Stephen Maguire v BHP Billiton Iron Ore Pty Ltd

[2019] FWC 8046

[2019] FWC 8046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Maguire
v
BHP Billiton Iron Ore Pty Ltd
(U2019/2298)

COMMISSIONER WILLIAMS PERTH, 3 DECEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] BHP Billiton Iron Ore Pty Ltd (BHP or the Respondent) operates a private rail network subject to the Rail Safety National Law (WA) Act 2015 (Rail Safety Act). This legislation and the associated Rail Safety National Law (WA) Regulations 2015 impose a range of duties upon BHP as a rail operator to eliminate or minimise risks to safety so far as is reasonably practicable. Those duties operate in addition to BHP’s duties under the Occupational Safety and Health Act 1984 (WA) (OSH Act).

[2] Mr Stephen Maguire (Mr Maguire) was employed by BHP as a Track Maintenance Coordinator. He was dismissed due to events that occurred on 12 January 2019.

[3] It is common throughout the rail network for curved sections of steel rail to be held in place at high stress which store energy as a result. An uncontrolled release of that stored energy can result in the rail ‘bowing’ out, sometimes at high speed, and poses a hazard for employees in the vicinity.

[4] On 12 January 2019, a work order required the changing of rail pads which sit between the rail foot and the sleeper. This involved a procedure starting with the removal of a number of clips which secure the rail to the sleeper, then raising the rail with a jack, replacing the rail pads, then lowering the rail and finally replacing the clips.

[5] Mr Maguire attended the work site and observed the work the team was undertaking. Ultimately a section of rail bowed outward approximately 15 centimetres.

[6] Mr Maguire oversaw a change to the work method in order to re-align the rail, which was undertaken successfully. No one was injured.

[7] Subsequently, BHP became aware of the rail bowing incident and an investigation was undertaken.

[8] Following the investigation Mr Maguire was dismissed. The letter of termination refers to a series of allegations concerning breaches of BHP Charter Values and Code of Conduct and failing to comply with a Safe System of Work. The letter says specifically BHP found that he had failed to apply the appropriate risk assessment for a higher risk activity after the team identified material risks on the job, failed to risk assess a change which led to an event; and that he had failed to comply with BHP’s Hazard and Task-based Risk Management Procedure. The letter stated that BHP had lost faith in his ability to perform his role in a safe manner and ensure the safety of himself and other employees.

[9] Mr Maguire was terminated with five weeks pay in lieu of notice.

[10] At the hearing of this matter Mr Maguire gave evidence and the following witnesses were called in support of his application, Mr Darryl Giles, Mr Phil Garth and Ms Cassandra Smith.

[11] The Respondent called the following witnesses; Mr Sarawana Peramalu, Mr Damjion Luff and Mr Lucas Tavo.

Factual Findings

[12] Mr Maguire commenced his employment with BHP in November 2010.

[13] He was initially employed as a Track Technician, then 12 months after commencing he was appointed as a Track Maintenance Coordinator. He explained his role was to coordinate and manage a crew of individuals and maintain railways in and around BHP's mine sites.

[14] The position description for his role of Rail Execution Coordinator or Track Maintenance Coordinator 1 at the outset explains that the role “..is to enable workgroups to safely execute their day-to-day schedule of planned and break-in activities, by managing a risk and safe work practices to meet schedules and productivity targets...”.

[15] There are extensive references to, and a heavy emphasis on, safety throughout the position description.

[16] A small number of examples of these relevantly are:

“To complete track activities safely by managing risk in line with agreed procedures…”

“Teams have strong safety culture embedded while working in line with charter values. Every person challenges unsafe behavior and unease to support the safe delivery of all tasks, on schedule within budget while we transition to a precision railway

Each execution coordinator will have extensive knowledge of the Code of Practice, Safe Working Procedures and understand how to implement Track Protection and Execute work to the Code of Practice.”

“Report all events/incidents and unsafe acts immediately to the supervisor”

“Manage all hazards and risk in accordance with the Hazard and Task-based Risk Management Procedure SPR – HIS – SAF – 004, and understand the material risks and be able to verify the controls are in place and effective to mitigate those risks to personnel through thorough auditing”.

“Enable, Educate and enforce the safe execution of all tasks, utilising BHP processes such as the safe systems of work and hierarchy of control amongst the many”.

“Material risks need to be discussed with controls implemented and understood for the day’s activities.”

[17] To manage safety risks BHP appoints certain employees as “section 22 officers”,which involves a delegation of the General Manager’s obligations under section 22 of the Occupational Safety and Act 1984 (WA).

[18] Mr Maguire was appointed as a Railroad Operations section 22 appointed person 2. Whilst Mr Maguire does not remember undertaking any specific training for this role his evidence was, he had been requested from time to time to complete various online training modules. His evidence was that section 22 appointed persons include line managers, including crew coordinators, who meet obligations set out in the training and competency requirements.

[19] The Respondent’s evidence was that the two online training modules that Mr Maguire had referred to were the basic beginning modules and that the safety culture involves daily conversations, coaching and mentoring and support from BHP’s leaders. 3

[20] One of the applicable training modules is titled “BHP iron ore induction: am I safe on-site? Risk Mitigation” 4.This is a module in which track technicians are trained. The first page of the script under a heading ‘Job Hazard Analysis’ reads as follows:

“By now, you know there are a number of different ways we manage risks at BHP Billiton Iron Ore. In an earlier module, we learned how the Take 5 helps to identify hazard risk levels. When your Take 5 risk assessment identifies a risk level of H 11 or higher, you need to complete a JHA.

You’d use a JHA if completing a complex task involving multiple shifts, or any time a task requires a permit. You also need to complete a JHA if you’re doing new nonroutine tasks, when using new equipment, if a work situation has changed, or if there was no procedure or work instruction to cover the task, or if directed by your supervisor”.

