Mr Warren Brock v BHP Coal Pty Ltd - [2013] FWC 9200

[2013] FWC 9200

FAIR WORK COMMISSION

DECISION

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

Mr Warren Brock
v
BHP Coal Pty Ltd
(U2013/6192)

DEPUTY PRESIDENT ASBURY

BRISBANE, 22 NOVEMBER 2013

Application for unfair dismissal remedy - Arbitration - Exceptionally negligent conduct - Inferences drawn from computer data about the manner in which dragline operated - Significant risk of injury or death from incident - Dismissal not unfair - Application dismissed.

OVERVIEW

[1] Mr Warren Brock applies under s.394 of the Fair Work Act 2009 (the Act)for an unfair dismissal remedy in respect of his dismissal by BHP Coal Pty Ltd (BHP). Mr Brock was employed as a Dragline Operator at the Peak Downs Mine from 6 June 2008 until his dismissal on 22 January 2013. Mr Brock was dismissed following an incident involving a dragline that he was operating, which occurred at around 4.00 am on 7 December 2012.

[2] During that incident, a 235 metre long steel hoist rope attached to the dragline, with a diameter of 83 millimetres and weighing 7 tonnes, broke into two pieces and fell to the ground. BHP investigated the incident and dismissed Mr Brock after concluding that he was responsible for the rope breaking because he operated the dragline in a manner which caused the rope to jump off a sheave holding it in place, and that Mr Brock continued to operate the machine in a manner which caused the rope to break. BHP took the view that Mr Brock had engaged in misconduct on the basis that the manner in which he operated the dragline was either exceptionally negligent or deliberate.

[3] Draglines are used to remove topsoil or overburden from above coal seams. They have an operator cabin, a “house” containing electrical motors and controls, a fixed boom and a bucket which is suspended from the boom by hoist ropes. The bucket has “jewellery” comprised of chains which are attached to the bucket. The entire structure of the dragline is mounted on feet.

[4] The dragline operated by Mr Brock on 7 December 2012 is a Bucyrus-Erie 1370 walking dragline designated as DRE23, and is powered by electricity through an above ground cable. DRE23 is controlled by a single operator using two foot pedals and two hand held levers. The foot pedals control the swing motion of the dragline and the levers control the drag ropes.

[5] The levers respectively control the length of the ropes enabling them to be let out and in to position the bucket along the boom and the hoist motion by which the bucket is raised and lowered. The position of the lever by which the hoist motion is controlled is described as a positive or negative “reference” of between 1 and 100%. Negative reference involves the lever being pulled towards the operator to retrieve rope and raise the bucket, while positive reference involves the lever being pushed away, to let out rope and lower the bucket. The further the lever is pushed or pulled, the faster the hoist rope is commanded by the control system. Each lever has buttons which allow the operator to select modes by which the position of the bucket can be changed to either “DIG”, “DUMP” or “CARRY”. When a mode is selected, the angle of the bucket is automatically adjusted.

[6] The operator takes the dragline through a cycle, during which the operator swings the boom to position the bucket at a point on the high wall where digging will occur; lowers the bucket by means of the hoist rope so that it is dragged across the overburden until filled; and then lifts the bucket and swings it to a spoil pile where the contents are emptied. Over a 24 hour period, DRE23 can move approximately 35,000 to 40,000 bank cube metres of material and undertakes some 100,000 cycles in a month.

[7] DRE23 is a large and powerful machine and its relevant specifications can be summarised as follows:

● Total weight - 3000 metric tonnes
● Boom length - 95 metres
● Bucket capacity - 45 cubic metres
● Weight of empty bucket - 40 tonnes
● Weight of full bucket - 150 tonnes
● Lifting capacity of bucket - 110 tonnes of material
● Length of front hoist rope - 235 metres
● Diameter of front hoist rope - 83 millimetres
● Weight of front hoist rope - 7 tonnes
● Force generated by motors - 115 tonnes

[8] The front and rear hoist ropes on DRE23 are positioned over sheaves at the top of the boom (boom point sheaves) which are large vertical wheel-like structures with grooves around their circumference to hold the ropes in place. As the hoist ropes move to raise or lower the bucket, the sheaves rotate. This rotation is designed to reduce the friction that would otherwise bear upon the ropes at the point they change direction - at the top of the boom.

[9] On 7 December 2012, while Mr Brock was operating DRE23, the front hoist rope jumped from its sheave, became jammed between the sheave guard and the machine, and snapped. A portion of the snapped rope fell through the boom onto the ground below. The rope did not snap back into the operator cabin or the house, and there were no injuries. DRE23 was out of commission for three days while the rope was replaced.

THE ISSUES IN DISPUTE

[10] It is not in dispute that Mr Brock is an experienced dragline operator and is qualified to train other operators. It is also not in dispute that the incident was “of a very serious nature with potentially high consequences” 1 and that mishandling of a large and powerful machine like DRE23 could lead to property damage, injury or death.

[11] The conclusion that Mr Brock’s operation of DRE23 was either exceptionally negligent or deliberate and that he caused the rope to break, was based on an analysis of data obtained from a system known as Pegasys, which comprises sensors, recording systems and an on-board computer, fitted to DRE23 and other draglines. Specifically the Pegasys data was said to establish that Mr Brock:

● Returned the bucket to the pit to dig, while in DUMP mode;
● Over-spooled the hoist ropes;
● Started to fill the bucket while it was out of plane (ie. not directly under the boom) and moved the machine heading while filling;
● Performed erratic movements of the hoist lever while filling the bucket;
● Significantly contributed to the hoist ropes jumping off the sheave and jamming by operating the machine as described above;
● Applied various levels of reference from 100% to 40% to the hoist lever after the rope became jammed; and
● Increasing the hoist reference to 100% for 20 seconds ultimately causing the hoist rope to break and placing significant stress on the boom.

[12] Mr Brock denies that he operated DRE23 in the manner alleged and questions the accuracy of some of the Pegasys data and the inferences drawn from it. Mr Brock also contends that the investigation process was biased and that the intention at the outset was to blame him for the incident, when there are other equally probable explanations. In this regard, Mr Brock points to evidence of other instances involving DRE23 where the hoist rope has jumped off its sheaves or broken, and to damage to boom point sheave guards which had been previously reported but not repaired when the incident involving Mr Brock occurred on 7 December 2012.

