Mr Scott Osborne v Anglo Coal (Callide Management) Pty Ltd
[2014] FWC 4691
•15 JULY 2014
[2014] FWC 4691 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Osborne
v
Anglo Coal (Callide Management) Pty Ltd
(U2013/12381)
DEPUTY PRESIDENT ASBURY | BRISBANE, 15 JULY 2014 |
Application for unfair dismissal remedy - Arbitration - Allegation of dishonesty in investigation of safety incident - two equally probable explanations for incident - Inadequacies in investigation - Dishonesty not established - Order that dismissed employee be reappointed to previous position - Order that period of continuous service maintained - No order for payment of lost remuneration.
BACKGROUND
[1] Mr Scott Osborne applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Anglo Coal (Callide Management) Pty Ltd. Mr Osborne worked for a training company at Callide Mine from 5 September 2004 and was employed by Anglo Coal on 2 October 2006 as an Operator. Mr Osborne was dismissed on 23 July 2013 on the ground of misconduct, specifically dishonesty during an investigation into a safety incident.
[2] The background to Mr Osborne’s dismissal can be briefly stated. On 6 July 2013, Mr Osborne was working night shift. He was working with Mr Richard Munns and Mr Neal Delroy and the three employees were taking it in turns to operate different machinery. A lighting plant was located in the area where they were working to provide a source of light. The lighting plant was an Allight skid set numbered LP 5563 comprising six lights on a boom. The boom is at least 6 metres in length. The lighting plant can rotate 180 degrees on the main mast and the head of the boom can swivel. The lighting plant is moved by being towed by a dozer or other vehicle.
[3] At or around 1.00 am Mr Osborne attempted to move the lighting plant and during that attempt, the boom of the lighting plant fell and hit the ground. It is not in dispute that the boom fell because the main pivot pin for the boom failed. Mr Osborne maintains that when the boom fell, he was at the control panel of the lighting plant shutting it down in preparation to move it. Mr Osborne conceded that he made several mistakes in the sequence of steps he took preparing to move the boom. However, Mr Osborne denied that he had towed or otherwise moved the boom using the dozer and maintained that it had been parked behind the lighting plant at all times.
[4] Anglo Coal investigated three possible hypotheses for the failure of the pin: material defect; Mr Osborne’s version of events including the errors he made in operating the boom; and that the plant had been transported with the mast in an upright position causing stress on the pin and resulting in the pin shearing. Material defect with respect to the pin has been eliminated and it is not in dispute that this did not cause the pin to fail.
[5] Following an investigation, Anglo Coal determined that the pin could not have failed because of the operation of the boom described by Mr Osborne. Further, Anglo Coal decided that contrary to Mr Osborne’s version of events, he had moved the lighting plant by towing it with a dozer while the boom was extended, causing the pin to shear and the boom to fall. Anglo Coal also decided that Mr Osborne was dishonest during the investigation. Mr Osborne was dismissed on the basis that Anglo Coal believed that his dishonesty had destroyed the relationship of trust and confidence between the Company and Mr Osborne.
[6] There are a number of matters that are not in dispute. Mr Osborne’s application was made on 9 August 2013, within the time required in s.394 (2) of the Act. Mr Osborne is a person protected from unfair dismissal as defined in s.382 of the Act. Anglo Coal is not a small business and the dismissal was not a redundancy. The application was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties.
[7] It is not in dispute that he process which was followed in effecting Mr Osborne’s dismissal complied with criteria in s.397 (b) to (g) of the Act insofar as Mr Osborne was notified of the reason for his dismissal; given an opportunity to respond to the reason; and allowed to have a support person present to assist at discussions relating to the dismissal. Given that Mr Osborne was dismissed for misconduct, the question of warnings is not relevant. Anglo Coal is a large employer with dedicated human resource management specialists and these matters did not impact on the procedures followed in effecting the dismissal.
[8] The issue in dispute is whether there was a valid reason for the dismissal consistent with the criteria in s.397(a) and whether the dismissal was harsh, unjust or unreasonable on the ground that there was not a valid reason for the dismissal or because of other matters as provided in s.397(g) of the Act.
[9] Evidence in support of the application was given by Mr Osborne on his own behalf and by Mr Munns and Mr Delroy. Evidence was given on behalf of Anglo Coal by Mine Manager Mr Tony Power and Field Maintenance Superintendent Mr Edward Cleary. Anglo Coal and the CFMEU respectively commissioned reports from consulting engineers, who gave evidence in this case. Mr Roger Kahler, Principal Engineering Consultant with Intersafe, gave evidence on behalf of Mr Osborne. Mr Leonard McInnes, Senior Consultant Engineer with UQ Materials Performance, gave evidence on behalf of Anglo Coal.
APPROACH TO DETERMINING VALIDITY OF REASON FOR DISMISSAL
[10] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 1 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts2, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.3 In determining whether a reason is valid:
“It is not the [Commission’s] function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the [Commission] but rather it is for the [Commission] to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 4
[11] In a case involving dismissal on the grounds of misconduct, the Commission must determine for itself whether the misconduct occurred and what it involved. In Edwards v Giudice 5the Full Court of the Federal Court considered a similar provision to that now found in s.387(a) of the Act. Analysing the effect of such a provision Justice Moore said:
“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on the conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by [the section] whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.
The reason would be valid because the conduct occurred and justified the termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason.” 6
[12] An employee who is involved in a significant safety incident and who is dishonest in relation to the investigation of that incident, will generally be found to have engaged in serious misconduct. The term “serious misconduct” is defined in s.12 of the Act and Regulation 1.07 as follows:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
[13] There is a distinction in the provisions of the Act between “serious misconduct” and “misconduct”. The former term is defined and the latter is not. In general terms, misconduct is wrongful conduct. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 7 Serious misconduct is sufficiently serious to warrant non-continuation of the contract of employment8 or conduct that indicates that the employee has wilfully or deliberately disregarded the essential conditions of the contract.9 More than mere misconduct is required.
[14] In the present case, Mr Osborne is a mine worker who has considerable experience in the industry. The incident which led to his dismissal was a high potential incident and reportable under the legislative regime which governs the important issue of safety at mine sits. Mr Osborne states that he had no reason to be dishonest in relation to the incident. It is also the case that Mr Osborne has put his honesty in issue by maintaining his version of events in the investigation of the incident and in his evidence to the Commission.
[15] If Mr Osborne is found to have been dishonest in connection with the incident and the investigation, it follows that he will also be found to have engaged in serious misconduct on the grounds that it is wilful or deliberate behaviour that is inconsistent with the continuation of his contract of employment and/or conduct that caused serious and imminent risk to himself and others.
[16] The strength of the evidence necessary to establish a fact upon which serious misconduct is grounded may vary according to the nature of what it is sought to prove, although the standard of proof does not. 10 A finding that a party in civil proceedings has engaged in fraudulent or criminal conduct should not be lightly made, and there is a need for clear and cogent proof. 11In the present case, Anglo Coal alleges that Mr Osborne was dishonest, and in my view, given the safety regime in the coal mining industry; Mr Osborne’s experience as an operator; combined with the seriousness of the incident, and the consequences to Mr Osborne’s career, this allegation is sufficiently serious so that clear and cogent proof is required to substantiate it.
[17] Leaving aside the question of whether Mr Osborne or Anglo Coal bears the onus of establishing that he did or did not engage in the alleged misconduct, this is a case where Mr Osborne has put the question of whether the conduct on which Anglo relies occurred, in issue. Thus the question is whether, on the balance of probabilities, Mr Osborne broke the boom while towing the lighting plant with the boom in vertical position and was dishonest with respect to his version of events in the subsequent investigation. It follows that If Mr Osborne was dishonest in the investigation, he was also dishonest in his evidence to the Commission. For the reasons set out above, such a finding should not be lightly made and requires clear and cogent proof.