(Underlining added)

[21] Mr Maguire accepted and understood his obligations as a section 22 appointed person. These included ensuring employees under his control had adequate information, instruction and training to perform the work in a safe manner, ensuring they were adequately supervised, were aware of potential hazards in the work area and the required controls to mitigate those and that he would ensure employees under his control would comply with the safe system of work established for a task. 5

[22] Mr Maguire is aware of both risk assessment tools, being the Take 5 process or the JHA (Job Hazard Analysis). 6

[23] Mr Maguire accepted under cross examination that stored energy events such as a rail bowing have the potential to harm employees. 7

[24] On 12 January 2019, Mr Maguire was working out of the work site office in Newman. Also in the office were Mr Daryl Giles, the Track Maintenance Supervisor and Mr Jason Guelfi, a Trainee Coordinator.

[25] A crew of employees being Phil Garth, Rhett Dunn, Danny Axcell, Don Manson and Sammy Paramelu were at a site which required track maintenance. This site was five minutes from the office in Newman.

[26] Mr Maguire’s evidence was that the maintenance task the crew was undertaking required the replacement of the pads that are underneath the steel rail. The pads are between the foot of the steel rail and the steel rail sleeper.

[27] His evidence was that the crew arrived at the worksite around 9.00 a.m. His evidence was that the crew completed the on-site safety briefing and worksite protection permit including the ‘Take 5 Risk Assessment’ chart and they said that they had viewed the work instructions regarding changing of sleeper pads and application and removal of clips and fasteners.

[28] However, under cross examination Mr Maguire conceded he had not checked that all employees had signed the on-site briefing. In fact, only three employees signed that document. The document was not signed by the entire work group who were in attendance. Mr Maguire was unaware of this because he had not checked the document. 8

[29] His evidence was the crew agreed to replace six (6) pads and to remove a further eight (8) pads. Each pad is located 600mm apart, therefore, to change six (6) pads would involve a rail distance of 3.6 m, eight (8) pads a distance of 4.8 m and so on. At all stages his evidence was he believed the crew assessed and agreed with small advancements in the job which they reported to him.

[30] Mr Giles and Mr Maguire then decided to attend the work site. Mr Maguire arrived with Mr Guelfi about five minutes before Mr Giles.

[31] Upon arrival at the job site Mr Maguire says they had a group discussion of the potential health and safety risks of removing the pads from beneath the rail. There were a number of risks which they as a group spoke about including:

•  Remove LOC clips with no one standing in the line of fire (i.e. line of risk);

•  How many clips were to be removed at each time;

•  Who will jack the rail up;

•  All personnel to stand clear when jacking;

•  Once jacking has finished, crew to replace pads;

•  Use of pens, wedges or ruler to remove old pads;

•  Use of small hammer to put new pads in place; and

•  At no stage was anyone to place their fingers under the rail.

[32] Mr Maguire in cross examination repeated the fact, as he had acknowledged during the investigation process, that he did not review the work instructions on 12 January 2019. 9

[33] Mr Maguire says the crew were beginning to replace ten (10) pads. He says Mr Giles was present at this point and Mr Maguire himself was assisting with the job. Work was suspended at 10.27 a.m. to allow for train movements. Work resumed at 11.28 a.m.

[34] He says they agreed to replace the final fourteen (14) pads.

[35] The rail was lifted using a ‘pancake jack’ at a height of about 30-50 mm. All crew members were out of line of fire (i.e. line of risk) apart from Mr Paramelu who was using the pancake jack to lift the rail. Mr Paramelu was standing 1 m from the nearest rail. After jacking, Mr Paramelu stood back and at this point the rail bowed outwards. The rail was bowed approximately 150 mm over 8.4 m of track.

[36] A 25 m length of the steel railway track weighs around 1 tonne.

[37] Mr Maguire’s evidence was the job was then stopped and they had a group discussion about material risks and how to repair the bowed rail. He says Mr Giles participated in this discussion.

[38] Mr Maguire’s evidence was that the crew agreed to water down the rail and use gauge bars to bring the rail back to the original position and to use chains and binders to assist bringing the rail back into its correct alignment. He says Mr Giles remained at the site and took photos of the event.

[39] His evidence was that he then asked the crew about risk assessment for the new situation and as a group they all agreed that there were three unlikely risks, resulting in a rating of Moderate 9. He says the risks identified were the risk of water being located on the rail, the use of the gauge bars which are located horizontally across the rails, and the use of the chain and binder to realign the rail.

[40] He says there was a further group discussion and they all agreed to adjust their Take 5 documents to take into account the further job at hand.

[41] They resumed the job by using water to cool the 8-9 m length of rail and then used the gauge bars, binders and chains to bring the rail back into alignment.

[42] Mr Maguire’s evidence was that he did not fail to apply the appropriate risk assessment for a high risk activity. The team identified the three material risks and assessed the rating as Moderate 9.

[43] He also says he did not fail to assess a change which led to an event.

[44] His evidence was that he followed the Hazard and Task Risk Management Procedure. It was possible to safely eliminate the hazard (i.e. the rail bowing) and they had removed the hazard, ensuring persons were not at health or safety risk, and implemented further controls using water to cool the rail, used gauge bars, chains and ratchets.

[45] With respect to the unplanned task, Mr Maguire’s evidence was that they completed a Take 5 assessment and discussed the further steps required. Importantly, Mr Maguire’s evidence in chief 10 was that a JHA was not required nor was a risk rating determined to be above H11, as confirmed by the crew, including a more senior employee, Darryl Giles. Maguire says the crew determined the risk rating would be below H10.

[46] His evidence was that there were two Work Instructions (WIN’s). A WIN for changing sleeper pads and another WIN for the application and removal of clips and fasteners. 11

[47] Mr Maguire’s evidence in chief was that they determined that the entire job was covered by the WIN’s, that they followed the WIN’s, and completed the Take 5 accordingly, before commencing the task.

[48] On page 1 of the WIN for “Track Maintenance – Sleeper Pads (Changing of)” the first operative paragraph is as follows:

“Purpose and Scope

To provide instructions for the changing of sleeper pads At BHP Billiton’s Iron Ore operations in the Pilbara. This work instruction identifies and explains the steps necessary to complete the task. If any hazards arise that are not identified within this WIN, personnel involved in the procedure must complete and sign a JHA prior to undertaking the task.”

