Mr Neville Hampton v BHP Billiton Pty Ltd
[2011] FWA 3335
•17 JUNE 2011
[2011] FWA 3335 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Neville Hampton
v
BHP Billiton Pty Ltd
(U2010/10703)
COMMISSIONER WILLIAMS | PERTH, 17 JUNE 2011 |
s.394 Application for unfair dismissal remedy.
[1] This matter involves an application made by Mr Neville Hampton (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) that he was unfairly dismissed by the Respondent BHP Billiton Iron Ore Pty Ltd (BHPBIO).
[2] The matter was the subject of a conciliation conference before a Fair Work Australia conciliator however it was not resolved and was referred for hearing and determination.
[3] The Applicant was represented by Mr M Herron of Counsel, instructed by Gibson & Gibson Lawyers. Evidence for the Applicant was given by Mr Hampton and Mr Roulston a Production Worker with BHP Billiton. A witness statement of Ms N Lumsden was tendered with consent of the Respondent and she was not required to give evidence at the hearing.
[4] The Respondent was represented by Mr P Quinlan of Counsel, instructed by Blake Dawson Lawyers. Evidence for the Respondent was given by Mr R Whittington, BHPIO’s Manager Mining, Mr D Murray the Production Planning Engineer, Mr M Carroll the Superintendant Load & Haul A Shift and Mr J Harding the Human Resources Manager. The witness statements of Mr E Orenstein the Logistics and Customer Support Officer, Mr M Hill the Regional Director of Digicore Fleet Management SA, Mr M Lhose the Human Resources Superintendant, Dr A El-Mowafy from the Department of Spacial Sciences Curtin University and Mr Durrant a Production Planning Engineer were each tendered but with consent of the Applicant these witnesses were not required to give evidence at the hearing.
Background
[5] On 16 July 2010, BHPBIO dismissed Mr Hampton's for misconduct having concluded that Mr Hampton whilst at work had driven a BHPBIO light vehicle at speeds up to 125kph in an area of the mine with a speed limit of 60 kph.
[6] Mr Hampton commenced employment with BHPBIO on 30 August 1989. Mr Hampton was employed at the Respondent's Mount Whaleback mine in Newman. At the time of his dismissal he was engaged as a Production Technician however since June 2010 he had been acting in a higher role as an Area Supervisor/Senior Technician.
[7] BHPBIO have installed an In Vehicle Monitoring System (IVMS) in approximately 218 out of 364 vehicles operating at the Mount Whaleback mine. The IVMS monitors and records a vehicle's location speed and tachometer reading.
[8] One major safety risk at the mine involves light vehicles and in particular their interaction with haul trucks. 1 Light vehicles operating within the mine on unsealed roads had been identified from a risk assessment as a high-risk category of vehicles.
[9] BHPBIO advised employees that IVMS would be installed in vehicles that had been identified in the high-risk category commencing in June 2010 through to August 2010. 2
[10] Each employee is issued with a personal swipe card. When employees enter the mine site in a vehicle they must swipe their card to gain entry through a boom gate. Each vehicle has a PUK reader which registers the identity of the vehicle as it passes through the boom gate. The boom gate records this and a gate activity report lists the individual employees cards swiped with the time this occurred and separately records the identity of the vehicle travelling through the gate and the time this occurred.
[11] Exiting the mine site does not require an employee to swipe their card.
[12] Data collected by BHPBIO includes that on 12 June 2010:
- A light vehicle identified as M86 had entered the "Pit" area of the Mine via a boom gate at around 6.30am.
- The boom gate activity report shows Mr Hampton swiped his card to enter the Pit at the same time as M86 entered at around 6.30am.
- At around 8.22am, the IVMS records M86 travelling at 125kph.
- The IVMS position data shows M86 having driven around the Pit for approximately two hours ended up at the mines lower production office at 8.29am, where its engine was stopped until around 9:00am.
[13] The IVMS position data and tachometer data record that M86’s engine was not switched off at any time between 6.27am and 8.29am.
[14] Each morning at 8:30am a supervisor's meeting is held at the lower production office and Mr Hampton, as an acting Area Supervisor/Senior Technician normally attended this meeting each day. That office is very close to the lower production boom gate.
