Steven Myers v Coal & Allied-Bengalla Mining Company Pty Limited T/A Bengalla Open Cut Mine

[2013] FWC 3726

[2013] FWC 3726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Myers
v
Coal & Allied-Bengalla Mining Company Pty Limited T/A Bengalla Open Cut Mine
(U2012/9870)

COMMISSIONER STANTON NEWCASTLE, 11 JUNE 2013

Termination of employment - alleged unfair dismissal.

[1] The applicant in this matter is Mr Steven Myers. The applicant commenced work with the respondent, Bengalla Mining Company Pty Limited as a technician in June 2011. He was dismissed on 25 September 2012 following an investigation into an incident (the incident) that occurred at approximately 2:39 a.m. on 4 September 2012. That incident resulted in the “rollover” of a Toyota LC70 Landcruiser Workmate Utility known as “LV86” following a skid over approximately 80 metres. The vehicle was subsequently repaired at a cost of some $22,800.00.

[2] The respondent’s letter of termination dated 25 September 2012 stated the applicant was dismissed for breaching site safety rules:

As discussed with you, after conducting an investigation it was identified that:

• you failed to maintain control of the vehicle at all times.

• you have not used the appropriate speed for the conditions.

• you have failed to respond to the hazard in a timely manner.

• there was deliberate application of the accelerator for a distance of 80 metres while the vehicle slewed sideways in the left and right directions three times.

• you were in breach of PRO-0062 - Transport Rules - 6.1 General:

“A person is to operate their vehicle so as to:

avoid danger.

adhere to signs in place.

take account of the conditions of the road including adverse weather conditions.”

[3] The applicant was afforded an opportunity to respond to the above allegations and did so on 20 September 2012. The applicant was paid one month of normal salary in lieu of notice plus all accrued entitlements in accordance with the relevant enterprise agreement.

[4] Shortly stated, the respondent contended there was a valid reason for the applicant’s dismissal. The decision to terminate the applicant followed an internal incident investigation and an independent crash investigator’s report which identified driver error as the principal cause of the incident.

[5] The investigation found the applicant caused the incident by failing to identify a hazard and apply the appropriate controls the respondent had in place to avoid the vehicle rollover.

[6] The respondent further contended that by failing to adhere to the Bengalla Mine Transport Rules, the applicant placed himself and, potentially, other employees in serious and imminent risk of injury or death. Such conduct constituted a serious safety breach.

[7] The applicant contended he was denied procedural fairness on the grounds that he was dismissed prior to the completion of the investigation and was not invited to comment on the investigator’s findings prior to dismissal. He also contended the only material put to him by the respondent was the LV86 Incident - Rollover Windmill Road V2 map.

Evidence

Applicant

[8] It was the applicant’s evidence that on the morning of 4 September 2012 he was travelling from the Fuel Farm to the Workshop via Windmill Road. Upon turning onto Windmill Road he encountered an area of the road that had been watered. However, as the watering had occurred on the far side of the corner, “it could not be seen...until he was on top of it and had commenced to slide.”

[9] The applicant deposed he approached the corner, a 65 degree angle left hand turn, at the ‘normal’ speed of approximately 40km/h. The site speed was 60km/h. However, there was no speed signage to indicate the recommended speed to approach the corner, nor were any warning signs present to indicate the road had been watered. 1

[10] The applicant sought to regain control of the vehicle “gently” by applying the accelerator to regain traction within the area(s) where the road had been ‘spot watered’. Certain sections of the roadway remained in a dry condition:

After the loss of control, I spent the entire period until the roll over occurred trying to regain control of the vehicle. Unfortunately I was unable to regain control and my attempts to regain traction were unsuccessful. At no time did I speed and at all times I tried to control the vehicle. The spot watering went on for longer than usual and the road surface was very slippery. As I was trying to regain control, I was slowly drifting towards the side of the windrow. That section of the road is approximately a 4-5 degree downhill slant as well as a 4-5 degree cross grade. As soon as the spot watering concluded, the light vehicle suddenly gripped the road. In fact the conditions went from absolutely no grip to solid grip. The light vehicle suddenly accelerated when it gripped the road and pushed me into the windrow and rolled. 2

[11] The applicant contended he did not speed and tried to drive in a manner appropriate to the conditions. He was unaware the road had been heavily watered and there had been no radio call to warn that the road had been watered and was hazardous.

[12] Although not injured, the applicant was taken to hospital following the incident. Upon his release the applicant attended the mine site on Thursday, 6 September 2012 to assist in the TapRooT investigation process. The applicant, Mr Patrick Korman, the respondent’s Maintenance and Coal Handling Preparation Plant (CHPP) Manager, and another employee examined the scene of the incident and developed the incident “time line.” 3

[13] During the course of the applicant’s shift on Friday, 7 September 2012, the Workshop Supervisor, Mr Steve Fuller told him to telephone Mr Korman, who advised him that due to the nature of the incident the respondent’s policies required him to be stood down pending a formal investigation.

[14] The applicant subsequently received a telephone call from Mr Korman requiring him to attend a ‘show cause’ meeting on Thursday, 20 September 2012. He received a further call from Mr Korman the following day seeking a meeting on Wednesday, 19 September 2012 to enable the relevant ‘show cause’ letter to be given to him prior to the meeting scheduled for 20 September 2012. 4

[15] The applicant attended the ‘show cause’ meeting on 20 September where Mr Korman, Mr Adam Dever (CFMEU Site Lodge President) and Mr Jules Blason, Maintenance Superintendent were also in attendance. During the meeting Mr Korman informed him the investigation had identified he had:

(i) failed to maintain control of the vehicle;

(ii) not used appropriate speed for the conditions;

(iii) failed to respond to the hazard in a timely manner; and

(iv) deliberately applied the accelerator for a distance of 80 metres while the vehicle “had gone sideways left and right three times.” 5

[16] During the course of that meeting, Mr Dever, a member of the TapRooT investigation team questioned Mr Korman as to why the ‘show cause’ letter had been given to the applicant prior to the conclusion of the investigation. In reply Mr Korman stated “It doesn’t matter. There were behaviours identified by the Accident Investigation Report.” 6

[17] The applicant was dismissed during the course of a further meeting convened on 25 September 2012.

[18] It was the applicant’s evidence that the incident would not have occurred had he known about the water on the roadway.

[19] In a second statement filed on 22 January 2013, the applicant referred to the statement filed by Mr Daniel Janney, the respondent’s General Manager, on 7 January 2013. I have given consideration to this statement and to the extent necessary, the applicant’s contentions are dealt with below in cross-examination.

[20] The applicant confirmed (in his second statement) that he worked between 52 and 54 hours a week and not 60 hours a week as set out in Paragraph 42. The applicant also confirmed that whilst he believed “that he had applied for some 22 jobs since his dismissal he only supplied details of nine jobs applied for to Mr Endacott of the Union who prepared the evidence in support of his case.” 7

[21] In relation to the incident, the applicant confirmed he lost control of the vehicle when he hit the part of the road that had been watered. He also confirmed that he was unable to see the watered section of the road before he lost control. In relation to driving on the mine site roads the applicant stated he drove on them on a daily basis and on an average shift he would make multiple journeys on those roads. He confirmed that he was “very familiar with the layout of the roads.” 8 The applicant confirmed he had driven on the road between the Fuel Farm and Windmill Road “too many times to recall.”9 He stated he was familiar with the vehicle driven on the night of the incident and was very familiar with the particular stretch of road at the mine site.10 The applicant was aware that mine roads were watered in order to suppress dust. He was also aware watering occurred at night as well as during the day.11

[22] The applicant agreed that at the time of the incident he was driving the vehicle with the headlights on high-beam. The applicant confirmed he normally took the corner at 40km/h. He rejected the contention that he could have taken the corner at a speed greater than 40km/h. He later stated that it was possible he took the corner at a speed greater than 40km/h as he was looking towards the road rather than the vehicle speedometer.

[23] In relation to the incident the applicant stated he would slow down before taking the corner during daytime because “you can’t see vehicles approaching.” 12 However the applicant denied that he would drive on that part of the road at a higher speed during night time hours.13 He later confirmed that on the night of the incident he could not be sure of the exact speed he was travelling at14 as he had not checked the speedometer at the relevant time.15 It was the applicant’s evidence that the first time he noticed that the road had been watered was when he started to lose control of the vehicle.16 The applicant denied he lost control of the vehicle prior to hitting the watered road and in that regard he also agreed that the speed of the vehicle when he “took the corner” was the vehicle speed when he “hit the part of the road that had been watered.”17

[24] In relation to losing control of the vehicle, it was the applicant’s evidence that he attempted to regain control of the vehicle by applying some acceleration. He also attempted to regain control by turning the steering wheel in the opposite direction to the slide.

[25] The applicant did not apply the vehicle’s brake at any stage of the incident, instead he sought to slow the vehicle by taking his foot slightly off the accelerator. 18 The applicant further contended that if he found himself in a similar situation he would initiate a response similar to that adopted on the night of the incident. In relation to speed data-recording he rejected the proposition that when he started to accelerate after losing control of the vehicle, the vehicle accelerated to at least 55km/h.19

[26] In relation to commencing work on the evening of the incident, the applicant confirmed he performed the required ‘Take 5’ on the vehicle at the start of the shift and also undertook what was known as a ‘pre 103’ check. 20

[27] The applicant also confirmed that he had placed a four pound hammer on the passenger side of the vehicle at the commencement of the shift and that it was not restrained in any way. He later agreed that he had made a mistake in placing the hammer on the floor of the vehicle unrestrained. In relation to the ‘show cause’ letter the applicant confirmed that he understood the respondent was relying upon these matters to support his dismissal. 21

[28] In re-examination, the applicant confirmed that in his experience he would normally expect to see a patch of water “somewhat less than 50 metres in length.” 22 It was the applicant’s evidence that in terms of the vehicle’s speed when he lost control of it he tried “to apply a little bit more to bring the vehicle back straight again.”23

[29] The applicant contended the watering of the haul road and a series of environmental and road design factors “significantly contributed” to the incident.

[30] The applicant contended he entered the haul road intersection at an appropriate speed. However, in making a left hand turn, which was on the blind side of the vehicle, “there had been road watering coming out of the turn on the corner.” 24 He claimed the road was slippery because it had recently been watered but that he was not aware it had been watered until the vehicle commenced to slide. The applicant confirmed that he sought to control the vehicle but was unable to do so.

David Thompson

[31] Mr Thompson is a Mining Technician employed by the respondent. On the morning of the incident he attended the scene to render first aid to the applicant.

[32] Mr Thompson deposed he observed the haul road “had been heavily watered and... there was a crusty layer of mud on top of the compact surface.” 25 He contended the haul road was quite slippery at the time.

[33] It was Mr Thompson’s evidence that the haul road had been “heavily watered.” Mr Thompson confirmed he was not contacted by the respondent concerning his observations of the incident scene at the time.

[34] In cross-examination, Mr Thompson stated he was asked to give evidence by Mr Dever.

