Mr Robert Smith v Mt Arthur Coal Pty Ltd
[2015] FWC 4194
•22 JUNE 2015
[2015] FWC 4194
The attached document replaces the document previously issued with the above code on 22 June 2015.
This document has been altered to correct citation error at Endnote #127.
Dale Ramsey
Associate to Commissioner Stanton
Dated 23 June 2015
| [2015] FWC 4194 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Robert Smith
v
Mt Arthur Coal Pty Ltd
(U2014/8227)
COMMISSIONER STANTON | NEWCASTLE, 22 JUNE 2015 |
Application for relief from unfair dismissal - arbitration.
[1] This matter concerns an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) filed by Mr Robert Smith (the applicant) following his dismissal arising from a safety breach incident that occurred at the Mt Arthur Coal Mine on 10 June 2014. The respondent is Mt Arthur Coal Pty Limited.
[2] Mr A Walkaden appeared for the Construction, Forestry, Mining and Energy Union (the Union). Mr B Rauf sought permission to appear for the respondent. Leave pursuant to the grounds under s.596(2)(a) of the Act was granted taking into consideration legal representation would enable the matter to be dealt with more effectively, taking into account its complexity.
[3] The applicant was dismissed effective 26 June 2014 following an investigation to determine whether when driving a light vehicle “taxi” on site, the applicant travelled within the swing radius of a working excavator en route to the “lighting plant”. The “swing radius” can be explained as the radius that the excavator bucket can reach when fully extended and fully rotated. 1 The respondent contends that by entering the swing radius, the applicant and the vehicle passenger, Mr Chris Hargood, “were exposed to a high level of risk and multiple fatalities could have resulted.2
[4] The dismissal followed an admission by the applicant that he drove a light taxi vehicle within the swing radius of the excavator without making positive communication with the operator of the excavator or otherwise alerting that operator as to his vehicle’s close proximity to the excavator.
[5] The applicant accepts the vehicle came within the swing radius of the EX209 excavator, but there was no risk of the excavator bucket being rotated over the roof of the vehicle. 3 In that regard, the applicant sought to rely on the evidence of Mr Tim Shaw, the operator of the excavator at the time of the incident.
[6] The applicant contends his vehicle came within 15-20 metres of the excavator. When the applicant realised the excavator operator may not have seen his vehicle and there was a risk it may reverse into or onto his vehicle, he took evasive action and drove the vehicle into the windrow.
[7] It was the applicant’s case that provided the excavator operator at the time worked according to the site safety rules, there was no risk to the applicant or his passenger. 4
[8] The applicant contends the respondent has failed to demonstrate which rule the applicant actually breached that led to his dismissal. 5
[9] The respondent contends it conducted a full and extensive investigation.
[10] The incident was categorised as a level PL-5 incident under the Mt Arthur Coal Safety Health Management System (SHMS). A PL-5 incident is one that could have potentially resulted in two or more fatalities.
[11] Consistent with the SHMS, the respondent conducted an Incident Cause Analysis Method (ICAM) investigation. The ICAM investigation determined:
The root cause of the incident was the driver of LV4162 entering the swing radius of EX209 without ensuring that the excavator was in a safe state prior to entry. The LV operator placed himself and the passenger in a position of harm (in the line of fire). 6
[12] Having regard to the evidence and findings of the ICAM investigation and a separate disciplinary investigation, the respondent determined the applicant had exposed himself and another employee to an unacceptably high level of risk and failed to have regard to the safety requirements when operating a light vehicle on site. The applicant’s conduct was in breach of the applicable traffic management procedures and the expectation that an experienced and competent operator would not act in an unsafe manner.
[13] The decision to dismiss the applicant also took into consideration his prior disciplinary record:
24 August 2013
- Applicant issued with a written warning for moving a vehicle following a collision with a windrow in breach of the respondent’s Hazard, Near Miss and Incident Reporting and Investigation Procedure;
- Following the windrow incident, the applicant tested positive to amphetamine and methamphetamine. This positive test was the applicant’s second breach of the respondent’s drug and alcohol procedure.
30 November 2013
- The applicant received a written warning for absenteeism and a poor attendance record.
[14] The respondent considered there was a valid reason for the applicant’s dismissal. The applicant sought reinstatement with continuity of service and an order to restore pay.
Evidence
[15] I have given consideration to the comprehensive nature of the witness statements and the photographic evidence filed in this matter and the cross-examination that followed. I do not propose to summarise that evidence line by line.
Applicant
[16] The applicant accepts his vehicle came within the swing radius of the excavator. However, he contends there was no risk of the bucket being rotated over the roof of the vehicle. The applicant also relies on the evidence of the excavator operator, Mr Shaw to support that proposition. 7
[17] The applicant explained the circumstances surrounding the incident as follows:
- prior to entering the work area, he made positive communication with Mr Shaw as required by the mine policies; 8
- driving at low speed, the applicant was looking to exit the haul road and travel along what is referred to as the light access road. The junction of the haul and access road is usually marked by an emergency sign; 9
- there was no emergency access sign and the windrow had been constructed in a manner that the exit point onto the access road could not be seen. Accordingly, the applicant found himself travelling further along the haul road than expected due to poor road design and lack of signage; 10
- the applicant had clear vision as he approached the excavator and dump truck. The dump truck was being loaded and the bucket was rotating no more than 45 degrees to left and loading the truck; 11
- the applicant’s vehicle was not within the dig radius between the dump truck and excavator; 12 and
- the cabin is on the right hand side of the excavator. The arm of the bucket is situated to the left of the excavator cabin. 13
[18] It was the applicant’s evidence that he understood that the bucket would not rotate towards his vehicle from the left hand side of the operator 14 - such action would require the operator to rotate the bucket over the roof of the dump truck in breach of site safety rules. Moreover, the applicant contends he could see that the dump truck was being loaded and accordingly, there was no need for the operator to rotate the bucket “that far to his left” and make contact with his vehicle.15
[19] The applicant contends he came within 15-20 metres of the excavator. 16 To avert the risk that the operator may not have seen his vehicle and reversed onto it and exposed his passenger and himself to risk, he took evasive action and drove the vehicle over a windrow.17
[20] The applicant contended that at no time during the journey did Mr Hargood express any concern that the vehicle was too close to the excavator or that he was driving in an unsafe manner. Moreover, Mr Hargood did not use the vehicle’s two way radio to communicate any concerns to the excavator operator or the supervisor. 18
[21] The applicant was denied access to the ICAM report. He also denied his actions were deliberate.
[22] In cross-examination, the applicant stated he commenced work with the respondent in August 2011. He also acknowledged that he had undertaken the respondent’s light vehicle training on 26 September 2011. 19 He further agreed that the exposure to mine site risk is managed through policies and procedures20 and it was reasonable for the respondent to expect employees would comply with traffic management plans and not put themselves or others at risk.21
[23] The applicant stated that he did not convey his location or movements to the excavator operator as required by the positive communications policy because he did not intend to drive past or close to the excavator. 22
[24] The applicant acknowledged that in approaching the excavator from behind presented a real risk because it may have at any stage reversed to access other overburden and the operator “would not have been able to see the light vehicle at certain parts of the excavator.” 23
[25] The applicant agreed he drove the vehicle within 15-20 metres of the excavator within the swing radius and then took evasive action because he thought the vehicle could be in a position of danger. The applicant agreed that he could have stopped the vehicle and made positive communication with the excavator operator to avoid exposure to risk. 24
[26] The applicant denied that when approaching the swing radius of the excavator, Mr Hargood said to him, “You can’t do that.” He also rejected the observation of Mr Jason Meisner, the employee he was scheduled to pick up at the lighting plant as set out in an email from the OCE, Mr Chris Schipp to Mr Andrew Hamson, a superintendent to the following effect: 25
while standing at the 209 light, seeing the light vehicle stop, car then scooted through.