(Underlining added)

[49] I note that under the list of “Tools and Materials Required” the first tool specified is a “Track Jack”.

[50] Under the list of “Jobs Steps” at “4. Remove track jewelry,” there is the following in the column headed “Critical Comment”:

“CAUTION !

Do not remove too many clips without considering rail stress/tension.”

[51] On page 1 of the WIN for “Track Maintenance – Application & Removal of Clips & Fastenings” under the heading “Work Permits Required”, is the following:

“Take 5/JHA”

(Underlining added)

[52] On page 2 of the WIN under the heading “Pre—Task Checks” there are four dot points one of which is as follows:

“Job discussed amongst all personnel (Take 5/JHA)”

(Underlining added)

[53] As provided in Mr Maguire’s contract of employment he is required to comply with BHP’s policies and procedures and further it is a condition of his employment that he comply with the company’s policies and perform his duties in a manner which adheres to the safe working practices and policies established by the company. 12 This requirement on him is effectively reinforced in his job description as mentioned above.

[54] Mr Maguire’s evidence was that with respect to BHP’s Hazard and Task Based Risk Management Procedure (“Hazard Procedure”) 13 he had undertaken online training in that procedure which would have run through the different steps to determine the use of a Take 5 and how to judge a hazard and the reasons why you may use a JHA if required.14 JHA’s15 involve a more thorough and comprehensive risk assessment than does the relatively simple Take 5 process.16

[55] Importantly at page 5 of the Hazard Procedure there begins a 1 1/2-page explanation of what a Take 5 is and what a Job Hazard Analysis (JHA) is. This is set out below.

“4.1. Take 5

A Take 5 is an individual hazard assessment process used to increase hazard awareness in the work area by providing an opportunity to pause (take 5 minutes), think about the task and the hazards prior to commencing work.

The Take 5 process involves the identification of key hazards in an employee’s work area, evaluation of the hazards and implementation of the identified controls to minimise the hazard before a task is commenced. Each individual must record their findings in their own personal Take 5 book.

A Take 5 must be completed within the work area where the task is to occur, prior to commencing work.

The aim of the Take 5 process is to ensure a person conducting a work activity and other personnel in the work area are kept safe for the duration of the task.

The individual is responsible for the decision to commence a given task based on the results of the Take 5 assessment. No person shall commence a task where the Take 5 has resulted in a risk rating ≥ H11 or where conducting the task will be unsafe until the risks have been effectively controlled.

A Take 5 assessment must be conducted when:

•  The start of routine shift operations;

•  Start of a new task;

•  The physical environment changes during task e.g. weather, visibility;

•  Equipment, procedures and processes change;

•  New personnel join the team;

•  A new activity starts in the area / around the task;

•  New unidentified hazards associated with a task become apparent;

•  When office-based personnel are required to conduct non-routine work (office moves, manual handling tasks, use of new equipment); or

•  There are concerns over the safety of a given task or situation.”

“4.2 Job Hazard Analysis

A Job Hazard Analysis (JHA) is a more detailed, structured pre-task hazard assessment completed by a workgroup or a small team. A JHA involves systematic examination of steps within an activity, identification of hazards for each task step, evaluation of their potential impact and identification and assignment of controls to mitigate the risk.

A JHA must be conducted:

•  When required as a result of a Take 5 assessment (i.e. risk rating ≥ H11);

•  When there are significant deviations from the Standard Operating Procedure (SOP) / Work Instruction (WIN) e.g. the potential for unidentified or inadequately controlled hazards;

•  When the existing SOP / WIN does not adequately address the risks;

•  When required by Permits (e.g. Confined Space, Hot Work, Working at Heights);

•  When there is a significant change to the environment in which the task is to be undertaken;

•  When directed by Line Supervisor; or

•  When an individual identifies the need.

JHA’s must be recorded using the Job Hazard Analysis (JHA) Form (0124550). Pre-written JHA’s or old JHA’s must not be used.

The following criteria must be applied to the residual risks as assessed through the JHA process, as outlined in Appendix 1:

•  The task shall not proceed if residual risk is ≥ E18

•  Where the residual risk score is ≥H15, the team shall, if practicable, identify and implement additional controls so that the residual risk score is brought under H15.

•  If the residual risk score remains ≥H15 and ≤E18, the team shall seek approval to progress with the job from the Responsible Area Superintendent or Manager. This approval shall be based on controls being in place and effective for the specific task.

•  If suitable controls cannot be implemented to a level where the Responsible Area Superintendent or Manager can approve the task, a Formal Risk Assessment may be initiated.

Conducting a Job Hazard Analysis (JHA) Work Instruction (0124548) provides information on how to complete a JHA.”

[56] Relevantly for the purposes of this matter a Take 5 is a tool used by an individual employee which must be conducted when starting to identify hazards and assess risks and controls at the individual task level.

[57] A Take 5 must be conducted in a range of circumstances including before the start of routine shift operations.

[58] A JHA however is a tool used for a team to identify hazards and assess risks and controls at each step of a job. It is a more detailed structured pre-task hazard assessment and involves systematic examination of steps with in an activity, identification of hazards for each task step, evaluation of their potential impact and identification and assignment of controls to mitigate the risk.

[59] A JHA must be conducted in seven different circumstances including the following:

•  When required as a result of a Take 5 assessment producing a risk rating > or = H 11;

•  When there are significant deviations from the Work Instructions e.g. there is the potential for unidentified or inadequately controlled hazards;

•  When the existing Work Instruction does not adequately address the risks.

[60] In the early stages of the investigation into the track bowing incident, Mr Maguire on 14 January 2019, sent an email 17 to Mr Giles detailing the steps undertaken on the day and under a heading “Possible Gaps on the Day” included the following:

“Lifting the number of removed fastenings has increased the possibility of rail movement…

I will action myself to adjust the WIN to include pancake jacks…

Will also consult Rail Engineering to determine how many fastenings could be removed on steel/concrete sleepers at different temperatures.”

