[2017] FWC 154
FAIR WORK COMMISSION

DECISION


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

Mr Andrew Crawford
v
BHP Coal Pty Ltd
(U2016/6841)

COMMISSIONER HUNT

BRISBANE, 21 FEBRUARY 2017

Application for relief from unfair dismissal.

Introduction

[1] Mr Andrew Crawford has made application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by BHP Coal Pty Ltd (BHP).

[2] Mr Crawford commenced employment with BHP on 30 December 2013 and was dismissed on 3 May 2016. He was employed as a diesel fitter at the Peak Downs Mine (the Mine).

[3] It is not contested that Mr Crawford is a person protected from unfair dismissal.

Hearing

[4] The application was heard before me on 29, 30 and 31 August 2016 in Mackay, and 27 October 2016 in Brisbane.

[5] Mr Crawford was represented by Mr Rohan Anderson, Legal Officer of the Construction, Forestry, Mining and Energy Union (CFMEU). BHP was granted leave pursuant to s.596 of the Act to be represented by Mr James Ford of Counsel.

[6] The following witnesses gave evidence, or if they were not required for cross-examination their witness statement was admitted into evidence:

[7] Closing submissions were made at a further hearing in Brisbane on 27 October 2016. The decision was then reserved.

Background

[8] Prior to commencing employment with BHP at the Mine, Mr Crawford had worked at other mines as a diesel fitter in Queensland. He had earlier worked at Thiess as a diesel fitter while completing an adult apprenticeship in Heavy Diesel Engineering.

[9] Mr Crawford fulfilled his duties in the Mine workshop and also in the operational part of the Mine where he would repair machinery. The employees who work in the operational part of the Mine on the various vehicles are titled operators.

[10] Mr Crawford considered the performance of his duties with BHP to be very good, other than an incident that occurred on 3 December 2015. At approximately 3.00am on this date, Mr Crawford was working at the top of a high wall of soil attempting to repair a track dozer. He was operating a rattle gun and became frustrated with it not working properly. He threw it from where he was situated, such that it would then have travelled approximately 18-20 metres to the ground.

[11] An investigation was undertaken and BHP’s Just Culture Decision Tree applied to determine the conduct had been intentional and deviant. Mr Crawford was issued with a Step 3 warning. The BMA step warning system is set out in the BMA Guideline to Fair Play (Fair Play Guideline), which provides broad direction on the application of the Just Culture Decision Tree. The Fair Play Guideline provides a four step disciplinary process to be applied, except in instances of serious misconduct. The disciplinary process states:

Incident on 22 March 2016 resulting in dismissal

[12] It is uncontested that on 22 March 2016, Mr Crawford was performing work in the Mine workshop. He had commenced work at 6.30pm the night before and was concluding his night shift work on the morning of 22 March 2016.

[13] An incident occurred for which some of the facts are contested. Where the facts are not contested it is a matter of contest between the parties as to whether any breaches of company policy occurred, and if so, are the breaches sufficient to warrant dismissal.

[14] The following facts are generally not contested:

[15] Mr Crawford was issued with a show cause letter dated 13 April 2016. Relevant parts of the letter are reproduced below:

Incident – 22 March 2016

Investigation Findings

The investigation findings are:

Outcome – Show Cause

[16] Mr Crawford was requested to provide a written response. He had been suspended with pay from the date of the incident.

[17] Mr Crawford provided a written response on 20 April 2016. A meeting was not held with Mr Crawford to discuss his response. BHP dismissed Mr Crawford at a meeting on 3 May 2016.

MR CRAWFORD’S CASE

Mr Crawford’s evidence

[18] During the shift on 21-22 March 2016, Mr Crawford had completed relevant tasks, and he asked Mr Moloney if he should assist Mr Rose and Mr Johns in carrying out maintenance work on a dozer. The work to be performed on the morning of 22 March 2016 was to change a share seal, requiring the tracks of the dozer to be removed. The tracks on the dozer are the large, hard rubber belts that propel the dozer forwards and backwards.

[19] Work was commenced on the left hand side of the dozer, and when that was completed it is Mr Crawford’s evidence that approval was given by Mr Moloney to commence work on the right hand side of the dozer.

[20] It is Mr Crawford’s evidence that the relevant approvals were sought to do work on both the left and right hand sides of the dozer. This included completing a Job Safety Analysis (JSA) and completion of “BMA Safe” documentation. 2 The JSA has not been located.3

[21] Mr Crawford’s evidence is that he complied with the site Standard Work Instruction (SWI) for the removal of the tracks. In order to rotate the tracks of the dozer, it is necessary for a person to access the cabin of the dozer to start the machinery, and then when safe, rotate the track. Mr Rose and Mr Hooper were used as ‘spotters’ to assist with letting Mr Crawford know if he had rotated the track correctly, and to ensure other people did not come in proximity of the moving tracks.

[22] If the front of the dozer is facing at the position of 12 o’clock, Mr Johns was standing at 1 o’clock, and Mr Hooper at 3 o’clock. 4

[23] Mr Crawford explained how he accessed the cabin of the dozer 5:

[24] While in the cabin Mr Crawford turned the vehicle on and communicated with the spotters to ensure he moved the track to the required position. Mr Crawford is certain that the door on the left hand side of the cabin was closed while he was in the cabin and when he left the cabin. The left hand door is situated in the position of 7 o’clock.

[25] It is Mr Crawford’s evidence that if the dozer is operated and a door to the cabin is open, an alarm sounds. He did not hear an alarm. He then exited the cabin and took the same path he had taken to access the cabin, but in reverse.

[26] Mr Crawford was aware of BHP’s “Life Saving Rules” and a Standard Operating Procedure (SOP) declaring that workers must not work at heights greater than 1.8 metres without relevant restraints or other safety measures in place. Mr Crawford did not consider the manner in which he accessed and egressed the cabin to be working at heights. It is his evidence that this was the ‘usual manner’ to access and egress a cabin, and he had not ever seen anybody perform the work that he was doing having first put barriers in place.

[27] As he was walking down the right hand side track to make his way to the workshop floor, Mr Withers was nearby and said to him, “You are working at heights.” Mr Crawford responded that he was not and that he was getting off the machine. After a brief discussion, Mr Withers left the vicinity of the dozer and around five minutes later returned with Mr Moloney and Mr Kerry Ward, Superintendent.

[28] Mr Ward and Mr Withers alleged that Mr Crawford had been working at heights, that is, above 1.8 metres. Mr Crawford responded that he had not been, as he had been simply accessing and egressing from the cabin of the dozer. The managers left Mr Crawford and returned 15 minutes later to inform him that he was being stood down on pay. Mr Crawford was required to leave site.

[29] Mr Crawford then drove to the CFMEU office where he met with Mr Leggett. Mr Leggett telephoned Mr Ward and informed him that Mr Crawford could not be stood down unless he had been given relevant paperwork.

[30] Mr Crawford returned to the Mine to be issued the paperwork. Mr Ward approached him and attempted to give to him the paperwork. Mr Crawford said to Mr Ward, “Not until I have a delegate.” Mr Ward responded, “Fine, get onto one.”

[31] Mr Crawford was in the Mine office attempting to access a CFMEU delegate, Mr Danny Kliese. Mr Ward opened the door, and Mr Crawford explained he was trying to access Mr Kliese. It is Mr Crawford’s evidence that Mr Ward said, “It doesn’t matter, it won’t help your cause so don’t even bother.” 6 Mr Crawford’s diary notes record Mr Ward having said, “By getting him [Mr Kliese] will not do me any favours with [indecipherable] and Stephen did the pre-start as [Mr Kliese] will not be able to get to the shop till 7.30[am].’7

[32] Mr Crawford could not access a delegate, so he went to the workshop and asked Mr Deverell to accompany him to the meeting with Mr Ward where he was issued with a letter informing him he was being stood down.

[33] On 29 March 2016, Mr Ward contacted Mr Crawford by telephone and requested he provide a written statement of the events of 22 March 2016. In his response, Mr Crawford refuted the allegation that he was working at heights. Mr Crawford’s response is only one page long and does not address the issue of the left side door of the cabin.

[34] On 1 April 2016, Mr Ward advised Mr Crawford that an Incident Cause Analysis Method (ICAM) investigation had been completed that day.

[35] Mr Crawford attended a meeting with Mr Ward on 13 April 2016. Mr Leggett attended as Mr Crawford’s employee representative. It is Mr Crawford’s evidence that Mr Ward advised that as a result of the ICAM investigation, employees (including Mr Ward) had been disciplined. 8

[36] During the meeting Mr Crawford and Mr Leggett stated that Mr Crawford had only been accessing and egressing the dozer, and if he had travelled at a height greater than 1.8m, that’s how others access the cabin. Mr Ward went through the Just Culture Decision Tree and determined that in his view, Mr Crawford’s conduct had been intentional and deviant. Mr Crawford and Mr Leggett both objected to this view, stating that there had been no deliberate or intentional breach of any company standards or rules.

[37] Mr Ward advised that it was likely Mr Crawford would be issued with a show cause letter and the meeting was adjourned.

[38] Approximately two hours later, Mr Crawford attended a meeting where he was issued with a show cause letter. Mr Ward and Mr Hansen were at the meeting, and Mr Jeff Pearce, CFMEU Peak Downs Lodge Vice President was in attendance as Mr Crawford’s employee representative. The meeting was brief.

[39] Mr Crawford provided a response to the show cause letter approximately one week later. It is Mr Crawford’s evidence that his response covered the following points:

[40] Mr Crawford’s evidence is that in his written response to the show cause letter he was not going to ‘grovel’ and accept that he had done something wrong, when in his view he had acted in accordance with the training provided to him, in a manner consistent with the actions of other employees and in a manner known to staff and accepted. 9

Mr Crawford seeks reinstatement

[41] It is Mr Crawford’s evidence that he believes he had been unfairly targeted. He concluded that he was being singled out for particular workplace issues by Mr Mouat, Mr Withers and Mr Ward. It is Mr Crawford’s desire to return to the Mine, and his evidence that he would follow any lawful and reasonable directions of BHP and staff. He does not consider that the working relationship between him and others would be strained in any way. 10

[42] Mr Crawford’s evidence is that he is aware and conscious of the need to perform work safely.

[43] Prior to the dismissal, Mr Crawford’s annual earnings were $144,365 pursuant to the BMA Enterprise Agreement 2012. The weekly amount was $2,795.49. Attempts to secure employment were unsuccessful until Mr Crawford commenced employment on 9 August 2016. As at 30 November 2016 his earnings from the new role were $17,200.64 at a weekly rate of approximately $1,543.75. 11

Mr Sempf’s evidence

[44] Mr Sempf has worked at the Mine since April 1989 as a Fitter.

[45] It is Mr Sempf’s evidence that the method of work performed by Mr Crawford on the day of the incident was not unusual, and was in accordance with the SWI. Mr Sempf considered the way that Mr Crawford accessed the dozer was ‘the same way that access always occurred on such a job.’ 12

[46] Mr Sempf stated that he did not know if there were any handrails available at the time of the incident to assist with the work being performed by Mr Crawford. Handrails were introduced at the time of the 1.8 metre rule being implemented, but that was some years ago. Mr Sempf could not recall being trained in relation to the use of handrails. 13 It is his evidence that since the incident there have been some occasions when handrails have been used, but they had to be fixed because they had become rusted.

[47] Mr Sempf regards the use of barriers when the track is still on as unnecessary and impractical. He considers that there is no need for them because access to the cabin is gained via walking up the track.

[48] As to whether it is customary to have a dozer raised on jacks when the tracks are being trained, it is Mr Sempf’s evidence that it is common and a usual practice. 14

[49] Mr Sempf holds that view that Mr Crawford was being targeted when he was dismissed.

[50] During the hearing Mr Sempf gave evidence on the height of the dozer at the time of the incident:

…

[51] The Commission indicated relevant weight would be given to Mr Sempf’s evidence as to the height of the jacking of the dozer.

Mr Hooper’s evidence

[52] Mr Hooper has worked at the Mine for 10 years.

