Nathaniel Hill v AJ Lucas Coal Technologies Pty Ltd

[2012] FWA 8982

[2012] FWA 8982

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathaniel Hill
v
AJ Lucas Coal Technologies Pty Ltd
(U2012/1232)

COMMISSIONER ROBERTS SYDNEY, 21 DECEMBER 2012

Application for unfair dismissal remedy - vehicle accident - misconduct by negligence - procedural fairness considered.

[1] This decision concerns an application lodged on 25 May 2012 by Mr Hill (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by AJ Lucas Coal Technologies Pty Ltd (Lucas or the Company).

[2] The application was dealt with by a Fair Work Australia Conciliator on 14 June 2012 but the conciliation was unsuccessful. The matter was then set down for arbitration hearing before me in Sydney on 2 September 2012. Final submissions were in writing and the submission process ended on or about 23 November 2012.

[3] At the hearing Mr Hill represented himself with the assistance of his father Mr D Hill and Lucas was represented by Ms A Cochrane of the Australian Mines and Metals Association. Mr B Farlow (a Lucas employee) and Mr Hill gave sworn evidence for the Applicant and Mr H Johnston (Rig Manager), Mr W Maxfield (Senior Drilling Assistant) and Mr S Archibald (Field Work Health & Safety Advisor) gave sworn evidence for the Company.

Background

[4] Mr Hill commenced employment with Lucas as a Level 1 Drilling Assistant in the coal seam gas division in February 2010. In August 2010, he was promoted to Level 2 Senior Drill Assistant. Lucas performs contract drilling operations at the Xstrata-owned Ulan Coal Mine (the Ulan Mine).

[5] On 30 April 2012 Mr Hill was involved in a vehicle accident at the Ulan site while driving a Company vehicle on a private road known locally as ‘Mad Mick’s Driveway’.

[6] Lucas conducted an on-site investigation on 1 May 2012 and Mr Hill was stood down whilst the Company concluded its investigation process. The findings of the investigation were that Mr Hill had breached the Company’s OH&S policies, which amounted to serious misconduct. Mr Hill’s employment with Lucas was terminated with effect from 14 May 2012. Lucas relies entirely on the Applicant’s alleged misconduct on 30 April 2012 to ground its decision to terminate his employment and has not raised any performance or associated issues.

[7] The termination letter dated 14 May 2012 provides as follows:

“Dear Nathaniel

As discussed with you today 14th May 2012, your recent conduct has been reviewed by the company and is deemed unacceptable and constitutes gross misconduct for reasons as outlined below:

• Wilfully and knowingly breached the AJ Lucas Code of Conduct Policy and the Occupational Health and Safety Policy. Specific examples of these breaches include:-



• 30th April 2012



• At 5.10 pm you left the drill site to attend a physiotherapist appointment in Mudgee. In order to attend this appointment, you were required to travel along the site road (Mad Mick’s Driveway) in a Company Vehicle.



• At this point, you drove the Company vehicle at 65km p/h along the site road, knowingly exceeding the site speed limit of 50km p/h.



• While driving, you took your eyes off the road to look for your wallet in your backpack, wilfully acting in a reckless and dangerous manner which resulted in an accident.

AJ Lucas expects employees and contractors alike to comply with a standard of personal conduct, as outlined in the AJ Lucas Code of Conduct and Occupational Health and Safety Policy. The AJ Lucas Code of Conduct and Occupational Health and Safety Policy sets out:

• The appropriate standard of behaviour for all personnel;



• The principles of the policy as well as indicative examples of acceptable and unacceptable behaviour.

This letter confirms that AJ Lucas Coal Technologies Pty Ltd will be terminating your employment effective today, 14th May 2012.

The Company’s payroll department will endeavour to have any applicable payments deposited into your nominated bank account in the next available pay run. All final documentation will be forwarded to your home address.

Regards

Todd Herbert

Project Manager - Exploration NSW

AJ Lucas Coal Technologies Pty Ltd”

Evidence

Mr Farlow

[8] Mr Farlow gave sworn evidence. In summary, it was Mr Farlow’s evidence that he is employed as a driller with Lucas and that the Applicant worked as his offsider at the Ulan site.

