Mr Shannon Boal v BHP Coal Pty Ltd

[2014] FWC 9331

[2014] FWC 9331

FAIR WORK COMMISSION

DECISION

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

Mr Shannon Boal
v
BHP Coal Pty Ltd
(U2014/5272)

COMMISSIONER SPENCER BRISBANE, 22 DECEMBER 2014

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

Introduction

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

[2] The Applicant’s mobile phone was found in the cabin of the truck he had been operating. A show cause process was commenced on this basis. The Respondent subsequently sought the phone usage records for this day. The Applicant provided these records for a longer period than the day in question. The dismissal was effected on further grounds not documented in the show cause letter, where the Respondent concluded from an analysis of these further records the phone had been used at other times during work periods. The Applicant’s representative raised procedural deficiencies with the termination process.

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

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

[5] The matter was heard before the Commission, as currently constituted, on 10 and 11 September 2014 in Mackay, on 15 September 2014 and 10 October 2014 in Brisbane after the filing of final submissions. Further written submissions were then filed by both parties. The Applicant was represented by Mr Rowan Anderson, Legal Officer of the CFMEU and the Respondent was represented by Mr Steven Smith, Partner, Ms Kristin Gamble and Mr Ben Quinn of Herbert Smith Freehills Solicitors.

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

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

Background

[8] The Applicant was 42 years of age and had been employed by the Respondent as an Operator at the Goonyella Riverside Open Cut Coal Mine (the Mine) on a full time basis since 18 December 2005. In 1994, at the end of his apprenticeship (he had completed with the Respondent), he was involved in a motor vehicle accident; as a consequence of being injured he had his leg amputated. This was mentioned, as referred to by the Applicant, as being relevant to the harshness of the decision to terminate his employment, in terms of the limitations on him in gaining further employment in the industry.

[9] In relation to the incident of 22 January 2014, the Applicant stated that during this shift he experienced the onset of headaches, as a result of strains to his neck muscles, from a prior instance of pushing away a Pit Bull Terrier dog, which had been attacking him in front of his children. Due to injuries sustained in this attack, the Applicant had been on leave during his previous ‘block’ of work and states this was his first day back at work, and he had forgotten about the new procedure. The Applicant further stated that, during the show cause period, he had experienced stress due to his personal circumstances, having recently separated from his wife and coming to terms with seeing his children on a reduced basis.

[10] The Applicant was asked to show cause for this breach of the procedure, in terms of having his phone in the truck, while operating on 22 January 2014.

[11] The Applicant’s employment was terminated for breach of the Respondent’s mobile electronic device procedure; for using his phone whilst operating equipment and thereby putting himself and other coal mine workers at risk.

[12] The Applicant’s representative was critical of the process that was followed leading to the termination. The Applicant could not recall the detail of the phone usage documents he was provided with at the final meeting and he was allowed only a short opportunity to consider and respond during the approximately 1 hour termination meeting. The Applicant also argued that the short break provided in the final meeting, in reality, was not to allow for procedural fairness but was perfunctory and was actually a break to allow for Dr Tony Briffa to get final advice for the dismissal. The Applicant’s representative further contended that the termination letter had been prepared prior to the meeting (this was conceded by the Respondent) and that the dismissal outcome had been predetermined.

[13] The Applicant argued that the case that was put to him at the termination meeting was different to that in the show cause letter (that is, breach of the procedure for having his phone in the cabin of the truck). The termination was also based on a wider analysis of the phone data provided, from which the Respondent alleged the Applicant had used his phone at work at other times apart from the initial day in question.

[14] An updated version of the Goonyella Riverside Mine Mobile Electronic Device Procedure was in place. The Applicant, in evidence, stated that the phone procedure had been a topic for discussion. He stated he was involved in discussions at the site, where it was stated that employees may be dismissed for prohibited phone usage in the pit. He acknowledged this and that the procedure was understood. However, the Applicant stated that he did not recall being provided with a copy of the new procedure or being asked to do any particular training on it. He did not acknowledge that he understood that termination was the only outcome for a breach of the procedure. Relevantly, the policy states as follows:

“...

1.0 Context

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

2.0 Scope

Mobile electronic devices include but are not limited to:

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

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

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

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

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

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

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

Coal mine workers and visitors shall comply with this procedure.

3.0 Exemptions

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

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

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

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

3.1 Conditions of use of mobile electronic devices

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

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

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

(underline added)

[15] The Respondent alleged that the Applicant used a mobile device whilst operating heavy machinery in breach of this company procedure. In doing so, the Respondent considered that the Applicant had committed misconduct.

[16] The Applicant was instructed to attend a meeting on 12 February 2014. A show cause letter in the following form was issued to the Applicant:

“22 January 2014
...

Dear Shannon

YOUR EMPLOYMENT WITH BMA GOONYELLA RIVERSIDE MINE

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

Findings

In reaching the following findings, the investigator considered all relevant information. They took into account all of the information that was collected throughout the investigation, including your verbal responses and the reports of other parties.

It was substantiated that you had a mobile telephone in truck RD07 whilst you were operating today, Wednesday, 22 January 2014.

Breaches

Your actions are considered to be in breach of the Goonyella Riverside Mine Mobile Electronic Device Procedure. In particular Section 2.0, which prohibits mobile electronic devices (as defined by the Procedure) from all areas onsite, except those areas exempted by the Procedure, without the prior written consent of the SSE or Department Manager.

As you are aware, BMA employees are required to comply with all BMA policies and procedures at all times during their employment.

Outcome - show cause

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

You are required to provide a written response and to show cause as to why your employment should not be terminated. Please provide your written response to me by no later than 4.00 p.m. on Wednesday, 29 January 2014. If you do not provide any written response by this time, I will have no alternative but to make a decision in relation to your employment based on the information presently available.

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

Direction not to attend work

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

Employee Assistance Program

Shannon, I understand that this may be a difficult time for you. I wish to again extend to you the offer of any assistance you may require regarding this matter and also remind you that the company’s Employee Assistance Program is available to you by calling [number deleted from decision].

I look forward to receiving your written response by 4.00 p.m. on Wednesday, 29 January 2014.

Yours sincerely

Tony Briffa...”

(underline added)

[17] The Applicant, in his show cause response letter to the Respondent, responded as follows:

“29 January 2014

...

Dear Tony,

I refer to your letter of 22 January 2014 in which you requested that I respond to you and 'show cause' as a result of my actions on 22 January 2014.

Allegation

It was substantiated that I had a mobile phone in truck RD07 whilst I was operating on Wednesday 22 January 2014.

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

Response to Allegation

I apologise for my actions. However, whilst I do not wish to excuse my actions, the reason that I acted in the manner I did was because I feel that I was not feeling well at the time, I was suffering from a severe headache. This together with me dealing with events prior to this rostered shift may have impaired my judgement. I had to have my previous block off work as a result of being injured in a dog attack by a pit-bull. This attack occurred in front of my two young sons.

The day of the incident was my first day back and I had completely forgotten about the new phone rule. On the day of the incident I went to get my phone at smoko to check my messages. I did not realise that I had put my phone back in my pocket until I was driving down the road. Rather than wasting time and returning to the crib room I continued on. I took the phone out of my pocket and put it in the central console of the truck to remind me to take the phone out of the truck at my next break. I maintain that I did not use the mobile phone while I was operating the truck.

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

Personal Circumstances

I have recently split up with my wife and have an arrangement where I see my two sons every second weekend. Throughout the period of the separation I have been deeply distressed and have only recently been able to come to terms with the separation.