[35] In relation to the haul road, Mr Thompson stated his boots became caked with mud when walking in or about the scene of the incident. 26

Jeremy McWilliams

[36] Mr McWilliams is a Mining Technician employed by Camberwell Coal. He has been acting in the role of Open Cut Examiner for approximately four years. Mr McWilliams deposed he had operated water carts for 17 years and as an Open Cut Examiner, was also responsible for water cart operators. 27

[37] Mr McWilliams deposed that in preparing his statement he had considered the various statements of the applicant and respondent together with incident reports and policies relevant to dust suppression and control at the respondent’s mine site.

[38] It was the opinion of Mr McWilliams that the watering of the Windmill Road intersection was not consistent “with how water cart operations should occur at an open cut mine.” 28

[39] In cross-examination, Mr McWilliams confirmed he had only visited the respondent’s mine site once in or around 2006.

[40] Mr McWilliams confirmed he was the Operational Health and Safety Committee Chairman at the Camberwell Coal Mine site. He agreed that it was “unsafe” to drive a vehicle with an unsecured four pound hammer. 29

[41] In relation to water cart operation procedures, it was Mr McWilliams’ evidence “that for the most part”, a mine watering procedure “could be moved from one site to another...without question.” 30 He conceded the procedure would need to take account of site specific considerations and observed that the “strata in the clay materials” was similar throughout the Hunter Valley coal roads which are generally built to an industry standard.

Adam Dever

[42] Mr Dever is the CFMEU Bengalla Mine Lodge President. Mr Dever filed two statements in relation to these proceedings. 31 He is employed by the respondent as an Electrical Technician.

[43] Mr Dever deposed he was involved in the initial TapRooT investigation and a wider group meeting convened on 19 September 2012 to consider the following materials:

• incident investigation report plant LV86, 4 September 2012 prepared by Mr Wayne Snell (Investigator’s Report);



• the LV86 Incident - Rollover Windmill Road map;



• the Ctrack data;



• photos of the scene and the road;



• some statements including a statement from the applicant and notes taken by Mr Patrick Korman at the hospital; and



• a copy of the Ctrack trigger alarms for the shift in question for the applicant which records any speeding, over revving or excessive braking for the shift.

[44] Mr Dever explained the Ctrack data was derived from the vehicle’s GPS tracking system and showed the speed of the vehicle as tracked by the GPS, the relevant engine RPM’s and the excessive braking and tilting alarms system, which detect and record occasions when a vehicle revs, tilts or brakes excessively or exceeds mine site speed limits.

[45] Mr Dever deposed the photos revealed some water remained on the road throughout the morning of the incident. He recalled Mr Caslick stating during the meeting that water could not be considered a causal factor on the grounds that roads must be watered to suppress dust. 32

[46] Mr Dever confirmed that later on 19 September 2012 he attended a meeting with Mr Korman, Mr Blason and the applicant where Mr Korman stated the respondent sought that the applicant ‘show cause’ as to why he should not be dismissed. Mr Dever deposed that he stated the TapRooT investigation was incomplete. In that regard, Mr Korman stated the respondent was relying on the investigation of the applicant’s behavioural issues. Mr Korman subsequently stated the following to the applicant:

You failed to maintain control of the vehicle at all times, you have not used appropriate speed for the conditions, you failed to respond to the hazard in a timely manner and you deliberately applied the accelerator for a distance of 80 metres while the vehicle moved sideways to the left and right three times...The mine’s investigation also indicates you have breached the...transport rules PRO-0062...Because of the seriousness of the incident and the risk taking behaviour...(we)...are considering terminating your employment. 33

[47] Mr Dever contended he and Mr Blason were unaware of the respondent’s proposed course of action concerning the applicant prior to Mr Korman’s statement during the meeting.

[48] With reference to the Ctrack data, it was Mr Dever’s evidence that at no time immediately prior to the incident did the applicant over-speed, over-rev or excessively brake the vehicle. 34 He confirmed the applicant was travelling at 40km/h when the vehicle commenced to slide. He stated that in his experience this was a typical speed to take the corner if there was no traffic.

[49] Mr Dever contended there were a number of errors in the investigator’s report. He also noted Mr Snell’s comment that the vehicle’s tyres “were mud terrain tyres” and might not be suitable for the purpose of the mine. 35

[50] In further evidence, Mr Dever noted the IVNS Report, which formed part of the TapRooT investigation, showed the vehicle’s engine was operating at 4000rpm for a 12 second period approximately 25 seconds “before impact.” Over the same period the GPS data showed the vehicle was travelling at 40km/h. 36

[51] In his second statement, Mr Dever set out a number of comments in response to the statements filed by Mr Korman, Mr Janney and Mr Caslick, the respondent’s Health, Safety and Training Specialist concerning mine site transport rules, training, the various investigation reports and, road construction and maintenance guidelines. I have considered this statement and to the extent necessary, this evidence has been dealt with below in cross-examination.

[52] In cross-examination, Mr Dever stated he did not know the speed at which the applicant “took the corner” which resulted in the incident. 37

[53] Mr Dever confirmed he was a member of the mine site OHS Committee.

[54] With respect to the four pound hammer the applicant carried unrestrained in his vehicle on the morning of the incident, Mr Dever noted such conduct was “common practice” at the time. 38 He refused to be drawn on whether it would have been safer if the applicant had stored the hammer outside rather than inside the vehicle.39

[55] Mr Dever confirmed procedures were in place to modify the trays of mine site vehicles to enable loads to be safely stowed. However, only one vehicle had been modified at that time. 40

Respondent

Daniel Janney

[56] Mr Janney is the respondent’s General Manager. Mr Janney deposed he was aware of his obligations under both the Coal Mine Health and Safety Act2002 (NSW) and the Workplace Health and Safety Act 2011 (NSW). Shortly stated, it was Mr Janney’s evidence that the safety of employees and contractors engaged at the Bengalla Mine was paramount. In that regard, a copy of the Bengalla Mine Transport Rules was attached to his statement. 41

[57] In relation to road transport at the mine site, Mr Janney deposed employees are required to undertake a minimum of two weeks’ practical and theory based training prior to operating vehicles on site. 42 Where an employee is absent for more than two weeks during their employment, they must undergo mandatory retraining before being permitted to drive on the mine site.

[58] In addition to the Transport Rules, the respondent requires:

• pre-operations (103) checks of vehicles;



• appropriate levels of training for drivers on mine roads and for water cart operators;



• daily tool box and pre-start meetings; and



• ‘Take 5’ - a stores and assessment protocol that obliges employees to consider the relevant risks before commencing a task.

[59] Approximately one week prior to the incident another light vehicle overturned on site after losing traction on a ramp that had been watered for dust suppression. A communications campaign followed that incident to reinforce the Transport Rules, with particular emphasis on pre-start meetings to ensure employees slowed down to take account of road conditions. Employees were also informed about the importance of securing tools to minimise the risk of injury in the event of an accident. 43

[60] In relation to the incident, Mr Janney referred to a series of photographs showing the track marks in the road made by the applicant’s vehicle immediately prior to it colliding with the windrow. 44 He also referred to a series of photographs of the vehicle taken at the scene of the rollover, including a photograph of a hammer lying in the cab.

[61] Mr Janney described the incident site in the following terms:

At the site of the incident, I noticed the tyre marks were over a significant distance of approximately 80 to 100m and the tracks appeared to be the result of the vehicle sliding in three different directions. I walked up the stretch of road to the intersection and looked back towards the vehicle. I noticed that approximately 10m after the intersection that the road was ‘two toned’. That is, the first 10m was coloured a light brown and the second part of the road further towards the light vehicle was a darker brown colour. Having been involved in mining for over 20 years, I understood that this was the result of the watering of the roads for dust suppression. Given the gradient of the road and weather conditions, I did not consider that the watering was excessive and there were no visible pools of water on the road or in the drainage channels that I would have expected to have seen if the area had been excessively watered. 45

[62] Mr Janney deposed he had overall responsibility for the investigation and had “overseen hundreds of safety incidents throughout my career.” 46 Given the applicant’s vehicle had rolled through 1.25 revolutions, he determined the incident should be fully investigated with resort to both internal and external resources.

[63] On the morning of the incident Mr Janney asked Mr Korman, to commence the investigation process. The initial information obtained from the scene was subsequently analysed by the respondent’s safety system known as TapRooT. The purpose of the TapRooT analysis was to identify the root course of the incident as well as contributing factors in any issues concerning systems or procedures that may have contributed to the incident. Such information was then used to identify a course of action to address the root course of the incident and other contributing factors so as to prevent a further incident in the future. 47 In the event the incident was caused by negligence or a deliberate act, Mr Janney deposed he was responsible to decide what, if any, disciplinary action should be taken against the relevant employee.

[64] On the morning of the incident Mr Janney also decided the respondent should contact Mr Wayne Snell, an external forensic investigator, to investigate the incident.

[65] During the week commencing 10 September 2012, Mr Janney contacted Mr Korman to express concern about the need for Mr Snell’s report to be presented in a timely manner. During the course of that conversation Mr Korman advised him that Mr Snell had determined there were no mechanical defects, and, in his opinion, the principal course of the incident was the applicant’s response to the hazard and his failure to attempt to bring the vehicle under control earlier. 48

[66] On 17 September 2012, Mr Janney deposed he met with Mr Korman and instructed him to contact the applicant and request that he attend a meeting to provide more information concerning the incident, and if necessary, to give him a ‘show cause’ letter to attend a further meeting to explain why his employment should not be terminated. 49 At that time Mr Janney deposed he had considered the draft investigation reports and had formed the view there was no equipment or vehicle malfunction that had caused the incident. Further, he considered there was enough information suggesting the applicant had delayed his response to the hazard or had applied an inappropriate response to the hazard as the primary reason for the incident, particularly in view of:

• Mr Korman’s minutes of the meeting between the applicant and Mr Korman taken after the incident;



• the “snap chart” completed by the applicant following the incident;



• the Tacho Analysis data;



• the various photographs taken of the site and the vehicle subject to the incident; and



• his earlier visit to the scene of the incident.

[67] Mr Janney referred to an email from Mr Korman dated 19 September 2012 which attached a draft copy of Mr Snell’s report. That report was set out in Annexure DJJ-4 to his statement. In that regard Mr Janney deposed that while the report was still in its draft form, it was clear to him that the report’s findings had confirmed there was no mechanical defects that caused the incident and further the cause of the incident had been the applicant’s failure to properly respond to the hazard. Mr Janney also considered the applicant’s vehicle was fitted with the appropriate safety equipment including tyres appropriate for the conditions applicable on the mine site.

[68] Mr Janney deposed he was aware that on 19 September 2012 Mr Korman, Mr Blason, the applicant and his support person, Mr Dever, attended a meeting where the applicant was handed a ‘show cause’ letter by Mr Korman setting out the company’s concerns regarding the applicant’s conduct. The applicant was given an opportunity to address those concerns in writing or in person at a meeting scheduled for 2.00pm the following day.

