Phillip Murray v BHP Billiton Iron Ore Pty Ltd
[2021] FWC 450
•26 FEBRUARY 2021
| [2021] FWC 450 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Murray
v
BHP Billiton Iron Ore Pty Ltd
(U2020/13774)
DEPUTY PRESIDENT BEAUMONT | PERTH, 26 FEBRUARY 2021 |
Application for an unfair dismissal remedy.
1 Introduction
[1] This decision concerns an application made by Mr Phillip Murray under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. BHP Billiton Iron Ore Pty Ltd (the Respondent) dismissed Mr Murray on 8 October 2020 for using his mobile phone whilst operating a locomotive.
[2] In respect of the criteria set out in s 387 of the Act, there was agreement between the parties that certain criteria were not in dispute. In short, Mr Murray did not cavil with the following:
a) there was a valid reason for his dismissal related to his conduct. Specifically, on 29 September 2020, Mr Murray used his phone to leave a four second message on his supervisor’s voicemail while he was operating a locomotive;
b) the Respondent notified Mr Murray of the reason for his dismissal;
c) Mr Murray was given an opportunity to respond to the reason for his dismissal;
d) the Respondent did not refuse to allow Mr Murray to have a support person;
e) Mr Murray’s dismissal did not relate to unsatisfactory performance; and
f) the Respondent had human resource management specialists within its enterprise (which was large), and therefore, this factor did not impact upon the disciplinary process.
[3] Accordingly, Mr Murray considered there were two matters in dispute. The first, was whether his dismissal was harsh. The second, was the issue of the remedy.
[4] The Respondent acknowledged Mr Murray’s concessions, noting its investigation had substantiated that on 29 September 2020, Mr Murray had used his mobile phone to call his Supervisor, Mr Mick Flux, whilst he was driving his locomotive through the Mooka Staging Facility at a speed of 22km/hr. This conduct was said to be in breach of the Respondent’s Rail Rule Book, Operating Instruction 19-69, Charter Values and Code of Conduct, and Mr Murray’s employment contract.
[5] Responding to the gravamen of Mr Murray’s case (and Mr Murray’s sole basis for contending his dismissal was unfair), the Respondent observed that given Mr Murray’s conduct was properly characterised as serious misconduct, a conclusion of ‘harshness’ was only open if there were significant mitigating factors – which there were not.
2 Preliminary matters
[6] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Murray’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21 day period required by s 394(2) of the Act. Second, Mr Murray was a person protected from unfair dismissal, as the BHP Billiton Iron Ore Locomotive Drivers Agreement 2014 1 applied to him in relation to his employment (see s 382 of the Act). Third, Mr Murray’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose.
3 Background
[7] Mr Murray became an employee of the Respondent in June 2014. He was employed as a Rail Transport Technician and was required to drive the Respondent’s iron ore trains between Port Hedland and Yandi / Newman mines in the Pilbara region of Western Australia.
[8] Before commencing work with the Respondent, Mr Murray had established his home in Thailand. His roster consisted of a work cycle of two weeks on and two weeks off. During his ‘R&R’ periods, the Respondent would fly him back to his home in Thailand and then, before the commencement of his next swing, would fly him from Thailand to Port Hedland. 2 Mr Murray said that the only reason he was in Australia was to work for the Respondent.
[9] In 2020, the coronavirus pandemic affected international travel and impacted Mr Murray’s working arrangements. Due to it becoming impossible for Mr Murray to fly back to Thailand during his R&R, it was agreed that he would work a two weeks on and one week off cycle, and would spend his R&R in a room in Perth, Western Australia. The room was leased by the Respondent, and the Respondent paid for Mr Murray’s flights between Perth and Port Hedland.
[10] Mr Murray reiterated that the only reason he was staying in Perth during his R&R was because it was impossible for him to return to Thailand. Aside from the fact the Respondent sent him to Perth for his R&R, he had no connection to Perth.