[18] Whether there is a valid reason for a dismissal is a matter of some significance in the context of the criteria in s.387 of the Act. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 12
THE INCIDENT
[19] The incident occurred at around 1.00 am on 6 July 2014 during night shift. Mr Osborne, Mr Munns and Mr Delroy were working together and stated that they were taking turns operating different machinery. At the time of the incident Mr Osborne was operating a dozer, Mr Munns was driving a truck and Mr Delroy was operating a digger. When the three employees commenced work and during the shift, the lighting plant was required to be moved several times in order to face the area where they were digging. It is the responsibility of the bulldozer driver to move the lighting plant. Mr Delroy undertook this task at around 8.30-9.00 pm while he was operating the dozer.
[20] At approximately 1.00 am, Mr Osborne had a conversation over the UHF with Mr Delroy about the need to move the lighting plant as they were digging away from it and the plant needed to be dragged closer to be effective. Mr Osborne said that he parked the bulldozer up behind the lighting plant approximately 2-3 metres away, and walked over to the control panel of the plant to shut it down and prepare it to be moved.
[21] The sequence needed to be performed to lower the boom on the lighting plant is to rotate it until it lines up with the cradle, scope the boom downwards and lower it into the cradle. Mr Osborne said that it was late at night and he made a few errors in lowering the boom as he was watching it rather than the buttons he was pushing on the control panel. While the boom was fully extended – or extended to a length of more than six metres – Mr Osborne hit the wrong button and started to scope the boom down approximately one foot before realising his mistake and stopping.
[22] Mr Osborne left the boom slightly retracted and started again, but hit the wrong button and started to lower the boom. It lowered a few degrees from its 90 degree vertical position before Mr Osborne again stopped, realising his error. Mr Osborne left the boom on an angle and started to rotate it into the position to lower it into the cradle. The boom needed to be rotated clockwise, but Mr Osborne accidentally rotated it in anti-clockwise direction. Mr Osborne attempted to stop the boom rotating but as he did so, it hit a stopper - which prevents it from rotating 360 degrees – “reasonably hard”.
[23] After hitting the stopper, the boom swung back up to being completely vertical and started to shake quite violently before starting to fall to the ground. Mr Osborne ran to the dozer for safety. The boom hit the ground and the lights at the top of the boom smashed. Mr Osborne said that he went back to the control panel and started scoping the boom in further. Mr Osborne did not know why he did this as the scene was now an incident and should have been left for an investigation to take place, but said that he was panicking about what had just happened and was not thinking properly. The boom retracted a few metres before Mr Osborne stopped, went back to the cab and called for the supervisor and open cut examiner to attend the scene.
[24] Mr Delroy said that when he was lowering and raising the boom to move it earlier in the shift, he noted that the boom appeared to be moving more than usual, and that in his experience, this means that the pins have started to wear. At around 1.30 am while filling his digger, Mr Delroy saw Mr Osborne get off the dozer and walk towards the lighting plant. The dozer was parked several metres behind the plant and off to the side.
[25] According to Mr Delroy, from where the dozer was parked, it was not in a position to be hooked up to the lighting plant to tow it. Mr Delroy also remembered that at this time the truck operated by Mr Munns had left to dump shale that he had just loaded. Mr Delroy swung the digger around to the high wall and after a few minutes had finished cleaning it and swung the digger around to the pit, ready for the truck to return. When he swung the digger around, Mr Delroy saw Mr Osborne on the ground next to the lighting plant. The lighting plant was no longer working and the boom was on the ground. Mr Delroy also said that the dozer was still in the same position.
[26] Mr Delroy parked up the digger and went to see if Mr Osborne was ok. When Mr Delroy asked what had happened, Mr Osborne stated that the boom broke when it hit the stopper. Mr Delroy said that he has seen booms hit the stopper before and in his experience the boom can move about significantly. In his oral evidence Mr Delroy said that the digger he was operating was stationary and slewing so that it was facing the light and then swinging back to the high wall and that once the truck had left he swung around to clean the high wall. The truck was not going very far to dump and did not take long.
[27] Mr Munns said that as he was driving the truck, it was his job to take the shale from the digger Mr Delroy was operating out of the area where the group was digging and to dump the load at another area approximately 150 – 200 metres away. This required Mr Munns to drive in a loop like pattern back and forth from the digger to the dump site. This pattern of driving from the digger to the dump site and back took approximately 5 minutes.
[28] Mr Munns could not recall the specific time, but said that he was returning from dumping a load when he noted that the lighting plant was not working and the mast was on the ground. The dozer was parked behind the lighting plant with the blades on the dozer facing the lighting plant. Mr Munns said that he saw Mr Osborne on the dozer only a few minutes before and the dozer was parked in the same spot facing the lighting plant.
[29] Mr Munns also said that it is his understanding that Mr Osborne was dismissed because Anglo believe that the lighting plant broke because he was moving it with the dozer without lowering the boom. In relation to this allegations, Mr Munns said:
“In my experience as an operator, I do not believe that it was possible for Scott or any other operator to drive the dozer from where I saw it parked, to the lighting plant, get out of the dozer, attach the chains from the plant onto the dozer, get back into the dozer, move the plant 4-5 metres, get back out of the dozer, detach the chains, get back into the dozer and drive the dozer back to where it was originally parked in the time period between when I left to dump the load and came back on my return loop.” 13
[30] Under cross-examination, Mr Munns maintained that a round trip between the digger and the dump area took approximately five minutes. Mr Munns and Mr Delroy both indicated that when they saw the dozer parked it was located behind the lighting plant away from the end where the mast was and where Anglo Coal alleges the lighting plant was pulled from.
THE INVESTIGATION
[31] Mr Osborne said that they stopped work after the incident and waited for the Supervisor and Open Cut Examiner to arrive. When they arrived photographs were taken of the scene. Mr Osborne went to the office and underwent a drug and alcohol test and provided a statement about what had happened. Mr Delroy and Mr Munns also provided statements.
[32] Mr Osborne said that after providing statements about the incident, they went back to work with a new lighting plant and finished the shift. Mr Osborne worked two more shifts on his rotation and the incident was not mentioned during those shifts.
[33] The statements taken from Mr Osborne, Mr Delroy and Mr Munns after the incident were appended to the witness statement of Mr Power and are set out on forms entitled: Incident Reporting & Investigation Document - Interview Sheet. The sheet documenting Mr Munn’s interview has the time 1.39 am written at the top in a space designated: “Time” and the date 06/07/13 has been written on the sheet. I assume that this is the time the statement was taken. The forms relating to the interviews with Mr Delroy and Mr Osborne are not dated and do not have a time written into the relevant space.
[34] The form recording the interview with Mr Osborne indicates that he stated:
● The upper boom was on an angle of approximately 20 degrees angle to the East;
● He “sucked the scope in” approximately 1 foot (scope was not fully sticked out).
● He started to rotate the boom back to the centre when it started to flex backward and forward before it fell over.
[35] The form records that a broken pin was found on investigation and that there were no issues with the boom when lowering it, only when it fell. The following statement also is recorded on the form:
“At that time the lights were not moved without lowering scope & boom. Lights were moved early in the night before first crib at approximately 9.00 pm. Another operator had dropped all compartments before moving forward.”
[36] Mr Delroy’s statement records that he moved the lighting plant at approximately 8.50 pm. Mr Delroy also stated that the components (scope and boom) were working but “the lights kept stopping” and this occurred about three times. It is further recorded that Mr Delroy said that when he put the boom up after moving it, there was a little loose movement in the boom. Mr Delroy also stated that at approximately 1.30 am he saw Mr Osborne walking from the dozer towards the lighting plant. Mr Delroy further stated that he swung around to get a bucket of partings ready for the truck and when he swung back around with the bucket in the air, he saw the lights down on the ground.
[37] The interview form in relation to Mr Munns states that Mr Munns left the digger with a load of partings and drove down to the dump. Mr Munns saw the dozer parked up by the lighting plant as he drove past. As he returned, he asked Mr Delroy what happened to the lights and was told that Mr Delroy did not see what happened. It is recorded that Mr Munns was dumping in a pit about 100 – 120 metres away on the spoil side.
[38] A signed statement provided by an Open Cut Examiner, Mr Hallam, is also attached to Mr Power’s witness statement, and is in the following terms:
“At Approx 1.30am I was called to go to the coal pit strip 31 by an operator as he had an incident with a lighting plant.