[69] On 21 September 2012 Mr Janney deposed that he had attended a meeting with Mr Korman and Ms Stefanie White, Human Resources Specialist, to discuss the incident and consider whether any disciplinary action should be taken against the applicant. Mr Janney recalled that during the course of that meeting all the available information pointed to the applicant being at fault. The meeting also considered the applicant’s written response to the ‘show cause’ letter. Mr Janney stated that after reading the applicant’s response it appeared to him that the applicant did not adress any of the respondent’s concerns regarding his conduct, nor did he deny the matters identified in the investigation. Further it was his understanding that during the ‘show cause’ meeting the applicant did not deny or challenge any of the respondent’s findings that were made against him. However he acknowledged that the applicant had said words to the effect that he was “remorseful.” 50

[70] Mr Janney met with Mr Korman and Ms White later at approximately 4.00pm on 21 September 2012 where they decided that a decision should not be made at that stage concerning what disciplinary action should be taken against the applicant.

[71] Mr Janney met with Mr Korman on 24 September 2012 to further discuss the incident and decide whether disciplinary action should be taken against the applicant. It was Mr Janney’s evidence that the TapRooT and Mr Snell’s external investigation reports identified that the primary causes of the incident was the applicant’s failure to identify a hazard and take appropriate action in time to avoid an uncontrolled situation. Mr Janney also stated that Mr Snell’s findings set out in the draft report were identical with the final report received by the respondent in early October 2012. Mr Janney stated that during the course of the meeting he considered the following documentation:

• Tacho Analysis Report;



• a copy of the surveyor’s report;



• a copy of the statement provided by the applicant;



• Mr Korman’s notes of the meeting he had with the applicant following the incident;



• quotation estimating damage related to the vehicle following the incident;



• the draft investigation report prepared by Mr Snell;



• the final internal TapRooT investigation report prepared by Mr Caslick;



• the various photographs taken of the scene and damage to the vehicle following the incident;



• the ‘show cause’ letter dated 19 September 2012 forwarded to the applicant; and



• the applicant’s subsequent response to that ‘show cause’ notice.

After considering all of the above Mr Janney decided the appropriate cause of action was to terminate the applicant’s employment.

[72] Mr Janney determined the applicant’s conduct was entirely inconsistent with the Bengalla Mine Transport Rules and the standards of conduct expected at the mine. He considered the applicant’s conduct reflected a wilful disregard to the importance of safety at the mine, particularly the Transport Rules. In relation to the grounds set out in the applicant’s letter of termination dated 25 September 2012, Mr Janney stated the following:

Failure to maintain control of the vehicle at all times:Mr Janney deposed he reached that conclusion on the following grounds:

• the applicant had received training on driving on the mine’s roads;

• the applicant had been driving at the mine for more than a year;

• he agreed with Mr Snell’s conclusion that the principal cause of the incident was the applicant’s failure to identify a hazard and then take appropriate action in time to avoid an uncontrolled situation with a negative outcome;

• the length of the vehicle’s road marks were over a long distance. In that regard he did not believe the applicant had made the appropriate attempts to bring the vehicle under control nor did he believe the applicant acted immediately to the slide and further he contended the applicant caused the vehicle to slide in three different directions; and

• the Tacho Analysis data, the applicant’s acceleration of the vehicle and the tracks on the road were, in his opinion, not consistent with the applicant’s version of events that he was bringing the vehicle under control. 51

You have not used the appropriate speed for the conditions: Mr Janney contended that at the time of the incident:

• the applicant was not driving to the conditions and further, the Tacho Analysis data indicated he had excessively accelerated and the engine was operating at approximately 4,000rpm at the time of the slide. Mr Janney was aware that the engine would reach the “redline at 4,500rpm”; and

• the Tacho Analysis confirmed that shortly before the incident, which would have included the vehicle taking the corner, the vehicle was travelling at a speed between 55 and 60km/h. 52

Deliberate application of the accelerator for a distance of 80 metres while the vehicle slewed sideways in the left and right directions three (3) times: Mr Janney deposed that the applicant had stated during the course of the investigation that he deliberately applied the accelerator during the slide for a distance of approximately 80 metres. Mr Janney considered that this response had contributed to the cause of the incident. He further considered the applicant’s response to be completely unacceptable behaviour, particularly when the vehicle was slewing from side to side as the applicant admitted he was accelerating. Mr Janney contended the applicant’s response was inconsistent with the training he had received. Mr Janney further contended that at 55km/h it took around five seconds to travel 80 metres and during that time the applicant chose to continue accelerating in an excessive manner while the vehicle was sliding. In that regard he agreed with Mr Snell’s external investigation report conclusion that “the delay to respond to the hazard [was] indicative of [a] deliberate decision not to respond and to continue to apply the accelerator, inattention... or significant distraction.” 53

Breach of Transport Rules: Mr Janney determined the applicant’s conduct breached the Transport Rules on the grounds that he failed to avoid the danger and take account of the conditions of the road including adverse weather conditions. In that regard Mr Janney stated he considered night driving required special care to be taken on the mine’s roads. The applicant was also aware that watering of roads regularly occurred at the mine and he had not driven to the conditions at the time of the incident. 54

[73] Mr Janney stated he had considered a range of further considerations identified in the TapRooT report that may have contributed to the incident, including the spot watering of the road, the cross-gradient and gradient of the road. However he did not consider the watering to be excessive nor did he identify that consideration as the principal cause of the incident. Shortly stated the applicant had in excess of 12 months experience of driving on site. Moreover, during the week prior to the incident there had been an active safety vehicle awareness campaign to emphasise the critical importance of vehicle safety, and in his view, the applicant’s conduct demonstrated a blatant disregard for his training and the safety campaign. Prior to deciding to dismiss the applicant, Mr Janney stated he had also considered the applicant’s assertion that his gloves had impaired his control of the steering wheel and ability to respond to the hazard. He also considered the applicant’s response to the ‘show cause’ notice, his personal circumstances and the length of his employment. 55

[74] Mr Janney determined the applicant did not gently apply the accelerator to bring the vehicle under control. Further, the Tacho Analysis data contradicted the applicant’s account of events and having considered the applicant’s response to the incident, he did not have any confidence that the applicant would not engage in similar behaviour in the future. He had also considered the applicant’s response that he only eased off the accelerator immediately prior to the vehicle overturning. In Mr Janney’s view the applicant’s conduct demonstrated a reckless disregard for safety and in doing so placed his life at risk. Mr Janney set out the reasons why the respondent considered reinstatement was impractical. 56

[75] In cross-examination, Mr Janney stated the respondent commenced its communication campaign with employees from the shift immediately following the first rollover incident that occurred some one week prior to the applicant’s rollover. He also confirmed the employee involved in the first incident received disciplinary action short of termination. Mr Janney confirmed that he had sought to include all matters related to the investigation and the reasons in support of the applicant’s dismissal in his statement. 57

[76] With reference to his meeting with Mr Korman on 17 September 2012 Mr Janney did not clearly recall whether he had Mr Snell’s draft report at that time.

[77] In relation to the meeting on 17 September 2012 Mr Janney denied that he had formed the view during the meeting with Mr Korman that the applicant’s employment should be terminated. However he did agree that the issue of his ‘show cause’ letter was a serious step for the respondent to take. 58 He suggested the purpose of the ‘show cause’ letter was to clearly raise the seriousness of the matter with the relevant employee and give them time to think about a proper response. Shortly stated it was Mr Janney’s evidence that there was nothing in the materials that he had considered prior to making the decision to dismiss the applicant, which would lead him to believe the applicant didn’t deliberately engage in the slide that led to the vehicle ultimately overturning.59

[78] In that regard Mr Janney considered the vehicle had slid in three different directions over a long distance. The applicant was not in control of the vehicle and as a result “the vehicle rolled over on its side after doing a complete revolution.” 60 Mr Janney considered the various slides of the vehicle when viewed in concert with the IVMS data which showed acceleration of the vehicle immediately prior to the incident which led him to the view there was a delayed or inappropriate response to the hazard. He later confirmed the IVMS data was the Tacho Analysis material. Mr Janney also considered the fact that whilst the vehicle slid in three different directions it appeared that the driver was accelerating “just about the entire distance.”61 He also determined that the acceleration “was nearly constant,” according to the materials available to him at the time.62 In relation to that comment, Mr Janney stated the Tacho Analysis showed high RPM’s at the time the vehicle’s tyres were spinning. With respect to the documents Mr Janney considered during the course of the meeting on 17 September 2012, he was unable to confirm whether he was in the possession of the Snap Chart or the IVMS Tacho Analysis data. Notwithstanding that, he was adamant that he had information from those documents “that would have provided me the information around speed and acceleration.”63 He also considered that he had the benefit of the information that was to come out of the TapRooT report but at that point in time he acknowledged the final report had not been given to him.

[79] Mr Janney stated that Mr Snell’s findings concerning the contention that the applicant delayed his response to the hazard simply confirmed his view of what had occurred from his discussions with others and the information he had obtained following his visit to the scene on the morning of the incident. In Mr Janney’s view it would have been sensible for the applicant to take his foot off the accelerator as a first step towards stabilising the vehicle. Mr Janney also confirmed that other than instruction “to drive to conditions” the respondent did not specify any particular steps that should be adopted in response to the hazard which caused this incident. In that regard, he stated that operators received training with a skilled and experienced person who explained the mine site hazards and the importance of driving to conditions prior to being permitted to drive on the mine site. 64

[80] In relation to a vehicle sliding on a watered road, it was Mr Janney’s evidence that the driver would be expected to bring the vehicle under control as soon as possible. However there are no instructions or strategies given to drivers to deal with such situations. In relation to the final TapRooT report, Mr Janney agreed that report “becomes consistent with the view that you had already articulated to Mr Korman and others during the course of (the investigation) process.” 65

[81] In relation to the Tacho Analysis data, Mr Janney contended that at 2:38.57 a.m. the vehicle’s engine was operating at about 4,000rpm with a speed of 40km/h. He contended the speed at that time was “too fast for the conditions of the road.” 66 In response to the proposition that the data did not identify vehicle speed, Mr Janney stated the data provided an average speed “for that window from 2:38.51 to 2:39.03.”67 He agreed there may be situations where high revs were not associated with high speed, for example, when there was a change down in gears or where the engine was straining to decelerate to get down to the lower gear. Mr Janney also agreed that “engine revs” did not necessarily show that in a point of time there was an increase in speed of the vehicle.68 He noted that at 2:39.57 a.m. the data showed the vehicle was travelling at 60km/h. He further agreed that on the material there was nothing to show there was any consistent period of revving at, or approaching the redline immediately prior to the incident.69 Mr Janney agreed he had not examined if the Tacho Analysis data showed whether or not the higher revs might have been produced by the vehicle “gearing down to decelerate into the corner.”70 It was Mr Janney’s evidence that on the material available to him, he did not believe the applicant was gearing down to enter the corner at the point where the revolutions were close to 4,000rpm. He maintained the applicant had adequate time during the whole skidding process to make the decision to take his foot off the accelerator and/or apply the brake. In his view, Mr Janney stated the evidence supported the proposition the applicant’s conduct was a wilful act to continue sliding the vehicle down the road.71 Rather than attempt to bring the vehicle under control the applicant “was attempting to steer it down the road.”72

Patrick Korman

[82] Mr Korman is the respondent’s Maintenance and CHPP Manager. Statements filed by Mr Korman on 7 January and 14 February 2013 were marked Exhibits R2 and R3 respectively.