[13] Mr Brock contends that his dismissal was:

● Harsh, because the consequences are that he has been unable to find further employment as a dragline operator and because it was disproportionate to the gravity of his conduct;
● Unjust, because he did not deliberately or recklessly operate DRE23 on 7 December 2012 in a manner that caused the hoist rope to break; and
● Unreasonable, because it was decided on inferences drawn from computer data alone, which did not support the conclusion that he had deliberately or recklessly operated the dragline in a manner that caused the hoist rope to break.

LEGISLATION AND CASE LAW

[14] In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s.387 of the Act as follows:

(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 the Commission considers relevant.

[15] The Commission is obliged to make a finding about whether or not there was a valid reason for dismissal. 2 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”3 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts4, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.5

[16] In matters involving misconduct, the Commission must look at the conduct of the dismissed person and determine on the balance of probabilities what the conduct was and whether it took place. 6 The test is whether the conduct took place, not whether the employer believed on reasonable grounds, after sufficient enquiry, that the conduct took place.7 In determining whether a dismissal is unfair:

“It is not the [Commission’s] function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...” 8

[17] The matters in s.387 go to both substantive and procedural and substantive fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 9

[18] There is a distinction in the provisions of the Act between “serious misconduct” and “misconduct”. The former term is defined and the latter is not. The term “serious misconduct” is defined in s.12 of the Act and Regulation 1.07 as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[19] Regard may be had to this definition to decide whether there is a valid reason for the dismissal of an employee who is alleged to have engaged in serious misconduct. In general terms, misconduct is wrongful conduct. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 10

[20] Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. Wilful misconduct carries the additional connotation of intention, or a deliberately reckless course of misconduct, with knowledge that it is wrong. 11 Regulation 1.07 does not require that misconduct be wilful before it is serious misconduct, but provides that serious misconduct includes wilful or deliberate behaviour.

[21] When the matters in s.387 are weighed for the purposes of considering whether a particular dismissal was harsh, unjust or unreasonable, it may be that where the employer demonstrates that the employee engaged in serious misconduct, procedural deficiencies will be outweighed so that on balance, the dismissal is not unfair. An employee who engages in an act of misconduct may also be found to have been unfairly dismissed because the misconduct was not serious such that it outweighed deficiencies in procedural fairness or because of other extenuating circumstances particular to the dismissed employee.

[22] The present case also raises the issue of whether inferences should be drawn from the Pegasys data in relation to make findings of fact about the way in which Mr Brock operated DRE23 on 7 December 2012. The principles relevant to when an inference may be drawn were summarised by a Full Bench of the Australian Industrial Relations Commission in Smith and Others v Moore Paragon Australia Ltd 12as follows:

● an inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;
● an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;
● where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;
● the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture; and
● matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. 13

PROCEDURAL MATTERS

[23] The application was made on 5 February 2013, within the time required in s.394(2) of the Act. Mr Brock is a person protected from unfair dismissal as defined in s.382 of the Act. BHP is not a small business and the dismissal was not a redundancy.

[24] The matter was dealt with by way of a hearing conducted in Mackay and Brisbane, as it was considered that this was the appropriate course. Permission was granted for both parties to be legally represented, on the basis that it would enable the matter to be dealt with more efficiently, taking into account its complexity. Mr Brock was represented by Mr Slevin of Counsel, instructed by Mr Newman of the Construction, Forestry, Mining and Energy Union and BHP was represented by Mr Snaden of Counsel, instructed by Ashurst Lawyers.

[25] Evidence in support of the application was given by Mr Brock on his own behalf 14 and by:

● Scott Leggett, Lodge Secretary/Treasurer of the CFEMU Peak Downs Lodge and dragline operator, trainer/assessor and holder of Open Cut Examiner licence; 15
● Bronko Bakajlic, dragline operator; 16
● Ian Belousoff, dragline operator; 17
● George Pearce, maintenance fitter, field crew section; 18 and
● Beau Weir, electrical fitter/mechanic. 19

[26] Evidence for BHP was given by:

● Andrew Malcolm Jessett, Chief Executive Officer of Mineware Pty Ltd; 20
● Ryan Douglas Ferricks, Superintendant Maintenance, Analysis and Improvement at Peak Downs Mine until April 2013; 21
● Diane Jeays, Human Resource Advisor, Peak Downs Mine; 22 and
● Jarrod Scott Stewart, Manager Mining Operations, Peak Downs Mine. 23

[27] A significant amount of material was tendered including raw data taken from Pegasys and graphs analysing that data. Some of the graphs were developed for the investigation of the incident and others for these proceedings. It has been necessary to consider the data and the evidence about it at some length.

EVIDENCE

Incident of 7 December 2012

[28] Mr Brock’s evidence is that on the morning of 7 December 2012, he was working on A-crew with Mr Belousoff. Mr Rodney Rand was also in the cab for part of the shift, but was not performing dragline operations. At the time the incident occurred, they were working on a block which required Mr Brock to perform a diagonal chop on the high wall. This requires the bucket to be run vertically along the high wall in DUMP mode until the level where the operator wants to dig is reached. The operator then engages the DIG function on the dragline and slowly chops it into the high wall, until the bucket is full. When the bucket is full it is moved back up and over to the dump and the load is dumped, before the bucket is moved back to the high wall and the process is repeated.

[29] Mr Brock said that this cut is usually the hardest to dig out and places the machine under most amount of stress. In relation to returning the bucket to the high wall in DUMP mode, Mr Brock agreed that this operation is not encouraged, but said that almost all operators will operate the bucket in DUMP mode when performing this cut, because this angle places the teeth of the bucket in a position where they run down the high wall and clean it, and the teeth will be as close as possible when the bucket lands at the bottom of the high wall. Mr Bellousoff agreed that they were performing a diagonal cut on the high wall and that the technique for this involves digging out of plane with the bucket in DUMP mode, so that it is facing down and the corner tip can be used to chisel the wall.

[30] Mr Brock said that he did not note an over-spool of rope, and that it can occur in any mode. In relation to filling the bucket when the machine is out of plane, and moving the machine heading while filling, Mr Brock said that he did perform this action, but it is not prohibited. Mr Brock also said that when he started to dig on the final cycle, the bucket was under the boom and then he moved the machine to the right, pulling the left side of the bucket to cause it to dig further in and creating a flat bottom on the digging material. While this is not a common or standard operating procedure, sometimes it has to be done, provided that the bucket is not raised on an angle. Mr Brock said that he did not raise the bucket on an angle.