[15] The gate activity report shows Mr Hampton headed back into the Pit through the lower production boom gate in M86 at around 9.00am.
[16] The area within the mine where M86 was recorded travelling at speeds up to 125kph is an area where the posted speed limit was 60kph which is the speed limit throughout the Pit.
[17] The road on which M86 was driving at the time the speed of 125kph was recorded is a compacted dirt haul road in the Pit. On the day in question other vehicles including haul trucks, graders, loaders, and other light vehicles, could have been operating around that area of the mine. Haul trucks have right of way over light vehicles at all times in the Pit.
The Applicants submission
[18] The Applicant has always denied the accusation that he was the driver of M86 when it was speeding on 12 June 2010.
[19] The Applicant argues that particular light vehicles are not allocated to any individual employee. Further the Applicant says that during a shift he may change his vehicle for any number of reasons without there being any notification of that swap.
[20] The Applicant submits that whilst he accepts the IVMS and the gate records show that early in the morning of 12 June 2010 he was driving M86 there is no evidence to prove that he was driving it at that particular time it was recorded as speeding. It is common that workers swap vehicles and this is a possible explanation for what has occurred here, that he swapped vehicles with another employee and at the time the vehicle was speeding it was being driven by this other employee.
[21] During the interview and investigation the Applicant was not able to give any satisfactory explanation to the Respondent because he was not the driver of the vehicle at the time it was speeding.
[22] The Applicant says the complexity of the IVMS and the other mapping data confused the Applicant at that time of the disciplinary interviews and prevented him from considering the likely explanation being that he had swapped vehicles with another employee. This being the case this explanation was not properly raised by the Applicant but if it had been the Respondent could have handled the matter differently and properly investigated this explanation.
[23] The Applicant argues that the dismissal was procedurally flawed because the Respondent had come to a conclusion early in the investigation that Mr Hampton was the driver and so was guilty of the alleged misconduct. The Respondent did not properly consider Mr Hampton's clean record and length of service and that actions such as speeding were out of character and solely relied on the IVMS recording.
[24] Mr Hampton argues that the route the IVMS shows M86 drove on the day in question means that he was probably not driving the vehicle because that is not the route he would normally take.
[25] The Applicant submits that if in fact the tribunal agrees it was a valid reason then the conduct of the Applicant was not sufficiently serious to justify termination of his employment.
[26] The Applicant had a long satisfactory employment record with no performance issues. The Respondent has not considered any other option other than termination.
[27] The termination has severe economic consequences for the Applicant because the Applicant has entered into the BHPBIO home ownership scheme. At the time of the dismissal the Applicant had a relatively small amount left to be paid on his house, with 18 months left on the contract. Having been dismissed the Applicant will now lose a large amount of capital appreciation that the property has enjoyed in addition to his lost income.
[28] The Applicant's children and wife will also be negatively affected in their particular circumstances because of the Applicants’ loss of employment.
[29] Consequently the dismissal is harsh, unjust and unreasonable.
Respondent’s submission
Fair process
[30] BHPBIO submit it followed a fair process for addressing the alleged conduct prior to Mr Hampton's dismissal. A meeting with Mr Hampton and company personnel was organised for 28 June 2010 and he was stood aside on full pay pending an investigation.
[31] Mr Hampton was invited to bring a support person with him to the Inquiry Meeting.
[32] On 28 June 2010, Mr Hampton (and Mr Roulston his support person) met with Mr Bell; Mr Jones; and Mr Carroll, to discuss the allegation that Mr Hampton had been speeding on 12 June 2010.
[33] At that meeting the allegation, and the perceived severity of the allegation, were explained to Mr Hampton. He was told about, and shown copies of, the data which indicated his involvement in the alleged breach. Mr Hampton was informed of the possibility that his employment may be terminated.
[34] Mr Hampton was given an opportunity to tell BHPBIO his explanation of what had happened. Mr Hampton maintained that he did not speed at all.