I arrived at the scene to find a lighting plant boom lying on the ground with all the lights smashed.
I then asked the operator if anyone was hurt to his reply of no there wasn’t.
I then asked him (Scott Osborne) what happened he replied that the boom had snapped the pivot point and fell down beside where he was standing and he had to jump clear.
I then noticed the distance where lights had fell to the ground and to where they were positioned had moved.
I asked Scott why they were moved and he replied that he had tried to scope the boom back.
1-5 also attended the scene I then secured the area for the investigation.” 14
[39] Mr Power said on 7 July he was informed that the physical evidence did not support the version of events provided by Mr Osborne and was provided with a report prepared by the Maintenance Supervisor following an inspection of the scene and the damaged plant. 15 The report prepared by the Maintenance Supervisor is not signed or dated. The Maintenance Supervisor did not give evidence.
[40] The report indicates the Maintenance Supervisor went to the site at 1.00 pm on 6 July and was allowed to enter the incident scene by the Open Cut Examiner. Findings set out in the report include that where the lights have hit the ground and shattered on the ground is not where they are currently sitting. Drag marks from where the lights first contacted the ground to where they currently rest measure 3 m 30 mm. The report also states that the marks on the ground from the skids under the lighting plant caused by moving it, measure 4 m 90 mm and “at some stage” this lighting plant has moved from its incident location.
[41] The report notes that the plant was pulled up a hill and that the rigid skids would have rocked in a see-saw action from the “up hill to the flat”. It is also stated that there are no footprints in front of the boom controls but that footprints are visible around the rear of the fallen boom and around the engine control panel. This is said to indicate that once the boom has fallen, someone has walked around the fallen boom in between the boom and the lighting plant to the engine control panel. Further it is stated that there seems to be a fresh, undisturbed area with no footprints next to the boom control panel.
[42] It is noted that the breaks on the pin are clean fresh breaks with no beach marks visible from a previous crack and no rust on broken surfaces. The report states:
“As a conclusion to this evidence it looks to me that this lighting plant has been dragged along behind a wheel dozer (wheel dozer tracks around the lighting plant) with the boom still in the air (boom extension also extended approx 1m) once the boom has come to the ground it has then taken the dozer operator a bit over 2 meters to realise the boom had fallen (boom drag marks on the ground/glass is 3m away). Towing of this equipment in this position puts excess stress on the boom pivot pin causing it to shear off. The only other explanation is that the lighting plant has been towed over 3 meters after the incident has occurred to where it sits currently.”
[43] After considering this material, Mr Power said that:
“The inconsistencies between the physical evidence and Mr Osborne’s version of events was that Mr Osborne stated that the boom of the lighting plant fell to the ground when Mr Osborne was rotating the boom using the controls on the lighting plant, and that Mr Osborne had not moved the lighting plant without first lowering the boom. However:
(a) the broken pieces of light on the ground were over 3 metres away from where the top of the boom (where the lights are position on the boom) was laying on the ground, and there were drag marks from the lights between the broken glass and the top of the boom;
(b) there were drag marks from the skids of the lighting plant which were almost five metres in length, and finished directly under where the lighting plant was positioned;
(c) there were no footprints around the control panel where the controls to rotate the boom were located. There were however footprints on the ground in front of where the boom was laying, and around the engine controls; and
(d) an initial inspection of the broken pin on the lighting boom, which appeared to be the cause of the boom falling over, indicated that there were two clean breaks on the pin, and on either side of each break, the pin was bent and out of shape. The pin is the main hinge point of the boom.
This physical evidence was not consistent with the boom simply falling while it was being rotated, and suggested significant stress had been placed on the boom and the pin, such as what might occur if the lighting plant had been dragged by a vehicle without its boom being scoped and lowered.
I also considered that it is highly implausible that a movement of the boom which is in its normal range of functions - namely rotating the boom in the swivel until it hits the swivel stop - would cause the boom to collapse.” 16
[44] As a result of these inconsistencies and his concern about Mr Osborne’s version of events, Mr Power attended the site on 8 July to inspect the area. Mr Power said that he had previously directed that the lighting plant not be moved and that the area be cordoned off but did not give evidence about when this direction was given or what steps were actually taken to implement it. Mr Power also reviewed the sheared pin. Mr Power’s assessment of the site was consistent with that outlined in the maintenance report.
[45] Mr Osborne participated in a process termed “Learning From Incidents” (LFI) where a description of events was taken from each witness to confirm the timeline of the incident and process known as “People Environment Equipment Process Organisation” (PEEPO) which a s set of prompts for investigation. The complete documentation from the LFI was not in evidence. Mr Power said that during the LFI Mr Osborne stated that:
“I walked from the right hand side of the dozer to the control area of the lighting plant on the side away from the high wall. When operating the controls, I was standing on the ground and looking up at the boom.
I had lowered the boom about a foot, it was straight up. I lowered the boom about a foot to be on an angle slightly away from vertical. I wanted to swing it back in a clockwise direction, I went anticlockwise, hit the stopper and got a whip effect. The boom then came down.
I panicked and tried to switch it off and then tried to pull the scope in. I was standing in where the control box was. I got there by walking down around near the Tiger and walking in. I do not remember how long I tried to scope the boom back in.
When the boom started to come down I ran to where the Tiger was parked. It came down steady because of the ram (boom lift cylinder). It was like a tree falling and it gained momentum as it came down.
The tiger lights and the work lights on the lighting plant were still on.” 17
[46] Mr Osborne was subsequently stood down on full pay while further investigation was undertaken. Mr Power requested Mr Cleary, Maintenance Superintendent and Mr Wilkie Reliability Engineer, to calculate the force necessary to shear the pin. After undertaking those calculations (with the assistance of the lighting plant manufacturer) it was determined that the force required was significantly more than the force that would have been applied to the lighting plant according to Mr Osborne’s version of events and that 35 tonnes of force would be required to shear the pin.
THE “SHOW CAUSE” PROCESS
[47] On the basis of this information, Mr Power determined that Mr Osborne had been dishonest during the investigation, and held a further meeting with Mr Osborne and his workplace representative Mr Hibble. According to Mr Power, Mr Osborne was again asked to explain his version of events and said that it was in accordance with his original statement, but that after the boom hit the ground, he panicked and scoped the boom down. In relation to the physical evidence, Mr Osborne said that the drag marks from the skids of the lighting plant were from when it was moved earlier in the shift, and the distance between the broken glass and the light as well as drag marks from the light between these two areas, was a result of Mr Osborne scoping down the boom when it fell. According to Mr Power, this did not explain how the boom had fallen and Mr Osborne provided no explanation in relation to the force required to snap the pin and the impossibility of such force being generated from simply rotating the boom until it hit the swivel stop.
[48] The minutes of that meeting tendered by Mr Power indicate that Mr Hibble, on behalf of Mr Osborne, asked “where are the dozer marks on the opposite side of the lighting plant?” The minutes also record that when Mr Hibble suggested that dust could have covered footprints, he was informed that the LFI had established from witnesses that it was not dusty. The full LFI is not in evidence. The minutes also record that Mr Osborne stated that mining continued in the area after the incident and that this might have resulted in footprints being covered. It is also recorded that Mr Hibble asked about GPS data and was told that it had been checked and was not available for smaller distances, and that he raised the question of whether time and motion of the truck and digger would verify Mr Osborne’s version of events and again questioned the location of the wheel tracks.
[49] After considering Mr Osborne’s statement Mr Power believed that he was continuing to be dishonest, on the basis that he could not explain the force necessary to snap the pin and by maintaining that the pin snapped when it hit the swivel stop. Mr Power advised Mr Osborne that he would be required to attend a “show cause” meeting to show cause why he should not be dismissed and was given a letter stating this. Mr Osborne was later provided with a copy of photos relating to the incident and an engineering report prepared by Mr Wilkie. On 22 July, Mr Power and Ms Palmer met with Mr Osborne and Mr Hibble and Mr Osborne provided a written response to the show cause letter.
