Mr Wayne James Francis v Kalgoorlie Consolidated Gold Mines Pty Ltd T/A KCGM

[2010] FWA 5472

[2010] FWA 5472

FAIR WORK AUSTRALIA

DECISION

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

Mr Wayne James Francis
v
Kalgoorlie Consolidated Gold Mines Pty Ltd T/A KCGM
(U2009/13637)

COMMISSIONER WILLIAMS PERTH, 28 JULY 2010

Termination of Employment.

Introduction

[1] This decision arises from an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act) made by Mr W J Frances concerning the termination of his employment by Kalgoorlie Consolidated Goldmines Pty Ltd (KCGM).

[2] The matter did not settle at conciliation and Mr Frances chose to proceed to arbitration.

Background

[3] Mr Frances was employed as an Underground Supervisor by KCGM at the Mt Charlotte mine.

[4] On the morning of 20 October 2009 Mr Frances was directing and assisting employees to move an electric cable to a lower level within the mine. The electric cable weighed approximately 2.5 kg per metre. During this operation the rope being used to lower the cable broke causing one end of the cable to fall down a vertical shaft. This had the effect of pulling the remaining cable, which was being coiled up in a lower horizontal level of the mine, down the same vertical shaft. The cable uncoiled very rapidly striking one employee and causing an injury to his knee.

[5] Following this incident KCGM conducted an investigation into the incident.

[6] By letter on 29 October 2009 KCGM's General Manager Mr Cole advised Mr Frances that his employment was being terminated because of his involvement in the above incident and his actions after the incident which amounted to breaches of KCGM standards that were unacceptable and had undermined KCGM's confidence in his commitment to maintaining a safe workplace and observing the companies standard operating procedures.

[7] Mr Frances employment was terminated with pay in lieu of notice of four weeks wages.

[8] At the hearing Mr Frances gave evidence as did Mr Smyth who was present when the incident occurred.

[9] The respondent called evidence from a number of members of staff working at Mt Charlotte being Ms Michaud the Superintendent, Mr Simpson the Senior Mining Engineer and Mr Braybrooke the Underground Safety and Training Coordinator. In addition evidence was called from Mr Oram the Manager Mining to whom Ms Michaud reports and Mr Stay, another employee working with Mr Frances whom was injured in the incident.

The issues

[10] The central issue in this case is the validity of the conclusions that KCGM drew from its investigation which are expressed in the letter of termination.

[11] The letter reads as follows:

Dear Wayne,

This letter is to formally advise you that your employment with Kalgoorlie Consolidated Gold Mines Pty Ltd (KCGIVI) has been terminated effective Thursday 29 October 2009. The reasons for this decision are outlined below:

On 20 October 2009, as the Mt Charlotte Underground Shift Supervisor, you supervised and participated in the relocation of an electrical cable from the 600 level to the 700 level by lowering it down the ROS2 ladder access way. During the relocation of the cable, the supporting rope gave way, thus causing the cable to descend in an uncontrolled manner. As a result of the cable's descent, an operator assigned with the responsibility of assisting in the cable's descent sustained a knee injury.

An investigation into the incident stated above has been completed (AIRS 63459). The following actions by you have been identified during that investigation as being in breach of KCGM standards.

It is a requirement that individuals operating at KCGM conduct a Job Hazard Analysis (JHA) in the absence of an appropriate standard operating procedure (SOP) for the task, or when a task is identified as having the potential to cause harm. This is required to identify all hazards associated with a task, to undertake an assessment of those risks, and control those identified hazards prior to completing the task to ensure the safety of all those working at KCGM. In the investigation you admitted that in the absence of an SOP for the task identified above you did not complete a JHA prior to commencing the task.

During preparation for the lowering of the cable, a Service Crew member approached you in regards to concerns they had with the method and equipment being utilised. During this discussion, you discounted the Service Crew member's concerns and continued with the original method of lowering the cable. By dismissing the Service Crew member's concerns you withdrew from your responsibility to remain proactive in promoting a safe workplace and undermined your Duty of Care as a Shift Supervisor.