[53] It is Mr Hooper’s evidence that he observed Mr Crawford access the cabin on the dozer by walking on the track, and in doing so, he did not consider that Mr Crawford was working at heights. He considers that is the usual method of accessing the cabin in the workshop. 17 It is his evidence that it is not possible to rotate the track if barriers or railings are bolted to the track.18

Mr Deasy’s evidence

[54] Mr Deasy has worked at the Mine for approximately three years and has been a motor mechanic and fitter for 37 years.

[55] Mr Deasy’s evidence is that Mr Crawford’s method of jacking the dozer and accessing the cabin by way of the tracks was not an unusual method, and is how he himself has performed the task.

[56] Prior to the incident, Mr Deasy was not aware that barriers were available, and he had never used them or seen them used. He has not, since the incident had any training in the use of barriers, nor how to properly access and egress the cabin. Mr Deasy considers the use of barriers to create a greater risk than the way Mr Crawford performed the job. 19

[57] Mr Deasy’s evidence is that he considered Mr Withers unnecessarily targeted Mr Crawford over incidents. One such incident was an occasion when Mr Crawford was not wearing gloves. Mr Withers addressed his concern with Mr Crawford, but not with two other contractor workers nearby. 20

Mr Deverell’s evidence

[58] Mr Deverell has worked at the Mine for approximately 10 years.

[59] Mr Deverell was not present during the incident, but was addressed by Mr Ward in the days following the incident. Mr Deverell’s evidence is that Mr Ward mentioned that Mr Crawford had stepped on the dozer without having used a ladder. No mention was made of the left side door of the cabin having been left open. It is Mr Deverell’s evidence that this was identified two days after the incident.

[60] Mr Deverell’s evidence is that Mr Crawford could not have operated the dozer with the door open because there are sensors that prevent operation when the doors are open. 21

[61] Mr Deverell stated that he was not aware that hard barriers were available until after the incident, and he has not been provided with instruction on how to use the barriers.

[62] Mr Deverell stated that on an occasion employees questioned Mr Ward as to how the job should be performed differently to the way Mr Crawford performed the duties. Mr Ward answered that it was not a normal situation because the arm of the dozer had been removed, thereby removing access opportunities. It is Mr Deverell’s evidence that because the blade arm is removed, it doesn’t change the way the work has always been performed.

[63] Mr Deverell made out similar contentions as other witnesses that there was some conspiracy among managers, including Mr Ward to target employees on D Crew.

[64] Mr Deverell is aware that Mr Crawford was issued with a final warning for throwing a rattle gun over a high wall at the mine. He stated that Mr Crawford’s actions were ‘stupid’, but he considered the warning issued to him to be excessive. It is his contention that Mr Crawford should have been given a ‘rake over the knuckles’. 22

Mr Rose’s evidence

[65] Mr Rose has worked at the Mine for approximately 3 years.

[66] Mr Rose was working closely with Mr Crawford at the time of the incident. He considers that Mr Crawford accessed and egressed the cabin in the same manner as it has been done many times beforehand. Barriers were not used for the job as they had ‘never’ been used for the task that was being performed. 23

[67] It is Mr Rose’s evidence that it is not possible to operate the dozer to rotate the track if the door of the cabin is open. A sensor on the park brake prevents the machine moving in gear if the doors are not closed. 24

[68] Following the incident, Mr Rose has not been instructed to perform the work in a way that is different from the manner in which Mr Crawford accessed the cabin. For some time after the incident barriers were used for major work on dozers, including engines being changed out. Barriers are no longer encouraged or promoted.

[69] It is Mr Rose’s evidence that Mr Crawford was singled out by Mr Withers. Mr Withers and Mr Danny Mouat, Supervisor were managers with a close working relationship, and Mr Crawford was known to address performance issues with Mr Mouat’s stepson working on the job. It is Mr Rose’s contention that Mr Withers and Mr Mouat did not appreciate Mr Crawford pointing out alleged poor performance of Mr Mouat’s stepson. 25

Mr Leggett’s evidence

[70] Mr Leggett is employed by BHP as a Dragline operator. Mr Leggett attended the meeting between Mr Crawford and Mr Ward on 13 April 2016 and made contemporaneous notes, expanding on the notes in complete sentences following the meeting on the same day.

[71] At the meeting, Mr Ward took Mr Crawford through the PDM Event Report emanating out of the ICAM investigation. Mr Ward declared at the meeting that a number of people had ‘copped it’, including Mr Ward who received a Step 2 Written Warning. It is Mr Leggett’s evidence that the Supervisor had also been disciplined because he had walked past the incident (the dozer being jacked) and had not noticed it.

[72] Mr Leggett advocated during the meeting that Mr Crawford’s actions on the day were no different to how work is ordinarily performed. Mr Ward disagreed, stating that it was different because the blade arm was not on the dozer. 26

[73] There was discussion between Mr Ward and Mr Leggett as to whether it mattered if the blade arm was on or not. Mr Leggett requested video footage of the incident and was advised that none was available.

[74] Mr Ward informed Mr Crawford and Mr Leggett that the left side door had been open and there was a substantial drop to the floor. Mr Ward suggested that Mr Crawford was in breach of the SWI and SOP.

[75] Mr Ward took Mr Crawford through the Just Culture Tree used by BHP when dealing with disciplinary decisions. The material was pre-populated, leading Mr Leggett to conclude that Mr Ward had already pre-determined BHP’s position. Mr Ward nominated Mr Crawford’s actions as ‘intentional’ and ‘deviant’.

[76] Mr Leggett requested BHP consider on a without prejudice basis issuing to Mr Crawford a reinstated Step 3 warning and a period of unpaid suspension instead of issuing a show cause letter to him. 27

[77] Mr Leggett later attended a meeting on 13 April 2016, supporting Mr Crawford when he was informed of the termination of his employment.

[78] It is Mr Leggett’s contention that the incident had been rated a Level 4, potential fatal incident, and BHP’s investigation was remarkably flawed.

Evidence of Mr McGrath

[79] Mr McGrath has worked at the Mine for approximately 10 years.

[80] Mr McGrath worked the shift following Mr Crawford’s shift on the day of the incident. Upon commencing work, he was instructed by Mr Joel Anderson, Supervisor to locate and fit rails to the right hand side of the dozer.

[81] Mr McGrath attempted to locate rails. It is his evidence that rails are not fixed to the track until after the tracks have been removed due to the track being unable to be rotated with the barriers fitted.

[82] After fixing barriers to the right hand side of the dozer, Mr McGrath was asked to locate further barriers and affix them to the left hand side. He could not find the correct-sized barriers, but later found a ladder and installed it to the left side, completing the job in the early afternoon. 28

[83] Mr Anderson later approached Mr McGrath and informed him that the barriers he had installed had not been installed correctly as they needed to be bolted to the dozer. He then drilled holes into the dozer on the left hand side to bolt barriers in place.

[84] It is Mr McGrath’s evidence that Mr Crawford’s method of climbing onto the tracks and accessing the cabin, even when the dozer was jacked up and the blade arm removed was a matter of course for work performed on dozers in the workshop. It is a common and standard practice for a dozer to be raised on jacks to remove the tracks. 29

Mr Crawford’s submissions

[85] It is Mr Crawford’s contention the issuing of a warning to him in December 2015 for throwing the rattle gun from a height was harsh and should not have been taken into account due to irrelevance when considering the incident of 22 March 2016. 30

[86] Mr Crawford was dismissed by BHP for purportedly working at heights above 1.8 metres and for allegedly acting contrary to:

[87] Mr Crawford denies acting contrary to the above obligations, and if he did, his actions were not intentional.

[88] Mr Crawford contended that his actions on 22 and 23 March 2016 were no different to how he ordinarily performed his work, and he was unfairly and unreasonably singled out by BHP for dismissal. The manner in which he performed the work is the same as has been performed by colleagues, and observed by senior staff members on a regular basis for many years. 31

[89] It is submitted that BHP did not conduct a proper investigation into the incident, with the allegations changing after several days, to include allegations relating to the left door of the cabin having been left open by Mr Crawford. It is submitted that some people involved in the investigation were not independent and they ‘sought to target’ Mr Crawford. 32

[90] Mr Crawford submitted that BHP failed to conduct a fair and reasonable investigation by failing to take witness statement from relevant people, or conducting a re-enactment of the incident.

[91] It is submitted that BHP failed to adequately identify the alleged breaches to Mr Crawford, and nominated numerous and non-specific allegations.

[92] It is necessary to have regard to the considerations required by the Commission pursuant to s.387 of the Act. Mr Crawford makes the following submissions.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct – s.387(a)

[93] Mr Crawford submitted there was no valid reason for the dismissal related to his capacity or conduct. Where misconduct is alleged, the Commission must be satisfied that the alleged conduct took place and what it involved. 33 A belief, even a reasonably held belief as to the conduct of the employee is not sufficient and does not amount to a termination for a valid reason.34

[94] It is submitted BHP dismissed Mr Crawford without reference to the relevant sections or requirements in BHP’s policies and procedures, and there was no basis for determining that Mr Crawford acted in breach of the procedures.

[95] If the Commission determines there was a breach of procedures, it is submitted that the breaches were unintentional and was conduct that was condoned and accepted by BHP supervisors and managers.

[96] It is submitted that the Step 3 warning letter issued was harsh, and having been issued with it, Mr Crawford would not understand that if he was involved in the alleged conduct of 22 March 2016 he would be dismissed.

[97] Mr Crawford submitted that the dismissal was fanciful and capricious, and his actions could not amount to serious misconduct.

Whether the person was notified of that reason – s.387(b)

[98] Mr Crawford submitted that BHP failed to articulate or describe the elements of the alleged conduct said to have resulted in alleged breaches, including which part of the SWI had been breached. This is demonstrated by Mr Crawford addressing in his show cause response the lack of clarity in the show cause letter issued to him.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s.387(c)

[99] Mr Crawford submitted that while he was given an opportunity to respond to the allegations, it was only to the extent that they were made in the deficient show cause letter issued to him. Due to BHP failing to specify the allegations, Mr Crawford submitted that he was not provided an opportunity to adequately respond.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s.387(d)

[100] Mr Crawford does not submit that BHP failed to allow him to have a support person present during discussions relating to his dismissal.

If the dismissal related to unsatisfactory performance by the person – whether that person had been warned about that unsatisfactory performance before the dismissal – s.387(e)

[101] Mr Crawford submitted that the warning issued to him for the December 2015 in throwing the rattle gun from a height should not have been taken into consideration when making a decision to terminate his employment as a result of the March 2016 incident. 35

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s.387(f); and

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 following in effecting the dismissal – s.387(g)

[102] It is submitted that BHP is a large multinational company with a vast number of resources at its disposal. Mr Crawford submitted that despite its size, BHP failed to properly investigate the incident, and made incorrect findings in relation to its ‘Just Culture’ procedures. 36

Any other matters that FWC considers relevant – s.387(h)

[103] Mr Crawford submitted that if the Commission does find that there was a valid reason for the dismissal, the dismissal is still unfair in that it was harsh, unjust and unreasonable. It is within the Commission’s remit to find that just because there is a valid reason for termination it does not necessarily mean that the termination was not harsh, or unjust or unreasonable. 37

[104] Mr Crawford contended that the following should be taken into consideration: 38

[105] It is submitted that BHP failed to take into account Mr Crawford’s personal circumstances, including his financial situation and family responsibilities. It is contended that even if a valid reason for the terminated existed, the dismissal was ‘so grossly out of proportion …as to be absurd.’ 39

Mr Crawford’s closing submissions

[106] It was put by Mr Crawford that the following should be accepted by the Commission: 40

[107] It is submitted that Mr Withers’ evidence should not be given any weight, as it is contended that he is incorrect in many respects, particularly to the ordinary and customary work being performed, and at times was evasive when cross-examined.

[108] Similarly, it was submitted that Mr Hansen’s evidence should be given little weight. It is contended that Mr Hansen had no direct knowledge of the events. His evidence was on the basis of statements made to and from Mr Ward, Mr Moloney and others, yet Mr Ward and Mr Moloney were not called by BHP to give evidence. 46

BHP’S CASE

Mr Withers’ evidence

[109] Mr Withers is employed by BHP as Coordinator Maintenance Analysis & Improvement at the Mine where he has held this role since October 2015 as an employee. He had earlier performed the role for a period of over five years at the Mine as a consultant.