[35] After that meeting, BHPBIO conducted a further investigation into the incident, including confirming the accuracy of the IVMS data with DigiCore Australia, owners of IVMS and the IVMS data, conducting a test of the IVMS unit in M86 to check that the speeds being recorded by IVMS in that vehicle, matched the speeds being recorded by the vehicle's speedometer and driving the route driven by Mr Hampton to satisfy BHPBIO that driving at excessive speeds was possible in that area of the Mine.
[36] On 16 July 2010, Mr Hampton (and Mr Roulston as his support person) met with Mr Whittington and Mr Harding. Mr Harding explained the IVMS data to Mr Hampton. Mr Hampton had a 10 minute break to think about his reply before responding to BHPBIO. Mr Hampton did not raise any new information and continued to deny he had been speeding. Mr Harding and Mr Whittington took a break during which the decision to terminate Mr Hampton's employment was made. Mr Whittington terminated Mr Hampton's employment, and gave Mr Hampton the reasons for the decision.
[37] Mr Hampton was paid five weeks pay in lieu of notice and all accrued entitlements.
[38] Other than Mr Hampton, BHPBIO has recently dismissed two other employees at the Mine for driving at excessive speeds at work following receipt of IVMS data showing them speeding
[39] In all the circumstances, BHPBIOs process in investigating the incident, and allowing Mr Hampton reasonable time to consider, and respond to the IVMS data and the matters raised with him appropriately meets applicable standards of procedural fairness.
Valid reason for termination of employment
Breach of statutory safety obligations and BHPBIO policies
[40] By speeding significantly above the 60kph speed limit, Mr Hampton
seriously failed to comply with his safety obligations under the Mines Safety and Inspection Act 1994 (WA) as well as company policies, guidelines and codes of which Mr Hampton was aware. The BHPBIO Light Vehicle Policy provides, among other things, that employees
must comply with all applicable site road rules and off-site road rules.
[41] The Light Vehicle Policy specifically states that an employee who drives 40kph or more in excess of a speed limit commits a "very serious breach" of the Light Vehicle Policy.
[42] Mr Hampton engaged in a "very serious breach" of the Light Vehicle Policy by driving up to 65kph over the 60kph speed limit. Mr Hampton was aware of the Light Vehicle Policy at the time.
[43] BHPBIO considered the information which led it to reasonably conclude that
Mr Hampton was speeding in M86 on 12 June 2010, the serious nature of Mr Hampton's conduct (excessive speeding), the matters raised by and on behalf of Mr Hampton and the information provided by Mr Hampton and the circumstances relevant to Mr Hampton's employment. This included taking into account Mr Hampton's length of service, his performance and other relevant factors. BHPBIO formed the view that Mr Hampton's employment should be terminated.
[44] BHPBIO decided that it was appropriate to dismiss Mr Hampton having regard to the
serious nature of his conduct in speeding excessively.
[45] So far as his speeding is concerned, Mr Hampton drove at speeds which well
exceeded the threshold for a very serious breach of the Light Vehicle Policy. The misconduct was of the highest order of safety non-compliance.
[46] Safety is a priority at the Mine and in all BHPBIO workplaces. Employees are well
informed of the overriding importance of safety. BHPBIO emphasises the importance of safety in the BHP Billiton Charter of Values, Code of Conduct, Zero Harm approach and in the day to day conduct of its operations.
[47] Light vehicles are identified by BHPBIO as one of the major safety risks at the Mine
and one of the catastrophic risks at the Mine that can result in fatalities and other workplace injuries.
[48] According to a Safe Work Australia report, "Notified Fatalities Statistical Report — July to December 2009", the most common cause of work-related fatalities in Australia between July to December 2009, was vehicle accidents.
[49] Mr Hampton's conduct was in serious breach of the Light Vehicle Policy and placed him in danger as well as potentially others and was a valid reason for dismissal.
[50] In addition to his serious breach of BHPBIO's Light Vehicle Policy, Mr Hampton failed to even accept the possibility that he had sped excessively at the Mine. He denied the conduct. BHPBIO considers that it is unlikely in all the circumstances, that Mr Hampton was unaware of his speeding or the possibility of it. BHPBIO can reasonably expect its employees to behave honestly during investigations. A failure to do so can have serious implications, particularly with respect to safety issues. 3
[51] Prior to the events leading to his dismissal, Mr Hampton was a highly valued employee. He was being considered for a promotion. However the nature of the safety breach, the circumstances surrounding it, and the paramount importance of safety in the workplace meant that BHPBIO reasonably made the decision to terminate Mr Hampton's employment.
