out).

[37] The Applicant’s submissions addressed the Respondent’s reference to a prior incident, which involved the Applicant posting a comment on Facebook. The Applicant stated this was submitted by the Respondent, in response to the application. The Applicant submitted that neither the show cause letter nor the termination letter referred to previous conduct, and no reliance should be placed on such in the current circumstances, particularly where it had not been properly made out, and the dismissal was for breach of the procedure.

Summary of Respondent’s Submissions and Evidence

[38] The Respondent submitted that they had a valid reason to terminate the Applicant’s employment on the basis that the Applicant did not comply with the Mobile Electronic Device Procedure. The Respondent submitted that they complied with their procedural requirements in relation to the dismissal procedure, which included putting the allegations to the Applicant; allowing him an opportunity to respond; allowing him a support person; issuing a show cause letter on 23 January 2014 and taking into account the Applicant’s response of 30 January 2014.

[39] The Respondent denied it was unclear that a breach of the procedure may result in dismissal, as dismissal is an outcome contemplated under the Respondent’s disciplinary processes. The Respondent submitted that the strictness of the procedure is designed to give effect to the Respondent’s obligations under the Coal Mining Safety and Health Act 1999 (Qld).

[40] The Applicant argued the procedure was never implemented as a ‘zero tolerance’ procedure and it has not applied to other employees in that way. The Respondent stated the procedure came about as a result of an earlier high potential incident (involving a separate employer’s employee), where a mobile phone was in use (whilst operating) and the resulting Mines Safety Inspectorate Bulletin recommending a review of the use of mobile devices on mine sites, as set out further below.

[41] Mr Benjamin Willis (B Crew Mining Supervisor), Mr Glenn Paterson (Coal Mining Supervisor), Mr Justin Kinderis (Coal Mining Superintendant) and Dr Tony Briffa (General Manager Site Senior Executive) gave evidence in relation to the review, development and implementation of the Respondent’s mobile phone procedure as included below.

Review of the Mobile Device Procedure

[42] In January 2013, the Department of Natural Resources, Mine released a Mines Inspectorate - All Mine Safety Bulletin No. 130, 14 January 2013 (the Bulletin).

[43] The Bulletin stated:

“...

Following several high potential incident investigations, the mines inspectorate is aware of mine workers using mobile devices (including mobile phones, tablets or other social media devices) while operating vehicles or other mobile plant.

There is concern at any casual factors, including human factors, that may impair safe vehicle operation. Any incident involving a vehicle or mobile plant can be fatal, with 8 of the last 12 fatalities in Queensland mines involving vehicles of mobile plant...”

[44] The purpose of the Bulletin is stated as follows:

“...

This safety bulletin aims to:
1. Remind people of the risks of using mobile devices (including mobile phone, tablets or other social media devices) while driving or operating mobile plant;
2. Recommend that a mines risk management process has regard to the role of human factors in vehicle or mobile plant incidents by incorporating known risk factors in site risk assessments, hazard management and control elements.
3. Reinforce that a mine worker or other person at a mine or person who may affect the safety and health of others at a mine or as a result of mining operations has the following obligations-

• Comply with the Act and procedures applying to the worker or person that are part of a safety and health management system for the mine (Coal Mining Safety and Health Act 1999, Section 39(1)(a) and the Mining and Quarrying Safety and Health Act 1999, Section 36(1)(a)).



• Not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine (Coal Mining Safety and Health Act 1999, Section 39(2)(f) and the Mining and Quarry Safety and Health Act 1999, Section 36(2)(f))...”

[45] The Bulletin also stated:

“...

Note- the mines inspectorate will consider appropriate action under its compliance policy if an incident investigation finds a person has acted recklessly in respect to mobile phone, tablet or other social media devices while operating a vehicle or other mobile plant...”

[46] The Bulletin referred to the relevant associated risk, to the usage of mobile devices, as follows:

“...

What is the risk?

Driving is complex, requiring use and co-ordination of cognitive, physical and motor skills. Driving while using a hand held mobile device can cause both physical and mental distraction which impairs driving performance.

According to the World Health Organisation (WHO), performance is impaired if using a mobile phone while driving, resulting in:

• longer braking reaction times



• slower reaction to traffic signals,



• impaired ability to keep in the correct lane, and



• shorter following distances

In summary, WHO states that ‘using mobile phones can cause drivers to take their eyes off the road, their hands off the steering wheel, and their minds off the road and the surrounding situation.