[50] In that response Mr Osborne maintained that the drag marks at the scene are there because the machine was dragged into that position when it was moved earlier in the shift. In relation to the lack of footprints on the ground in front of the boom controls, Mr Osborne’s response was that to the best of his recollection he walked to the lighting plant to switch it off and at that stage panicked and tried to retract the boom. In relation to the current condition of the pin, Mr Osborne said that it should be noted that the operator who moved the light previously had stated that that lights on the plant kept stopping and that there was loose movement in the boom. Mr Osborne acknowledged that he should not have tried to retract the scope after the light had fallen to the ground.
[51] Under cross-examination, Mr Osborne said that at the show cause meeting, he was shown wheel tracks of the dozer supposedly going from where he was towing the plant and those tracks were not in the direction that the lighting plant was going in. Mr Osborne said, in response to a question from the Commission, that the tracks were not in the direction that he would have towed the lighting plant, and that he would have towed it straight and parallel to the high wall. The tracks in the photo were going off in another direction.
[52] In his evidence, Mr Osborne said that he consistently stated in all of the meetings that the dozer had not been attached to the lighting plant and that it was parked up behind the plant. Mr Osborne also maintained that he pointed out the time frames in the evidence of Mr Munns and Mr Delroy and stated that it would have been impossible for him to attach the dozer, drag the plant along with the boom up so that it broke and then disengage the dozer and that this would have taken 15 to 20 minutes.
[53] In response to a question from the Commission, Mr Osborne said that in order to do what he as alleged to have done, he would have had to park the dozer, pull on the handbrake, go on the deck of the dozer to push a button to lower the stairs, get down, pick up the chain after putting on gloves and PPE, place the chain over the hook on the back of the dozer, fold up the lighting plant, and then reverse the procedure and go back up into the dozer, put the stairs up release the park brake and drive the dozer back to its original position.
[54] In his oral evidence Mr Power said that on the basis of his understanding about the evidence of Mr Munns and Mr Delroy, he conducted a re-enactment. The re-enactment involved parking the dozer behind the lighting plant, driving it forward, parking it, hooking up the chain, driving forward a couple of metres, pulling up again, reversing to put some slack in the chain and then disconnecting it and parking the dozer back in the original position. Mr Power said that this process took less than five minutes.
[55] Under cross-examination, Mr Power said that he did re-enactment within 17 days of the incident happening and it was undertaken by a skilled operator in daylight hours. No witnesses were asked to view the re-enactment and Mr Power did not inform anyone of the results. No notes were taken and Mr Power timed the re-enactment with his stopwatch. In response to questions about why this matter was not included in his witness statement, Mr Power said that he did not think it was necessary. Mr Power also agreed that he had undertaken the re-enactment before the show cause meeting and did not inform Mr Osborne or Mr Hibble that he had done so, notwithstanding that the issue of whether Mr Osborne could have towed the lighting plant in the relevant time frame was put in issue at that meeting.
[56] In response to the proposition that the area where the incident occurred was not segregated until late in the shift and the next day, Mr Power said that he had no reason to doubt that because he did not see that it was done and did not have specific information about when the area was segregated.
[57] In response to the proposition that Mr Osborne scoping in the boom would explain the distance between the glass and the boom, Mr Power said that there were no footprints to suggest that someone was standing in front of the controls and you could not physically reach them without standing there. Mr Power agreed that if Mr Osborne could reach the controls then this could account for the difference between where the glass landed and where the boom rested. Mr Power said that in relation to footprints it would not have mattered when the area was roped off because there were no footprints in front of the controls.
[58] Mr Power agreed that Mr Hibble asked about GPS data but said that it would show the position of the machines rather than the distance they are travelling. Mr Power also agreed that he did not look at the GPS data and that when he stated in the meeting that the data had been checked, that this was not the case. Mr Power further agreed that if there was a witness statement indicating that the lighting plant fell between certain times, then data about the movement of a truck from the pit to the dump area might have been relevant.
[59] Mr Power agreed with the proposition that because he formed the view that Mr Osborne could not have broken the pin by operating the machine in the way he claimed, the only other conclusion was that he had been towing the machine with the boom extended. Further, Mr Power agreed that he did not look for anything else. Mr Power further agreed that he had not considered the hypothesis put forward by Mr Kahler.
[60] Mr Power also agreed that if it was found in these proceedings that Mr Osborne was honest, then he could probably not point to any other evidence that would impact on his ability to trust and rely on Mr Osborne.
THE ENGINEERS’ REPORTS
[61] Mr Kahler was commissioned by the CFMEU to prepare a report for these proceedings. Mr Kahler’s qualifications are as follows:
● Bachelor of Mechanical Engineering (B.E. Mech. Hons.)
● Registered Professional Engineer, Queensland (R.P.E.Q.)
● Registered Rehabilitation Co-ordinator (WorkCover Queensland)
● Member of the International Society for Fall Protection
● Member of the Safety Institute of Australia (SIA)
● Member of the Human Factors & Ergonomics Society of Australia (MESA).
[62] Mr Kahler’s initial Report dated 26 March 2014 considered four hypotheses as possible explanations for the incident on 6 July 2013:
1. A material defect of some kind in the pin;
2. An abrupt stop in the rotation of the mast occurring when it reached its end-stop, causing the inertia of the mast to set up excessive sheer stresses in the pin;
3. Transporting the machine mast in the upright position causing swaying of the mast and excessive stresses of the pin; and
4. The hydraulic cylinder delivering enough force to shear the pin.
[63] Mr Kahler’s report concludes that hypothesis 1 is impossible. He also considers that there is evidence and observations that are both supporting and rejecting of hypothesis 2 but concludes that it is impossible because the calculated stresses are significantly less than required to shear the pin.
[64] In relation to the third hypothesis, Mr Kahler notes that this was proposed by the original investigators but was not tested by listing supporting/rejecting observations. The drag marks visible at the scene of the incident made by both the lighting head and the chassis of the machine which are of different length are said to support the hypothesis. It is further noted that Mr Osborne states that he attempted to scope in the lighting head once the boom had fallen, but that no physical testing was completed at the time of the investigation to determine whether this was possible, notwithstanding that this information is potentially rejecting of the hypothesis.
[65] Mr Kahler identifies the following further supporting and rejecting information in relation to hypothesis 3:
● Dozer tracks visible under the lighting plant were considered by investigators to be supporting but one would expect tracks at the front of the lighting tower, and there is no record of whether observations were made or not made of tracks near the front of the machine;
● The fact that the hydraulic ram is fully extended could be supportive of the hypothesis but could be supportive of others;
● Reference to footprints being present in front of the engine control panel and absent in front of the boom control panel was made but the absence of foot prints does not preclude a person having walked in the area unless there is some record of the hardness of the ground.
[66] Mr Kahler also outlines tests undertaken by Mr Colin Wolf of Gold Creek Engineers, where stress on the lighting plant was calculated under various scenarios, and it was concluded that towing the machine with the lights elevated could, under certain situations, potentially fail the pin. The situation would have to be very significant such as the lighting plant going over a significant contour and being jerked by the towing vehicle at the same time.
[67] In relation to this hypothesis, Mr Kahler points to the following rejecting observations. There are no wheel tracks of the dozer recorded at the front of the machine. The observations of the digger operator (Mr Delroy) indicate that there was simply not enough time for a person to get back onto the dozer, move the dozer into position, get off the dozer, connect it to the lighting plant and then get back on to the dozer and tow the lighting plant so as to impose a severe jolt/jar. It is also noted by Mr Kahler that given the proximity of the truck that was dumping approximately 100 metres away from the digger on the spoil side, it would be expected that the cycle time of the truck would be such that observations were made of the position of the dozer relative to the lighting plant, and no such observations were made. It is concluded that there are sufficient rejecting observations to give this hypothesis low probability.
[68] Mr Kahler said that he asked Mr Wolf to consider what other hypotheses might exist, and he proposed a fourth hypothesis - that the hydraulic cylinder might deliver enough upward force to sheer the pin. Under cross-examination Mr Kahler said that having now considered the size of other pins on the boom, those pins would have failed first, and it is sufficient to reject hypothesis four. Mr Kahler also said that he went to great lengths to obtain data relevant to this hypothesis from Allight (the manufacturer of the lighting plant) and had been unable to obtain that data.