[110] Mr Withers is responsible for developing training packages, including delivery of the training, together with auditing and reporting.

[111] It is Mr Withers’ evidence that on the morning of the incident he conducted a walk-around the workshop of the Mine with Mr Ward in order to do a check of work being performed at the end of the night shift before the commencement of the day shift.

[112] Mr Withers stated that as he approached bay 13, he noticed that the dozer was jacked up between 40cm – 50cm above the ground. He concluded that due to the dozer being jacked up, the upper portion of the track of the dozer would be in excess of 1.8 metres and accordingly BHP’s safety requirements for working at heights would apply.

[113] Mr Withers noticed that the left hand side door of the cabin was open, and the left hand track of the dozer had been removed, resulting in an exposed edge (from inside the cabin) of approximately three metres.

[114] As he walked around the dozer, Mr Withers observed Mr Crawford leave the cabin on the right hand side of the dozer, step down the inbuilt steps onto the track and walk along the dozer’s right hand side track without maintaining three points of contact. Mr Crawford climbed down the front of the track by moving around the fire suppression casing and slid down on his stomach to the floor of the workshop. 47

[115] It is Mr Withers’ evidence that Mr Crawford did not maintain three points of contact as he observed that Mr Crawford did not make any hand contact with any part of the dozer until he reached the fire suppression unit.

[116] Mr Withers contended that he said to Mr Crawford, “Hey Andrew, mate, that’s no good. That’s a working at heights breach, coming down there like that.”

[117] Mr Withers’ evidence is that Mr Crawford responded to the effect that he had not been working at heights because access and egress is not included in BHP’s determination of working at heights, and said to Mr Ward words to the effect, “Mate, fuck off, I’m not going to argue about it, it was access and egress.” 48

[118] Mr Withers and Mr Ward located handrails and ladders in the next working bay, and Mr Ward later asked Mr McGrath to fit a permanent handrail on the left hand side of the dozer, and to bolt temporary handrails to the right hand side of the dozer onto the track.

[119] As to the work performed by Mr Crawford relating to the incident, it was Mr Withers’ understanding that Mr Crawford was able to remove the left hand side track while the dozer was on the ground, but when he removed the right hand side track, he did so after having the dozer jacked off the ground. Mr Withers had not ever seen the work performed this way before. It is his evidence that having the dozer jacked off the ground could cause the track to grab the jack, causing the dozer to crash to the ground. This would be particularly dangerous when the left hand track had been removed.

[120] It is Mr Withers’ evidence that without a dozer being jacked, the ordinary ascending and descending by workers on the tracks does not result in them working at heights. This is because the outside of the cabin is enclosed by a handrail. I understand Mr Withers’ evidence to be that the step from the track to the height of the cabin would not ordinarily constitute working at heights as it would not reach 1.8 metres. It is Mr Withers’ evidence that because the dozer was jacked ‘40cm – 50cm’, when Mr Crawford was walking along the high part of the tracks, he was doing so at heights greater than 1.8 metres. Mr Withers stated that Mr Crawford should have only done this with handrails installed or a jumbo ladder or similar, given the potential for a fall from height. 49

[121] Mr Withers distinguished the actions of operators in the field when they are walking along a dozer. He stated that operators use the built-in step on the blade arm to access the track, as opposed to Mr Crawford having to ‘physically climb’ the front of the track from the workshop floor. Where an operator cannot use the hydraulic ladder on the side of the cabin due to maintenance issues, the operator walks along the track maintaining three points of contact to the built-in handrail and steps, and then the operator continues to maintain three points of contact on the handrails and steps as they ascend through 1.8 metres to the cabin. 50

[122] It is Mr Withers’ evidence that he had never seen another worker access the cabin the way Mr Crawford did with the dozer raised by jacks and the blade arm removed.

[123] Since the incident, it is Mr Withers’ understanding that no new policies have been implemented, however Supervisors have been asked to ensure their workgroups are aware of the height limit for working at heights and the use of handrails to avoid exposure to open edges above 1.8 metres.

[124] Mr Withers denies Mr Crawford’s contention that he must have seen the work being performed by Mr Crawford with the dozer on jacks earlier during the relevant night shift. Mr Withers’ evidence is that the first time he saw the dozer on jacks was when he performed the walk-around at around 5.20am with Mr Ward.

[125] Other than helping to complete the ICAM, Mr Withers did not have any further involvement in the investigation, and he was not involved in BHP’s decision to stand Mr Crawford down.

[126] Mr Withers denies singling Mr Crawford out or discriminating against him. It is his evidence that he has had reason to address Mr Crawford on his use of gloves in the past. Mr Withers’ concern at that time was that if one person did not wear their gloves, another person would think they did not have to wear gloves. 51

[127] With respect to evidence given by Mr Crawford’s colleagues, Mr Withers rejected the evidence of those witnesses that it is an ordinary practice to perform the task with the dozer jacked, resulting in a working at heights issue. Mr Withers had never heard of or been made aware of a dozer being accessed in the way Mr Crawford performed the task, and the rotation of the track while the dozer was on jacks.

[128] It is Mr Withers’ evidence that he discovered the left hand door open on the day of the incident. 52

[129] Mr Withers completed a written statement in relation to the incident on 29 March 2016. It is reproduced below:

Mr Hansen’s evidence

[130] Mr Hansen is employed by BHP at the Maintenance Manager at the Mine. He has held this position since July 2015. He has been employed by BHP since 2004 as firstly a Mining Engineer and later Planning Manager, except for a period of three years where he worked overseas.

[131] Mr Hansen did not have day-to-day contact with Mr Crawford, but he did see him in the Mine workshop on occasion.

[132] Mr Hansen was aware of Mr Crawford having been issued a Step 3 warning for the December 2015 incident. It is his evidence that it is well understood by employees that further disciplinary action within 12 months of issue of a Step 3 warning can be cause for an employee’s employment to be terminated. There is opportunity for unpaid suspension in certain circumstances. 53

[133] At the time of the incident in March 2016, Mr Hansen was on leave. After returning from leave, speaking with Mr Ward and reviewing the investigation reports, Mr Hansen understood that Mr Crawford had put the dozer up on jacks to a height of at least 30 centimetres. Having understood the reports that Mr Crawford had not used three points of contact when descending the tracks of the dozer, it is Mr Hansen’s evidence that Mr Crawford should have put barriers in place along the tracks as the normal access methods of accessing the tracks via the blade arm was not available. Alternatively, Mr Hansen stated that at the very least, Mr Crawford should have completed a JSA, and one not having been performed, it meant that Mr Crawford had to have climbed up the tracks from the workshop floor.

[134] In addition, the left hand door of the cabin was open, exposing Mr Crawford to a three metre drop. It is Mr Hansen’s evidence that if a decision was properly made to rotate the dozer tracks while the dozer was raised on jacks, a ‘very rigorous’ JSA would have needed to have been undertaken and extensive barricading put in place to prevent people from entering the area in the event the dozer became unstable.

[135] It is Mr Hansen’s evidence that the incident was a potential level 4 fatality incident, and an ICAM was commenced. Evidence was gathered, witness statements taken and a ‘5 Whys’ review of the incident was undertaken. The ICAM investigation team involved a number of supervisors together with Mr Ward, Mr Withers and two fitters.

[136] A re-enactment of the incident was undertaken. Mr Crawford was not invited to participate in the re-enactment. Mr Crawford was asked to provide a witness statement. Other relevant employees were not asked to provide a statement as they were not immediately rostered on following the incident.

[137] Mr Hansen delivered toolbox training on working at heights from January to March 2016, including training Mr Crawford on 22 February 2016. It is Mr Hansen’s evidence that there are ample platforms and handrails available in the workshop to be utilised when performing the work Mr Crawford was performing. If relevant safety equipment is not available, the expectation is that work would not be performed until the risk is managed. It is Mr Hansen’s experience that scaffolders are available to erect scaffolding on any shift. 54

[138] It is Mr Hansen’s evidence that tracks are not ordinarily rotated for removal while the dozer is jacked up on stands and the other side is removed. A risk assessment could be performed, and if it is necessary to access the cabin while the dozer is jacked, access platforms and handrails could be used by removing them once the fitter is in the cabin to allow the track to be rotated, and then used again to provide for the fitter’s descent. The platform was a distance of only five metres away. 55 Alternatively, Mr Crawford should have replaced the left hand track, lowered the dozer, accessed the cabin and again raised the dozer.

[139] The relevant SWI does not address the scenario that arose by Mr Crawford removing the tracks on both sides. The SWI only relates to removing a track on one side of the dozer. The SWI does not contemplate accessing the cabin of the dozer while the machine is raised on jacks.

[140] Mr Hansen stated that a BMA Safe was completed, noting that three points of contact would be maintained. Mr Hansen did not consider this to be sufficient as the BMA Safe was completed before the dozer was raised on jacks, and not reconsidered when the scope of the work changed. 56

[141] On 22 March 2016, two hours after the incident occurred, Mr Ward prepared a PDM Event Report. It did not include reference to the left side door having been left open. On 24 March 2016, a second PDM Event Report was completed, noting the left side door having been left open.

[142] The PDM is widely distributed to allow for communication at pre-start meetings. This allows all employees and contractors to share in site safety risks. The incident was further reported on 18 April 2016 as a Significant Event Report, and distributed to BHP leaders across Australia. There was no requirement to report the incident to the Mines Inspectorate pursuant to legislation.

[143] Mr Hansen did not attend the first meeting with Mr Crawford on 13 April 2016. Following the first meeting, Mr Ward conferred with Mr Hansen. Mr Hansen informed Mr Ward that Mr Crawford should show cause as to why his employment should not be terminated.

[144] After HR had assisted with the production of a show cause letter, Mr Hansen met with Mr Crawford to deliver to him the show cause letter. Mr Hansen informed Mr Crawford that he was concerned with respect to Mr Crawford’s decision making because it showed he either could not identify safety risks or had ignored safety risks. Mr Hansen stated that he explained to Mr Crawford the details in the show cause letter and talked to him about the allegations and investigation outcomes. Mr Crawford had been flown from Brisbane to Mackay during the period of suspension in order for Mr Hansen to meet face-to-face to discuss Mr Hansen’s concerns and obtain Mr Crawford’s feedback. 57

[145] Having reviewed Mr Crawford’s show cause response, Mr Hansen concluded that Mr Crawford had not shown any remorse or demonstrated acknowledgement that he had done anything wrong or had made a mistake. It is Mr Hansen’s evidence that should Mr Crawford have demonstrated remorse or understanding of the potential safety risk, he may have had confidence that Mr Crawford could perform his role safely. 58

[146] Mr Hansen also concluded that Mr Crawford had failed to address the ‘specific concerns’ that Mr Hansen had raised with Mr Crawford during the show cause meeting. Mr Hansen determined that Mr Crawford ‘could not or would not’ work under the Mine’s site safety management system effectively.

[147] With respect to Mr Crawford’s consideration of using temporary barricades, but dismissing them because they would create additional work, it is Mr Hansen’s evidence that Mr Crawford could not understand the risks, made no effort to assess any risk, put himself and other employees in harm’s way, and was not able to work safely. 59 Mr Hansen was concerned that Mr Crawford would not have considered using an access platform because it would mean stepping from a stable platform to a different textured surface, yet Mr Crawford was comfortable and considered it the ordinary performance of the task to climb up the muddy, uneven tracks.60

[148] Mr Hansen stated that if Mr Crawford had considered potential risks, then Mr Hansen might have determined that Mr Crawford had capacity to acknowledge risks, and he had just made some poor decision requiring coaching. Having read the show cause response, Mr Hansen concluded that Mr Crawford had the potential to put himself and his colleagues at risk. Taking into consideration Mr Crawford’s work history and his response to serious concerns about safety, Mr Hansen did not have any confidence Mr Crawford would be able to work safely at the Mine, and he could not let him continue to be a fitter in the Mine workshop.