If you need to use your mobile phone to call for help, stop and park safely where you will not endanger yourself or other road users...”

[47] The Bulletin suggested a revision of relevant policies and control measures as follows:

“...

The mine site could review policies and procedures, and also consider the role of inattention or distraction when undertaking incident investigations related to mobile plant and vehicle operation.

Controls for risks of inattention or distraction

There are a number of control measures that sites could consider for the risks of inattention or distraction. Again, there is information available in the WHO documents and from other sources for sites to implement effective control measures that consider the hierarchy of controls.

As there are some situations when mine workers may need to access mobile phones while on site, other risk management approaches will be required. This could include evaluating the possibility of:

• Limiting access to mobile devices or phones with internet access



• Limiting access to mobile phones except in emergencies



• Limiting mobile phone use to only hands-free devices and only when parked in a safe location...”

[48] Dr Tony Briffa, (General Manager Site Senior Executive) in evidence, stated that the ‘risk’ the procedure was endeavouring to address was in relation to driving, the operation of equipment and eliminating the distraction caused by mobile devices whilst doing such. Dr Briffa stated that the aim of the procedure was to consider the hierarchy of control and to eliminate the risk of mobile device use.

[49] Dr Briffa referred to the process of revision of the procedure and the associated change management process. To accommodate human failings and provide consistency for implementation of the procedure, previously held individual exemptions in regard to compliance with the procedure were revoked and the exclusion zones for use, were reviewed based on risks. Mobile devices were not allowed in pits and work bays; where the repercussions for distractions are serious. The administrative buildings (which predominantly involve deskwork) are exempt from the procedure. In addition, he stated some crib huts not in operational areas are exempt.

[50] Dr Briffa referred to the initial procedure as unworkable, that is, requiring all employees to leave phones outside the TAMS gate and it was considered the level of risk was low to access a mobile phone in a crib room. Subsequent to this, administration and associated areas were added to the exempt areas and lockers were built in various locations, to allow employees to access mobile devices during breaks.

[51] Dr Briffa confirmed that the Respondent does provide mobile phones for work purposes to a number of employees, predominantly staff, but also some Award employees.

[52] Dr Briffa gave evidence that approximately 300 pre-strip employees, working 12 hour shifts and taking breaks in the field, do not have the ability to access their mobile devices during the shift, due to the location of the lockers and where these employees’ work is undertaken.

[53] With respect to the site exemptions previously provided, in relation to the permission for restricted use of mobile devices, Dr Briffa came to the view that there was no difference in the risk between supervisors using phones (with exemptions) and employees, and many of these previously held exemptions were revoked.

[54] Dr Briffa noted that, in this regard, supervisors (with mobile phone exemptions) were generally using light vehicles; however, he stated he had listened to feedback that referred to the divisive nature of the exemptions being viewed as an “us and them” application of the procedure. Therefore, he revoked the exemptions, to ensure, in his view, the risk associated with mobile device use on site was as low as possible.

New Mobile Devices Procedure - Implementation

[55] There was no copy of the prior mobile device procedure document in evidence before the Commission. It was submitted that the delay in implementing the revised procedure was caused by establishing the lockers for storing the mobile devices and the placing of related signage at the mine site.

[56] Dr Briffa stated that the normal course for incidents of potential breaches of the procedure, was that an investigation was undertaken and the responses to such may range from ‘a chat’ to termination. In summary, if there are unintentional factors involved in an incident, those will be considered in the review of the incident against the “Guidelines to Fairplay” and the “Just Culture Decision Tree”. To establish the appropriate response, Dr Briffa explained that an investigation should be completed and the 5 “why” questions should be asked to direct the outcome. In the current matter the Applicant’s representative submitted a formal investigation in the regular form was not undertaken.

[57] The Respondent stated that the questions suggested by the Human Resources Officer were asked of the Applicant, and these went to confirming the relevant information to assess the breach.

New Mobile Devices Procedure - Training

[58] Dr Briffa provided evidence on the training and implementation of the procedure and the associated incident investigations and controls. He considered there was consistency of enforcement of the application of the procedure.

[59] However, Dr Briffa noted that the relevant factors of each incident should be taken into account using the Just Culture Decision Tree. Dr Briffa acknowledged that humans were fallible and raising a mistake in taking a device into a prohibited area, would be considered differently. He stated Mr. Faulkner did not do this. If the employee had called his supervisor to give the phone in and not used the phone, the consideration of the breach may have been different. The Applicant’s representative stated the Applicant was transparent when asked about how he had the phone and the Facebook post.