In the event my employment is terminated I will find it difficult to find alternate employment as I have a prosthetic leg as a result of a car accident when I was younger. In addition to this I will also have to relocate to seek alternate employment. This would cause significant financial and emotional detriment to me and my family. I am currently in the process of paying off a personal debt which requires regular repayments. The termination of my employment would impact on my ability to meet these payments, and may result in me defaulting.

I have been employed with BMA at Goonyella for approximately 15 years. I enjoy working at the Goonyella mine and I wish to continue working for BMA for many years to come.

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

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

Yours Sincerely,

Shannon Boal”

[18] Whilst the Respondent’s original show cause letter to the Applicant recorded the ‘findings’ under consideration as the Applicant having had a phone in his truck whilst operating on 22 January 2014, the Applicant was issued with a letter on 4 February 2014 in the following form seeking to determine the phone usage for the day of 22 January 2014:

“4 February 2014

...

Dear Shannon,

Your employment at BMA Goonyella Riverside Mine

I refer to our meeting earlier today regarding your employment at BMA Goonyella Riverside Mine.

As discussed, I would like to provide you with a further opportunity to establish that you did not use the mobile phone whilst operating RD07 on 22 January 2014. Accordingly, I ask that you provide me with a report from your telecommunications provider which identifies your telephone's activity for the relevant period (6.15 am to 6.45 pm), including any calls sent or received, any text messages sent or received and any data traffic.

Please provide the requested information to me by no later than 4.00 p.m. on Tuesday 4 February 2014. If I do not receive any further information by this time I will have no alternative but to make a decision in relation to your employment based on the information presently available.

Direction not to attend work

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

Employee Assistance Program

Shannon, I understand that this may be a difficult time for you. I wish to again extend to you the offer of any assistance you may require regarding this matter and also remind you that the company's Employee Assistance Program is available to you by calling [number deleted from decision]

Yours Sincerely

Tony Briffa...”

(underline added)

[19] The Applicant responded to the Respondent’s letter dated 4 February 2014 in a letter dated 4 February 2014 in the following form. The Applicant voluntarily provide records for a longer period, and an explanation for the phone usage contained in this wider set of records:

“4 February 2014

...

Dear Tony,

Please find attached telephone records as requested.

I have always said that I didn’t use my phone during the shift and was surprised to see 3 Telstra internet items on my phone log. I contacted Telstra and was advised that the items at 22 January 2014 at 13.05.11 pm Telstra.internet 4218 kb was data flow over a period of 38 minutes.

Telstra advised me today on the phone that the 4218 kb of data over 38 minutes could not be identified, however it is inconsistent with web browsing or Facebook usage. Rather it was more consistent with phone application automatic updating.

Similarly the next 2 items 13.53pm - 50kb over 29 minutes, and 14.22 pm - 82 kb over 17 minutes is more consistent with phone applications working in the background.

Tony please note that item on 15 January 2014 at 09.57am - 144932 kb is more likely to be Facebook and web browsing, as is the item on 19 January 2014 at 11.14am.

In case you are not aware, the 101 items are calls into my phone that were diverted to message bank and not answered.

I trust this information meets your requirements. If not would you please let me know.

Regards,

Shannon Boal”

[20] The Applicant was issued with a termination letter on 12 February 2014 in the form as set out below. The Respondent agreed that this termination letter had been prepared prior to the final termination meeting. Prior to this meeting, Dr Briffa had Ms Brinkman, a Human Resources business partner, analyse the longer set of phone records against the Applicant’s rostered hours of work. A summary of the reconciliation between these records was presented to the Applicant at this meeting. A short break was provided. The termination letter was handed to him at the end of the meeting. It stated as follows:

“12 February 2014

...

Dear Shannon

Termination of Employment

I refer to my letter to you dated 22 January 2014 regarding your employment at BMA Goonyella Riverside Mine.

In that letter I invited you to provide me with a response by 29 January 2014 as to why your employment should not be terminated for breaching the Goonyella Riverside Mine Mobile Electronic Device Procedure. You provided me with your written response on 29 January 2014. I have now had an opportunity to consider your written response.

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

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

In accordance with the BMA Enterprise Agreement 2012, BMA will make a payment to you equivalent to 4 weeks’ pay in lieu of notice of termination of your employment. This payment will be made to you as soon as practicable.

Payment of Accrued Entitlements

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

Post-Employment Obligations

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

Return of BMA property and Separation Paperwork

Please ensure that all BMA property in your possession is returned to me before Wednesday 19 February 2014. This includes but is not limited to any tools and equipment and all BMA documents.

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

Please return theses 4 completed forms before 19 February 2014, to Emma Brinkman, Human Resources Business Partner, via fax [number deleted from decision] or email [address deleted from decision].

Your termination entitlements cannot be processed until your Separation Paperwork is returned along with any BMA property that you hold.

Please contact Peter Mclaurin [number deleted from decision] at BMA Accommodation Services in regard to your housing arrangements.

Employee Assistance Program (EAP)

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

Yours sincerely,

Tony Briffa...”

(underline added)

[21] The original Show Cause letter referred to the ‘Findings’ of the investigation under consideration, that is, having the phone in the truck. The letter of termination does not refer to reopening the investigation or the further process of analysis of the phone records that occurred after the show cause process. There is only a general reference to taking into account “relevant information obtained during the investigation, your employment history and your responses”. The particular information relied upon is not detailed.

[22] It was argued on behalf of the Applicant that other disciplinary options were open to the Respondent, in lieu of dismissal. Attached to the Respondent’s “Just Culture Decision Tree” document, the Disciplinary Process Steps are set out as follows.

“Part 5- Disciplinary Procedure Step

Please indicate which step will be applied for this incident (where an Employee is already on a step, progression to a further step is necessary following the application of the Just Culture Decision Tree and consideration of the particular circumstances and severity of the case):

No Step

Step 1 An Employee will be verbally counselled by their Supervisor. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative. Written notice of the verbal counselling will be provided to the Employee and a copy placed on the Employee's file; or

Step 2 An Employee will be counselled by their Supervisor in the form of a formal warning. Where requested by the Employee, a Supervisor will conduct the counselling in the presence of an Employee Representative and have the warning confirmed in writing. A copy will be provided to the Employee and also be placed on the Employee's file; or

Step 3 An Employee will be issued a final warning by their Supervisor and Department Manager/Superintendent. Where requested by the Employee, the Company representatives will conduct the counselling in the presence of an Employee Representative, and have the final warning confirmed in writing and the Employee will be advised that dismissal may result from any further act of misconduct. The Employee can also be placed on a period of suspension without pay for a period of up to twenty-one (21) calendar days. A copy will be provided to the Employee and placed on the Employee's file; or

Step 4 Disciplinary action, which is commensurate with the severity and/or frequency of the acts of misconduct, will then be taken.”

[23] The following is an excerpt from the Just Culture Decision Tree used in relation to the Applicant’s misconduct, which was determined to be an intentional, deviant violation.

Legislation

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

“394 Application for unfair dismissal remedy

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

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

Note 2: For application fees, see section 395.

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

(2) The application must be made:

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

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

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

“396 Initial matters to be considered before merits

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

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

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

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

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

[26] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 5 March 2014. The originating application stated that the dismissal took effect on 12 February 2014. As the date of termination is not disputed between the parties, the application was made within the period required in s.394(2) of the Act.

[27] The Respondent has not raised any objection to the application on the basis of those matters set out in s.396(c) and/or (d) of the Act, being that the dismissal was consistent with the Small Business Fair Dismissal Code, or was a case of genuine redundancy. The Respondent is not a Small Business for the purposes of the Small Business Fair Dismissal Code and therefore cannot rely upon the Code in response to the application. Similarly, the Respondent did not rely upon a reason of a genuine redundancy in the Applicant’s dismissal. The Commission is satisfied that the Small Business Fair Dismissal does not apply and that the dismissal was not a case of genuine redundancy.