[61] The evidence is that although the Track Maintenance – Sleeper Pads (Changing of) WIN specified the use of a Track Jack, on 12 January 2019 the employees used a different type of jack known as a Pancake Jack. Self-evidently from Mr Maguire’s email above he was aware the Pancake Jack was used and that this was inconsistent with the WIN.

[62] Mr Maguire did not consider that using a different type of jack than that specified in the WIN was a significant deviation from the work instruction. 18

[63] Mr Maguire also did not accept his uncertainty about how many fastenings could be removed at different temperatures and the fact increasing the number of fastenings removed, increased the risk of rail movement, indicating a JHA should have been completed. 19

[64] Mr Maguire under cross examination was adamant that there was no requirement nor any necessity for the team to have completed a JHA on 12 January 2019, and for each employee to have completed their individual Take 5 was all that was required and was the correct action. 20

[65] Mr Maguire’s evidence was that he was shocked and surprised when the rail bowed out. His evidence was that everyone on the site was shocked. 21

[66] Mr Maguire agrees that the WIN’s did not give any instruction or detail on how to deal with the bowed rail. 22

[67] On a number of occasions under cross examination Mr Maguire would not accept he was required in the circumstances on 12 January 2019, both by the express statement of the Track Maintenance – Sleeper Pads (Changing of) WIN and separately by the Hazard Procedure, to ensure the team completed a JHA before undertaking any work to realign the bowed rail. 23

[68] The evidence of Mr Luff is that there is no applicable WIN for rectifying a bowed rail.

[69] Mr Luff’s evidence was that adjusting a rail that has bowed, following a stored energy event, is not something dealt with in the work instructions. His evidence was, this activity is highly non-routine and there are a few material risks. 24

[70] His evidence was that on 12 January 2019, when the rail bowed out (the stored energy event) the job changed. Fixing the bowed rail and the steps taken to put it back into place introduced two additional material risks that were not identified in any employees’ Take 5 that day.

[71] The two additional material risks were the extreme weather and employees being in the line of fire.

[72] His evidence was that Mr Maguire had estimated that the temperature that day was 50°C. Mr Luff’s evidence was, this is extreme weather which makes the rail unpredictable. His evidence was the rail could go one way or the other and the information from the investigation was that employees were within 4 foot of the rail which meant they were within the line of fire had the rail moved.

[73] In similar situations people have been disabled. His evidence was pulling the rail back into place is a high-risk task and straightaway a JHA should have been done. 25

[74] Mr Tavo under re-examination rejected the proposition that pulling the bowed rail back into place was a minor complication in the original task being undertaken by Mr Maguire’s crew. He went on to explain what sort of risks arose out of the particular manner in which the crew sought to realign the bowed rail, as follows:

“I was also asking you to explain what sort of risks arose out of the particular rectification works that they adopted on the day at that time?---Yes, so if you have a look at some of the controls that was picked up in the statements provided from everyone, line of fire people, where they're standing, the controls, the introduction of chain binders - we said putting people into the danger zone, that's a control; we shouldn't do that.  By introducing chain binders they've actually had to stand in between the two rails on a curve - outgoing curve - and try and pull the rail back to each other.  The rail has bowed out because there is too much energy there and now we're forcing it back into a smaller radius with chain binders, so we're adding more muscle or force, more stored energy, to something that we do not understand or know how much energy is there in the first place, but now we're pulling something into a smaller radius.  The chain binders is not an accepted practice.  A chain snaps, you know, with people in the line of fire.  All of a sudden that energy that has just been released from a chain hits somebody, you know, anything can happen.  The rail obviously is seated inside the pads this time, but obviously pulling steel into a smaller radius it can always bow in with more force now because it's going into an even smaller radius.  Now you've just put more people into the danger zone.  There is that piece.  They are more or less the high risks parts, I think, that I just struggle to understand how - - -

Of course the work instruction that day didn't deal with any of this stuff, did it?---No.”

[75] Mr Maguire’s evidence was that two days after the rail bowing incident Mr Giles rang him and advised that Mr Tavo wanted more information about the event as soon as possible. Consequently, Mr Maguire prepared an email where he detailed step-by-step the events of the day. At the end of this email he identified possible gaps on the day. 26

[76] The next day, 15 January 2019, Mr Tavo emailed Mr Maguire asking him to explain a couple of things as he had some concerns. These were set out in eight detailed points. In summary these included why only three names appeared on the on-site briefing document, what is a material risk, what is a critical control, why was there only one Take 5, whilst stored energy was identified as a material risk no critical controls were apparently in place, where does it say that vigilance is a critical control, once the rail bowed out how did you manage the change, was a risk assessment conducted, did you stop work and reassess safety, how did they measure up against their section 22 responsibilities.

[77] Mr Tavo’s email concluded by saying he was concerned how they managed this task from the beginning.

[78] The following morning, 16 January 2019, Mr Maguire sent a comprehensive response by email dealing with all the issues and questions raised in Mr Tavo’s email. 27

[79] Mr Maguire’s evidence was he was then off site for a period and when he returned to Newman on 23 January 2019, he was informed he was being stood down pending an investigation into the events of 12 January 2019. 28

[80] On his own initiative Mr Maguire on 25 January 2019, sent further information regarding the event by email to Mr Tavo.

[81] The following day he was instructed to provide a statement which he completed and returned on 29 January 2019. 29

[82] On 6 February 2019, a first investigation meeting was held with Mr Tavo and Mr Luff. Mr Maguire elected to have his wife Cassandra Smith participate as his support person, by telephone. Through the meeting he was asked a number of questions about his conduct on 12 January 2019.

[83] Maguire was required to attend a second investigation meeting and again was offered the opportunity to have a support person and again his wife attended by telephone. Mr Maguire says at the meeting a number of verbal assertions were made to him about his alleged poor conduct on the day. The assertions were about his conduct and relevant policies.