Legislation
[52] Section 387 of the Act sets out what matters the tribunal must take into account when considering whether the dismissal of an employee was harsh, unjust or unreasonable as follows.
s.387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
[53] I will consider these matters in turn.
Consideration
Was there a valid reason to the dismissal?
[54] In this case the Applicant does not challenge the accuracy of the IVMS system or the records of the boom gates.
[55] The Applicant accepts that these records show he here was driving M86 onto the mine through the lower production mine gate at 6:31am on 12 June 2010. 4
[56] The Applicant also accepts that these records show he was driving M86 again through the lower production mine gate at 9:03am on 12 June 2010. 5
[57] The Applicant however denies he would have been speeding and having reviewed the full data says that he was not the driver of M86 for all of the time between 6:31am and 9:03am but only part of this period. 6
[58] The records of the LVMS show that M86 between 8:21:43 and 8:22:45 was travelling at speeds well in excess of 60kph reaching a maximum of 125kph before decelerating to below 60kph.
[59] The critical issue in this matter is whether or not Mr Hampton was the driver of M86 at the time the IVMS records that vehicle travelling at speeds over 60kph and up to 125kph in an area where the speed limit was 60kph.
[60] Mr Hampton has no particular memory of the events of that day 12 June 2010 but says he simply would not drive at the speed BHPBIO say he did.
[61] It is for the tribunal to decide on the balance of probabilities whether he was driving the vehicle at the time it was speeding.
[62] The evidence of the IVMS system which the Applicant does not challenge demonstrates that he was driving the vehicle at 6:31am and again at 9:03am. This is confirmed by his swipe card being recorded at the boom gate at the same time that M86 passed through the gate.
[63] The Respondent argues there is no reason to believe that Mr Hampton was not also driving the vehicle between 8:21:43 and 8:22:45 when the vehicle was being driven at excessive speed.
[64] The Applicant say the explanation is that he must have swapped the vehicle with somebody else and was not driving it at the time it was speeding but he has no positive memory of this. 7 The Applicant has never suggested whom he might have swapped the vehicle with.
[65] Evidence was given by the Applicant and also by Mr Carroll regarding how common it is for vehicles to be swapped during the course of a shift. Mr Hampton’s evidence was that it is common to swap vehicles with other drivers. If this is correct it is difficult to understand why throughout the investigation into this incident and during the interviews with him Mr Hampton never raised the likelihood that he had swapped the vehicle with another driver as the obvious explanation. The only time such a possibility was raised was in the final meeting on 16 July 2010 and it was raised by Mr Roulston not by Mr Hampton. When it was raised by Mr Roulston the evidence is that Mr Hampton did little to argue the case that this was the obvious explanation for what occurred and he must not have been the driver of M86. Instead a much weaker doubt was raised with Mr Roulston simply questioning how they knew Mr Hampton was driving.
[66] Mr Roulston’s evidence of the frequency of vehicle swapping refers to swapping vehicles when an employee is working as a designated driver, a circumstance I accept where swapping is far more common than is the case for an employee, such as Mr Hampton, who was an Acting Supervisor/Senior Technician. These are two different circumstances.
[67] Further Mr Carrols evidence is that swapping is not common and at the time Mr Hampton says he must have first swapped vehicles, early in the shift, it would be unusual and would probably only occur because of a flat tyre or breakdown.
[68] Considering all of the evidence I find that it is not a common occurrence for an Acting Supervisor/Senior Technician to swap vehicles but it does happen occasionally.
[69] While I note that Mr Hampton has no memory of swapping vehicles on the day in question, Mr Hampton swapping vehicles remains a possible explanation for what occurred in this case and this needs to be considered.
[70] The facts are that for Mr Hampton to have not been driving M86 between 8:21:43 and 8:22:45 he must have swapped M86 with another driver sometime after 6:31am but before 8:21:43am and then he must have again swapped vehicles (getting back into the M86) sometime after 8:22:45 but before 9:03am.