[83] In Mr Korman’s first statement he deposed that mechanical technicians employed by the respondent were required to operate light vehicles at the mine at night, on dirt roads, in wet conditions and in unlit areas. It was a potentially hazardous task and proper safety practices and procedures need to be observed to ensure technicians are not exposed to injury. It was Mr Korman’s evidence that vehicle interactions were one of the highest risk activities at the mine. Accordingly, the respondent has a number of safety systems in place at the Bengalla Mine including:

Bengalla Transport Rules: All employees who are required to operate light vehicles are inducted on road safety and receive core skills training at the commencement of their employment. The Transport Rules require employees to drive to conditions, undertake pre-inspection of vehicles before operating, identify any hazards and then put those strategies in place to avoid further hazards. A breach of the Transport Rules could potentially cause serious injury or fatality.

Daily pre-start meetings: The respondent reinforces its safety message to employees through regular ‘toolbox talks’, “which are usually conducted prior to the commencement of the relevant shift and involves supervisors discussing possible safety issues and any recent safety incidents.” Mr Korman recalled that in the weeks prior to the applicant’s incident, site management conducted a campaign concerning vehicle safety. During the course of toolbox and pre-start meetings, supervisors emphasised the need for employees to drive to conditions, slow down, take their time and secure their tools in the vehicle.

Take 5: The objective of the ‘Take 5’ procedure is to ensure employees are mindful of workplace safety. The procedure requires employees to take five minutes ‘out’ to identify hazards, put controls in place to mitigate the identified hazard and complete their ‘Take 5 booklet’ before commencing any task. The booklet is a small notepad which contains prompts to assist employees to identify and think about possible safety risks associated with hazards so identified. The applicant’s ‘Take 5’ notes, completed during his shift on 3-4 September 2012, were annexed to Mr Korman’s statement and marked PAK-2. PAK-2 identifies “drive to conditions...slow down” as a hierarchy of control and critical safety behaviour.

103 ‘Pre-Check’: The 103 Pre-Check requires drivers to complete a checklist assessment of the vehicle. PAK-3, attached to Mr Korman’s statement, indicates the applicant performed the relevant check during his shift on 3-4 September 2012.

Driver Training: All drivers of mine vehicles are required to have a ‘pit licence.’ The licence is obtained by successful completion of a pre-drive assessment by the mine involving both theory and practical based components. Re-training is conducted approximately every two years. Documentation stating the applicant had successfully completed training was set out in Annexure PAK-4. Mr Korman interviewed the applicant at the hospital at approximately 7:00am on the morning of the incident. Mr Korman’s notes concerning that discussion were set out in Annexure PAK-5 and PAK-6 attached to his statement.

[84] Mr Korman deposed he met with Mr Snell, the external investigator, on 5 September 2012. The applicant returned to work on 6 September 2012 and during the course of that day he accompanied Mr Korman and Mr Matt Simpson, a Check Inspector, to inspect the site of the incident. During the course of that inspection the applicant acknowledged his hammer had been unrestrained in the vehicle at the time of the incident. The group also inspected the roadway and the relevant road tracks of the vehicle prior to its collision with the windrow. Agreement was subsequently reached to commence the TapRooT investigation. The applicant and Mr Simpson subsequently joined Mr Korman in his office to construct the timeline immediately prior to the incident. During the course of that meeting which spanned some six and a half hours, Mr Korman deposed the applicant’s position was that he did not notice that the road had been watered until it was too late. 73 He also deposed the applicant acknowledged that he had driven over watered roads that night and he knew the water cart was operating on the site. A possible causal factor was the slope of the road as well as the fact that the road had been watered. During the course of that meeting Mr Korman stated the applicant raised the following causal factor in discussions:

Well it is plainly obvious Patrick, you need to put up there driving behaviour because it was clearly a contributing factor. 74

[85] Following discussions with Mr Janney on 7 September 2012, Mr Korman contacted the applicant to inform him that given the seriousness of the incident, the decision had been made to stand him down pending further investigation.

[86] On or about 17 September 2012, Mr Korman spoke to Mr Snell concerning the progress of the investigation. According to Mr Korman, Mr Snell said words to the following effect:

I have found no mechanical or equipment defaults and this is a case of driver error. He has delayed and failed to take control of the vehicle in a respective manner. In my opinion, this is the cause of the accident. 75

[87] Also on 17 September 2012, Mr Korman contacted the applicant and requested that he attend a further meeting on 19 September 2012 with a support person.

[88] Mr Korman received Mr Snell’s draft report on 19 September 2012 and a copy of that report was annexed to his statement and marked PAK-8. Mr Korman met with the applicant and Mr Dever and Mr Blason, at approximately 12:55 p.m. Notes of that meeting were also attached to his statement and marked PAK-9. After considering the applicant’s response concerning his delay in braking and/or decelerating when the vehicle first commenced its slide, Mr Korman decided to present the applicant with a ‘show cause’ letter and request he attend a meeting at 2:00 p.m. the following day. Notes concerning the meeting conducted on 20 September 2012 involving Mr Korman, the applicant, the applicant’s support person Mr Dever and Ms White, were attached to Mr Korman’s statement and marked PAK-10.

[89] Mr Korman deposed he met with Mr Janney and Ms White on 21 September 2012 to discuss whether any disciplinary action should be taken against the applicant. During the course of that meeting various reports, the GPS data and the applicant’s written response to the ‘show cause’ letter were considered. Mr Janney subsequently concluded that he should consider the issue over the weekend. Mr Korman met with Mr Janney on 24 September 2012 where Mr Janney informed him the material available to the respondent was not consistent with the applicant’s version of events that he was trying to bring the vehicle back under control. 76 Arrangements were subsequently made by Mr Korman to meet with the applicant on 25 September 2012 with Mr Blason and Mr Dever. The termination letter was subsequently handed to the applicant.

[90] In relation to Mr Korman’s second statement (Exhibit R3) I have considered the matters raised in that statement concerning the applicant’s second statement and the second statement filed by Mr Dever. To the extent necessary, these matters are dealt with in cross-examination.

[91] In cross-examination, Mr Korman agreed Bengalla Mine Transport Rules do not govern how an operator should respond in the event of a slide or skid. Mr Korman contended the appropriate action was for an employee not to get themselves into a situation where the vehicle becomes uncontrolled. He confirmed that the mine vehicles record circumstances where a driver has engaged in excessive braking or has exceeded the mine site speed limit. Text messages are subsequently sent to the relevant superintendent who takes the matter up with the employee concerned. In relation to the applicant, it was Mr Korman’s evidence that prior to the incident the alarm had been triggered in the applicant’s vehicle. He could not recall the timing or frequency of that conduct. Mr Korman later confirmed the device that determined whether there had been excessive speed or braking within a particular vehicle was known as Ctrack. 77 On the night of the incident, Ctrack recorded an over-speed alarm in respect of the applicant’s vehicle. However he could not recall the precise speed recorded by Ctrack.

[92] Mr Korman confirmed the windrow was approximately 1.5 metres high and, with respect to the visibility from the Fuel Farm Road to the Windmill Road, he conceded that the windrow affected visibility at the initial part of the intersection. 78

[93] Mr Korman subsequently agreed that defensive driving could be helpful in preparing drivers to meet the conditions of the road that ultimately led to the incident. 79

[94] Mr Korman agreed that a decision had been made in or around July 2011 to install toolboxes on the back of mine vehicles so as to ensure tools were secured at all times. However, the responsibility for installation was delegated to another manager. Mr Korman also agreed that in respect of the applicant’s vehicle, the fact that no lash points were attached to the back of the vehicle did not prevent the applicant from using the tie rails attached to the vehicle’s tray. 80 He was aware however that following the incident a number of lash points had been installed in the vehicle LV86.81

[95] In relation to the incident, Mr Korman stated he did not initiate any steps to speak with Mr Thompson or other persons who attended the scene shortly after the incident. He agreed that such communication could have ascertained whether the road had, or had not been, excessively watered. 82 Mr Korman subsequently confirmed he did not instruct or inform Mr Caslick to ask those who were first on the scene following the incident what their impressions were about the watering of the road.83

[96] Mr Korman confirmed he was aware that on the night of the incident the watering on Windmill Road had commenced “about 10, maybe as much as 15 or 17 metres around from the corner.” 84 He agreed the extent of watering was a factor that needed to be considered by the TapRooT investigation. Mr Korman rejected the suggestion that the applicant’s statement concerning driver behaviour was taken out of context.85

[97] In relation to Mr Snell’s report, Mr Korman agreed that the report provided no factual basis for drawing a conclusion that the tyre marks of the applicant’s vehicle showed the vehicle had accelerated. 86 Mr Korman agreed that in Mr Snell’s final report, the reference stating the vehicle’s Hankook tyres had poorer traction on wet and icy roads was changed to read, ‘wet or icy sealed roads.’87 However he admitted that he had not discussed this issue with Mr Snell. Further, Mr Korman agreed that Mr Snell did not consider or refer to the cross-grade of the Windmill Road in his report.88 He also agreed Mr Snell had referred to the length of the wet area as approximately 25 metres, rather than 80 metres as determined by the TapRooT investigation and the observations of those involved on site immediately after the incident.89 Mr Korman stated he regarded Mr Snell’s report as sloppy.90

[98] In relation to the speed at which the applicant came around the corner, Mr Korman agreed that on the evidence before him it was not possible to predict or estimate the speed of the applicant’s vehicle immediately prior to the incident. 91 He agreed that when travelling at 40km/h a driver would only have a second or two to respond to a hazard that was 15 metres in front of the vehicle.92 He broadly agreed that in such circumstances a driver may have insufficient time to respond and avoid a hazard.93 The following exchange subsequently occurred:

You come around a corner which is a 65-degree corner. You come around the corner at 40. You then have a second – or 1.3 seconds, I think it is – before you reach a wet patch. You accept that in 1.3 seconds you cannot see a wet patch, decide to brake and take sufficient steps to avoid entering into that wet patch?---The reaction time of every individual is different, I guess. So it depends on the individual maybe. I don’t know.

You don’t think you could do something like that in 1.3 seconds, do you?---Probably not.

It would be fair then to expect that others would be unable to do the same thing in that period of time?---I think you can generalise that. 94

[99] With reference to the minutes of the meeting with the applicant and others on 19 September 2012, as set out in Annexure PAK 9 attached to his statement, Mr Korman stated he had access to both Mr Snell’s draft report and the Ctrack data report at that point in time.