Following the transfer of the injured person to KCGM's Occupational Health Nurse you failed to report the incident to either the Mt Charlotte Superintendent or her nominated Deputy. It was not until you were approached by the Mt Charlotte Superintendent approximately three hours later that she became aware of the incident. Due to the serious nature of this incident and the accompanying injury to the Mt Charlotte employee, the delay in reporting this incident to the Mt Charlotte Superintendent or her nominated Deputy is unacceptable. The Company requires a timely response in reporting incidents, in particular incidents of such a serious nature, to ensure its ability to reduce any further negative outcomes, as well as to allow for a comprehensive and prompt investigation to be conducted.

KCGM takes its duty of care obligations in relation to employees safety and welfare very seriously. Your behaviour outlined above is unacceptable and has impacted severely on the confidence that KCGM management and your team have in your work performance and commitment a safe work place and to the Company's Standard Operating Procedures.

[12] The hearing focused on the three central complaints set out in the letter of termination specifically that Mr Frances had:

• Failed to conduct a job hazard analysis (JHA).



• Discounted another employee's concerns about the method of lowering the cable.



• Failed to report the incident to the Mt Charlotte Superintendent or her Deputy.

Job Hazard Analysis

[13] In terms of the incident itself the applicant concedes that his judgment on the day in question was poor and he accepts responsibility for what occurred.

[14] With regard specifically to having failed to complete a Job Hazard Analysis (“JHA”) it is submitted on behalf of the applicant and his evidence was that at the time of the incident he was not aware that it was mandatory to use JHA's 1. His evidence was that historically at Mt Charlotte JHA’s had not commonly been used but they were used on occasions. His evidence was that JHA’s were filtering in to use at Mt Charlotte.

[15] His evidence was that whilst the electricians were usually responsible for moving the particular cable other employees had carried this out in the past and that no JHA had been completed on these occasions and there had been no concern raised by anybody about this.

[16] In contrast the respondent’s witnesses, in particular the Superintendent of Mt Charlotte Ms Michaud, says that from August 2009 it was a mandatory requirement for Mr Frances and other employees to complete a JHA where there was no applicable standard operating procedure for the work to be undertaken 2.

[17] Obviously the very fact that the respondent says it implemented mandatory JHA’s from August 2009 is demonstration of the fact that prior to this date they were not mandatory, which is consistent with Mr Frances evidence. As Ms Michaud said a line in the sand had been drawn meaning there was a change at some particular point. Further the evidence is that in September, after the supposed mandatory introduction in August of JHA’s, training was being provided by KCGM for some employees on how to complete JHA's.

[18] Whilst I accept the respondents argument that Mr Frances had sufficient experience at his previous workplace (Kanowna Belle, owned by Barrick which is a part owner of KCGM) in the use of similar systems that he did not require training to complete JHA's the fact that training was being provided in September, not before August, supports Mr Frances's interpretation that what was happening was a soft introduction of JHA's, i.e. that they were filtering in to Mt Charlotte.

[19] I note that as part of the evidence of Mr Oram the KCGM LIFESAVING RULES were provided 3 and that these have a note at the base indicating that their date of origin was 1 August 2009. There is no mention in these rules of JHA's. In any event there was also no evidence that the KCGM LIFESAVING RULES as included in Mr Oram’s statement had been provided to Mr Frances although he did acknowledged they applied4.

[20] If it was KCGM's intention that as of 1 August 2009 completion of JHA’s would be mandatory in the absence of an applicable standard operating procedure and that failure to do so could result in termination there is no evidence that this change of policy was communicated to the employees. It is significant that KCGM has not provided any evidence that the new requirement for all employees to complete JHA's was specifically communicated to Mr Frances. No evidence of e-mails or memos or notices regarding this new requirement being communicated to employees generally let alone Mr Frances in particular were provided 5. The respondents evidence is limited to a general statement that there were meetings held in which the new requirement of mandatory JHA's was discussed6. No specificity is given as to what was discussed and the tribunal is being asked to make the assumption that Mr Frances was present for these discussions. This is in contrast to Mr Frances repeated statements that he was not aware they were mandatory7.

[21] Having considered the evidence of all the witnesses I am not persuaded that at the time of the incident Mr Frances was aware that completion of JHA's were mandatory in the absence of applicable standard operating procedures.

Discounting the concerns of Mr Smyth

[22] The letter of termination indicates that during preparations to lower the cable another employee approached Mr Frances with concerns about the method and equipment to be used and states that:

“....... you discounted the Service Crew member’s concerns and continued with the original method of lowering the cable. By dismissing the Service Crew members concerns you withdrew from your responsibility to remain proactive in promoting a safe workplace and undermined your Duty of Care as a Shift Supervisor.”