[11] To understand better the context in which Mr Murray placed the call on 29 September 2020, it is relevant to note that Mr Murray had started experiencing problems with his stomach in August 2020. 3 As Mr Murray’s doctor was purportedly unable to identify what was wrong, his doctor organised a scan for him. Mr Murray said that on 23 September 2020, he spoke to Mr Flux, informing him that his doctor wanted him to have a scan and that he may need to return to Perth mid-swing. Mr Murray said that Mr Flux informed him that it should not be a problem and to let him know when he had the appointment for the scan.4
[12] Mr Murray’s evidence was that at around 1400hrs on 29 September 2020, he was driving a train from Coonarie to Boodarie and was travelling at 21 km/hr. 5 He was passing through the Mooka Staging Facility and noted that there were no other trains nearby or anyone working, at that time.6 Mr Murray said that his train was under control, travelling at a safe speed and he was only on green signals.7 However, he was thinking about his need to travel back to Perth for the scan and picked up his personal mobile phone and attempted to call Mr Flux.8 Mr Murray explained that the purpose of the call was to ask Mr Flux to arrange a flight for him to return to Perth later in the week. However, Mr Flux did not respond, and instead, he left a message on Mr Flux’s voicemail.9
[13] On 30 September 2020, Mr Murray was called into a meeting at work and informed that the Respondent had become aware that he may have used his mobile phone while operating a train on 29 September 2020. Mr Murray said he explained to the supervisor that approached him, a Mr Cosgrove, that he had used his mobile phone and explained the reason why. Mr Murray said that Mr Cosgrove then took him for a drug and alcohol test, which came back clear.
[14] There was also a meeting on that day with Ms Catherine Saunders, Yard Operations Superintendent. 10 Mr Murray stated that Ms Saunders informed him that his conduct was a serious breach of the Respondent’s procedure and that he was no longer allowed to perform rail safety work, but was allowed to remain at work to do non-rail safety work.11 Mr Murray said that he was told there would be a further meeting on 1 October 2020 and that he could bring a support person to that meeting.12
[15] The meeting on 1 October 2020 took place with several people in attendance. Mr Murray attended, as did Ms Saunders, another supervisor, and a support person. Regarding the allegation of using his mobile phone whilst driving the locomotive, Mr Murray said that he admitted the allegation. 13 Mr Murray elaborated, noting he explained why he had used his mobile phone, apologised, and accepted that he should have waited for a more ideal time to make the call.
[16] On 6 October 2020, Mr Murray spoke with Ms Saunders and was informed that she wanted to have a ‘show cause’ meeting with him and asked if he was willing to have the meeting on that same day. 14 Mr Murray said that he agreed. Mr Murray was sent an email at 1312 hrs on 6 October 2020, outlining the findings of the investigation into his conduct. In attendance at the ‘show cause’ meeting was Mr Murray, his support person, Ms Saunders and an acting superintendent.
[17] Having been asked why his employment should not be terminated, Mr Murray detailed his response in his witness statement at paragraph 27:
I told Ms Saunders that I used the phone because I was thinking about the need to get back to Perth to have an MRI scan. I admitted I made a mistake. I explained that at the time my train was travelling at low speed and that there was no one else around, nor were there any nearby train movements, and that I was on green signals. I explained my living and family circumstances to Ms Saunders and the fact that I was stuck in Australia and could not get back to Thailand. Ms Saunders acknowledged those circumstances. I also pointed out my certificates for outstanding service to BHP. Ms Saunders said that she would go away and consider my response.
[18] Mr Murray was dismissed on 8 October 2020. He was paid five weeks in lieu of notice. In addition to that amount, the Respondent paid for an additional 30 days of accommodation. By way of observation only, it is noted that Mr Murray received a most sizeable termination payment, having accrued a substantial amount of annual leave and long service leave in addition to being paid out for days in lieu. The termination payment was ultimately in excess of $100,000.00 (gross).
[19] While Ms Saunders expressed to Mr Murray in the meeting of 6 October 2020 that the Respondent viewed his conduct extremely serious, it was not apparent from the evidence that Mr Murray was summarily dismissed.
4 Policies and procedures
[20] The Respondent submitted that in November 2019, following an incident in which a driver’s use of his mobile phone whilst driving a locomotive resulted in a derailment of the train, hospitalisation of the driver, and significant financial loss to it, it released Operating Instruction 19-69 (Operating Instruction).
[21] Extracted below are the relevant passages from that Operating Instruction
Workers that are operating rail mounted equipment shall not use audio visual equipment whilst the rail mounted equipment being operated is in motion.
…
The types of audio/visual equipment that contribute to a distraction can be but are not limited to the following: - mobile / smart phones – all functions.