[100] In reference to his discussion with the applicant where he contended there was a significant delay in the applicant decelerating or braking, Mr Korman maintained that an appropriate response to a skid on a wet road may be to brake. 95 Mr Korman also acknowledged that in circumstances where a vehicle has lost traction, the application of the brakes may result in a wheel lock which could make the vehicle “even more out of control.”96

[101] In response to a suggestion that the applicant may have misjudged the best means to correct a vehicle that was out of control and skidding, Mr Korman stated he would regard such behaviour as “bad behaviour” in the sense that the continued sliding and “the continued acceleration and no braking leads me to believe that it is poor judgement and poor behaviour in taking the vehicle under control.” 97 However he acknowledged that each response option available to the applicant involved a degree of risk. Mr Korman maintained the applicant could not provide a satisfactory response to the question put to him as to whether he had considered taking his foot off the accelerator.98 It was Mr Korman’s evidence that had the applicant applied the brake during the slide “the risk of actually hitting that windrow, I think, would be limited, almost non-existent.”99 In further exchanges, Mr Korman stated his contention that applying the brake as an appropriate response in the circumstances of this incident was based on his experience as a driver and someone who has worked on mine sites for many years.

[102] In reference to the road condition of the corner on the night of the incident, Mr Korman contended the wet patch was visible as you turned the corner. 100 He agreed that the first point in time the applicant had to make a decision was when he had driven into the wet patch and the vehicle began to slide.

[103] In reference to the Tacho Analysis data that suggested the vehicle maintained 4,000rpm over a period of 12 seconds, approximately 25 seconds before impact and, the GPS data which stated the vehicle was doing 40km/h for the same period, 101 Mr Korman could not explain why these factors were not considered in the draft TapRooT report available in or around 19 September 2012. Mr Korman subsequently agreed that an increase in RPM’s could have been associated with the loss of traction or with the engine straining “where there is a change down of gear to decelerate.”102 It was Mr Korman’s evidence that no automatic conclusion could have been drawn between the vehicle’s RPM’s on the one hand and how the vehicle was being driven at that particular point in time on the other.

[104] In re-examination, Mr Darams took Mr Korman to the statement filed by Mr Christian Scheffer, dated 14 February 2013, which showed at Page 29 that the Ctrack GPS data had recorded the applicant’s vehicle doing 61km/h at 11:28:45 p.m. and 63km/h at 11:30:45 p.m. on the evening of 3 September 2012.

Christian Scheffer

[105] Mr Scheffer is the Technical Manager of Ctrack Pty Ltd. Mr Scheffer’s statement dated 14 February 2013 was marked Exhibit R3 for the purpose of these proceedings. In his statement, Mr Scheffer deposed he had experience in analysing and interpreting data and information recorded and produced by Ctrack. 103

[106] Mr Scheffer explained the Ctrack system was designed to track the location of vehicles and provide the information to the client when certain triggers occur. The vehicles of clients are monitored for safety and asset security reasons. Data tracked may include:

• when the vehicle is driving;



• when the ignition is turned on and off;



• when the vehicle door is open whilst the handbrake is not applied;



• when the seatbelt is used; and



• when the vehicle is in 4wd.

[107] Mr Scheffer deposed it was possible for the GPS units fitted in vehicles to also capture the speed of the vehicle at a particular point in time. He advised the GPS system calculated a new position every second and from that data it calculates the speed based on the distance over time. Mr Scheffer explained the Ctrack system collected data by location, through Tacho data and black-box data:

Locational Data: The Ctrack unit takes a snap shot at what the vehicle is doing at set intervals whilst the ignition is on. This snapshot includes the current speed, the location coordinates, the active inputs such as ignition on/off, seatbelt active and the like. The frequency of the snapshot is configured at 60 second intervals at the Bengalla Mine site and accordingly where an input triggers in between the scheduled 60 second intervals, it will take a snapshot straight away and subsequently start sampling every 60 seconds from that time onwards. 104

Tacho Data: Tacho data is usually captured in 10 second intervals. The tacho data takes a snapshot of the current RPM’s and GPS speed values. This data is subsequently set out in a graph known as the Ctrack Tachograph Report.

Accident Data: The Ctrack continually stores the speed and RPM’s values every second into a virtual ‘black-box’ buffer. The system will trigger ‘possible accidents’ when certain events occur and the system moves that data into an area that can not be overwritten. Such events include ignition off, accident sensor and main power disconnection. The system can store 22 possible accidents before the oldest entry will be deleted. The Ctrack data will show the second by second speeds of the vehicle 120 seconds prior to the accident and 30 seconds after the accident. The accident sensor is triggered when the vehicle tilts more than 40 degrees or when the G-Force of the vehicle exceeds 4G. Such events trigger a response to the client to advise them of a potential accident. Explanatory material concerning Ctrack was attached to his statement and annexed CS-1.

[108] It was Mr Scheffer’s evidence that it was possible to plot the time of the incident as between 2:39.12 a.m. and immediately before 2:39.22 a.m. That proposition was identified in Annexure CS-3, attached to his statement, which was a Tacho Analysis graph, setting out RPM’s and Ctrack trips between 2:38.21 a.m. and 2:39.36 a.m. It was Mr Scheffer’s evidence that the wiring of the accident sensor in the applicant’s vehicle had been wired incorrectly by the installing subcontractor and accordingly the unit was unable to capture the two minutes prior to the incident on a second by second basis. 105 However, the wiring malfunction did not make any difference to the quality of the information recorded in terms of capturing the correct speed and GPS location of the vehicle.106

[109] It was Mr Scheffer’s evidence that the accident sensor on the applicant’s vehicle triggered at 2:39.17 a.m. on 4 September 2012 and at that time the vehicle was travelling at 54km/h. Mr Scheffer stated that in his experience a Toyota V8 diesel vehicle typically ‘redlines’ at 4000rpm. 107 In his opinion, the Tacho Analysis data was representative of a person who had applied “excessive revolutions and is not appropriately changing gears.”108 Mr Scheffer referred to a summary usage report that he had prepared for the applicant’s vehicle for the three weeks prior to the incident. The report showed the vehicle was used on a daily basis by 15 different drivers, including the applicant. The RPM reading of 3,960rpm, recorded immediately prior to the incident on 4 September 2012 at 2:38.51 a.m., was the highest RPM reading recorded by the vehicle over the three week period.109 Mr Scheffer stated it was not possible to determine from the available GPS data the actual speed the applicant was travelling around the corner. However, on the information available, it was clear that the vehicle was travelling approximately 55km/h at 2:39.12 a.m. and at 2:39.17 a.m. the sensor was triggered and the GPS data showed the vehicle was travelling at 54km/h.

[110] Mr Scheffer provided the following analysis concerning the speed of the vehicle immediately prior to the incident:

In working backwards from the end of the tyre track marks before the impact of LV-86 with the windrow, it is possible to determine the approximate location of LV-86 at 2:39.12 a.m., when the vehicle was travelling 55km/h. In a period of five seconds, LV-86 would have travelled the following distances assuming the following average speeds:

(a) 60km/h - 83.3 metres;

(b) 55km/h - 76.39 metres;

(c) 54km/h - 75.00 metres; and

(d) 50km/h - 67.44 metres.

Based on the above information, at 2:39.12 a.m. LV-86 would have been travelling approximately 55km/h within a range of 17 and 33 metres of the intersection of Windmill Road and the road from the Fuel Farm. A marked up a copy of the Map to show the approximate location area that LV-86 was GPS marked at 2:39.12 a.m. is annexed and marked “CS-5” to this statement. 110

[111] In cross-examination. Mr Scheffer confirmed the Ctrack tacho data was recorded at 10 second intervals. He agreed that the high RPM’s could be associated with a degree of acceleration involving actual movement of the vehicle or the wheels spinning because they had lost traction. 111 He also agreed that the high RPM’s could be recorded in situations where the vehicle engine was straining as the gears were changed down to accelerate.112 He further agreed that the data did not show or give a reason for the particular level of RPM’s at any point in time. Further, Mr Scheffer agreed the data did not support the view that the vehicle had operated at 4,000rpm for a period of 12 seconds. However, he stated that what the data did show was that for a millisecond “the vehicle engine was travelling at 3,960rpm.”113 He also agreed that it was unlikely a vehicle would maintain that level of RPM consistently for something like “12 seconds... unless you’re on an overrun downhill.”114

[112] In relation to the actual incident, it was Mr Scheffer’s evidence that it was not possible to categorically determine that the vehicle stopped at 2:39.22 a.m., or at some earlier point, given the five second window that existed within the Ctrack system. 115

[113] Mr Scheffer acknowledged he had not visited the scene of the incident and was unable to verify at what point on the road the sensor activated. 116 He agreed his calculations relied upon GPS data which had a five metre leeway. He also agreed there was up to a one second delay in the Tacho Analysis data recording.117 Mr Scheffer subsequently agreed that the high RPM’s could have occurred at 2:38.22 a.m. He also agreed that with a one or two second delay this could influence the tolerance of his calculations to the extent of 20 or 30 metres.118 However, he stated there was no leeway “with respect to the recording of the vehicle speed.”119

Robert Caslick

[114] Mr Caslick is the respondent’s Health, Safety and Training Specialist. Statements filed by Mr Caslick on 7 January and 14 February 2013 were marked Exhibits R5 and R6 respectively.

[115] Mr Caslick referred to the importance of vehicle safety at the mine site and the requirement for employees to obtain a ‘pit licence’ prior to operating vehicles at the mine site without supervision. Employees are also required to undertake retraining in circumstances where two or more weeks’ have passed since they have driven on the mine site. This practice was adopted because the road conditions varied across the site. In particular, Mr Caslick noted ‘temporary’ roads tended to be clay based whereas ‘full time’ main roads were typically gravel based. 120

[116] Mr Caslick deposed the respondent sought to constantly reinforce safe driving to employees, usually on a daily to weekly basis through a variety of methods including toolbox talks and training sessions. The recurring theme of these talks and sessions was to “drive to conditions” when operating mine vehicles.

[117] Mr Caslick recalled that approximately one week before the applicant’s incident, the respondent had initiated an intensive vehicle safety awareness campaign following the rollover of a light vehicle in August 2012. Employees were urged to focus on the task and drive to conditions.

[118] Mr Caslick referred to the TapRooT investigation process, the purpose of which was to consider all possible causes of the incident, eliminate non-relevant causes and identify appropriate means to manage the safety risk into the future. 121

[119] It was Mr Caslick’s evidence that in his experience TapRooT investigations did not form part of any disciplinary procedures nor were they used to determine whether disciplinary action should be taken. When the TapRooT investigation determined who was responsible for causing an incident, the question about disciplinary action was dealt with separately from the investigation. 122

[120] Mr Caslick deposed that on 18 September 2012 he received a partially completed TapRooT report from Mr Korman. Mr Caslick stated he was asked by Mr Korman to facilitate the investigation. Mr Korman subsequently handed him the following documents:

• a copy of the incident summary - snap chart prepared by Mr Korman in discussions with Mr Matt Simpson and the applicant following the incident;



• In Vehicle Monitoring System (IVMS, sometimes referred to as GPS or C-track) data relating to the speed of the vehicle and the revs of the vehicle around the time of the incident;



• surveyor’s map of the ‘LV86 incident - Rollover,’ Windmill Road;



• a draft copy of the external investigator’s report;



• photographs of the site and vehicle post incident; and



• statements of the applicant, Mr Steven Fuller and Mr Darren Miller, as well as notes of a meeting between Mr Korman and the applicant taken by Mr Korman in the morning after the incident. 123

[121] Mr Caslick deposed that he reviewed the documents given to him by Mr Korman prior to the formal commencement of the TapRooT investigation on 19 September 2012. He further deposed that as the facilitator of the investigation, his task was to ensure the correct process was followed to identify all causal factors and recommend what action should be taken to prevent a recurrence.