It was the applicant’s evidence that contrary to Mr Meisner’s observation he did not drive past the excavator. 26
[27] The applicant stated he saw the ICAM report prior to preparing his show cause response. 27 The applicant was subsequently shown the ICAM report and a diagram of the work area on the night of the incident. Despite the ICAM report suggesting that when he was within 15-20 metres of the excavator, his vehicle was behind the excavator at the moment he took evasive action and turned towards the lighting plant, the applicant was adamant that at no stage was the vehicle behind the excavator.28
[28] The applicant acknowledged his various breaches of the respondent’s Drug and Alcohol Policy in 2012 and 2013 caused an exposure to risks. The applicant further acknowledged that in relation to the 24 August 2013 incident when he failed to report that he had driven into the windrow, he drove the dump truck two or three kilometres to dump the load. 29 He disagreed that while making that journey, he passed a number of designated safe parking areas.
[29] In re-examination, the applicant stated that on the night of the incident, he did not consider his vehicle would come in contact with the excavator. 30
Tim Shaw
[30] Mr Shaw was the operator of the EX209 excavator on the night of the incident.
[31] Mr Shaw recalled the applicant made positive communication with him prior to entering the excavator work area. He was operating on the right side of the excavator and the arm of the bucket was to the left of the cabin. 31 At no time was the applicant’s vehicle “within the radius between where the loads were being lifted... and dropped in the dump truck.”32
[32] It was Mr Shaw’s evidence that:
- to make contact with the applicant’s vehicle he would have had to rotate the bucket over the roof of the dump truck - contrary to the site safety rules; 33
- there was no risk of the excavator making contact with the applicant’s vehicle; 34
- there was nothing unsafe about the manner in which the applicant operated his vehicle;
- following the incident, he spoke to the OCE’s, Mr Schipp and Mr Wayne Cox, at around 12:00 p.m. the day following the incident; 35
- he did not provide an incident sketch to Mr Schipp or Mr Cox.
[33] In cross-examination, Mr Shaw agreed there were serious and inherent risks on a mine site - heavy vehicles such as an excavator do not have good vision of light vehicles.
[34] Mr Shaw agreed the site Transport Rules required all vehicles entering the work area to make positive communications with the heavy equipment operator. 36 He further agreed it is important the heavy equipment operator knows there is a light vehicle within the work area vicinity because they are unable to see such vehicles.37 He agreed light vehicles were required to maintain a safe distance of 50 metres.
[35] Mr Shaw was aware of an incident that occurred in October 2013 when a dozer ran over a light vehicle in circumstances where no positive communications was made. 38
[36] Mr Shaw acknowledged that he did not see the applicant’s vehicle when it passed through the swing radius. 39 He only saw the vehicle after it had passed.
Respondent
Andrew Hamson
[37] Mr Hamson commenced employment with the respondent in January 2009 as an Open Cut Examiner. He was appointed Superintendent Mining Excavators in August 2013. The applicant and Mr Shaw are operators that ultimately report to Mr Hamson.
[38] On 11 June 2014, Mr Schipp informed him that a light vehicle had driven into the swing radius of an excavator the previous night. The applicant was the driver. The applicant was subsequently stood down on full pay pending an investigation into the incident. He denied telling the applicant at the time of stand down that “It does not look good.” 40
[39] Mr Hamson participated in the ICAM investigation which considered various photographs and diagrams of the incident and statements provided by Mr Hargood, Mr Shaw and the applicant.
[40] Mr Hamson disagreed with the applicant’s contention that it would normally take seven or eight buckets to load a dump truck. If that was the applicant’s view, it is likely that he had not considered the risk that the dump truck could have been fully loaded at the time and moved away from the excavator - risking contact with the light vehicle. 41
[41] In relation to the evidence of the applicant and Mr Shaw, Mr Hamson contended that it was only in exceptionally rare circumstances that a dump truck would need to park so close to the excavator to prevent the excavator from rotating away from the truck. Moreover, the ICAM investigation did not suggest the dump truck was parked so close to the excavator that it would have prevented the excavator rotating to its right. 42
[42] Following the ICAM investigation, Mr Hamson was not involved in the disciplinary process per se. However, when asked by Mr John Hamson, Manager Production, Overburden for an opinion, Mr Hamson told him he considered dismissal appropriate. He considered the applicant took unacceptable risks and did not have the confidence that he would behave in a safe manner in the future. 43
[43] In paragraphs 19-28 of his statement, Mr Hamson referred to the applicant’s disciplinary record. Mr Hamson was responsible for investigating this incident and he determined the applicant’s conduct was in breach of the Mt Arthur Coal Hazard, Near Miss and Incident Reporting and Investigations Procedure, which is explained to all employees at the induction and reinforced in pre-shift briefings. 44
[44] The applicant’s return to work on 4 October 2013 following his breach of the Drug and Alcohol Policy included a period of rehabilitation sponsored by the respondent. He was subject to a return to work plan which included random drug and alcohol testing at least weekly. Mr Hamson also issued the applicant with two written warnings:
(1) Unsafe Behaviour and Procedural Breach
On the 24 August 2013 you were operating truck 462 at 219 on Saturday morning. As you approached the intersection where trucks servicing 219 and 216 meet at Roxburgh your truck contacted the windrow.
You state that you may have fallen asleep and also that you applied the hand retarder to the maximum level however your vehicle still made contact with the windrow.
You stated that you exited the cab of the truck and inspected the truck and surroundings. You then decided to move the truck from the scene of the incident and relocate it to another area.
You proceeded to B road dump area, tipped off the load and parked the truck. You then proceeded to contact Production 7 OCE to report the incident.
Despite your training in your induction and pre-shift briefings regarding never moving machinery involved in an incident or disturbing the scene of an incident you proceeded to move your vehicle to another location. You have breached the Mt Arthur Coal Hazard, Near Miss & Incident Reporting & Investigation Procedure which states that “if an incident or near miss occurs or a hazard is identified the person reporting the event or the person involved in the event shall inform their supervisor as soon as practical.”.
Your actions compromised the safety of yourself and others and posed an increased risk of damage to company property. Your actions may also compromise a thorough investigation process and be perceived as a deliberate attempt to avoid scrutiny.
Following this incident you were drug and alcohol tested according to procedure and tested positive for Amphetamine and Methamphetamine. Your second breach of the Drug and Alcohol Procedure has been managed according to that procedure.
You are reminded that you must follow all Mt Arthur Coal policy and procedure and never engage in behaviour which may risk the safety of yourself, those around you or damage the property of Mt Arthur Coal.
Any further breaches of Mt Arthur Coal policy and procedure will result in disciplinary action up to and including the termination of your employment.
You are encouraged to access the Employee Assistance Program which provides a free and confidential service to all Mt Arthur Coal employees.
If you have any questions please speak to myself or your supervisor.
(2) Second Breach of Drug and Alcohol Procedure
On 24 August 2013 you were drug and alcohol tested according to the Mt Arthur Coal Drug and Alcohol Procedure following an incident where the truck you were operating hit a windrow.
You tested positive for very high levels of Amphetamine (552ug/L) and Methamphetamine (2100ug/L).
Mt Arthur Coal is committed to Zero Harm environment and this includes a workplace free of drugs and alcohol. It is a condition of your employment, and access to site, that you may not enter Mt Arthur Coal in breach of the Mt Arthur Coal Drug and Alcohol Procedure.
This is your second breach of the Mt Arthur Coal Drug and Alcohol Procedure.
