[2010] FWA 640

[2010] FWA 640

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FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Mr Peter Graham Butson
v
BHP Billiton Iron Ore Pty Ltd
(U2009/3139)

DEPUTY PRESIDENT MCCARTHY

PERTH, 1 FEBRUARY 2010

Termination of employment.

Background

[1] Mr Peter Butson (“the Applicant”) had been employed as a team leader by BHP Billiton Iron Ore Pty Ltd (“the Respondent”) at the Respondent’s Locomotive Service Shop (“LSS”) at Port Hedland. The Applicant's employment was terminated by the Respondent on 23 March 2009. The Applicant asserts that his employment was terminated harshly, unjustly or unreasonably (“unfairly”).

[2] The work conducted at LSS involves the servicing and repairing of locomotives. There is a platform on each side of the workshop building and another platform running through the centre. There are therefore four gantries from which access is made to the locomotives. The gantries are at the height of and level with the level of the walkways on the locomotives. There are three or four different types of locomotives which have different access points. The locomotives are driven to various set positions allowing access at the appropriate point. There is a gap between the gantries and the locomotives which varies according to the type of locomotive but can be 40 to 60 centimetres wide, but in any event wide enough for a person to fall through. The access points to the locomotives and walkways on them is about three or four metres from the ground. Therefore if a person was to fall through the gap the fall would be three to four metres and most likely result in serious injury.

[3] The Respondent prohibits anyone walking across the gap without there being a platform in place covering it. There are two means of covering the gap. Some locomotives have step well covers that drop down as platforms and others do not, or if they do the platform from the locomotive may be broken. For those that do not have an operative drop down platform portable platforms are used and manoeuvred into place from the gantry.

[4] Only two portable platforms were available at the time in question and usually they were located some distance away from the place they were needed. The size of the portable platforms also required two men to position them. An alternative to accessing the locomotive when a platform is not in place is to walk down the steps of the gantry and up the steps of the gantry on the other side of the locomotive in question accessing the locomotive from a point where the gap is covered. There is no doubt that considerable effort is required to locate and move the platform into place and it is inconvenient to go from one side of a locomotive to the other by going to the gantry on the other side of the locomotive.

[5] The Respondent says that the Applicant did not comply with his obligations as a team leader by ensuring that employees and employees of contractors complied with the safety rules operating at the LSS. The Respondent says further that during the investigation they undertook regarding the Applicant’s conduct, the Applicant displayed insufficient understanding or concern about the rule regarding stepping over the gap and his obligations in respect to it. This, they claim, was not tolerable especially as there had been a significant effort undertaken by the Respondent in the months prior to the termination to ensure that employees were aware of the importance of safety issues and compliance with safety rules and standards.

[6] The Applicant claims that he was aware of and policed the safety rule. Notwithstanding the existence and policing of the rule he asserts that the rule was regularly ignored across the workshop and in all shifts, including those supervised by other team leaders and supervisors. He disputes that he displayed a lack of knowledge or understanding of the rule or of his responsibilities with respect to its policing.

[7] I issued a number of summonses at the request of the Applicant’s representative, Mr Schapper, requiring the attendance of various persons to give evidence. Two of those persons did not comply with those summonses and did not attend. The intended purpose of calling those witnesses was to adduce evidence regarding the state of knowledge amongst employees at LSS of how to deal with the gap between the locomotives and the gantry when accessing locomotives. Obviously what were or were not common practices would also have been canvassed.

[8] The lack of attendance of those witnesses did not appear to me to have been of any detriment to the Applicant’s case. I have however had regard in my deliberations to the difficulty the Applicant encountered in procuring evidence and have taken that into account in weighing up the evidence in making any findings.

Applicant’s Contentions

[9] The contentions of the Applicant are that:

1. It was a common practice for people to step over the gap;

2. The practice was common to all four shifts that operated at the LSS;

3. As it was a common practice it was unfair to single out the Applicant (and his immediate supervisor, Mr Beale) and terminate the Applicant’s employment service for not addressing the issue;

4. It was also unfair to terminate the Applicant’s employment for not responding during the inquiry undertaken by the Respondent to the effect that he intended to address the issue; and

5. The inquiry undertaken by the Respondent was inadequate in that it did not properly investigate whether stepping over the gap was a common occurrence on shifts for which other team leaders and supervisors were responsible.

[10] In essence the Applicant claims that breaching the rule was a common practice that was not applied by other team leaders or shift supervisors. The Applicant asserts that if he establishes that as a fact then it must follow that his employment was terminated unfairly.

[11] The Applicant says further that the investigation leading up to the termination and the termination itself was based on a view that stepping over the gap was not a common practice and that the Applicant neither knew of nor applied the rule. Therefore if it is established that the Applicant both knew of and did apply the rule that the investigation should have concluded that from what the Applicant said during the investigation and consequently the termination was unfair. Included in that contention was that it was common practice to step across the gap, notwithstanding the Applicant and others efforts by reminding offenders when they were observed not complying with the rule.