[122] During the course of the TapRooT meeting convened on 19 September 2012, Mr Dever stated that he had just returned from a disciplinary meeting with the applicant where the respondent had asked him to ‘show cause’ as to why his employment should not be terminated. In that regard Mr Dever complained the TapRooT process had not been completed. In response to Mr Dever’s comments, Mr Caslick stated:

There appeared to be evidence from the initial investigation and the external investigator’s report that would support the proposition that the applicant’s behaviour did not meet the respondent’s drive to conditions expectations. However, the investigation process needs to continue and further information may come to light during the course of the investigation that may assist the applicant’s case.

[123] Mr Caslick stated that he received an updated copy of the surveyor’s report concerning the incident on 20 September 2012. The purpose of that report was to identify the cross-grade of the road. Later that day he prepared the TapRooT report which included the slope grade of the road as a potential contributory factor to the incident. He later explained the report to Mr Janney, which identified recommendations to prevent a recurrence of the incident. Mr Caslick also amended the cause of the incident from “operator lost control of LV-86 driving through watered section of road” to “the operator failed to drive to conditions and maintain control of the vehicle at all times.” 124 He further explained that the changed wording reflected his views about the causative reasons for the incident. The final copy of the report was given to Mr Janney on or about 21 September 2012. A copy of that report was annexed to his statement and marked RMC-2.

[124] In reference to the TapRooT report, Mr Caslick stated he determined the primary cause of the incident was the applicant’s failure to bring the vehicle under control in a timely manner. In that regard he could not determine from the documents provided and considered in the investigation as to whether the vehicle was out of control before the applicant met the hazard. Further, Mr Caslick determined that the applicant sought to regain control of the vehicle late in the slide. 125 Mr Caslick formed that view after considering the applicant’s recollection that he did not immediately ease off the accelerator to bring the vehicle under control and in fact, had accelerated after the vehicle began to slide. He also considered the various photographs of the incident which showed the vehicle had swerved three times from side to side over approximately 80 metres before colliding with the windrow. In that regard he deposed he also considered the GPS and Tacho Analysis data. After reviewing all the material, Mr Caslick contended:

(the applicant...) only eased up on applying the accelerator moments before impact with the windrow. When the vehicle reached a dry patch, this resulted in the wheels gaining traction and the car being thrust into the windrow, overturning one and a quarter rotations before coming to a rest. I considered the speeding up of the vehicle and (the applicant’s) inability to control the vehicle in a cautious way was a major contributor to the incident. I concluded that (the applicant’s) failure to respond in an appropriate and timely manner was the root cause of the incident.

[125] In relation to the condition of the road on the night of the incident, it was Mr Caslick’s evidence that watering had commenced at least 10 metres after the intersection and the length of the watering was appropriate for the relatively flat site of the road. He stated there was no evidence of over-watering of the road and this was not raised by anyone attending the TapRooT investigation as a possible or probable cause. Mr Caslick contended that the respondent’s employees regularly drove on Windmill Road in similar conditions without incident. Mr Caslick also deposed that in his view there was no evidence that the vehicle was faulty.

[126] In relation to the applicant’s contention that the gloves he was wearing at the time impeded his capacity to correct the vehicle, Mr Caslick dismissed this contention on the grounds that the gloves were quite thin. He also stated there was no evidence before the TapRooT investigation that the wearing of gloves was a causal factor. 126

[127] In relation to the applicant’s contention that there were no warning signs to indicate the road had been watered “around the corner” on the night of the incident, Mr Caslick stated the surveyor’s report indicated that watering was approximately 10 to 20 metres from the corner. He further contended that driving at night at the mine site required special care and employees should “slow down.”

[128] Mr Caslick dismissed the applicant’s contention that he sought to regain control of the vehicle by gently applying the accelerator hoping that the vehicle would regain traction, on the grounds that this proposition was inconsistent with the vehicle’s track marks on the road and the Tacho Analysis data which indicated a heavy application of the accelerator for a significant period of time, easing off immediately prior to the vehicle’s impact with the windrow. 127

[129] In relation to Mr Dever’s contention that photographs revealed some deposit of water on the road on the morning following the incident, it was Mr Caslick’s evidence that “there was no visible water and there was not water runoff to the side as I would expect to see at a heavily watered site.” 128

[130] In Mr Caslick’s second statement, he provided a response to the statement of the applicant dated 22 January 2013 and the second statement of Mr Dever which was undated. I have considered both statements and to the extent necessary they are dealt with in cross-examination.

[131] In cross-examination, Mr Caslick confirmed the respondent did not offer employees defensive driving training. 129 In that regard he was also unaware of any instructions given to employees regarding skidding or sliding on wet roads.130

[132] It was Mr Caslick’s evidence that despite the fact there had been a number of incidents or accidents resulting from over-watering, the respondent’s objective was more likely to attempt to fix the water hazard than train personnel to react to the hazard. 131 However, he considered that by telling staff to “drive to conditions,” this was an appropriate response to the risk of accidents on watered roads. He also noted that staff were expected to drive to conditions during periods of rain.132 Mr Caslick agreed that the instruction “drive to conditions” provided no information on how employees should respond when the vehicle has commenced to slide.133

[133] In relation to the Tacho Analysis data which suggested the vehicle had been revving at 4,000rpm for a period of about 12 seconds continuously, approximately 25 seconds before the impact with the windrow, Mr Caslick submitted that he did not realise that interpretation of the data was incorrect at the time of its consideration within the TapRooT investigation. 134 However it was his view that Tacho Analysis data was only one part of the investigation process. He further agreed that other members of the TapRooT investigation team together with his managers did not take issue with that interpretation of the data.

[134] In relation to Mr Snell’s investigation report, Mr Caslick agreed that he spoke to Mr Snell about the tyre reference in the report. In that regard, Mr Caslick stated Mr Snell had produced that material from the supplier’s website. He was unable to shed any light to support why Mr Snell changed his report concerning the reliability of the tyres and why they exhibited poorer traction on wet or icy roads. 135 Mr Caslick explained that when he concluded that the applicant “failed to drive to conditions” he meant the following:

Failure to drive to conditions - means “You were was speeding, you were driving faster than you can drive to maintain control of the vehicle, or taking a corner faster than you can... it’s basically the wetter the conditions, the slower you drive.” 136

[135] Mr Caslick agreed that the contention the applicant was driving the vehicle at 54km/h immediately prior to the incident could have been recorded at a point of time when the vehicle was sliding. He further contended that “failure to drive to conditions” essentially meant the applicant did not bring the vehicle under control. 137 He reiterated the applicant should have taken his foot off the accelerator at the commencement of the slide.

[136] In relation to the Tacho Analysis data, Mr Caslick confirmed his interpretation was that the applicant accelerated persistently whilst the vehicle was skidding. 138 He subsequently confirmed that he was on leave on the day of the incident and had not inspected the scene at any time following the incident. With respect to his contention that the applicant should have taken his foot off the accelerator after commencing the skid, Mr Caslick agreed that had the applicant applied such a strategy there was still no guarantee the vehicle would have come to a stop.139 He later agreed the applicant’s approach to bringing the vehicle under control was “a well understood strategy.”140 He also contended that a 77 metre skid was not consistent with a driver trying to bring a vehicle under control in a timely fashion.141

[137] In relation to the tyre tracks, Mr Caslick disagreed the tracks were consistent with a driver trying to bring a vehicle under control. 142 It was also his view that had the applicant driven to the conditions he would have seen the watered road prior to reaching the potential hazard.143 Mr Caslick maintained a driver would have seen the water as he/she rounded the corner and given the width of the road, it was unnecessary, in his view, for the vehicle to straighten up out of the corner as the water would have been visible.144 Mr Caslick further contended that around the mine site staff turned corners and entered watered sections of the road regularly.145

Thomas McCormack

[138] Mr McCormack is employed by the respondent as a Mining Superintendent. He stated his duties involved the supervision of mining operations with employees responsible for water cart operations on the site reporting to Mining Team Leaders who subsequently report to him. Statements filed by Mr McCormack on 7 January and 14 February 2013 were marked Exhibits R7 and R8 respectively.

[139] Mr McCormack explained that watering of the roads to suppress dust was an integral part of mining and was necessary to enable the mine site to comply with Environmental Protection Authority standards. He contended all mine employees would be aware of the dust suppression process and those who drove on the mine roads encountered watered roads every day. 146

[140] Mr McCormack further explained that water carts were fitted with sprays and water cannons. The amount of water applied to a road depended on a combination of factors including weather conditions, the slope or gradient of the road and the location of the watering. Watering was generally undertaken in sections to reduce the incidents of safety hazards, particularly for large vehicles carrying significant loads. The flow of water is adjustable and, in his experience, water cart operators manually determined the amount of watering needed to be applied to the relevant road.

[141] Mr McCormack deposed ‘over-watering’ could create significant road safety issues. He stated the respondent conducted regular training of water cart operators and that training guidelines existed which dealt with the amount and location of watering on mine roads. In the event a stretch of road was over-watered, depending on the type of road, he would expect to see “overflow of water marks to the side of that road or pools of water and very dark patches where the water had settled.”