[69] Mr Kahler provided a further statement dated 27 March 2014, attaching a Supplementary Report setting out a fifth hypothesis. Essentially this hypothesis is that the pin was already fractured from a previous event in the last 24 – 48 hours, sufficient for an absence of fretting or rusting. Such an event could have been that the pin sheared while the lighting plant was being transported with the mast in upright position. Mr Kahler said that in general terms and independent of this particular incident, failure of the pin while towing, is considered a high probability, assuming the delivery of strong and large impulsive accelerations applied to the raised light head.
[70] Mr Kahler goes on to assert in relation to hypothesis 3, that in the context of the incident involving Mr Osborne and the timeframes involved with the cycles for the digger and the truck, hypothesis 3 borders on impossibility if the observations of the incident report are correct. Mr Kahler then identifies a fifth hypothesis involving a metastable time zone where a situation is moving out of control, but is recoverable. Under this hypothesis, the pin had a previous fracture on one side from an earlier move (not necessarily the 9.00 pm move earlier that night) causing a situation where the lighting tower was metastable when in the fully raised position, but would have an appearance of stability.
[71] What is proposed is that Mr Osborne was operating in a metastable zone without being aware that this was the case. In that time zone, only a light disturbing force was required to render the situation unstable, followed by damage. Instability commences when the boom begins to fall and damage starts when the boom contacts the ground or close to. The supporting observations for this hypothesis are:
● It is consistent with Mr Osborne’s statement that he only applied low forces into the system – a characteristic of metastability;
● The incident report states that a previous operator on night shift noted a little loose movement in the boom;
● The mast when up can have its vertical weight supported by the hydraulic cylinder and a pin connection at one pair of lugs only ie. a previous pin shear could exist on only one side and the boom could be supported albeit metastably;
● Any lateral forces applied to the raised mast could be resisted by lug to lug contact/interference on the previously failed side of the pin;
● The absence of dozer tracks (noting that there were no photographs of the front of the lighting plant) is consistent with the hypothesis;
● The length of the marks from the boom lights being telescoped in as described by Mr Osborne is consistent with this hypothesis; and
● The observations of the digger driver and the cycle times likely to be involved are consistent with this hypothesis.
[72] In relation to rejecting observations, Mr Kahler points to the fact that one end of the pin was still in location post the incident and the opposite end of the pin was able to be found, but said that that there is a possibility that the end which sheared earlier would fall out but that it may stay in place.
[73] Under cross-examination, Mr Kahler was shown photographs appended to Mr Power’s statement. In response to the proposition that there were photos showing wheel tracks, Mr Kahler said that that orientation is critical. Mr Kahler also said that it is not enough to say that there are wheel tracks. Those will be in the direction of the pull and you would expect reasonable horsepower torque to be delivered to the wheels so the wheels would leave a mark consistent with the long axis of the lighting plant. Mr Kahler said that he could not see this in the photos he was shown.
[74] In relation to the time frames in the evidence of Mr Delroy and Mr Munns, Mr Kahler said that what should occur in an investigation is to fully understand the activities being performed by each witness and the times taken to perform them. In relation to the time frame Mr Kahler had this exchange with Ms Taumalolo:
“Sorry. There’s no guessing. The people’s recollection is saying approximately five minutes. Based on an approximation of five minutes, do you still have the view that hypothesis three is a low probability?---Yes, because it is still - you have to do all of these activities of get off a machine - sorry; get back on a machine when you have observed you haven’t been on it; put it in position; do the towing; recover yourself from a falling lighting plant; disconnect the machine; get back on it and reposition it, and I just would think that five minutes would be difficult to achieve but you cannot then escape the observation that there were no wheel tracks in the position. You must look at the totality of the information in deciding whether or not a proposition is going to be sustainable or not sustainable.” 18
[75] In relation to hypothesis 5, Mr Kahler said under cross-examination that there could be sufficient force to shear the pin but the boom was able to stay whole. In response to a question about whether, on the basis of hypothesis 5 that any movement would have caused the boom to fall, Mr Kahler said:
“No. It’s then lowered and now you have what I describe as a metastable situation where you only low forces to bring about the next level of failure, so with the pin fractured on one side - and it is agreed that fracture surface one occurred before fracture surface two. That’s agreed. That’s in the University of Queensland report. Then you now have a situation of what I call metastability and now what becomes important in this hypothesis is that you would go and you would measure and understand accurately the dimensions of lugs, holes in lugs, pins’ diameters. You would measure it precisely in the investigation to test the hypothesis, but on the basis of what I have before me, I consider that it is a totally sustainable hypothesis because you could have a fracture having occurred on one side and then it only requires a low disturbing force, as seems to be the way that it’s being described by Mr Osborne, to take you to failure.” 19
[76] In response to the proposition that if there was enough force to shear he pin then the only thing that could occur would be for the boom to fall at that time, Mr Kahler said:
“I disagree wholeheartedly and I will tell you why. I have investigated failures, and thousands of them, that we develop a picture in our mind and say, ‘Well, it must be this, the moment you break that,’ but this notion of something being not stable, or unstable; that is, falling - this notion metastability is a very powerful scientific concept and it’s a concept which allows you to understand why people operate in time frames where they think everything is normal, but it isn’t, and so you can have a fracture present but to the rest of the world, it appears normal, stable, but it’s not, and it only requires something to tip it over the edge.” 20
[77] In response to the proposition that the load that sheared the pin would still have been present after it sheared, Mr Kahler said that once the load has done its job, it disappears and the item of equipment is now supported on one side on one pin or on a section of the pin and two lugs and whatever interference is coming between the lugs. Mr Kahler also said that hypothesis 5 has a medium level of probability and in response to a question from the Commission said that it was in his view, more probable than not that this is what occurred.
[78] In response to the proposition that earlier in the same shift, Mr Delroy had lowered the boom, moved the lighting plant and raised the boom, Mr Kahler said that he would be capable of performing that operation if the boom was sheared on one side only. Mr Kahler also pointed to Mr Delroy’s evidence that there was a looseness in the boom and other statements about tightness in the lugs. Mr Kahler maintained that in his view, not enough observations had been undertaken.
[79] In this regard Mr Kahler said in response to a question from the Commission about what he would have expected in terms of analysis of the incident:
“The reality is in accidents, or incidents, that people’s recollections of the basic parameters of time, distance, weight and slope are notoriously erroneous, and you listen in your interviews with interest when someone says, ‘It’s 50 metres away.’ The only way you validate is you must go and measure. Measurement is the key and so if someone is saying, “My sluice cycle is this, or whatever I was doing” - you would get it described, you would understand it, you would go and video it or time it to say, ‘Yes, it’s actually three minutes 30, it’s not five minutes,’ and so all I’m saying is from my experience when I hear people give me a time, it is totally wrong to say, ‘Well, that is the time.’ That time could be lesser or it could be greater. If it’s greater, it detracts from the hypothesis. If it’s lesser, it reinforces the hypothesis, so if - - -
So if Mr Munns and Mr Delroy said, ‘I did this activity and between doing it, I saw this,’ you would expect someone would go and measure how long it took to drive a vehicle from there to there or to do what they said they were doing?---Yes, and also replicate - set the wheel dozer up and say, ‘Okay. I want you to imagine you’re walking this way. Now I want you to get up, move, relocate, connect, et cetera,’ and time that. Now you have factual observations to assist you in your decision-making, but without those factual observations, people will debate, and they will debate one way or the other, depending on their relationship to the incident. You know, for example, I have - just by way of example, I deal with incidents where people say, The forklift was doing 20K,’ and the operator will say, ‘No, it’s doing eight K,’ and you go and do all the measurements, based on the evidence you have, and it comes out to 12 K, and so what you find is the relationship to the incident can affect the perspective. I’m talking about these are general learnings that you transfer into your situation and it’s about a solid, a really solid, approach and very strong disciplines in data collection. If you don’t have the data, it becomes supposition based upon my best guess over your best guess. Can I just express a view here?