[28] The Applicant was a person protected from unfair dismissal, at the time, as the matters prescribed by s.382 of the Act, are satisfied as follows:

“382 When a person is protected from unfair dismissal

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

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

(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

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

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

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

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Summary of Applicant’s Submissions and Evidence

[32] The Applicant relied upon evidence from the Applicant and Mr Wayne Goulevich (Mineworker), who provided an affidavit but was not cross-examined. In addition, it was agreed by the parties that material in an affidavit of Mr Russell Robertson (Lodge President), filed in matter U2014/4966 (another dismissal matter where breach of this procedure was also in contention), would be admissible in this case and Dr Briffa had been taken to the particular matters in the statement.

[33] The Applicant alleged that the Mobile Electronic Device Procedure was not clear that a breach of the procedure would result in dismissal.

[34] The Applicant stated his understanding of the policies as follows:

“...

Mobile Device Procedure

10. I understand that BHP implemented a new mobile device procedure at Goonyella Riverside in November 2013. The new procedure restricts the use and carrying of mobile devices on site.

11. Prior to the introduction of the new procedure there were rules in place regarding the use of mobile phones. To my understanding the main rule was that mobile phones could not be used whilst operating equipment, similar to public road rules.

12. This rule had been in place for as long as I can remember and did not to my recollection prohibit or restrict the carrying of mobile phones on site like the new procedure. It was common, for as long as I remember, for employees and staff to have mobile phones when on site.

13. I understand that the new procedure was introduced in approximately November 2013. I vaguely recall that BHP may have tried to implement the new procedure earlier but then withdrew it.

14. My recollection in relation to being advised of the new procedure is that a supervisor or superintendent, Mr Dan Turpin, gave a brief talk at a prestart meeting on one occasion. My recollection is that this occurred at the Prestart Hub. I am unsure of the date on which this occurred...”

[35] The Applicant’s representative submitted that the Applicant’s dismissal was an unfair dismissal for two reasons, the first being that the dismissal was not for a valid reason in consideration of s.387(a) of the Act and alternatively, that the dismissal on all the facts was harsh, unjust and unreasonable.

[36] The Applicant submitted that when a consideration is made of the “fair go all round” principle, applied to the factors in s.387 of the Act, the termination was harsh, unjust or unreasonable.

Valid Reason

[37] The Applicant referred to case law, dealing with what is a valid reason. It was submitted that a valid reason within the meaning of s.387 was a reason that must be “sound, defensible or well founded” rather than one that could be “capricious, fanciful, spiteful or prejudiced” 1. Further, the Applicant submitted that the Commission must undertake an objective analysis of all the facts2 in determining whether there was a valid reason, and in that regard, the entire factual matrix is relevant3.

Notification of reasons for dismissal

[38] The Applicant submitted that the reasons for dismissal in the termination correspondence, dated 12 February 2014, were not clear on the occasions of phone use the Respondent relied on, in the decision to terminate, nor the employment history matters taken into consideration in the final decision.

Opportunity to Respond

[39] The Applicant submitted that he was not provided with an appropriate opportunity to respond to the further phone usage matters raised at the final meeting, which were later said to justify or warrant termination of his employment. The Applicant submitted that, whilst he was given the opportunity to respond to the allegations contained in the show cause letter, and did so, he could not respond to the later issues of use the mobile phone across the longer period, as they were only briefly referred to, at the final meeting.

Unsatisfactory performance

[40] It was also submitted that the Applicant was not clearly taken to matters in his employment history that the Respondent took into consideration. The Applicant submitted that the Respondent found that the Applicant had committed a safety breach; however, the Applicant did not have a recorded history of unsatisfactory work performance, having received no warnings in relation to such.

Other relevant matters

[41] The Applicant did not make detailed submissions regarding the size of the Respondent’s business as per s.387(f) or the presence of any human resources management under s.387(g). However the Applicant considered weight should be attributed to the Applicant’s personal circumstances, the issue with training on the policy and the different outcomes other employees had received for breaches of the procedure.

Summary of Respondent’s Submissions and Evidence

[42] The Respondent submitted that it had a valid reason to dismiss the Applicant, that is, that the Applicant clearly had not complied with the Mobile Electronic Device Procedure and had an obligation to do so. The Respondent submitted that they complied with procedural requirements of the dismissal, which included putting the allegations to the Applicant; allowing him an opportunity to respond; allowing him a support person for each meeting; issuing a show cause letter taking into account the Applicant’s response to this and allowing him a further opportunity to provide additional phone records.

[43] The Respondent denied it was unclear from the wording in the procedure that a breach of the procedure may result in dismissal, given that dismissal was an outcome contemplated under the Respondent’s disciplinary processes. The Respondent submitted that the strictness of the application of the procedure is designed to give effect to the Respondent’s obligations under the Coal Mining Safety and Health Act 1999 (Qld). The procedure had come about as a result of a high potential incident where an employee of another employer was distracted whilst driving and texting, and, further to this a Mines Safety Inspectorate Bulletin was released recommending a review of the use of mobile devices on mine sites.

[44] Dr Briffa, the General Manager Site Senior Executive, stated that an unacceptable level of risk had been substantiated in that the Applicant had used his phone whilst at work. Dr Briffa’s evidence was that the work and Graphic Operator Interface Console (GOIC) records were used to correlate with the phone records, to demonstrate when the Applicant was at work and when he had used his phone. These work records were shown (not given) to the Applicant, but a compilation of these sets of records was provided, that recorded a reconciliation of when the Applicant was at work against the phone records the Applicant had provided. The Respondent concluded from this that his phone was being used by the Applicant at work.

[45] The final notes of the termination meeting on 12 February 2014, completed by Ms Brinkman, Human Resources Business Partner state:

“Meeting w/ Shannon Boal - Tony Briffa and Nick Dickson

Tony asked Shannon that we had looked through the records but he had identified records that Shannon had used his phone when operating. Tony asked if Shannon had anything that he wanted to let us know.

Nick asked what dates. Tony responded the 5th dayshift and 7 nightshift. Nick asked to see the logs. Tony showed Nick the log’s where Shannon was logged on. Nick asked about where the logs show Shannon logging on are off. Tony spoke through the records.

Tony said that we have evidence to show that Shannon was operating and using the phone. Shannon said he feels that Tony wants to get rid of him. Tony said no, he is trying to discharge his responsibility.

Shannon suggested that perhaps he didn’t take his phone to work that day.

Nick said that he thought that we were just meeting about the 22nd.

Tony suggested that we meet back at 1pm. He needed to consider what Shannon has said and to seek advice.
Tony also checked that Nick would be ok to manage his fitness for work to go to NS tonight. Nick confirmed he would be ok to meet at 1pm.

Meeting
Tony explained since we last met he has taken advice and is going to terminate effective immediately. Explained still had right to appeal, Explained the letter, offered EAP.

Shannon took the letter and left.”

Review of the Mobile Device Policy

[46] As background to the seriousness of the breach of the procedure, Ms Emma Brinkman (HR Business Partner), Mr Glenn Paterson (Coal Mining Supervisor), Mr Justin Kinderis (Coal Mining Superintendant) and Dr Tony Briffa (General Manager, Site Senior Executive) gave evidence in relation to the review and development, and implementation of the Respondent’s mobile phone policy as included below.

[47] In January 2013, the Department of Natural Resources and Mines released a Mines Inspectorate - All Mine Safety Bulletin No. 130, 14 January 2013. The Bulletin stated:

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

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

[48] The purpose of the Bulletin was as follows:

“...