[84] On 8 February 2019, Mr Maguire says he was asked to attend a show cause meeting. Again, Mr Tavo and Mr Luff were present, and his wife attended as a support person by telephone. At this meeting he provided a three-page handwritten letter titled “Show Cause Response”. The letter says he is remorseful for his actions on 12 January 2019 and he understands the severity of the event and that this will never happen again. He says he is thankful that no person was hurt. He says he accepts he slipped with his section 22 responsibilities on this day. His letter says he has learnt and his key improvements would be to in future manage all risks and hazards in line with the Hazards and Task-based Risk Management Procedure, to understand the material risks and be able to verify the controls in place, thorough auditing to ensure compliance is to a high standard by all, enable, educate and enforce the safe execution of all tasks using the safe systems of work in the hierarchy of controls, and where possible be on site prior to task starting.

[85] Mr Maguire in his show cause response says his actions on the day were not deliberate or intentional. His letter goes on to plead his prior good record and taking that into account, he says, he does not believe his employment should be terminated.

[86] Mr Maguire’s evidence in chief was that after he provided his written show cause response the meeting was suspended for 10 minutes after which he was then advised his employment was terminated and provided with a letter of termination.

[87] Mr Tavo gave evidence as to the detail of the discussion that occurred at the interviews on 5 February 2019 with Mr Daryl Giles and 6 February 2019 with Mr Maguire. The records provided of the scripts he followed, and the notes taken during these interviews were submitted to the Commission. 30

[88] The record of the disciplinary interview with Mr Maguire shows that it was explained the purpose was to ask questions regarding allegations to do with the Safe Systems of Work Procedure, Management of Change Procedures, failure to comply with the Hazard and Task-based Risk Management Procedure and failing to meet the section 22 obligations specifically concerning, training and supervision, risk Management and compliance.

[89] The balance of the record demonstrates there was a full discussion about the applicable principles, for example: what is a material risk, what is a critical control, and why risk assessments are carried out, etc. etc.

[90] This was followed by a detailed series of questions and answers focusing on what occurred on Saturday, 12 January 2019.

[91] Question number 22 on the record of interview shows Mr Maguire was asked if he understood why they were investigating this event and his answer is recorded as:

“Fully understand that someone could have been hurt.”

[92] The accuracy of the records of these interviews were not impugned in cross examination.

[93] During the interviews Mr Maguire did not raise any concerns about a lack of understanding of the allegations or of the investigation. 31

[94] Mr Garth explained that replacing pads is a common job and lifting a rail to do so would probably happen 50 times a year. 32

[95] In Mr Garth’s 12 years experience with BHP however, it was the first time he had seen a rail bow out this way. This was also the first time he had been involved in pulling a bowed rail back into place. 33

[96] Mr Garth under cross examination agreed that on the day in question, a JHA should have been undertaken. 34

[97] On 12 January 2019, Mr Giles was Mr Maguire’s Supervisor. Mr Maguire was the Coordinator in the field.

[98] Mr Giles was at the site when the work crew and Mr Maguire were considering what action is to take after the rail bowed. 35 He agrees that he did not say to Mr Maguire that he should do a JHA.36

[99] Mr Giles in his evidence explained that on the day he expected Mr Maguire to follow the Respondent’s policies concerning risk management. And if the circumstances and the policies required Mr Maguire to do a JHA, he would do so. If the procedure being used for the task did not cover the steps of the risk at the time a JHA would be required. He agreed that the rail bowing was something that wasn’t dealt with in the work instructions and in the circumstances a JHA was required. 37

[100] Whilst Mr Giles was involved in the early discussions with the workgroup about how to realign the bowed rail after the stored energy event, I accept his evidence that he left the worksite before that work commenced and Mr Maguire remained there whilst that work was done. I note there is some evidence that says Mr Giles remained at the worksite whilst the work to realign the rail was completed however, I have formed the view that the witnesses on this point are mistaken. 38

[101] The evidence of Mr Peramalu, a Track Technician since 2015, was that he saw the rail bow out and formed the view that this occurred because of the stored energy in the rail due to the heat, and because the rail was not properly secured given the number of clips that had been removed. His evidence was, a stored energy event can result in injury to people, for example the rail might hit a person’s legs or throw a person across the site. No one was injured on this occasion because his evidence was, they were standing on the opposite side of the track to where the rail had bowed out.

[102] During the following discussion about how to realign the rail, his evidence was he thought that the team should stop and do a JHA, however, he did not raise this because other technicians in the group had more rail maintenance experience than himself.

[103] Under cross-examination Mr Peramalu agreed that Mr Giles as Supervisor was the most senior person present that day. However, he rejected the proposition that Mr Giles should have cancelled the work order. Mr Peramalu’s evidence was that Mr Maguire, the Coordinator, is the one who had control over the job. 39His evidence was that supervisors give the instructions to coordinators and coordinators run the job on site. It was his view that it would be the coordinator’s responsibility to stop a job.40

[104] Mr Tavo also gave evidence concerning the differences between the roles as follows:

“So a supervisor role is predominantly office based.  It's not what we want, but predominantly it's office based; it's administrative to overlook our section, as per my witness statement here.  So a supervisor job is to look over the bigger picture, whereas a coordinator's role is in the field verifying and making sure the execution of a specific task on the day out there with the team is executed safely, and nobody is hurt.” 41

[105] Mr Tavo’s evidence was that after the investigation he decided to issue Mr Giles with a warning for his conduct in relation to the incident on 12 January 2019. He said he considered Mr Maguire’s misconduct to be more serious than Mr Giles because when Mr Giles arrived on site he conducted safety discussions and verified that critical controls were in place. He also reviewed the safe working controls with the Track Protection Officer which was one of the higher risks associated with the task. These actions are what Mr Tavo would have expected from someone in Mr Giles’s role.

[106] Mr Tavo explained that by comparison, Mr Maguire as the Coordinator had direct oversight of the Work Order and he, at all stages of the incident, had failed to acknowledge the appropriate risk ranking of the task, despite Mr Giles having given Mr Maguire instructions to follow in managing risks following the bowing of the rail. In addition, Mr Maguire had given contradictory responses during the investigation process which undermined Mr Tavo’s confidence in his honesty and ability to do the job.