[31] Mr Brock also said that he did not operate the hoist levers in an erratic manner while filling the bucket. Mr Brock said that after he filled the bucket at approximately 4.00 am he was operating DRE23 on return cycle having just dumped his load, and was returning the bucket to the high wall, which was on his left. The machine was in DUMP mode. A bit before the high wall Mr Brock started to lower the bucket, and noted that the bucket would not lower and was not responding to the hoist lever. In his written statement Mr Brock said that he immediately engaged the swing brake to stop the boom from moving. Mr Brock also said that he then moved the hoist lever up and down to see if the bucket would move, but did not recall that he was operating it in any particularly vigorous or erratic fashion. Further, Mr Brock said that he put the bucket into DIG mode which moves it up to dig automatically. This did not work, and the bucket did not move.

[32] In relation to the assertions about his operation of the hoist levers after the rope became jammed, Mr Brock said that he started to “trouble shoot” with the levers by moving them up and down and checking the computers to see if an alarm had sounded. Mr Brock said that he did this for approximately 30 seconds before the rope broke.

[33] Mr Brock also said that he switched from the Pegasys to the Citec systems on the monitor to see if any active alarms had been triggered and then returned his view to the bucket to see if it had moved. At this point, Mr Brock noted that the hoist rope was coming back through the boom and although he put on the brakes the rope kept coming through.

[34] Mr Brock said that he realised that the rope had broken at the boom point, and the bucket had stayed in position as the hoist rope that was connected to it was still attached and stuck at the boom point. Mr Brock called Mr Belousoff and then maintenance, shut the machine down, made the area safe by closing the road and then notified the Open Cut Examiner.

[35] Mr Leggett said that trouble shooting in the manner described by Mr Brock is a reasonable practice, and on occasion when he has lost hoist and swing motion, he has moved levers up and down to attempt to gain motion, and has only called maintenance when the bucket did not move. Mr Leggett also said that if he called maintenance before trouble shooting, they would ask him to go through those motions. Under cross-examination Mr Leggett agreed that while he was trouble shooting he would stop other motions such as dragging and swinging, and that it would be clear within a few seconds that the bucket was not responding to hoist lever commands.

[36] Mr Belousoff said that he had never seen a hoist rope break like that, and the only explanation that he could think of at the time, was that the front hoist rope had jumped over the sheave at boom point and onto the edge and then worn through and broken. Further, Mr Belousoff said that at the time of the incident, the boom lights on DRE23 were not working and requests had subsequently been made by Mr Belousoff and other operators for the lights to be fixed. Mr Belousoff asserted that he was told by someone from maintenance that there had been a work order in for the repair of the boom lights on DRE23 since September 2012.

[37] Under cross-examination Mr Belousoff said that if the lights had been working the operator could have seen the sheaves by leaning forward in the operator’s seat and craning his or her neck, but agreed that he was not suggesting that the lights being out would have prevented an operator from seeing the bucket. Mr Belousoff also said that if a hoist rope came off its sheave and jammed, an operator would immediately notice the difference, even if the bucket was still moving. In relation to digging out of plane, Mr Belousoff said that it is a standard or common operating procedure for some operations, but agreed that it is most uncommon to move the boom more than 20 degrees while digging.

[38] Mr Belousoff also agreed that other than what people had told him, he was not in a position to doubt Mr Ferricks’ evidence that a hoist rope has not broken in over 8 years, but maintained that he had been told at safety and start-up meetings about hoist ropes breaking on two previous occasions.

[39] Mr Beloussof agreed that it is possible that the weight of 80 metres of rope combined with the momentum of the rope coming down from the top of the boom at maximum speed, could cause rope to spool at the bucket and not the drum. Further, Mr Belousoff agreed that if the rope came off the sheave and jammed, the bucket would slow down and an immediate difference would be noticed.

[40] In relation to the allegation that Mr Brock over-spooled the hoist rope, Mr Weir said that there is a sensor under the drum of the hoist ropes which would trip if rope over-spools at the drum, and that he could not see how an operator could intentionally let out that much slack rope without the sensor tripping. Mr Weir also said that it is possible that the sensor would not pick up over-spooled rope if it was caught at the boom point, and if this was the case it would be extremely difficult for the operator to notice.

[41] Mr Weir also gave evidence about shaping by the PLC logic in the dragline so that there is a delay of several seconds between the operator commanding 100% reference and said that the PLC does not permit erratic operator of hoist levers to be converted into movement of hoist motors. Mr Weir said that given the length of spikes in the graph showing operator reference, the data was raw data and not shaped reference through the PLC logic.

[42] Further, Mr Weir said that if the PLC places full power on the hoist motion when the hoist rope is in stall condition for more than 6 seconds, the PLC will “trip out” cut excitation to the motion and set the brakes. Mr Weir also said that if an operator has an issue with a dragline, such as a bucket not responding, he would expect the operator to attempt to “trouble shoot” the issues as outlined by Mr Brock, and not to call maintenance until alarms had been checked and attempts made to move the hoist levers.

[43] Under cross-examination, Mr Weir agreed that if only the front hoist rope was stalled, the stall condition trip function referred to in his statement may not trip. Further, Mr Weir agreed that if the operator was putting 100% power on the rope for 40 seconds and the stall protection did not trip out, then there could be damage to the rope, because either the hoist motor or the rope would give up and break.

[44] Mr Weir agreed that the hoist rope could whip notwithstanding the shaping process and that extreme movements of the hoist lever can contribute to whipping, when they transfer movement to the rope. Mr Weir also accepted that the graph he had questioned did show raw data about the reference of the operator’s lever and helped explain how what the operator did on 7 December 2012 led to the rope breaking.

[45] In relation to Mr Brock’s evidence about trouble shooting, Mr Weir said that an operator upon realising there is a problem with the bucket, would try and move the hoist lever, check for alarms and check for faults on the Citec screen before calling maintenance. Mr Weir agreed that the trouble shooting process would take a couple of seconds or would not take long.