[9] Mr Farlow said that the speed limit on the Ulan site was 60 kilometres per hour unless otherwise signposted. He went on to say that the location of the accident on 30 April 2012 was not signposted. 1

[10] In his further evidence, Mr Farlow said that he drove Mr Hill back to Sydney on 1 May 2012 and observed him to be “pretty messed up”. He went on to say that Mr Hill was in an emotional state during that trip. 2

[11] In cross-examination, Mr Farlow said that, during the trip on 1 May 2012, Mr Hill expressed concern about losing his job. 3

Mr Hill

[12] Mr Hill gave sworn evidence and relied on his primary written submissions as his witness statement. 4 In summary, it was Mr Hill’s evidence that:

• He was employed by Lucas initially as a Level 1 Drilling Assistant in the coal seam gas division under the terms of the AJ Lucas Drilling Division Exploration Enterprise Agreement 2010.



• “Throughout my employment period, I performed all duties diligently and professionally, followed all lawful directions and requests from all who asked. I was often praised for my work ethic and daily contributions.”



• He has never been issued with any type of warning or been the subject of disciplinary action or counselling. In August 2010, he was promoted to Level 2 Senior Drill Assistant.



• His October 2011 performance review found no problems with his work or attitude.



• “My recent performance review, training path and assessments set out by the Respondent made promotion and an increase in remuneration a certainty.”



• He suffered from a workplace injury on 3 April 2012 which necessitated physiotherapy and chiropractic treatment.



• On 30 April 2012, he utilised a Company vehicle to attend a doctor’s appointment. “Whilst driving I had an unfortunate accident, where [I] misjudged a corner and the vehicle slid out of control.”



• On 1 May 2012, he attended the scene of the previous day’s accident with Mr Johnston, Mr Archibald, Mr Ward and other Lucas employees.



• During the investigation he was asked how fast he had been travelling and replied that “I don’t know maybe 60 or 65 km an hour”. He was feeling under stress at the time.



• “I also recall that Mr Johnston explained to Mr Archibald that the tyres on the vehicles were not four-wheel drive tyres.”



• The vehicle was not fitted with an Internal Vehicle Monitoring System (IVMS).



• On 6 May 2012, Mr Ward informed him that he had been stood down on full pay until further notice.



• He began to suffer severe headaches and dizziness.



• “On Friday the 11th of May 2012 I emailed Mr Terry Ward, explained that it had been over a week and I was wondering when I would be allowed back on site.”



• On 14 May 2012, Mr Johnston attended his home and gave him the termination letter.

[13] In his supporting oral evidence, Mr Hill said that he “was driving to the conditions” and was not speeding. 5 Mr Hill went on to say that he took his eyes off the roal on 30 April 2012 whilst looking for his wallet: “I glanced over to where my bag was, as I was fidgeting, and I said it was the same time it would take to look over your shoulder to check when changing lanes or to change the channel on the stereo, or sometimes to change gears. It was only for a second.”6

[14] In cross-examination, Mr Hill said, in summary:

• That he denied ever saying that he had been speeding. 7

That he was not running late for his medical appointment. 8

Was asked: “Is it true that you looked into your bag for a second time after that?” and answered: “Yes, I thought I'd felt my wallet so I've - I was driving, I've glanced over, I've glanced over, I thought I had my wallet and I've looked back up and then this sharp part of the corner came up and that's when I yanked on the steering wheel and the back tyre came off the track. And when that happened it was - it's a very loose unsealed sort of road. It was quite slippery and there was actually a camber off the side of the road, and when the back wheel came off I sort of instinctively accelerated to try and get back onto the track and correct the car. And at that point, you know, it started to slide more and I - as I was trying to correct it I lost control and - which led to me hitting the culvert and then the ditch, and rolling.” 9

[15] Mr Hill was then questioned extensively about the on-site investigation on 1 May 2012. He agreed that he had been asked for his version of the events of 30 April but said that he was not asked to review the notes made by Company staff or to sign any documents. 10 Mr Hill agreed that on 1 May 2012 he told management everything he knew.11

Mr Johnston

[16] Mr Johnston gave sworn evidence and submitted a witness statement 12. In his statement, Mr Johnston said, in summary, that:

• He has been employed by Lucas since 2006.



• He is currently employed as Rig Manager of the Drilling Services Division, based at Muswellbrook, New South Wales and is responsible for the day to day management and support of ten drill rigs. He reports to the Project Manager and has three supervisors reporting to him.



• When undertaking Mr Hill’s yearly performance review in October 2011, no performance issues were identified and “it was determined that Lucas would step him up as Trainee Driller when a position became available.”