New Mobile Electronic Device Procedure - alleged comparative differentiation of treatment of breaches

[60] The Applicant’s representative referred to a number of incidents where the breach of the procedure, had received differing disciplinary outcomes by the Respondent.

[61] Dr Briffa gave evidence that Mr Des Hutchinson had been using his phone, however he thought he had an exemption and he was not operating equipment. Mr Hutchinson had stated he had applied for an exemption and believed it had been granted verbally. An investigation was undertaken as a ‘serious breach’ of policy and the disciplinary outcome provided was ‘one down’ from a termination outcome, that is, a final warning with a 3 week unpaid suspension was imposed 6.

[62] Dr Briffa gave evidence in response to an alleged breach by Mr Sean Parish, and that he had an exemption for his phone. However, it was alleged he was on the phone while operating equipment in pre-strip. Dr Briffa stated it came down to conflicting versions of the incident 7.

[63] Dr Briffa stated that Mr Parish’s version was that the vehicle was not moving, but was stationary, whilst he was on the phone. The other version provided by an employee was that the vehicle had been moving or rolling, whilst he was talking on the phone. As a result of the investigation, Mr Parish was taken through the procedure again, but no disciplinary outcome was applied to Mr Parish.

[64] In response to a number of allegations of differing treatment under the procedure, Dr Briffa clarified that he had not been the SSE for the entire period under consideration of some of these other breaches and Mr Murray McKirdy was the investigating officer at that time. He was manager of pre-strip and Mr Parish was one of his supervisors.

[65] The supplementary statement of Mr Robertson in relation to Mr Parish’s incident states a contrary view.

[66] Mr Robertson’s initial affidavit signed 4 July 2014 stated as follows:

“...

[36] On approximately 11 September 2013 I witnessed a Supervisor driving whilst talking on a mobile device. This occurred on Prestrip ramp 12 dump when Sean Parish was driving a light vehicle and talking on a mobile phone.

[37] I reported the incident immediately to the superintendent Josh Burke. However, to my knowledge BHP took no action to investigate the incident or to discipline the supervisor involved.

[38] I became aware that no action was being taken in relation to the incident so I decided to follow it up. I did this by approaching Kelli Adams. The excuse that Ms Adams provided was that I had not reported the incident correctly. I was somewhat surprised by this response because regardless of the reporting process BHP had been made aware of an incident, an incident which was far more serious than the one involving Mr Faulkner.

[39] Mr Parish was not disciplined at all to my knowledge and it is apparent that despite the fact that BHP could and should have conducted an investigation, someone made a decision not to. The incident was far more serious than the incident that Mr Faulkner was involved in and related to the actual type of hazard that the new procedure was apparently meant to prevent...”

[67] Mr Robertson’s supplementary affidavit signed 8 September 2014 stated as follows:

“...

[5] In my affidavit of 4 July 2014 I note at paragraphs [36] to [39] an incident involving Mr Parish, Supervisor, on 11 September 2013. I witnessed Mr Parish driving whilst talking on a mobile device. The incident was reported as per my affidavit.

[6] I have read the affidavit of Tony Briffa filed in these proceedings dated 30 July 2014. At paragraph [70] Mr Briffa states that an investigation was organised but there was not enough evidence. This is not correct to my understanding and I note the following.

(a) I was never interviewed or asked to provide a statement in relation to the incident.

(b) When I reported the incident to Josh Burke at 10:00am I advised Mr Burke that Matthew Dunne, another employee, was also in the vehicle with me and witnessed Mr Parish driving whilst using the mobile phone.

(c) Mr Dunne works on my crew and he has confirmed to me since the incident that he was not contacted at all about any investigation into the incident.

(d) During a consultative meeting for the new mobile device policy I raised the issue, and two other incidents where supervisors were not investigated by the Company. The consultative meeting occurred in approximately November 2013. When I raised the incident involving Mr Parish with the management team, which included Mr Briffa, Mr Briffa said words to the effect that he was not aware of the incident. His response to the other two incidents involving supervisors was similar.

(e) it is clear to me that the incidents involving supervisors simply were not investigated or that the investigations were grossly inadequate...”

[68] In response to questioning Dr Briffa stated he was not aware of any alleged mobile device incident in regard to Mr Rawlins. He was aware he was still employed. In relation to an alleged incident involving Mr Maunders, Dr Briffa said he had not seen any statements.