[107] The Termination of Employment letter dated 8 February 2019 refers to the final meeting held that day and that there was a final discussion regarding the outcome of the investigation into allegations concerning:

•  Breach of Charter Values and Code Of Conduct

•  Failure to comply with Safe System of work

•  Failed to risk assess a change which led to an event

•  Failure to comply with Hazard And Task Based Risk Management Procedure

•  Failure to meet the requirements of the section 22 obligations.

[108] The letter states that it has been determined that the allegations outlined are substantiated and that throughout the investigation Mr Maguire has not demonstrated that he understood the seriousness or potential consequences of the incident. Relevantly the letter says:

“Employees are required to comply with and know how to apply the requirements of our mandatory health and safety standards and procedures and our leaders are required to enforce and role model these requirements.

….

Your involvement in the incident on 12 January 2009 constituted a serious breach of Our Charter, the Code and our Policies and Procedures. We have lost faith in your ability to perform your role in a safe manner and ensure the safety of yourself and other employees in the Rail execution Team.”

[109] The letter goes on to refer to the show cause process and concludes by saying that Mr Maguire’s employment will be terminated. Mr Maguire was dismissed with five weeks pay in lieu of notice.

Submissions for the Applicant

[110] For the Applicant, it is submitted that the dismissal was harsh, unjust and unreasonable.

[111] With reference to the letter of termination it is submitted that Mr Maguire denies that he breached the various Charters, Codes and Procedures referred to therein.

[112] It is submitted that contrary to the Respondent’s findings the evidence demonstrates that Mr Maguire demonstrated a commitment and understanding of his health and safety obligations.

[113] It is submitted that Mr Maguire complied with all relevant workplace policies to the best of his ability and understanding; he managed the risks of the safety event on 12 January 2019, implementing appropriate controls with the rail maintenance team and in the presence of Mr Giles, his supervisor. It is submitted that if there is any omission by Mr Maguire to ensure compliance with any workplace policy that was not demonstrable of his usual conduct, and Mr Maguire’s actions did not place any other person at risk on the day.

[114] It is submitted that the investigation procedure was flawed with Mr Maguire never being clear about the precise nature of the allegations against him.

[115] The evidence for the Commission provides a full response to the allegations identified in the termination of employment letter and Mr Maguire’s evidence in response to these allegations, reasonably explains satisfactory conduct and on an objective analysis of these facts the allegations in the termination of employment letter ought not be found to have been substantiated.

[116] In addition for Mr Maguire it is submitted that the Respondent, when determining that he had breached various workplace policies or otherwise engaged in conduct justifying dismissal, did not properly consider the presence of a more senior employee, Mr Giles who was also a section 22 appointee, during the events that occurred on 12 January 2019.

[117] For Mr Maguire it is submitted that he was not given a proper opportunity to respond to the reasons relating to his performance or conduct for which he was dismissed prior to the decision being made nor was he notified of the reasons for his dismissal in explicit terms.

[118] In this case the Respondent is a large business with access to a dedicated Human Resource Manager and specialists and so ought to have been able to available self of these to ensure appropriate procedures were followed, which was not the case.

[119] The dismissal in this case was unjust because Mr Maguire followed the policy as understood by him, and by his experienced crew and his supervisor Mr Giles. It was BHP that has failed to train its employees in its policies and so any failure to adhere to such policies cannot be properly considered to be misconduct.

[120] The dismissal was unreasonable because Mr Tavo did not properly gather evidence from Mr Maguire as to how Mr Maguire had calculated the risk levels based on the likelihood of a safety incident and on the likely consequences of such incident. Mr Tavo proceeded on the basis that there had been a breach of safety policy without understanding what Mr Maguire had thought at the time.

[121] The dismissal was harsh due to it being disproportionate when compared with the gravity of the alleged misconduct. Mr Maguire did not purposefully flout safety policies. Prior to the incident the senior staff and BHP had nothing but positive things to say about Mr Maguire’s approach to safety.

[122] On the day in question, he took his safety role seriously as he did every day. What has led to him being dismissed is in effect the view that he should have done a JHA safety assessment rather than the individual crew doing Take 5 safety assessments as they did.

[123] The judgements in this case were inappropriate when the evidence is there was no intentional disregard by Mr Maguire for workplace policies.

[124] Prior to this instance Mr Maguire had a nine-year unblemished record in relation to his performance and conduct which has been overlooked.

[125] The loss of employment to the Applicant has caused him personal and financial hardship because he has lost the opportunity to work within a very specialised sector of the mining industry, namely track maintenance.

[126] The Respondent also failed to give proper weight to the fact that the Applicant had a long and unblemished record of employment which ought to have militated against dismissal of his employment.

Submissions for the Respondent

[127] BHP’s rail network operates in a heavily regulated environment. Consequently, in the workplace it implements a range of policies and procedures to ensure it meets at obligations under the Rail Safety National Law (WA) Act 2015 and associated Regulations and the Occupational Safety and Health Act 1984 (WA).

[128] Accordingly, BHP’s Hazard and Task-based Risk Management Procedure establishes a tiered system of risk management tools. Lower risk tasks can be performed following an individual employee assessment using a Take 5. However, in some circumstances a more comprehensive JHA is required to be performed.

[129] Expressly, a JHA must be performed where a WIN does not adequately address the risks or where there are significant deviations from the WIN.

[130] In this instance, Mr Maguire’s failure to ensure that a JHA was completed is central to the allegations against him and the reasons for his dismissal.

[131] BHP submits at the pre-start meeting on 12 January 2019, Mr Maguire failed to ensure a JHA was conducted in circumstances where the two WINs did not address the present material risk of extreme heat, being approximately 50°C.

[132] As the work progressed Mr Maguire attended the worksite and failed to intervene to stop the team removing a substantially higher number of clips than is usually removed. This warranted Mr Maguire ensuring a JHA was conducted.