• “Safety at Lucas is a number one priority and great efforts are put in place to promote safety and safe work practices. In my experience, any breach of safety on sites would result in disciplinary action.”



• He was advised by Mr Ward (Area Supervisor) at approximately 5.45 pm on 30 April 2012 of the vehicle accident at the Ulan site.



• He was advised by Mr Ward that Mr Hill told Mr Ward that he had been travelling 70 kilometres per hour in a 50 speed limit zone when the accident occurred.



• A drug and alcohol test was undertaken by Mr Hill at Mudgee Hospital which came back as clear.



• On 1 May 2012 he attended the scene of the accident at the Ulan site with Mr Hill, Mr Farlow, Mr Maxfield, Mr Ward, Mr Archibald and Mr Thompson. He and Mr Archibald commenced an investigation into the accident by inspecting the site and taking photographs.



• Mr Archibald later asked Mr Hill how fast he was travelling at the time of the accident and was told “about 65 kilometres per hour”. That speed was clearly in breach of the OH & S policies.



• “As part of the investigation, Mr Archibald asked Mr Farlow to drive his company vehicle around the same bend at 40 and then 50 kilometres an hour to establish what speed would be comfortable. This is because Mr Archibald and I had determined that the bend would not be safe at 65 kilometres per hour.”



• “Even though Mr Hill had been driving a Hilux Ute and Mr Farlow had tested the bend in a Landcruiser Ute (which meant the vehicles were not exactly comparable in height, width, weight or tyres), the exercise established that a vehicle could bend safely at 50 kilometres per hour but it was much more comfortable at 40 kilometres per an hour.”



• Mr Hill was given the opportunity to present his version of events during the investigation at all times.



• At the end of the initial investigation meeting on 1 May 2012 he and Mr Archibald advised Mr Hill that the investigation would be ongoing and he would be notified of the outcome.



• He and Mr Archibald later recorded the outcome of their investigation in the Lucas Incident Report Form and submitted the form to Xstrata.



• Following the incident on 30 April 2012, the rig at the Ulan site was shut down entirely pending the outcome of the investigation. “Mr Herbert and I decided that it was necessary to do this whilst we satisfied ourselves and Xstrata that it was safe for Lucas to continue operating on the Site.”



• On 3 May he and Mr Herbert met with the General Manager of Xstrata, Mr Clifford. “During the meeting, Mr Clifford stated that the Lucas contract at the Ulan site was in jeopardy. As an outcome of that meeting, Lucas was required to prove that we were capable of operating the job safely in order to retain the contract at the Ulan site. After that meeting, I understand that Lucas prepared an OHS plan which was submitted to Xstrata for approval before Lucas could recommence work. The rig remained shut down for a period of 7 days. All Lucas employees (except Mr Hill, who remained stood down) were required to be re-inducted to the Ulan site before they could commence work again. The re-induction training took place in Muswellbrook on 7 May 2012.”



• He advised Mr Hill some time after 3 May 2012 that he would remain stood down pending a decision from Mr Herbert as to what disciplinary measure would be taken in response to the incident. “I told him that it was likely that any consequence would be severe.”



• He discussed the findings of the investigation with Mr Herbert and decided that Mr Hill had breached the Company’s OHS Policies by “i. Choosing not to comply with the 50km/hr speed limit; ii. Failing to keep his eyes on the road (stay focused); and iii. Failing to stop his vehicle before retrieving the phone number.”



• “In my experience and based on these findings, termination of Mr Hill’s employment was an appropriate outcome. Mr Hill’s behaviour was not safe conduct. His conduct was so serious that he could have killed himself or suffered severe personal injury. His conduct also meant that Lucas could have lost its contract to perform drilling work at the Ulan Site.” He later discussed his views with Mr Herbert and recommended termination of Mr Hill’s employment.



• He was advised by Mr Herbert on 14 May that decision had been made to terminate Mr Hill’s employment for breach of OHS Policies.



• He delivered the letter of termination to Mr Hill’s home on 15 May 2012.