The Pegasys System

[46] DRE23 like other draglines operated by BHP is fitted with sensors and a recording system known as Pegasys that logs readings and behaviours by time reference. The metrics are collected 10 times per second via Pegasys. This system is akin to the “black box” on an aircraft. Pegasys was developed by a contractor, Mineware Pty Ltd, and its CEO Mr Jessett. The main features of the Pegasys monitoring system are:

● a GPS system, which provides accurate dragline guidance and bucket dig depth control;
● a camera system with an integrated CCTV which is installed on approximately half of BMA draglines but not DRE23;
● strain gauges on the dragline structure providing real-time operator feedback and over time, enabling an assessment of stresses placed on the dragline; and
● a built in data recording, analysis and reporting system. 24

[47] Data from Pegasys is uploaded directly from DRE23 to an on-board computer system and can be accessed by Mineware for the purpose of analysis. Pegasys data can show, for any given point in time:

● dragline heading or the direction in which its boom is pointing;
● length of front and rear hoist ropes paid out from the boom;
● force bearing on the hoist ropes - ie. the weight pulling against them; and
● swing, drag and hoist input reference signals - ie. the degree to which the operator is pulling or pushing the various levers and pedals that control the machine.

[48] BHP contends that it is able to analyse Pegasys data to understand what an operator was asking a dragline to do over time (or at any given time) by the way that the operator was manipulating the controls or how the machine was responding. Mr Jessett gave extensive evidence about the Pegasys data from DRE23 and what that data is said to demonstrate about Mr Brock’s operation of DRE23 on 7 December 2012. The Pegasys data was presented in evidence to the Commission both as raw data and in the form of graphs representing that data. Mr Jessett also gave oral evidence about what the graphs show.

Analysis of Pegasys Data

[49] Mr Jessett’s evidence is that he was informed on the morning of 7 December 2012, that Mr Ferricks wanted him to review data from DRE23 in relation to an incident that occurred earlier that morning, to see whether the data could shed any light on the incident. Mr Jessett retrieved the data files and undertook an initial analysis. Mr Jessett then prepared a graph (the first graph) and sent an email to Mr Ferricks At 9.23 am on 7 December 2012, in the following terms:

“Attached are the Pegasys logged data files from the time of the incident. I did a couple of quick charts and it appears the operator overspooled the ropes when placing the bucket for the start of a dig. You can see below that the hoist was consistently running at a max of about 80m out but then goes to almost 100m rope out. From what I can tell, these were all similar cycles so there shouldn’t have been a need to put out so much rope. You can then see that following the bucket filling, it has been lifted out of the ground, the rope becomes effectively ‘stuck’ and the front hoist drive goes into full stall for almost 45 seconds before releasing (I am presuming catastrophically!) 25

[50] According to Mr Jessett’s evidence, the first graph shows that the bucket was placed on the ground in DUMP mode so that the front rope was paid out to the extent that it was 7 metres longer than the rear rope and the bucket was angled downwards, and that:

● between 3:55:12 and 3:55:59 the bucket was on the ground;
● while the bucket was on the ground 20 metres of hoist rope was let out at 3:55:40 so that the total of the rope was 100 metres, compared to 80 metres on previous cycles;
● at 3:55:59 150 tonnes of force was applied to the front hoist rope and at this point it became jammed having jumped off its sheave as a result (or partly as a result) of earlier over-spooling and whipping;
● from 3:56:09 to 3:56:37 the bucket was stalled meaning the rope was jammed and the operator was trying to make the rope move by applying a reference signal to it to retrieve rope;
● at 3:56:28 the bucket dumped its contents;
● between 3:56:47 and 3:57:06 (after the bucket has dumped its load) the operator continues to raise the bucket inconsistent with normal behaviour which would be to lower it back into the pit to perform another filling operation.

[51] There was an email exchange between Mr Ferricks and Mr Jessett on 10 December 2012, in which Mr Ferricks requested that Mineware prepare a number of additional graphs in relation to drag and swing to understand what the operator was doing at the time of the failure. Mr Jesset sent a second graph analysing data to show drag rope length, position of the machine and drag rope force over time, with a covering email stating: “Nothing too unusual going on”. 26

[52] According to Mr Jessett, the second graph indicates that in the course of filling the bucket, between 3:55:41 and 3:55:02, the machine changed direction by approximately 25 degrees from 50 to 75 degrees. This meant that when the bucket was being filled, it was not directly beneath the boom and was out of plane. Mr Jessett said that changing direction by approximately 25% during filling is not significant of itself, but filling a bucket out of plane becomes significant when considered in the context of slack hoist ropes and whipping. This combination of factors places the hoist rope at greater risk of being pulled across the boom point sheaves, by increasing lateral tension.

[53] In his statement to the Commission, in relation to the comment in the email of 10 December 2012 that there was nothing too unusual going on, Mr Jessett said that:

“I meant that I was not surprised to find that the bucket was swung out of plane. While swinging out of plane is undesirable and being 25 degrees out of plane is far from ideal this kind of situation does in my experience occur from time to time as a result of less than ideal operating practices. What was of concern to me and what I did find to be unusual was the amount of slack hoist rope that was generated by the operator in the filling cycle immediately prior to the incident. In my opinion, based on my experiences in the mining industry and in working with draglines for the past 13 years, swinging out of plane is poor practice that compounded the impact of the slack hoist rope in this instance.”

[54] In response to the email from Mr Jessett appending the second graph, Mr Ferricks sent a further email stating:

“Excellent. Can we overlap hoist rope forces and position over these graph. Very important as they are holding the operator to account over this one.” 27

[55] Mr Jessett provided a third graph on 10 December 2012, which overlapped hoist rope forces and positions over the earlier graphs. After further telephone conversations with Mr Ferricks on that day, Mr Jessett provided a fourth graph analysing the same data, to show front and rear hoist rope forces and operator reference on a single graph.

[56] According to Mr Jessett, the fourth graph indicates that between 3:55:33 and 3:55:53 the operator repeatedly manipulated the hoist lever from 100% positive reference to 100% negative reference which had the effect of instructing the control system to pull the hoist ropes in and let them out at full speed. Mr Jesset’s opinion is that it was likely that the rope jumped off the sheave at some point during this period of time as a result of the way that the hoist lever was manipulated, combined with the slackened hoist rope (which was susceptible to whipping) and the fact that the bucket was not directly under the boom.

[57] Mr Jessett also said that putting the bucket fully on the ground in DUMP mode and then continuing to pay out a large amount of hoist rope, is an unusual and poor practice, putting the machine at risk of the hoist rope coming off the sheave and potentially becoming jammed due to excessive slack and rope whip. Further, Mr Jessett said:

“Nothing in the data indicates that there was any need for the operator to have paid out a further 20 metres of rope, particularly given the excess rope was not necessary in the previous identical cycles.”