You have been required to undergo rehabilitation at a recognised clinic or hospital. You … are unable to return to Mt Arthur Coal until you can prove that you no longer have a problem with drugs and alcohol.
You will now be required to participate in regular drug and alcohol testing (at least once per week) for a period of six months. Prior to returning to Mt Arthur Coal you must also provide a negative sample.
This breach will remain on your employee file for five years and any further breaches of the Mt Arthur Coal Drug and Alcohol Procedure will result in the termination of your employment.
You are encouraged to access the Employee Assistance Program on 1800 261 955 or approach your supervisor if you have any questions.
[45] It was Mr Hamson’s evidence that the applicant did not dispute the two warnings given to him on 4 October 2013. 45
[46] On 20 November 2013, the applicant was given a written warning in relation to absenteeism. Between 4 October and 20 November 2013, Mr Hamson noticed occasions where the applicant was on (unpaid) sick leave during a rostered shift and subsequently worked overtime the following day. The written warning, issued following verbal counselling by a supervisor in relation to previous absences on 18 January and 20 August 2013 stated: 46
... a failure to correct this issue or comply with all Mr Arthur Coal Policy and Procedures will result in further disciplinary action, up to and including termination of employment.
It was also Mr Hamson’s evidence that the applicant did not raise any concern or dispute in relation to this warning.
[47] In cross-examination, Mr Hamson stated he did not witness the incident and did not know whether “the position of the dump truck was in fact impeding the passage of the digger.” 47 He also considered that as a general position, a person who had been assessed as competent to operate an excavator would be more knowledgeable “of the workings of an excavator than a person who is not competent.”48
[48] Mr Hamson acknowledged that with respect to the warning concerning absenteeism, the applicant maintained that he had complied with the respondent’s policies and provided the necessary evidence in the form of a doctor’s certificate. However, the applicant was not warned about notification compliance with the policy. Rather, he was warned concerning the pattern of those absences. 49
[49] In relation to the applicant’s two positive tests in breach of the drug and alcohol policy, Mr Hamson agreed the applicant was not dismissed following the second breach because the respondent’s policy “provided for three strikes.” 50
John Hamson
[50] Mr Hamson is Manager Production, Overburden and has been employed by the respondent since 2006 in various positions. He is responsible for overburden movement on the mine site.
[51] It was Mr Hamson’s evidence that safety was accorded a high priority by the respondent and one of the prevalent risks to the safety of employees on the mine site is in relation to the interaction between light and heavy vehicles. Accordingly, the respondent has in place various safety procedures which employees are required to follow at all times. 51
[52] The respondent regularly updates employees on a range of issues including safety requirements on an informal and formal basis. Such arrangements include pre-shift briefings, tool box talks, employee briefings by senior management and screens and safety notice boards to communicate relevant information to employees. 52
[53] Mr Hamson stated that in the event a heavy vehicle comes into contact with a light vehicle, there is a significant risk of fatalities. Given the cabin height of heavy vehicles it is often very difficult for the operator of a heavy vehicle to see a light vehicle that is operating in close proximity. For example, an excavator weighs 600 tonnes and is 8 metres wide, 22 metres long and 10 metres high. The cabin is a approximately 8 metres off the ground. In contrast light vehicles used on site typically weigh 1,748 kg and are approximately 1.9 metres wide, 5.2 metres long and 1.8 metres high. 53
[54] Mr Hamson stated that all the vehicles on site are required to maintain a safe distance from each other. Vehicles are required to stay at least 50 metres apart and in the event a vehicle needs to come within 50 metres of another vehicle, the operator of the first vehicle must make positive communications with the second vehicle to inform them of their movements. This procedure is particularly important when light vehicles are operating in the vicinity of heavy vehicles. In such circumstances there is an onus on light vehicles to alert heavy vehicles of their movements and intentions on site. 54
[55] Mr Hamson explained a sign stating words to the effect “work area - call before progressing past this point” is placed at the edge of the work area where heavy machinery is operating on the mine site. Where the work area involves digging, the sign at the entrance must be at least 50 metres from the heavy vehicle. More often then not, the sign is place further than 50 metres from the heavy vehicle so it does not have to be constantly moved around. 55 Mr Hamson referred to the MAC-STE-MTP-002 Transport Rules which regulate the safe transportation of all vehicles including non-mining vehicles that operate at the mine site. The Transport Rules apply to all employees and contractors. Sections 5.7.6 and 5.7.19 relevantly state:56
5.7.6 It is the responsibility of the operators of the vehicles including light vehicles to ensure their own (and their vehicles) safety when travelling and parking in areas where other vehicles are operating including all work areas, dumps and coal stockpiles. When travelling and parking in an operating area the operator shall take the necessary precautions to reduce risk of collision such as positive communication, use of mine two-way radio and maintaining clear line of sight to other vehicles.
...
5.7.19 All vehicles must travel at a safe distance from eech other to ensure that the “following” vehicles may avoid a collision. The minimum safe distance is 50 metres. Operators will increase this distance if the conditions of the road and/or weather deteriorate.
[56] A further safety procedure designed to ensure that risk to employees, contractors and visitors from vehicles and mobile equipment is at an acceptable level is set out in the MAC-STE-MTP-027 Traffic Management Plan. Mr Hamson referred to Sections 5.3, 5.5 and 5.14 which relevantly state: 57
5.3 Defensive Driving
Drivers and operators must ensure they drive / operate in a manner that is well within the safe limits of the vehicles or equipment. This includes leaving enough time and room to react in the event of an unexpected condition or movement of another person, vehicle or equipment to avoid a collision or loss of control.
5.5 Vehicle and Equipment Interaction
All vehicles must maintain greater than 50m separation distance from operating mobile equipment in an active mining area. If the vehicle is required to enter within the 50m distance, positive communication is to be made with all mobile equipment in the area. Mobile equipment in that area must stop operations before the vehicle enters the 50m.
5.14 Positive Communication
Prior to entering a work area circuit or within 50 metres of equipment (or as otherwise signposted) drivers of vehicles and mobile equipment shall:
Make radio contact with the identified vehicle, equipment or work area using your vehicle number or call sign.
Specify or identify the vehicle or equipment by their vehicle number or work area and clearly communicate your intentions.
Receive acknowledgement from the vehicle, equipment or work area acknowledging your intentions.
Receive a description of hazards to be aware of when entering the area. Confirm their response using their call sign.
[57] It was Mr Hamson’s evidence that all employees receive training in relation to the Transport Rules as part of their induction. In addition the Transport Rules also form part of equipment training and are frequently reinforced through toolbox talks, pre-shift briefings and other safety briefings held or convened by the respondent. 58 Changes to these policies are also conveyed to employees through toolbox talks, pre-shift briefings and employee notice boards. All employees also receive training on how to access the latest copies of the respondent’s procedures including the relevant transport rules and traffic management plans through the intranet.
[58] Operators who are required to drive light vehicles on site are required to hold a pit licence which is obtained following training and a competency assessment. A powerpoint slide titled “Critical Conditions” which forms part of the light vehicle training and assessment materials was attached to Mr Hamson’s statement and marked ‘JH-6’. The slide made the following point:
- The minimum safe distance between two vehicles is 50 metres.
Mr Hamson stated that light vehicle training also included details concerning the requirements for positive communication which included circumstances where a light vehicle is going to enter the swing radius of an excavator - as there is a potential for the excavator to make contact with the light vehicle.
[59] Mr Hamson set out details of the applicant’s light vehicle competency assessment dated 25 September 2011 and his attendance at three positive communications toolbox talks on 8 August 2011, 5 January 2012 and 29 October 2013. Following these toolbox talks the applicant completed a competency assessment to test whether he had understood the content of the toolbox talks. Copies of those assessments stating the applicant understood his obligations were annexed to Mr Hamson’s statement.