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

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



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

[49] The Bulletin also stated:

“...

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

(reference omitted)

[50] The Bulletin referred to the relevant associated risk as follows:

“...

What is the risk?

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

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

• longer braking reaction times



• slower reaction to traffic signals,



• impaired ability to keep in the correct lane, and



• shorter following distances

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

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

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

“...

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

Controls for risks of inattention or distraction

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

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

• Limiting access to mobile devices or phones with internet access



• Limiting access to mobile phones except in emergencies



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

[52] Dr Tony Briffa, in evidence, stated that the risk the procedure was endeavouring to address was driving; the operation of equipment; and the distraction potentially caused by mobile devices whilst doing such. Dr Briffa stated that the aim of the procedure was to consider the safety hierarchy of control and to eliminate the risk of distraction of mobile devices. To eliminate human failings, many individual exemptions from the procedure previously provided, allowing mobile phones on site, were revoked and the exclusion zones for use, were reviewed based on risk assessments. Mobile devices were not allowed in pits and work bays; where the repercussions for distractions are serious. The administrative buildings (which predominantly involve deskwork) were exempt areas. In addition, some crib huts not in operational areas are exempt.

[53] Dr Briffa stated that the initial implementation of the procedure was unworkable, that is, leaving phones outside the TAMS gate and it was considered the level of risk was low, if accessing a mobile phone in a crib room. Subsequent to this, the administration area and other areas were added to the exempt areas and lockers were built in various areas to allow employees to access mobile devices in their breaks.

[54] Dr Briffa confirmed that the Respondent does provide mobile phones to a number of employees predominantly staff but also some Award employees, where their duties require such.

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

[56] In relation to the site exemptions, previously provided in relation to the permission for restricted use of mobile devices, Dr Briffa reviewed such. Dr Briffa however stated he had listened to the feedback on the procedure that the difference in application of the procedure was potentially divisive and therefore he revoked the exemptions, to ensure the potential risk from mobile phone use across the site, was as low as possible.

New Mobile Devices Procedure - Implementation

[57] There is no copy of the old mobile devices procedure document in evidence before the Commission. It was submitted that the delay in implementing the revised policy was caused by establishing the lockers for mobile devices and the placing of signage at the mine site.

[58] Dr Briffa stated that incidents of potential breaches of the procedure, would involve an investigation and the responses may range from counselling to termination. If there are unintentional associated factors, those will be considered in the “Guidelines to Fairplay” and the “Just Culture Decision Tree”. To establish the appropriate response, Dr Briffa explained that an investigation should be completed and the 5 “why” questions should be asked to direct the outcome.

[59] In the current matter, a formal investigation was not undertaken, and a set of questions specific to the incident only was provided by the Human Resources Department to Dr Briffa.

New Mobile Devices Procedure - Training

[60] Dr Briffa provided evidence on the training and implementation of the procedure and the associated incident investigations and controls. He considered there was consistency of enforcement of the application of the procedure between employees. There was no evidence provided demonstrating that the Applicant had specifically attended a training session of the current procedure. The training documentation provided did not clearly demonstrate that employees were trained in this new procedure and signed accordingly, or that it was given a significant roll-out to employees commensurate with their ‘zero tolerance’ attitude to incidents of breaches, given how this case has been pursued.

New Mobile Device Procedure - Alleged Comparative differentiation of treatment of breaches

[61] Dr Briffa responded to the allegations on behalf of the Applicant, that there had been different disciplinary outcomes for different employees breaching the procedure. For example (in relation to an alleged breach), Mr Des Hutchinson thought he had an exemption to use his phone and was not operating equipment. Mr Hutchinson had stated he had applied for an exemption and believed it had been granted verbally. An investigation was undertaken as a ‘serious breach’ of policy and therefore the disciplinary outcome provided was one down from a termination outcome, that is, a final warning with 3 weeks unpaid suspension imposed.

[62] In particular, Dr Briffa stated that, in relation to Mr Sean Parish’s alleged breach, he had held an exemption for his phone and it was alleged he was on the phone while operating equipment in pre-strip. He stated there was conflicting versions of the incident.

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

[64] Dr Briffa clarified that he could not confidently respond to each of the allegations of differing treatment as he was not the SSE for all of the periods in question

[65] The supplementary statement of Mr Robertson, in relation to Mr Parish’s incident, states a contrary view. Mr Robertson’s initial affidavit signed 4 July 2014 stated as follows:

“...

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

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

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

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

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

“...

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

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

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

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

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

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

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

[67] Dr Briffa stated he was not aware of any alleged mobile device incident in regard to Mr Rawlins. He was aware Mr Rawlins was still employed.

The Investigation of the Incident

[68] Dr Briffa confirmed it was normal practice for the show cause letter to the Applicant to be prepared by the Respondent’s Human Resources (HR) officers in preparation for the meeting. He cannot recall if he directed, Mr Justin Kinderis to have HR prepare the show cause or if he did so himself. Dr Briffa confirmed the correspondence does not mention the issue of the level of risk associated with the Applicant’s conduct of use of Mobile devices.

[69] In relation to the questioning answers on the Just Culture Decision Tree (JCDT) the Applicant’s representative put to Dr Briffa that the JCDT was incorrectly completed. Dr Briffa stated that the Applicant’s action of taking the phone onto site breached the procedure. Dr Briffa explained that the Applicant admitted his phone was in his truck, and that he should have rung the supervisor to have the phone taken or dropped it back to the crib room himself. Dr Briffa acknowledged that these steps were not in the procedure, but had been discussed with employees.

[70] In response to questioning regarding the communication of this procedure to the Applicant, Dr Briffa could not confirm when the training was conducted with the Applicant or whether he was given a copy of the procedure.

[71] In terms of the investigation, there were 4 questions put to the Applicant, which were routine, as were the documenting of the answers. Dr Briffa was not sure who completed the statement form in terms of writing questions and answers. Dr Briffa was on annual leave at the time of the incident. He recounted he was informed that the relief driver, found the phone and advised the supervisor, who rang and photographed the phone.

[72] The Applicant’s response to the show cause letter, confirms he mistakenly took his phone into the truck but that he had not used it. Dr Briffa agreed the Applicant was not asked during the show cause to address the allegation of whether he had used the phone on this day or any other day. Later, he was asked to provide the phone records for the day in question.

[73] Dr Briffa stated in relation to the further phone records provided:

“...

[46] At about this time I organised for Mr Boal’s Graphic Operator Interface Console (GOIC) data from 22 January 2014 to be collated. The GOIC data shows the operator that is logged on to a particular piece of equipment throughout the day and what area of the Mine they are in. By comparing the GOIC data, which shows when Mr Boal was operating, against the phone records I was able to determine whether he was using the phone while operating...”

[74] It was put to Dr Briffa that this simply shows a correlation between the Applicant’s equipment operating time and the phone usage records generally. Dr Briffa agreed with Mr Anderson, (the Applicant’s representative) that you could not tell from these two sets of information that the Applicant was actually using the phone, whilst operating. However, Dr Briffa suggested on the balance of probabilities, the correlation confirmed that it was the Applicant that had used his phone whilst operating equipment at work.

[75] Mr Anderson confirmed to Dr Briffa that the Applicant was asked for phone records and he voluntarily provided the records. However, he stated the exercise of correlating the phone records and the Applicant’s operating times does not affirm the Applicant was using the phone. Dr Briffa agreed the allegation that the Applicant was using the phone was not totally substantiated. Dr Briffa stated that whether he was using the phone on the 22nd was inconclusive. It was submitted data usage on the phone at a time that correlated with working hours did not substantiate the allegation, that he was using the phone on the truck on 22nd January 2014 or at the other times as suggested by the Respondent. The Applicant stated that the phone was shared and he often left at home, whilst he was at work and used by his partner Ms Emblem.