[71] The evidence is that between 6:31am and 8:29am, M86 was never switched off. The engine was continuously running.
[72] The evidence also is that when the engine of M86 was switched off just after 8:29am it was located at the production office, which is where the morning production meeting is held at 8:30am. This is a meeting that Mr Hampton is expected to attend.
[73] The evidence is that supervisors participating in the meeting have to drive off the mine and would park their vehicles at the production office and after the meeting would have to drive back onto the mine site entering through the boom gate. 8
[74] The evidence is also that Mr Hampton's supervisor has made a point of explaining his expectation that area supervisors are expected not to be late but to be on time for that meeting.
[75] The evidence is that at 8:20am - 8:21am immediately prior to the time the vehicle was speeding it was driving in an area of the pit that Mr Hampton was responsible for and he agrees the data shows the vehicle then sped down to the location of the production meeting. 9
[76] The evidence is that the production meeting commonly lasts around half an hour although Mr Hampton's evidence was it can be up to 45 minutes. 10
[77] Further the evidence is that just after the time that the production meeting would usually end, around 9am, Mr Hampton used his swipe card whilst driving M86 to re-enter the mine through the lower production mine boom gate. This fact is consistent with him having attended the production meeting. 11
[78] The evidence is that other staff that would attend the same production meeting are recorded on IVMS records and gate activity records at very similar times to those which identify Mr Hampton. 12
[79] The evidence was that it would be unusual for a supervisor not to attend the production meeting. That this would only occur because some urgent matter needed to be dealt with at the same time and if that was the case the supervisor would notify his superintendent of his non-attendance.
[80] Mr Hampton has no positive memory of not attending the production meeting because of some other pressing necessity.
[81] Mr Hampton also argued that the route the LVMS shows M86 took around the mine site on 12 June 2010 was not the route he would take. Considering the route taken he says he believes he was not the driver between 7:15am and 8:29am.
[82] Mr Carrols evidence cast doubt over the validity of Mr Hamilton’s proposition of an Area Supervisor/Senior Technician having a standard route he invariably followed on all mornings and that he would not go to particular areas of the pit that M86 visited that day. 13
[83] Under cross examination Mr Hampton conceded that for a variety of reasons including road closures or the movement of other traffic his route around the pit on a particular day may vary from his usual route. 14
[84] Mr Hampton also said that because M86 had not stopped at any stage after 7:15am he could not have been driving because he must stop at times for various reasons to do his job. The evidence however is that M86 did come to a stop at times, even though its engine continued to run for the whole period in question, and so this argument is without foundation. 15
[85] Mr Hampton has no positive memory of either of the Vehicle swaps that must have occurred for him to have been driving M86 at the beginning of the shift, but not to have been the driver between 8:21:43 and 8:22:45 when it was speeding, and to have again been the driver of M86 at 9:03am when he swiped his card with M86 as it re-entered the mine.
[86] As noted above there were a number of meetings where the speeding allegations were raised with Mr Hampton and he had an opportunity to provide an explanation. At none of these meetings did Mr Hampton suggest that he may have swapped vehicles with another driver. In fact it was only his support person Mr Roulston who queried whether he was the driver at the final show cause meeting. Even then Mr Hampton didn't positively argue that this is what must have happened.
[87] It is highly unlikely that having begun the shift driving M86 Mr Hampton swapped vehicles with another driver who later drove M86 at high speed and whom after this then swapped vehicles back with Mr Hampton who later drove M86 through the boom gate at 9:03am.
[88] Considering all of this my conclusion is that it is not probable that Mr Hampton did swap out of M86 and back into M86 at all.
[89] Rather the evidence supports a finding on the balance of probabilities that on 12 June 2010 Mr Hampton was the driver of M86 at all times between 6:31am and 8:29am.
[90] Consequently I find that Mr Hampton was driving M 86 between 8:21:43 and 8:22:45 and at that time the vehicle reached speeds of more than double the applicable 60kph speed limit. Further I am satisfied that Mr Hampton was aware of the applicable speed limit at the time he was speeding in M86.
[91] I am also satisfied that the actions of Mr Hampton were a breach of his obligations under the Respondent's light vehicle policy of which he was aware.