[23] The applicant submits that the evidence demonstrates that this conclusion by KCGM is not supported by the facts.

[24] The member of the Service Crew referred to in the letter of termination was Mr Smyth.

[25] Mr Smyth's witness statement says that Mr Frances showed him what he intended to do in terms of lowering the cable and how they would attach a rope to the cable before lowering it down. Mr Smyth says he asked him “Would the rope support the cable?”.

[26] Mr Smyth says that Mr Frances then took the load up with the rope and it held. He then says “I was satisfied it would be safe”.

[27] Mr Smyth confirmed this in his oral evidence 8. Hewas cross-examined on this and made it plain in his replies that at no time did he feel that Mr Frances had ignored his concerns, rather to the contrary having voiced his concerns Mr Frances demonstrated that the rope was strong enough to take the load of the cable and following this demonstration Mr Smyth was satisfied that the method was safe9.

[28] Mr Smyth rejected the characterisation that KCGM had placed on these events in the letter of termination that his concerns were discounted or dismissed by Mr Frances.

[29] Clearly the characterisation of these events by KCGM in this way was wrong as was their consequential criticism of Mr Frances.

Failing to Report the incident

[30] The applicant submits that Mr Frances did not fail to report the incident. Rather it is argued that he reported the incident at the nursing station when he took the injured employee there for first aid and that he attempted to report the incident to the Superintendent's Deputy Mr Barrymore but he was not at his office. It is submitted that he left a message as to what was going on with the only person he could find at the office block which was a Graduate Engineer.

[31] KCGM argues that Mr Frances was required to either directly advise the Superintendent or her Deputy about the incident but did not. It is submitted that this could have simply been done by contacting her on the radio and advising her there had been an incident but he failed to do this.

[32] There is little dispute in the evidence about what occurred in this instance. Mr Frances took the injured employee to the first aid station. His view is that this act triggers the commencement of the investigation process because a report will be developed by the nurse.

[33] Considering the arguments on this issue my view of this is that whilst this may be the case, this does not deal with his obligation to report the matter. The nurse in such a situation will be aware of the injury and perhaps get a report from the employee injured but will not necessarily have any details of how the injury occurred. The report that is required of an employee is firstly that an incident has occurred and then the details of the circumstances and what caused the incident and any consequential injuries. This is particularly so for somebody in Mr Frances's position as a supervisor.

[34] Mr Frances's view that by attempting to report to Mr Barrymore he has complied with his obligations is also in my view deficient. It was simply inappropriate and is not sufficient to discharge his obligations to leave a message with another person let alone a Graduate Engineer.

[35] In this regard I accept the view of the respondent that the requirement for a timely response in reporting incidents to the appropriate authority is important and in this instance the applicant failed to do this. This is particularly so in this case where there is no doubt that the incident involved a real risk of a fatality or a gravely serious injury to either of the two employees in the vicinity of the uncoiling cable.

[36] Having formed this view though I do not suggest that the applicant had in any way attempted to conceal the incident.

The decision to terminate

[37] Following the incident an investigation was undertaken by an investigation team. That team was chaired by Mr Braybrooke and consisted of himself, Mr Simpson and Mr Theodosiou, a Safety Representative.

[38] Statements were taken from Mr Frances, Mr Staley, Mr Smyth and Mr Cameron.

[39] A report was prepared by the investigation team. This report, including the findings and recommendations, were considered by KCGM's management group.

[40] The management group is made up of Mr Oram the Manager Mining plus the Manager of Processing, the Manager of Engineering, the Manager of Mine Technical Services, the Manager of Environmental Health and Safety, the Manager of Community Relations, the Manager of Corporate Services and Mr Cole the General Manager.

[41] Ms Michaud also attended the meeting when the management group considered the investigations team's report.

[42] The investigation teams report recommended disciplinary action be taken - that Mr Frances receive a final written warning 10.

[43] The process was that the management group would consider and discuss the investigation team's report and then Mr Oram would make a recommendation to Mr Cole. It was Mr Cole's final decision as to what action would be taken 11.

[44] The management group viewed the appropriate action to take was the termination of Mr Frances. Mr Oram agreed with this and this was recommended to Mr Cole who made the decision to terminate Mr Frances.