[60] On 14 July 2012, the applicant attended a toolbox talk concerning the site transport rules and following that talk he completed a competency assessment. As part of the competency assessment Mr Hamson stated the applicant answered the following question correctly:
When driving any vehicle you must maintain a minimum clearance from another vehicle. What is the distance?... 50m
Similarly on 29 October 2013 the applicant attended a toolbox talk about concerning vehicle movement and following that talk, he completed a competency question where the following question was also answered correctly:
When driving a light vehicle you must maintain a minimum distance from heavy equipment. What is the distance?... 50m
[61] The applicant also attended a toolbox talk concerning the requirements for positive communications in December 2013. Mr Hamson referred to slide 6 of that presentation (annexed and marked ‘JH-11’) which stated:
When should you apply the positive communication standard?
- Overtaking (with the exception of an working grader, when ground engaging tools are actively conducting road maintenance);
- Entering a work area;
- Interaction of any machinery/equipment/light vehicle.
[62] Mr Hamson stated that “interaction of any machinery/equipment/light vehicle” includes circumstances where a light vehicle is going to enter the swing radius of an excavator since in those circumstances there is potential for the excavator to contact the light vehicle.
[63] Mr Hamson referred to a serious safety incident that occurred on site on 18 October 2013 when the driver of a light vehicle drove behind a dozer without making positive communications with the operator to advise him of his location. The dozer operator reversed the dozer over the cabin of the light vehicle narrowly missing the driver. As a consequence of that particular incident the operator of the light vehicle was dismissed. 59
[64] Following the incident, Mr Hamson stated he shut down the mine operations for the remainder of that shift until the next shift to ensure all the available employees present had visited the scene of the incident to understand its gravity. It was Mr Hamson’s evidence that the applicant was at work on 18 October 2013 and would have been required to attend the scene of the incident. Mr Hamson stated that he discussed the incident with various groups of employees who attended the scene and stated the following:
It is sheer luck that the driver of the light vehicle was not crushed by the dozer. We cannot afford to run this mine on luck. We have rules and procedures for a reason that need to be followed. The rules and procedures are there to keep you safe ... If anyone breaches the positive communications requirements in the future, serious disciplinary action will be taken.
[65] In late October 2013 the mine General Manager, Mr Xavier Wagner, and Mr Peter Sharpe, the Asset President, presented a “State of the Nation” presentation to employees which included the dozer incident. 60
[66] Mr Hamson stated that in or around May 2014 an incident occurred involving a light vehicle operated by a supervisor which came within 50 metres of an operating dozer on the haul road. Mr Hamson stated he was involved in the investigation and the disciplinary process resulted in the supervisor being dismissed. 61
[67] At or around 11:30pm on 10 June 2014, Mr Schipp contacted Mr Hamson at home to advise that a light vehicle taxi had driven within the swing radius of Ex209. The taxi’s passenger at the time of the incident, Mr Hargood was also with Mr Schipp. Mr Hamson informed Mr Schipp that an ICAM investigation was required. In addition, he should arrange for a drug and alcohol test for the driver, interview the passenger and excavator operator. 62
[68] The incident was categorised as a PL-5 incident under the SHMS - an incident that could have resulted in two or more fatalities. An ICAM is convened for any safety incident that could have involved a fatality. 63 The purpose of an ICAM is to make factual findings on what occurred and determine the root cause of the incident. As part of the ICAM, photographs of the scene of the incident together with statements from the applicant, Mr Shaw, Mr Hargood and Mr Meisner, the operator the applicant picked up at the lighting plant, were considered. The ICAM investigation also examined transcripts of two-way radio conversations on the night of the incident.
[69] The ICAM investigation determined: 64
The root cause of the incident was the driver of LV4162 entering the swing radius of EX209 without ensuring that the excavator was in a safe state prior to entry. The LV operator placed himself and the passenger in a position of harm (in the line of fire).
[70] Mr Hamson referred to a video taken of an excavator loading a dump truck with a light vehicle nearby filmed under controlled conditions. Mr Hamson stated the video shows the light vehicle in close proximity to the excavator:
- an excavator loading a dump truck to the left;
- the excavator’s arm and bucket swinging to the right at full extension (22.5m);
- the relative size of a light vehicle to the size of the excavator and its bucket; and
- an excavator operating with a light vehicle within the swing radius of the excavator’s arm.
[71] Mr Hamson determined the applicant had behaved recklessly and showed a lack of hazard perception. However, it was not an intentional act. 65 In considering the appropriate disciplinary action, Mr Hamson considered the various statements obtained as part of the ICAM investigation:66
Applicant
- proceeded north towards an obvious gap available near the excavator;
- did not communicate his intentions to pass immediately near the excavator to the excavator operator;
- considered there was sufficient room to pass the excavator without issue or incident;
- the fact that AMAs were not in place gave him the impression that he did not need to call the excavator to state he was in the immediate proximity;
- came within approximately 20 metres of the excavator; and
- he considered that because the excavator was operating on the left hand side of the panel , it would be unlikely to swing to the right.
Mr Hargood
- he stated that when he told the applicant that he couldn’t pass the excavator and would need to call up the excavator driver, the applicant responded “there are no active mining areas (AMAs) in place” and continued to drive past the excavator.
Mr Shaw
- he only saw the light vehicle once it had already passed the excavator and that he was otherwise unaware of the light vehicle’s presence or proximity to the machine.
[72] Mr Hamson met with the applicant and Mr Ian Ayres, the CFMEU Union delegate on 19 June 2014. Mr Ayres and the applicant were subsequently given access to the ICAM investigation report through a superintendant. A show cause letter was given to the applicant.
[73] Mr Hamson received the applicant’s response to the show cause letter on 23 June 2014. The applicant acknowledged “he became aware that he may be too close to the excavator” and said that his conduct was not intentional or done in ignorance of the procedure. 67 He also stated that if he had known that he was not following the required procedure correctly, he would have stopped immediately so as not to endanger himself or others. Notwithstanding the applicant’s response, Mr Hamson considered he was aware, or should have been aware, that it was extremely dangerous to drive so close to an operating excavator. The applicant had received the relevant training and regular site briefings in relation to the requirements to maintain a 50m distance from other vehicles and observe the positive communications rules.68
[74] Mr Hamson considered that in the event the applicant was confused about the correct path to follow when driving to the lighting plant, he should have stopped his vehicle, called the excavator operator or a superintendant to confirm the correct path. Mr Hamson contended the applicant assumed the excavator would not swing to the right in the direction of his vehicle and therefore, he decided to drive into the swing radius.
[75] The applicant failed to accept he had placed the life of his passenger and himself in danger, demonstrating a lack of awareness of potential safety risks. Given the gravity of the incident and the applicant’s lack of awareness that he had created a significant safety risk, Mr Hamson considered he had lost the trust and confidence that the applicant would conduct himself in a safe manner in the future. 69 Accordingly, the appropriate penalty was dismissal.
[76] Mr Hamson stated that in deciding to dismiss the applicant, he had taken his past disciplinary record into consideration. He met with Mr Wagner and Mr Mark Stroppiana on 26 June 2014 where his recommendation was endorsed. On 27 June 2014, Mr Hamson met with the applicant and his Union delegate, Mr Matthew Howard. The letter of termination was subsequently read to the applicant and later handed to him. He was paid two weeks pay in lieu of notice and accrued entitlements. The termination letter read in part:
During nights shift on 10 June 2014 at approximately 10:50pm you were involved in an incident while operating light vehicle 4162 (LV4162) at Mt Arthur Coal Mine.