[92] Mr Hampton was driving at up to 65kph above the nominated speed limit. Self evidently his actions placed himself and others at risk. This was conceded by the Applicants support person Mr Roulston in his evidence. 16 The light vehicle policy characterizes driving 40kph an hour or more in excess of the identified speed limit as a “very serious breach” of the policy.
[93] Mr Hampton to his credit concedes that driving at this speed on an unsealed road is very dangerous and creates a serious hazard to the driver and others and warrants termination of employment. 17
[94] Mr Hamptons actions in driving a vehicle at up to 125kph on an unsealed road, in a 60kph zone, in breach of the company's policies was conduct that affected the safety and welfare of himself and other employees and so without doubt was a valid reason for his dismissal.
Was the Applicant notified of the reason for his dismissal?
[95] At the commencement of the investigation and at the subsequent meetings Mr Hampton was notified of the reason the Respondent was considering his dismissal. At two meetings including the final show cause meeting Mr Hampton was advised of the details of the allegation, that he had been speeding in M86 on 12 June 2010, and that the company was considering the possibility that his employment would be terminated.
Was the Applicant given an opportunity to respond?
[96] The Applicant has argued that Mr Hampton was confused by the technical aspects of the data from the LVMS system during his meetings with the Respondent and should have been provided with copies of all such material. It is argued that if this had occurred then much earlier in the investigation and interviews Mr Hampton would have raised the explanation of having swapped vehicles and that this would then have allowed the Respondent to have fully investigated that possible explanation before making the decision to dismiss Mr Hampton. The Applicant says this procedural deficiency is critical.
[97] Mr Hamptons evidence was that swapping vehicles was common so the possibility that he had swapped vehicles is an explanation he was able to raise at any time during the investigations and interviews. In fact as the evidence shows the identity of the driver was raised by Mr Roulston, Mr Hampton's support person, in the final show cause meeting. The fact that Mr Hampton was not provided with all of the raw data and materials on which the Respondent was relying did not in any way prevent Mr Hampton from arguing that swapping vehicles was the obvious explanation that exonerated.
[98] At no time during the investigation had Mr Hampton requested he be provided with any particular data or information by the Respondent. In any event the swapping vehicles explanation is not dependent on the data and the information on which the Respondent relied. This swapping vehicles explanation is a simple one that it could be expected would have occurred to Mr Hampton if swapping vehicles was as common as he asserted.
[99] In the circumstances given the information that the Respondent had it was reasonable for them to conclude that Mr Hampton was the driver of the speeding vehicle and so put the allegations of speeding to him. The Respondent did have an obligation to consider his response to this but I do not accept as it is argued for the Applicant that the Respondent should have speculated about other explanations, beyond the obvious that Mr Hampton was the driver, and then should have actively investigated those possibilities, such as vehicle swapping, when this had not been actively raised by Mr Hampton himself.
[100] In any event the evidence is that before deciding to terminate Mr Hampton, Mr Whittington the decision maker for the Respondent with the other Respondent’s managers did consider the possibility that vehicles had been swapped but had concluded that that was not a likely explanation. 18
[101] The process the Respondent adopted provided a full opportunity, before the employer decided what action it took, for Mr Hampton to respond to the allegations that he had been speeding in M86 on 12 June 2010.
Refusal to allow support person?
[102] At no time throughout the process did the Respondent refuse to allow Mr Hampton a support person and he was accompanied by his support person in the final show cause meeting on 16 July 2010.
The size of the Respondent's business etc
[103] The Respondent is a large business and the process and procedures adopted by the Respondent were consistent with that.
Other matters that the tribunal considers relevant
Light vehicle hazards
[104] The Respondent has a zero harm approach to safety and works with its workforce around the principle of reducing risk and preventing employees from being injured.
[105] The evidence of the Respondent is that light vehicle accidents are a significant hazard in the mining industry generally and the Respondent has been attempting to reduce this risk within its operations.
[106] The Respondent has experienced a number of vehicle related accidents in recent years. One of the biggest risks at the mine is where light vehicles and other surface mobile equipment such as haul trucks interact.