[149] It is Mr Hansen’s evidence that even if the determination under the Just Culture Decision Tree had been cultural, rather than deviant, it would not have altered the disciplinary outcome taking into account Mr Crawford’s previous work history of the December 2015 breach, his written response demonstrating no understanding or remorse and persistence that the task he was performing was acceptable, and that Mr Crawford had acted ‘rudely and was dismissive’ when confronted by Mr Withers and Mr Ward at the time of the incident. 61

[150] Mr Hansen spoke with a number of managers, including the Mine’s General Manager, and after bouncing off his thoughts, he decided to terminate Mr Crawford’s employment. The dismissal was communicated in writing.

[151] Following the incident, it is Mr Hansen’s evidence that the findings of the investigation into the incident have been communicated to crews at the Mine. In addition, there has been an increased focus on barricading. A team have commenced investigation into the fitment of self-closing gates on the deck of the dozer to protect against a fall from heights risk when the track frame is removed. 62

BHP’s submissions

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct – s.387(a)

[152] It is submitted that Mr Crawford was well trained in the identification of working at height risks, the Mine’s ‘Life Saving Rules’, the SWI, the Working at Heights SOP and had recently undertaken toolbox training. Mr Crawford has acknowledged the conduct alleged, but for the left side door of the cabin being open while he was in the cabin.

[153] BHP assert that due to safety being taken very seriously at the Mine, it should have been abundantly clear to Mr Crawford that breach of safety-related policies might result in discipline or termination. Mr Crawford’s failure to identify and recognise the relevant risk, either at the time of the incident or thereafter confirms BHP’s sound reason for the dismissal.

[154] BHP referred to a decision of SDP Richards in asserting that an employer is entitled to take a strong stance in relation to matters of safety, provided the response does not lie outside the description of a reasonable and just response. In the decision cited 63, his Honour said:

[155] Where it is asserted by Mr Crawford that BHP knew of or condoned similar safety breaches, this is denied by BHP. It is submitted that if the Commission did accept that there had been inconsistency to particular circumstances, this would be an issue in determining the fairness of a dismissal, but not affecting the analysis of whether there was a valid reason for the dismissal. 64 Reference was made to a decision of VP Lawler65 where it was held:

[156] It is submitted that Mr Crawford’s act of climbing the dozer tracks with a track entirely removed from one side, while the dozer was jacked up and the blade arm missing has not been identified by any of the witnesses for Mr Crawford as performing the same work. It is submitted that while a number of Mr Crawford’s colleagues gave evidence that they were not surprised or did not think it unusual Mr Crawford walked up the tracks to access the cabin, they largely did not identify that the dozer was raised on jacks at this time.

[157] It is suggested that the highest evidence from Mr Deasy when endorsing the work performed by Mr Crawford should be discounted because he then compared the method of access and egress by Mr Crawford with those of an operator where an operator would be walking up the tracks with both tracks in place and the blade arm in place.

[158] As to whether Mr Crawford did use three points of contact when working at heights, it is submitted by BHP that the SOP makes it clear that maintaining three points of contact is not considered by BHP a suitable control when working at heights. This submission appears at odds with the evidence of Mr Withers where he stated:

Whether the person was notified of that reason – s.387(b); and

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s.387(c)

[159] It is submitted that in the six weeks from the incident until the decision was made to terminate the employment, Mr Crawford was provided all appropriate opportunities to be notified of, or appreciate and understand BHP’s complaint about his conduct. This included:

[160] If there are any procedural deficiencies in BHP’s case, it is submitted that the principal in Byrne v Australian Airlines 67 should be followed, justifying a dismissal that might otherwise be considered harsh, unjust or unreasonable.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s.387(d)

[161] At all formal meetings held with Mr Crawford he had with him a support person. Where Mr Crawford’s preferred support person could not attend, he was nevertheless supported by a suitably qualified representative.

[162] The enterprise agreement covering the site allows for employees to nominate an employee representative, not just a person in a support capacity.

If the dismissal related to unsatisfactory performance by the person – whether that person had been warned about that unsatisfactory performance before the dismissal – s.387(e)

[163] The warning issued to Mr Crawford relevant to the rattle gun incident in December 2015 was entirely appropriate.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s.387(f); and

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 following in effecting the dismissal – s.387(g)

[164] BHP denies it did not bring appropriate resources to bear on the incident investigation. Relevant employees were interviewed, and where it is criticised for not interviewing Mr Hooper, it submitted that his report would not have assisted as he nominates himself driving the forklift at the time of the incident and unable to see all of Mr Crawford’s action.

[165] It is submitted that the ‘5 Whys’ and ICAM investigations results in a conclusion that appropriate resources were allocated to investigate Mr Crawford’s conduct.

Any other matters that FWC considers relevant – s.387(h)

[166] It is submitted that Mr Hansen’s evidence demonstrates that he took into account Mr Crawford’s length of service, his work history and personal circumstances as made out by him in the show cause response.

BHP’s closing submissions

[167] It is submitted that as a result of the incident on 22 March 2016 and Mr Crawford’s work history, BHP could not trust Mr Crawford to work safely at the Mine or to keep himself and his colleagues out of harm’s way.

[168] What is not contested is that Mr Crawford ascended to and descended from the cabin of a dozer that was raised on jacks, had the blade arm assembly removed and had the left hand side track and track assembly removed. He did so by climbing up and later descending the right hand side track to the cabin, climbing around the fire suppression unit and up and down the front of the track. 68

[169] BHP submitted that the following matters must be determined by the Commission:

[170] With respect to evidence giving during the hearing, BHP had the following to say about Mr Crawford’s witnesses based on the following:

[171] It is conceded that Mr Withers had a difficult time in the witness box. He often gave answers of “I can’t answer that”. He was directed on a number of occasions by the Commission to say instead, “I don’t know” if he in fact did not know.

[172] As to Mr Withers’ evidence that he identified the left side door of the dozer open, it is submitted that this is supported by photos taken of the dozer, Mr Johns confirming that a picture of the left hand side of the dozer matched the condition the machine was left in when he finished working on the dozer, and Mr McGrath’s evidence in cross-examination that he and a supervisor discovered the left side door open on the same morning.

[173] Mr Crawford’s show cause response stated that while in the cabin during the incident, after the master link was lined up and the dozer shut down, he closed the left hand door and exited the cabin via the right hand door. Witnesses for Mr Crawford denied that there was any need to open the left hand door while Mr Crawford worked on the right hand side of the dozer, yet Mr Crawford acknowledges that it was open at one point in time while he was in the cabin.

[174] BHP made a number of further submissions relating to a wide range of considerations to be made by the Commission. These include whether a JSA or BMA Safe was completed just prior to the incident, why Mr Crawford did not follow the SWI, did Mr Crawford use three points of contact when descending the dozer, and whether there was a safer way to perform the work noting that barricades were easily located.

[175] With respect to the left hand door being opened, it was submitted that when considering all of the evidence of the witnesses, it clearly points to the door having been open at the time Mr Crawford was in the cabin and thereafter. On Mr Crawford’s own evidence, he had closed the door, putting himself immediately adjacent to a substantial drop (of around three metres). If he had not closed the door, even while in the cabin, he was within two metres of the exposed edge.

[176] As to whether BHP failed to put to Mr Crawford concerns that he had sworn at Mr Ward directly following the incident, yet had dismissed him and included this allegation as part of its consideration, it is submitted that Mr Hansen did not give any weight to this allegation. In cross examination, Mr Hansen stated:

[177] BHP acknowledges that its investigation into the incident could have been done better. It does, however, consider it to have been adequate, with the one concession that measurements should have been taken contemporaneously. Measurements of how high the jack might have been were estimated at a later date.

BHP submissions on remedy

[178] It is submitted that should the Commission find the dismissal to be unfair, it is inappropriate to reinstate Mr Crawford due to a loss in faith of Mr Crawford’s ability to work safely within BHP’s expected safe work practices. It is submitted that it is unlikely further training of Mr Crawford would reduce the concerns of BHP.

[179] Reference was made to a decision in Haigh, 70 where an employer held concerns about an employee’s failure to recognise safety concerns. In that decision, Cloghan C referred to a decision in Perkins71 and found the employer’s loss of confidence on safety issues being paramount to the employee was soundly based and found that reinstatement was inappropriate.

[180] Similarly, in a decision of Dent, 72 Booth C found the dismissal procedurally unfair, but noted that the employee “appeared to lack insight into his own conduct, the impact it may have on others, and his responsibilities as an employee”, that he had a “rather offhand attitude to the matter of safety of himself and others”, and that he offered no evidence that he was willing to take steps to repair trust and confidence in him. Reinstatement was found to be inappropriate.

[181] Submissions have been put by BHP as to the amount of compensation the Commission might order if reinstatement is found to be inappropriate.

Harsh, unjust or unreasonable

[182] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

[183] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

[184] I am under a duty to consider each of these criteria in reaching my conclusion. 73

[185] I will now consider each of the criteria at s.387 of the Act separately.

Valid reason - s.387(a)

[186] There are various issues in contention required to be determined. I shall deal with each separately to assist in the determination as to whether there was a valid reason for the dismissal.

[187] With regard to the work performed on the dozer by Mr Crawford, that being the work done firstly on the left, and then on the right, there is contention as to whether Mr Crawford was tasked or requested to do work on the right hand side of the dozer. Mr Molony, Supervisor provided a statement on 6 April 2016 declaring that he had asked Mr Rose and Mr Johns to do the work on the left hand side. He does not recall asking Mr Crawford to do any work at all on the dozer, and he does not recall signing a JSA.

[188] Mr Crawford’s evidence is that he showed initiative during the shift and asked Mr Molony if he could assist Mr Rose. Mr Crawford’s evidence is that Mr Rose was given approval by Mr Molony to work on the right hand side of the dozer, being similar work that had been done on the left hand side. Mr Crawford claims to have complied with all relevant procedures including the completion of BMA Safe documentation and a JSA.

[189] As to who completed the JSA, Mr Crawford contended Mr Johns prepared it, Mr Crawford signed it and so too did Mr Hooper. 74 Mr Hooper’s evidence is that he wasn’t involved in risk assessment of the task. Mr Johns gave evidence, “We’d all done a personal risk assessment”.

[190] On the evidence before the Commission, I find that a JSA was not completed for the task. The reasons for making this finding are as follows:

[191] Accordingly Mr Crawford and other workers in the area did not give due consideration to the safety risks that manifested upon working on the right hand side of the dozer. It is noted, however, that if BHP had concluded JSA’s were not completed, and work was performed by a number of workers (including Mr Johns as a contractor) on the right hand side, and not just Mr Crawford, disciplinary action did not follow for those workers employed by BHP.

[192] Equally, Mr Crawford was not the only worker who had decided the work on the right hand side should be done by jacking the dozer. Mr Crawford had two spotters available and they have effectively condoned and supported Mr Crawford’s method of accessing the tracks and making his way up the dozer to the cabin and in reverse.

[193] Having examined the SWI, and asking numerous questions of Mr Crawford during the hearing as to his method of accessing the dozer, I am satisfied the method used by him was unsafe. This is so because Mr Crawford had to climb the tracks from the front of the tracks using the grouser plates of the tracks. While this is not at a height above 1.8 metres at the commencement of the journey, it is an inherently unsafe act. It is even more unsafe on the reverse when Mr Crawford had to hold onto the tracks while stepping down the grouser plates.

[194] I repeat, however, that at the commencement of the method used by Mr Crawford, even while the dozer was jacked, he was not at or above 1.8 metres.

[195] Mr Crawford then used three points of contact as he worked his way around the fire suppression unit. Having viewed photographic evidence, there is a substantial loss of width of the track due to the fire suppression unit jutting out, such that Mr Crawford had to lean back while his feet were on the track to allow his body to move past the unit. I am satisfied, taking into account what I later have to say about the height of the jacking of the dozer, at the point where Mr Crawford was awkwardly moving his body past the fire suppression unit, he was not at a height at or above 1.8 metres.

[196] I conclude, however, that he was at an increased risk of falling from the dozer. I am satisfied the height at which this increased risk of falling from the dozer was between 1.55m and 1.65m. The height of 1.55m is the height at the front end of the dozer when he commenced moving around the fire suppression unit, and when he had completed moving around the unit, he was at a height of 1.65m.