[58] Mr Jessett expressed the view that where an operator encounters a situation where the hoist ropes have been over-spooled, they should try to retrieve the over-spooled ropes carefully, not by vigorously applying 100% negative and positive reference and moving the ropes violently, creating dynamics in the ropes and whipping. If the operator had attempted to retrieve the over-spooled ropes in a more controlled manner, then normal operations may have been able to continue and the rope may have stayed on the sheave. Mr Jessett also said that it is not clear whether the operator was attempting to recover the over-spooled rope by jerking the hoist lever and that it is possible that this was the case.

[59] Mr Jessett also said that between 3:56:00 and 3:56:41 when the bucket was stalled, the operator attempted to lift the bucket, by applying what Mr Jessett described as “significant positive reference” as follows:

● Operator attempted to retrieve rope and raise the bucket at full speed (ie. 100% positive reference) for approximately 10 seconds from 3:56:00 to 3:56:10; and
● Operator then attempted to raise the bucket at varying speeds, including a further period of nearly 100% positive reference where the operator attempted to retrieve rope at full speed for ten seconds before immediately changing to 100% negative reference and attempting to pay the rope out at full speed.

[60] On 12 December 2012, Mr Ferricks sent a further email to Mr Jessett in the following terms:

“The investigation is nearly at a close. A question has been raised by the operator that this data is only a snippet of the full shift. Can we please have the data graphed (hoist rope force and position) for an hour before the failure. Realise this takes a bit of your time, however this should put the investigation to bed...”

[61] Mr Jessett responded by email attaching a fifth graph. The covering email stated:

“Hi Ryan, don’t worry, I’ll send you the bill J

Some points of note:

1. For the first third of the chart, bucket is being returned in DUMP mode...This should be discouraged.

2. At the time of the incident, front hoist rope exceeds 100m, only time it does this for the sample period.” 28

[62] In relation to Mr Brock’s statement of evidence, Mr Jessett said that Mr Brock states that he noted a problem with his bucket when he attempted to lower it to the high wall. The Pegasys data reveals that there were three times when Mr Brock selected negative (lowering) hoist reference between 3:56:41 and the point of failure. Full negative reference was selected for one second at 3:56:41. That is unusual operating practice: it is unusual for 100% reference to be selected but particularly for it to be selected for such a short period and to be followed by aggressive positive reference as occurred at 3:56:41.

[63] The Pegasys data indicates that when returning the bucket to the highwall, other than on three relatively brief occasions where negative reference was selected, there was consistent positive reference, which means that Mr Brock was trying to lift the bucket rather than lower it. This is not something that would ordinarily occur over the course of returning the boom to the high wall. The Pegasys data also indicates that Mr Brock did not engage the swing brake contrary to his statement of evidence, although whether or not the swing brake was applied would have had no impact on the incident.

[64] In relation to Mr Belousoff’s statement, Mr Jessett said that the “magic eye” would not necessarily have detected the over-spooled hoist rope because when slack rope occurs between the boom and the bucket, rather than along the boom, the ropes stay taut at the point of the beam. During the cycle close to the failure of the rope on 7 December 2012, 100 metres of rope had been paid out from the boom, and the weight of that rope would have kept the hoist ropes taut between the house and boom point sheaves so that the sensor did not trip.

[65] In relation to Mr Pearce’s statement that a hoist rope would begin to wear immediately upon coming off its sheave, Mr Jessett said that the Pegasys data shows that from 3:56:00 to 3:56:40 the rope did not move at all and was paid out at approximately 68 metres from the boom where it stayed for that entire period - referred to by Mr Jessett as the stall. During the stall the operator tried to raise and lower the bucket by applying 100% negative and positive reference.

[66] According to Mr Jessett, the rope was in effect grinding through the point of the jam, meaning that the hoist motor was pulling not just against the force of gravity, but also the friction at the point of the jam. Photographs of the broken rope show that it was significantly damaged for a length leading up to the point of the breakage, consistent with it having been pulled through the point of the jam.

[67] Mr Jessett said that an operator may not immediately be able to tell whether a rope had come off its sheave and this would be difficult if not impossible to see from the cabin. There is also no sensor or system that verifies this occurrence. However, according to Mr Jessett, it would be immediately obvious to any operator and even more so an experienced operator, if a hoist rope had become jammed or hoist motion had been lost to the bucket for any reason. On 7 December 2012, over the long period of the stall, Mr Brock continued to apply positive hoist reference, but his bucket did not raise. He may not have immediately known why, but should have been able to tell within a few seconds that there was an obvious problem. This would have been clearer at round 3:56:20 to 3:56:30 when the contents of the bucket appear to have begun to spill, even before he selected DUMP mode.

[68] Under cross-examination, Mr Jessett agreed that when he conducted his analysis of the Pegasys data, he assumed that the last cycle during which the rope snapped, was the same as the earlier cycles and was not aware that Mr Brock stated that it was a different cycle.

[69] Mr Jessett also agreed that an automatic front slack take-up control was on in the cycle before the rope snapped and said that this function is only performed when the dragline is in DIG or CARRY mode and the system detects that the bucket is being filled with material. Further, Mr Jessett said that he has never been a dragline operator, and has read parts of the training manual for dragline operators employed by BMA but not the entire manual.

Mr Brock’s response to the analysis of the Pegasys data

[70] Mr Brock was cross-examined about the Pegasys data set out in a number of graphs he was provided with during the show cause process, which were put into a single graph appended to Mr Jessett’s witness statement, covering the period from 3:55:00 to 3:57:30. 29 Mr Brock accepted that the graph represents data about the length of the front and rear hoist ropes; the forces bearing on the ropes; the hoist lever commands being fed to the machine and the direction that the boom was pointing. Mr Brock also accepted that the data in the graph came from the Pegasys system.

[71] Mr Brock agreed that the data relating to the period from 3:55:00 to 3:55:40 is consistent with the ordinary operation of the dragline. Mr Brock further agreed that data relating to the two cycles before the one in which the rope snapped, is also consistent with the normal operation of the dragline. In the two cycles before the hoist rope snapped, when the bucket was on the ground and Mr Brock started to dig, the hoist rope was paid out to 70 metres.

[72] Mr Brock agreed that during the final cycle, the bucket was on the ground from 3:55:40 to 3:55:50, on the basis that the data indicates that there was no force on the bucket at that point, and the only way that the forces on the ropes could be zero is if the bucket is on the ground. Mr Brock also agreed that in the final cycle, when the bucket was resting on the ground, the hoist rope was paid out to approximately 80 metres, and that this was consistent with his evidence that he was working at the toe of the long wall.