[107] In 2008 at the Respondent's Yandi Mine in Western Australia a haul truck ran over a light vehicle killing the employee who was the driver of the light vehicle.
[108] This incident led to a full review by the Respondent of its safety systems and policies.
As a consequence the previous light vehicle policy was reviewed and replaced with the current light vehicle policy.
[109] Recently there was also a vehicle rollover which occurred at the mine.
[110] Setting speed limits and ensuring drivers adhere to these is considered by the Respondent to be an important part of traffic management to reduce the risk of light vehicle accidents. 19 The tribunal should not lightly interfere with the Respondents actions in this regard.
Other breaches of the light vehicle policy
[111] One of the other matters that the tribunal will commonly consider relevant is whether the Respondent has acted consistently in response to similar circumstances when dealing with other employees.
[112] In this case under the Respondent's light vehicle policy if an employee exceeds the nominated speed limit by more than 10kph but less than 19kph this is deemed to be a “minor breach” of the policy. Speeding at more than 20kph but less than 40kph is a “serious breach” and exceeding the nominated speed limit by over 40kph is a “very serious breach” of the policy.
[113] The policy identifies the consequences for such breaches at section 4.1, 4.2 and 4.3 respectively.
[114] Minor breaches may result in verbal counseling, serious breaches may result in a written warning and very serious breaches may result in a final written warning or termination of employment.
[115] Notably the policy states,
“An investigation will not be required for speeding breaches recorded by a speed gun or from data provided by an IVMS fitted to BHP Billiton vehicles, except when the likely outcome is a final written warning or termination of employment.”
[116] Clearly then the Respondent has followed through and complied with these aspects of its policy in this instance.
[117] The evidence of Mr Harding was that since April 2010 in six cases written warnings have been issued to drivers for serious breaches involving speeding. Each of these breaches involved a speed of more than 20 but less than 40kph over the nominated speed limit.
[118] In addition in 2010 a Senior Process Technician who had committed multiple speeding breaches over a period of four days and had reach speeds up to 105kph in a 60kph zone was terminated. Separately a Shift Electrician who had also been recorded by IVMS driving at 105kph in a 60kph zone was terminated.
[119] In Mr Hampton's case he had exceeded the speed limit by as much as 65kph. As such his speeding offence was significantly greater misconduct than the two employees who were terminated in 2010 for breaches of the Respondent's light vehicle policy. That being the case Mr Hampton has not been treated less favourably than others by the Respondent in its application of the light vehicle policy.
Length of Service, Employment Record and Alternatives to dismissal
[120] Mr Hampton had been employed for nearly 21 years. He had a good work record and the Respondent says he was a valued employee.
[121] The evidence is that the Respondent’s managers did consider other alternatives rather than the termination of the Respondent. The evidence of the Respondent is that light vehicle accidents are a significant hazard and the Respondent has been attempting to reduce this risk within its operations. 20
[122] The Respondent viewed driving at more than double the speed limit as a deliberately dangerous act that warranted more than written warnings and that the facts of this matter left them with no alternative but to reluctantly dismiss Mr Hampton who otherwise was viewed positively by the Respondent.
[123] Different minds will form different views on what disciplinary action is appropriate in a given set of circumstances. Here termination was expressly envisaged as a likelihood in the light vehicle policy for the more severe breaches. The speed reached here was very high and the breach of policy was at the very upper end possible. In this case considering Mr Hamptons service and record I do accept dismissal was within the range of reasonable consequences given the very serious breach of the policy by Mr Hampton.
Other matters
[124] The Applicant argues that Mr Hamptons long service, good record, the fact that his actions were out of character and that the dismissal will have disproportionate financial consequences for him and his family because he chose to participate in the homeownership scheme the Respondent offered, are factors that support a conclusion that the dismissal was harsh.
[125] I note that the Applicants length of service and work record and his participation in the home ownership scheme and consequential loss were all matters the Respondent's decision maker Mr Whittington, and other managers advising him, had regard for when making the decision to dismiss Mr Hampton. 21
[126] In the tribunal’s considerations balanced against these factors which the Applicant submit support a conclusion the dismissal was harsh are countervailing factors.