Sure?---I just don’t think this investigation has been - this incident has been investigated well. I mean, companies send me reports regularly of serious incidents and say, ‘Read this report and give us feedback as to the quality of what we’ve done.’ I have read this and my view of the quality and the discipline and the thinking and the data collection I think is low. That’s my professional opinion on this, and I’m not trying to, you know, do this from the basis that, you know, the CFMEU rang me or, you know, Anglo rang me. I just do it without fear or favour of any person. I just do not think this investigation has been done for something that potentially, under the way that young man describes it, could have killed him. It should have been treated with the diligence of a fatality and it wasn’t.” 21
[80] When invited to resume her cross-examination of Mr Kahler in light of his response to the question from the Commission, Ms Taumalolo declined to ask any further questions.
[81] Mr McInnes gave evidence on behalf of Anglo Coal. His qualifications are:
● B.E. (Hons) (UQ) 2004 (Materials Engineering with minor in Mechanical Engineering)
● CPEng (Chartered Professional Engineer)
● M.I.E.Aust (Member of Institution of Engineers Australia), #2268422
● NPER (National Professional Engineers Register)
[82] Mr McInnes’ evidence related to a report commissioned by Anglo Coal from UQ Materials Performance. Contact was made with UQMP on 17 July 2013 and the organisation was asked to investigate whether the failure of the pin was due to:
● A material defect of some kind;
● An abrupt stop in the rotation of the mast when it reached the stopper causing swaying of the mast and excessive sheer on the pin;
● Transporting the machine with the mast in upright position causing swaying of the mast and excessive sheer stresses in the pin.
[83] The UQMP Report issued on 12 September 2013, essentially concluded that there was no material defect in the pin and that the rotation of the mast as a result of the actions described by Mr Osborne could not generate sufficient force for this scenario to be a plausible cause of the pin breaking. It was concluded that movement of the tower base when the mast was fully extended would result in high stress to the mast, particularly the pin and that given the other scenarios had been discounted, was the likely cause of the pin failure. It was also concluded that this scenario is plausible and consistent with the location of the lights on the ground and the drag marks.
[84] For the purposes of these proceedings, Mr McInnes considered the witness statements provided by Mr Osborne, Mr Delroy and Mr Munns and provided evidence about whether the information contained in those statements changed the conclusions expressed in the UQMP Report. After considering Mr Osborne’s statement in relation to variables such as the telescopic position and angle of the boom, Mr McInnes concluded that the load is 12 times lower than required to shear the pin and that by increasing the severity of the conditions to the limit of what would be consistent with Mr Osborne’s description and physical observations, the load is a factor of 4.4 times lower than what is required to shear the pin. Therefore, the new information did not alter the findings as expressed in the UQMP Report.
[85] In his oral evidence to the Commission, Mr McInnes said that in mechanically assessing the situation that Mr Osborne recorded in his statement, he could not find enough energy or enough force in the sequence of events to shear the pin. In relation to the hypotheses of Mr Kahler that the hydraulic cylinder in lighting tower could deliver enough force to shear the pin, Mr McInnes said that while this seemed to be plausible initially, this hypothesis had to be discounted because other smaller pins that attach the hydraulic cylinder to the mast did not shear, and would have done so first if this was the cause of the boom falling.
[86] In relation to the hypothesis proposed by Mr Kahler that the pin sheared while the mast was being towed in upright position, and then remained in a metastable state until it fell during normal operational activities undertaken by Mr Osborne (hypothesis 5), Mr McInnes said:
“To tow the tower with the boom in the upright position and provide a large force - because it does require quite a large force. The pin is 30 millimetres in diameter and steel is a strong material. It takes quite a large force. So then by dragging it quite vigorously, or moving it while the boom is in the upright position and applying sufficient force to shear the pin, there is a large force applied laterally to that mast. I can’t see how you could shear one side of the pin and then have the pin stay up there, to have the mast stay vertical, because once one side of the pin shears, one of the reaction forces is removed and it’s those reaction forces that are keeping the whole situation stable. Once one of those reaction forces is removed by shearing one side, the force that’s pushing the mast laterally will continue to move the mast, that it’s no longer being restrained or resisted by the pin as effectively as it was when both sides were attached.” 22
[87] In response to the proposition that hypothesis 5 as put forward by Mr Kahler is impossible, Mr Kahler said:
“... in a situation where the plant was moved sufficiently vigorously with the mast in the vertical position to shear the pin, it would come down at that time, in that same instance.” 23
[88] Mr McInnes then had the following exchange with Ms Taumalolo on behalf of Anglo Coal:
“Let’s assume that it could operate in a metastable position?---Yes.
The evidence is that prior to Mr Osborne operating the plant, another operator, Mr Delroy, had lowered the mast and then raised it again for it to be used. Assuming that it was in that metastable position, would your view be that as soon as someone looked to operate it in that manner, it would fall at that point? I mean, it’s sort of step 3 almost of - - -?---Yes. If you could get the boom to stay vertical with one side of the pin already sheared, it would take a very small force to tip it over. It would be like balancing a pole on your hand and once you move in the wrong direction slightly, it starts to fall and away it goes, so if you could get it to balance up there with one side of the pin already sheared, yes, a small force or change in conditions - so starting to try and pack up and lower the boom or rotate the boom would probably bring it down.
Accepting that in any event, your view is as soon as that significant force was applied to shear the pin, the boom would come down?---Yes, because the force that would be required to shear the pin will be much greater than any of the small forces that I think would bring it down if it was in that metastable condition of balancing on one side of the pin.
So where does that leave us? Essentially there has been a range of hypotheses put out there but by a process of elimination, the only hypothesis left standing in your view is that Mr Osborne towed the plant in the upright position and that is the only operation that could have created sufficient force to shear the pin and cause the boom to fall?---Effectively yes, in that the only way I could see that it could have come down is if somebody towed it with the plant - with the mast vertical and that it would have come down at the time when the pin sheared.” 24
[89] Under cross-examination, Mr McInnes said that Anglo Coal had focused attention on the operator’s version of events and he had added in the proposition that the lighting plant was towed with the boom upright, as this was the only way that he could conclude that enough load would have been applied to shear the pin. Mr McInnes also said that he had struggled to find a situation where enough force could be generated to sheer the pin, and that fitted in with all three statements. In response to the proposition that the evidence of Mr Delroy is that it would have been impossible for Mr Osborne to have performed the tasks associated with hooking up the dozer and towing the lighting plant in the available window of time, Mr McInnes said that in relation to generating the force necessary, it was not a matter of distance, but a matter of shock and violence of application.
[90] Further, Mr McInnes said that given the time frames reported by Mr Osborne, Mr Delroy and Mr Munns, he could see how Mr Kahler could form the view that the towing hypothesis would be extremely difficult and near impossible to sustain. In relation to the proposition that Mr Osborne had stated that the tyre tracks from the dozer did not coincide with towing the lighting plant, Mr McInnes said that he had not had a chance to examine the tyre tracks himself, and the photographs that he saw were pretty limited.
[91] In response to a question from the Commission, Mr McInnes said that he would not expect to see a particularly deep tyre track and that the momentum to shear the pin could be achieved by the dozer moving about at its normal rate. Mr McInnes said that no more force is required to tow the lighting plant if the boom is up and the effect is to put more force on the pin rather than to cause more force to be needed to tow the machine.
[92] In re-examination, Mr McInnes was shown a photograph of the location and said that he could not say that tyre tracks near the front of the plant were from the plant being moved in this incident. Mr McInnes did say that if those tyre tracks were made from the incident, he would not expect them to look much different. Mr McInnes could not determine from the photograph which direction the dozer was moving in and said that he would have had a better chance of drawing conclusions about such matters if there were better photographs from different angles or more description around the site.