[73] In response to the proposition that he had put out an additional 17 metres of rope 5 seconds later at 3:55:45, while the bucket was on the ground, and that the rope had over-spooled, Mr Brock said that he did not see an over-spool and that he did not accept that there was one. Mr Brock did not disagree with the proposition that he paid out the additional 17 metres of rope. When asked to state the basis for not accepting that there was an over-spool, Mr Brock said that there is a magic eye or infra-red sensor at the back of the hoist drum that would have tripped if there was an over-spool. Mr Brock agreed that if the combination of gravity and the momentum of the rope was pulling the rope towards the ground, the bit of the rope coming out of the house of the dragline would stay taut and the magic eye may not trip.

[74] The proposition was also put to Mr Brock that the graph shows that between 3:55:35 and 3:55:56, there were a series of hoist lever commands made that were dramatic and highly unusual. Mr Brock agreed that the movements depicted on the graph are unusual but said that he did not make them. Mr Brock initially challenged the consistency between the data about the movements and that about the rope length. However, after the proposition was put to him that the command to move the rope was “shaped” and that this explained that the lines on the graph were smoother than would be expected, Mr Brock agreed that there is no inconsistency between rope length and those movements. Notwithstanding this concession, Mr Brock maintained that he did not recall performing those movements at all and said that he was “blown away” by the data.

[75] It was also put to Mr Brock that from 3:55:40 to 3:55:50 during the final dig when the bucket was on the ground, he commenced to raise it while it was not directly under the boom. Mr Brock said that the bucket was not under the boom while he was filling it but it was under the boom by the time he started to raise it. Mr Brock agreed that when he started to lift the bucket, the heading of the drag line was 30 degrees different to the point at which he had started digging, and the drag line was digging out of plane. In response to the proposition that there is a greater risk that the rope will be pulled across the sheaves when lifting out of plane, Mr Brock said that it could happen.

[76] Mr Brock also maintained that he was not aware that there was a problem with his hoist motion until he swung back to the high wall in the last cycle after dumping the contents of his bucket, and was unable to lower the bucket. It was put to Mr Brock in cross-examination that from 3:56:00 to 3:56:42 the front hoist rope flat lined at 68 metres indicating that it had stalled, and that other than a few centimetres, the bucket did not move for that entire period.

[77] Mr Brock said that according to the graph the bucket did not move, but he managed to get it to move to the desired height and carried it to the dump. It was also put to Mr Brock that at 3:56:02 he slammed his hoist lever all the way back commanding the fastest possible amount of hoist, and that this action was inconsistent with his evidence that the bucket was at the desired height. In response to the proposition that this indicated that he wanted the bucket to rise further, Mr Brock said that he wanted it to continue to rise.

[78] In response to the proposition that the bucket was not moving despite his efforts, evidenced by the fact that rope length remained at 68 metres, Mr Brock said:

“Well I - I managed to get the bucket up high enough - or slightly above cab level to swing around to the dump, dump the load and then commence my swing back”. 30

[79] Mr Brock rejected the proposition that material started to spill out of the bucket at around 3:56:28 before he pushed the dump cycle. Mr Brock also rejected the proposition that when he began to swing back to the pit, he was still maintaining positive hoist reference, and was doing everything he could to raise the bucket, between 3:56:30 and 3:56:39. In response to the proposition that he slammed the hoist reference all the way forward to 100% negative at 3:56:41 and then back to 90% positive while swinging to the high wall, Mr Brock agreed that this is what the data indicates but said that this is not what an operator would normally do, and that he did not do it. Mr Brock also agreed that a competent operator would notice that the bucket was not moving within a few seconds.

[80] Mr Brock agreed that his evidence about the point at which he set the swing brake was wrong, and that he did not do this until after 3:57:09 when the rope broke. In relation to his attempts to trouble shoot, Mr Brock said that he did this by moving the lever for about 30 seconds, and was trying to determine why he had lost hoist, and that the bucket did not move. In response to the proposition that the bucket raised by about 18 metres to 50 metres at the point the rope broke, Mr Brock insisted that it did not move.

Other incidents involving DRE23

[81] Mr Belousoff said that he has heard stories about similar incidents involving DRE23, but has never witnessed it personally. Mr Belousoff also said that he recalled guarding being put on the sheaves to prevent this from happening, but could not recall when that occurred. In relation to the guarding on DRE23, Mr Belousoff said that he had been told in February 2013 that it had been temporarily fixed and to watch that he did not swing the bucket past boom point when operating the machine. Mr Belousoff also said that there is now a tag on the hoist lever in the cab of DRE23 stating that the bucket should not be swung due to repair of the damaged guard. DRE23 is scheduled for shut down to fix this issue, however a shutdown scheduled for May 2013 was postponed and Mr Belousoff is unsure about when the work will be undertaken.

[82] Mr Bakajlic gave evidence about an incident involving DRE23 in February 2013. Mr Bakajlic said that he filled the bucket and was attempting to lift it into the air to dump the load, but the hoist lever would not work and the bucket would not lift off the ground. Mr Bakajlic received a call on the two way radio from electricians who were working outside the dragline, to inform him that sparks were coming out of the top of the boom. Mr Bakajlic applied the brakes and called the fitters to come and look at the dragline. The fitters told Mr Bakajlic that the front hoist rope had come off the top of the sheave and lodged between the sheave and the guard. Mr Bakajlic was confined to the crib room for the next two shifts, and was told that an investigation of the incident had found that it was due to a faulty guard.

[83] Under cross-examination, Mr Bakajlic said that he noticed the bucket was not lifting almost immediately. Mr Bakajlic also agreed that Mr Hughes did not tell him that the incident had occurred as a result of a faulty guard. Mr Bakajlic further agreed that Mr Hughes later told him that he was sorry that Mr Bakajlic had been confined to a crib room during the investigation of the incident, but that this was Company policy. In re-examination, Mr Bakajlic said that after the incident there was a discussion in the office where Mr Hughes and the supervisors looked at a photograph and agreed that the guard was smashed on one side.

[84] Mr Pearce said that in February 2013, he was required to perform an inspection on DRE23 as he had been told that it had no hoist and there were sparks coming out of the boom. DRE23 was being operated by Mr Bakajlic who stated that he was picking up a load and when he pressed the carry button the bucket would not move. Electricians had told Mr Bakajlic to try to move the bucket up and down with the controls. Mr Pearce was instructed to go and look at the top of the boom. When he climbed to the boom point, Mr Pearce noted that the front hoist rope had come off the sheave and was resting on the left hand side in the guarding area between the guard and the sheave. It appeared to be jammed and would not move.