Upon arrival at the area in which EX209 was working you proceeded to make positive communications with the operator of EX209 and requested permission to enter the work area. The operator of EX209 provided permission for you to enter the work area.
Once you entered the work area you proceeded to approach the work area of dozer 391 (DZ391) however you did not use the designated access way to this work area.
You proceeded to pass within the swing radius of the excavator without making any further positive communications.
By entering the swing radius of a working excavator you exposed your passenger and yourself to an unacceptably high level of risk and demonstrated a concerning lack of hazard awareness. You have gone within 50 metres of operating machinery without making positive communications.
I note that you currently have two Written Warnings on file. The first dated October 2013 when you moved a truck you were operating following a collision with a windrow. The second dated November 2013 for your poor attendance record despite being counselled on several occasions by your supervisor.
I further note that you have had two breaches of the Mt Arthur Coal Drug and Alcohol Procedure, the most recent being in October 2013.
I have received and considered your response to the show cause letter dated 19 June 2014 and received by the Company on 23 June 2014. It is clear to me the root cause of the incident was that you entered the swing radius of EX209 without ensuring that the excavator was in a safe state prior to entry.
[77] In cross-examination, Mr Hamson agreed Mr Wagner had signed the applicant’s letter of dismissal on his recommendation. 70 Mr Hamson agreed that if the applicant had entered the swing radius and made positive communications before entering that radius he would not have been dismissed. In relation to the applicant’s training record Mr Hamson stated that he relied on other staff to provide him with details of that training. He also acknowledged there was no record of the applicant completing training on the traffic management plan.71 Mr Hamson further agreed that there was no restriction set out in the transport rules, traffic management plan or the light vehicle training which specifically restricts the driving of a vehicle through the swing radius of an excavator.72 Nor do those documents require the vehicle driver to make positive communications before entering the swing radius.73 It was Mr Hamson’s view that the prohibition was “it’s probably verbally communicated on site”.74
[78] Mr Hamson explained that the ICAM process is a consensus based decision making forum which is convened to establish the root cause of the incident.
[79] In relation to the traffic management plan, Mr Hamson confirmed that a vehicle can travel within 50 metres of another piece of equipment on site providing positive communication is made. He also acknowledged that the applicant had been passed as competent to operate a light vehicle on site. 75 Mr Hamson also agreed that following toolbox talks conducted on 5 January 2012 and 14 July 2012, the applicant was required to complete a short assessment to establish whether he understood the content of the toolbox discussion. In that regard, Mr Hamson agreed the applicant was not asked whether positive communication was required prior to entering the swing radius of an excavator.76
[80] It was Mr Hamson’s evidence that the applicant failed to make positive communication with the excavator operator a second time when his vehicle was about to interact with the excavator’s swing radius. The applicant’s vehicle interacted with the excavator at the time he passed or overtook it. 77 The following exchange ensued:78
How do you make positive communication twice if in the act of overtaking you're also interacting?---By the conversation so you stipulate your intentions. So if I call up, the example there is if I call up a dozer, "Can I overtake you?" That's your interaction. You're stipulating what are your actions.
Now, I understand how the policy provides a person must make positive communication. The point I'm putting to you is don't you agree that you couldn't make positive communication twice if you're both overtaking and interacting at the same time?---It's done in the one conversation.
Yes. And so isn't it the case that if it's done in the one conversation that each of these three obligations is not a separate obligation to make positive communication?---In that situation, yes.
And in other situations perhaps the same interpretation could be given to the document. Do you agree?---No.
So why does it apply in that circumstance but not other circumstances?---It applies there - when you're overtaking you must use positive communication. That's a rule onsite. Through that communication you're communicating your interaction and your intentions so you can cover that off in the one conversation.
Mr Hamson agreed that he did not know the position of the dump truck and the excavator on the night of 10 June 2014.
[81] Mr Hamson confirmed the applicant had been trained in positive communication, he had completed his light vehicle assessment, and had been trained in the rules that apply when you interact with a machine - you must use positive communication. 79
[82] In making the decision to dismiss the applicant the respondent maintained the applicant was trained in the policy that states you must make positive communication when you interact with another vehicle onsite. 80 In relation to that training, Mr Hamson stated the respondent conducts pre-starts and talks to employees about how they should approach the machines and use positive communications.
[83] Mr Hamson confirmed it was not the respondent’s policy to release the ICAM report as it is an internal document. However, he was aware the applicant and his representatives had obtained a copy. A copy was also available for viewing upon request.
[84] Mr Hamson acknowledged that a supervisor was dismissed following the 18 October 2013 dozer incident when he failed to follow the rules on positive communication. The supervisor drove within 50 metres of an operating dozer and made a conversation on the two-way radio. He did not make positive communication to identify himself or his vehicle. Another operator in the pit responded to his two-way conversation. The supervisor assumed that it was the dozer driver and the supervisor continued to drive and placed himself in the “line of fire” at the time the dozer reversed over his vehicle. 81
[85] Mr Hamson explained that an induction takes place prior to employees commencing on site. The induction covers all rules and procedures related to the site and as part of that training, participants are informed about the need for positive communication. 82 Mr Hamson also confirmed that the definition of positive communication is for the relevant employee to identify himself not by name but by machine number, for example, “light vehicle 1 wants to come past dozer 1” and dozer 1 says, “light vehicle 1, you can come past dozer 1.”83 It is important that the operators clearly communicate their intentions in that particular conversation. Accordingly, if an operator drives his vehicle within the 50 metre swing radius and then for some reason your intention changes, then you must re-communicate your intentions. In that regard Mr Hamson referred to circumstances where an operator might be driving behind a heavy vehicle and wishes to interact with or overtake that vehicle. The positive communication requirement is the 50 metre rule where if an operator wishes to drive their vehicle inside the 50 metres, the operator must make positive communication and clearly communicate their intentions.84
Christopher Hargood
[86] Mr Hargood commenced work with the respondent as an operator in March 2014 driving trucks, water carts and front end loaders. He has also been trained to drive light vehicles at the mine.
[87] Mr Hargood stated that on 10 June 2014, he dropped a water cart off for service and was required to call a “taxi” to collect him from the service area and take him to the workshop where he would pick up another water cart. 85
[88] The applicant picked him up at approximately 10:40 p.m. and proceeded to drive towards excavator EX209 to collect another operator.
[89] Mr Hargood stated that at or around 11:00 p.m., the vehicle approached the excavator and exercised positive communications with the excavator operator “to come into your work area.” 86 As the applicant’s vehicle, travelling at 40km/h, approached the excavator, the excavator commenced loading the dump truck with overburden. Shortly thereafter he realised the vehicle “was virtually on the edge of the swing radius.” The following exchange with the applicant ensued:
Hargood: You can’t do that. You gotta call up.
Applicant: AMAs aren’t in place yet (laughing)
[90] In further evidence in chief, Mr Hargood was asked about the type of vehicle the applicant drove on the night of the incident. The following exchange ensued: 87
Yes. And are there any additional qualifications that you need to operate a Mac taxi?---Operating the Mac taxi is simply driving the light vehicle. You need to have a light vehicle licence. You need to go through a class of - get a licence. You don't have to do the theory, some theory, classroom theory where you go through the transport rules with one of the trainers. There's a slideshow from memory. You go through this. He talks to you about the interaction issues. He talks about the speed limits, talks about the separation distances, driving defensively, give way hierarchy. A light vehicle sits at the bottom of the give way hierarchy. It has to give way to everything else.