[93] Later in re-examination Mr McInnes said in response to a question about why he thought hypothesis 5 proposed by Mr Kahler was less likely than his hypothesis:
“So the reason is - and I spoke a little about this at the beginning when I was first called, and that is that in summary, I could try and describe hypothesis five as there being an incident, a towing incident, where the mast was in the vertical position and the towing incident provided enough force to shear one side of the pin but then the mast stayed vertical until such time as Mr Osborne or somebody else moved it to try and close the mast down ready for transport, and those small - the forces, the small forces, provided during moving the mast have been enough to tip it over. The problem I have with that is that to provide sufficient force to shear one side of the pin with the mast vertical in a towing operation, that force would almost certainly bring the mast down as well, the reason being that it’s two sides of that pin that provides the stability for the mast. Once one is sheared, it becomes unstable, or semi stable. However, the force required to shear the one side of the pin is large and that force is still applied even once that pin is sheared, and that force continues to push the tower down. For example, if I was to lean against the wall and put all of my weight on it and stand on one foot, if the wall all of a sudden disappeared and that stability was removed, I would start falling, unless I put another foot out to resist that force, so once the pin has sheared even on one side, the force pushing the tower down, the mast down, will certainly bring it down at that time, so I can’t imagine how you could shear one side of the pin yet have the mast still up there seemingly intact.” 25
CONCLUSIONS
[94] The incident which lead to Mr Osborne’s dismissal was a serious one with a high potential for injury and a possibility that Mr Osborne or someone else in the area could have been killed. Dishonesty in relation to such a matter is a serious allegation and a finding in this regard could have significant consequences for Mr Osborne’s career. A serious allegation requires that there is clear and cogent proof.
[95] To find that there was a valid reason for Mr Osborne’s dismissal, I am required to be satisfied, on the balance of probabilities, that he towed the lighting tower with the boom in a vertical position, and then lied about this in the subsequent investigation of the incident. After carefully considering all of the evidence, I am unable to be satisfied this is what occurred. I have reached this conclusion for the following reasons.
[96] I am faced with two equally probable (or equally improbable) views from Mr Kahler and Mr McInnes about how and why the incident occurred. I was urged in the submission on behalf of Anglo Coal to conclude that Mr Kahler’s evidence was not credible on the basis that he was an argumentative witness who sought to blur the lines between technical evidence based on the laws of physics and situational evidence such as the recollections of the witnesses. I decline to draw such a conclusion. Mr McInnes and Mr Kahler are both eminently qualified persons with strong views about their respective positions in relation to the cause of the incident that lead to Mr Osborne’s dismissal. I can see no reason why the approach taken by Mr McInnes is any more sound than the approach taken by Mr Kahler.
[97] Mr McInnes was given three possible hypotheses for the incident by Anglo Coal and asked to determine the probable cause of the pin shearing. Mr Kahler was asked by the CFMEU on behalf of Mr Osborne, to examine whether there was another alternative. Both approached the task in a comprehensive manner. Both considered the statements of Mr Osborne, Mr Delroy and Mr Munns. That Mr Kahler attempted to rationalise those statements with the scientific evidence is not a basis for rejecting his view.
[98] I do not accept that Mr Kahler gave inconsistent evidence because he rejected and then adopted hypothesis 3. Mr Kahler’s evidence was that the towing of the boom in accordance with hypothesis 3 could not have occurred at the time the boom fell, on the basis of the observations and evidence of Mr Delroy and Mr Munns. Mr Kahler did not rule that the lighting plant was towed at an earlier time in a way that caused one side of the pin to shear.
[99] Mr McInnes and Mr Kahler concur about a number of important matters. Both agreed that the pin was not faulty and did not shear because it was corroded, rusted or otherwise worn. Further, it is implicit that both Mr Kahler and Mr McInnes were of the view that the series of actions taken by Mr Osborne as described in his version of the events that immediately preceded the boom falling, could not, of themselves, have generated sufficient force to cause the pin to shear.
[100] It is also apparent that both Mr Kahler and Mr McInnes were of the view that considerable force had to have been applied to the boom to cause the pin to shear. Mr Kahler described the type of force as the delivery of strong and large impulsive acceleration and Mr McInnes as a large force involving violence of application. The essential issue in dispute between Mr Kahler and Mr McInnes is the point at which that force was delivered to the boom causing the pin to shear and the time that it would have taken for the boom to fall after the pin sheared.
[101] After considering all of the evidence, I am not satisfied on the balance of probabilities that Mr Osborne towed the lighting plant with the boom in a vertical position and thereby caused the pin to shear. There is insufficient evidence upon which I could reasonably be satisfied that Mr Osborne towed the lighting plant at all.
[102] In this regard, I do not accept that the investigation of the incident conducted by Anglo Coal was sufficiently rigorous when the seriousness of the incident is considered. I accept that employers are not to be expected to conduct forensic investigations of incidents that could lead to dismissal such as those conducted by police in connection with criminal investigations. I also accept that some of the criticisms levelled at the investigation in this case are in relation to matters such as footprints and wheel tracks which are generally the province of police investigations.
[103] However the employer in this case operates a Coal Mine and is subject to stringent safety legislation in relation to the reporting of incidents. The incident in this case was required to be reported under that legislative regime. It is also the case that Mr Osborne was dismissed for dishonesty in connection with the incident. A significant part of the basis for the conclusion that Mr Osborne was dishonest, involved physical evidence such as tyre tracks and foot prints at the site. In such circumstances a more rigorous investigation could and should have been conducted.
[104] There is insufficient direct evidence about when the scene of the incident was secured and the manner in which this was effected, for me to be satisfied that the integrity of the physical evidence relied on by Anglo Coal was maintained. There is a statement from the Open Cut Examiner Mr Hallam that the site was secured, but no information about how this was done. Mr Power’s evidence did not make this clear and was simply that at some unspecified time after the incident, he directed that the site be cordoned off and the lighting plant not be moved. Mr Power did not know that this had actually happened or when it happened.
[105] Mr Osborne said that after providing statements at or around 1.30 am on 6 July, he went back to work along with Mr Delroy and Mr Munns and that they continued mining in the same area with a different lighting plant. The evidence about the wheel tracks that were observed at the scene is far from clear. There is no contemporaneous report or statement about exactly what wheel tracks were observed immediately after the incident, or the direction they went in. The same point can be made in relation to the presence or absence of footprints. The first detailed documented examination of the site seems to have been undertaken at 1.00 pm on 6 July, some 12 hours after the incident occurred. The person making the report states that he was allowed to access the area, suggesting that it was cordoned off at that point, but no further clarification is provided about when the area was secured and what steps were taken in this regard.
[106] In relation to the presence or absence of footprints, there is no evidence about the hardness of the ground or whether there was dust or wind that could have obscured any footprints. While I accept that there are various documents that may have dealt with such issues, such as those relating to the LFI process, these were either not in evidence or were not sufficiently detailed to enable any conclusions to be drawn about wheel tracks or footprints.
[107] I am also of the view that the investigation of the incident did not deal adequately with the observations of Mr Delroy and Mr Munns. Both of these employees were in the vicinity of the incident when it occurred and said that the dozer alleged to have been used to tow the lighting plant was in the same place - behind the plant - both before and after they observed that the boom was on the ground. Both observed Mr Osborne on the ground before and after the incident. Both said that Mr Osborne could not possibly have undertaken the sequence of actions necessary to have towed the lighting plant, in the time frame in which they observed him and saw the boom on the ground.
[108] Their evidence could easily have been tested during any reasonable investigation. Both were undertaking work in a cycle – respectively swinging a digger to the highwall and back and driving a truck to a particular location and back. The truck driven by Mr Munns was fitted with GPS. Notwithstanding this there was no examination of data from the GPS system in the truck. Further, there was no attempt to time the activities that Mr Munns and Mr Delroy were carrying out at the point the incident occurred.
[109] Critically, there was no proper re-enactment of Mr Osborne’s version of events. Although Mr Power states that he did such a re-enactment before Mr Osborne was dismissed, and I have no reason to doubt that this was the case, in my view this should have been done in the presence of Mr Osborne and his representative so that he had an opportunity to comment on the accuracy of the re-enactment. It is significant that the incident involving Mr Osborne occurred at night and the re-enactment was undertaken during the day. It is unclear whether the re-enactment took into account that on the version of events advanced by Anglo Coal, a 6 metre boom fell to the ground, in the middle of all of the activities that Mr Osborne allegedly undertook in towing it. In particular it is not clear whether any allowance was made in the timing of the re-enactment for the reaction that Mr Osborne would probably have had if the boom fell while he was towing the plant as alleged.