[85] Mr Pearce said that this was the third time he had seen the front hoist rope come off a sheave on DRE23. In August or September 2011 Mr Pearce attended a callout to perform maintenance on DRE23, in circumstances where the front hoist rope had come off and lodged between the sheave and the guard until it broke. The circumstances were the same as the incidents in December 2012 and February 2013. Mr Pearce identified a number of documents provided by BHP in relation to the sheaves and the guards at the boom point of DRE23. These are notification overview documents created by employees when there is an event that had, or could have resulted in adverse consequences to the environment, people, community, property or reputation. The evidence in this regard can be summarised as follows:

● Notification 401467748 dated 10/10/12 31 indicates that there is a problem with the boom point sheave guarding on DRE23;
● Work order behind the notification dated 10/10/12 contains a description “repair boom point sheave guarding” and the maintenance day inspection report states that there has been limited inspection due to damaged boom point walkway and that cracking is detected in the sheave point guarding with excessive lube build up.
● Two pictures from the inspection report entitled Figure 1-3 indicate where the guard is placed that was cracking. There is a notation on the document indicating that the inspection is partial due to a barricade being in place. There is also a notation stating “Sheave rope guard frame mounting broken lower portion”.
● Invoice for trial lift guards for DRE17, dragline similar to DRE23. These guards could be fitted to DRE23 and in Mr Pearce’s view if this was done, the hoist rope would not come out of the sheave.
● Notification 401797288 dated 7/12/12 in relation to the incident involving Mr Brock indicating that the front hoist rope has rolled out of the sheave and caught between the sheave and the guard.
● Notification dated 22/2/13 describing “ACC Dam Front Hoist Rope jammed in Sheave” which appears to indicate accident damage. This report appears to deal with the incident involving DRE23 in February 2013 which Mr Pearce attended.

[86] Mr Pearce said that based on his examination of the reports and his visual inspection of DRE23 it is his belief that from at least October 2012 until he viewed the guard in late February 2013, that the guard on the sheave at boom point on DRE23 was cracked at the top and had moved. This movement allowed the guard to flex when the dragline was operational and the hoist rope to pop out of the sheave during the normal operation of the dragline. Mr Pearce believes that this is what happened in late February 2013. Mr Pearce also said that given the report in October 2012 about the cracking of the guard and that the guard was in the same condition in February 2013 when he viewed the guard and the sheaves, the incident was caused by the guard flexing and the rope popping out of the sheave and getting caught between the sheave and the guard.

[87] According to Mr Pearce, if the operator does not notice that the rope has come out of the sheave, then it would only be a matter of time before the rope snapped. It is difficult to notice when a rope comes out of a sheave. The work orders relating to the December 2012 incident do not appear to deal with repairs to the guard and appear to be orders to replace the rope.

[88] Mr Pearce said that based on the reports for DRE23 for December 2012 and February 2013, and his personal experiences with DRE23, he believes that the two incidents are identical in nature and that in both instances the hoist rope has come out of the sheaves at the boom point, because of a cracked and flexing guard, and has lodged between the sheaves and the guard. Mr Pearce also said that the only difference between the two incidents, was that in February 2013, there were electricians on site who saw sparks coming out of the boom point and were able to report this to the operator, who was able to stop work before the hoist rope snapped.

[89] Further, Mr Pearce said that he believed that the front hoist rope could come out of the sheaves at any time the machine was operating and that the operator would not have to do anything unusual or special to cause the rope to come out of the sheaves in the manner that it did in December 2012 and February 2013.

[90] Under cross-examination, Mr Pearce was asked to comment on Mr Ferricks’ evidence that the incident of 7 December 2012 involving Mr Brock, was the first time in the last 8 years that such an incident has happened. Mr Pearce said that in August or September 2011, he was on day shift and was involved in inspecting damage to DRE23 involving the front hoist rope being broken and dangling from the end of the boom. The rope was caught on the left hand side of the sheave as it had been in the incident involving Mr Bakajlic. Mr Pearce also said that he based his belief that the guard on a sheave at boom point on DRE23 was broken since October 2011, on:

● what he saw in February 2013 after Mr Bakajlic’s incident;
● the notification and maintenance documents referred to in his evidence; and
● his observation in August or September 2011 that the guard on DRE23 was cracked and damaged. 32

[91] Mr Pearce agreed that the sheave guard he inspected in February 2013 was the sheave guard for the front hoist rope and that the top part of the guard was cracked. Mr Pearce was shown Notification Number 401467748 33 relating to repairs to boom point sheave guarding in October 2012 and agreed with the proposition that this document does not make any reference to the front hoist rope sheave or sheave guard or that cracking has developed at the top of the front hoist rope sheave guard. Mr Pearce also agreed that the only reference in this document to any issue with sheave guarding is a reference to “cracking detected” and that there is no indication as to where the cracking is or on which guard. There is also a reference to a breakage of the frame mounting on the lower portion of the guard. Mr Pearce agreed that these references were the only references to a hoist rope sheave or sheave guard.

[92] In response to the proposition that if, in October 2012, there were visible cracks in the upper portion of the sheave guard the author of the report would have noted them, Mr Pearce said that the report referred to excessive lube and this could have covered a crack. Mr Pearce also agreed that when a person is at the boom point, he or she is generally above the sheaves and would have a better view of them, and that it would be just as easy to detect a problem with the upper portion of the sheave guard as the lower one.

[93] Mr Pearce further agreed that the diagram attached to that report showed an arrow pointing to the left hand side which is the right hand side of the machine, and that there is no way that any problem with the frame mounting on the right hand sheave guard could cause a rope to come off its sheave and get jammed in the upper portion of the left hand guard. Mr Pearce also agreed that a sheave guard may develop cracks as a result of a hoist rope bumping into it and that the best way to avoid hoist ropes bumping into sheaves is to keep them taut.

[94] The proposition was also put to Mr Pearce that there is at least some possibility that the damage he observed to the front hoist rope sheave guard on 22 February 2013, was caused by the incident on 7 December 2012. Mr Pearce said that he did not accept this proposition because he did not know that it definitely happened on the night and 14 months earlier the same thing happened. Mr Pearce also said that he did not think there was any change with the sheave guarding from that point until the incident on 22 February 2013. Mr Pearce agreed that he did not know when the cracking he observed in February 2013 occurred.