[76] Dr Briffa stated:

“...

[48] I reviewed the letter and records provided by Mr Boal on 4 February 2014. It was not clear from the records that they were for Mr Boal’s phone as there were no identifying marks, such as the phone number that the records related to or the account holder’s name.

[49] On 10 February 2014, I met with Mr Boal and said to him words to the effect that he had not provided me with enough information to connect the records to his phone and that I really couldn’t do anything with the records he had provided to me. I said to him words to the effect that I would like him to provide a set of records that included the phone number that the records applied to. Attached and marked TB-14 is a copy of my handwritten notes from 10 February 2014.

[50] Mr Boal said words to the effect that he would organise for those records to be sent to me.

[51] Later on 10 February 2014, Mr Boal provided me with full telephone records in the account of Miss Bessie-Lee Emblen. Attached and marked TB-15 is a copy of those telephone records.

[52] I reviewed the telephone records. The records that Mr Boal provided to me covered the entire month. I was initially intending to just check whether Mr Boal was or was not using his mobile phone on 22 of January.

[53] I reviewed the account data for 22 January 2014 to see whether Mr Boal had been using his phone while operating on the day that the phone was found in the rear dump. While those records showed that there was data usage on that day while Mr Boal was operating, those records were inconclusive and I considered that the data shown on those records may have been that the phone auto-updating without any action from Mr Boal. Mr Boal had indicated that this was the case in his initial show cause response.

[54] Given that he had provided the entire months records, I thought it was necessary to check whether there were any instances on other days he was working where he used his phone while operating because he had told me that he had never used his phone while operating. If the full months records confirmed that Mr Boal hadn’t used his phone while operating I may not have terminated his employment.

[55] I asked Ms Brinkman to review the telephone records that Mr Boal provided against the GOIC records to determine if Mr Boal had used his mobile phone while operating a vehicle.

[56] After Ms Brinkman had the opportunity to go through the records, she came to see me and said words to the effect that there were a number of occasions where we could substantiate that Mr Boal had used his phone while on shift and operating, being on:

(a) day shift on 5 January 2014, where our data shows that Mr Boal had texted on a number of occasions while operating; and

(b) night shift ending 7 January 2014, where our data shows that Mr Boal sent a text message while operating.

[57] Ms Brinkman showed me our GOIC records from those days and showed me where the phone was used on the telephone records against those GOIC records. Attached and marked TB-16 is a copy of the GOIC records dated 3 January 2014, 5 January 2014, 7 January 2014, 8 January 2014 and 22 January 2014.

[58] After the review of the documents provided by Mr Boal I came to the conclusion that there were a number of instances where Mr Boal had breached the Policy by using his phone when operating. Attached and marked TB-17 is a copy of my handwritten notes from 11 February 2014.

[59] My conclusions were that it was inconclusive as to whether Mr Boal had used his mobile phone on 22 January 2014 while operating the truck, but that his conduct in accidentally taking the phone onto the truck and not reporting that he had done so was intentional and a serious breach of the Policy. I also concluded that Mr Boal had sent texts earlier in the month while operating, and that was a deliberate breach of the Policy.

[60] I also considered some of the evidence that came out as part of the investigation. This included GOIC text messages that we had retrieved on the days that Mr Boal was operating. We found evidence in the log of those GOIC messages that Mr Boal had been misusing the GOIC text system to direct other operators to go on crib breaks when they were not scheduled. This has the potential to disrupt production at the Mine and posed a risk to health and safety.

[61] The GOIC text log from 5 January 2014 showed that Mr Boal had sent text messages to other operators telling them to go on crib break. The log also contained a conversation between Mr Boal and another operator where Mr Boal told the other operator that on a previous night he had managed to shut down the prep plant by tricking the other operators into going on crib. Attached and marked TB-18 is a copy of the GOIC record from 5 January 2014.

[62] As part of my consideration, I read and reviewed Mr Boal’s show cause response and the additional documentation that he had provided.

[63] I reviewed Mr Boal’s personnel file and his prior performance reviews. I noticed that he achieved satisfactory ratings in his 2012 performance review. I also noticed that there was a development goal of maintaining a strong safety focus in 2012. Attached and marked TB-19 is a copy of Mr Boal’s performance review from 2012.

[64] I noticed that Mr Boal had been issued with a Step 1 Verbal Counselling on 23 December 2013 for leaving his work area before the end of the shift without authorisation and failing to meet the expectation of a Shovel operator to continue loading trucks until the end of the shift. Attached and marked TB-20 is a copy of the Step 1 Verbal Counselling.

[65] I considered that during the investigation Mr Boal had told us that he had not used his mobile phone while operating, which I considered to be dishonest based on the records produced. I also considered that Mr Boal had intentionally breached the Policy on a number of different occasions by sending text messages while operating.

[66] I also considered the GOIC records that showed that Mr Boal’s misuse of that system, but that wasn’t the deciding factor in my decision making process.

[67] I also considered Mr Boal’s personal circumstances and the impact that the termination would have on his family life. I had to weight those impacts up against the potential impact on other members of the workforce if I didn’t terminate Mr Boal’s employment and he was involved in an incident that hurt other works. I balanced those personal factors against the fact that Mr Boal had breached the Mine’s safety and management systems, and that his conduct was intentional and deviant.

[68] I concluded that Mr Boal presented an unacceptable risk to the Mine and that his employment should be terminated...”

[77] Dr Briffa referred to the decision making process. He stated:

“...

[69] ..As part of our internal processes, I was required to obtain Mr Johnson’s endorsement of my decision.

[70] I telephoned Mr Johnson and said words to the effect that:

(a) Mr Boal had admitted to taking his phone into the truck in breach of the Policy;

(b) Mr Boal admitted to knowing about the Policy and that he recognised that this was a serious breach;

(c) Mr Boal denied ever using his phone while operating;

(d) I was unsure whether Mr Boal had used his phone on 22 January 2014;

(e) Mr Boal had provided his phone records and those showed that he had used his phone to send texts while on shift and operating;

(f) Mr Boal had been using the GOIC system to direct other employees to go on shift and that this had disrupted production;

(g) I thought that having Mr Boal in the workplace created an unacceptable level of risk; and

(h) I thought the conduct warranted termination.

[71] Mr Johnson said words to the effect that he agreed with my decision...”

[78] Dr Briffa agreed at the time of asking for phone records and the Applicant provided them in response to only the allegation regarding phone usage on 22 January 2014. It was never put by Dr Briffa to the Applicant that a wider or further investigation would be based on these records.

[79] The Applicant confirmed that he had never used his phone while operating. The allegations of further usage were put to him at the meeting of termination. Dr Briffa had the letter of termination to hand, prior to the interval in the final meeting, and put the allegations to the Applicant and allowed a short interval for the Applicant to look at the records.

[80] The Applicant stated he was working 12 and a half hour shifts and would turn his phone off while sleeping. The Applicant could recall being taken through the phone data by Ms Brinkman (Human Resources Officer). The Applicant after the initial show cause process provided phone data he was asked to provide. The Applicant stated he had no objection to Mr Dixon acting as his representative.

[81] The Applicant stated the pre-paid phone was out of credit and that it was in his partner’s name. The Applicant clarified that he would use the phone and so would his partner, if he left it at home. He suggested the usage records only represented phone activity during the timing of his rostered shifts, but not by him.