[69] The use of the Graphic Operator Interface Console (GOIC) system was raised against the procedure (and the issues of risk as raised in connection with the dismissal for alleged mobile phone usage). It is, however, recognised that the GOIC system was a necessary operational system able to be monitored by the Employer. The words of the procedure distinguished between the use of the mobile device and the messaging system; the GOIC system enables communication by messages between operators. It was not clear how this GOIC system (effectively using text messages between operators) provided a different or no distraction, but its relevance to operations was demonstrated.

The Investigation of the Incident

[70] Mr Justin Kinderis gave evidence that the Applicant’s reporting of the incident and his concession that he used his phone was very honest. The Applicant emphasised that he had not intentionally brought his phone into the cabin of the vehicle in his bag, and that it had occurred due to the lateness caused by the staggering of equipment.

[71] Dr Briffa distinguished between a process whereby a phone is mistakenly taken into the field and then the employee self-reports such, to remedy the situation and return it, without using the device. The Applicant submitted the transparent nature of the Applicant’s response to questioning, on the incident, is relevant to the issue of resumption of employment.

[72] For an alleged serious breach of the mobile device procedure, Dr Briffa’s evidence was that he expected an investigation would be undertaken.

[73] In relation to the Applicant’s incident in question, he was asked four questions (allegedly directed by the Human Resources Department). These questions and the Applicant’s answers were documented on a BMA Statement Form, dated 23 January 2014 8. This form notes at the top, that it should be attached to the Notification of Investigation form. On the evidence, it appears that asking and answering of the four questions represented the total investigation process, prior to the Applicant being directed to “show cause”.

Section 387

[74] As required of s.387 of the Act, the following criteria must be taken into account by the Commission when considering whether a dismissal was harsh, unjust or unreasonable. The following reasoning is provided in addition to that in the decision:

s.387(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

[75] In consideration of s.387(a), the evidence supports the submission of the Respondent that it had a valid reason to discipline the Applicant. The Applicant breached the Respondent’s procedure by having (and using) his mobile phone in his truck. The procedure represents a serious operating procedure relevant to maintaining the health and safety of the Respondent’s employees. As a starting point, the termination for breach of the procedure was for a reason which could properly be described as sound, defensible or well founded 9 basis to discipline the Applicant. Whether in fact the Applicant’s actions constituted misconduct when considering if there was a valid reason to dismiss him10 is a consideration further dealt with under s.387(h) in deciding whether the dismissal was harsh, unjust or unreasonable11.

[76] On the face of the procedure, the breach provided a valid reason. However, at least three issues emerged from the show cause and termination letters in relation to the reasoning for the dismissal decision: the level of risk associated with such; having a mobile phone versus using the mobile phone; and having a mobile phone whilst operating a vehicle, as opposed to the vehicle being stationary.

[77] The procedural deficiencies undermined the substantive basis for the termination. There was also no consideration of appropriate alternatives to dismissal.

s.387(b) whether the person was notified of that reason; and

[78] It is not in dispute that the Applicant was notified of his dismissal on 4 February 2014. However, it was submitted on behalf of the Applicant, that the reasons for his dismissal in the termination letter, were substantially different from the reasons in the show cause letter, the substantial difference being that the show cause letter did not refer to risk or the use of a mobile phone whilst operating machinery. The Applicant was notified of the reasons for his dismissal on 4 February 2014, but was not provided with a clear notification of what his termination was based on or against, or given an appropriate opportunity to respond to these full factors prior to dismissal. This is relevantly also a consideration under s.387(c), as to whether the Applicant was given an opportunity to respond. Whilst the Applicant was asked to provide a show cause response, it was not made clear to him, that he was to address a number of matters relevant to the dismissal, including: the potential risk related to the incident or whether he was operating a vehicle at the time. This represents an unfairness.

s.387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[79] Further to the detail set out above in the Decision, the reasons relied on in the dismissal were different to those set out in the show cause letter. As above, the opportunity to respond is based on clearly setting out the allegations and the factors being taken into account in the dismissal decision. This was not done. The Applicant denied that any reliance could be placed on past performance or conduct matters. In any event (the connection between the alleged performance matters and the termination decision) these were not clearly conveyed to the Applicant for his response.

s.387(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

[80] There was no refusal to allow the Applicant a support person.

s.387(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

[81] A number of procedural deficiencies arose. There was an issue related to the conduct of the Applicant in breaching the Respondent’s procedure. However, no suggestion was made that the Applicant was not performing in his role at the time of, or even preceding, the breach of procedure. I find that performance issues could not, in this matter, form part of the reasons for the termination as per s.387(e), as these were not substantiated, as a relevant factor to be considered in the matters of the dismissal, particularly given the Applicant was not given an opportunity to clearly respond to such.