[197] Mr Crawford then walked along the track and up to the cabin. He claims he did so with his arms raised and maintaining three points of contact. A few steps after passing the fire suppression unit, Mr Crawford would have passed a point of 1.8 metres, and it would have been necessary for him to maintain three points of contact at this time on the evidence of Mr Withers.

[198] Mr Crawford’s submission is that once he was on the track and past the fire suppression unit, he was at no greater risk than an operator in the field walking along the track. This act of walking along the track is performed daily by operators. BHP’s concern was that the dozer was raised, and Mr Crawford had accessed the track in an inherently unsafe way due to the blade arm and steps not being available for him to step up onto the tracks.

[199] I find that the dozer was raised by 15.5cm and will say more about that later. The point at which Mr Crawford reached a height of 1.8 metres is just short of the step from the track to the dozer and to the right of the ‘6’ in Exhibit R6. It is likely Mr Crawford, in passing from a distance lower than 1.8 metres to a distance of 1.8 metres, would have still been on the track; he would not have been on the dozer itself at this time. Mr Crawford’s evidence is that on both occasions of walking up the track to the cabin and returning, he was maintaining three points of contact. Other witnesses described this as being uncomfortable. It certainly does appear to be quite a stretch, a very uncomfortable stretch even at Mr Crawford’s height to reach the hand rail above.

[200] Despite Mr Crawford’s evidence, I consider it unlikely that he was maintaining three points of contact before he took the step up onto the dozer. Similarly, when he was observed walking down the track, I consider it unlikely he was maintaining three points of contact the entire way. I do not believe he would have considered it necessary to do so, since it is his evidence that operators regularly walk the tracks to access the cabin, and while on the tracks they are not at heights of 1.8 metres.

[201] Despite my finding that it was unlikely Mr Crawford was holding on to the hand rail while on the track and between the fire suppression unit, but for just one step, he was not at a height of 1.8 metres. Accordingly, when he was observed by Mr Withers walking down the track without holding the handrail, but for one step, he was not obliged to do so in accordance with the working at heights policy.

[202] I consider Mr Withers would have been perplexed at Mr Crawford walking down the track without holding on to the handrail because Mr Withers observed the dozer jacked and considered that an unnecessary and unsafe practice. I accept he considered Mr Crawford’s conduct an inherently dangerous act because the blade arm had been removed. He then observed him dangerously moving around the fire suppression unit, and then coming down the front of the tracks. Without examining the height of the dozer to determine if Mr Crawford was indeed at 1.8 metres, Mr Withers considered it a dangerous act and then sought to reprimand Mr Crawford.

[203] On the step from the track to the dozer, I have earlier said that Mr Crawford would have been at a height of 1.8 metres or greater for approximately one step. Having reached the step of the dozer (directly under the ‘D’ in Exhibit R5) it would be much easier to reach with one’s right hand to the handrail above. While standing at the step, there are handrails to the left as well, and walking up the dozer from the step to the cabin would allow an individual to maintain relevant points of contact without overstretching. This must be done daily by operators, and the only difference between Mr Crawford’s actions and an operator’s actions is Mr Crawford would be at an additional 15.5cm height.

[204] On Mr Crawford’s return from the cabin to the workshop floor, I am not concerned with the actions taken by Mr Crawford from the cabin to the dozer step. I am satisfied he would have had within reach all necessary hand rails in the same way an operator does. It is essentially, only from the step down to the track and one additional step when on the track that Mr Crawford would have exposed himself to a height of 1.8 metres or above. I am satisfied he was not maintaining three points of contact at this precise moment in time. It would have been almost impossible for him to do so unless he was facing the dozer and crab-like, using his right leg to step down from the step onto the track while having his arms raised high. He would have been at significant risk of a twisting injury, and I do not accept this is how he took the step from the dozer to the track. Accordingly I find that he was not maintaining three points of contact when at a height of 1.8 metres or more.

[205] However, on BHP’s evidence in exhibit R5, this would be true of operators who are permitted to access the cabin via the track, even when the dozer is not jacked. When firmly on the ground, any person who walks from the track up the step to the dozer moves from a height of less than 1.8 metres to greater than 1.8 metres in that action. Similarly, when walking down from the step to the track, an operator moves from 1.8 metres to less than 1.8 metres, but crab-like, would be expected to remove their right hand from the upper hand rail at some point in the action.

[206] I have had regard to the Working at Heights Policy and Mr Hansen’s evidence regarding it being considered a breach because the normal method of designated access was not available. At the point where this might have mattered, to use the steps provided by the blade arm, the height is not at 1.8 metres or above.

[207] Accordingly, I do not find that Mr Crawford was in breach of the Working at Heights Policy in the exact action of moving from workshop floor to the dozer cabin, and reverse, but for one step on the tracks and one step up from the tracks to the dozer. On the return, Mr Crawford was only in breach of the Working at Heights Policy when he made the step from the dozer to the track, plus one additional step. When considering an operator’s requirements, and how I have found that they too are unlikely to maintain three points of contact while making the step from dozer to track and vice versa, Mr Crawford’s breach of the Policy outside of the norm is the additional step on the track necessary for him to then reach a height lower than 1.8 metres. Of course, I have criticised Mr Crawford above as the dangerous position he put himself in to move around the fire suppression unit and walk down the front of the tracks.

[208] I accept Mr Crawford did not follow the SWI, and have found a JSA was not completed by Mr Crawford and the other workers performing the work.

[209] I do not find that there was a valid reason for the dismissal in the way Mr Crawford climbed the tracks, went around the fire suppression unit, accessed the cabin and the return journey. While there was a limited period where the Working at Heights Policy was breached, and the journey from workshop floor to just past the fire suppression unit was unsafe conduct, I have determined there does not exist a valid reason for the dismissal.

[210] Certainly, in terms of the gravity of the actual breach of policy and non-compliance with the SWI, as opposed to the observation of an unsafe work practice, BHP was correct to conclude Mr Crawford was not performing the role safely. With much debate and views on what is normal practice in the workshop when tasked with these particular repairs, it can be said that not one witness could indicate what exactly was permitted and what was not. Some witnesses said to raise a dozer on jacks was acceptable, and had been done many times before. If the blade arm was missing, there is greater risk, no doubt.

[211] It does not appear that there is an accepted understanding of what work is considered safe and what is not by the workers performing the work.

[212] There also appears to be a lack of supervision on the workshop floor if workers are left for several hours to do work on large vehicles with track frames missing and the dozer jacked without a single supervisor raising concerns.

[213] As to the availability of stairs or work platforms within the workshop, and the knowledge of workers as to when they are required to use them, I have formed the view that there was inconsistent use of safe work platforms and stairs. Some were available and located within a very short distance of the dozer being repaired. If BHP had been overly concerned about the use of work platforms and stairs, it should have done more to educate its workers (employees and contractors) regarding the requirements and expectations of use of them.

[214] It is quite extraordinary that following Mr Crawford’s dismissal, seemingly little was done by BHP to introduce formal instruction to employees on the use of barriers. I would have expected firm instruction and compliance obligations on workers. It appears workers are left to their own judgment as to the appropriate use of barriers, and little is done to discipline employees due to the lax attitude taken by BHP. I expect this may be because there is no evidence to suggest workers are accessing the tracks in the same manner Mr Crawford did, with a dozer on jacks. It is exclaimed by BHP that this method was inherently dangerous and not permitted by the SWI.

[215] Some witnesses for Mr Crawford said in evidence they would be likely to perform the work in the same manner as Mr Crawford. Some witnesses said they would not. I do not find BHP has issued any formal communication to employees that should they be found to have engaged in the conduct Mr Crawford did, they may be dismissed. It is true a communication was made informing workers of the dismissal for the conduct, however if employees are giving evidence to the Commission that they would likely engage in the same conduct, even in light of Mr Crawford’s dismissal, it is clear BHP has not gone to sufficient lengths to make it clear to workers the conduct is not considered acceptable by BHP.

[216] It is apparent that portable stairs were available for use. Mr Crawford did not consider obtaining the assistance of a fellow worker to hold in place the stairs while he accessed the dozer. In questioning from the Commission, he said:

[217] Mr Crawford did not make any attempt to determine if the hydraulic stairs attached to the dozer were operational. He did not make any inquiries. 76

[218] Consistent with my earlier findings that there was very little time and distance where Mr Crawford was in breach of the Working at Heights Policy, there appears to be no strict requirement for employees to positively require the use of the mobile platforms to access the dozer. That is so when the dozer is not raised on jacks, because there would be no greater risk to a Fitter than an operator of accessing the dozer by access on the blade arm. However, in this instance with the blade arm removed and the dozer jacked, it would have indeed been prudent for Mr Crawford to have sought assistance to access the tracks or dozer. It would not have taken a considerable period of time, and there were other workers about, as evidenced by the fact that some became Mr Crawford’s ‘spotters’. Mr Crawford could have asked one of them to help wheel the mobile stairs over to the machine, hold it in place while he accessed the machine and likewise when he sought to descend.

[219] Alternatively, he should not have assumed the hydraulic stairs were not operational.

[220] Accessing the dozer by use of mobile or hydraulic stairs would have alleviated Mr Withers’ concerns with Mr Crawford’s decision to jack the dozer and access the machine via the tracks. He may have still been disciplined about the unorthodox method of jacking the dozer, but he would have accessed it safely via use of the mobile or hydraulic stairs. Despite Mr Crawford’s objection to mobile stairs, they are a far better alternative to walking the tracks after having accessed the via the workshop floor.

[221] Coming to the height of the jacking of the dozer, the evidence before the Commission was inadequate. There was a failure by BHP to properly undertake contemporaneous analysis of the height of the jack. Photographs were taken within a reasonable period of time, but no thought was given to measure the height of the dozer on jacks.

[222] Mr Withers’ evidence is that he considered the dozer had been jacked a height of 40cm – 50cm. He had provided an estimate. Mr Sempf is the only witness to have taken a measure within a reasonable period of time of the incident, that being the night following the morning of the incident. His calculations are at 15.5cm. BHP disputed Mr Sempf’s calculations, arguing that the dozer could have been lowered between the incident and Mr Sempf taking the measurements.

[223] Mr Hansen performed a measurement half-way through the proceedings based on photographs of the incident. His calculations are at 23cm. There will never be certainty as to the exact height of the jacked dozer, largely due to the inadequate inquiries undertaken by BHP. I prefer Mr Sempf’s calculations of 15.5cm over Mr Hansen’s estimation. If the dozer had in fact been lowered from the time of the incident until when Mr Sempf made his calculations, it was incumbent on BHP to provide a witness to have said they were party to that action.

[224] With regard to the allegations put that Mr Crawford exposed himself to a drop of approximately 3 metres, and worked within a 2 metre drop, on the balance of probabilities I find Mr Crawford did leave the left hand door of the cabin open and was working within this distance to a significant drop below with an exposed edge.

[225] The Commission has heard evidence that the dozer cannot operate while the door is open without an alarm sounding. With no person hearing an alarm sound, it was put by Mr Crawford that he did not leave the cabin with the door open. Yet witnesses have confirmed and photographic evidence demonstrates that following management taking control of the scene and ‘locking it down’, the left hand door was open.

[226] On the balance of probabilities, I accept Mr Crawford did not close the left hand door while he was in the cabin. Mr Crawford’s witness statement said, “I am certain that the door on the left hand side was shut when I left the cab.” 77

[227] Mr Crawford’s show cause response stated his last task was: “Once the master link was lined up and the dozer shut down I closed the left hand cab door and exited the cab via the right hand door maintaining 3 point contact as I made my way down the track dismounting at the point where the track goes over the front idler.”

[228] It is clear that the door was open at some point in time while Mr Crawford was in the cabin. With the tracks and track frame below removed, the fall to the ground is approximately 3 metres. It is not clear if Mr Crawford opened the door in the first place, but it is his evidence that he closed the door, coming within 2 metres of a bare drop.