Yes?---And then from there before you - then you go out and do what we call like a physical where you, sorry a practical where you go for a drive around the pit with the trainer. He takes you around the pit and practices your positive communication looking at signage, delineation and basically then if he's confident with you, with how you operate that light vehicle you're then passed out to operate a light vehicle.
You mentioned positive communication. What do you understand that to be?---Positive communication would be, I'll give you an example, if I need to pass a broken down truck I might say, “Copy truck, 410 in light vehicle, this is user 4162. Can I come around you please?” And I'd then get a positive response back from the operator. He would say, “Light vehicle 4162 you're clear to pass truck 410.”
[91] Mr Hargood confirmed that on the night of the incident, he considered the emergency access sign was somewhere between 150 and 200 metres away from the excavator. Mr Hargood told the applicant “You’ve got to call up” because we were travelling “in a direction with intention of basically going straight through the swing radius and no positive communication had been made from the light vehicle to the excavator operator. The excavator was still operating. We were basically going to go straight through there without receiving positive communication. I know from my training and ... all the briefings that we've had on toolboxes, pre-shift brief and state of the nation (talks), you've got to get positive communication when you're interacting on that level.” 88
[92] In cross-examination, Mr Hargood confirmed he had prepared statement with the assistance of the respondent’s solicitors. He also agreed with the proposition that somebody who had been passed out to operate an excavator would have more knowledge of the operations of an excavator than someone who had not been passed out. 89 Mr Hargood also acknowledged that in preparing his statement, he had spoken with Mr Andrew Hamson to establish the surname of a Mr Burns.90
[93] Mr Hargood agreed that an excavator moves quite slowly when reversing backwards or changing its position. 91 It was Mr Hargood’s evidence that he could not recall the applicant stating that he could not find the access road.92 In relation to the applicant’s dismissal, Mr Hargood was aware the respondent accepts that prior to entering the work area, the applicant complied with the site rules by making positive communication and understood the issue taken by the respondent was that when the applicant entered the swing radius he did not make further positive communication.93
[94] In Mr Hargood’s view, the applicant knew that the transport rules made it quite clear that when you come within the 50 metre radius or commence passing a heavy vehicle or piece of equipment within 50 metres, he must make positive communication. Accordingly, on the night of the incident, a further positive communication call was required as the vehicle came within 50 metres of the excavator. 94
Submissions
[95] Both the applicant and the respondent put comprehensive written and oral submissions in support of their respective positions. I have given consideration to those submissions and the various authorities relied upon in determining this matter.
Applicant
[96] The primary reason for dismissal relied upon by the respondent was that while driving a light vehicle on 10 June 2014, the applicant travelled within the swing radius of a working excavator and both the applicant and passenger, Mr Hargood were exposed to a high level of risk. Multiple fatalities could have resulted.
[97] The respondent relied on the applicant’s disciplinary record when determining whether to dismiss him.
[98] Both the applicant and the excavator operator, Mr Shaw denied there was any risk that the excavator bucket could be rotated over the roof of the applicant’s light vehicle.
[99] On entering the excavator work area, the applicant made positive communication with Mr Shaw. Shortly thereafter, he stopped the vehicle while the dump truck was reversing. He subsequently drove at low speed along the haul road looking for the exit to the light vehicle access road, usually marked by an “emergency access sign”. However, there was no sign and the exit point could not be located. The applicant travelled further along the haul road than anticipated and on approaching the excavator, he observed it was loading a dump truck with the bucket rotating no more than 45 degrees.
[100] The applicant considered the bucket could not be rotated over the vehicle because such conduct would breach the site safety rules. Further, as a dump truck was being loaded, he considered there was no need for the excavator operator to rotate the bucket “that far to his left as to make contact with the vehicle.” 95
[101] The light vehicle came within 15 to 20 metres of the excavator. To avert the risk that the excavator may not have seen the vehicle and reverse into it, the applicant took evasive action and drove over a windrow.
[102] The applicant accepts that there was a possibility that the bucket may have been rotated from the left of the excavator but maintained that to do so required the excavator operator, Mr Shaw to commit an unsafe act by allowing the bucket to rotate over the roof of the dump truck.
[103] The applicant had not received proper training. The transport rules do not prohibit a light vehicle from travelling through a swing radius. He responded at all times consistent with the relevant site transport and associated rules and procedures. The applicant made positive communications when he entered the swing radius of the excavator. He did not intend to enter the swing radius. There was no deliberate defiance or reckless behaviour exercised by the applicant nor was there any risk of injury to the applicant or Mr Hargood. The claim by Mr Hargood that he considered his life was in danger is not supported on the evidence. Moreover, Mr Hargood’s evidence was designed to paint a negative picture of the applicant’s conduct on 10 June 2014. The respondent should have provided the ICAM report and Mr Hargood’s initial statement made following the incident to the applicant to enable him to provide a proper response to the allegations.
[104] With respect to the respondent’s consideration of the applicant’s disciplinary record, the Union agreed that the applicant had met his obligations to notify the respondent and provide the necessary evidence with respect to the warning for absenteeism. In relation to the truck incident, the applicant drove through a windrow which amounts to conduct of a “misdemeanour” nature.
[105] There was no valid reason for termination and the applicant’s dismissal was harsh, unjust and unreasonable. There was no impediment to reinstatement. In support of those submissions, the applicant relied on the following authorities: B, C and D v Australian Postal Corporation t/a Australia Post, 96 Culpeper v Intercontinental Ship Management Pty Ltd,97 Selvachandran v Peteron Plastics Pty Ltd,98 King v Freshmore (Vic) Pty Ltd,99 Yew v ACI Glass Packaging Pty Ltd,100 DP World Sydney Limited v Lambley,101and Regional Express Holdings Limited trading as REX Airlines v Richards.102
Respondent
[106] The respondent submitted there was a valid reason for dismissal and the applicant’s dismissal was not harsh, unjust or unreasonable.
[107] At the time of the applicant’s dismissal, the respondent had conducted a full investigation into all the relevant matters as was reasonable in the circumstances at the time. The applicant had a reasonable opportunity to respond to allegations and the investigation findings were based on reasonable grounds.
[108] The respondent accords a high priority to safety. One of the most prevalent risks of a coal mine is in relation to the interaction between light and heavy vehicles. Accordingly, various safety policies and procedures are in place and compliance with those policies is a requirement of employees at all times.
[109] The applicant admitted that he drove a light vehicle within the swing radius of an excavator without making positive communications with the operator or otherwise alerting that operator to his close proximity to the excavator.
[110] The incident was categorised at level PL-5 under the SHMS - being an incident that could have potentially resulted in two or more fatalities. The ICAM Investigation established:
The root cause of the incident was the driver of LH4162 entering the swing radius of EX209 without ensuring that the excavator was in a safe state prior to entry. The LV operator placed himself and the passenger in a position of harm (in the line of fire).
[111] All vehicles operating within the mine site are required to maintain a safe distance from other vehicles and remain at least 50 metres apart. Where a vehicle intends to come within the 50 metre rule, the operator of the first vehicle must make positive communications with the second vehicle to inform that vehicle of its proposed movements. The onus rests with the driver of a light vehicle to alert heavy vehicles to their movements and intentions. Accordingly, the applicant was obliged to make positive communications with the excavator operator at the time he crossed the 50 metre “line”. He did not do so.
[112] The Commission needs to determine two questions:
- did the applicant expose himself and his passenger to a position of risk? and,
- did the applicant know, or should he have reasonably known that his conduct was not acceptable conduct?