[45] Nobody in the management group met with Mr Frances. The management group including Mr Oram were not aware of Mr Frances employment history and record or any other matters other than the investigation team's report 12.

[46] There was no formal communication between KCGM and Mr Frances between the date he was stood down, which was the day he was interviewed by the investigation team and gave his statement and when he received his letter of termination.

[47] Mr Frances was not provided a copy of, nor formally advised of, the investigation team's report or its findings however he did hear informally what it had recommended in terms of disciplinary action.

[48] Mr Frances was not given an opportunity to respond to the investigation team’s findings nor to put any other matters forward to KCGM to consider before they decided to terminate him 13.

[49] Mr Cole did not meet with Mr Frances 14. There is no evidence that Mr Cole was aware of Mr Frances employment history or employment record prior to making his decision to terminate Mr Frances. Mr Cole was not called to give evidence.

Was the dismissal unfair?

[50] Section 387 of the Act specifies the factors the tribunal must take into account when determining whether a dismissal was unfair as follows:

s. 387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

(h) any other matters that FWA considers relevant.

Was there a valid reason for the dismissal

[51] Whilst as found above the reasons the respondent set out in its letter of termination for the dismissal were flawed in a number of ways the tribunal is not limited to consider only the reasons given by the employer for the termination 15.

[52] In this case the applicant was the supervisor who devised, oversaw and participated in the moving of the electrical cable in a manner that not only lead to an employee being injured but had the potential to result in a double fatality. Further as found above the applicant did not comply with the requirements to report the incident as was required of him.

[53] Notably section 387 (a) expressly refers to the person's capacity or conduct “...including its effect on the safety and welfare of other employees”. It has previously been held that these words include reference to conduct by an employee that is not wilful malicious or intentional conduct “... but conduct that can imperil or put other employees in the workplace in jeopardy.” 16

[54] This is the case here. The actions of Mr Frances that led to the incident were not wilful malicious or intentional but did directly result in an injury to an employee and did place other employees at serious risk. In my view therefore these actions of Mr Frances were a valid reason for dismissal.

[55] In addition as I have found above Mr Frances did not fully comply with the requirements of KCGM to report the incident and that in my view also was a valid reason for dismissal.

Was the person notified of the reason for the dismissal?

[56] Notification of the valid reason must be given to the employee before the decision to terminate is made, as was explained by the Full Bench in Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, S5897 at PN 73:

(i) “As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.”

[57] In this matter the reasons for the dismissal were detailed in the letter of termination provided by Mr Cole the General Manager. KCGM did not prior to this notify Mr Frances of the reasons for which it intended to terminate his employment.

[58] KCGM did not notify Mr Frances of the reasons for his dismissal until after the decision to terminate had been made.

Was there an opportunity to respond to the reason for the dismissal

[59] Neither Ms Michaud, Mr Frances’ immediate superior, Mr Oram the Mine Manager, Mr Cole the General Manager nor any of the other managers within the KCGM management group meet with Mr Frances before the decision to terminate his employment was made.

[60] Mr Frances was never given an opportunity to respond to the findings of the investigation team.

[61] Mr Frances was not advised of the reasons why his employer intended to terminate his employment. There was no opportunity provided to Mr Frances to respond to the reasons before the decision to terminate his employment was made.

Was the person allowed a support person to be present during discussions

[62] Given there were no discussions with Mr Frances leading up to the termination of his employment regarding KCGM's intention to terminate him this is not a relevant consideration.

To what degree does the size of the respondent's enterprise impact on the procedures followed

[63] KCGM is a large employer with over 700 employees according to the response filed to this application.

[64] KCGM clearly conducted a thorough safety investigation into the incident central to the applicant’s dismissal. However by contrast the manner in which it has dealt with Mr Frances employment demonstrates a significant deficiency in terms of the procedure followed.

[65] The process followed by KCGM whereby Mr Frances was not made aware prior to the decision to terminate him of why KCGM intended to terminate his employment and was not given a chance to respond to those reasons is a significant failing in proper procedures that should be afforded to an employee before a decision is made to terminate their employment.

[66] An employer the size of KCGM would be expected to have appropriate procedures in place that would be followed when considering action against an employee that may result in termination.