[17] In cross-examination, Mr Johnston said that he believed that the private road on which the accident occurred on 30 April 2012 was signposted as 50 kilometres per hour, however he did not check this as part of the investigation. 13

[18] Mr Johnston went on to say that Mr Hill did not raise anything concerning the findings of the investigation but was not given an opportunity to discuss those findings prior to his employment being terminated. 14

[19] Mr Johnston went on to say that the tyres on the vehicle driven by Mr Hill on 30 April 2012 were fitted by the manufacturer and the tyres were in good condition. 15

[20] In re-examination, Mr Johnston said that the finding by the Company that Mr Hill had been speeding on 30 April 2012 was based on Mr Hill’s admission. 16 Mr Johnston went on to say that he and Mr Archibald were the persons who prepared the investigation report.17

Mr Maxfield

[21] Mr Maxfield gave sworn evidence and submitted a witness statement 18. In his statement, Mr Maxfield said, in summary, that:

• He has been employed by Lucas since November 2004 as Senior Drilling Assistant at the Ulan Mine.



• “In my experience, safety is taken very seriously on coal mine sites because the work we do on site is high risk.”



• On 30 April 2012 he and Mr Farrow were travelling along the dirt access track when they saw Mr Hill “who had rolled his vehicle, and at that time was at the side of the track.” He did not witness the accident.



• He and Mr Farrow got out of the vehicle and assisted Mr Hill.



• Mr Hill said words to him to the effect: “I was on my way to the physio. I reached over for my bag, got caught on the side of the road, and before I started to slide I thought I’d accelerate but I lost control of the vehicle and rolled.”



• He did not ask Mr Hill at what speed he was travelling.



• “Based on the accident scene that I witnessed and in my experience, Mr Hill is lucky that he was not killed on account of this incident.”

[22] In cross-examination, Mr Maxfield said that there was no signpost in the area where the accident occurred and therefore the accepted speed limit was 60 kilometres per hour. 19 He went on to say that the particular track where the accident occurred was not signposted anywhere.20 Mr Maxfield went on to say that he has been a regular user of that road.21

[23] Mr Maxfield was then asked about other employees who had been involved in accidents and whether they were still employed or not. 22

Mr Archibald

[24] Mr Archibald gave sworn evidence and submitted a witness statement 23. In his statement, Mr Archibald said, in summary, that:

• He has been employed by Lucas since March 2007 initially as a driller assistant. From 2010 he became the Field Work Health & Safety Advisor and is responsible for supporting the implementation of the Company’s OHS Management System.



• “Given the high risk nature of the environment in which we operate and the high standard of safety obligations, both Xstrata and Lucas take safety matters very seriously.”



• The OHS Policies which apply to all Lucas employees at the Site include: “1. The policies at 3.0 of the Project-specific OHS Management Plan; 2. The Lucas Code of Conduct Policy; and 3. The Lucas Occupational Health and Safety Policy.”



• “Before commencing employment at the Site, every Lucas employee is required to complete induction training about the OHS Policies that apply on the Site and which are required to be followed at all times.”



• Mr Hill signed the Ulan Coal Site Familiarisation Guide on 8 November 2011 to confirm that he had completed the induction requirements to work for Lucas at the Site.



• Lucas employees are required to attend weekly Toolbox Talks/Safety Training meetings.



• “On 21 January 2012, Mr Hill attended a Toolbox Talk/Safety Training meeting during which requirements to meet speed limits on the Site were reinforced by Terry Ward, Area Supervisor in Drilling Operations.”



• On 30 April 2012 Mr Ward reported the accident in which Mr Hill was involved.



• On 1 May 2012 he attended the Site to commence an investigation into the incident in accordance with the Lucas Incident Procedure. He and Mr Johnston inspected the Site, took photographs of the access track, path of travel, the vehicle and the surrounding area.



• “After the inspection was complete and all the photographs were taken, I requested that the group gather around and asked Mr Hill to explain the sequence of events surrounding the Incident. I took down details of the Incident as provided to me by Mr Hill and noted them in my diary. All information provided was clarified there and then, and there was no dispute on any of the information I recorded on that day.”



• During his interview with Mr Hill, Mr Hill said to him that immediately prior to the incident he was travelling “probably 65 kilometres per hour” and that “Yes, I was speeding. I stuffed up.”



• “Many times throughout the interview, Mr Hill stated that he was not concentrating at the time of the Incident and had ‘stuffed up’ by exceeding the speed limit of 50 kilometres per hour on the track.”

[25] Mr Archibald’s statement goes on to detail the steps in finalising the investigation and in effecting the termination of Mr Hill’s employment. The evidence is in line with that of Mr Johnston.