[142] With respect to water cart training, it was Mr McCormack’s evidence that operators were required to have a ‘pit licence’ and 6 to 12 months haul truck driving experience at the mine. This experience is required to ensure that drivers understood the conditions they may face when driving on mine roads. 147

[143] Mr McCormack deposed that at approximately 3:00 a.m. on 4 September 2012 he received a telephone call from the Mine Team Leader, Mr David Miller, who informed him there had been a rollover incident at the mine. Mr McCormack arrived at the scene of the incident at approximately 3:45 a.m. At approximately 5:30 a.m. he marked the vehicle’s tyre tracks with pink and green spray paint to outline the path of the front and back tyres prior to the incident. 148 It was Mr McCormack’s evidence that at the time he did not consider there was anything unusual about the condition of the road or the watering of the site in or around the incident. He deposed there was no overflow of water off the side of the road into the drain. Against that backdrop he considered there was an appropriate amount of water applied to the road. It was also his view that the road was well engineered and maintained with a good level of gravel.149

[144] Mr McCormack commenced taking photographs of the scene from approximately 5:30am, shortly before sunrise. He referred to a number of photographs attached to his statement and concluded that watering was adequate and appropriate for the conditions. Further, the watering of the road was a suitable distance from the corner to enable unaware drivers to see any hazard. He contended the distinct differences in the colour of the road due to watering would have been visible at night to the applicant. Further, in his experience if the driver was aware, was driving to conditions and had his/her headlights on, he/she would have noticed the watering of the road before reaching the hazard. 150 He rejected the applicant’s evidence that the road had been heavily watered on the night of the incident.151

[176] In relation to the incident, the applicant admitted in cross-examination that he was aware a water cart was operating that night and, further, he had also driven on watered roads that night. He also understood that roads were watered at night and that he was familiar with the part of the road where the incident occurred. 184

[177] In relation to speed, Mr Darams submitted the Ctrack Data demonstrated the speed of the vehicle when it took the corner was the speed of the vehicle when it came upon the watered section of the road. 185 In relation to that proposition, Mr Darams further submitted the applicant in cross-examination had admitted to slowing down more during the day when taking corners than he did at night as headlights were visible at night. It was also the evidence of the applicant that he did not start to lose control of the vehicle until he applied the accelerator. That evidence supported the proposition that the speed at which the applicant took the corner was also the speed of the vehicle when it met the watered section of the road. It was also the applicant’s evidence that he did not start to lose control of the vehicle until he came across the watered section of the road. Mr Darams noted that during a meeting with Mr Korman on 19 September 2012, the applicant had not considered taking his foot off the accelerator at any time during the slides until he felt that he had no control of the vehicle, which was after the third slide.186 Mr Darams submitted it was clear on the applicant’s own explanation that he was “not just putting his foot on the accelerator and taking it off but that he had his foot on the accelerator for the entire period of time, until the third slide.”187 Whilst it was the applicant’s written evidence that he took the corner at approximately 40km/h, he conceded in cross-examination that he was unsure of the precise speed. In further cross-examination the applicant admitted he could not be sure that he took the corner at a speed greater than 40km/h.188

[178] Mr Darams submitted that on Mr Scheffer’s evidence the rollover sensor triggered at 2:39.17 a.m. when the vehicle was travelling at 54km/h. In that regard, Mr Darams submitted the respondent took the view that the data suggested the vehicle did not slow down at any time when travelling the 75 metres of road prior to the rollover. The respondent contended the applicant never applied the brake at any stage. Mr Darams submitted that even if the Commission accepted that the applicant was travelling at 40km/h when he took the corner, Mr Scheffer’s analysis suggested the applicant must have accelerated from 40 to 54km/h prior to the rollover. If that was the case, the vehicle must have had traction to accelerate and it would have also had sufficient traction for the brakes to be applied to slow the vehicle. 189

[179] There was logical inference that if the Commission accepted the applicant’s evidence that the vehicle entered the wet patch at the same speed that it rounded the corner and no acceleration was applied, then the vehicle must have been travelling at 54km/h when it hit the wet patch of road. 190 Moreover, the applicant admitted to Mr Korman during discussions on 6 September 2012 that his driving behaviour had contributed to the incident. In that regard, the respondent argued that Clause 6.1 of the Bengalla Mine Transport Rules provide that operators must avoid danger and take account of the “conditions of the road.” The respondent contended that upon becoming aware that the vehicle was sliding, the applicant did not immediately attempt to regain control of the vehicle but instead decided to accelerate for a significant distance which increased the risk of injury or fatality.

[180] In relation to the watering of the road, the respondent gave consideration to the extent to which watering of the road contributed to the incident and concluded that the stretch of road in question had been watered in accordance with standard practices. Moreover, the fact that roads are regularly watered for dust suppression and compliance with air quality standards set by the Environmental Protection Authority meant that the applicant should have been on notice that he could have been required to drive on a road that had been recently watered. Further, the applicant should have been particularly alert given he was driving at night. The TapRooT investigation and Mr Snell’s investigation identified that it was the applicant’s behaviour that ultimately caused the incident and not the watering of the road.

[181] Following an earlier vehicle rollover, the respondent initiated a campaign concerning vehicle safety and particularly the need to adhere to the site’s Transport Rules. Employees were briefed at pre-work meetings about the need to slow down, take account of the conditions of the roads and secure tools in the vehicle cab to minimise the risk of injury. In the respondent’s view, the applicant’s failure to comply with these instructions demonstrated his complete disregard for management’s training and the health and safety of himself and his co-workers.

[182] The respondent denied the applicant was not given an opportunity to respond to any reason for dismissal relating to his capacity or conduct. In its view the applicant was afforded procedural fairness and given a more than adequate opportunity to respond to those factors which ultimately formed the reasons for his dismissal. The applicant provided a written response to the ‘show cause’ letter dated 19 September 2012 and at no stage did he challenge any of the respondent’s findings set out in that correspondence. In the respondent’s opinion, the applicant’s response provided information that was largely unrelated to the incident and the circumstances in which it occurred. There was nothing in the applicant’s correspondence that suggested he took issue with the respondent’s conclusions about the cause of the incident. Although the respondent issued the ‘show cause’ letter on 19 September 2012 prior to the finalisation of the TapRooT and external investigations, the final version of the TapRooT investigation report was considered by the respondent before the decision was made to dismiss the applicant on 24 September 2012.

[183] In deciding to dismiss the applicant the respondent took into consideration his relatively short length of service and his family circumstances, together with the implications dismissal might have on his private life. The vehicle driven by the applicant on the night of the incident was well equipped to handle a wet road provided that it was driven appropriately. The respondent opposed reinstatement or re-employment.

Consideration and Finding

The statutory requirements

[184] Section 385 of the fair Work Act 2009 (the Act) relevantly provides that a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.

[185] Section 387 of the Act sets out the criteria to be considered by the Commission in determining whether a particular dismissal is harsh, unjust or unreasonable and provides the following criteria that must be taken 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 FWC considers relevant.

(a) Valid reason

[186] Having considered the evidence in its totality I am satisfied that the conduct relied upon by the Corporation to dismiss the applicant did occur. I also find that there was a valid reason for the termination of the applicant’s employment. The applicant’s dismissal was for reasons explained in a letter of termination dated 25 September 2012. At that time, the applicant understood the respondent was relying on those reasons to support his dismissal.

[187] In Selvachandran v Peteron Plastics Pty Ltd, 191 Northrop J considered the dismissal provisions of the Industrial Relations Act 1998 and determined:

...the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based up 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 upon them. The provisions must ‘be applied in a practical and commonsense way to ensure that’ the employer and employees are each treated fairly... 192

[188] Moreover in Parmalat Food Products Pty Ltd v Kasian Wililo, 193 a decision which considered a dismissal related to a safety breach, the Full Bench stated:

The existence of valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render any termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 194

The Full Bench also considered the importance of upholding safety rules in the workplace:

In our view this case raises important questions about the respective rights and obligations of employers and employees in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so can send a message to the workforce that safety breaches can occur with impunity. 195

The civil standard of proof applies in unfair dismissal proceedings and the Commission must determine whether on the balance of probabilities, the conduct as alleged occurred, having regard to the evidence. Shortly stated, this means that upon consideration of the evidence admitted by the contesting parties, the account that is more probable that not is to be accepted. The inherent probability of the allegation is considered in that process.

[189] The circumstances related to the incident that gave rise to the applicant’s dismissal were very serious. The vehicle rolled 1.25 times and in addition, a four pound hammer had been left unrestrained in the cabin of the vehicle. Fortunately, during the rollover the hammer did not come in contact with the applicant or another employee.

[190] Approximately one week prior to the incident, another rollover had occurred on the mine site. It was Mr Janney’s evidence that the employee involved in the first incident received disciplinary action short of termination.

[191] Shortly after the first incident, the respondent initiated a communications campaign to reinforce the mine site’s Transport Rules. Those Rules in part direct employees to take account of the conditions of the mine site’s roads. During the course of the pre-start meetings, employees were cautioned to slow down and take account of the various road conditions across the mine site. Employees were also briefed on the requirement to secure tools so as to minimise the risk of injury in the event of an accident.

[192] The applicant contended his vehicle was travelling at 40km/h as he turned into Windmill Road before he lost control. He further contended he was not speeding and was unaware the road had been watered.

[193] It was the applicant’s evidence that on an average shift he would make multiple journeys on the mine site’s roads. 196 He was familiar with the vehicle, LV86 involved in the incident. Moreover, in cross-examination, the applicant stated he was very familiar with the layout of the mine site’s roads and was also very familiar with the particular stretch of road subject to the incident that led to his dismissal.197 The applicant also stated in cross-examination that he was aware the mine site’s roads were watered to suppress dust.198 He was also aware watering occurred 24 hours a day, seven days a week.199

[194] The applicant contended he normally took the corner at 40km/h and rejected any suggestion that the vehicle could have been travelling at a higher speed. He later conceded he may have taken the corner at a speed greater than 40km/h as at the time he was looking at the road rather than the vehicle’s speedometer.

[195] The applicant denied that he lost control of the vehicle prior to hitting the watered section of the road. He also agreed that the speed that he took the corner was the speed of the vehicle when it met with the watered section of road.

[196] The applicant sought to regain control of the vehicle by applying a degree of acceleration and turning the steering wheel in the opposite direction to the slide. He did not apply the brake at any stage, deciding instead to slow the vehicle by taking his foot off the accelerator “slightly.” 200

[197] The applicant stated during cross-examination that in the event he was placed in a similar situation once more, he would respond in a similar way to that implemented on the night of the incident.

[198] The applicant rejected the Ctrack tacho data which suggested that after he lost control of the vehicle, the vehicle accelerated to at least 55km/h. 201

[199] The applicant was adamant the road was slippery because it had been watered shortly before the incident. He was unaware the road had been watered until the vehicle commenced its slide.

[200] Prior to commencing his shift on the night of the incident, the applicant performed the required ‘Take 5,’ a protocol that asks the employees to identify and consider the relevant risks and hazards associated with the conduct of particular tasks. The relevant ‘Take 5’ stated the following:

1. Obey road rules and drive to conditions

...

4. Drive to conditions, slow down.  202

In considering whether there was a valid reason for the applicant’s dismissal, I have carefully considered the many photographs related to the incident and the TapRooT investigation report and the Ctrack tacho data. In my view, the photographs do not support the proposition that the road was excessively watered on the night of the incident. The difficulty concerning the interpretation of the various photographs is that they were taken approximately three hours after the incident. The Ctrack tacho data can best be described as controversial. It was Mr Scheffer’s evidence that the accident sensor on the applicant’s vehicle triggered at 2:39.17 a.m. on 4 September 2012 and at that time the vehicle was travelling at 54km/h. Whilst there is no agreement concerning the speed of the vehicle at the time it entered the corner, the data analysis pressed by the respondent does, in my view, support the proposition that on the balance of probabilities, prior to the rollover, the vehicle was travelling at a speed higher than 40km/h. Similarly, it would appear the applicant did not apply the brake at any time prior to the rollover.