[82] Dr Briffa had the letter of termination prepared prior to the final meeting. He confirmed that no other letter regarding a warning was drafted. However, Dr Briffa said, had the Applicant given credible responses to the allegations, they would have considered these.

[83] Dr Briffa and Ms Brinkman met with the Applicant at 12:00pm on 12 February 2014. The Applicant and his support person were surprised by the further allegations being put to the Applicant at this meeting.

[84] Dr Briffa agreed that the Applicant was not given a show cause letter for the further allegations of phone use on the phone records. Dr Briffa said he talked through the records. He could not recollect the timing of this. However, he agreed he did not give the Applicant a period to decipher the records, assess and report back on them.

[85] Mr Smith, on behalf of the Respondent, took the Applicant to the relevant phone records and he stated he was repeating the exercise that Ms Brinkman, had explained to the Applicant, as to how the analysis of the information in the records was undertaken.

[86] Dr Briffa said that neither the Applicant nor his representative gave any real response or made an objection to the assessment of the phone records. Dr Briffa said they could have asked for more time to consider the phone records. However, the notes that Ms Brinkman took of this final meeting which she undertook with the Applicant on 12 February 2014 is repeated as follows:

“Nick said that he thought that we were just meeting about the 22nd.

Tony suggested that we meet back at 1pm... needed to consider what Shannon has said and to seek advice. Tony also checked that Nick would be ok to manage his fitness for work to go to us tonight. Nick confirmed he would be ok to meet at 1pm.
...
Meeting
Tony explained since we last met he has taken advice and is going to terminate effective immediately. Explained still had right to appeal. Explained the letter, offered EAP.
Shannon took the letter and left.”

(underline added)

[87] The procedure does not apply to the use of the Graphic Operator Interface Console (GOIC) system on mine equipment. Dr Briffa distinguished the use of the messaging systems on the GOIC system that enables communication between employees when messages are typed into the system by an operator. Messages are typed into this system by operators much the same as texting into a mounted phone. The evidence of these messages demonstrated that they were used for operational and general communication.

[88] Dr Briffa was taken to the GOIC system and messages in his affidavit as follows:

[89] In the course of investigating the initial matter, in relation to the Applicant having his phone in the truck on 22 January 2014, other separate issues arose of further phone use and alleged misuse of the GOIC messaging. Dr Briffa stated he also considered these other issues in determining whether the original allegation was conduct ‘out of left field’. Dr Briffa stated he was uncertain whether dispatch could see the GOIC messages. The allegation was that the Applicant had shut down the plant by directing other operators to take their crib breaks.

[90] In making the decision to terminate, Dr Briffa stated:

“...

[65] I considered that during the investigation Mr Boal had told us that he had not used his mobile phone while operating, which I considered to be dishonest based on the records produced. I also considered that Mr Boal had intentionally breached the Policy on a number of different occasions by sending text messages while operating.

[66] I also considered the GOIC records that showed that Mr Boal’s misuse of that system, but that wasn’t the deciding factor in my decision making process...”

[91] Dr Briffa stated that he agreed with Ms Brinkman’s notes of the course of the meeting. The handwritten notes from his diary of 12 February 2014 state that he “gave Shannon his termination letter”.

[92] Dr Briffa stated the assessment per the Just Culture Decision Tree; that the Applicant taking the phone into the cabin was deemed an intentional action, rather than a mistake.

[93] Dr Briffa emphasised that the immediate remedy to the situation pursuant to the disciplinary procedure was that the Applicant should have contacted his supervisor and informed him of the situation with the phone. Dr Briffa contended that had the Applicant done so, the outcome would have been different.

[94] Dr Briffa’s final assessment was that the further GOIC records showed an Operator allegedly endeavouring to disrupt production, by shutting down the plant on 4 January 2014, (which had caused a loss of production) and “skiting” about it. Despite the alleged significant disruption and impact of this alleged plant shut down in dollar terms, Dr Briffa stated no further investigation was undertaken in relation to this incident.

[95] The Applicant’s representative argued that comparative differentiation of the application of the Respondent’s Mobile Phone Devices Procedure existed. Various incident of comparative differentiation were put to Dr Briffa (from Mr Robertson’s statement).

[96] In addition, Mr Wayne Goulevich, an employee of the Respondent since 2009, provided a witness statement for the Applicant. The Respondent did not cross-examine Mr Goulevich. His unchallenged evidence in relation to the introduction of the procedure (and its varying application) was as follows:

“...

5. I understand that BHP implemented a new mobile device procedure at Goonyella Riverside in November 2013. The new procedure restricts the use and carrying of mobile devices on site.

6. From memory our Supervisors introduced the new procedure in a prestart meeting. Information sheets were then placed in crib huts.

7. I do not recall any detailed training being provided in relation to the new procedure.

8. I do not recall any statement made that a breach of the procedure would result in dismissal. If this were to be the case in my view it should have been stated that the new procedure was a new Life Saving Rule.

9. There are a number of ‘Life Saving Rules’ at the Mine. These are rules that are considered to be fundamental to health and safety. A deliberate breach of any Life Saving Rule is commonly known to be a breach that would in all likelihood result in dismissal…”

[97] Mr Goulevich also stated in his evidence that an accident occurred on 3 December 2013; whereby he considered Mr Rawlins had breached the Mobile Devices Procedure. Mr Goulevitch’s evidence in relation to the incident was:

“...

12. At approximately 10.00am I was in a light vehicle traveling between the hard rock crib hut and Ramp 8 South dump. I was a passenger in a light vehicle. Mr Gary Rawlins was driving the vehicle.

13. When the vehicle was approximately 50 meters from the active dumping tip head Mr Rawlins received a call on his mobile phone. Mr Rawlins pulled the vehicle to a stop in the middle of the tip head before answering the call. Only after answering the call did I notice Mr Rawlins check the rear view mirrors and put the hazard lights on. The vehicle was approximately 15 meters from a light vehicle park up.

14. To my mind that was a very clear breach of the new procedure.

15. At the time of the incident I was a CFMEU Shift Delegate. I was in total shock that Mr Rawlins would blatantly breach the phone policy, and even more so that he would do it with me in the vehicle.

16. While I did not say anything to Mr Rawlins at the time, 15 minutes after the incident I began calling the Ramp 6 South Supervisor, Mr Garry Southy, over the two-way radio to inform him that I felt Mr Rawlins was unfit for work due to personal circumstances. I was told Mr Rawlins would be contacted and to my knowledge he spent the remainder of the day doing office work and didn’t attend work for the rest of the round.

17. Later that day, at approximately 4.00pm, I called Mr Southy and Mr Mark Farrell and had a discussion with them about the incident.

18. On my Pajama day the next day I called and spoke to Mr Russell Robertson about the issue and some of my feelings on the matter. Mr Robertson suggested that if I thought it was a breach of the procedure I should make BHP aware.

19. That night, before the start of shift, I submitted a hazard report to Mr Mark Farrell, my Supervisor.

20. A few rounds later I asked Mr Farrell about my hazard report and he told me he had handed it to the Acting Prestrip Superintendent, Mr Mark Mellor. I have not been told anything or contacted about the hazard report since that time.

21. To my knowledge Mr Rawlins was not disciplined and still works at Goonyella Riverside…”

[98] Dr Briffa could not comment on Mr Rawlins but provided evidence in relation to the other allegation where different disciplinary outcomes resulted.