[127] Such countervailing factors include the fact the Respondent has a statutory duty to minimize risks to employees and that requiring compliance with the light vehicle policy is an appropriate means of achieving this. Further that the Respondent is entitled to take reasonable disciplinary action to ensure compliance with their policy. In addition the policy expressly says dismissal may follow very serious breaches and the Applicant’s conduct was a very serious breach of the policy. The Applicant’s actions were also deliberate and made in full knowledge of the policy. The gravity of the misconduct which put himself and others at real risk of injury or worse is also a countervailing factor. And finally the fact that other employees have been dismissed for similar but less serious misconduct suggest dismissal in this case was not harsh.
[128] Considering all those factors, including the particular consequences of dismissal for the Applicant, I do not accept that dismissal was disproportionate to the gravity of his misconduct so it cannot be said that the dismissal was harsh.
Conclusion
[129] In this case Mr Hampton committed a very serious safety breach that placed himself and others on the mine site at very real risk of injury or death. Mr Hampton exceeded the 60kph speed limit by more than double, speeding at up to 125kph on an unsealed road. This misconduct was a deliberate act by Mr Hampton. Mr Hampton was aware of the Respondent's policies prohibiting speeding on the mine site and that the consequences for a breach of those policies included termination.
[130] Light vehicle accidents have in the past resulted in employees of the Respondent being killed. Speeding in light vehicles is a serious hazard on the mine and the Respondent is entitled to take reasonable steps to enforce its light vehicle policy through disciplinary action as part of its attempts to reduce the risk of accidents.
[131] The Applicants conduct was a valid reason for his dismissal. He was notified of that reason and given an opportunity to respond before the employer made the decision to dismiss him. Prior to Mr Hamptons dismissal two employees who had exceeded the speed limit by 45kph were dismissed. The decision to dismiss Mr Hampton for exceeding the speed limit by up to 65kph was a consistent application of the policy. It cannot be said that the dismissal was unjust.
[132] The Respondent considered that the seriousness of the Applicant's actions were such that alternatives to termination such as final written warnings were simply not appropriate. In coming to that view the Respondent did consider the Applicants length of service and good work record over that time. The decision taken was not capricious or spiteful and it was with some regret that the Respondent concluded that dismissal was appropriate. I accept that the Respondents decision to dismiss Mr Hampton was reasonable in all the circumstances.
[133] The Applicant has argued that the consequences of the dismissal for Mr Hampton are disproportionate in part because of the significant financial loss he will suffer through not being able to realize on the benefits that would have otherwise accrued to him through the Respondents homeownership scheme and for other reasons related to his private personal circumstances and that of his family.
[134] I accept that the loss of his employment will inevitably have grave economic and personal consequences for Mr Hampton and his family. The tribunal must balance these consequences, which arise directly from his misconduct, with the countervailing matters considered above. In doing so my conclusion is that dismissal is not a penalty that was disproportionate to the misconduct in this instance.
[135] I do not accept that the dismissal of Mr Hampton was harsh, unjust or unreasonable. The dismissal was not unfair and this application will be dismissed.
COMMISSIONER
Appearances:
Mr M Herron of Counsel, instructed by Gibson & Gibson Lawyers, on behalf of the Applicant
Mr P Quinlan of Counsel, instructed by Blake Dawson Lawyers, on behalf of the Respondent
Hearing details:
Perth.
March:
8, 10.
1 David Murray Witness statement para 6 to 15
2 David Murray Witness Statement para 27 and 28
3 May v Boyne Smelters Limited (Print R7793) (20 August 1999).
4 PN 175 to 177
5 PN 177 to 178
6 Mr Hampton Witness Statement paras 75 to 80, 111
7 PN 385
8 PN 444 - 445
9 PN 417, 447
10 PN 182, 936
11 PN 465
12 PN 462 to 478
13 PN 922
14 PN 251 to 289
15 Hampton Witness Statement para 105 and PN 522 - 539 .
16 Roulston Witness Statement para 46
17 PN 132 to 137, 540 - 545.
18 PN 788 - 806.
19 Whittington Witness Statement para 79 - 82 and 42.
20 PN 1234 - 1239
21 PN 833 - 858 PN 1256 - 1264.
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