[113] The applicant’s evidence in cross-examination was that he: 103
- accepted he was a person of extensive experience;
- had been assessed as being competent to operate both light and heavy vehicles;
- accepted mining operations carry inherent risks, particularly the interaction between light and heavy vehicles;
- acknowledged the respondent has policies and procedures in place to manage risk, particularly in relation to vehicle interaction across the mine site;
- accepted non compliance with the respondent’s policies and procedures concerning vehicle interaction could give rise to serious safety risks;
- accepted that the competency training undertaken required him to demonstrate that he understood and appreciated the risks involved concerning vehicle interaction;
- acknowledged that he had been trained in, and was familiar with and understood the respondent’s site transport rules, including the requirement to make positive communications;
- agreed he was aware of the traffic management plan and was familiar with some elements of that plan, including defensive driving and anticipating risk;
- agreed that consistent with the 50 metre rule, a light vehicle operator is required to make positive communications and seek permission to enter the work area within the 50 metre mark and communicate his or her intentions - whether to approach or overtake the heavy vehicle.
[114] The respondent submitted the applicant’s training records and relevant assessments support the proposition that he understood the 50 metre rule. 104 However, he did not make the required positive communications when he drove through the 50 metre mark and entered the immediate work area of the excavator.105
[115] The applicant had a clear view of the excavator and the requirement to make positive communications for the second time was consistent with his vehicle competency training. 106 The respondent submitted that the evidence was that the applicant first made positive communications between 130 and 200 metres from the excavator. Mr Hargood thought 150 to 200 metres, Mr Hamson about 130 metres and Mr Shaw accepted it might have been about 150 metres.107 Accordingly, the evidence before the Commission was that the applicant failed to make the required positive communications as he approached the excavator and the 50 metre mark.108
[116] The respondent contends the applicant deliberately drove his vehicle towards the excavator when his knowledge of the site rules and the requirements of defensive driving suggest he should have stopped as he was poised to encroach upon the 50 metre mark and drive into the swing radius. 109
[117] The applicant accepted in cross-examination that in circumstances where a light vehicle came within close proximity of an excavator, it gave rise to serious risks - the excavator is capable of moving forwards or backwards as it surveys overburden. He further agreed, notwithstanding those risks, that when he realised how close the vehicle was to the excavator, he had to take evasive action and drive over a windrow. 110 As an experienced operator, the applicant’s conduct fell short of the required standards.
[118] Mr Shaw conceded in cross-examination that the vision of an excavator operator is impeded - hence the 50 metre rule and the requirement to make positive communications. 111 Mr Shaw conceded he did not see the applicant’s vehicle come into close proximity to the excavator or enter the swing radius. He initially saw the vehicle enter the work area but did not see it again until it had passed through to the other side of the excavator.112 Mr Shaw further agreed that in such circumstances, the applicant should have made positive communications stating that he was coming close. Mr Shaw further stated that in response, he would have lowered the excavator bucket and stopped operating.113
[119] The respondent submitted Mr Andrew Hamson’s decision to stand the applicant down was in part due to the fact that the applicant did not seem to appreciate the seriousness of the incident and the risk of injury. In relation to the written warning concerning absenteeism, Mr Hamson stated the warning was issued in response to the pattern of absences. It was not related to whether or not the applicant had complied with the notification of absence requirements. 114 In relation to the truck incident and the subsequent second drug and alcohol breach, the respondent submitted the applicant’s decision to continue to drive the truck, unload it and subsequently park it was a breach of procedure and not a minor misdemeanour as contended by the applicant.115
[120] The applicant was not denied procedural fairness. He was able to review the ICAM Investigation findings and examine that report prior to responding to his “show cause”. 116 Whilst the applicant considered he should have been afforded access to Mr Hargood’s initial statement, in cross-examination, he was asked words to the effect, “You’ve now seen Mr Hargood’s statement. Is there any change in what you say?” “No” was the applicant’s response.117
[121] In relation to Mr Hargood’s evidence, the respondent contended that despite efforts to discredit him his evidence was consistent - the applicant should have exercised positive communications consistent with the respondent’s policies. 118
[122] In support of its case, the respondent referred to the following authorities: Wayne Chadwick v Woodside Energy, 119 Kennelly v Incitec Ltd,120 and Steven Myers v Coal & Allied-Bengalla Mining Company Pty Limited T/A Bengalla Open Cut Mine,121 and Brenda Plunkett v Thiess Pty Ltd.122
Consideration
[123] In determining this application, I have considered all the evidence and submissions put to the Commission by the parties. The conduct that gave rise to the applicant’s dismissal was capable of causing one or two fatalities. The excavator driver was unaware at the time the applicant’s vehicle had entered the swing radius and was within about 20 metres of the excavator before the applicant took evasive action and drove over a windrow.
[124] The civil standard of proof applies in unfair dismissal proceedings and the Commission must determine whether on the balance of probabilities, the conduct as alleged occurred, having regard to the evidence. Shortly stated, this means that upon consideration of the evidence admitted by the contesting parties, the account that is more probable that not is to be accepted. The inherent probability of the allegation is considered in that process
Statutory context
[125] Section 385 of the Act relevantly provides that a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.
[126] Section 387 sets out the criteria to be considered by the Commission in determining whether a particular dismissal is harsh unjust or unreasonable. The Commission must take the following criteria 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.
(a) Valid reason
[127] In Selvachandran, Northrop J considered the dismissal provisions of the Industrial Relations Act 1998 and determined:
...the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based up the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed upon them. The provisions must ‘be applied in a practical and commonsense way to ensure that’ the employer and employees are each treated fairly... 123
[128] In Parmalat Food Products Pty Ltd v Kasian Wililo, 124 a decision which considered a dismissal related to a safety breach, the Full Bench stated:
The existence of valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render any termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 125
[129] The Full Bench also considered the importance of upholding safety rules in the workplace:
In our view this case raises important questions about the respective rights and obligations of employers and employees in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.
In this case the employer considered and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so can send a message to the workforce that safety breaches can occur with impunity. 126
[130] In Woolworths Limited (t/as Safeway) v Cameron Brown 127 the Full Bench held, “a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable directionof the employer sufficient to justify the dismissal of common law will amount to avalid reason for termination".128
[131] The Applicant’s employment was terminated following a breach of a site safety rule that required him to make positive communication to alert the operator of an excavator that he proposed to drive his vehicle within the swing radius of that particular excavator. He had previously made the requisite positive communications with the excavator operator that he proposed to enter the work area. The applicant mistakenly thought he had complied with the respondent’s requirements. The applicant’s conduct was classified as a PL-5 breach on the grounds that potentially, the incident could have resulted in multiple fatalities.
[132] For his part, the applicant suggested it was dark and he was slightly confused and could not locate the appropriate access road to the lighting plant where he was scheduled to pick up a passenger. His defence was that the signage was poor. In his show cause response, the applicant stated that when he realised the vehicle was “too close” to the excavator, he took evasive action and drove “over the windrow in question to take us out of danger”. 129
[133] The applicant also informed the respondent that he was a competent truck driver and aware of how excavator operators conduct a load. He considered his vehicle was within the swing radius – but not within the dig radius. In that regard, his show cause response was, “I am sure I turned away from the digger before we got onto the bench where he was working, therefore considering safety”. The applicant did not appear to appreciate that his actions could have caused a fatality and as an experienced truck driver, he should have stopped his vehicle and called a supervisor for assistance in finding the correct access road to the lighting plant.
[134] The applicant admitted that he drove his vehicle within the swing radius and had to take evasive action and drive over the windrow when he considered or realised he was so close to the excavator. Mr Shaw’s evidence was that the applicant had failed to make positive communications with him consistent with the respondent’s policies.