[22] Ms Saunders gave evidence that the Operating Instruction was issued to all drivers and was addressed with all drivers by their line leaders at a ‘Rail Safe Start’ on 19 November 2019. 15 A copy of the Operating Instruction was also incorporated into the Rail Rule Book (Rule Book), which according to Ms Saunders’ evidence, was considered to be the ‘bible’ on safe operating practices. One presumes that Ms Saunders was simply referring to the Rule Book being an authoritative document in that work environment. Ms Saunders gave evidence that the Rule Book expressed:
Compliance with the BHP Iron Ore rail rules and procedures is mandatory…
…
All persons to whom these rules and procedures apply are responsible for ensuring they remain familiar with these rules and procedures, including any amendments issued. 16
[23] In her evidence, Ms Saunders clarified that there was not a total prohibition on ‘drivers’ or ‘Rail Transport Technicians’, as the case may be, using their mobile phones. Ms Saunders’ evidence was that drivers were permitted to use their mobile phone whilst the locomotive was stationary. In general, locomotives were said to be stationary for multiple 10-20 minute intervals on a regular basis during the course of a driver’s shift. 17
5 Further evidence
[24] At 0800 hrs on the morning of the hearing (which was due to commence at 0900hrs on 4 February 2021), Counsel for the Respondent sent a folder of documents to Chambers. Counsel expressed his intent to refer to the documents in the course of his cross examination of Mr Murray. During the hearing, Counsel sought to tender into evidence some of those documents – particularly one document which was a purported record of the speed of ‘locomotive 4348’ at particular dates and times (depicted in two graphs). Inserted on the graphs was a line on each. This line was said to be the time at which Mr Murray had made a telephone call from his mobile phone. In short, the Respondent submitted that the document was relevant as it supported its contention that Mr Murray had made a call from his mobile phone whilst driving a locomotive at another time other than the one relied upon to dismiss him. It followed, said the Respondent, that Mr Murray’s insistence that the incident was an isolated incident could not be maintained.
[25] It is arguably open to make evidentiary rulings without giving reasons. Albeit in other instances, very brief reasons would be appropriate. This is one such circumstance, and while reasons were provided during the hearing, they warrant repeating in a fulsome manner.
[26] Section 591 of the Act provides that ‘[T]he FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter)’. Although the rules of evidence do not apply in the strictest sense, it is not a licence to ignore the rules. They provide a method of enquiry formulated to elicit truth and to prevent error and therefore provide general guidance as to the manner in which the Commission chooses to inform itself.
[27] Having heard submissions from both parties concerning Counsel’s request to have the document admitted into evidence, I declined to do so. The document in question had been provided to Chambers and Mr Murray less than one hour prior to the commencement of the hearing. This is notwithstanding directions that required the Respondent to file its evidential material by 22 January 2021. On the face of the document, it was difficult to discern what the document was referring to in the absence of an explanation or submissions from Counsel. The date that the document was generated was not included on the face of the document, and neither was its source. While there was reference to a timescale, it was unclear what that indicated from a temporal perspective. A black line which appeared to be interposed on the graph bore no explanation on the document as to its meaning or significance. Counsel spoke of calling a witness to speak to the document, albeit that a witness statement had not been provided for that witness.
[28] The late presentation of the document had taken Mr Murray by surprise. Having had less than one hour to consider the document – in the absence of clarification as to the document’s contents and apparent relevance, Mr Murray was not positioned to respond to the document either by way of oral testimony or calling rebuttal evidence. It was reiterated to Counsel that there had been ample time for the Respondent to prepare its evidential case. Presenting a document on the morning of the proceedings, in the circumstances, as explained by Counsel, demonstrated the Respondent’s lack of preparedness to prosecute its case. In such circumstances, I was satisfied that the prejudicial value of the document outweighed any probative value of the document.
6 Unfair dismissal
[29] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s 385(b)).
[30] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
.... 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.18
[31] When considering whether it is satisfied that the dismissal was unfair, the Commission must take into account the matters specified in s 387 of the Act. Therefore, I have used the criteria in s 387 to frame my consideration of the matter. However, it is important to appreciate that s 387 contemplates the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
6.1 Valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees)
[32] While the Commission is obliged to take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct,19 this provision should not be construed as requiring there to be a valid reason. Although, whether there is or not will have a bearing on the decision reached.