[229] Having found that Mr Crawford did not close the door as claimed by him, the Commission is required to determine if he was at risk of the drop simply by being in the cabin. On the evidence before the Commission, even being seated in the driver’s seat would put a person within 2 metres of the door, and therefore the exposed edge if the door is open.

[230] It is Mr Crawford’s contention that it should not matter if the blade arm, tracks and track frame were removed; if the door was open with the blade arm and tracks in place, it would still be an exposed edge and large fall to the ground. It was put that it would not matter that the tracks and blade arm would break a person’s fall. I do not accept that argument. While a fall from approximately 3 metres (or 2.845 metres without the dozer being jacked) would be a fall from a very significant height, if the fall was broken by hitting the tracks on the way down, it would, in my view, significantly lower the impact from a fall from a bare drop.

[231] A bare drop from a height of 3 metres would be considered by BHP to be a Level 4 event and requiring reporting to the Mines Inspectorate. It is considered a potentially fatal event and it should not be of surprise to any person to imagine a fatal injury occurring with a fall from such height. The door having been found open at such a height was still categorised as a Level 4 event by BHP, however it did not require reporting to the Mines Inspectorate because a person did not fall from the height.

[232] I am satisfied Mr Crawford showed a cavalier approach to workplace safety when he entered the cabin and identified the left hand door was open, exposing him to a significant fall, or alternatively he opened the door at some point while he was in the cabin. Mr Crawford did not have adequate or any regard for his safety. He was in breach of BHP’s Life Saving Rules and he ought to have known this.

[233] Even if the Commission found, which it does not, he had closed the door while he was in the cabin, on his own evidence he has come within two metres of an exposed edge and a drop of approximately three metres.

[234] I find three was a valid reason for the dismissal due to Mr Crawford’s unsafe conduct in exposing himself to a bare drop of approximately three metres while he was within two metres of an exposed edge. On the information before BHP at the time of the dismissal there was an admission by Mr Crawford he had come within two metres of the door when he claimed he had closed the door.

Notification of the valid reason - s.387(b)

[235] Immediately upon Mr Withers observing Mr Crawford walk down the tracks in an unsafe manner, Mr Withers held a conversation with him. The conversation was only in substance relevant to the concern Mr Withers held that Mr Crawford had walked down the track at a height greater than 1.8 metres. Mr Withers did not raise with Mr Crawford his concerns at this time as to the left hand door of the cabin being open.

[236] I accept Mr Crawford and Mr Withers did not have a good working relationship with each other. In observing both witnesses during the proceedings, I consider it likely that each held some contempt for the other. I am satisfied it was mutual.

[237] In my view, this decreased level of civility contributed to the brief conversation held with Mr Crawford as to whether he had been working at heights or not. It is expected a greater level of civility between the two would have evidenced a courteous bringing of the allegation to Mr Crawford’s attention and an appropriate response. Instead, there was a terse allegation put and a terse response given.

[238] It is not suggested, nor is it necessary for workers and management within a workshop located at a Mine to address each other with airs and graces. Mr Withers’ evidence is that Mr Ward was close by. It would have served Mr Withers well if he had waited a short time until Mr Ward was directly in front of Mr Crawford before he put the allegation that he had been working at heights.

[239] Mr Crawford would not have immediately known that he was alleged to have been in breach of relevant policies by virtue of the fact the left hand door of the cabin was open and he was at risk of falling out. On the evidence before the Commission, this was not put to Mr Crawford on the morning of the incident either by Mr Withers or by Mr Ward.

[240] I am satisfied that it later became a matter of investigation in the ICAM, but there is no evidence that this particular issue was discussed with Mr Crawford on 22 March 2016. This is further supported by the fact the first PDM Event Report prepared by Mr Ward on 22 March 2016 omitted any references to the left hand door being open. 78

[241] Mr Crawford’s diary notes of the suspension meeting held with Mr Ward on 22 March 2016 do not make any reference to the allegation the left hand door had been open. Mr Crawford’s brief, one page statement describing the incidents deal only with him leaving the cabin and his way to the workshop floor. There is no reference at all to the left hand door issue.

[242] Accordingly, I am satisfied the issue concerning the left hand door being open was not discussed with Mr Crawford in person until the meeting with Mr Ward on 13 April 2016 with Mr Leggett assisting Mr Crawford.

[243] The purpose of the meeting was to go through BHP’s allegations and the Just Culture Decision Tree. It is Mr Leggett’s evidence Mr Ward had already completed the paperwork prior to the meeting.

[244] After the issue of accessing the dozer had been discussed, Mr Leggett’s notes reflect the following:

[245] Clearly, the fact Mr Ward raised the issue of the left hand door being open did not come as any surprise to Mr Crawford or Mr Leggett. There is no evidence before the Commission that this was the first time they had been informed of this allegation. There appears to be a hole of evidence before the Commission as to when this particular allegation was put to Mr Crawford. It was not put by Mr Ward on 22 March 2016, but it was not a surprise when discussed on 13 April 2016. It is likely employee representatives at the Mine made Mr Crawford aware of this part of the investigation.

[246] Having discussed the issue of access and egress on the dozer together with the left hand door issue, Mr Ward determined Mr Crawford had engaged in ‘intentional and deviant’ conduct. The meeting was adjourned and a decision made by Mr Hansen to issue to Mr Crawford a show cause letter. In between the meeting being adjourned and reconvening, this time with Mr Hansen in attendance, a show cause letter was produced.

[247] The show cause letter was then issued to Mr Crawford by Mr Hansen. Relevant to the allegations put to Mr Crawford, it states:

[248] Mr Hansen’s evidence is that he issued the show cause letter and stated to Mr Crawford that he was concerned with Mr Crawford’s decision making because it showed he either could not identify safety risks or had ignored safety risks. Mr Hansen reiterated the breaches identified in the investigation, and stated he had serious concerns regarding Mr Crawford’s behaviour.

[249] Mr Hansen relied on the earlier warning issued to Mr Crawford four months prior to the March incident. Mr Hansen explained his responsibilities as a Department Manager and stated he had a ‘real concern’ Mr Crawford could not operate under the requirements set for him. 80

[250] The allegations and investigation findings within the show cause letter at [247] are very broad and general. The allegations are limited – ‘you conducted a maintenance activity which involved you working from heights’.

[251] While it is understood Mr Crawford was aware of the allegations as he was reasonably prepared at the meeting, the allegations and findings within the show cause letter, which ultimately formed the reasons for the dismissal are inadequate.

[252] If the show cause letter was supplemented by the PDM Event Report of 23 March 2016, this would assist Mr Crawford in his understanding of the allegations. This particular PDM Event Report stated:

[253] I accept Mr Crawford was provided with the PDM Event Report of 23 March 2016 at this meeting.

[254] While I find the show cause letter and the lack of specific allegations within inadequate to have informed Mr Crawford as to the matters he must address in his show cause response, I am satisfied that the PDM Event Report of 23 March 2016 provided enough detail to allow Mr Crawford the opportunity to respond.

[255] Accordingly, Mr Crawford was notified of the reasons for the dismissal pursuant to s.387(b) particular to BHP’s decision with respect to the safety concerns.

[256] While I do find the two documents together satisfy the Act’s requirements to notify the employee of the valid reason for the dismissal, if not for the PDM Event Report, the show cause letter would not have been sufficient to have satisfied s.387(b) of the Act. This is because of the lack of specificity. For an organisation the size of BHP, it is expected more than 1-2 hours could be spent in drafting a show cause letter to say exactly what the employee needs to address in order to satisfy his or her employer why they should not be dismissed.

[257] It is of importance, however, that it was alleged by Mr Withers that upon addressing with Mr Crawford the working at heights issue, Mr Crawford said he was not working at heights. He was said to have been getting off the machine, and he then reportedly turned his back on Mr Withers and walked to the back of the dozer. Mr Withers’ evidence, noting Mr Ward did not give evidence, is that Mr Ward approached Mr Crawford, and Mr Crawford said to Mr Ward, “Mate, fuck off, I’m not going to argue about it, it was access and egress”, before Mr Crawford turned his back on Mr Ward.

[258] Mr Hansen’s evidence is the following:  81

[259] Disturbingly, none of this was put to Mr Crawford prior to the dismissal. The first he discovered of these allegations was on receipt of the witness statements of Mr Withers and Mr Hansen.

[260] I will deal later with Mr Hansen’s evidence in cross-examination as to whether these issues were a factor in the dismissal. That issue assists with the determination of whether s.387(b) has been met by BHP in full. If the alleged ‘rude and dismissive’ conduct of Mr Crawford was a factor in the decision to dismiss him, there was a failure by BHP to put to him notification of one of the reasons for the dismissal and allow him an opportunity to respond.

Opportunity to respond - s.387(c)

[261] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.82

[262] Having addressed earlier the deficiencies in the show cause letter, supplemented by the PDM Event Report, I am satisfied Mr Crawford was given an opportunity to respond to the allegations put to him.

[263] An adequate amount of time was provided on the issuing of the show cause letter to allow Mr Crawford to seek the assistance of the CFMEU and any other representative or adviser. The tone of the show cause response demonstrates Mr Crawford had assistance with the preparation of it while still being true to what Mr Crawford wanted to convey.

[264] Mr Crawford’s show cause response was largely a defensive response, denying any breaches of policies and largely stating that his conduct in accessing the dozer was no different to that of other workers and operators. There was no acknowledgement by Mr Crawford that the method used by him was, in fact different because of the variables introduced by him; no blade arm and the dozer being jacked at a height. There was a focus by Mr Crawford to dispel concern that he had worked at heights, and he painted his conduct as a very common, unremarkable occurrence.

[265] The working at heights objection was repeated, with Mr Crawford reiterating his understanding that access and egress does not count towards working at heights. There was no recognition by Mr Crawford that he might be wrong about that. He did, however, say that he maintained three points of contact at all times, which the Commission has found on balance not to be true.

[266] Mr Hansen’s evidence is that he reviewed the show cause response and was concerned Mr Crawford had not demonstrated remorse or an acknowledgement that he had done anything wrong or ‘made a mistake’. Mr Hansen would have appreciated some contrition, and without it, Mr Hansen formed the view he could no longer have any confidence in Mr Crawford to do his job safely.

[267] Mr Hansen also was slighted that Mr Crawford had not addressed the ‘specific concerns’ Mr Hansen had ‘personally raised’ during the show cause meeting. Mr Hansen was concerned Mr Crawford’s response identified means of controlling working at heights risk by using temporary barricades, but he dismissed them, in Mr Hansen’s understanding because they created additional work.

[268] Mr Hansen concluded Mr Crawford: 83

[269] Mr Hansen’s strongest evidence is that taking into consideration the earlier written warning that had been issued to Mr Crawford, he could not let Mr Crawford go back into the workshop and continue being a fitter on the floor.

[270] Mr Crawford’s show cause response demonstrated that he disputed BHP’s concerns, but if BHP found termination an option, he wished for other sanctions to be considered. The show cause response stated:

[271] Mr Hansen’s evidence is that he considered Mr Ward’s determination that Mr Crawford’s actions were ‘deviant’. However, even if it had been determined Mr Crawford’s conduct had been ‘cultural’, it is Mr Hansen’s evidence that it would not have resulted in a different disciplinary outcome. That is, there still would have been a decision to dismiss Mr Crawford. Mr Hansen gave his reasons at [258].

[272] As addressed in [259], the last allegation of Mr Crawford acting ‘rudely ‘ and being ‘dismissive’ of Mr Withers and Mr Ward was not ever put by BHP to Mr Crawford. Yet, it may have formed a part of the reasons for the dismissal. In cross-examination of Mr Hansen, the following discussion occurred:

[273] I find Mr Hansen’s evidence with respect to Mr Crawford’s alleged conduct unsatisfactory. I am satisfied Mr Hansen did consider Mr Crawford had been dismissive and rude to Mr Withers and Mr Ward. It did form a part of the decision making.

[274] Even if it was part of the reasoning behind whether Mr Crawford was marked as ‘cultural’ or ‘deviant’, he never knew these allegations were in BHP’s contemplation.