Section 387

[99] As required by s.387 of the Act, the following criteria must be taken into account by the Commission when considering whether a dismissal was harsh, unjust or unreasonable. The following comments are provided in addition to those in the Decision:

s.387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

[100] In consideration of s.387(a), on the words in the procedure, the Respondent had a valid reason to dismiss the Applicant. The Applicant knowingly breached the Respondent’s procedure by having a mobile phone in his truck cabin. The procedure is a serious procedure, for the maintenance of health and safety of the Respondent’s employees and operations. It was a reason which could properly be described as sound, defensible or well founded. 4

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

[101] It is not in dispute that the Applicant was notified of his dismissal on 12 February 2014. The dismissal decision however, relied on broader allegations (than those notified in the show cause letter). The letter also referred to the consideration of a wider set of issues that were taken into account in making the decision to dismiss. These other issues relied on were not communicated with any clarity to the Applicant. There were significant differences to the reasoning in the show cause and the dismissal. This provided a series of procedural discrepancies that made the process unfair for the Applicant.

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

[102] The Applicant was not notified of and therefore not given a reasonable opportunity to respond to the allegations of the wider phone usage or the other employment history matters taken into account in coming to the decision to dismiss. The Applicant had answered issues associated with 1 day and was faced with a different case on dismissal.

[103] Dr Briffa conceded that it was inconclusive (on the basis of the initial day’s telephone records) as to whether the Applicant had used his mobile phone, whilst operating the truck on the day in question. However, Dr Briffa stated that the Applicant’s conduct in taking the phone onto the truck without reporting such to his supervisor was an intentional and serious breach of the policy. Further, based on the phone records subsequently provided, Dr Briffa also concluded that the Applicant was in deliberate breach of the procedure as he had sent texts on other days.

[104] Dr Briffa stated he also took into account the Applicant’s misuse of the GOIC system to cause disruption at the mine site; and his prior performance reviews and an earlier Step1 warning for leaving the work area prior to the end of shift.

[105] These further matters (taken into account by the Respondent in the dismissal decision) had not been subject to an investigation nor had they been clearly put to the Applicant for his response prior to the decision to terminate his employment. The Applicant disputed a range of these matters and the lack of opportunity to respond to most of these matters made the dismissal procedurally unfair.

s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

[106] The Applicant was allowed a support person at each meeting, however the relevant parties at the final meeting were taken by surprise when the meeting was not based around the incident of 22 January 2014 and they were denied any real opportunity to meaningfully consider or respond to the new matter of further phone usage and the GOIC issues and employment history matters. These issues provided further procedural deficiencies.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

[107] It is clear there was an issue related to the conduct of the Applicant in breaching the Respondent’s mobile phone procedure on 22 January, by having his phone in the truck. However, no suggestion was made that the Applicant was not performing in his role at the time of, or even preceding the breach of policy, and if further performance issues or matters of employment history were to be reasons for the termination they needed to be clearly put to the Applicant.

[108] There was no evidence that the Applicant had previously been warned about conduct involving mobile phones. There is evidence, in the GOIC records, relating to the Applicant shutting down the plant however, this incident was not investigated by the Respondent, nor put to the Applicant.

s.387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and s.387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[109] The final termination advice and process and the implementation of the procedure without a clear indication of the consequences for a breach or whether the procedure was ‘zero tolerance’ should have been clearer.

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

[111] The management personnel responsible for the dismissal were involved in significant operational matters on a daily basis. Industrial relations or human resources were not their primary areas of expertise or focus, however, the Respondent does have greater access to such resources. It is expected, given the size of the enterprise that better resourcing and support of the decision maker would occur, given the level of scrutiny on the termination process of an employee with relatively significant service in this industry, where jobs are highly sought after 5.

[112] The final termination advice and process (without clear reference to the use of “risk”, the question of “operation” (with a clear meaning) in the show cause letter and the clear material on the other matters considered) made a procedurally deficient process. The implementation of the procedure also did not have a clear indication of the disciplinary consequences for a breach of procedure or whether the procedure was being applied on a “zero tolerance” basis with a particular outcome.

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

[113] The Applicant submitted there were a number of relevant factors that should be taken into account in assessing whether the dismissal was harsh, unjust and unreasonable.

[114] It was explained by the Applicant, in response to the allegations, that his actions in taking his phone onto the site were because he did not feel well at that time, as he was suffering from a severe headache as a result of events prior to the shift. He had taken his previous block off work due to sustaining an injury as a result of a dog attack by a Pit Bull Terrier that occurred in front of his two young sons.

[115] In terms of his explanation for the breach of the mobile device policy the Applicant stated as follows, as set out earlier, in his response to the show cause letter:

“...The day of the incident was my first day back and I had completely forgotten about the new phone rule. On the day of the incident I went to get my phone at smoko to check my messages. I did not realise that I had put my phone back in my pocket until I was driving down the road. Rather than wasting time and returning to the crib room I continued on. I took the phone out of my pocket and put it in the central console of the truck to remind me to take the phone out of the truck at my next break. I maintain that I did not use the mobile phone while I was operating the truck...”

[116] It was also submitted that the Applicant was transparent about the phone in the truck and that his personal circumstances should be given due consideration in relation to the harshness of the dismissal decision. The Applicant stated that his length of service should be taken into account; he had been employed by the Respondent for 15 years.

[117] He stated he had recently split up with his wife and as a result had limited access to his two children and that these events had caused him deep distress.

[118] He stated that he will have significant difficulty in finding alternative work in the industry given that he had a prosthetic leg, as a result of a car accident when he was younger.

He also stated that he would have to relocate to find alternative work and this would cause a significant financial imposition and 'emotional detriment' to him and his family.

[119] Further to the show cause letter and response The Applicant was further asked to establish that he had not used the mobile phone whilst operating equipment on 22 January 2014. He was asked to provide phone records which demonstrated his telephone's activity from 6:15 AM to 6:45 PM on the day in question and to include any phone calls made or received, any text messages sent or received, and any data traffic.

[120] The telephone records sought from the Applicant were voluntarily provided, not only for the day in question, but for a broader period. The Respondent then used these further records to assess not only the phone usage on 22 January 2014, but for a significantly broader analysis. Rather than simply testing the specific allegation of the phone use in relation to the day in question the Respondent had an assessment done between the records and the rostered shifts of the Applicant to assess phone usage and whether there was a correlation with his time at work. The notification of the conclusion reached by the respondent did not provide for the Respondent to appropriately and fairly respond to the material.

Consideration

[121] The Respondent formed its decision to terminate, based not exclusively on the incident on 22 January 2014, but included a probability of other instances of alleged usage of a mobile phone by the Applicant whilst at work and operating heavy equipment.

[122] The implementation of the Mobile Device Policy is clearly a serious issue for an SSE on a mine site who has a statutory obligation to ensure the safety of all people on the site and the safe operations on the site. It is well known in contemporary society that there is a significant reliance for communication needs by individuals on their mobile devices (particularly mobile phones). No doubt it is somewhat of an impost for employees working 12 hour shifts, particularly those working in the field, whereby, in accordance with the policy they are not able to access their phone for the full period of the shift. To assist communication, the employer has placed telephones in these field crib rooms whereby employees can make calls free of charge.

[123] The implementation of the procedure was a significant change in practice for employees. With respect to the phone in Bessie Lee Emblem’s name, it was put to the Applicant that he had it with him and then turned it off when he was home during the day and sleeping.