Respondent’s Contentions

[12] The Respondent’s assertions are essentially those contained in the letter of termination for the Applicant and repeated in the statement of defence.

[13] The respondent says that:

1. The Applicant's employment was terminated as a result of a disciplinary investigation that was conducted from 17 March 2009 to 20 March 2009 (Investigation) in relation to the incident which occurred in the Respondent's Locomotive Service Shop (LSS), at Port Hedland on Thursday, 12 March 2009 (Incident);

2. The Applicant and Mr Ian Beale (a Shift Supervisor to whom the Applicant reported) were responsible for the safety of Mr Handzic, and other employees and contractors in the LSS;

3. The Applicant and Mr Beale had a duty of care to the employees and contractors they were supervising to take steps to ensure their safety, regardless of how many times the hazard (identified in paragraph 4 of the Statement) arose (the Gap);

4. The Applicant did not demonstrate that he understood or implemented the procedures in place to reduce the risk posed by the Gap, both when asked by Mr Murray Smith and Mrs Vanessa Macrin during the Incident, and subsequently during the Investigation;

5. The Applicant had known, during his employment as Team Leader and Acting Supervisor, of the hazard posed by the Gap, but during the Incident and the Investigation he did not display evidence that he had taken steps as a Team Leader to address the hazard posed by the Gap;

6. At the time of the Incident and during the Investigation, the Applicant displayed minimal awareness of a significant interim control measure (the temporary platforms);

7. The Applicant knew of an incident involving a serious injury to another cleaner who fell through the Gap, but failed to address the hazard;

8. During the Incident, the Applicant failed to ensure Mr Handzic was safe, failed to advise him of the proper procedure, and failed (or failed to ensure) that a readily available interim measure (the temporary platform) was put in place;

9. The Applicant left the hazard unaddressed for the remainder of his shift on 12 March 2009;

10. The Applicant condoned a practice of stepping across the Gap without any other controls in place provided there was three-point contact;

11. The Applicant admitted that he had become complacent and conceded he had not acted appropriately; and

12. During the Incident and the Investigation, the Applicant failed to accept responsibility for ensuring Mr Handzic's safety.

[14] The Respondent emphasised that the Applicant’s employment was terminated because of his attitude to safety and his responsibilities as a team leader with respect to safety. They say even if it were established that it was a common practice for people to step over the gap that the Applicant should have been more actively policing and applying the rule and taking whatever action was necessary to ensure the rule was complied with.

Evidence

[15] Evidence was given by the Applicant, Mr Ian Beale and Mr Cole. Mr Beale had been the Applicant’s supervisor. His employment apparently was also terminated at the same time for reasons similar to the termination of the Applicant’s employment. Mr Cole had been an employee of a contractor involved in the cleaning of the locomotives.

[16] Evidence was given on behalf of the respondent by:

1. Sharyn Larsen, Superintendent, Human Resources (Port)

2. Murray Lynch, Manager, Railroad Workshops

3. Vanessa Macrin, Superintendent, Human Resources (Rail)

4. Murray Smith, Vice-President (Human Resources) Iron Ore

5. Nicholas Tegousis, Locomotive Service Shop Superintendent; and

6. John Udd, General Manager, BHP Billiton Iron Ore, Railroad Operations.

[17] It appears to me that there are three central issues upon which this matter turns. Firstly, was it common practice for people to step across the gap? Secondly, what was the attitude of the Applicant to applying and policing the safety rule regarding stepping across the gap and to his responsibilities as a supervisor? Thirdly, was the Applicant dealt with unfairly when compared to others with similar responsibilities?

Was it a common practice for people to step across the gap?

[18] The evidence of the applicant, Mr Cole and Mr Beale and of the Respondent’s witness, Mr Tegousis, established that it was a relatively common practice for people to step across the gap.

[19] That people did so is unsurprising as at the time of the Applicant’s dismissal there were only two portable platforms available, one of which was located in a storeroom at the end of the first gantry, each gantry being about 80 or 90 meters long. There were extra portable platforms on order as well as fabrication work being undertaken to rectify faulty step down platforms on the locomotives. However neither of these initiatives had been completed in March 2009 notwithstanding the procedures for these actions had been initiated some months beforehand.

[20] In my view a contributing factor to the circumstances that arose leading up to the termination of the Applicant’s employment was a frustration by people in the LSS at the time it was taking for the extra platforms to be available and for the drop down platforms on the locomotives to be installed or repaired.

[21] It also appears to me that the Applicant and his supervisor were not the only persons with some managerial responsibilities that were aware of what was a relatively regular if not common occurrence of people stepping across the gap.