[33] To explain further, ‘valid’ in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.20 The provision must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.21
[34] In the context of termination of employment related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice,22 and numerous subsequent decisions of the Full Bench of the Commission.23 The question is whether the conduct took place, and the Commission determines the answer based on the evidence in the proceedings before it. The test is not whether the employer reasonably believed that the conduct occurred.
[35] In this particular case, Mr Murray not only conceded that he had engaged in the conduct complained of, but that there was a ‘valid reason’ for his dismissal as that term is understood in s 387 of the Act.
[36] It was common ground that Mr Murray had used his mobile phone whilst operating a locomotive, and as such, I am satisfied the conduct took place. However, while the parties agree there was a valid reason for dismissal, it is ultimately for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.24
[37] It is accepted that failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a ‘valid reason’ for dismissal. 25
[38] In this case, I consider that the direction of the Respondent as set out in its Operating Instruction and thereafter its Rule Book, was a lawful and reasonable direction. Mr Murray’s breach of the direction gave rise to a valid reason for his dismissal.
6.2 Notification of the reason and an opportunity to respond
[39] In Gibson v Bosmac Pty Ltd 26(approved in Selvachandran27) Wilcox CJ expressed:
Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section. 28
[40] I am satisfied that Mr Murray was notified of the reason to terminate his employment and was provided with ample opportunity to respond to the same. Mr Murray acknowledges this was the case.
6.3 Support person
[41] As noted, Mr Murray conceded he was not unreasonably refused a support person at any discussions relating to his dismissal.
6.4 Warnings about unsatisfactory performance
[42] As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing Mr Murray. It follows that this criterion has little bearing on the overall assessment of whether Mr Murray’s dismissal was harsh, unjust or unreasonable.
6.5 Size of the Respondent’s enterprise and dedicated human resource specialists
[43] The Respondent is a large enterprise which employs dedicated human resource specialists. It did not contend that the procedures followed in effecting the dismissal were affected by any absence of dedicated human resource expertise or by its size.
6.6 Any other matters considered relevant
[44] Mr Murray advanced that he was an outstanding employee having received several certificates of recognition during his time with the Respondent. 29 The last certificate had been received just prior to his dismissal (one month). In short form, Mr Murray argued that the overwhelming point was that there had been one incident in a good career. That incident was an anomaly.
[45] Counsel for Mr Murray submitted that Mr Murray provided an explanation for making the call, was remorseful and assumed responsibility for it. Counsel pressed that employees will make mistakes at work, and unfortunately, it is one of those things that happen. Counsel continued that if the Commission were to take a step back and look at the entire context, the only reasonable conclusion was that the incident on 29 September 2020 was a blip in an otherwise outstanding career.
[46] Mr Murray was an international worker, and due to the coronavirus pandemic, he had agreed to stay in Western Australia for the course of the pandemic. Counsel for Mr Murray submitted that the Respondent was aware that Mr Murray was an international worker, and that the termination of his employment would have a more detrimental effect on him than someone who was domiciled in the area. Counsel noted that a ‘normal employee’ would return to her or his family, apply for jobs and have around them a family and support network. However, in Mr Murray’s case, there was no way for him to get back, and after a month, he was a person with no fixed address in Australia. While it was acknowledged that Mr Murray had received his outstanding payments for accrued entitlements, Counsel cautioned that this was not the test under s 387(h), and the dismissal had a disproportionate effect on Mr Murray.
[47] Insofar as the incident was concerned, it was advanced on behalf of Mr Murray that the Respondent had over-egged the matter when it classified the dismissal as serious misconduct or considered it sufficiently serious to justify dismissal. It was observed that Mr Murray’s train was travelling at a relatively slow speed, he was on green signals and there were no other trains or people around. No one was hurt and nothing was damaged, stated Counsel.
[48] To the extent that Mr Murray submitted, no one was hurt, or nothing was damaged, detracts from the point that he placed, at a minimum, himself in imminent danger when his focus turned away from driving or operating the locomotive. Instead, his concentration momentarily shifted to making a call on his mobile phone. In his oral evidence, Mr Murray went as far as to say to the effect that he did not realise he had picked up the mobile phone and made the call. This was because his health condition was creating a lot of pressure within him. However, I do not consider that this assists Mr Murray. If Mr Murray was so lacking in concentration that he was not aware that he was making the phone call, it was at least arguable that he should not have been driving the locomotive on the day in question and should have absented himself from work – it was open to find that it was his duty to do so. Counsel traversed various mitigating factors, including the slow speed at which Mr Murray was travelling, the absence of persons near rail tracks and Mr Murray being on green signals. However, at hearing, Mr Murray’s evidence was such that he made no assessment of the risk before placing the phone call while driving the locomotive on that day.