[82] There was no evidence that the Applicant, specifically, had previously been warned about conduct involving mobile phones, or the basis for taking into account performance matters. The evidence in relation to the training on the procedure did not confirm that a breach of the procedure would automatically result in dismissal.

s.387(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 s.387(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

[83] The size of the Respondent’s business as per s.387(f) or the presence of any human resources management under s.387(g) are considered together.

[84] The Respondent is a large employer with dedicated human resource management specialists available. However, (on the evidence) it must be noted that these specialists were only involved on an ancillary basis. The management personnel, who primarily have operational expertise and a range of significant production responsibilities, were required to conduct the entire process with only preliminary advice from Human Resources staff and limited assistance.

[85] On the material and evidence, the management personnel who were predominantly responsible for the dismissal (and procedure) were employed in relation to significant operational matters. Industrial relations or human resources was not the primary area of expertise or focus of these managers. It is expected, given the size of the enterprise, that better resourcing and support of the decision maker (by the Respondent’s specialists) would occur, given the level of scrutiny of a termination of an employment contract with relatively significant service, in this industry, where jobs are highly sought after.

[86] The reasoning in the final termination advice and the process was flawed. The deficiencies included: no clear reference to how “risk” was used; no question of “operation” was raised in the show cause letter; no clear material was provided on what other matters were to be taken into account; and the implementation of the procedure did not have a clear indication of the disciplinary consequences for a breach of procedure or whether the procedure was now being applied on “zero tolerance” basis with a clear outcome of dismissal.

[87] In this provision, the size and resources of the Respondent’s enterprise are taken into account and the impact on the determination of the commensurate standard of the procedure. In ordinary terms and against this standard, the procedure was deficient.

s.387(h) any other matters that the FWC considers relevant.

[88] The Applicant submitted that the disciplinary response to the Applicant’s employment was considered differently to the treatment of comparable incidents that were potentially more hazardous and more serious. There was evidence of comparable differentiation of the treatment of employees receiving alternative disciplinary outcomes to dismissal. This undermines the termination.

[89] The Applicant submitted that, in terms of other relevant matters, the Applicant does not have a history of relevant disciplinary action, and such should not have been taken into account. The Applicant’s significant term of employment, adherence to procedure at the mine site, and his history of positive performance, that had been recognised by the Respondent, should have been given due weight, in considering the disciplinary response to the breach.

[90] The Applicant submitted that he took responsibility for the incident and undertook that there would not be a repeat of taking his phone with him onto the site, or acting contrary to the procedure. Further the Applicant submitted that that he understood that, if reinstated, a final warning may be imposed and any other breach of a policy or procedure would lead to termination. This has been taken into account in reinstating the Applicant.

[91] In addition, the Applicant submitted that his personal circumstances were relevant and that he had ongoing financial commitments, and recent significant job losses in the mining sector meant that finding another job had been difficult, and the Applicant had commenced some other employment on a casual basis only. It was also noted that his wife was an employee of the Respondent; both reside together close to the mine, and therefore the likelihood of finding alternative employment to meet these current arrangements would be limited and disruptive, to them both.

Consideration

[92] It is acknowledged that the implementation of the Mobile Electronic Device Procedure is clearly a serious issue for an SSE on a mine site, who has a statutory obligation to ensure the safety of all people on the site and the safe operations of an inherently dangerous workplace. It is recognised that, in contemporary society, there is commonly reliance, for communication needs, by individuals on their mobile devices (particularly mobile phones). However, as is the practice in most workplaces, access to phones is available during breaks. To assist communication, the Respondent had placed telephones in the field crib rooms whereby employees can make calls free of charge. Lockers had been installed outside other crib rooms to enable use of their personal mobile phones during meal breaks.

[93] The Respondent argued that the Applicant’s action, in taking the phone out to the mine without a valid exception and using such whilst operating heavy equipment, was a serious breach of the procedure. The Respondent only recently introduced the revised procedure regulating the use of the mobile phones on the site. The evidence of the training documentation on the procedure was not of the standard to demonstrate that employees had attended or what was said in training about the procedure and it was not clear or decisive in how a breach would be dealt with. There would be clear benefit in revisiting this with employees.