[275] Mr Hansen did take into consideration Mr Crawford’s alleged conduct on 22 March 2016 with respect to how he responded, and it formed part of the reason for the dismissal. Accordingly, with respect to this distinct issue, Mr Crawford was denied the opportunity to learn of the reason for this part of the dismissal or a reason to respond.

[276] With respect to the balance of the response given by Mr Crawford, I am satisfied he was provided with an adequate opportunity to respond, and relevant consideration was given by BHP. It was, somewhat tainted due to my finding in [275].

[277] It is troubling, however, that Mr Crawford was not invited to participate in the immediate investigation of the incident. An ICAM team was established, with a broad cross-section of employees. Mr Crawford was not even invited to participate in the ‘5 why’s’ inquiry. A re-enactment was undertaken, and Mr Crawford was not invited to participate.

[278] I do not consider that it would always be prudent to invite a suspended employee to participate in a re-enactment of an alleged serious safety incident. There may be very good reasons not to, including further risk to health and safety, the potential for sabotage, or the mental well-being of the suspended worker. There does not appear to me to be a satisfactory reason why a walk-through of the situation did not occur with Mr Crawford’s assistance and commentary. Other than perhaps the fact that he was no longer on site, I consider it would have been reasonable for BHP to have Mr Crawford supervised while he explained on the workshop floor his version of events.

[279] It makes no sense to have suspended Mr Crawford immediately following the incident without undertaking some sort of investigation with him. I conclude BHP rushed to suspend him, or if that was appropriate, there was a failure to invite him to return (with a support person) to be interviewed in relation to the incident. This all could have occurred within days of the incident. No relevant inquiry of Mr Crawford was undertaken other than a request to make a statement. The statement is one page long. It should have been apparent to BHP that it would be assisted in the investigation if Mr Crawford was, at a minimum, interviewed within a reasonable period of time of the incident.

[280] While it has been held that the criterion to allow an employee the opportunity to respond should not be burdened with formality, it is curious Mr Crawford was ‘sidelined’ in the immediate days and weeks of the incident. It might have something to do with Mr Ward’s admissions to Mr Crawford and Mr Leggett on 13 April 2016 that he and another had been disciplined in relation to the incident. Mr Leggett’s evidence is Mr Ward made admissions he had received a Step 2 warning in relation to the incident.

[281] As to whether Mr Crawford was afforded an opportunity to respond pursuant to s.387(c), I find he was to some degree, but there were some substantial failings.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[282] Mr Crawford was offered the opportunity to have an employee representative at all times when the incident was being discussed, other than the very instance of Mr Withers and Mr Ward contemporaneously addressing the incident on 22 March 2016.

[283] At no time was Mr Crawford refused the opportunity of a support person.

[284] Mr Crawford has submitted that at times his preferred employee representative was not available for various reasons. I do not find Mr Crawford was ever disadvantaged by any limitation on his chosen support person or employee representative. All those who represented him under the relevant enterprise agreement fulfilled their obligations and Mr Crawford did not suffer any disadvantage. In any event, the reasons for requiring an alternative support person or employee representative for Mr Crawford were not unreasonable. The reasons largely centred on the representative’s availability and fatigue management.

[285] This criterion is a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[286] Mr Crawford’s submission that his earlier written warning should not have been taken into account, and should not be taken into account by the Commission is not accepted.

[287] I am satisfied the decision to issue a final written warning to Mr Crawford was justified and indeed, appropriate. The December 2015 incident was a very serious and deliberate act of misconduct. Despite Mr Crawford’s protestation, a person could very well have been out of their vehicle and hit by his thrown rattle gun. The warning issued to him was not disproportionate to the level of misconduct.

[288] I am mindful Mr Hansen had regard for the warning that had been issued, and this played a significant part in the decision to dismiss Mr Crawford. He was not without a major disciplinary incident, and it was Mr Hansen’s evidence he expected Mr Crawford would have had a higher regard for safety concerns than someone without a final written warning.

[289] In determining whether the dismissal was harsh, unjust or unreasonable, the fact that Mr Crawford had been warned about safety incidents, and was on a final written warning weighs against Mr Crawford.

Impact of the size of the Respondent on procedures followed - s.387(f); and

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[290] BHP is a large employer with a substantial human resources function. It employs human resources management specialists and regularly avails itself of external legal advice and representation.

[291] I have addressed above a number of deficiencies in the investigation and process followed to dismiss Mr Crawford. Mr Hansen’s answers of the Commission during the final parts of his evidence is that the show cause response requested of the employee is the final step. It’s basically a ‘can you please tell me anything else I need to know exercise’ because the company has already done its investigation.

[292] Mr Hansen explained that he felt he had made it clear to Mr Crawford during the show cause meeting all of BHP’s concerns, and he was looking in the show cause response for ‘anything else that I might not be aware of from the investigations and what I had outlined to him.’ 86

[293] This gives a distinct impression that unless Mr Crawford responded with something extraordinary, BHP’s investigation would stand. Mr Crawford’s rejection of BHP’s finding that he had breached procedures was dismissed by BHP. Mr Hansen was looking for some sort of contrition or mea culpa from Mr Crawford.

[294] Mr Hansen’s evidence is that on receipt of the show cause response, and after contemplating it for a reasonable time, which I accept, he determined to dismiss Mr Crawford. He discussed his view with Mr Milfull, GM of the Mine, together with Mr Prytherach, Manager Production Coal, and also Mr Pambid, Manager Production Overburden. There is no evidence before the Commission Mr Hansen discussed the decision with a member of BHP’s HR team.

[295] In light of strongly contested facts at the time the show cause response was received, and the failure to involve Mr Crawford in any of the investigation enquiries undertaken in relation to the incident other than to obtain from him a one page letter, it is of considerable concern Mr Crawford was not interviewed at some point in time. This is especially so when one of the considerations BHP had was in relation to the left side door being open in the cabin. Mr Crawford’s reference to the left side door in his show cause response was contained in one line where he declares he was sure he had shut the door. In such an important matter, even if BHP was satisfied it would ultimately find he had not shut the door, it is a vital step to put further inquiries to Mr Crawford before making that determination.

[296] It is not the case that simply because an employee denies an accusation there should be rounds of interviews or inquiries. However in this circumstance, I consider it was deficient of BHP to make further inquiries of Mr Crawford given his strong denials of important matters when he was effectively frozen out of the inquiry or investigation into the incident.

[297] In determining whether the dismissal was harsh, unjust or unreasonable, the deficiencies identified above and throughout the decision, when having regard to the considerable size of BHP weigh against BHP.

Other relevant matters - s.387(h)

[298] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Mr Crawford was harsh, unjust or unreasonable:

[299] Mr Crawford submitted the Commission should have regard for his ‘lack of relevant disciplinary record’, arguing the December 2015 was harsh and should not have been taken into consideration. Further he has an ‘exemplary work history.’ These two submissions cannot be properly made. One does not have a final written warning for an act of misconduct and an exemplary work history. Mr Crawford’s work history was unsatisfactory because of the very serious incident in December 2015. Other than that incident, he was a satisfactory employee.

[300] It was submitted regard should be had for Mr Crawford’s length of service of 2 years, 4 months. Mr Crawford’s period of employment is not a long period of time, nor is it an insignificant period of time.

[301] Mr Crawford implores the Commission to find a disparity between how he has been treated and the others involved in the incident. On the hearsay evidence of Mr Leggett, Mr Ward made admissions he had been issued with a Level 2 warning, and another supervisor with a warning. No other maintenance employee has been disciplined. It would be expected if employees had been working without having completed a JSA, having BHP and this Commission so find, consequences might arise.

[302] In my view, it is evident BHP dismissed Mr Crawford and it has then done very little to warn employees or discipline others on the front line involved in the incident. In the same way BHP has done little about taking a firm position on the use of barriers, the evidence of employee witnesses is that some of them would perform work on the dozer without the use of barriers. Indeed, the evidence is that in months following the incident, a contract worker was injured walking up the muddy track of the dozer without barriers. He fell awkwardly and broke his arm or wrist.

[303] I do not accept there has been an inconsistent and discriminatory application of BHP’s policies. Mr Crawford’s conduct in climbing the tracks from the workshop floor, moving his body around the fire suppression unit and accessing the dozer while it was raised on jacks was not at all a safe practice. I am satisfied if this was ever witnessed again by supervisory staff it would be attended to.

[304] I also do not accept this kind of conduct has been condoned previously by BHP management. I do not accept any witnesses’ evidence that they too had done what Mr Crawford did, on jacks, without barriers, with the blade arm missing. If they had, there is no evidence before the Commission this was observed by supervisors.

[305] There is no evidence before the Commission of any other employee or employees having exposed themselves to working in the cabin with the door open and a bare drop (without the track in place) to the ground of approximately three metres.

[306] I do not accept there was some orchestrated campaign by BHP to single out Mr Crawford or pick on him. I have earlier said, however, that the relationship between Mr Crawford and Mr Withers did not appear to be a cordial one. Despite this, Mr Withers did not have any influence on Mr Hansen and his decision to dismiss Mr Crawford. Mr Withers’ involvement in the matter ended after fulfilling his role on the ICAM team. He was not involved in the show cause meeting or preparing the letter. He was not consulted when the show cause response was received.

[307] I do not find Mr Withers singled Mr Crawford out to embellish safety concerns he held. The concerns Mr Withers raised on 22 March 2016 were genuinely held, and it was appropriate to conduct a further investigation. If fellow workers had seen Mr Crawford move his body around the fire suppression unit as he did without barriers in place, it would be hoped they too would have addressed this serious safety risk. Having been informed a contract worker fell from the tracks months after this incident and sustained an injury, it is incumbent upon all workers to look out for each other and call-out safety risks.

[308] Mr Crawford submitted BHP failed to take into consideration his personal circumstances including his financial situation and family responsibilities. I am satisfied Mr Hansen took into consideration Mr Crawford’s personal circumstances detailed in the show cause response.

[309] The personal circumstances raised by Mr Crawford were not particularly unusual in that they involved a family law matter. I accept the loss of employment would have had a detrimental impact on Mr Crawford, given his relatively high income. That being said, Mr Crawford had enjoyed a relatively high income for a number of years. The effect on a dismissed employee earning significantly less than Mr Crawford would have been more severe.

[310] It is put by Mr Crawford that even if a valid reason is accepted by the Commission, the dismissal was ‘so grossly out of proportion….as to be absurd.’ The decision by BHP to dismiss was not absurd. It was largely made on a genuinely held belief that Mr Crawford was an unsafe employee, and one who would not accept his failures could result in injury to himself or others. The view was formed that he would not be able to turn his disregard for safety around.

Conclusion

[311] While a valid reason for the dismissal has been found on the evidence before the Commission to do with the left side door of the cabin, it was not the predominant reason for the dismissal. It was a secondary discovery, yet a very serious safety breach by Mr Crawford.

[312] The significant focus, however, was on the act of Mr Crawford’s conduct on the dozer and it having been raised on jacks. I am satisfied Mr Crawford’s conduct on the dozer was unsafe, and his participation in the investigation in relation to this issue was defensive, inflexible and without admission that he should not have acted in this unsafe manner. There was little if no contrition demonstrated by Mr Crawford.

[313] Having found that the access and egress on the dozer by Mr Crawford does not constitute a valid reason for the dismissal, despite the various breaches of company policy, Mr Crawford’s conduct with respect to this issue should largely be a matter for consideration of remedy if the dismissal is found to be harsh, unjust or unreasonable.

[314] Had the incident been only in relation to the access and egress on the dozer, I conclude BHP could have determined Mr Crawford deserved a further warning in relation to this conduct, and retraining due to his incorrect assumption it was an acceptable method of work. If BHP had held a firm view that it was not acceptable, if in future they ever saw him performing the work in this manner again, dismissal would certainly be justified.

[315] There was simply too much vagueness as to what are acceptable methods of accessing the dozer, use of barriers and working at height risks to find the dismissal to be fair on this point.

[316] When regard is had to my finding of a valid reason for the dismissal due to Mr Crawford leaving the left side door open, in all the circumstances, I consider it to be a harsh outcome. Mr Crawford and Mr Leggett submitted during the show cause meeting with Mr Ward that if the business decided there had been breaches, other penalties could be applied. If BHP satisfied itself Mr Crawford had left the door open, it would be unlikely it would be found that this would be a deviant or intentional act.