[26] Before Mr Archibald was cross-examined, the following exchange occurred between him and myself:

“COMMISSIONER: If it was established that the speed limit on that road was 60 kilometres an hour and not 50 would that influence your view at all?

MR ARCHIBALD: No it wouldn't because ... of the behaviour that Nathan displayed in terms of deliberately taking his focus off the road, not once but twice, when he stated to us that he knew he shouldn't have done that, and he was aware of the implications at the time. I believe that that's still unacceptable behaviour.” 24

[27] In cross-examination, Mr Archibald agreed that the Incident Report listed the wrong number plate for the vehicle involved in the accident on 30 April 2012. He put this down to “a simple clerical error on my behalf when I typed the Incident Report”. 25 In summary, Mr Archibald went on to say:

• That he agreed that Mr Hill had not completed a motor vehicle accident form as required by the incident management procedure. 26



• That he believed that Mr Hill had been involved in the incident management process and the incident report form. 27

That he agreed that Mr Hill was not present at the time he filled out the Incident Report form on 1 May 2012. 28

That he led the investigation but the report was completed by himself and Mr Johnston. 29

That everybody involved in the investigation on 1 May 2012 had been on the opinion that the speed limit where the accident occurred on 30 April was 50 kilometres per hour. 30

That he agreed that Mr Ward had not signed the Incident Report. 31

[28] In re-examination, Mr Archibald said: “if he'd focused on the road and driven to conditions he would not have come off the road.” 32 Mr Archibald went on to say that the route Mr Hill took to leave the Ulan site was a normal one.33

Submissions

The Applicant

[29] Mr Hill filed written submissions in which he denied speeding on 30 April 2012 and asserted that he was suffering from severe headaches and dizziness on 1 May 2012 when the onsite inspection and investigation occurred. He went on to say: “I admit to making an honest mistake that is reflected as human error, bad judgement and totally out of character.” Mr Hill submits that his actions on 30 April 2012 did not constitute serious misconduct as they did not occur due to any “conscious design or purpose”.

[30] Mr Hill went on to say: “The Respondent is a sizable and reputable company that did not follow their employment termination procedures or duty of care. a. The failure to allow me to have reviewed and respond to the investigation findings. b. The failure to provide me with advance warning of the subject matter of the meeting of 14 May 2012. c. The apparent resistance to the involvement in the process and the Respondent’s failure to inform me that my employment was actually going to be terminated on the 14 May 2012. d. The delivery of the termination letter (handed to the applicant on departure of the supervisor) and not explained. e. The failure to allow and inform me of my right to have a support person at the termination meeting 14 May 2012. It is fundamental to the concept of procedural fairness that the 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.”

[31] Mr Hill also relied on his good employment record and the alleged failure of Lucas to properly investigate the accident. He went on to say: “The fact that I took my eyes off the road for a second may have contributed to the accident but the road conditions, lack of signage and an unregistered vehicle without the appropriate tires are contributing factors that cannot be ruled out as they were not investigated. I have twenty years driving experience and I have never been in a motor vehicle accident as my driving record indicates. I think it can be said that we take our eyes briefly off the road every time we drive. We look over our shoulders to check the blind spot before changing lanes, we change the radio station or adjust the volume on the radio and we look when we hear a horn or loud noise. This was purely an unfortunate accident; I did not wilfully and knowingly break any policies intentionally.”

The Company

[32] The Company filed written submissions. In its outline of submissions 34, Lucas summarised its position as follows:

“a. there was a valid reason for the dismissal relating to serious safety breaches by the Applicant which jeopardised the health and safety of the Applicant and other employees;

b. the Applicant was notified of that reason;

c. the Applicant was given an opportunity to respond to that reason;

d. there was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;

e. the dismissal did not relate to unsatisfactory performance by Applicant;

f. the size of the Respondent’s enterprise and the absence of dedicated human resource management specialists at the Respondent’s site impacted only on the procedures followed in delivering the termination decision; and

g. the serious consequences of the Applicant’s conduct (including serious risk to safety of the Applicant and others and the serious threat to the Respondent’s commercial relationship with Xstrata) are also relevant matters which should be taken into account in support of the Respondent’s contention.”

[33] In its outline, Lucas relies on two failures in the conduct of Mr Hill on 30 April 2012:

“a. Speeding excessively, and

b. Failing to concentrate on the task of driving a vehicle by allowing his attention to be distracted.”