[94] The Respondent considered that the procedure was known and not complex and should be adhered to. The Full Bench in Harbour City Ferries Pty Ltd v Mr Christopher Toms 12, in considering factors relevant to the ground of misconduct (arising in that case from alleged drug use by a ferry master involved in an accident), considered non-compliance with the policy as relevant. The Full Bench stated as follows:

“...The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.” 13

[95] However, whilst the current Respondent on the evidence shares that view, in terms of compliance with their mobile devices procedure, the authority can be distinguished. In the Harbour City Ferries case, it was also stated:

“We have had regard to the facts of this application. The application is concerned with serious misconduct which was a valid reason for the termination of Mr Toms’ employment. The serious misconduct was the breach of an important policy by an employee at the most senior level of employment at Harbour City in a situation where there was compliance with procedural fairness.” 14

[96] Taking into account the Full Bench’s views in that matter, in the current matter, in contrast, there are procedural issues. In addition, the Harbour City Ferries Code of Conduct was known and written as a ‘zero tolerance’ level for the drug and alcohol policy.

[97] The Respondent’s policy was not clearly written or implemented as a ‘zero tolerance’ policy, whereby dismissal was the only outcome. In addition, a strong and clear implementation and application of the procedure was found to be wanting in the current circumstances. These matters can be remedied.

[98] Whilst it is open to an employer to introduce a clear operational procedure and definitively indicate the outcome of a breach of such, the employer, in introducing such must recognise that it has to be considered alongside the terms of the employment contract they have entered into with an employee, and if they intend to rely on a breach of the procedure to end the contract, serious consequences flow from such for an employee. In the current circumstances, the consequences of a breach of the new procedure was not clear, and the evidence demonstrated the introduction of the procedure and training documentation was also not adequate, In addition, the issue of ‘risk’ in the procedure and its role in the associated investigation was not clear. I concur with the Applicant’s final submissions on pages 12 to 14 in this regard 15. Further, the employment history matters relied upon were not clear nor was the manner of the investigation.

[99] These mitigating matters together with the varied application of the procedure 16 diminished the reliability of the dismissal to render it unfair on the circumstances as set out.

[100] It is anticipated that confirming the procedure and the outcome of breaches of such and remedying these procedural aspects with respect to the investigation and notification of reasons would overcome these issues.

[101] The parties were referred to the Full Bench Decision of Mr Paul Carter v Qantas Airways Limited 17where it was determined that the employer had a valid reason to dismiss the employee for breach of the companies ticketing procedures. However, in weighing the circumstances of the Applicant’s length of service, performance, lack of specific training , personal circumstances, and workplace culture, the Full Bench confirmed the first instance decision that the dismissal was for a valid reasons but was harsh unjust and unreasonable.

 4   Michael King v Freshmore (Vic) Pty Ltd - 283/00 M Print S4213 [2000] AIRC 1019 (17 March 2000) at [23] per Ross VP, Williams SDP and Hingley C.

 5 (1938) 60 CLR 336 at 361-362

 6   Statement of Dr Briffa dated 30/07/14 at [67] - [71]

 7   Statement of Dr Briffa dated 30/07/14 at [70]

 8   Annexure “BW-7” attached to the affidavit of Benjamin Willis signed 4 August 2014

 9   Selvachandran v Peteron Plastics Pty Ltd [1995] 62 IR 371 at 373.

 10   Magers and Commonwealth of Australia (Department of Health and Ageing [2010] FWAFB 4385; IGA Distribution (Vic) Pty Ltd and Cong Nguyen [2011] FWAFB 4070.

 11   Qantas Airways Limited v Carter [2012] FWAFB 5776 at [41]

 12   [2014] FWCFB 6249

 13   [2014] FWCFB 6249 at [27]

 14   [2014] FWCFB 6249 at [17]

 15   Applicant’s final submissions dated 7 October 2014

 16   Affidavit of Russell Robertson dated 4 July 2014; Supplementary Affidavit of Russell Robertson dated 8 September 2014

 17   [2012] FWAFB 5776

 18   This was raised with the Respondent at the termination meeting and the Respondent did allow for current accommodation arrangements to be continued for the Applicant and his wife.

 19   Qantas Airways Limited v Carter [2012] FWAFB 5776

 20   [2012] FWAFB 5776

 21   [2014] FWCFB 1949.

 22   AIRC Print Q1625, 5 June 1998, per Ross VP, Polites SDP and Hoffman C.

 23   [2014] FWCFB 7198.

 24   Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22, see in particular McHugh J at par 14.

 25   Kenley v JB Hi Fi AIRCFB, 22 June 2000) Print S7235 at [36]; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 and Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089.

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