[133] This resulted in the team releasing too many clips from the rail which led to the stored energy event of the rail bowing outward.

[134] Mr Maguire then authorised work to realign the bowed rail which was not covered by the two WINs and did so again without conducting a JHA.

[135] Mr Maguire had been trained in BHP’s procedures and was a section 22 responsible person. During the investigation however, Mr Maguire demonstrated a lack of insight into the seriousness of the stored energy event and failed to accept that BHP’s policies and procedures had not been properly complied with on the day.

[136] Mr Maguire did provide a show cause response which conceded his failures to adhere to BHP’s policies and procedures and included his apparent recognition of his wrongdoing, however he has recanted this in his witness evidence and under cross examination at the hearing.

[137] Mr Maguire’s failure to comply with BHP’s policies and procedures regarding a safe workplace are a valid reason for his dismissal. His failures caused serious and imminent risk to the safety of his team.

[138] Mr Maguire’s failures are critically important because he holds a leadership position in a safety critical area of work.

[139] BHP submits that its processes were procedurally fair.

[140] Throughout the investigation into the events of 12 January 2019, Mr Maguire was well aware of BHP’s concerns and what it was investigating. He provided information early on by email. Mr Maguire then actively engaged with BHP’s investigators during meetings, providing detailed information about what occurred on the day, his awareness and understanding of BHP’s policies and procedures and what action he took in his view to comply with these.

[141] Further meetings followed and ultimately a show cause meeting was held.

[142] Mr Maguire provided a detailed show cause response which was considered by BHP.

[143] Ultimately, BHP explained that in the letter of termination it concluded that termination of Mr Maguire’s employment was warranted in all the circumstances.

[144] BHP before making the final decision took into account Mr Maguire’s length of service and positive prior record.

[145] The submission made on behalf of the Applicant that BHP treated Mr Maguire differently from Mr Giles’ is without merit. Mr Giles actions on the day in question were also investigated and ultimately, he was issued with a warning.

[146] It is BHP’s prerogative to determine how individual employees will be disciplined. Mr Giles as a Supervisor, generally has an office-based role whereas Mr Maguire is the Coordinator expected to attend the work sites.

[147] Relevantly in this case, Mr Maguire had direct control over coordinating the execution of the work order. Whilst Mr Giles was present at times, he was called away from the worksite, attending to other matters, and Mr Maguire remained on site overseeing rectification work on the bowed rail.

[148] BHP had a valid reason to terminate Mr Maguire’s employment; there were no procedural defects or other relevant fairness factor which are sufficient to outweigh the valid reason. Mr Maguire was not unfairly dismissed. This application should be dismissed.

The Legislation

[149] Section 387, which is set out below, sets out the matters the Commission must consider when determining whether a dismissal was unfair:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Consideration

[150] Mr Maguire quite rightly recognises the obligations imposed upon him by BHP’s various policies and procedures and was aware of the emphasis his position description placed on safety in the workplace and he was aware of his obligations as a section 22 appointed person.

[151] Considering the evidence I find that, for the purposes of the Hazard Procedure, on 12 January 2019, when the stored energy event occurred (i.e. the rail bowed out of place) this was a significant deviation from the Track Maintenance – Sleeper Pads (Changing of) WIN and I find that the two WIN‘s applicable on that day did not adequately address the risks of the new task, realigning the bowed rail.

[152] I accept the evidence that using chain binders whilst realigning the bowed rail placed some team members in the line of fire. Consequently, I find that the work undertaken to realign the bowed rail involved at least one hazard that was not identified within the Track Maintenance – Sleeper Pads (Changing of) WIN.

[153] The Track Maintenance – Sleeper Pads (Changing of) WIN states that:

“If any hazards arise that are not identified within this WIN, personnel involved in the procedure must complete and sign a JHA prior to undertaking the task.”

[154] Consequently, I am satisfied that on 12 January 2019, after the rail bowed out of place the Hazard Procedure expressly required that a JHA was undertaken and separately the Track Maintenance – Sleeper Pads (Changing of) WIN also required that a JHA was undertaken.

[155] Mr Maguire was the coordinator on the day who oversaw the work of realigning the bowed rail following the stored energy event.

[156] It is difficult to understand how Mr Maguire’s response to a situation that he himself viewed as shocking, the rail bowing out of place, was for his team to only complete a Take 5, the most basic form of risk assessment. The work to realign the bowed rail was far from a routine operation.

[157] To put both a Take 5 and a JHA in context the Hazard Procedure requires a Take 5 assessment to be conducted at the start of routine shift operations, amongst other circumstances. However, the Hazard Procedure relevantly requires a JHA to be conducted where there are significant deviations from work instructions (where there is the potential for unidentified or inadequately controlled hazards) or when existing work instructions do not adequately address the risks.

Valid Reason

[158] I find that Mr Maguire did not comply with the Hazard Procedure as he was required to. I also find that Mr Maguire did not comply with the Track Maintenance – Sleeper Pads (Changing of) WIN.

[159] I accept these instances of non-compliance by Mr Maguire amounted to a breach of BHP’s higher order policies as detailed in the termination of employment letter and that Mr Maguire had failed to meet the obligations as a section 22 appointed person.

[160] Mr Maguire’s failure to comply with the Hazard Procedure and the Track Maintenance – Sleeper Pads (Changing of) WIN on 12 January 2019, were each valid reasons for his dismissal.

[161] I agree that additional findings of non-compliance could be made against Mr Maguire, as BHP submitted, concerning Mr Maguire’s failure to ensure various steps were taken by his team prior to the stored energy event occurring (including failing to ensure the entire work group had completed and signed off on the Onsite Safety Briefing) 42 however the two incidents of non-compliance I have identified above are in my view the central and most important failures that led to Mr Maguire’s dismissal.

Notification of the reason

[162] Before Mr Maguire’s employment was terminated, he participated in a series of meetings where the events of 12 January 2019 and his actions were discussed in detail as were the requirements of BHP’s various policies and procedures.