[95] In relation to his statement that it would be difficult for an operator to know that a rope had jumped from a sheave, Mr Pearce agreed that if the rope jammed and the bucket stopped moving, it would be fairly easy to pick up. In relation to his statement that on 7 December 2012 and 22 February 2013 the rope came out of the sheaves at boom point because of a cracked and flexing guard, Mr Pearce agreed that a malfunctioning guard allows rather than causes a rope to come out of a sheave. Mr Pearce also maintained that the malfunctioning guard would allow the rope to come out of the sheave whether the machine was being operated properly or improperly.

[96] Mr Ferricks said that the boom point sheave guarding on DRE23 was inspected for structural integrity in October 2012. Issues had been identified on the lower right hand sheave guard on one of the sheaves at boom point and no issue with the top section of the guarding on the front rope boom point sheave was identified. Mr Ferricks also said that in nearly 100,000 cycles that DRE23 would have completed between October 2012 and February 2013 hoist ropes came off their sheaves on two occasions. Mr Ferricks also said that between 9 August 2005 and 6 December 2012, hoist ropes have come off their sheaves on six occasions, and none of the ropes broke into two sections on those occasions.

The Investigation

[97] An investigation was conducted over a six week period following the incident. During that period, Mr Brock was suspended with pay. Mr Brock was interviewed and was asked questions about the incident and to provide explanations in response to assertions that were put to him about what the Pegasys data indicated.

[98] Ms Jeays gave detailed evidence about the investigation process and her involvement in it. The investigation was disciplinary rather than safety focused and various forms of analysis employed by BHP in relation to safety incidents were not utilised to investigate the incident. Mr Ferricks decided to involve Human Resource Management staff from the outset, and said in his evidence that he did so because he was concerned that supervisors were not strong enough to ask the right type of questions.

[178] In circumstances where a rope with the dimensions and proportions of the one that was broken in the present case, it is not unfair for BHP to have taken a view that the operator should be held accountable to the extent that he was responsible for the break, and to have conducted an investigation into whether that was the case. That an investigation is thorough, is not a basis for a finding that a dismissal is unfair.

[179] I am not satisfied that Mr Ferricks’ overstatement of the cost of the incident, was given significant weight by Mr Stewart in deciding to dismiss Mr Brock. There were other matters of greater significance considered by Mr Stewart, including the potential for injury or death, or structural damage to the boom. I am also of the view that the $45,000.00 cost to repair the boom, and the lost production while DRE23 was offline for three days, was a significant impact. Further, I am satisfied that Mr Stewart did not place significant weight on the previous incidents in Mr Brock’s employment history so that the dismissal was unfair on that ground.

[180] It is also the case that while these issues were dealt with informally, and there is some conflict in the evidence about the context in which they occurred, there is no doubt that they did occur. It was not unfair for Mr Stewart to have weighed them in the balance in coming to his decision to dismiss Mr Brock. Mr Stewart gave full and careful consideration to relevant matters, he did not take into account irrelevant matters or drew inferences about Mr Brock’s conduct that were not reasonably open on the material he had before him.

[181] It is also the case that Mr Stewart properly distinguished the relative severity of the rope jumping off the sheave, and the conduct engaged in by Mr Brock after that had occurred, which caused the rope to break. Mr Brock was not dismissed because the rope jumped off the sheave. He was dismissed because of the way in which he operated the dragline after the rope jumped off the sheave, causing it to break, and the actual and potential consequences of that incident.

[182] While I accept that the dismissal has had a detrimental effect on Mr Brock’s financial circumstances, on the evidence before me, this is not a matter that outweighs the other findings made. I also accept that it is unlikely that Mr Brock will obtain alternative employment with any related entities of BHP, and that he will have difficulty obtaining employment as a dragline operator in other mines given the reasons for his dismissal. However, none of these matters outweigh the fact that there was a valid reason for his dismissal, and it was procedurally fair. It is also relevant that Mr Brock was not summarily dismissed, but was paid 5 weeks wages in lieu of notice.

[183] In all of the circumstances, the dismissal was not unfair, and I have determined that the application should be dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr A. Slevin and Mr C. Newman on behalf of the Applicant.

Mr J. Snaden on behalf of the Respondent.

Hearing details:

2013

Mackay:

July 29, 30, 31.

August 29.

1 Exhibit 1 - Witness Statement of Warren Brock - Annexure “WB-5”.

2 Edwards v Giudice 94 FCR 561.

3 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

4 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

5 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

6 Farrugia v Transadelaide SAIR 6.

7 King v Freshmore Print S4213.

8 Walton v Mermaid (1996) 142 ALR 681 at 685.

9 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

10 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.

11 Ibid at 42.

12 PR915674

13 Ibid at paragraph 35, citing Australian Broadcasting Tribunal v Bond and others (1990) 170 CLR 321 at 355; Roads Corporation v Dacakis [1995] 2 VR 5089; G v H (1994) 181 CLR 387 and Martin v Osborne (1936) 55 CLR 367.

14 Exhibit 1 - Witness Statement of Warren Brock; Exhibit 2 - Further Witness Statement of Warren Brock.

15 Exhibit 3 - Witness Statement of Scott Leggett.

16 Exhibit 4 - Witness Statement of Bronko Bakajlic.

17 Exhibit 5 - Witness Statement of Ian Belousoff.

18 Exhibit 6 -Witness Statement of George Pearce.

19 Exhibit 9 - Witness Statement of Beau Weir.

20 Exhibit 11 - Witness Statement of Andrew Malcolm Jessett.

21 Exhibit 12 - Witness Statement of Ryan Douglas Ferricks.

22 Exhibit 15 - Witness Statement of Dian Jeays.

23 Exhibit 17, Witness Statement of Jarrod Scott Stewart.

24 Exhibit 11 - Witness Statement of Andrew Malcolm Jessett, paragraph 20.

25 Exhibit 11 Statement of Andrew Malcolm Jessett Annexure “AJ-4”.

26 Ibid Annexure “AJ-4”.

27 Ibid Annexure “AJ-5”.

28 Ibid Annexure “AJ-7”.

29 Exhibit 11 - Witness Statement of Andrew Malcolm Jessett Annexure “AJ-12”.

30 Transcript 29 July 2013 PN30.

31 Exhibit 7.

32 Transcript 30/07/13 P-174 Lines 15-30.

33 Exhibit 7

34 Exhibit 1 - Witness Statement of Warren Brock, Annexure “WB-8”.

35 Sexton v Pacific National (ACT) Pty Ltd [PR931440].

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