[317] An alternative to dismissal was offered, with BHP invited to impose a sanction of up to 21 days of unpaid suspension pursuant to the enterprise agreement.

[318] If BHP had been inclusive of Mr Crawford in its investigation; if it had not sidelined him and had instead come to its findings with his involvement, there would be a greater inclination to find the dismissal was not harsh, unjust or unreasonable. It makes no sense at all to freeze out an employee in such an important investigation. It is practical and prudent for BHP to carry out its investigation in the immediate moments after the incident. In obtaining just a one-page witness statement from Mr Crawford prior to determining the investigation findings and issuing to him a show cause letter is unreasonable.

[319] I am mindful BHP had appropriate and just regard to Mr Crawford’s earlier written warning. In my view, this submission carries significant weight in favour of BHP’s submission that the dismissal was not harsh, unjust or unreasonable.

[320] Conversely a relevant factor in favour of finding the dismissal harsh, unjust and unreasonable is the knowledge the employer held that it considered Mr Crawford had been dismissive and rude of Mr Withers and Mr Wade, when this was not put to Mr Crawford at any time. It was denied by him in these proceedings. I am satisfied this allegation did assist Mr Hansen with forming his decision to dismiss. It was not just a consideration as to the nature of Mr Crawford’s misconduct, whether it was culture or deviant. Mr Hansen used this ‘finding’ to convince himself Mr Crawford’s disregard for safety could not be remedied.

[321] In light of the very serious safety incidents and misconduct of Mr Crawford, the task before the Commission in making a determination has been an extremely difficult one. The balance between a finding of unfair and fair has been made by the slimmest of margins. I am satisfied, having considered and weighed the evidence and submissions of the parties that the balance falls ever so slightly to a finding that Mr Crawford’s dismissal was harsh, unjust and unreasonable.

[322] I find the dismissal was unreasonable, largely due to the lack of procedural fairness afforded to Mr Crawford, despite finding the existence of a valid reason. I find the dismissal was unjust because of my finding that Mr Hansen’s decision to terminate Mr Crawford was affected by the allegations made against him, and never put to him, that he was rude and dismissive toward Mr Ward.

Remedy

[323] Section 390 of the Act reads as follows:

[324] Mr Crawford is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.

[325] Mr Crawford seeks reinstatement. BHP submissions oppose Mr Crawford’s reinstatement in the event that his application succeeds.

[326] While Mr Crawford acknowledges his actions in the December 2015 rattle gun incident warranted disciplinary action, it was entirely inappropriate to suggest that his deliberate act of throwing a rattle gun from a height of 18 metres should be downplayed. He didn’t contest the final written warning issued to him at the time, and it was not appropriate to minimise its significance in these proceedings.

[327] While I have had regard to the submissions that Mr Crawford was a valued member of the volunteer mines and rescue crew in the area, and well regarded by fellow employees, it is necessary for the Commission to have regard to Mr Crawford’s evidence as a whole. His evidence before the Commission was that he closed the left side door, when there could be no other reasonable explanation for it being left open.

[328] I accept BHP’s submission that the findings of Booth C in the decision of Dent 87 are pertinent to the facts of the present case. I have had regard to the evidence of Mr Crawford at [40]. His evidence is that he was not going to grovel in his show cause response. There was no acceptance by him that he had done anything wrong. I find that Mr Crawford has a cavalier attitude towards safety whilst performing his duties. Mr Crawford appears to lack insight into his own conduct as he did not heed the warning reasonably given to him for the rattle gun incident and within a short period of time was involved in a further safety breach. This can only be seen to demonstrate his careless approach to safety.

[329] The safety concerns are compounded by the issue of Mr Crawford’s credibility which arise from the hearing. I have found, on the balance of probabilities, Mr Crawford did not complete a JSA for the work he performed on RD446 despite his continued assertion that he did. In a similar vein, I have found that Mr Crawford did leave the left hand side door of the dozer open despite his evidence that he had closed it. Further, I did not accept Mr Crawford’s evidence that he maintained three points of contact when walking the tracks of the dozer.

[330] I consider Mr Crawford does have an unsatisfactory regard for workplace risk and a poor attitude towards safety. I am satisfied that BHP has lost the necessary trust and confidence in Mr Crawford to perform his duties safely on a continuous basis and not for just a short burst of time following a serious safety incident. I have had regard for Mr Crawford’s conduct (including the safety and welfare of other employees), and I am satisfied that reinstatement is inappropriate.

[331] I now turn to consideration of compensation.

Compensation

[332] Section 392 of the Act provides:

Authorities

[333] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket88. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey89; Jetstar Airways Pty Ltd v Neeteson-Lemkes90 and McCulloch v Calvary Health Care91 (McCulloch).

[334] I have had regard to the above authorities.

The effect of the order on the viability of BHP

[335] An award of compensation in this matter would not affect the viability of BHP.

The length of Mr Crawford’s service

[336] Mr Crawford had been employed for a period of two years, four months. This is not an insignificant period of time, nor is it a substantial period of time.

[337] I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342. His Honour determined at [140]:

The remuneration that Mr Crawford would have received, or would have been likely to receive, if he had not been dismissed

[338] I am of the view that Mr Crawford’s employment would not have continued for an extended period of time. He had received a final warning only four months earlier for a serious safety incident, and it was his evidence before the Commission it should not have warranted the issuing of a final written warning. As I have earlier indicated that submission is rejected.

[339] In my view, if Mr Crawford had been issued with a further final warning in relation to the incident the subject of the dismissal, in all likelihood and on the balance of probabilities, he would be involved in a further safety incident in the not-too-distant future. His evidence before the Commission was that there was nothing wrong with his conduct, and walking down grouser plates on the dozer tracks is perfectly acceptable, even when raised on jacks.

[340] With the disturbing lack of contrition demonstrated to the Commission, I am satisfied Mr Crawford would have found himself the centre of further inquiries or investigations. If he had two valid final written warnings having been issued to him in recent months, I am satisfied his employment would not have continued for a period longer than four months.

The efforts of Mr Crawford (if any) to mitigate the loss suffered because of the dismissal

[341] Mr Crawford did not secure employment until 9 August 2016. I am satisfied he made suitable attempts to mitigate his loss during this period of time, taking into consideration the relatively high income he was seeking to obtain. On his evidence, he has taken a role on a lesser rate of pay in order to mitigate some of his loss due to the dismissal.

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

[342] Mr Crawford’s evidence was that he was earning $144,365 per annum, and amount of $2,795.49 per week while employed with BHP. In the role commenced by him on 9 August 2016 he is earning $1,543.75 per week.

The amount of any income reasonably likely to be so earned by Mr Crawford during the period between the making of the order for compensation and the actual compensation

[343] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[344] The parties did not make submissions in relation to this criterion. Mr Crawford was paid two weeks’ wages in lieu of notice on termination.

Misconduct reduces amount

[345] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[346] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination.92  The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.93

[347] I have found earlier that there existed a valid reason for the dismissal, and where there was not a valid reason, Mr Crawford’s misconduct was a serious safety risk.

[348] Having regard to the material before me, I consider it appropriate to make a reduction of 30% to the amount of compensation I would otherwise order on account of Mr Crawford’s misconduct.

Shock, distress etc. disregarded

[349] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Crawford by the manner of the dismissal.

Compensation Cap

[350] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[351] The high income threshold immediately prior to the dismissal was $136,700. Mr Crawford’s income was in excess of this. Despite this, the amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[352] BHP is a large employer, and therefore it is not necessary for BHP to pay the amount of compensation by way of instalments. Consequently, BHP is to pay the amount of compensation within 14 days of the date of this decision.

Order of compensation

[353] I have determined that BHP is to pay to Mr Crawford the following amount of compensation less tax as required by law:

[354] In addition, BHP is to pay superannuation on the amount of $25,448.98 at the rate of 9.5% into Mr Crawford’s superannuation fund.

[355] An Order [PR590432] to that effect will be issued with this decision.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

 1   Witness statement of Shaun Hansen, annexure SH-3.

 2   Witness statement of Andrew Crawford at [37].

 3   PN3104 – PN3109.

 4   Ibid at Annexure AC06.

 5   Ibid at [43].

 6   Ibid at [60].

 7   Ibid at Annexure AC10.

 8   Ibid at [69].

 9   Witness Statement of Andrew Crawford in reply at [47].

 10   Witness Statement of Andrew Crawford at [97].

 11   Witness Statement of Andrew Crawford in reply at [3].

 12   Witness Statement of Richard Sempf at [15].

 13   Ibid at [17].

 14   Witness Statement of Richard Sempf in reply at [14].

 15   PN814-PN815.

 16   PN823-PN824.

 17   Witness Statement of Max Hooper at [4].

 18   Ibid at [7].

 19   Witness Statement of Kevin Deasy at [27].

 20   Ibid at [31].

 21   Witness Statement of Gregg Deverell at [13].

 22   Ibid at [40].

 23   Witness Statement of Corrie Rose at [6].

 24   Ibid at [9].

 25   Ibid at [25].

 26   Witness Statement of Scott Leggett at [14].

 27   Ibid at [23].

 28   Witness Statement of Michael McGrath at [15].

 29   Ibid at [33].

 30   Applicant’s outline of submissions dated 12 August 2016 at [4h].

 31   Ibid at [4o].

 32   Ibid at [4r].

 33   King v Freshmore (Vic) Pty Ltd Print S4213 at [23].

 34   Australian Meat Holdings Pty Ltd v McLauchlan 91998) 84 IR 1 at 14

 35   Applicant’s outline of submissions dated 12 August 2016 at [41].

 36   Ibid at [44].

 37   Makin v Glaxosmith Kline Australia Pty Ltd [2010] FWA 2211 at [129].

 38   Applicant’s outline of submissions dated 12 August 2016 at [50].

 39   Ibid at [58].

 40   Applicant’s final submissions at [17].

 41   Ibid at [19b].

 42   Ibid at [19d].

 43   Ibid at [19i].

 44   Ibid at [19e].

 45   Ibid at [19l].

 46   Ibid at [27].

 47   Witness statement of Paul Withers at [14b].

 48   Ibid at [18].

 49   Ibid at [26].

 50   Ibid at [27].

 51   Ibid at [37].

 52   Ibid at [43].

 53   Witness statement of Shaun Hensen at [9].

 54   Ibid at [58].

 55   Ibid at [78d].

 56   Ibid at [63].

 57   Ibid at [76].

 58   Ibid at [30].

 59   Ibid at [32].

 60   Ibid at [65].

 61   Ibid at [37].

 62   Ibid at [72].

 63   Hanley v Stramit Corporation Pty Limited [2016] FWC 1150

 64   Respondent’s outline of submissions at [4.26].

 65   Sexton v Pacific National (ACT) Pty Ltd PR931440 at [36].

 66   Witness statement of Paul Withers at [15].

 67   Byrne v Australian Airlines (1995) 185 CLR 410

 68   BHP’s closing submissions at [3.1].

 69   PN4036.

 70   Haigh v Bradken Resources Pty Ltd T/A Bradken [2013] FWC 7493.

 71   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.

 72   Dent v Halliburton Australia Pty Ltd [2014] FWC 5692.

 73   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 74   PN131.

 75   PN191-PN192.

 76   PN215.

 77   Witness statement of Andrew Crawford at [45].

 78   Witness statement of Shaun Hansen at [18].

 79   Ibid at annexure SH-13.

 80   Ibid at [27].

 81   Ibid at [37].

82 RMIT v Asher (2010) 194 IR 1, 14-15

 83   Witness statement of Shaun Hansen at [32].

 84   Ibid, SH-14.

 85   PN4019 – PN4036.

 86   PN4218.

 87   Dent v Halliburton Australia Pty Ltd [2014] FWC 5692 at [53].

88 (1998) 88 IR 21.

89 [2013] FWCFB 431.

90 [2014] FWCFB 8683.

91 [2015] FWCFB 2267.

92 Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762 [83].

93 Ibid.

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