[201] Despite his ‘Take 5’ notations, the applicant failed to “drive to conditions and slow down.” The applicant was both familiar with the part of the road where the incident occurred and the fact the mine site’s roads were watered 24 hours a day, seven days a week. His contentions that the respondent should have warned operators concerning the hazards associated with watering roads on the night of the incident has little relevance in circumstances where it is common practice to water roads to suppress dust and maintain structural integrity and where operators undertake a two week training program prior to receiving their ‘pit licence’ and repeat training in circumstances where they are absent from the mine for a period exceeding two weeks. Moreover, the applicant had considerable driving experience with the respondent. He was aware water carts were operating on the night of the incident as he had driven over watered roads throughout his shift that night. It follows he should have been alert to watered roadways and the inherent risks therein just as he would during the day or in the event of heavy rain.

[202] Mr McCormack’s evidence was that irrespective of whether the intersection was at 90 or 70 degrees, employees were required to approach an intersection with the ability to stop in the case of collisions, traffic conditions or because some form of adverse action was required in the event a hazard was identified.

[203] The fact that the applicant did not see the watered section of the road until he had rounded the corner was precisely why he should have exercised the degree of caution for potential hazards as evidenced in his ‘Take 5’ for that shift and the requirements of the Transport Rules. The applicant’s conduct caused serious and imminent risk to his own health and safety and potentially others.

[204] Curiously, no water cart operators who may have worked on the night of the incident were called by either party to give evidence.

(b) Notification

[205] It is clear on the evidence the applicant was informed of the reasons for his termination on 25 September 2012. Moreover, it is also clear the applicant was informed of the reasons for dismissal prior to the respondent’s decision to terminate his employment was made.

(c) Opportunity to Respond

[206] The applicant contended he was not given a proper opportunity to respond to the investigation findings, particularly in relation to the respondent’s interpretation of the Ctrack tacho data relevant to the incident.

[207] On the material before the Commission, the reasons for dismissal were clearly articulated to him in the ‘show cause’ letter dated 19 September 2012. Moreover, a written statement prepared by the applicant shortly after the incident, together with his input to the TapRooT investigation concerning the construction of a timeline setting out the events immediately prior to the vehicle rollover, were considered by the respondent. This latter involvement occurred on 6 September 2012 and took up most of the day.

[208] The applicant was afforded ample opportunity to put forward an explanation refuting the respondent’s findings concerning his conduct. In that regard, Heerey J observed in Schaale v Hoechst Australia Ltd: 203

It would be harsh, unjust and unreasonable for an employer to dismiss an employee summarily on the ground of serious misconduct without taking reasonable steps to investigate those allegations and give the employee a fair chance of answering them…Employers are not required to have skills of police investigators or lawyers… 204

[209] The ‘show cause’ letter clearly set out the reasons for dismissal relied upon by the respondent. It was open for him to challenge those reasons for dismissal in his ‘show cause’ reply. The applicant was invited to provide his response verbally or in writing. He subsequently responded in writing and on the material before the Commission, the applicant did not seriously challenge the respondent’s contentions set out in the earlier ‘show cause’ letter. During the ‘show cause’ meeting conducted on 20 September 2012, Mr Dever attended the meeting as the applicant’s support person. Accordingly, the Commission finds the applicant was afforded an opportunity to respond to the reasons relied upon for his dismissal.

(d) Unreasonable refusal to allow a support person

[210] I am satisfied the applicant was afforded an opportunity to have a support person present and the requirements of the sub-section were met.

(e) Unsatisfactory performance

[211] There was no evidence that unsatisfactory performance was related to the applicant’s dismissal.

(f) Size of employer and impact of human resources expertise

[212] The respondent is a large employer with dedicated human resources staff. Further, the applicant was not denied procedural fairness.

(g) Absence of dedicated human resource expertise

[213] This matter is not relevant.

(h) Other matters

[214] I have had regard to the applicant’s period of employment and all of the other circumstances raised by Ms Doust during proceedings.

Finding

[215] In finding the respondent had a valid reason for dismissing the applicant, and following consideration of the other relevant factors set out in s.387 of the Act, I have also considered whether on a global basis, the termination of the applicant’s employment constitutes “a fair go all round.” The respondent is entitled to expect compliance with its express workplace rules and policies. It also follows that not all breaches of such policies will result in dismissal. However, in the circumstances of this case, I am unable to be satisfied that the termination of the applicant’s employment was harsh, unjust or unreasonable.

[216] The application is therefore dismissed.

COMMISSIONER

Appearances:

For the applicant, Ms L Doust of Counsel, instructed by Mr K Endacott (Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern District Branch).

For the respondent, Mr J Darams of Counsel, instructed by Mr A Allegretto of Herbert Smith Freehills.

Hearing details:

2013

Newcastle

28 February, 1 March

Sydney

17 April 2013

 1   Exhibit A1 at para 11

 2   Ibid para 13

 3   Ibid para 13

 4   Ibid para 21-22

 5   Ibid para 23

 6   Ibid para 24

 7   Transcript at PN155

 8   Ibid PN194

 9   Ibid PN197

 10   Ibid PN201

 11   Ibid PN215

 12   Ibid PN237

 13   Ibid PN236

 14   Ibid PN239

 15   Ibid PN242

 16   Ibid PN245

 17   Ibid PN251-252

 18   Ibid PN273

 19   Ibid PN359-361

 20   Ibid PN308 & 310

 21   Ibid PN352

 22   Ibid PN370

 23   Ibid PN371

 24   Applicant’s Exhibit at para 3 and 4

 25   Exhibit A6 at para 4

 26   Transcript at PN447

 27   Exhibit A7 at para 7

 28   Ibid para 11

 29   Transcript at PN556

 30   Ibid PN562

 31   Exhibit A8 and A9

 32   Ibid A8 at para 12

 33   Ibid para 15

 34   Ibid para 16

 35   Ibid para 19

 36   Transcript PN623

 37   Ibid PN645

 38   Ibid PN673

 39   Ibid PN680

 40   Ibid PN739

 41   Exhibit R1

 42   Ibid at para 10

 43   Ibd at para 14

 44   Ibid Annexure DJJ-2

 45   Ibid at para 19

 46   Ibid at para 22

 47   Ibid at para 23

 48   Ibid at para 27

 49   Ibid at para 29

 50   Ibid at para 35

 51   Ibid at para 39(a)

 52   Ibid at para 39(b)

 53   Ibid at para 39(c)

 54   Ibid at para 39(d)

 55   Ibid at para 39(e)

 56   Ibid at para 43

 57   Transcript at PN833

 58   Ibid PN901-903

 59   Ibid PN952

 60   Ibid PN958

 61   Ibid PN988

 62   Ibid PN989

 63   Ibid PN1007

 64   Ibid PN1079

 65   Ibid PN1136

 66   Ibid PN1165

 67   Ibid PN1169

 68   Ibid PN 1180

 69   Ibid PN 1215

 70   Ibid PN1221

 71   Ibid PN1246

 72   Ibid PN1270

 73   Exhibit R2 at para 27

 74   Ibid at para 28

 75   Ibid at para 31

 76   Ibid at para 42

 77   Transcript at PN1437

 78   Ibid PN1454

 79   Ibid PN1476

 80   Ibid PN1534-1536

 81   Ibid PN1541

 82   Ibid PN1551

 83   Ibid PN1554

 84   Ibid PN1556

 85   Ibid PN1595

 86   Ibid PN1617-1621

 87   Ibid PN1629-1633

 88   Ibid PN1694

 89   Ibid PN1699

 90   Ibid PN1707

 91   Ibid PN1714 & 1718

 92   Ibid PN1722

 93   Ibid PN1723

 94   Ibid PN1726-1728

 95   Ibid PN1778-1785

 96   Ibid PN1797

 97   Ibid PN1868-1869

 98   Ibid PN1877

 99   Ibid PN1881

 100   Ibid PN1922

 101   Ibid PN1985

 102   Ibid PN2024

 103   Exhibit R4 at par 1

 104   Ibid at para 5(a)

 105   Ibid at para 12

 106   Ibid at para 14

 107   Ibid at para 16

 108   Ibid at para 17

 109   Ibid at para 18

 110   Ibid at para 20-21

 111   Transcript at PN2178-2180

 112   Ibid PN2181

 113   Ibid PN2192

 114   Ibid PN2194

 115   Ibid PN2204

 116   Ibid PN2231

 117   Ibid PN2257

 118   Ibid PN2267-2269

 119   Ibid PN2275

 120   Exhibit R5 at para 5

 121   Ibid at para 12

 122   Ibid at para 18

 123   Ibid at para 20(a)-(f)

 124   Ibid at para 28

 125   Ibid at para 29(c)

 126   Ibid at para 29(c)(i-iii)

 127   Ibid at para 30(c)

 128   Ibid at para 31(c)

 129   Transcript at PN2337

 130   Ibid PN2339-2342

 131   Ibid PN2358-2365

 132   Ibid PN2372

 133   Ibid PN2375

 134   Ibid PN2438

 135   Ibid PN2540-2544

 136   Ibid PN2560

 137   Ibid PN2568

 138   Ibid PN2618

 139   Ibid PN2657

 140   Ibid PN2677

 141   Ibid PN2688

 142   Ibid PN2711

 143   Ibid PN2736

 144   Ibid PN2740

 145   Ibid PN2749

 146   Exhibit R7 at para 4

 147   Ibid at para 9

 148   Ibid at para 13

 149   Ibid at para 13(d)

 150   Ibid at para 17

 151   Ibid at para 19

 152   Transcript at PN2825

 153   Ibid PN2845

 154   Ibid PN2859

 155   Ibid PN2862

 156   Ibid PN2867

 157   Ibid PN2898

 158   Ibid PN2935

 159   Ibid PN2950

 160   Ibid PN2969

 161   Ibid PN2973

 162   Ibid PN3027-3030

 163   Ibid PN3044

 164   Ibid PN3052-3053

 165   Ibid PN3055

 166   Ibid PN3088

 167   Ibid PN3113-3117

 168   Ibid PN3119-3120

 169   Ibid PN3143

 170   Ibid PN3193

 171   Ibid PN3236

 172   Ibid PN184

 173   Ibid PN3326

 174   Ibid PN3329

 175   Exhibit A1, SM8

 176   Transcript at PN3393

 177   Ibid PN3397

 178   Ibid PN3400

 179   Ibid PN3416

 180   Ibid PN3420

 181   Ibid PN3423

 182   Ibid PN3430

 183   Ibid PN3468

 184   Ibid PN3469

 185   Ibid PN3476

 186   Ibid PN3478

 187   Ibid PN3478

 188   Ibid PN3484

 189   Ibid PN3503

 190   Ibid PN 3509

 191 [1995] IRCA 333

 192   Ibid at para [10]

 193   [2011] FWAFB 1166

 194   Ibid at para [24]

 195   Ibid at para [18]-[19]

 196   Transcript at PN155

 197   Ibid at PN197

 198   Ibid at PN201

 199   Ibid at PN215

 200   Ibid at PN251-252

 201   Ibid at PN359-361

 202   Annexure PAK-2 to Exhibit R2 - Mr Korman Statement

 203 (1993) 47 IR 249

 204   Ibid at PN252

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