[49] A dismissal may not be harsh, unjust or unreasonable notwithstanding the existence of a valid reason. 30 The criteria in s 387 guide the decision maker in the assessment of fairness, and this is essential to the notion of ‘a fair go all round’. For this purpose, the factors which weigh in favour of the dismissal not being harsh, unjust or unreasonable must be balanced against relevant mitigating circumstances that weigh against a finding that the dismissal was fair.31 In circumstances involving breaches of safety procedures, the weighing exercise needs to consider an employer’s obligations to uphold safety standards in the workplace.32
[50] Ms Saunders provided evidence about the impetus for the introduction of the Operating Instruction. It was the breach of that same direction that the parties agreed constituted a valid reason for dismissal. The Operating Instruction was a lawful and reasonable direction. The reasonableness arose in part because the Operating Instruction sought to avert an incident or catastrophe due to inattention when driving a locomotive. This was an occurrence that had already occurred in 2019. To the extent that it precluded a certain behaviour, the evidence established that there was not a blanket prohibition on having mobile phones in locomotives, and a driver was permitted to use her or his mobile phone in specified circumstances whilst on the locomotive. At all times, it had been open to Mr Murray to use his mobile phone when the locomotive was stationary.
[51] The Respondent required strict compliance with the Operating Instruction. It was evident that this had been mandated, and the Respondent was entitled to enforce the Operating Instruction. Although Mr Murray was not summarily dismissed, the characterisation of the conduct as ‘serious’ was not misplaced. The conduct constituted a critical safety breach in respect of the ‘Instruction’.
[52] I have no doubt that the loss of a regular income and access to other entitlements such as accommodation that came with his full-time work, will, and has, impacted Mr Murray.
[53] However, I do not find that Mr Murray’s age, usual place of residence, length of service and future employment prospects weigh so heavily in his favour so as to render the dismissal harsh, unjust or unreasonable. Indeed, the balance of the matters considered at s 387(h) weighs against such a conclusion.
7 Conclusion
[54] Having taken into account each of the matters specified in s 387 of the Act, I am satisfied that the Respondent had a valid reason for dismissing Mr Murray based on his conduct. Further, I am unable to conclude that Mr Murray’s dismissal was harsh, unjust or unreasonable and am satisfied that the outcome I have determined ensures a ‘fair go all round’ has been accorded to the parties. It therefore follows Mr Murray’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application. An order 33 to that effect is issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Cory Fogliani for the Applicant;
Mr Philip Murray for the Applicant;
Mr James McLean for the Respondent.
Hearing details:
Perth (video hearing)
2021
February 4
Printed by authority of the Commonwealth Government Printer
<PR726524>
1 [2014] FWCA 3534; PR551099.
2 Witness Statement of Phillip Murray (Murray Statement) [8].
3 Murray Statement [13].
4 Ibid [ 16].
5 Ibid [17].
6 Ibid.
7 Ibid.
8 Ibid [18].
9 Ibid.
10 Ibid [23].
11 Ibid.
12 Ibid.
13 Ibid [24].
14 Ibid [25].
15 Witness Statement of Ms Catherine Saunders (Saunders Statement) [14].
16 Ibid [15].
17 Ibid [17].
18 (1995) 185 CLR 411, 463.
19 Fair Work Act 2009 (Cth) s 387(a).
20 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
21 Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36].
22 (1999) 169 ALR 89, 92.
23 King v Freshmore (Vic) Pty Ltd, Print S4213 (Ross VP, Williams SDP, Hingley C).
24 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
25 B, C, and D vAustralia Postal Corporation t/as Australia Post[2013] FWCFB 6191 [36].
26 (1995) 60 IR 1.
27 Selvachandran v Peteron Plastics Pty Ltd (1995) 61 IR 371.
28 Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200 [26]; Osman v Toyota Motor Corporation Australia Ltd PR948009.
29 Murray Statement [11].
30 B v Australian Postal Corp (2013) 238 IR 1 [41].
31 Ibid [58].
32 BHP Coal Pty Ltd v Schmidt (2016) 257 IR 11 [8]
33 PR727345.
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