[34] The Outline goes on to say:

“The evidence reveals that, at all times, the Applicant understood that the consequences of his conduct on 30 April 2012 could include termination of his employment. ... A Full Bench of this Tribunal has endorsed the view that the mere characterisation of an employee’s action as ‘carelessness does not derogate from the seriousness’ of the action or the possible consequences of the actions. (Parmalat Food Products Pty Ltd v Mr Kasian Wililo [2011] FWAFB 1166])”

[35] In further written submissions, Lucas re-iterated much of the material contained in its Outline. The Company went on to say that the question of whether the vehicle was registered or not or whether it was fitted with IVMS are not relevant to my consideration. It makes the same submission in relation to any errors or omissions in the Company Incident Report Form.

[36] The Company’s further submissions argue that it relies on the Applicant’s admissions as to the speed he was travelling on 30 April 2012 and that he took his attention from the road on at least two occasions to rummage in his backpack. The submissions go on to say: “The Respondent therefore submits that even if the investigators were wrong in their finding that the speed limit on the relevant part of the road was 50KPH, and the speed limit was in fact 60KPH, the Applicant, by his own admission, was travelling at 65KPH (and therefore speeding). Therefore, whether the speed limit was 50KPH or 60KPH, the Applicant was travelling at either 15KPH or 5KPH in excess of the speed limit.”

[37] “It is therefore submitted that in the alternative, FWA should make a finding on the balance of probabilities that even if Applicant did not look down at his speedometer to find out what speed he was doing immediately prior to the accident, he was driving too fast for prevailing conditions, as required by the Respondent’s policies. This is based on the fact that:

• The Applicant was not travelling at a speed that enabled him to safely navigate the bend in the road (as evidenced by his failure to control the vehicle and prevent it from leaving the road and rolling); and/or



• The Applicant was not travelling at a speed that was safe and appropriate given the condition of the dirt road, the fact there were bends in the road, the fact that he was deliberately and repeatedly taking his eyes off the road to rummage in his bag and the fact that he was repeatedly driving with only one hand on the wheel.”

Conclusions and Findings

[38] It is common ground between the parties that Mr Hill’s employment was terminated at the initiative of the Company by way of a letter delivered to him by Mr Johnston on 14 May 2012. The Company relies on serious misconduct by Mr Hill on 30 April 2012 as a valid reason for the termination of his employment.

[39] Much of the evidence and submissions from Mr Hill went to the question of his performance whilst working for Lucas. However, performance issues are not relied upon as a reason for the termination of Mr Hill’s employment and I will therefore not consider the question of Mr Hill’s work performance in determining his application for relief except as a factor in my consideration of harshness. It would appear that Mr Hill’s work performance was of a high order and that he seemed to be set for a successful career with Lucas.

[40] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[41] As the Applicant’s conduct on 30 April 2012 was the sole reason for the termination of his employment, I have to determine for myself whether the impugned conduct occurred and, if so, its nature and then, depending on the outcome of my determination of the earlier matters, whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 35:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[42] In Container Terminals Australia Limited v Toby 36, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”37

[43] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 38 said:

“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[44] In Qantas Airways Ltd v Cornwall 39, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[45] In Edwards v Justice Giudice 40, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[46] I have formed the view that the Company witnesses were truthful in their evidence as to the process conducted after the accident on 30 April 2012. I am also of the view that Mr Farlow’s evidence was truthful but that evidence has not been of great significance in the making of this decision except as it related to the non-signposting of any speed limit at or near the accident site. Here, I also note and accept the evidence of Mr Maxfiled that the area around the accident site was not signposted as 50 kilometres per hour maximum speed.

[47] I have no reason to believe that Mr Hill’s evidence was not intended to be truthful as to the events on 30 April 2012 and subsequently. However, his own evidence in proceedings, together with his written submissions, did not ultimately contradict the core of the evidence and submissions from the Company.