To what degree does the absence of human resource specialists impact on the procedures followed

[67] While there is only limited evidence regarding the existence of human resource specialists 17 an employer the size of KCGM with over 700 employees will no doubt have on staff some human resource specialists. Consequently it would be expected that appropriate procedures for the termination of employees would be followed.

Other relevant matters

[68] As is commonly the case when considering whether or not an employee has been dismissed unfairly it is appropriate to consider Mr Frances employment history and work record.

[69] According to the application Mr Frances was first employed at Mt Charlotte on 2 January 2007 however his witness statement indicates it was in January 2008. He was terminated on 29 October 2009.

[70] There was evidence and submissions from the parties that Mr Frances had come to work at KCGMfrom Barrick Gold and that his letter of appointment said that this would be treated as an inter-company transfer between Barrick Gold and KCGM 18. I also note that KCGM in its case relied on the training Mr Frances had undertaken at his previous place of work being Kanowna Belle, a mine then operated by Barrick Gold. Apparently Barrick Gold is a part owner of KCGM.

[71] In the circumstances it is relevant to consider not just Mr Frances's period of employment at Mt Charlotte but also to recognise that he did have employment with a related employer which together totalled approximately 11 years service 19.

[72] It is also a relevant matter that there is only one previous blemish on Mr Frances employment record and that was that in early 2009 when he received a verbal warning for driving at 10 km an hour in a 5 km hour zone on the surface of the mine.

Conclusion

[73] In this case there was a serious safety incident in which the applicant was involved and for which he was responsible. In addition this incident was not properly reported by him. I am satisfied that the actions of Mr Frances in this case were a valid reason for his termination.

[74] However following the investigation into this incident the process that KCGM followed which ultimately led to the decision to terminate Mr Frances's was fatally deficient.

[75] Before the decision to terminate him was made Mr Frances was not advised of the reasons for which KCGM intended to terminate him and as a result he had no opportunity to respond to those matters. Further the employer did not consider any other relevant matters such as Mr Frances length of employment and good work record before deciding to terminate him.

[76] There are good reasons why the legislation questions whether an employer notified the employee of the reasons for the dismissal before the dismissal occurred and whether the employee had an opportunity to respond to those reasons before the decision to terminate was made. In this case given my findings above that two of the three reasons relied upon by KCGM for the termination were not wholly correct it may be that if Mr Frances was given an opportunity to respond to the reasons KCGM believed he should be dismissed for, a different decision might have been made by KCGM.

[77] Having reviewed the factors which I must consider, as detailed in section 387, I am satisfied that the dismissal of Mr Frances was both harsh and unjust.

Remedy

[78] Whilst the dismissal was harsh and unjust for the reasons explained I do accept that the respondent has lost trust and confidence in Mr Frances such that reinstatement is not appropriate.

[79] An order for compensation in lieu of reinstatement is appropriate in my view.

[80] Mr Frances is 55 years of age and has been without work for eight months. He has applied unsuccessfully for many jobs in that time but has now gained other employment on similar wages to that which he was earning at Mt Charlotte and began that work on 21 May 2010. Whilst there is some doubt as to the actual length of service, he was employed for between two or three years by KCGM.

[81] In all the circumstances of the case an appropriate amount of compensation is for KCGM to pay Mr Frances three months wages. An order to that effect will accompany this decision.

COMMISSIONER

Appearances:

Ms C McKenzie of McKenzie & McKenzie Barristers & Solicitors on behalf of the Applicant

Mr A Cameron of the AMMA on behalf of the respondent

Hearing details:

2010.

Kalgoorlie:

June 29, 30.

 1   PN 212,218, 291, 391.

 2   Michaud Witness Statement Para 24 ,25, 29, PN 1062

 3   Oram Witness Statement at Annexure A

 4   PN 263

 5   PN 1063

 6   PN1062

 7   PN 212,218, 291, 391

 8   PN 639 TO 646

 9   PN 805 TO 807

 10   PN 215 TO 217 , 1773.

 11   PN 1777

 12  PN 1780 to 1801.

 13   PN 1834 to 1836.

 14   PN 1767

 15   MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106 at pn 42.

 16   Gottwald v Downer EDI Rail Pty Ltd, [2007] AIRC 969 at pn 102.

 17   Frances Witness Statement at Para 47

 18   PR 1909 to 1914

 19   Frances Witness Statement at Para 72

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