[163] On 8 February 2019, a show cause meeting was held where BHP advised Mr Maguire of the specific conclusions they had reached from their investigations and that they were considering terminating his employment and he was given an opportunity to respond.

Opportunity to respond

[164] Mr Maguire had an opportunity to respond to the reasons for which BHP were considering terminating his employment at the show cause meeting on 8 February 2019. Mr Maguire also opted to provide a written response at that meeting.

Refusal to have a support person

[165] There was no refusal to allow Mr Maguire to have a support person during discussions relating to his dismissal.

Warnings about unsatisfactory performance

[166] The reasons for dismissal were not performance related but rather a failure to comply with BHP’s policies and procedures on a single day.

Size of the employer’s enterprise

[167] BHP is a large employer and the process followed in this case reflects that.

Absence of Human Resource Management Specialists

[168] BHP does have dedicated human resource management specialists and the process followed reflects that.

Other relevant matters

[169] For Mr Maguire it is submitted that he has been treated differently from Mr Giles who was also involved in the events of 12 January 2019.

[170] BHP agrees the two employees were treated differently in that Mr Maguire was dismissed for his part and Mr Giles received a written warning. BHP submits that there are good reasons for this differential treatment. Mr Maguire and Mr Giles were not in equivalent situations and consequently the disciplinary action is not the same.

[171] On 12 January 2019, Mr Maguire had direct control as the coordinator over the work in question. Mr Giles was certainly in attendance during part of the time but as a supervisor had responsibilities on the day beyond dealing just with this work order. Mr Giles was present after the stored energy event and during discussion as to how the bowed rail would realign. Before this work was done however, Mr Giles left the worksite to attend to other duties. Mr Giles expected the workgroup and Mr Maguire would undertake the appropriate hazard analysis required by the procedures in which they had all been trained. Mr Maguire as the coordinator remained with the workgroup to undertake the task. Mr Maguire as the coordinator was expressly required to ensure that the work was carried out in compliance with BHP’s various safety focused policies and procedures.

[172] In addition, during the investigation process BHP were concerned that Mr Maguire, whilst strongly defending his actions through multiple disciplinary meetings, only conceded any wrongdoing in his written response to the show cause meeting. Notably at the hearing Mr Maguire did not accept he had failed to comply with the various procedures and admitted no wrongdoing, seemingly recanting this written show cause response.

[173] I am satisfied that there were good reasons for BHP not to view the circumstances of Mr Giles and those of Mr Maguire as equivalent. Consequently, I do not accept that the differential treatment in this instance was either harsh, unjust or unreasonable.

[174] I note that Mr Maguire was employed with BHP for just under nine years at the time of his dismissal and has no prior disciplinary blemishes with BHP.

Conclusions

[175] The evidence demonstrates there were a number of failures by Mr Maguire on 12 January 2019 to comply with BHP’s policies and procedures.

[176] A stored energy event occurred whilst work was being undertaken by a group of employees who Mr Maguire was coordinating. The result was a section of rail bowed out of alignment. This was something Mr Maguire himself said he was shocked by and which another employee with 12 years’ experience had never seen occur before. Fortunately, nobody was injured when this occurred.

[177] Mr Maguire then coordinated the work that was undertaken to realign the rail by pulling it back into place.

[178] There were no work instructions for this work. The work instructions applicable to the tasks that had been undertaken prior to the rail bowing out and the various policies and procedures in the circumstances required a JHA, which is a detailed team-based risk assessment, to be undertaken.

[179] Mr Maguire did not ensure that a JHA was completed. Rather, all that occurred was after some discussion Mr Maguire and the other team members made adjustments to their individual Take 5’s. A Take 5 is the most basic form of risk assessment and is carried out before the start of routine shift operations. Realigning the bowed rail however was far from a routine task.

[180] The evidence is Mr Maguire and the team he was coordinating overlooked some material risks involved in realigning the rail as the workgroup did. Fortunately, nobody was injured doing this work.

[181] Mr Maguire’s job description repeatedly emphasises the critical importance of working safely and managing risks by following BHP’s policies and procedures. Mr Maguire did not do so and was dismissed.

[182] In all of the circumstances I am satisfied that the dismissal of Mr Maguire was neither harsh, unjust or unreasonable. Mr Maguire was not unfairly dismissed.

[183] Consequently, this application will be dismissed, and an order will now issue to that effect.

Appearances:

J Hooper of Counsel on behalf of the Applicant

A Pollock of Herbert Smith Freehills for the Respondent.

Hearing details:

2019.

Perth and Melbourne (video hearing).

June 24, 25.

Final written submissions:

Applicant, 29 July 2019.

Respondent, 4 August 2019.

Printed by authority of the Commonwealth Government Printer

<PR714619>

 1   Exhibit A1, attachment SM1.

 2   PN164.

 3   PN1581–1587.

 4   Exhibit R5.

 5   PN169–177.

 6   PN195.

 7   PN192.

 8   PN325–341, PN346–352.

 9   PN 442–446.

 10 Exhibit A1 at paragraph [28].

 11   Exhibit A1, attachment SM5.

 12   Exhibit R3, attachment LHT3.

 13   Exhibit R3, attachment LHT25.

 14   PN89.

 15   Exhibit A2.

 16   Exhibit A1, attachment SM4.

 17   Exhibit R3, attachment LHT 13.

 18   PN377.

 19   PN379–381.

 20   PN382–383.

 21   PN384 and PN385.

 22   PN386 and PN388.

 23   PN384–413.

 24 Exhibit R2 at paragraph [27].

 25   PN121–1230.

 26   Exhibit A1, attachment SM8.

 27   Exhibit A1, attachment SM9.

 28 Exhibit A1 at paragraph [34].

 29   Exhibit A1, attachment SM11.

 30   Exhibit R3, attachment LHT 38 and 39.

 31   PN532.

 32   PN777–778.

 33   PN930.

 34   PN894–901.

 35   PN856.

 36   PN759.

 37   PN727–732.

 38   PN864–865.

 39   PN1028.

 40   PN1167–1169.

 41   PN1746.

 42   Exhibit R3, attachment LHT 15.