[48] Firstly I will deal with the speed limit question. As I note above, I am satisfied that the maximum speed on Mad Mick’s Driveway was, at the time of the accident, 60 kilometres per hour. Whether it was 50 or 60 kilometres per hour in the end is not crucial. The irrefutable fact in this case is that Mr Hill was involved in a serious single vehicle accident on a road he was apparently familiar with in circumstances where he admits to rummaging in his backpack and attempting to retrieve his wallet on at least two occasions whilst he was driving. The accident did not necessarily occur due to excessive speed but rather to Mr Hill’s inattention and negligence. He said he was not running late for his appointment in Mudgee and I do not know if he was or if he wasn’t. However, he chose to take his attention from the road rather than stopping the vehicle and this caused the accident. Mr Hill put his own life in danger and caused considerable damage to Company property. Mr Hill’s defence of his negligent inattention boils down to an argument that “everybody does it”. That argument in no way exculpates Mr Hill. Ultimately, no matter what the speed limit Mr Hill was driving too fast to allow him to both drive safely and rummage in his backpack at the same time. Speed limits are maxima and can only ever be taken as a guide in conjunction with driving conditions. There is no suggestion that the accident involved any type of intent by Mr Hill.

[49] I am satisfied that the Company’s investigation of the accident gave rise to conclusions that were certainly open to Lucas to make in the light of the physical evidence and the admissions made by Mr Hill. I therefore find that there was a valid reason for the termination of Mr Hill’s employment based on Mr Hill misconducting himself on 30 April 2012. In making this finding, I reject Mr Hill’s evidence and submissions as to the vehicle being in anyway defective. Whether it was formally registered or not is not relevant as the accident occurred whilst driving on private property. The provision of an IVMS would certainly have been most helpful in determining this matter but its absence is not a factor which can be counted against the actions of the Company in terminating Mr Hill’s employment. I accept the evidence of Mr Johnston as to the vehicle’s tyres.

[50] The accident caused significant disruption to the Company’s operations for Xstrata at Ulan. It put its contract at risk, caused the drilling rig to be shut down for seven days and forced all Lucas employees to re-undergo induction training. The time and money cost to both Lucas and Xstrata would have been significant.

[51] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“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.”

[52] In Byrne v Australian Airlines 41, McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[53] The question of valid reason is dealt with above.

[54] It is clear that Mr Hill was notified of the reason for the termination of his employment by way of the letter delivered to him on 14 May 2012 and I so find. It is further clear and I find that Mr Hill was not given an opportunity to respond to any allegations against him as the dismissal letter was presented as a fait accompli. The input gained from Mr Hill during the on-site investigation on 1 May 2012 did not constitute an opportunity to respond as it only appears to have involved a process of ‘getting his side of the story’ and he had no definite knowledge that his employment was in jeopardy until he was dismissed and it was too late for him to respond to any allegations against him.

[55] It follows that the manner in which the Company conducted its investigation after 1 May 2012 until the termination of Mr Hill’s employment denied him the right to have a support person of his choice present during any discussion with the Company prior to his dismissal. As noted earlier in this decision, the question of unsatisfactory performance does not arise in these proceedings.

[56] The size of the employer’s enterprise is a factor which is likely to have impacted on the procedure followed in effecting the Applicant’s dismissal. On what is before me, I conclude that the size of the Company’s operations and its access to professional advice should have led it to conduct a procedurally fair process leading up to the dismissal and I so find. The industrial relations environment in the mining industry is such that any employer participant should know that due process in such matters is essential.

[57] The Company argues that “the absence of human resources at its isolated sites (including the Ulan Site) is a mitigating factor”. In response, I note my comments in the preceding paragraph.

[58] Lack of, or deficiencies in procedural fairness do not necessarily invalidate an employer’s dismissal of an employee. However, in the case before me the procedural failures are such that I find that the termination of Mr Hill’s employment was procedurally harsh and denied him natural justice. However, I have also formed the view that if the termination process had been procedurally fair, it is highly unlikely that any other result would have occurred.

[59] The deficiencies in the Incident Report Form identified by Mr Hill concerning such matters as the wrong registration number of the vehicle being recorded and the absence of a signature are not in my view of any great significance. What is of significance is the Company’s failure to involve Mr Hill in any way in the completion of that report. After 1 May 2012, Mr Hill made attempts to find out what was going on in relation to the investigation but was not given any significant information until he received the letter of termination. It is disingenuous of the Company to attempt to argue that during the 14 day investigation period, Mr Hill was free to provide any input he wished. However, I can see no merit in any complaint by Mr Hill that the investigation took 14 days to complete.