[124] The Respondent in this matter argued that the Applicant’s action in taking the phone onto the truck without a valid exception and using such whilst operating heavy equipment were both serious breaches of the procedure. It is recognised that the Respondent had a procedure regulating the use of the mobile phones on the site. The Respondent considered that the procedure was known and not complex and should be adhered to. The Full Bench in Harbour City Ferries Pty Ltd v Mr Christopher Toms 6, in considering factors relevant to the ground of misconduct (arising in that case from alleged drug use by a ferry master), identified non-compliance with the policy as a relevant factor. The Full Bench stated as follows:

“...The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.” 7

[125] However, whilst the Respondent no doubt shares this view, in terms of compliance with their mobile devices procedure, the authority can be distinguished. In the Harbour City Ferries case, it was also stated:

“We have had regard to the facts of this application. The application is concerned with serious misconduct which was a valid reason for the termination of Mr Toms’ employment. The serious misconduct was the breach of an important policy by an employee at the most senior level of employment at Harbour City in a situation where there was compliance with procedural fairness.” 8

[126] The lack of compliances was clear and serious in terms of drug use, risk, and the accident that resulted. In the current matter, to assess the breach and risk, a correlation of the phone records had to be completed to assess a probability of breach. This was done without the Applicant’s awareness and put to him as a surprise in the final meeting and in such a way that he could not assess the records or outcome in any reasonably meaningful way.

[127] The parties were referred to the Full Bench Decision of Mr Paul Carter v Qantas Airways Limited 9where it was determined that the employer had a valid reason to dismiss Mr Carter for breach of the companies ticketing procedures but in weighing the circumstances of the Applicant’s length of service, performance, lack of specific training and personal circumstances, the Full Bench confirmed the first instance decision that the dismissal was harsh unjust and unreasonable in view of all matters.

[128] In considering whether the Applicant’s dismissal was harsh, unjust or unreasonable, I have found that the Respondent had a valid reason for the termination of the Applicant. In Qantas Airways Limited v Carter, the Full Bench held that a valid reason for termination could nevertheless result in a termination being considered harsh, unjust or unreasonable 10. Taking into account all of the considerations in s.387 and other relevant matters, I have reached the conclusion that the termination of the Applicant’s employment was harsh, unjust and unreasonable.

Considerations for remedy 

[129] The Applicant in this matter sought reinstatement. The Respondent considered the decision should be preserved but if an alternative was considered, minimal compensation should be awarded. The Respondent argued against reinstatement of employment on the basis of reduced trust and confidence in the Applicant. If reinstatement was considered, the Respondent sought that the back pay should be heavily discounted in recognition of the incident.

[130] Division 4 of Part 3-2 of the Act provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $66,500 from 1 July 2014

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

“393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[131] The prerequisites of ss.390(1) and (2) have been met. Section 390 provides that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. In circumstances where a remedy is appropriate, compensation must not be ordered unless the Commission is satisfied that reinstatement is inappropriate. As a result, it is proper to firstly consider whether reinstatement is appropriate.

[132] Reinstatement may be to the former position (s.391(1)(a)) or by appointing the employee to another position on terms and conditions no less favourable than those on which they were employed immediately before the dismissal (s.391(1)(b)).

[133] In considering whether re-instatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence as raised by Dr Briffa must be considered .The issue of loss of trust and confidence has been considered by the Commission in Australia Meat Holdings Pty Ltd v McLauchlan as follows:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.
... ...
We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:

"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits."

While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.”  11

[134] In considering the statutory scheme relevant to the remedy provisions, the alleged loss of trust and confidence as submitted by the Respondent must be taken into account. This was considered by a Full Bench of the Commission in Colson v Barwin Heath 12, as follows:

“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).

...

[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:

“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.

[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.”  13

[135] The Full Bench concluded that in considering reinstatement, all of the relevant considerations as raised in the evidence should be weighed against the practicalities of reinstatement. The approach set out in Perkins remains applicable to all of the considerations of reinstatement.

[136] A consideration of the loss of trust and confidence relevant to the question of reinstatement was undertaken in Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter 14. The Full Bench stated as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[137] It is noted that other employees who have breached the procedure for mobile electronic device usage at the workplace have continued their employment. This undermines the Respondent’s objections to reinstatement, however, the particular circumstances and manner in which the employer has characterised the breach of the procedure has been taken into account.

[138] The Respondent has objected to reinstatement and contended that if ordered, any continuity of wages should be heavily discounted, to recognise the nature of the breach.

[139] I have considered the above authorities on the issue loss of trust and confidence. It was alleged that the Applicant also engaged in utilising the GOIC System to influence the taking of crib breaks by other employees and the potential impact of such on operations has been considered. However, it is noted that this allegation, was not clearly put to the Applicant nor investigated in a timely manner by the Respondent. The Respondent has failed to investigate or notify the Applicant of the other alleged instances of misconduct to allow for a proper response. I have also taken into account the Applicant’s personal circumstances and his length of service.

[140] The Applicant's contrition, in the circumstances, is recognised. However, I have also carefully weighed the various considerations relevant to the termination and to the assessment of reinstatement, that is, whether a productive, appropriate and safe working relationship could be resumed at the workplace. These considerations have included the circumstances of the alleged breach, the implementation of the procedure and its application to other employees and the outcomes of such, the Applicant’s work history and the regional nature of the location of the mine and it impacts on the personal and alternative employment circumstances for the Applicant.

[141] In taking all of this into account I intend to order reinstatement.

 [142] Accordingly, given that the order is to be made under s.391(1) of the Act, this order of reinstatement is associated with the terms and conditions of employment in the broadest sense of those terms 15.

[143] The exercise of the discretion in relation to the maintenance of continuity of service (s.391(2)) and the potential for an order to restore lost pay (s.391(3)) are also considered. In the circumstances, I consider that is appropriate to make an order for the continuity of service as per s.391(2) of the Act. I have also considered the period of time since the dismissal and the relevant considerations to s.391(3) to the facts and reasons provided.

[144] In the circumstances, I have considered the submissions on the interim earnings and related matters and also the Respondent’s submissions regarding the nature of the breach and that reinstatement, if awarded, should be coupled with a heavy discounting of the period in recognition of the breach of procedure 16, and the importance of this procedure to the safe operations of the mine site, to act as a deterrent for other breaches of the procedure or policies at the workplace. In recognition of the range of matters, I decline to make an order restoring lost remuneration.

Conclusion

[145] For the aforementioned reasons, I have found that the dismissal of the Applicant was harsh, unjust and unfair within the meaning of the Act. Taking into account all of the facts and circumstances of the matter, I have also found that on balance, reinstatement is appropriate and that an order for continuity of service be issued pursuant to s.391(2). Based on the reasoning provided, an order for the continuity of wages will not be issued, however no wages paid in lieu of notice is recoverable by the Respondent.

[146] A separate order to this effect [PR559440] will issue.

COMMISSIONER

Appearances:

Mr R Anderson, legal officer, CFMEU, for the Applicant

Mr S Smith, Partner, Ms K Gamble and Mr B Quinn, Herbert Smith Freehills for the Respondent

Hearing details:

Mackay, 9 & 10 September 2014

Brisbane, 15 September 2014

Brisbane, 10 October 2014

Final written submissions:

25 October 2014 - Applicant

22 October 2014 - Respondent

 1   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrup J

 2   Annetta v Ansett Australia (2009) 98 IR 233 at [10] per Giudice J, Williams SDP and Cribb C

 3   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413 per Lee Tamberlin and Marshall JJ

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

 5   This is not an intended criticism of Ms Brinkman or Dr Briffa, but the manner in which relevant expertise only seemed to be available to review parts of the process.

 6   [2014] FWCFB 6249

 7   [2014] FWCFB 6249 at [27]

 8   [2014] FWCFB 6249 at [17]

 9   [2012] FWAFB 5776

 10   [2012] FWAFB 5776

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

 12   [2014] FWCFB 1949; applied by Hampton C in Challinger v JBS Australia Pty Ltd[2014] FWC 7963

 13   [2014] FWCFB 1949.

 14   [2014] FWCFB 7198.

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

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

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<Price code G, PR559427>