[135] The applicant acknowledged he had received training with respect to the respondent’s policies and procedures. Mr Shaw and Mr Hargood also acknowledged the availability of training and refresher training through tool box briefings and the like. While the applicant considered there were a number training deficiencies. I do not consider these issues amount to a fatal flaw in the respondent’s case. The applicant agreed the respondent undertook refresher training through specific briefings and tool box talks. On balance, his conduct was totally inconsistent with his training and competency as a truck driver on the respondent’s mine site.
[136] Having considered all the materials put to the Commission in this case, I find that on 10 June 2014, the applicant exposed himself and Mr Hargood to a position of severe risk by not observing the positive communications rule. I further find that given the evidence concerning the various types of training afforded to vehicle operators, the applicant’s should have responded to the situation consistent with that training. The applicant’s breach, whether intentional or not presented Mr Hargood and himself to extreme risk so significant in terms of the danger to their safety that it cannot be condoned or ignored. There was a valid reason for the applicant’s dismissal.
(b) Notification
[137] It is clear on the evidence the applicant was informed of the reason for his dismissal in his letter of termination dated 26 June 2014. Moreover, it is also clear the applicant was informed of the reasons for dismissal prior to the respondent’s decision to terminate his employment was made. I find that the applicant was notified of the reasons for his dismissal.
(c) Opportunity to respond
[138] The applicant was afforded an opportunity to respond to the allegations concerning his conduct a number of times during the investigation and was afforded an opportunity to have a Union support person present. He was provided with a show cause letter on 19 June 2014 and provided his written response the same day.
(d) Unreasonable refusal to allow a support person
[139] The applicant was afforded an opportunity to havea support person present and the requirements of the sub section were met.
(e) Unsatisfactory performance
[140] The applicant’s dismissal involved his conduct.
(f) Size of employer and impact of human resources expertise
[141] The respondent is a large employer with a dedicated human resources staff.
(g) Other matters
[142] The Commission may consider any other matters it considers relevant. These must be considered in the context of the object of Part 3-2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.
[143] The respondent rejected the submission of the applicant that the applicant’s dismissal was harsh and a disproportionate response to the gravity of his conduct.
[144] The applicant was a relatively short serving employee. During his service with the respondent, he had received two written warnings, the first in October 2013 concerning an incident where is vehicle struck a windrow and the second in November 2013 related to absenteeism. He had also breached the respondents Drug and Alcohol procedure on two occasions. Moreover, the applicant was put on notice in October 2013 that his job was in jeopardy.
[145] I have had regard to the applicant’s period of employment and his disciplinary record. I note that the respondent does not rely on the applicant’s disciplinary record as a reason for dismissal. Rather, it was a factor it took into account when considering what it considered to be the appropriate disciplinary outcome in response to the applicant’s conduct. I have also considered the harshness caused to the applicant as a result of his dismissal. He has lost a reasonably well paid position and his dismissal has had an impact on his personal circumstances. I have also taken into account that the applicant was paid in lieu of notice. I also consider he has been afforded a “fair go all round”.
Finding
[146] Having regard to all the evidence against the applicant in this matter, I do not consider the respondent’s decision to dismiss him was a disproportionate response taking into account his length of service and less than satisfactory work history.
[147] The respondent is entitled to expect that its express workplace policies and procedures be followed. It also follows that not all breaches of such policies will result in dismissal. However, in the circumstances of this case, I do not consider the decision to dismiss the applicant was harsh, unjust or unreasonable within the meaning of s.387 of the Act. The application is therefore dismissed.
COMMISSIONER
Appearances:
For the applicant, Mr K Endacott, Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District.
For the respondent. Mr B Rauf, of counsel.
1 Applicant’s Submissions, Exhibit 7 at para 4
2 Ibid at para 4
3 Ibid at para 8
4 Ibid at para 21
5 Ibid at para 22
6 Exhibit 8 at para 11
7 Exhibit 7 at paras 6-8
8 Exhibit 1 at para 16
9 Ibid at para 18
10 Ibid at paras 18-19
11 Ibid at para 17 and 23
12 Ibid at para 26
13 Ibid at para 23
14 Ibid at para 24
15 Ibid at para 25
16 Ibid at para 22
17 Ibid at para 27
18 Ibid at para 30
19 Transcript at PN69
20 Ibid at PN79
21 Ibid at PN 98 and 109
22 Ibid at PN135-136
23 Ibid at PN142-145
24 Ibid at PN160
25 Ibid at PN201
26 Ibid at PN207
27 Ibid at PN211
28 Ibid at PN223
29 Ibid at PN266
30 Ibid at PN381
31 Tim Shaw’s Witness Statement - Exhibit 3 at para 6
32 Ibid at para 7
33 Ibid at para 8
34 Ibid at para 10
35 Transcript at PN383
36 Ibid at PN433
37 Ibid at PN435
38 Ibid at PN451-456
39 Ibid at PN509
40 Andrew Hamson’s Witness Statement - Exhibit 4 at para 12
41 Ibid at para 15
42 Ibid at para 16
43 Ibid at paras 17 & 18
44 Ibid at para 21
45 Ibid at para 27
46 Ibid at annexure AH-4
47 Transcript at PN614
48 Ibid at PN636
49 Ibid at PN671-672
50 Ibid at PN691
51 John Hamson’s Witness Statement - Exhibit 5 at para 6
52 Ibid at para 7
53 Ibid at para 9
54 Ibid at para 10
55 Ibid at para 11
56 Ibid at para 12
57 Ibid at para 15
58 Ibid at para 15
59 Ibid at para 25
60 Ibid at para 20
61 Ibid at para 29
62 Ibid at para 31
63 Ibid at para 34
64 Ibid at para 42
65 Ibid at para 47 and 49
66 Ibid at para 51
67 Ibid at para 58
68 Ibid at para 60
69 Ibid at para 61
70 Transcript at PN781
71 Ibid at PN846
72 Ibid at PN878
73 Ibid at PN882
74 Ibid at PN880
75 Ibid at PN958
76 Ibid at PN977
77 Ibid at PN1017
78 Ibid at PN1030-1034
79 Ibid at PN1151-1152
80 Ibid at PN1183
81 Ibid at PN1255
82 Ibid at PN1264
83 Ibid at PN1267
84 Ibid at PN1275
85 Christopher Hargood’s Witness Statement - Exhibit 6 at para 3
86 Ibid at para 5
87 Transcript at PN1351-1353
88 Ibid at PN1359
89 Ibid at PN1415
90 Ibid at PN1465
91 Ibid at PN1538
92 Ibid at PN1576
93 Ibid at PN1626-16277
94 Ibid at PN1633-1634
95 Exhibit 7 at para 16
96 [2013] FWCFB 6191
97 [2004] AIRC 261
98 (1995) 62 IR 371
99 [2000] AIRC 1019
100 (1996) 71 IR 201
101 [2013] FWCFB 9230
102 [2010] FWAFB 8753
103 Transcript at PN1896-1899
104 Ibid at PN1902-1903
105 Ibid at PN1903
106 Ibid at PN1905
107 Ibid at PN1908
108 Ibid at PN1909
109 Ibid at PN1910
110 Ibid at PN1913 and Exhibit 1 at annexure RS-2
111 Ibid at PN1919
112 Ibid at PN1920
113 Ibid at PN1921
114 Ibid at PN1922
115 Ibid at PN1925
116 Ibid at PN1935
117 Ibid at PN1936
118 Ibid at PN1942
119 [2011] FWA 2890
120 [1998] FCA 1470
121 [2013] FWC 3726
122 [2014] FWC 3287
123 [1995] IRCA 333 at [10]
124 [2011] FWAFB 1166
125 Ibid at para [24]
126 Ibid at para [18]-[19]
127 PR963023 [2005] AIRC 830
128 Ibid at [34]
129 Exhibit 5 at annexure JH-26
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