[60] Section 390 of the Act provides:

“390 When FWA may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

[61] In all the circumstances of this case, reinstatement would in my mind be undesirable. The mining industry is one where safety considerations and a good attitude to safety by both employees and employers are paramount. Mr Hill’s negligence on 30 April 2012 is not conducive to making reinstatement a practical remedy. I therefore find that reinstatement is not an appropriate remedy in this case.

[62] Where reinstatement is not ordered, the Tribunal may order the payment of monetary compensation. Subsection 392(2) of the Act sets out the criteria for deciding a suitable level of compensation:

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

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

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

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

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

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

(g) any other matter that FWA considers relevant.”

[63] In relation to subparagraph (a), I find that the effect of the order I intend to make will not have any obvious effect on the viability of the Company. In relation to subparagraph (b), I have taken into account the duration of Mr Hill’s employment with the Company. In relation to subparagraph (c), I am satisfied that Mr Hill’s employment prospects with the Company were good prior to 30 April 2012 and that he would have continued in the employ of Lucas for a significant period. In relation to subparagraph (d), I am satisfied that the Applicant has made efforts to mitigate his loss. I have also paid regard to subparagraphs (e) and (f). In relation to subparagraph (g), I have considered Mr Hill’s age, skills set, the financial effect on him arising from the dismissal and the effect of the dismissal and the grounds for it on him in obtaining other suitable employment in the short term.

[64] Subsection 392(3) of the Act provides that:

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

[65] In the case before me I am satisfied and have found that misconduct by Mr Hill occurred and this provision is therefore relevant to my consideration. My assessment of the contribution by the Applicant towards the Company’s decision to terminate his employment has been factored into the quantum of compensation that I have decided to award.

[66] All in all, I find that the termination of Mr Hill’s employment was for a valid reason but was procedurally harsh and denied him natural justice. An order will be issued that Lucas pay him a total of four weeks wages (less appropriate tax according to law) to be paid at the rate the Applicant was earning as at the date of the termination of employment. Should there be any dispute between the parties as to the monetary amount to be paid, the matter can be referred back to me within 14 days of the date of this decision for settlement. I have arrived at the figure of four weeks wages after applying a discount to the amount which I would otherwise have awarded had the Applicant’s conduct not led to his dismissal to such an extent. The sum awarded is to be paid within 14 days of the date of this decision. I wish to make it clear to the parties that my finding as to harshness is solely derived from my assessment of the fundamentally unfair process followed by the Company in effecting the dismissal. Given the facts in this case, had the Company followed a fair and transparent process, it is far less likely that any award would have been made in Mr Hill’s favour given my views as to his conduct on 30 April 2012.

[67] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.

[68] An order reflecting this decision is in PR530459.

COMMISSIONER

Appearances:

N Hill, the Applicant.

A Cochrane for A J Lucas Technologies Pty Ltd.

Hearing details:

2012.

Sydney:

3 September.

Final written submissions:

23 November 2012.

 1   Transcript PNs167-169.

 2   Transcript PN190.

 3   Transcript PNs242-243.

 4   Exhibit Hill 6.

 5   Transcript PN261.

 6   Transcript PN423.

 7   Transcript PN450.

 8   Transcript PN455.

 9   Transcript PN532.

 10   Transcript PNs555-556.

 11   Transcript PN574.

 12   Exhibit Lucas 4.

 13   Transcript PNs831-835.

 14   Transcript PN842-843.

 15   Transcript PNs922 and 935.

 16   Transcript PNs967-968.

 17   Transcript PNs969-972.

 18   Exhibit Lucas 7.

 19   Transcript PN1044.

 20   Transcript PN1046.

 21   Transcript PN1052.

 22   Transcript PNs1061-1075.

 23   Exhibit Lucas 8.

 24   Transcript PNs1232-1233.

 25   Transcript PN1253.

 26   Transcript PNs1273-1275.

 27   Transcript PN1290.

 28   Transcript PN1293.

 29   Transcript PNs1312-1314.

 30   Transcript PNs1356-1358.

 31   Transcript PNs1411-1412.

 32   Transcript PN1468.

 33   Transcript PN1487.

 34   Exhibit Lucas 9.

 35   Print S4213, 17 March 2000.

 36   Print S8434, 24 July 2000.

 37   Ibid at para 15.

 38 (1995) 62 IR 371 at 373.

 39 [1998] FCA 865.

 40 [1999] FCA 1836.

 41 (1995) 185 CLR 410.

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<Price code C, PR530458>