[110] It is also the case that notwithstanding that Mr Delroy was the last person to move the lighting plant, there does not appear to have been any discussion with him about whether when he observed that the boom had fallen, the lighting plant was still in the position that he put it in when he moved it at 9.00pm. At very least, a proper investigation would have obtained a detailed statement from Mr Delroy about moving the lighting plant and where he left the lighting plant on the occasion that he moved it. There does not appear to have any such statement taken. A proper investigation would also have considered what movements occurred with respect to the lighting plant on that shift, at very least, this is particularly so given that Mr Delroy had stated that the lights stopped and the boom was loose when he moved the lighting plant.
[111] I have no reason to doubt the honesty of Mr Delroy or Mr Munns and I accept their evidence. I am therefore left with a situation where I am unable to be reasonably satisfied that Mr Osborne towed the lighting plant with the mast in vertical position. From the position that Mr Osborne was in prior to the incident when he was observed by Mr Delroy and Mr Munns, he would have had to get onto the dozer; move it to the front of the lighting plant; park it in position; get off the dozer; pick up the chain on the lighting plant and hook it onto the dozer; climb back on to the dozer; tow the lighting plant; get off the dozer; disconnect the lighting plant; get back on the dozer and move it back into position behind the lighting plant; before getting off the dozer again so that he was on the ground when approached by Mr Delroy after the boom fell.
[112] I am satisfied that it would have been almost impossible for Mr Osborne to have done this. I am fortified in this view by the evidence of Mr Kahler and Mr McInnes who said that the force required to tow the lighting plant so that the bolt sheared would have been considerable. While I accept that it would not have been necessary to have towed the lighting plant very far in order to exert the force necessary to shear the pin and cause the boom to fall, in my view it is even more improbable that Mr Osborne could have undertaken all of the activities necessary to tow the lighting tower and then done it with such force that he caused the pin to shear and the boom to fall to the ground, and still retain the presence of mind to disconnect the lighting plant and park the dozer behind it again. The fact that all of those activities would have been undertaken at 1.00am in the morning when it was dark enough to have necessitated the presence of lighting plant, makes it even more improbable.
[113] I accept that there are difficulties with Mr Kahler’s hypothesis about the metastability of the boom on the lighting plant. In particular, Mr McInnes’ evidence about the likelihood that the force necessary to shear the pin would almost certainly cause the boom to fall at the same time, was compelling. However, in the absence of a proper investigation, I am left with the situation where Mr Kahler’s explanation is at least equally probable.
[114] I have also considered Mr Osborne’s evidence in this case. I am unable to accept that he has been dishonest in the investigation of the incident or in his evidence to the Commission. Mr Osborne has maintained his position about what occurred from the outset. It is of concern that Mr Osborne interfered with the scene after the incident occurred, by scoping the boom. I accept that this was inexplicable conduct on his behalf. However I do not accept the implication that this was a recent invention on the part of Mr Osborne after the event, in order to justify the distance between the broken glass and the boom. The statement of the Open Cut Examiner, Mr Hallem, made at 1.39am on 6 July 2013, indicates that Mr Osborne admitted to doing this at the scene of the incident. In those circumstances this conduct does not point to dishonesty on the part of Mr Osborne.
[115] In finding that Mr Osborne’s dismissal was unfair, I note that Mr Osborne did not assist with the investigation of the incident and behaved inappropriately, by interfering with the scene and scoping the boom in the manner that he did after it had fallen. Even allowing for the fact that he had just been involved in a serious incident, Mr Osborne is an experienced operator and should have known that it was not appropriate to do this. I also note that Mr Osborne concedes that he made three mistakes in the way he dealt with the boom before it fell.
[116] However, in all of the circumstances of this case, I am satisfied that Mr Osborne’s dismissal was unfair on the grounds that it was harsh, unjust and unreasonable. The dismissal was harsh, because of its consequences for Mr Osborne’s personal and economic situation. Mr Osborne has a young family and at the point he was dismissed, Mr Osborne’s daughter was 18 months of age and his wife was pregnant with his second child. They have purchased a home at a location near to the mine and Mr Osborne planned to stay working at the mine for as long as possible.
[117] Mr Osborne has an otherwise unblemished work record. He has been unable to obtain weekly employment since his dismissal and has casual employment where he is required to work long hours to earn a sufficient wage to support his family and has lost his ability to take paid leave. Mr Osborne estimates that his wages are in the vicinity of $200 per week less than he earned while working for Anglo Coal.
[118] Mr Osborne’s dismissal was unjust because he was not dishonest and unreasonable because the material upon which Anglo Coal relied to found an allegation of dishonesty was insufficient and inadequate to justify such a serious allegation.
[119] I am satisfied that Mr Osborne was a person protected from unfair dismissal and that he was unfairly dismissed. He has made an application for a remedy for unfair dismissal under s. 394 of the Act. I am satisfied that he should have a remedy for his unfair dismissal. In the hearing of his application, Mr Osborne sought reinstatement. As a Full Bench of the Commission observed in Regional Express Holdings Limited trading as REX Airlines v Richards: 26
“Whenever an employer dismisses an employee for misconduct, assuming that the employer is acting honestly, there is an implied lack of trust and confidence in the employee. If it is found that the termination was harsh, unjust or unreasonable, it is appropriate to consider whether the employment relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of the management witnesses. All of the circumstances should be taken into account.”
[120] I accept that Mr Power had a genuine belief that Mr Osborne had been dishonest, and was acting honestly in his decision to dismiss Mr Osborne. However Mr Osborne’s dishonesty cannot be substantiated. Further, Mr Power accepts that if dishonesty on the part of Mr Osborne is not found then he can point to no other evidence that would impact on his ability to trust and rely on Mr Osborne. Mr Osborne has in excess of six years service with Anglo Coal and an otherwise unblemished employment record. In those circumstances, I am of the view that the relationship can be restored and that reinstatement is appropriate. I have also determined that an order should be made to maintain the continuity of Mr Osborne’s employment, pursuant to s.391(2).
[121] However, I am also of the view that Mr Osborne is not entirely blameless in the events that led to his dismissal. In particular, the fact that Mr Osborne moved the boom by scoping it after it had fallen, is a serious matter. In effect he interfered with the scene of a high potential incident in circumstances where he should not have done so. Mr Osborne’s evidence that he did so because he panicked, is not an entirely acceptable explanation for his conduct in this respect, particularly given his length of service and experience as an operator. At very least, Mr Osborne’s conduct in interfering with the scene of the incident is deserving of censure and could have reasonably resulted in a warning, including a final warning. It is also the case that Mr Osborne made three errors in handling the boom before it fell.
[122] For these reasons, I have determined that it would not be appropriate to exercise the discretion in s.391(3) to order Anglo Coal to pay lost remuneration to Mr Osborne between the date of his dismissal and his reinstatement. An Order giving effect to this Decision will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr C. Newman on behalf of the Applicant.
Ms R. Taumalolo on behalf of the Respondent.
Hearing details:
2014.
Biloela:
March 31;
April 1.
1 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
2 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
3 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
4 Walton v Mermaid (1996) 142 ALR 681 at 685.
5 [1999] FCA 1836.
6 Ibid at [6] – [7].
7 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.
8 Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694.
9 Laws v London Chronicle (Indicator Newspapers) Ltd
10 Brinks Australia Pty Ltd v Transport Workers’ Union of Australia: PR922612 per Giudice J, Acton SDP and Hingley C.
11 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449.
12 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
13 Exhibit 4 Statement of Richard Munns
14 Exhibit 10 Statement of Tony Power Annexure TP-3.
15 Exhibit 10 Statement of Tony Power Annexure TP-4.
16 Exhibit 10 Statement of Tony Power Paragraphs 11-13.
17 Exhibit 10 Statement of Tony Power Paragraph 15(e).
18 Transcript PN575
19 Transcript PN618
20 Transcript PN624
21 Transcript PN666 - 669
22 Transcript PN957
23 Transcript PN958
24 Transcript PN959 - 962
25 Transcript PN1048
26 [2010] FWAFB 8753.
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