What was the attitude of the Applicant to addressing to safety and his responsibilities as a supervisor?

[22] The evidence of Ms Larsen, Mr Lynch, Mr Smith and Mr Udd all addressed the response of the Applicant once this issue had been brought to his attention and during the investigation that took place regarding concerns about his awareness of and preparedness to deal with the practice of stepping across the gap.

[23] It seems to me that during the various discourses between the Respondent and the Applicant, the Respondent was concerned that the Applicant may not be prepared to embrace and actively participate in development of a culture and attitude in LSS that was intolerant of any conduct or behaviours involving the taking of risks that had safety implications.

[24] The Respondent appears to me to have genuinely endeavoured to provide the Applicant with sufficient opportunity to provide information and responses to questions that could provide them with confidence that his approach was consistent with what they were trying to achieve.

[25] It seems to me that the Applicant could have treated the discussions and the enquiry in a manner more conducive to providing the Respondent with a confidence they are entitled to seek and expect about an employee’s approach to safety. Rather the Applicant displayed an antagonism to him being questioned about his approach to the practice of stepping over the gap in particular.

[26] It is unsurprising that the Respondent formed the view that the Applicant had an attitude and approach to safety that was unacceptable to them. The Respondent therefore quite reasonably, in my view, came to a conclusion that they did not have the trust and confidence in the Applicant that he would fulfil his responsibilities. For example, the Applicant refused to recognise that there had been, or was, any fault on his part. He had difficulty accepting that there was any responsibility on his part to take any initiative such as informing his supervisor or other management of the practice unless he actually witnessed the occurrence.

[27] In my view it was open to the Respondent to conclude that they no longer had trust and confidence in the Applicant to apply his responsibilities. Indeed the Applicant’s views of his responsibilities and the views of the Respondent did not appear to be compatible. The Respondent, quite reasonably, expected and required the Applicant to actively enforce safety rules and promote safe practices. The Applicant appeared to regard his responsibilities in a much more limited way and did not appear to be able to comprehend that the employer had a right to expect that he would actively pursue the elimination of unsafe practice regardless of how he became aware of those practices and regardless of whether those unsafe practices were regular or isolated incidents or whether they also occurred on other shifts.

[28] I consider that the Respondent had reasonable grounds to form the view that they did and that they gave the Applicant sufficient opportunity to outline his views and express his opinions before they finalised their views about his attitude to safety, his responsibilities and his supervisory obligations. I find that the conduct of the Applicant, that the Respondent claims occurred, did in fact occur.

Was the Applicant dealt with unfairly when compared to others with similar responsibilities?

[29] One of the Applicant’s main contentions was that as the practice of stepping across the gap was a common practice and other persons with supervisory responsibilities were not dismissed (apart from Mr Beale), that he was treated differentially and disproportionately.

[30] However, though I have found that the practice was a relatively common one spreading over other shifts, it does not necessarily follow that the Applicant was dealt with differentially or unfairly. The Respondent made it clear that a significant reason for the termination of employment of the Applicant was his attitude and approach to safety and his recognition of and approach to his responsibilities as a team leader regarding safety.

[31] The evidence of Mr Udd, in particular, also made clear the results of any consideration for any other employee of a similar nature would turn on the nature of the answers given and attitude displayed by others and could also result in termination(s) of employment.

[32] Other supervisors had not been investigated over the practice and whilst there may be some criticism of the Respondent as to why that did not occur, the facts here are that Mr Smith and Ms Larsen had the issue of people stepping over the gap drawn to their attention and they properly proceeded to address it. In addressing the issue they became concerned about the apparent ambivalence of the Applicant about the practice. As they had become concerned about the Applicant’s approach to the practice they properly proceeded to investigate it. There is no reason to find that the Respondent would have dealt with the matter in any different way had the individual concerned been someone other than the Applicant.

[33] Further, I do not consider that at the time it was reasonable to expect that the Respondent had cause or an obligation to investigate every supervisor or person with supervisory responsibilities and any failure to do so does not render the termination of the Applicants employment unfair. In my view it was the Applicant’s responses to the approaches to him regarding the practice that was the catalyst for and led to his termination. The practice of stepping across the gap may have been, and by my findings above, were occurring regularly but the reason for the termination was the indifference of the applicant to the practice and the lack of any recognition by him of any responsibilities he had with regard to it.

Findings and Conclusion

[34] I consider and find that there was a valid reason for the termination of the Applicant’s employment. The Applicant was notified of the reason for the termination and given an opportunity to respond to the reason. The Respondent’s undertaking is large and did not impact on the procedures followed.

[35] Having had regard to the matters in the previous paragraph, I determine that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D Schapper, of counsel, for the Applicant.

Mr P Quinlan, of counsel, for the Respondent.

Hearing details:

Port Hedland:

2009.

13, 14 October and 18, 19 November.

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